Membership Terms & Conditions
ACCEPTANCE OF TERMS. The services Cocoon provides to you, the undersigned (including but not limited to use of office space and access to Internet), are subject to the following Terms & Conditions (the “Terms and Conditions” or “T&C”). Cocoon reserves the right to make changes to the T&C at any time. Cocoon will provide notice to you of any updates to the T&C (which may include, without limitation, changes to services or fees) by e-mailing the e-mail address you provided in this Membership Agreement. It is your responsibility to read such e-mails and to ensure your Members are aware of any changes, even if we notify such Members directly. By signing this Membership Agreement, you agree to be bound by the T&C and all terms incorporated by reference. If you do not agree to these terms, do not use our Services.
PAYMENTS DUE ON SIGNING. Upon your submission of an executed and completed Membership Agreement, you will be obligated to deliver the following payments to us: (i) the Service Deposit, (ii) the Set-Up Fee (if any), and (iii) the Membership Fee for the first month of the term of your membership commencing with the Starting Date. In the event the Starting Date is not the first day of a calendar month, then the Membership Fee shall be prorated.
CERTAIN DEFINITIONS.
“Agreement” or “Membership Agreement” means all of these Terms and Conditions, together with the Membership Information Form and Rules and Regulations.
“Agreement Date” means the date under the signature line of this Membership Agreement (or if being accepted electronically, the date such Membership Agreement is signed electronically).
“Business Days” as used herein means: all weekdays, except U.S. federal holidays and other days which we may advise from time to time.
“Business Hours” as used herein means: 8:30 a.m. to 7:00 p.m., with the exception of days prior to U.S. federal holidays, when our regular business hours end at approximately 2:00 p.m.
“Cocoon”, “we” or “us” means Cocoon Coworking LLC, having an office at 670 Myrtle Avenue, Suite 165, Brooklyn, N.Y. 11205.
“Cocoon Portal” means the Cocoon website and data portal accessed via a username and password issued to Members only to access either the website or app (if applicable).
“Cocoon’s FAQs” means the Frequently Asked Questions section on Cocoon’s general website, at www.cocoon.nyc/FAQ.
“Landlord” means the fee owner of the building in which the Premises is located.
“Member” shall mean any Person that is authorized to use the membership being granted under this Agreement and listed on the Schedule of Members.
“Member Company”, “you” and similar words in this Agreement mean the Person (whether an entity or individual) registering for the Services and agreeing to be bound by this Membership Agreement with Cocoon. If you are entering into this Agreement on behalf of an entity or on behalf of other individuals, you represent and warrant that you have all necessary right, authority and consent to bind such entity or individuals to this Agreement. For the avoidance of doubt, whenever this Agreement uses the phrase “your Members” same shall be referring to when there are multiple Members listed on the SM List that are part of a Member Company or have otherwise been bound by you under this Agreement, as the case may be (it being understood that such phrase does not apply if you are an individual and there are no other Members listed on the SM List). You shall be responsible for your Members’ compliance with this Agreement.
“Minimum Term” means the minimum number of months/years of Membership term agreed to in writing by and between you and Cocoon.
“Office Area” means the desk(s), workstation(s), workspace location(s) or studio(s) designated under the Membership Plan chosen by you on the Membership Information Form (or if not so designated on the Agreement Date, then as designated by Cocoon management on the Starting Date).
“Person” means an individual, partnership, corporation, limited liability company, association, a joint stock company, a trust, a joint venture, an unincorporated organization, or any other form of legal entity.
“Premises” means the first (1st) floor of the building known as 49 Wyckoff Avenue, Brooklyn, New York.
“Principal Member” means the main Member contact for Cocoon if dealing with an entity or multiple Members.
“Rules and Regulations” means those specific rules and regulations that are published and pertinent to the Premises, which in addition to the T&C describe the rights, restrictions and other terms applicable to your membership and your use of the Premises.
“Schedule of Members” or “SM List” means the schedule of Persons set forth in the Membership Information Form and which provides pertinent identification, billing and contact information for the Principal Member along with each Member of the Work Team; which schedule shall be amended and updated from time to time by the Principal Member to account for additions or removals to the Work Team (in accordance with the terms and conditions of this Agreement).
“Services” shall have the meaning set forth in Section 6 below.
“Starting Date” means the Starting Date provided in the Membership Information Form.
“Term” means the period from the Agreement Date of this Agreement until the date of termination.
“Work Team” means the Persons identified on the SM List other than the Principal Member with each Person identified being intended to be a Member of Cocoon and subject to compliance with the terms of this Agreement.
MEMBERS; SCHEDULE OF MEMBERS; PRINCIPAL MEMBER; CAPACITY; NETWORK PROFILE.
Schedule of Members. Only those Persons specifically listed on an SM List will be considered “Members” hereunder. Members shall be able to commence using Services on the Starting Date (provided, however, any additional persons added to an SM List shall first be confirmed by us prior to their commencing use of the Services). You are responsible for updating and maintaining the accuracy of the SM List. Your Principal Member may make changes to your SM List via the Principal Member’s management tool section on the Cocoon Portal (if applicable, or by otherwise e-mailing the appropriate Cocoon manager). Any modification to the SM list is subject to Cocoon’s approval, which may be granted or denied in Cocoon’s sole discretion (and it is understood that it may take up to 10 Business Days for Cocoon to respond to such approval request). Upon the removal of a Member from the SM List (whether by your election or by our notification to you that such Member is required to be removed from the SM List pursuant to our rights set forth in this Agreement), such Member will no longer be allowed to use the Premises or any of the Services.
