WORK HARD PITTSBURGH, LLC
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS OPERATING AGREEMENT HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE PENNSYLVANIA SECURITIES ACT OF 1972, AS AMENDED, OR SIMILAR LAWS OR ACTS OF OTHER STATES IN RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER DISPOSITION OF THE INTERESTS HEREIN IS RESTRICTED AS STATED IN THIS OPERATING AGREEMENT, AND IN ALL EVENTS IS PROHIBITED UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO IT AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES ACTS AND LAWS. BY THE EXECUTION OF THIS AGREEMENT AND THE ACQUISITION OF THE MEMBERSHIP INTEREST REPRESENTED HEREBY, THE MEMBER REPRESENTS, AMONG OTHER THINGS, THAT IT IS ACQUIRING ITS MEMBERSHIP FOR INVESTMENT AND WITHOUT A VIEW TO DISTRIBUTION AND THAT IT WILL NOT SELL OR OTHERWISE DISPOSE OF ITS INTERESTS WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH THE AFORESAID ACTS AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
OWNING INTERESTS IN THE COMPANY MAY HAVE A TAX CONSEQUENCE ON THE PERSONAL TAX RETURN OF THE RESPECTIVE MEMBERS REGARDLESS OF WHETHER DISTRIBUTIONS HAVE BEEN MADE. OWNERS OF MEMBERSHIP INTERESTS SHOULD CONSULT WITH THEIR PERSONAL TAX CONSULTANT.
NO ADVICE HAS BEEN RENDERED BY THE LAW FIRM OF TECHNOLOGY & ENTREPRENEURIAL VENTURES LAW GROUP, PC, OR ANY EMPLOYEE, AGENT OR REPRESENTATIVE THEREOF. MEMBERS SHOULD OBTAIN INDEPENDENT LEGAL ADVICE.
PREAMBLE – PURPOSE
- Purpose. The purpose shall be to engage in such business and activities as the managers may determine.
- Consideration of Stakeholders and Other Interests. In discharging his or her duties, and in determining what is in the best interest of the Company and its members, each person on the board of managers or officer may consider factors relevant to the purpose of the Company. Factors include, but are not limited to, the social, economic, or environmental effects of any action on the world as a whole, our current and retired employees, the organizations and communities we support, our customers and prospective customers, supporters connected to the Company, and all those who share the Company’s goals of empowering entrepreneurs by delivering resources that allow for self-organization, education, sharing of capacity, access to capital, and risk reduction. In addition to these factors, the board of managers may attempt to partner with and advance the abilities of hard-working creative people to create economic gains not only for entrepreneurs and investors, but for the people and the communities that they serve. Efforts will be measured by wealth created as well as social impact metrics with the intent of refining our alignment with the Company’s goal and purpose.
- Nothing in this PreambleArticle, express or implied, is intended to create or shall create or grant any right in or for any person or any cause of action by or for any person. It is the intention of PreambleArticle I to increase the discretion of the respective managers and/or officers regarding implementation of the purpose of the Company, including, but not limited to, beyond the interests of the members. All members of this Company agree, acknowledge, concede and consent to this broader purpose to the fullest extent permitted by law, and not less than as such purposes have been statutorily broadened for benefit corporations.
- Notwithstanding the foregoing, managers and officers are entitled to rely upon the above in enforcing his or her rights hereunder and under state or other applicable law, and such reliance shall not, absent another breach, be construed as a breach of a fiduciary duty of care, bad business judgment or otherwise, even in the context of a transaction involving the transfer of membership units where, as a result of weighing other stakeholders’ interests, the person acting determines to accept an offer, between two competing offers, with a lower price per unit.
ARTICLE I – MEMBERS
- Annual Meeting. The annual meeting of members shall be held on December 31st 15th of each year, beginning in the year 2017, at the hour of 10:00 a.m., or at such other time on such other day and time as may be fixed by the managers, for the purpose of electing managers and for the transaction of such other business as may properly come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the state where the meeting is to be held, such meeting shall be held on the next succeeding business day. Meetings may be held with regard to all or any class of members, and, in such case, the provisions herein shall be applicable to such class.
- Special Meetings. Special meetings of the members may be called at any time by: (i) (ii) by members entitled to cast at least twenty percent (20%) of the votes that all members are entitled to cast at the particular meeting; (ii) the president of the Company. Upon written request of any person who has duly called a special meeting, the secretary shall fix the time of the meeting which shall be held not more than sixty (60) days after the receipt of the request. If the secretary neglects or refuses to fix the time of the meeting, the person or persons duly calling the meeting may do so.
