WHEREAS, you desire to temporarily use space at the Flourish premises (the “Premises”).
WHEREAS, Flourish agrees to use commercially reasonable efforts to provide the space and the services described below at the Premises, as may be available from time to time, in consideration of certain payments and covenants set forth herein. The services are described herein as the “Services” and shall include the ability to book use of space in Flourish, access to and use of the shared Internet connection in accordance with Flourish’s then current data connection and internet access terms and conditions and front desk assistance. The “Services” shall be deemed to include any other services you may purchase from us from time to time. Any such additional services will form part of the “Services” and may be subject to additional guidelines, terms, conditions and/or rules, including additional payment obligations, which shall be deemed to form part of and be incorporated into these Terms and accepted by virtue of the use of such additional services.
WHEREAS, in order to access the Services, you hereby agree to the Terms hereof, all other policies of Flourish and any updates thereto. We may from time to time update, amend or supplement our policies and terms of service, and shall provide you with notice of such updates where practicable. You shall be deemed to have accepted such updates, amendments or supplements by continued use of the Services.
NOW THEREFORE, the parties agree to the following terms and conditions:
1. Changes to our Services or these Terms. 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.
2. Payment Terms. You agree to pay us the fees associated with the particular Services you are purchasing, as displayed to you at the time you sign up for the relevant Services, or as updated by us from time to time upon notice to you. Overage fees and other non-recurring fees will be charged within thirty (30) days of you accruing such fees. If payment of any accrued and outstanding fee is not made by the tenth (10th) after such amount is invoiced to you, you will responsible for paying the then-current late charge. Your use of the Service may be immediately suspended or terminated if we are unable to charge your payment instrument for any reason. When we receive funds from you, we will first apply the funds to any balances which are in arrears and to the earliest due first.
3. Taxes. All sales, use, excise, value added and any other taxes attributable to your usership are as shown on your invoice.
4. Cancellations. In the event that you need to cancel a reservation for a space, you must cancel by 5 p.m. at least ninety (90) days prior to the reservation in order to be eligible for a refund. Otherwise, no refunds will be granted. Refunds will not include a refund of the processing fee incurred for the booking. In the event that space that you have reserved is not available, for any reason, either within our control, or wholly outside our control, we reserve the right to cancel your reservation and provide a refund and/or provide a similar and suitable alternative location, in the same geographical region, in our sole discretion.
5. Security. For security reasons, we may, but have no obligation to, regularly record certain areas in the Premises via video.
6. Rules of the Space.
a. Scheduling. The time allocated for all reservations must include set up and clean up. Please allow sufficient time for both. PLEASE NOTE: We allow a ten minute grace period after the reserved time has ended. Beyond that, we charge a $50 late fee plus the hourly rate for your booking prorated for each addition 15 minute increment past the reserved time.
b. Reserved Space. A space reservation is limited to the reserved space, and you are not allowed to occupy or use any space other than the space you have reserved. You and your guests are able to use the coat closet to store coats, jackets and purses and the bathroom. Any other personal items/decorations/extra supplies need to go back into your car or remain in your reserved space. Should you store items in, use or occupy other rooms, Flourish has the right to invoice you for the greater of the (i) time the space was used or (ii) the reservation time, at the then current rates for that additional space.
c. Moving Furniture. The space must be reset exactly how it was when you arrived by the end time of your booking. Please take photos before making any changes so that it may be reset to its original order. If you plan to move furniture out of your reserved space, the furniture must be stored in the basement during your event and cannot be moved into another space that is not included in your booking. We have original hardwood floors throughout the space that are easily scratched, so all furniture that is moved must be lifted and not dragged. If you need our staff to move furniture for your event, we have an additional moving fee of $200 to do so and it must be scheduled at least two weeks in advance of the booking date so we can make arrangements to have movers available. The tables in the Sun Room may only be removed from the Sun Room by Flourish. Should you fail to return the space to its original order, Flourish has the right to invoice you for the rearrangement of the space.
d. Trash. You are responsible for waste management of your event. We have 3 trash cans upstairs for trash, compost and recycling. Please throw away all waste in their respected cans to support our community’s zero waste initiatives. If your event is hosted outside of normal operating hours (Monday - Friday 9 am - 5 pm), we suggest you bring the trash cans down to the first floor for easier access for your guests provided that they are returned to the Flourish Café prior to the end of your booking time. Should you need extra trash bags, they are located under the sink in the Flourish Café located on the second floor. You may use a maximum of 3 extra trash bags. All cardboard and boxes must be broken down flat.