Principal Member. In the case of a Member Company or multiple Members, the Principal Member shall have the sole authority to make modifications to or terminate this Agreement on behalf of the Members. The Principal Member will serve as Cocoon’s primary contact regarding all matters that involve your membership. Cocoon will be entitled to rely on communications to or from the Principal Member as to or from the applicable Member Company or Member. Cocoon will provide invoices and other billing-related documents, information and notices to the Principal Member (via the Cocoon Portal or e-mail).
Capacity. If the number of Members or other individuals regularly using the Office Area exceeds capacity (as may be set forth initially in the Membership Information Form), you will be required to pay additional fees as then set forth on Cocoon’s FAQs. In no event will the number of Members (including the Principal Member) exceed 1.5 times the number desks in the Office Area, regardless of additional fees paid. Notwithstanding anything to the contrary contained in this Agreement, Cocoon reserves the right to further limit the number of Members allowed at any point.
Network Profile. Cocoon may, at its sole option, create a member profile for the Members on the Cocoon Portal. Such profile will be viewable by third parties and other members. The created profile will include only the Member’s name and the Member Company (if applicable); any additional information, including a photograph, shall be added solely as determined by you or your Members (if applicable). In the event of the foregoing, you are responsible for informing each of your Members about the creation of such profile and obtaining their consent to the collection, use and disclosure of their personal information for such purposes.
MEMBERSHIP FEES; CHANGES TO FEES; TAXES; LATE FEES, INTEREST; CREDITS; AND OTHER PAYMENT TERMS.
Membership Fees. During the Term, your recurring membership fee (“Membership Fee”) and any other then-outstanding fees (if applicable) will be charged on an automated recurring monthly basis on the first (1st) day of the month (unless we notify you otherwise). You are obligated for such payments throughout the Term and this obligation is absolute notwithstanding any early termination of the Agreement by you. We accept payment of all amounts specified in this Agreement solely by the methods we communicate to you during the membership sign up process or from time to time during the Term (which may include ACH, credit card and/or debit card). You shall promptly advise Cocoon of any change to your payment information. Notwithstanding anything to the contrary contained in this Agreement, you and your Members’ use of the Services may be immediately suspended or terminated if we are unable to charge your payment instrument for any reason. For the avoidance of any doubt, the Membership Fee covers the Services for only the number of Members indicated on the SM List; any additional members will result in additional fees as set forth on Cocoon’s FAQs (or if not posted, then as per Cocoon’s sole discretion).
Changes to Membership Fees. The general membership fee schedule can be found at www.cocoon.nyc/Bushwick and is subject to change from time to time in our sole discretion. It is also understood that Members may receive a different fee schedule, and/or incentives or discounts, when initially signing up for membership that may not be provided on our website. Notwithstanding anything to the contrary contained in this Agreement, following the expiration of any Minimum Term, or during any other month-to-month membership, we expressly reserve the right to further increase or decrease the Membership Fees at our sole discretion.
Taxes. You agree to pay promptly: (i) all sales, use, excise, value added, and any other taxes which you are required to pay to any other governmental authority (and, at our request, will provide to us evidence of such payment) and (ii) all sales, use, excise, value added and any other taxes attributable to your membership as shown on your invoice.
Late Fees; Interest; Repeat Offenders. If payment for the Membership Fee or any other accrued and outstanding fee is not made by the fifth (5th) day of the month in which such payment is due, you will be responsible for paying a late fee in the amount of ten percent (10%) (which late fee may be modified from time to time as reflected on the fee schedule listed on Cocoon’s FAQs). In addition, commencing upon the first day that your Membership Fees are past due, interest shall also accrue at ten percent (10%), or the maximum rate allowable at law, and Cocoon may, in its sole discretion, collect any accrued interest together with past due Membership Fees. Cocoon shall, at its option, have the right to draw upon your Service Deposit to satisfy any past due amounts or other monetary obligations of the Member(s) hereunder (including, without limitation, outstanding Membership Fees, late fees and any accrued interest). If you fail to timely pay any membership fees or other charges on more than one (1) occasion during any twelve (12) month period during the Term of your membership, or Membership Fees and any other monetary obligations of a Member remain past due for more than thirty (30) days, Cocoon may terminate your membership immediately upon notice (and upon such termination all Members on your account will also have their Membership terminated, notwithstanding any other provision herein).
Credits; Overage Fees. Each month, some Memberships shall receive a certain number of credits for the use of pre-paid Services (such as conference rooms, and copiers, printers and other products and services that Cocoon may offer from time to time at the Premises), as may be specified either on the Membership Information Form or Cocoon’s FAQs. These allowances may not be rolled over from month to month. If you exceed such allocated amounts, you will be responsible to pay the fees for such overages.
No Refunds; Application of Payment. There are absolutely no refunds of any Membership Fees or other amounts paid by you or your Members in connection with the Services (other than the Service Deposit in accordance with the express terms of this Agreement). Any outstanding fees will be charged in arrears on a monthly basis. When we receive funds from you, we will first apply funds to any balances which are in arrears and to the earliest month due first. Once past balances are satisfied, any remaining portion of the funds will be applied to current fees due.
DESCRIPTION OF SERVICES. Cocoon may (in its reasonable discretion) provide you with non-exclusive access to office space, work stations, Internet access, office equipment, conference rooms, information resources, and other services as Cocoon may provide from time to time in its sole discretion (collectively, the “Services”). The Services at all times are subject to this Agreement. Specifically, such Services may include the following:
Access to the Premises and the Office Area.