- Place of Meeting. All meetings of the members shall be held at the registered office of the Company or at such other place, within or without the Commonwealth of Pennsylvania, as may be designated by the managers from time to time.
- Notice. Except as provided in Section 1.6 of this Agreement and except in and to the extent that partial or written consents are obtained pursuant to Article VI hereof, written notice of every meeting of the members shall be given by, or at the direction of, the secretary or other authorized person or, if he or she neglects or refuses to do so, may be given by the person or persons calling the meeting, to each member of record entitled to vote at the meeting, at least ten (10) days prior to the day named for a meeting called to consider any fundamental transaction as otherwise provided in 15 Pa.C.S. Chapter 19 for corporations or at least five (5) days prior to the day named for a meeting in all other cases, unless a greater period of notice is required by statute in the particular case. The notice of meeting shall specify the place, day and hour of the meeting and, in the case of a special meeting, the general nature of the business to be transacted, and, if applicable, the notice shall state that the purpose, or one of the purposes, of the meeting is to consider the adoption, amendment or repeal of this Agreement in which case the notice shall include, or be accompanied by, a copy of the proposed amendment or a summary of the changes to be effected thereby.
- Quorum. A members’ meeting duly called shall not be organized for the transaction of business unless a quorum is present. The presence in person or by proxy of members entitled to cast at least a majority of the votes that all members are entitled to cast on a particular matter to be acted upon at the meeting shall constitute a quorum for the purposes of consideration and action on such matter. The members present at a duly organized meeting can continue to do business until adjournment notwithstanding the withdrawal of enough members to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, those present may adjourn the meeting to such time and place as they may determine. Those members entitled to vote who attend a meeting called for the election of managers that has previously been adjourned for lack of a quorum, although less than a quorum as fixed herein, shall nevertheless constitute a quorum for the purpose of electing managers. In other cases, those members entitled to vote who attend a meeting of members that has been previously adjourned for one or more periods aggregating at least fifteen (15) days because of an absence of a quorum, although less than a quorum as fixed herein, shall nevertheless constitute a quorum for the purpose of acting upon any matter set forth in the notice of the meeting, provided that the notice of the meeting states that those members who attend such adjourned meeting shall nevertheless constitute a quorum for the purpose of acting upon the matter set forth in the notice.
- Adjournments. Adjournment or adjournments of any annual or special meeting of members, other than one at which managers are to be elected, may be taken for such period or periods as the presiding officer of the meeting or the members present in person or by proxy and entitled to vote shall direct. A meeting at which managers are to be elected shall be adjourned only from day to day, or for such longer periods not exceeding fifteen (15) days each as the members present and entitled to vote shall direct, until the managers have been elected. When a meeting of members is adjourned, it shall not be necessary to give any notice of the adjourned meeting or of the business to be transacted at the adjourned meeting other than by announcement at the meeting at which the adjournment is taken, unless the managers fixes a new record date for the adjourned meeting.
- Action by Members. Whenever any Company action is to be taken by vote of the members, it shall be authorized by a majority of the votes cast at a duly organized meeting of members by the holders of units entitled to vote thereon, except where a different vote is required by law or the Certificate of Organization or this Agreement. No member shall take part in the control, direction or operation of the affairs of the Company, in his or her capacity as such, other than to exercise the rights specifically provided in this Agreement, nor may any member act for or bind the Company.
- Voting Rights of Members. Unless otherwise provided in the Certificate of Organization or as set forth in the Operating Agreement, every member who owns at least one (1) unit shall be entitled to one vote irrespective of the number of units held by such member. Every member has one vote and only one vote on matters properly set forth for voting.
- Proxies. Every member entitled to vote at a meeting of members or to express consent or dissent to Company action in writing without a meeting may authorize another person or persons to act for such member by proxy. The presence of, or vote or other action at a meeting of members, or the expression of consent or dissent to company action in writing, by a proxy of a member shall constitute the presence of, or vote or action by, or written consent or dissent of the member.
- Voting List. The officer or agent having charge of the transfer books for units of the Company shall make a complete list of the members entitled to vote at any meeting of members, arranged in alphabetical order. The list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any member during the whole time of the meeting for the purposes thereof. Failure to comply with the requirements of this provision shall not affect the validity of any action taken at a meeting prior to a demand at the meeting by any member entitled to vote thereat to examine the list.
