TERMS OF SERVICE, RELEASE OF LIABILITY, ASSUMPTION OF RISK, LIMITATION OF LIABILITY AGREEMENT
YOU UNDERSTAND THAT THE ACTIVITIES PERFORMED BY YOURSELF AND OTHERS AT THE IDEA FAB LABS FACILITIES INVOLVE A POTENTIAL FOR RISK OF DEATH, PHYSICAL INJURY, INJURY TO PROPERTY AND RELATED DAMAGES. YOU UNDERSTAND THAT IDEA FABRICATION LABS, LLC (“IDEA FAB LABS”) DOES NOT MANUFACTURE THE MATERIALS OR EQUIPMENT AT IDEA FAB LABS, BUT PURCHASES AND LEASES THE MATERIALS AND EQUIPMENT FROM THIRD PARTIES. YOU ACKNOWLEDGE THAT MEMBERS GENERALLY WILL USE THE MATERIALS AND EQUIPMENT AND ENGAGE IN ACTIVITIES AT IDEA FAB LABS WITHOUT CLOSE SUPERVISION, AND THAT EACH MEMBER WILL BE SOLELY RESPONSIBLE FOR THEIR SAFE AND APPROPRIATE USE OF IDEA FAB LABS’ MATERIALS, EQUIPMENT AND FACILITIES. YOU EXPRESSLY AGREE TO ASSUME THE RISK THAT YOU MAY SUFFER DEATH, INJURY OR DAMAGE AS A RESULT OF YOUR USE, OR AS A RESULT OF OTHER PEOPLE’S USE, OF IDEA FAB LABS’ MATERIALS, EQUIPMENT AND FACILITIES, AND AGREE FOR YOURSELF AND ON BEHALF OF YOUR PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS OR ASSIGNS THAT IDEA FAB LABS (INCLUDING ITS OWNERS, PARTNERS, MEMBERS, MANAGERS, OFFICERS, ATTORNEYS, EMPLOYEES AND AGENTS) WILL NOT BE LIABLE FOR YOUR DEATH, INJURY, OR ANY OTHER DAMAGES YOU MAY SUFFER IN OR ABOUT THE FACILITIES, EXCEPT TO THE EXTENT SUCH DAMAGES OR INJURIES ARE THE RESULT OF THE WILLFUL MISCONDUCT OF IDEA FAB LABS. YOU ALSO AGREE THAT IDEA FAB LABS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, THEFT OR DAMAGE TO YOUR PERSONAL PROPERTY IN OR ABOUT THE FACILITIES INCLUDING, WITHOUT LIMITATION, ANY PERSONAL PROPERTY STORED AT IDEA FAB LABS OR ANY PROPRIETARY INFORMATION OR MATERIALS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS IDEA FAB LABS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS, FINES, JUDGMENTS, PENALTIES, LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES ARISING DURING OR AFTER THE EXPIRATION OR OTHER TERMINATION OF THIS AGREEMENT WHICH MAY BE INCURRED BY OR ASSERTED OR ALLEGED AGAINST IDEA FAB LABS (INCLUDING ITS OWNERS, PARTNERS, MEMBERS, MANAGERS, OFFICERS, ATTORNEYS, EMPLOYEES AND AGENTS) RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF IDEA FAB LABS’ MATERIALS, EQUIPMENT AND FACILITIES. THIS PROVISION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
UNDER NO CIRCUMSTANCES WILL IDEA FAB LABS, BE LIABLE TO YOU, OR TO YOUR PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS OR ASSIGNS, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. IDEA FAB LABS MAKES NO WARRANTIES REGARDING THE FACILITIES, EQUIPMENT OR MATERIALS AND MAKES NO REPRESENTATIONS REGARDING THE SAME. YOU USE THE FACILITIES, EQUIPMENT AND MATERIALS AT YOUR OWN RISK. IN NO EVENT SHALL IDEA FAB LABS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE DUES PAID BY YOU.