Furnishings for the Office Area of the quality and quantity typically provided at the Premises.
Subject to availability, use of the conference rooms during Business Hours on Business Days (subject to the terms of this Agreement, including the “Credits; Overage Fees” section of this Agreement).
Access to and use of the shared wireless internet connection.
Heat and air-conditioning in the Premises during Business Hours on Business Days.
Use of printers/copiers/scanners made publicly available in the Premises (subject to the terms of this Agreement, including the “Credits; Overage Fees” section of this Agreement).
Regular maintenance (but not responsible for repair beyond wear and tear) and trash removal services for Office Areas (however Member will pay to Cocoon, on demand, as an additional fee, Cocoon’s standard charge (as adjusted from time to time) for garbage that exceeds normal waste basket refuse).
Invitations to attend events, benefits and promotions that are open to Members.
From time to time during the Term, Cocoon may, at its option, make additional Services available to Members described in or added to Agreement or website at fees established by Cocoon.
NO UNLAWFUL OR PROHIBITED USE. As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Cocoon server, or the network(s) connected to any Cocoon server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, or accounts, computer systems or networks connected to any Cocoon server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
FLEX MEMBERSHIP. Instead of a designated Office Area membership, Cocoon may offer a flex pass option, with a Term that may be daily or monthly. In such event, the following terms shall apply with respect to certain Services and rights and obligations of Members:
Daily Flex Membership.
No Security Deposit shall be required.
Instead of an Office Area, Flex Members shall utilize designated portions of the common areas in the Premises, such designations to be determined in our sole discretion.
Flex Day Members shall not be permitted to use the address of the Premises for mail or package delivery, and Cocoon shall have no liability in connection with any mail or packages delivered to such Member.
Flex Day Membership shall automatically terminate at 11:59 p.m. E.S.T. on the date such membership was purchased for.
Flex Day Members shall not be able to host events at the Premises.
Flex Day Membership is intended for the use of the member to which it is allocated and is not intended to provide access and use to other parties. Guests are not permitted, other than in connection with conference room bookings (which bookings are subject to additional fees). If a Flex Day Member has booked a conference room, guests may be registered and given access to the booked conference room. The number of guests is limited to the number of people permitted in the booked conference room. The guests will be permitted to access the Premises only during such booking period. We reserve the right, in our sole discretion, to restrict the access of guests in the event that such use violates the purpose or intent of Cocoon membership.
Monthly Flex Membership.
No Security Deposit shall be required.
Instead of an Office Area, Flex Monthly Members shall utilize designated portions of the common areas in the Premises, such designations to be determined in our sole discretion.
A Flex Monthly Member may cancel his/her/their membership at any time by e-mail after the payment of the first month’s fees. Such cancellation will take effect at the end of the month for which the final payment has been paid. The Member must send the e-mail notification ten (10) days’ prior to the beginning of the new month. Notice of termination must be provided by e-mailing us at info@cocoon.nyc or through the tools we provide you to manage your Cocoon Membership (to the extent such tools are then available).
USE OF SERVICES; RULES AND REGULATIONS. In addition to any Rules and Regulations set by Cocoon for the Cocoon Premises, you acknowledge and agree that:
You, and all of your Members, shall be at least 21 years of age;
At all times you and all Members will conduct your operations ethically and in accordance with all applicable law;
At all times you and all Members will conduct your operations in accordance with all laws that prohibit commercial or public bribery and money laundering;
All keys/keycards shall remain Cocoon’s property. You will cause your Members to safeguard our property and you will be liable for replacement fees should any such property be lost, stolen or destroyed. Under no circumstances may you make any copies of any keys/keycards or other means of entry to the Office Area or the Premises or lend, share or transfer any keys/keycards to any third party, unless expressly authorized by us in advance. To the extent permitted by law, all Members shall be required to provide valid government issued identification in order to be issued an activated key card to access the Premises and before entering any part of the Premises;
While you are using a Cocoon space, you are responsible for your personal property. We will not be responsible for any lost, damaged or stolen items;
The common spaces of the Premises are to be enjoyed by all members and guests (unless otherwise instructed by Cocoon) and are for temporary use and not as a place for continuous, everyday work. You agree not to store any of your property or materials in common areas or hallways;
You will be responsible for any damage to your Office Area exceeding normal wear and tear;
You are responsible for maintaining, at your own expense and at all times during the Term, insurance in form and amount appropriate to your business;
You will not (i) attach or affix any items to the walls or make any other alterations to the Office Area or the Premises, (ii) install antennas or telecommunication lines or devices or any other installations in the Office Area or the Premises or (iii) bring any additional furniture, appliances, furnishings or decorations into the Office Area or the Premises, in each case without the prior written consent of Cocoon (such consent to be granted or withheld in its sole discretion). In the event that any alterations and/or installations are consented to and made, you shall also be responsible for the full cost and expense of the removal of any such items and any restoration necessitated by any such alterations. To the extent that we incur any costs in connection with such alteration, installation or removal which are not otherwise paid by you we shall deduct such costs from the Service Deposit. Prior to any such alteration, installation or removal you shall coordinate with the Cocoon manager at the Premises to discuss the appropriate time, manner and means for our facilities team to perform such alteration, installation or removal, at no time shall you or any of your Members perform any alteration, installation or removal yourself;
Space heaters of any kind must be approved by Cocoon management. If granted permission to have one in your Office Area, it is mandatory to shut it off daily. If you forget to turn off your heater, you are subject to a $200 fine;
You will provide us with reasonable advance notice of and complete all required paperwork prior to hosting any event at the Premises. Any request for hosting an event shall be subject to Cocoon’s consent, which may be granted or withheld in Cocoon’s sole discretion. Cocoon makes no representation or guaranty that a Member or Member Company will be able to host an event at the Premises. Any consent to such hosting shall be on a case by case basis;
