Flex Terms and Conditions

MEMBER TERMS AND CONDITIONS

These Member Terms and Conditions, together with the Member Order Form attached hereto

(collectively, the “Agreement”), is entered into and becomes effective as of the date of

the Member Order Form (the “Effective Date”) by and between CH VENTURE- 1

LLC (“Brickyard”) and the member identified on the Member Order Form (“Member”)

hereinafter collectively referred to as parties

  1. Limited License. Brickyard hereby grants to Member and, if Member is an entity, to

Member’s employees and other personnel who have paid a Membership Fee (each a

“Representative”) a limited, non-exclusive, non-transferable, revocable license (without the

right to sublicense) during the Term (defined below) to: (a) access and use portions of the co-

working space located at 44927 George Washington Blvd, Suite 265, Ashburn, Virginia 20147 (the

“Space”), including the common areas and meeting room facilities (subject to availability and

these terms and conditions) (the “Common Areas”), in accordance with the membership level

indicated on the Member Order Form (subject to building closures or other limitations), (b) invite

guests of Member or its Representatives (each a “Guest”) to visit the Space on a temporary

basis to meet with Member or its Representatives, provided that all Guests must be supervised

by the inviting Member or Representative at all times and will be the sole and absolute

responsibility of such Member or Representative, (c) attend public events that Brickyard may

organize or host in the Common Areas from time to time (subject to space availability, and

provided that Brickyard may exclude Member, its Representatives, or their respective Guests,

from any event in its sole discretion), (d) attend events organized or hosted by third parties in

the Common Areas from time to time (subject to the approval and discretion of the third party

host), (e) use wireless Internet services in the Space, and (f) use the printers, copiers, and other

generally available office equipment in the Space (subject to availability and reasonable usage

limitations that may be imposed by Brickyard in its sole discretion).

  1. House Rules. Member agrees to abide by (and agrees to require each of its

Representatives and Guests to abide by Brickyard’s house rules, available at

http://www.thebrickyard.co/houserules as may be updated by Brickyard from time to time (the

“House Rules”). Member shall be responsible for any violation of the House Rules by

Member’s Representatives, Invitees, Licensees and Guests.

  1. Membership Fees. As a condition to becoming a member hereunder, Member will pay

Brickyard the membership fees set forth on the Member Order Form (the “Membership Fees”)

for Member and each of its Representatives. The Membership Fees are payable in advance on

the 1st day of each calendar month and will be pro-rated for any partial calendar month.

The initial payment for the Membership Fees will be due on the Effective Date, and any

Membership Fees paid by Member will be non-refundable.

  1. Term. This Agreement will commence on the Effective Date and will continue on a month-to-

month basis (the “Term”) unless terminated earlier in accordance with the terms hereof.

Thereafter, it shall automatically renew at Brickyard’s then current pricing for successive

month-to- month Terms, unless one Party notifies the other of its intention not to renew, not less

than thirty (30) calendar days prior to the end of the then-current Term.

  1. Termination. This Agreement may be terminated as follows:

a. Either Party may terminate this Agreement by providing the other Party with thirty (30) business days prior written notice.

b. Brickyard may terminate this Agreement immediately upon written notice to

Member if Member defaults in the prompt and full payment of the Membership

Fees or if Member, its Representatives, or any of their respective Invitees,

Licensees or Guests violates the House Rules and such violation has not been

cured within 2 calendar days.

  1. Confidentiality. Member acknowledges that, in connection with its use of the Space, it

may receive or have access to information that relates to Brickyard’s, it’s Affiliates’ (defined

below) or another member’s highly sensitive confidential, restricted and proprietary information

or data that is not generally known by the public (“Confidential Information”). Member agrees

to preserve and protect the confidentiality of any such Confidential Information received by

Member or its Representatives. In addition, Member will not disclose or disseminate such

Confidential Information for its own benefit or for the benefit of any third party. Any such

Confidential Information shall remain the exclusive property of Brickyard, its Affiliates or the

other member, as applicable, and Member will not acquire any rights in such Confidential

Information. Member will not (and shall require its Representatives and Guests not to), during or

subsequent to the Term, use such Confidential Information for any purpose, unless Member has

received express written permission from the owner of such Confidential Information. Further,

Member acknowledges that many different individuals and organizations may use and occupy

the Common Areas and other portions of the Space and that Member is solely responsible for

safeguarding its own Confidential Information.