e. Cleanliness. The space must be returned to its original cleanliness exactly how it was when you arrived by the end time of your booking. Surfaces must be wiped down, the space must be swept, and it must be otherwise cleaned as necessary to return it to its original cleanliness. Should you fail to return the space to its original cleanliness, Flourish has the right to invoice you for the cleaning.
f. Damages. You will be responsible for any and all damage to the space.
g. Activity. You shall not perform any activity that is reasonably likely to be disruptive, damaging or dangerous to us, our employees or agents, other members or users, any guests or any other third parties or any pets or property of any of the foregoing. The violation of this provision may result in our termination of your right to use Flourish.
h. Your Personal Property. You are responsible for removing all of your property from the Premises prior to the end time of your booking. We are not responsible for any property you leave behind in the Premises. It is your responsibility to ensure that personal items are secure. We may dispose of any property remaining in the Premises, 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.
i. Maximum Capacity. Flourish has a maximum capacity of 100. Flourish’s maximum capacity may be limited by law due to a pandemic or other causes. You agree to comply with Flourish’s maximum capacity policy as stated herein or as may be communicated at any time to you by Flourish.
j. Other Users. Other users may use the Premises. So, if you reserve the first floor, such other users may come and go through the entryways on the first floor. At least one room will always be reserved for use by members of Flourish. We do not control and are not responsible for the actions of other individuals you encounter through the use of the Services; this includes other Flourish users and their guests at any Premises. We do not endorse, support or verify the facts, opinions or recommendations of any users. If a dispute arises between users, we shall have no responsibility or obligation to participate, mediate or indemnify any party, unless such dispute arises as a result of Flourish’s gross negligence or willful misconduct.
7. User termination. Unless otherwise agreed upon in writing by the parties hereto, your ability to use Flourish shall remain active until otherwise terminated, with services to be purchased on an as used, and as needed basis. If you fail, or if we suspect that you have failed, to comply with any of the provisions of these Terms we may, at our sole discretion, restrict your access to your account and the Services and/or terminate your ability to use the Premises with immediate effect and without prior notice to you. We do not provide refunds upon termination or cancellation of your ability to use Flourish, including individual accounts with respect to amounts already paid. You will remain liable for past due amounts, and we may exercise our rights to collect due payment, despite termination or expiration of your ability to use Flourish. We may also terminate your ability to use Flourish and any associated accounts, if we discontinue the Services, at any time.
8. Intellectual Property.
a. Use of the Flourish Name; Photos of the Premises. For the purposes of this section, “Intellectual Property” includes (a) any of our business names, trademarks, service marks, slogans, logos, designs, trade dress, images, photographs, content, and other identifiers or intellectual property; (b) any derivative, modified, altered or similar versions of the same; or (c) any pictures or illustrations of any (i) portion of Flourish Premises, (ii) Flourish member or guest, or (iii) intellectual property of any Flourish customer. You do not acquire any rights in or to any of our Intellectual Property by accessing or using the member network. Without our prior written consent, you may not copy, use or otherwise appropriate for any purpose that could be competitive with or harmful to Flourish (as determined by Flourish in its sole discretion) any Intellectual Property contained within the member network. You may not use any content, data or other information you receive or access in connection with the member network to solicit any of Flourish’s customers, Flourish’s partners, or other individuals or entities you encounter in connection with your use of the member network, in a manner that could be competitive with or harmful to Flourish, as determined by Flourish in its sole discretion.
b. Intellectual Property of Others. You must not directly or indirectly take, copy or use any information or intellectual property belonging to other user or user companies or any of their 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.
c. Other. Flourish may take photos and videos during your use of the Premises. You hereby consent to our non-exclusive, non-transferable use of your name and/or likeness in connection with identifying you as a user of Flourish, alongside those of other users in photos, videos and other marketing materials. You warrant that your company logo, if you have one, 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 with respect to any future use. Any termination of consent shall not apply to any prior use.
9. Waiver and Release of Claims. To the extent permitted by law, Flourish and our landlord on the Premises and our affiliates, parents, and successors and each of our and their employees, assignees, officers, agents and directors (collectively, the “Flourish Parties”) disclaim all warranties and terms, express or implied, with respect to the Services, including warranties, terms or representations as to the availability, operation, performance and/or use of the Services, data security or any other services, content or materials on or accessed via the Services, including any warranties or terms of merchantability, fitness for a particular purpose, title, non-infringement and any implied warranties, terms or indemnification arising from course of dealing, course of performance or usage in trade. To the extent permitted by law, you, and your or their employees, agents, guests and invitees, (i) waive any and all claims, liabilities, costs, damages, expenses and rights, including reasonable attorneys’ fees (“Claims”) against the Flourish Parties resulting from injury or damage to, or destruction, theft, or loss of, any property, person or pet; and (ii) release the Flourish Parties from any such Claims. For the avoidance of doubt, nothing in these Terms will release a claim or exclude our liability to the extent arising from our (a) gross negligence or willful misconduct; (b) fraud or fraudulent misrepresentation; or (c) any COVID-19 related Claims. In addition, the COVID-19 Policy and Waiver attached hereto as Exhibit A is incorporated herein.