All electronic equipment (including computers, tablets and mobile devices) must be (i) kept up-to-date with the latest software updates provided by the software vendor and (ii) kept clean of any malware, viruses, spyware, worms, Trojans, or anything that is designed to perform malicious, hostile and/or intrusive operations. We reserve the right to remove any device from our networks that poses a threat to our networks or users until the threat is remediated;
In the event you are a Member Company, you consent to our non-exclusive, non-transferable use of your Member Company name and/or logo in connection with identifying you as a Member Company, alongside those of other member companies, on a public-facing “Membership” display, as well as in other marketing materials. You warrant that your logo does not infringe upon the rights of any third party and that you have full authority to provide this consent. You may terminate this consent at any time upon thirty (30) days’ prior notice to us;
You shall be solely and fully responsible for ensuring that no alcohol is consumed by any of your Members who are younger than the legal age for consuming alcohol in the applicable jurisdiction. Your Members or guests who are of legal drinking age that choose to consume alcohol shall do so responsibly. You shall be responsible for ensuring compliance with this rule by your Members and guests;
You are responsible for ensuring your Members comply with all rules and regulations; and
Under no circumstances shall a Member:
perform any activity that is reasonably likely to be disruptive or dangerous to us or any other members or member companies, or our or their employees, guests or property, including, without limitation, the Office Area or the Premises;
use the Services to conduct or pursue any illegal or offensive activities or comport themselves to the community in a similar manner, or otherwise violate any applicable laws or regulations;
take, copy or use any information or intellectual property belonging to other members or guests, including without limitation personal names, likenesses, voices, business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property, or modified or altered versions of the same, and this provision will survive termination of this Agreement;
use the Office Area or Premises for any non-office use (such as retail, medical, or any other use involving frequent visits by members of the public);
sell, manufacture or distribute any controlled substance, including alcoholic beverages, from the Premises, or obtain a license for such sale, manufacture, importation, or distribution using the address of the Premises;
install any locks to access the Office Area or anywhere within the Premises, unless expressly authorized by the Cocoon manager in advance;
misuse any of the Services, which misuse includes repeatedly failing to utilize Services for which you have an active reservation;
operate any equipment in the Premises that has a higher heat output or electrical consumption than in a typical office environment, or places excessive strain on our electrical, IT, HVAC or structural systems, with such determination to be made in our sole discretion;
use the Services in connection with contests, pyramid schemes, chain letters, junk e-mail, spamming or any duplicative or unsolicited message (commercial or otherwise);
defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same;
use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
download any file(s) that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner;
restrict or inhibit any other user from using and enjoying the Services;
harvest or otherwise collect information about others, including e-mail addresses, without the authorization or consent of the disclosing party;
upload files that contain viruses, Trojan Horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another;
publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through Cocoon Services;
create a false identity for the purpose of misleading others or otherwise misrepresent himself or herself to others;
smoke in any portion of the Premises; or
bring any weapon of any kind, or any other offensive, dangerous, inflammable or explosive material into the Premises.
You and your Members shall be required to abide by all other rules and regulations as determined by Cocoon and communicated to you (including, without limitation, via e-mail). Cocoon may add, delete, amend or modify the rules and regulations at its reasonable discretion, provided that the enforcement of such rules shall be performed in a uniform manner to all members at the Premises.
10. COCOON’S RESERVED RIGHTS.
Disclosure. Cocoon reserves the right at all times to disclose any information about you, and/or your participation in and use of the Services, as Cocoon deems necessary to satisfy any applicable law, regulation, legal process, governmental request or as Cocoon otherwise deems reasonably necessary to protect its interests. In addition, Cocoon reserves that right at all times to edit, refuse to post or to remove any information or materials from its systems, in whole or in part, at Cocoon’s sole discretion.
Security. For security reasons, Cocoon reserves the right to (but shall have no obligation to) regularly record certain areas in the Premises via video. You acknowledge and agree that you have no expectation of privacy or security with respect to Cocoon’s Internet connection, networks, telecommunications systems or information processing systems (including any stored computer files, e-mail messages and voice messages), and that your activity and any files or messages on, or using any of, those systems may be monitored at any time without notice and for any reason, including, without limitation, for security reasons and to ensure compliance with our policies, regardless of whether such activity occurs on equipment owned by you or Cocoon.
Access. Cocoon shall have the unfettered right to access an Office Area at any time, with or without notice, in connection with Cocoon’s provision of the Services, for safety or emergency purposes or for any other purpose. Cocoon may temporarily move furniture contained in your Office Area for any reason.
Relocation/Changes. Upon not less than sixty (60) days advance written notice to you, Cocoon reserves the right and may move the location of or reduce or increase the size or configuration of your Office Area; provided that the new location you are moved to is reasonably comparable to the space you were moved from; and provided further that should the size of your location be materially increased or decreased, you and Cocoon shall meet within the aforementioned 60-day period to discuss appropriate amendments, if any, to the terms of your membership under this Agreement.
Reduction/Change in Services. The availability and scope of the Services and the Premises at which the Services are available are subject to change from time to time in our sole discretion. Cocoon reserves the right, at any time, to modify or reduce the list of Services or furnishings provided for your Office Area and/or the Premises. In addition, the Services may be provided by us, an affiliate or a third-party.