  1. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW,

THE SPACE IS PROVIDED “AS IS” AS A SERVICE AND NOT AS A LEASE OF REAL

PROPERTY. BRICKYARD DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE

SPACE OR THE MEMBERSHIP GRANTED HEREBY, WHETHER EXPRESS OR IMPLIED,

AND EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED CONDITIONS AND WARRANTIES,

INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR

PURPOSE OR WARRANTIES OF USE, TITLE, QUIET ENJOYMENT OR POSSESSION.

BRICKYARD DOES NOT GUARANTEE THE SPEED OR AVAILABILITY OR ANY INTERNET

SERVICES OR OFFICE EQUIPMENT.

  1. LIMITATION OF LIABILITY. IN NO EVENT SHALL BRICKYARD OR ITS AFFILIATES

BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES

WHATSOEVER ARISING OUT OF OR RELATED TO MEMBER’S USE OR INABILITY TO

USE THE SPACE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY

(CONTRACT, TORT, OR OTHERWISE) AND EVEN IF BRICKYARD HAS BEEN ADVISED

OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BRICKYARD OR ITS

AFFILIATES HAVE LIABILITY TO MEMBER FOR DAMAGES IN EXCESS OF THE AMOUNT

MEMBER PAID FOR ACCESS TO AND USE OF THE SPACE IN THE TWO (2) MONTHS

PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE

ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS

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DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES,

SO THIS LIMITATION MAY NOT APPLY TO MEMBER.

  1. Loss and Damage. Brickyard and its officers, employees, contractors, managers,

directors, members, shareholders, partners, agents, representatives, authorized persons and

affiliates (such persons and entities collectively, as related to any Party to this Agreement, its

respective “Affiliates”) will not, to the fullest extent permitted by law, be liable for any damage

or claim with respect to any injury to person or damage to, or loss or destruction of any property

of Member or its Affiliates (including, without limitation, the Representatives) or Guests due to

any act, omission or occurrence in or about Brickyard’ desk space, the Space, or the buildings

in which the Space is located (the “Buildings”). Brickyard is not responsible for the security of

any wireless or other network services or infrastructure provided by or on behalf of Brickyard or

available in the Space. Additionally, Member waives all right of recovery against such entities

and individuals for any such damage or claim. Member assumes all risk of loss with respect to

all personal property of Member and its Affiliates, Representatives and Guests, within or about

the Space or the Buildings. Member acknowledges that it is Member’s responsibility to maintain

insurance to cover all risks (including, without limitation, the risks set forth in this subsection) at

Member’s sole cost and expense. Brickyard will not maintain any insurance of any kind for

  1. Indemnification. Member shall indemnify, defend and hold harmless Brickyard and its

Affiliates from and against all liabilities, losses, claims, damages and costs (including attorneys'

fees) arising out of Member’s and its Representatives’ and Guests’ use and occupancy of the

Space (including, without limitation, any damage to the Space, the Buildings or any personal

property, furniture or equipment within the Space or the Buildings and any death or bodily injury

to a person due to such use) or any negligent act or omission of Member or Member’s

a. This is the only Agreement between the Parties with respect to the subject matter

hereof, merging and superseding all prior and contemporaneous agreements,

written and oral. All amendments to this Agreement will be in writing and signed

by both Parties; provided, however, that Brickyard may amend the House Rules

in its sole discretion at any time by providing written notice to Member. The

invalidity or unenforceability of any provision hereof will not affect the remainder

b. Brickyard’s failure to enforce any provision of this Agreement will not be a waiver

of that provision and will not prevent Brickyard from enforcing any provision of

this Agreement in the future. No receipt of money by Brickyard will be deemed

to cure any default by Member or to extend, reinstate or continue the Term

c. Member may not assign this Agreement (or any rights or obligations under this

Agreement) to any third party without Brickyard’s prior written consent, and

Member will not permit the use of any portion of the Space by any person other

than Member, its Representatives, or their respective Guests. Brickyard may

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assign the Agreement in its discretion. Any purported assignment by member

in violation of this section shall be null and void. The Agreement shall be binding

on all permitted assignees.