Idea Fab Labs and you agree that by signing this Agreement, you purchased a membership and agree to all the terms in this Agreement. The terms “you” and “Idea Fab Labs” include heirs, estates, agents, representatives, officers, managers, members, successors, affiliates, subsidiaries and employees. Both parties make this Agreement on behalf of, for the benefit of, and it binds all these included persons and entities.
2. RULES AND REGULATIONS
You also agree to follow Idea Fab Labs’ rules and regulations which have been provided to you. Idea Fab Labs may, in its sole discretion, modify its rules and regulations, without notice, at any time. All signs posted at the facilities shall be considered a part of Idea Fab Labs’ rules and regulations.
Your membership permits you to use Idea Fab Labs’ materials, equipment and facilities under the terms and conditions of this Agreement and subject to Idea Fab Labs’ rules and regulations. Your membership is non-transferable by you and gives you no rights in Idea Fab Labs, its management, property or operations. Idea Fab Labs may assign or transfer your membership in its sole discretion. Idea Fab Labs can sell memberships at different rates and terms than yours.
4. FINANCIAL POLICY
4(a). Dues & Fees: You agree to pay the dues and fees for membership as well as any tax that may be imposed. Idea Fab Labs has the right in its sole discretion to add any charges or surcharges for excess use of utilities and for certain proprietary materials and equipment in accordance with Idea Fab Labs’ then applicable price schedule.
4(b). Automatic Monthly Deductions & Timely Payments: You have full control over the method of preauthorized payment that you have selected (“EFT”). You also have full control over the EFT and can stop it anytime by notifying Idea Fab Labs at least seven (7) days before your EFT date, in writing, or by notifying your bank, or credit card company to stop. You are responsible for notifying your bank of any error that appears on your bank or credit card statement in a timely manner. You may be responsible for an EFT if you have not provided your bank at least three (3) days notice before a scheduled transfer. You must notify Idea Fab Labs within sixty (60) days of a claimed EFT error on your bank statement or credit card statement or failing such timely notice, Idea Fab Labs may deem such claim waived. If you claim your EFT was not stopped when you told Idea Fab Labs, you must have written proof or Idea Fab Labs will not reimburse you for EFT deductions which you claim should not have been made. If your EFT ends for any reason, your membership may be immediately suspended at Idea Fab Labs’ election until alternative payment arrangements are made or the membership is terminated in accordance with this Agreement.
4(c). Failure to Provide Documentation for Automatic Monthly Payments: If your EFT does not begin because you fail for any reason to provide the information for processing the EFT, Idea Fab Labs may immediately suspend your membership and terminate your membership. All initiation and processing fees are non-refundable.
5. FACILITIES AND SERVICES
5(a). Description of Services: Subject to the terms of this Agreement, your membership to Idea Fab Labs shall include access to certain materials, equipment and facilities. Idea Fab Labs may also provide a number of optional services for an additional charge.
5(b). Training. You acknowledge that certain materials, equipment and facilities, because of their sensitive or hazardous nature, will be accessible to you only after you have passed specialized training courses. Idea Fab Labs reserves the right to charge an additional fee for any such training course in accordance with Idea Fab Labs’ then applicable price schedule.
5(c). Changes in Materials or Equipment: Idea Fab Labs reserves the right at any time to make reasonable changes to the type or quantity of materials or equipment offered and alter the hours of operation, and to amend the cost of, add, modify and/or eliminate any program, facility or service in Idea Fab Labs’ sole discretion.
5(d). Temporary Closures: Idea Fab Labs (or portions of its facilities) may close on a temporary basis in its sole discretion and such temporary closures will have no effect on this Agreement. If forced to close or partially close by events or occurrences beyond Idea Fab Labs’ control, such as, by way of example, acts of God, fires, floods, windstorms, explosions, riots or unrest, natural disasters, wars, sabotage, terrorism or action by any lawful authority (“Unforeseen Events”), you will not be entitled to a refund, dues credit or to terminate your membership. However, if forced to close or partially close for more than thirty (30) consecutive days by Unforeseen Events, than Idea Fab Labs will extend your membership, without dues, for the same period Idea Fab Labs was closed or completely unavailable.