Usage Monitoring. Cocoon reserves the right to monitor your usage of the resources provided by Cocoon, such as electricity, bandwidth and other utilities and office amenities. If Cocoon determines, in its sole discretion, that you are using more than a reasonable quantity of any resource, then Cocoon will notify you of such use. If you do not adequately reduce or remediate your excess usage of a particular resource within five (5) business days of notice from Cocoon, the cost of this excess usage will be billed to your account, in addition to any other remedies Cocoon may have. Cocoon is not responsible for and will not monitor any content that you download or upload via the Cocoon network and your use of such content shall be at your own risk. As a condition of use of such services, you, on behalf of yourself and on behalf of your employees, agents, and invitees, hereby waive any claim or action against the Cocoon Parties (hereinafter defined) arising from or in conjunction with the installation and/or use of any software and/or drivers installed or made available to you by Cocoon. You further agree to indemnify and hold the Cocoon Parties harmless from and against any and all damages, penalties, or other losses resulting from any software or other items that you download or upload through the Cocoon network.
11. PARTICIPATION IN OR USE OF SERVICES; DISCLAIMER OF WARRANTIES. You acknowledge that you are participating in or using the Services at your own free will and decision. You acknowledge that Cocoon does not have any liability with respect to your access, participation in, use of the Services, or any loss of information resulting from such participation or use. To the maximum extent permitted by applicable law, Cocoon provides the services “as is” and with all faults, and hereby disclaim with respect to the Services all warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) warranties, duties or conditions of or related to: merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses, results, workmanlike effort and lack of negligence. Also, there is no warranty, duty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement. The entire risk as to the quality, or arising out of participation in or the use of the services, remains with you.
12. TERM; TERMINATION; REMOVAL OF PROPERTY; SERVICE DEPOSIT; HOLDOVER.
Term. This Agreement will be effective upon the Agreement Date and when executed by you or the Principal Member (as the case may be); it being understood, however, that Cocoon shall have no obligation to provide any Service until the Starting Date (and provided Cocoon has received your Service Deposit (if applicable), Set-Up Fee (if applicable) and first month’s Membership Fee). If the Starting Date occurs on a Business Day, you will be entitled to use the Office Area on the Starting Date. If the Starting Date is not a Business Day, you will be entitled to use the Office Area on the first regular Business Day following the Starting Date. Unless otherwise expressly set forth on the Membership Information Form, following the Expiration Date of a Minimum Term this Agreement shall continue on a month-to month basis. In the case of any month-to-month arrangement, in the event the Starting Date is not the first day of a month, then the earliest possible expiration date shall be the last day of the full calendar month following the month in which the Starting Date occurred. This Agreement will continue until terminated in accordance with this Agreement. Notwithstanding the foregoing, we may decline to continue your membership after the end of the Minimum Term in our sole discretion.
Termination by You. This Agreement may not be terminated by you prior to the end of the Minimum Term, and any such termination shall constitute a breach of this Agreement. To terminate your Cocoon Membership at the end of the Minimum Term, you must provide us at least thirty (30) days’ notice prior to the last day of your Minimum Term specified in the Membership Information Form, and in the event of such termination you and all of your Members must vacate the Premises by 4:00 p.m. on the Expiration Date (provided if the Expiration Date is not a Business Day, then on the Business Day immediately preceding the Expiration Date). Otherwise, unless set forth on the Membership Information Form, following the Minimum Term, your Cocoon Membership shall continue and automatically convert to a month-to-month arrangement until terminated in accordance with this Agreement. If you terminate your membership prior to the end of the Minimum Term, your Membership Fee payment obligations through the end of the Minimum Term shall become immediately due. To terminate your membership during any month-to-month arrangement, you must provide us with at least ten (10) days’ notice prior to the last day of the calendar month in which you intend to terminate. In all cases, notice of termination must be provided by e-mailing us at info@cocoon.nyc or through the tools we provide you to manage your Cocoon Membership (to the extent such tools are then available). In the event you terminate a month-to-month arrangement, you and all of your Members must vacate the Premises by 4:00 p.m. on the last Business Day of the calendar month in which the termination of your membership occurs.
Termination or Suspension by Cocoon. Cocoon may withhold Services and/or immediately terminate this Agreement (and without being required to give prior notice): (i) upon breach of this Agreement by you or any Member; (ii) upon termination, expiration or material loss of Cocoon’s rights in the Premises; (iii) if any outstanding fees are still due after we provide notice to you; (iv) if you or any of your Members fail to comply with the terms and conditions of this Agreement or any other policies or instructions provided by us; or (v) at any other time, when Cocoon, in its sole discretion, sees fit to do so. You will remain liable for past due amounts, and we may exercise our rights to collect due payment, despite termination or expiration of this Agreement.
Removal of Property. Prior to the termination or expiration of this Agreement, you will remove all of your, your Members’, and your or Members’ guests’ property from the Office Area and Premises. Cocoon is not responsible for any personal or business property left at the Premises after the end of a Membership Term and Cocoon shall be entitled to, without liability, dispose of any property remaining in or on the Office Area or Premises after the termination or expiration of this Agreement. Cocoon will not have any obligation to store such property, and you waive any claims or demands regarding such property or our handling of such property. You will be responsible for paying any fees reasonably incurred by us regarding such removal.