10. Limitation of Liability. To the extent permitted by law, the aggregate monetary liability of any of the Flourish Parties to you, and your or their employees, agents, guests and invitees for any reason and for all causes of action, whether in contract, tort, breach of statutory duty, or other legal or equitable theory will not exceed the total amounts paid by you to us under these Terms for the product or service from which the claim arose in the twelve (12) months prior to the claim arising. None of the Flourish 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, or for the cost of any substitute goods, services or technology. You acknowledge and agree that you may not commence any action or proceeding against any of the Flourish Parties, whether in contract, tort, breach of statutory duty, or other legal or equitable theory, unless the action, suit, or proceeding is commenced within one (1) year of the cause of action’s accrual.
11. Indemnification. To the extent permitted by law, you will indemnify and hold harmless the Flourish Parties from and against any and all claims, liabilities, damages and expenses including reasonable attorneys’ fees, resulting from any breach of these Terms by you, and your or their employees or guests, or your or theirs agents or invitees or pets or any of your or their actions or omissions, and Flourish will have sole control over the defense of any such Claims. You are responsible for the actions of and all damages caused by you and all persons and pets that you or your guests invite to enter any of the Premises, including, without limitation, any claims related to COVID-19. You will indemnify the Flourish Parties from and against any and all claims, including third party claims, liabilities, and expenses, including loss of reputation or business opportunities and reasonable attorneys’ fees, resulting from any breach or alleged breach of these Terms by you or your guests, invitees 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 Flourish Parties.
12. Severability. If any provision of these Terms is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
13. Relationship of the Parties. The parties hereby agree that no agency, partnership, or joint venture relationship is intended or created by these Terms. Neither party will in any way misrepresent our relationship.
14. Interpretation. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms shall be read as being followed by “without limitation” where appropriate.
15. No third-party beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries.
16. Survival. Even after each of your use and/or the Services is terminated, certain of these Terms will remain in effect. All terms that by their nature may survive termination of these Access Terms shall be deemed to survive such termination. The preamble, recitals, Sections 2-4 and 7-16 shall also survive any termination or expiration of these Terms, as well as all other provisions of these Terms reasonably expected to survive the termination or expiration of these Terms.
17. Governing Law. These Terms and the transactions contemplated hereby shall be governed by and construed under the law of the Commonwealth of Pennsylvania and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods or Pennsylvania’s or any other implementation of the Uniform Computer Information Transactions Act.
18. Venue; Dispute Resolution. Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to these Terms, or at law, or the breach, termination or invalidity of these Terms, that cannot be settled amicably by agreement of the parties to these Terms shall be finally settled 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 Chester County, Pennsylvania, U.S.A. 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 these Terms, 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. These Terms shall be interpreted and construed in the English language, which is the language of the official text of these Terms.
19. 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 ARBITRATION.
COVID-19 POLICY AND WAIVER
Coronavirus (COVID-19) and any related strains or diseases (“coronavirus” or “COVID-19”) has been declared a worldwide pandemic by the World Health Organization. Coronavirus is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state and local governments and federal and state health agencies recommend physical distancing and have, in many places, restricted the assembly of large groups.
You acknowledge that Flourish has put in place certain "coronavirus rules," and taken certain preventative measures, to reduce the spread of coronavirus within the Premises; however, Flourish cannot guarantee that you, your guests or your family will not be exposed to or become infected with coronavirus. You understand that by accessing the Premises, you may be putting you, your guests and/or your family at increased risk for contracting coronavirus. You further acknowledge that individuals with health conditions such as heart disease, cancer or diabetes may be more likely to suffer more severe symptoms as a result of contracting the coronavirus.
By using the space and the services rendered to you pursuant to these Terms, you understand, acknowledge and agree to the following statements:
I agree that at least one (1) week prior to my booking, I will provide Flourish (i) my name, phone number and email and (i) the name, phone number and email of each and every guest that will enter the Premises so that Flourish may contact me and/or them regarding any COVID-19 related matters.