d. All notices required under this Agreement will be in writing and will be given by

hand or electronic mail to the Parties at the email or physical addresses provided

by each Party from time to time. All notices under this Agreement will be

deemed given when sent by email with receipt or hand-delivered or

by regular mail, postage prepaid.

e. Anything to the contrary herein notwithstanding, under no circumstances will

Brickyard be held responsible or liable for the security or safekeeping of any

personal property or personal computing devices (including, without limitation,

computers and peripheral devices, laptop computers, mobile phones, tablets,

personal data organizers, fax machines, printers and other similar items.)

f. The provisions of Sections 6-11 will survive the expiration or earlier termination of

this Agreement.

g. If any action at law or in equity is necessary to enforce or interpret the terms of

this Agreement, the substantially prevailing Party will be entitled to reasonable

attorneys’ fees, costs and necessary disbursements in addition to any other relief

to which such Party may be entitled.

h. This Agreement shall be interpreted under the laws of the Commonwealth of Virginia.

Member hereby irrevocably consents to the jurisdiction and venue of the

state court located in Loudoun County, Virginia, over any suit, action or

proceeding arising out of or relating to this Agreement. Member hereby irrevocably

waives, to the fullest extent permitted by law, any objection it may now or

hereafter have to such venue as being an inconvenient forum, and hereby

waives trial by jury in any action or proceeding.

THIS AGREEMENT IS NOT INTENDED TO CREATE A LEASE OR ANY OTHER INTEREST

IN REAL PROPERTY IN FAVOR OF MEMBER OR ITS REPRESENTAIVES, GUESTS OR

AFFILIATES, BUT MERELY CREATES A REVOCABLE LICENSE TO USE THE SPACE IN

ACCORDANCE WITH THE EXPRESS TERMS HEREOF. This Agreement grants Member the

license to use the Space and the desk space area for the specific purposes herein set forth

without diminution of the legal possession or control of such space by Brickyard and will be

revocable at the option of Brickyard upon the destruction of the Space or the breach by

Member (or Member’s Representatives or Guests) of any term or condition herein set

forth. This Agreement is subject and subordinate to any underlying mortgages, or deeds of

trust secured by the Space and building, leases or contracts of the Buildings or of the

premises comprising the desk space or the Space as such mortgages, deeds of trust, lease

or contract may be amended from time to time without notice to or approval from Member (such

underlying mortgages, deeds of trust leases or contracts, together with any amendments, the

“Master Documents”). This Agreement will terminate simultaneously with the termination of the

Space’s operation or any Master Documents for any reason. Member is not a party to nor will

Member have any rights under any Master Document.

Cobot Terms and Conditions

Cobot is the web platform used by Brickyard to provide this website.

1. General

1.1. Upstream-Agile GmbH, Adalbertstraße 7-8, 10999 Berlin, registered with the commercial register of the local court (Amtsgericht) of Charlottenburg under HRB 110149 B (“upstream”) provides an application to manage coworking spaces via its website www.cobot.me (the “Service” or “Services” or “Cobot”) as further specified on www.cobot.me (the “Website”).

1.2. All contractual relationships between upstream and any customer of upstream using Cobot (“Customer”, together with upstream the “Parties”, each a “Party”) shall be governed by these terms of service (“Terms of Service”). By registering on the Website or using Cobot, the Customer agrees to be bound by these Terms of Service.