Service Deposit. The Service Deposit will be held as a retainer for performance of all your obligations under this Agreement and is not intended to be a reserve from which fees may be paid. In the event you owe us other fees, you may not rely on deducting them from the Service Deposit, but must pay them separately. In the event that at the time of termination any charges remain unpaid, including, without limitation, for any damage to the Premises (other than normal wear and tear), you agree that Cocoon may deduct such amounts from and apply the Service Deposit. Subject to the complete satisfaction of your obligations under this Agreement, we will return the Service Deposit (or any balance after deducting outstanding fees and other costs due to us) to you (with a payment method of our choice) within forty-five (45) days (or earlier if required by applicable law) after the termination or expiration of this Agreement. Return of the Security Deposit is also subject to your complete performance of all your obligations under this Agreement, including, without limitation, full satisfaction of your payment obligations and any additional obligations applicable following termination or expiration of this Agreement. Cocoon has no duty to maintain the Security Deposit in an escrow or interest-bearing account and such funds will be available for use by Cocoon for the duration of your membership. You acknowledge that you are not entitled to any interest on the Security Deposit. To ensure that the full Service Deposit amount is on hand at all times during the Membership Term, you agree to deliver to Cocoon upon its request any amount necessary to restore the full amount of your Service Deposit following any draw that Cocoon has previously made on your Security Deposit.
Delay in Handover of Office Area. In the event of any delays by you in handing over the Office Area to us after the termination or expiration of the Agreement, you agree, in addition to any other remedies we may have hereunder, at law or at equity, to pay twice the applicable Membership Fee for every day of unauthorized occupation, beyond the date of expiry or termination of this Agreement. You agree and acknowledge that the damages provided for in this clause are a genuine and reasonable pre-estimate of the damages that we may suffer as a result of your delay and failure to comply with your obligations in the manner contemplated and is not a penalty.
13. OFFICE AREA UNAVAILABLE BY STARTING DATE. Cocoon shall not be liable in the event Cocoon is unable to make the Office Area available by the Starting Date for any reason, including, without limitation, due to changes in construction plans, delay in obtaining permits, or any other delays in connection with preparing the Premises as a co-working space. In the event of the foregoing, the Agreement shall nevertheless remain in full force and effect, provided that: (i) the failure to provide access to the Office Area does not last longer than two (2) months and (ii) at Cocoon’s sole discretion we either (x) provide you with alternate office space (which may or may not be within a Cocoon premises) with reasonably comparable capacity during such period and charge your Membership Fee or (y) not charge the Membership Fee during the period the Office Area is not available to you. Following the two (2) month period set forth in item (i) above you shall have the ability to terminate this Agreement upon seven (7) Business Days’ prior notice to us. For purposes of clarity, if we do provide you alternate office space as described in clause (x) above, during the period we provide you with such alternate space, 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 Area is due to your actions or inactions or due to changes in work to the Office Area requested by you, we will not be subject to any liability related to such delay and we shall have no obligations to provide you with the benefits described in subsections (x) and (y) of this paragraph.
14. SOFTWARE/TECHNOLOGY RELEASE. You acknowledge and agree that in order to receive certain services (including, but not limited to, access to the network, shared printing, etc.), you must install certain drivers and software onto a Member’s computer, tablet, mobile device or other electronic equipment, such drivers and software to be provided by Cocoon and/or its designee. In addition, from time to time, at a Member’s request, we or an affiliate, or our or their agent or service provider, may help troubleshoot problems a Member may have in trying to access certain functionalities, such as printing or accessing the Internet. Regarding the foregoing, you agree that we and our affiliates: (1) are not responsible for any damage to any Member’s computer, tablet, mobile device or other electronic equipment, or otherwise to Member’s system, related to such technical support or downloading and installation of any software or driver; (2) do not assume any liability or warranty in the event that any manufacturer warranties are voided; and (3) do not offer any verbal or written warranty, either expressed or implied, regarding the success of any technical support. Cocoon hereby grants to you a revocable non-exclusive license to use these certain drivers and software during the Term of your membership. You may not resell, lease, license or distribute any of the services, drivers or software provided to you to any third party without the prior written consent of Cocoon.
15. COMMUNICATIONS. You acknowledge that you may receive community e-mails as part of your obligations and duties as a Member. Cocoon may provide notice of any changes to services, fees or other updates by e-mail to you and/or the Principal Member at the e-mail address provided by you and you agree that notice as so transmitted is proper hereunder. Any such notice shall be effective on the first Business Day after being sent. You agree to notify Cocoon immediately of any change to your contact information (telephone, address and e-mail). Until such time as Cocoon (whether by e-mail or through the network) confirms that it has received a new e-mail address, Cocoon shall rely on the e-mail address provided by you on the Membership Information Form. In the case of a Member Company or multiple Members, any notice to be sent by you or any of your Members should be sent by the Principal Member. In the case of a company, in the event that we receive multiple notices from different individuals within your company containing inconsistent instructions, the Principal Member’s notice will control unless we decide otherwise in our reasonable discretion.
16. UPDATES TO THE AGREEMENT. We may occasionally update, amend or supplement this Agreement, and shall provide you with thirty (30) days’ notice of such updates. You and all of your Members shall be deemed to have accepted such updates, amendments or supplements by continued use of the Services.
17. WAIVER OF CLAIMS. To the extent permitted by law, you, on your own behalf and on behalf of your Members, and your and their employees, agents, guests and invitees, waive any and all claims and rights against Cocoon and Landlord and Cocoon’s affiliates, parents, and successors and each of our and their employees, assignees, members, officers, agents, directors, consultants, contractors and representatives (collectively, the “Cocoon Parties”) resulting from injury or damage to, or destruction, theft, or loss of, any property, person, pet or animal, except to the extent caused by the gross negligence, willful misconduct or fraud of the Cocoon Parties.