I hereby represent and warrant that (i) I do not have a confirmed or suspected case of COVID-19, and have not come in contact in the last twenty (20) days with a person who has been confirmed to have or suspected of having COVID-19, and (ii) I have received confirmation in writing from all of my guests that they do not have a confirmed or suspected case of COVID-19, and have not come in contact in the last twenty (20) days with a person who has been confirmed to have or suspected of having COVID-19. I agree that I will not enter, and I will cause my guests to refrain from entering, the Premises if you or they are experiencing any COVID-19 symptoms or know or reasonably believe you or they have, or may have, been exposed to COVID-19. I will, and I will cause my guests to, comply with all federal, state, and local laws, orders, directives, and guidelines related to COVID-19 while utilizing the Premises including, without limitation, requirements related to hand sanitation, social distancing, and use of face coverings. I will also follow all instructions, recommendations, and cautions of Flourish at all times while utilizing the Premises. I agree, and I agree to cause all of my guests, to wear a face covering upon entering the Premises and when moving about the Premises in common areas and in any spaces not included in my booking. Face coverings may be removed in the spaces included in your booking. I agree, and agree to cause my guests, to engage in regular hand washing and utilize hand sanitizer and sanitizing solutions provided by Flourish. If at any time I believe conditions to be unsafe, that I am no longer in proper physical condition to utilize the Premises, or I begin experiencing symptoms of COVID-19, I will immediately discontinue further use of the Premises. I also agree to wipe down all surfaces used during my booking with sanitation solutions and wipes provided by Flourish. In the event that I discover that I, or one of my guests, has begun experiencing any COVID-19 symptoms, has tested positive for COVID-19, or has been exposed to COVID-19, I will immediately notify Flourish by emailing the Community Manager with such notice and any related information that you have to firstname.lastname@example.org. I agree that I will, and I will cause my guests, to cooperate with Flourish regarding any necessary follow up and remediation of any COVID-19 exposure.
I assume the risk that I, my guests and/or my child(ren) may be exposed to or become infected with coronavirus and the such exposure and/or infection may result in personal injury; illness, causing mild symptoms such as, fever or body aches, or more severe complications, such as pneumonia or organ failure; permanent disability or death; and
I understand that the risk of exposure to or infection with coronavirus may result from the acts, omissions, or negligence or myself or others, including but not limited to, the employees, owners and other members or users of Flourish; and
I voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to myself, my guests or my family (including, but not limited to, personal injury, disability or death), illness, damage, loss, claim, liability or expense (including medical bills, attorneys' fees and court costs), or any kind, that I, my guests or my family may experience or incur in connection with my access to the studio or participation in the services provided by Flourish (collectively, "COVID Related Claims"); and
I hereby release, covenant not to sue, discharge and hold harmless Flourish, its affiliates, and each's employees, agents, owners, representatives, and affiliates (collectively "Releasees"), of and from all COVID Related Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or related to my access to the Premises or participation in the services provided by Flourish, whether arising out of the negligent or grossly negligent acts or omissions of any Releasee or otherwise, and whether any coronavirus infection or exposure occurs before, during or after access to the Premises or participation in any of the services provided by Flourish; and
I understand that by signing this release, I am waiving any and all COVID Related Claims, including those COVID Related Claims that may be unknown to me, or which I do not suspect to exist at this time. IF I AM A RESIDENT OF CALIFORNIA, I HEREBY EXPRESSLY WAIVE ALL RIGHTS, BENEFITS, AND PROTECTIONS I MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
I understand and agree that this this COVID-19 Policy and Waiver shall be in addition to, and not in lieu of, any other assumption of risk provisions or releases of liability as may be found in the Terms, and that such assumption of risk and releases of liability provisions remain fully intact.
If any provision of this COVID-19 Policy and Waiver is held to be unenforceable, then this COVID-19 Policy and Waiver will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Terms, valid and enforceable. If a court or arbiter declines to amend this COVID-19 Policy and Waiver as provided herein, the invalidity or unenforceability of any provision of this COVID-19 Policy and Waiver shall not affect the validity or enforceability of the remaining provisions, which shall be enforced as if the offending provision had not been included in this COVID-19 Policy and Waiver. Releasees are third-party beneficiaries to these Terms and shall have the right to enforce these Terms as if Releasees were a party hereto.
I ACKNOWLEDGE THAT I HAVE READ AND FULLY UNDERSTAND ALL OF THE TERMS, HAVE BEEN GIVEN THE OPPORTUNITY TO REVIEW THESE TERMS WITH MY LEGAL COUNSEL, AND AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE FLOURISH FOR CLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF THE ACTIVITIES ON THE PREMISES.