1.3. Standard business conditions and/or general terms and conditions of the Customer do not apply, regardless of whether or not upstream has expressly objected to them in a particular case.

2. Registration

2.1. Any use of Cobot requires prior registration on the Website by creating an account (“Account”) and the acceptance of these Terms of Service. Customer must provide accurate and complete information and keep the Account information updated.

2.2. Customer is solely responsible for the activity that occurs on their Account. Customer shall keep their login data (password) confidential and prevent any unauthorized use by third parties. He shall immediately inform upstream if there are indications that any third party is misusing their account.

3. Use of Services

3.1. Offers published by upstream on the Website are non-binding.

3.2. The Customer may use Cobot for a trial run after registering. The Customer may only register for a trial run once. If a Customer registers for more than one trial run, upstream will have the right to delete these additional Accounts.

3.3. By registering on the Website according to section 2 hereof and subscribing to a subscription plan, the Customer makes a binding offer to use the respective Services. The offer shall be deemed to be accepted by upstream by making available the respective Service. Upon the acceptance of a subscription a contract governed by these Terms of Service between the Customer and upstream is concluded (the “Contract”).

4. Prices and Payment

4.1. The price for using Cobot depends on the number of members which are using the coworking space of the respective Customer (each a “Member”).

4.2. The Customer will be required to provide upstream with billing and account information for credit card, debit or other payment systems, such as PayPal, (each a “Payment Source”) for which the Customer is authorized to approve charges to allow upstream to collect payment from the Customer for their subscription plan. The Customer authorizes upstream to automatically and immediately bill the Payment Source when payments for subscription plans are due. The Customer shall only be allowed to raise an objection to a bill/deduction within eighty days starting from the day the deduction was made. If the objection was not raised, the deduction is deemed accepted by the Customer.

4.3. The billing of a subscription plan is made on a pre-paid basis. The payment source will be billed within five bank working days of the beginning of the chosen subscription period and then on a monthly or, as applicable, annual basis.

4.4. The prices stated on the Website are net prices excluding VAT. All other charges in connection with the use of the Services shall be borne by the Customer.

5. Contract Period, Termination of Contract, Cancellation of account

5.1. The Contract runs for an indefinite time and will remain in effect until terminated by one of the Parties in accordance with the Terms of Service.

5.2. The Parties may terminate this Contract for any or no reason at their convenience to the end of each month.

5.3. The Customer having used the trial run may unsubscribe from Cobot anytime without giving reason and without notice by using the respective button in their account.

5.4. The right of termination for cause and without notice remains unaffected for both Parties. A good cause for termination shall include, but shall not be limited to, any of the following events:

5.4.1. the Customer fails to comply with any applicable legal provisions;

5.4.2. a serious breach of the Customer of obligations arising from these Terms of Service by the Customer;

5.4.3. an attempt a denial of service attack on any of the Services by the Customer or any attempt to hack or break any security mechanism on any of the Services;

5.4.4. the Customer fails to pay the fees for the ordered Services;

5.4.5. a proceeding to wind-up the Customer or similar is brought against, or by the Customer (especially including insolvency and creditor protection scenarios and similar).

5.5. Any termination declaration shall be made via the “termination” button within the Account.

5.6. In the event of termination,

5.6.1. the Account of the Customer will be disabled and the Customer may not be granted access to their Account or any files or other content contained in the Account although residual copies of information may remain in upstream’s system;

5.6.2. any rights of use granted to Customer for using Cobot shall expire immediately and Customer shall cease to use the Services;

5.6.3. upstream will not refund any prepaid fees to Customer.

5.7. After a period of inactivity, whereby a user fails to log in to an Account for a period of nine months, upstream reserves the right to disable or terminate the Account. If an Account has been deactivated for inactivity, the subdomain associated with that Account may be given to another Customer without further notice.