18. HARASSMENT. You and all Members shall be prohibited from participating in any type of harassing, discriminatory, or abusive behavior to Cocoon employees and representatives, other members or any guest or invitee, whether same be of a verbal or physical nature. Any breach of this condition is material breach of the Agreement (not capable of remedy) and the Agreement may be terminated immediately and services will be suspended without further notice.
19. LIMITATION OF LIABILITY. The aggregate monetary liability of any of the Cocoon Parties to you or your Members, or your or their employees, agents, guests or invitees for any reason and for all causes of action, will not exceed the total Membership Fees paid by you to us under this Agreement in the twelve (12) months prior to the claim arising. None of the Cocoon Parties will be liable under any cause of action, for any indirect, special, incidental, consequential, reliance or punitive damages, including loss of profits or business interruption. You acknowledge and agree that neither you, nor any Member, may commence any action or proceeding against any of the Cocoon 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. To the extent any of the exclusions or limitations of liability set forth in this section are determined to be not enforceable under applicable law, such exclusions and limitations of liability shall be enforced to the fullest extent permitted under applicable law.
20. INDEMNIFICATION. You agree to indemnify, defend and hold the Cocoon Parties harmless from and against any and all damages, losses, fees, penalties, actions, suites, proceedings, claims, demands, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees), resulting from any breach of this Agreement by you or your Members or your or their guests, invitees, animals or pets or any of your or their actions or omissions, except to the extent a claim results from the gross negligence, willful misconduct or fraud of the Cocoon Parties. You are responsible for the actions of and all damages caused by all persons, animals and pets that you, your Members or your or their guests invite to enter any of the Premises. You shall not make any settlement that requires a materially adverse act or admission by us or imposes any obligation upon any of the Cocoon Parties without our written consent. None of the Cocoon Parties shall be liable for any settlement made without its prior written consent.
21. OTHER MEMBERS. Cocoon does not control and is not responsible for the actions of other member companies, members, or any other third parties. In addition, Cocoon is not responsible or liable for damage to or theft of personal or business property left unattended or unlocked within the Premises. If a dispute arises between Member Companies, Members or their invitees or guests, Cocoon shall have no responsibility or obligation to participate, mediate or indemnify any party. Any Member involved in a dispute could be asked to leave the Premises for the remainder of the day. These events could also lead to suspension or termination if Cocoon can accurately determine who was in the wrong by viewing our security cameras.
22. SURVIVAL. All provisions of this Agreement reasonably expected to survive the termination or expiration of this Agreement will do so.
23. GOVERNING LAW; WAIVER OF JURY TRIAL; ARBITRATION AND VENUE; PROCEEDINGS; JUDGEMENT; CLASS ACTION WAIVER.
GOVERNING LAW. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAW OF THE STATE OF NEW YORK AND WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF.
WAIVER OF JURY TRIAL, ARBITRATION AND VENUE. EACH PARTY HERETO, TO THE EXTENT PERMISSIBLE BY LAW, HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY. ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, OR AT LAW, OR THE BREACH, TERMINATION OR INVALIDITY OF THIS AGREEMENT, THAT CANNOT BE SETTLED AMICABLY BY AGREEMENT OF THE PARTIES TO THIS AGREEMENT SHALL BE FINALLY ADJUDICATED BY BINDING ARBITRATION IN ACCORDANCE WITH THE ARBITRATION RULES OF JAMS THEN IN FORCE, BY ONE OR MORE ARBITRATORS APPOINTED IN ACCORDANCE WITH SAID RULES. THE PLACE OF ARBITRATION SHALL BE NEW YORK, NEW YORK.
PROCEEDINGS; JUDGMENT. THE PROCEEDINGS SHALL BE CONFIDENTIAL AND IN ENGLISH. THE AWARD RENDERED SHALL BE FINAL AND BINDING ON BOTH PARTIES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. IN ANY ACTION, SUIT OR PROCEEDING TO ENFORCE RIGHTS UNDER THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER, IN ADDITION TO ANY OTHER RELIEF AWARDED, THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES AND OTHER FEES, COSTS AND EXPENSES OF EVERY KIND IN CONNECTION WITH THE ACTION, SUIT OR PROCEEDING, ANY APPEAL OR PETITION FOR REVIEW, THE COLLECTION OF ANY AWARD OR THE ENFORCEMENT OF ANY ORDER, AS DETERMINED BY THE ARBITRATOR(S) OR COURT, AS APPLICABLE. THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN THE ENGLISH LANGUAGE, WHICH IS THE LANGUAGE OF THE OFFICIAL TEXT OF THIS AGREEMENT.
CLASS ACTION WAIVER. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR WE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS. YOU AND WE ALSO AGREE NOT TO PARTICIPATE IN CLAIMS BROUGHT IN A PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE CAPACITY, OR ANY CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT, IF WE ARE A PARTY TO THE PROCEEDING. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
24. MISCELLANEOUS.
Force Majeure. Cocoon 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 Cocoon’s reasonable control, including, without limitation (i) any delays or changes in construction of, or Cocoon’s ability to procure any space in, the Premises, (ii) any delays or failure to perform caused by conditions under the control of the Landlord, (iii) any governmental acts, orders or restrictions imposed that limit Cocoon’s operations, (iv) any acts of G-d, and/or (v) epidemics, pandemics or any public health emergency. Nothing in this subparagraph shall give a Member the right to terminate this Agreement.