6. NO EXPECTATION OF PRIVACY OR CONFIDENTIALITY
You acknowledge that Idea Fab Labs will take no steps to ensure the privacy or confidentiality of the activities you conduct, or the proprietary information or materials your produce.
7(a). Cancellation Rights & Refund: In the event this Agreement is terminated for any reason (except for a termination for cause by Idea Fab Labs as discussed below), you will receive a refund equal to fifty percent (50%) of the unused prepaid dues (counting from the Effective Date of cancellation as defined below to the end date of the term of this agreement) as liquidated damages only if the term of your agreement is longer than or equal to twelve (12) months. In all other events, you will not be entitled to a refund and will forfeit your unused prepaid dues. You acknowledge that Idea Fab Labs is under no obligation to retain, preserve, or protect your personal property or information beyond the termination of this Agreement.
7(b). Notice & Effective Date: You (or your estate) must send written notice of your termination of this Agreement to Idea Fab Labs, and return all Idea Fab Labs property. Cancellation is effective as of (i) thirty (30) days after receipt by Idea Fab Labs of written notice of your intent to cancel, and (ii) the receipt by Idea Fab Labs of all Idea Fab Labs property entrusted to you, including but not limited to any and all member ID card(s), keys, locks, tools, equipment, machines, personal protective equipment, books and other print materials. Such notice shall be sent, via hand delivery, overnight carrier or certified mail, return receipt requested, to Idea Fab Labs Studio, LLC at the address set forth on this Agreement. Any EFT processed due to inadequate notice of cancellation (pursuant to section 4(b) above) shall not constitute an extension this Agreement, and shall not be refundable.
7(c). Termination for Cause by Idea Fab Labs: Idea Fab Labs may, at its option, terminate your membership if (i) you fail to complete all signature lines and required initial blocks, (ii) you fail to make timely payments under any payment plan, (iii) any monthly payments or dues are late, (iv) the monthly EFT payments or dues are interrupted or discontinued for any reason and you do not provide an acceptable alternative, or (v) you fail to follow any of Idea Fab Labs’ rules and regulations or violate any part of this Agreement. Should your membership be terminated for cause, your account may be charged a termination processing fee equivalent to the amount of your security deposit.
7(d). Termination without Cause by Idea Fab Labs: Idea Fab Labs reserves the right to terminate your membership for any reason not stated above and if not prohibited by law. If Idea Fab Labs does so terminate your membership, it will refund any unused prepaid dues.
8. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the substantive and procedural laws of the State of California, excepting conflicts of laws, and without regard to rules of construction or interpretation relating to which party drafted this Agreement.
The parties confer jurisdiction to interpret and enforce this Agreement upon the Courts of the State of California, Santa Cruz County and waive any objections to such jurisdiction and venue, including objection as to an inconvenient forum.
In case one or more of the provisions of this Agreement shall, for any reason, be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality or unenforceability. Should the amendment or modification of such provision be impossible, the Agreement shall be construed as if it never contained the invalid, illegal or unenforceable provision and such provision shall not affect any other provision of this Agreement.
No claim or right arising out of a breach of this Agreement may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by the waiving party. The waiver or acceptance of any breach by either party of any provision of this Agreement shall not constitute a waiver of or an excuse for nonperformance as to any other provision of this Agreement, nor as to any prior or subsequent breach of the same provision.
12. NO THIRD PARTY BENEFICIARIES
Except as provided in Paragraph 1 above, nothing contained in this Agreement shall be construed as providing rights to any person other than the parties hereto, and no third party shall be a beneficiary to this Agreement.
As a condition of your membership, Idea Fab Labs may require you to obtain commercial general liability or other insurance, in such coverage amounts and with such carrier(s) as Idea Fab Labs may request in its sole discretion including naming Idea Fab Labs as an additional insured and/or loss payee.
This Agreement shall remain in force until terminated by either party as described above.