6. Intellectual Property Rights

6.1. Subject to these Terms of Service, and for the duration of the Contract, upstream grants the Customer a non-exclusive license to use the Services, which non-exclusive license is hereby accepted by Customer (the “License”). The License shall be granted as non-exclusive, non-assignable, non- transferable, with no right to sub-license, worldwide limited right to use the Services. Customer is responsible for its staff’s compliance with the Terms of Service.

6.2. The scope of the License shall be subject to and limited by the number of Members as agreed between upstream and the Customer.

6.3. upstream does not claim any ownership in any of the content uploaded, transmitted or stored by the Customer in its Account. upstream will not use any of such content for any purpose except to provide the Customer with the Services.

7. Proper use

7.1. The Customer agrees that they are responsible for their own communications and for any consequences thereof. The Customer shall act according to the destined functions of the Website and Services. Any inappropriate or illegal use, manipulation, or change of the Website and Services is prohibited. In particular, the Customer shall, shall not agree to, and shall not authorize or encourage any third party to:

7.1.1. use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains malware or is otherwise objectionable as reasonably determined by upstream;

7.1.2. upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations;

7.1.3. prevent others from using the Service; or

7.1.4. use the Service for any fraudulent or inappropriate purpose.

7.2. upstream reserves the right to delete any infringing content according to this section 7, terminate the Services and/or suspend Accounts of a Customer that is violating any of these Terms of Service, in particular this section 7.

8. Representations and Warranties

The Customer represents and warrants that (i) all information provided by them to upstream to participate in the Services is correct and current; and (ii) the Customer has all necessary right, power and authority to enter into the Contract and to perform the acts required of Customer hereunder.

9. Indemnification

9.1. The Customer will indemnify, defend, and hold harmless upstream and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Customer’s use of the Website and/or Services; (ii) any breach by the Customer of any warranty defined in section 8; (iii) any claim that the Customer’s content distributed via the Services caused damage to a third party.

9.2. In cases of an aforementioned enforcement of claims by third parties, the Customer will provide upstream with all their information that is needed for the examination of the claim and for the defense against it. The Customer provides the information immediately, truthfully, and completely.

9.3. The regulation of liability of the Customer or their obligation of indemnification shall apply to the same extent in the event of an act of a Member of the Customer.

10. Limitation of Liability

10.1. upstream’s liability for damages caused by or related to the exercise of rights and obligations under this Agreement shall be excluded. The limitation of liability shall not cover

10.1.1. damage from injury to life, body or health caused by upstream;

10.1.2. damages caused by upstream that are a result of willful intent or gross negligence;

10.1.3. damages caused by upstream as a result of slight negligence in the event of upstream’s breach of an essential contractual obligation which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose and such damage is typically foreseeable at the time of the infringement;

10.1.4. upstream’s liability in the event of the assumption of a warranty if an obligation infringement covered thereby triggers upstream’s liability.

10.2. Liability under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

10.3. The limitations and/or restrictions of upstream’s liability shall also apply to the personal liability of its legal representatives and vicarious agents.

10.4. upstream will not be liable hereunder by reasons of any failure to timely perform its services due to an event beyond its reasonable control, including acts of God.

11. Use for reference

The Customer agrees that upstream may use information of the Customer provided by them (i.e. the name/trademark) for marketing purposes as reference on the Website. The Customer may withdraw such consent by writing an email to upstream to support@cobot.me.

12. Privacy Policy

upstream provides the Customer with information on how data is collected and processed in Upstream’s Privacy Policy.

13. Miscellaneous

13.1. These Terms of Service shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.

13.2. Should any provision of this Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by such valid, effective and enforceable provision as come closest to the economic intent and purpose as of such invalid, ineffective or unenforceable provisions as regard subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms of Service if any court has confirmed such proceeding.

13.3. upstream reserves the right to change these Terms of Service at any time without indicating the reasons. upstream will notify Customer of the changed Terms of Service on the Website or via email no later than two (2) weeks before the refined terms will take effect. In case Customer objects the new Terms of Service they may terminate the Contract with a period of two (2) weeks upon receipt of the information about the changes by upstream via the “termination” button within the Account.

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