Animals/Pets. Service animals are permitted. In no event shall any other animal or pet be permitted at the Premises if such animal or pet weighs over fifteen (15) pounds. In all events, we may require persons bringing animals or pets to the Premises to produce proof of vaccination for such animal or pet and/or evidence of compliance with applicable local regulations. You will be responsible for any injury or damage caused by this animal or pet to other members or guests or other occupants of the Premises or to the property of Cocoon or any employees, members, guests, other occupants, or the Landlord of the Premises, and Cocoon will not be liable for any injury to animals or pets in the Premises. Cocoon reserves the right to restrict any person’s right to bring an animal or pet into the Premises in Cocoon’s sole discretion.
Assignment. No Member shall assign or otherwise transfer any of his/hers/their/its rights or obligations under this Agreement without the prior written consent of Cocoon, which consent shall be provided in the sole and absolute discretion of Cocoon. Any assignment or other transfer made by Member which is not in accordance with this section shall be null and void. Notwithstanding anything to the contrary contained in this Agreement, Cocoon may, without your consent, assign or otherwise transfer the Membership Agreement and/or any of its rights or obligations hereunder. This Membership Agreement is binding upon and will inure to the benefit of each party and its respective permitted successors or assigns.
Relationship. The relationship of the parties under this Agreement: (i) is one of independent contractors, and neither party has the authority to bind the other party in anyway and (ii) is non-exclusive and nothing herein shall be deemed to restrict or limit a party’s ability to engage in similar relationships, agreements or arrangements with any other party. The whole of the Office Area and all commons areas remains our property and in our possession and control. We are giving you the right to share with us the use of the Office Area and other designated portions of the Premises so that we can provide the Services to you. Notwithstanding anything in this Agreement to the contrary, you and we agree that our relationship is not that of landlord-tenant or lessor-lessee and this Agreement in no way shall be construed as to grant you or any Member any title, easement, lien, possession or related rights in our business, the Premises, the Office Area or anything contained in or on the Premises or Office Area. This Agreement creates no tenancy interest, leasehold estate, or other real property interest. This Agreement shall not be deemed to create a fiduciary or agency relationship, or partnership or joint venture, for any purpose. Neither party will in any way misrepresent our relationship.
Entire Agreement. The Agreement, which is comprised of the Membership Information Form, Schedule of Members, Rules and Regulations and these Terms and Conditions (together with any documents and/or links referenced herein) set forth the entire agreement of the parties as to its subject matter and supersede all prior agreements, negotiations, representations and promises between them with respect to its subject matter. All prior agreements and understandings between the parties regarding the matters described herein have merged into this Agreement. The Agreement shall not be changed in any manner except as otherwise expressly provided in this Agreement.
Severability. Each provision of this Agreement shall be considered severable. In the event that any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
Waiver. A waiver of rights under the Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights.
Non-Contravention. You agree not to directly or indirectly contact or otherwise interfere with any agreement or relationship between Cocoon and the Landlord without the express written consent of Cocoon, unless such contact is unrelated to Cocoon and its business activities.
Subordination. This Agreement is subordinate and subject to our lease with the Landlord and to any other agreements to which our lease with Landlord are subordinate. For the avoidance of any doubt, the foregoing does not imply any sublease or other similar relationship involving an interest in real property.
Authority. You hereby represent and warrant that you have all requisite legal power and authority to enter into and abide by the terms and conditions of this Agreement and no further authorization or approval is necessary. You further represent and warrant that your participation or use of the Services will not conflict with or result in any breach of any license, contract, agreement or other instrument or obligation to which you are a party.
Headings. 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” where appropriate. References to any times of day in this Agreement refer to the time of day in the time zone of the Premises.
Confidentiality; Intellectual Property. Member agrees to hold all Confidential Information (defined as information not generally known to the public) of Cocoon and other members in strict confidence and to take all reasonable precautions to protect and preserve Confidential Information, except as reasonably required to comply with any applicable law, regulation, court order or governmental request. Member acknowledges that any disclosure or unauthorized use of Confidential Information will constitute a material breach of this Agreement and cause substantial harm to the injured party for which damages would not be a fully adequate remedy. In the event of any such breach, Cocoon, or such aggrieved Member, shall have, in addition to other available remedies, the right to injunctive relief (without being required to post any bond or security). You must not use the name “Cocoon” or any of Cocoon’s intellectual property in any way in connection with your business without prior written consent of Cocoon, which shall be provided or withheld in the sole and absolute discretion of Cocoon; provided, however, during the Term you will be able to use “Cocoon” in plain text to accurately identify an address or office location. You may not use pictures or illustrations of the Premises (including any images from the Cocoon sites) in any advertising, publication or other purpose without the prior written consent of Cocoon, which shall be provided or withheld in the sole and absolute discretion of Cocoon. Further, you agree that no press release, advertising, sales literature or other public statements relating to the existence or substance of the Agreement or the relationship of the parties created by it, shall be made by you without the prior written approval of Cocoon, which shall be provided or withheld in the sole and absolute discretion of Cocoon. You may not file for ownership rights of any of Cocoon’s intellectual property with any governmental authority or use our intellectual property in any advertising, including domain names, social media handles, or any form of media invented in the future. You may not, directly or indirectly, interfere with or object to, in any manner, our ownership rights or the use of our intellectual property or engage in any conduct that is likely to cause confusion between Cocoon and yourself, without our prior consent.
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 in accordance with applicable law. This Agreement may be executed using electronic means and the use of electronic signature by a party will have the same full force and legal effect as if the electronic signature was a traditional hand-written signature in accordance with applicable law. You acknowledge that you have the ability to retain this Agreement either by printing or saving it.