- Vested Members. As may be more fully defined in the Standards and Practices – Appendix A, as modified from time to time by the board, notwithstanding anything herein to the contrary, voting rights may be conditioned upon satisfaction of certain requirements, as determined by the Board.
Determination of Members of Record.
- The managers may fix a time prior to the date of any meeting of members as a record date for the determination of the members entitled to notice of, or to vote at, the meeting, which time, except in the case of an adjourned meeting, shall be not more than ninety (90) days prior to the date of the meeting of members. Only members of record on the date fixed shall be entitled to notice of, or to vote at, such meeting, notwithstanding any transfer of units on the books of the Company after the record date so fixed. The managers may similarly fix a record date for the determination of members of record for payment of dividends or for any other purpose. When a determination of members of record has been made as provided in this section for purposes of a meeting, the determination shall apply to any adjournment thereof unless the managers fix a new record date for the adjourned meeting.
- If a record date is not fixed: (i) The record date for determining members entitled to notice of or to vote at a meeting of members shall be the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day immediately preceding the day on which the meeting is held. (ii) The record date for determining members entitled to express consent or dissent to company action in writing without a meeting, when prior action by the managers is not necessary, shall be the close of business on the day on which the first written consent or dissent is filed with the secretary of the Company. (iii) The record date for determining members for any other purpose shall be at the close of business on the day on which the managers adopts the resolution relating thereto.
- Presiding Officer. All meetings of the members shall be called to order and presided over by the chairperson, if any, or, if there is no chairperson or in the chairperson’s absence, by the president, or, in the absence of the president, by a chairperson of the meeting elected by the members.
- Election of Managers. In elections for managers, voting need not be by ballot, except upon demand made by a member entitled to vote at the election and before the voting begins. The candidates receiving the highest number of votes from each class or group of classes, if any, entitled to elect managers separately up to the number of managers to be elected by the class or group of classes shall be elected. If at any meeting of members, managers of more than one class are to be elected, each class of managers shall be elected in a separate election.
- Judges of Election. In advance of any meeting of members, the managers may appoint judges of election, who need not be members, to act at such meeting or any adjournment thereof. If judges of election are not so appointed, the presiding officer of any such meeting may, and on the request of any member shall, make such appointment at the meeting. The number of judges shall be one or three. No person who is a candidate for office to be filled at the meeting shall act as a judge. In case any person appointed as a judge fails to appear or fails or refuses to act, the vacancy may be filled by appointment made by the managers in advance of the convening of the meeting or at the meeting by the presiding officer thereof. The judge or judges of election shall determine the number of units outstanding and the voting power of each, the units represented at the meeting, the existence of a quorum, and the authenticity, validity and effect of proxies, shall receive votes or ballots, shall hear and determine all challenges and questions in any way arising in connection with the right to vote, shall count and tabulate all votes and determine the result and shall do such acts as may be proper to conduct the election or vote with fairness to all members. The judge or judges of election shall perform their duties impartially, in good faith, to the best of their ability, and as expeditiously as is practical. If there are three judges of election, the decision, act or certificate of a majority shall be effective in all respects as the decision, act or certificate of all. On request of the presiding officer of the meeting, or of any member, the judge or judges shall make a report in writing of any challenge or question or matter determined by them and execute a certificate of any fact found by them. Any report or certificate made by them shall be prima facie evidence of the facts stated therein.
ARTICLE II – MANAGERS
- General. All powers vested by law in the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the managers. The board of managers is also called the “Executive Committee.”
Number, Qualifications, Term of Office.
- Voting Managers. The managers of the Company (sometimes the “voting managers”) shall initially consist of two (two) managers, which number shall be increased by one seat in 2018, one seat in 20192020 and one seat in 20202 at which time there shall be five (5) managers. Each manager shall be a natural person of full age but need not be a resident of Pennsylvania or a member of the Company. Each manager shall hold office until the expiration of the term for which he or she was selected and until said manager’s successor has been selected and qualified or until said manager’s earlier death, resignation or removal. The term of office is five (5) years, except the initial two managers shall serve from the inception of the Company until the annual meeting in 2022, and, such as all managers, may be re-appointed without term limits.
- Advisory Managers. The voting managers identified above shall be the exclusive managers of the Company responsible for the activities of the Company, but such voting managers may by written resolution, from time to time, appoint persons as managers who shall not have the right to vote but may otherwise participate in meetings of the voting managers, serving at the pleasure of the managers (the “Advisory Managers”). Any reference to “managers” means the managers identified above unless otherwise expressly and specifically provided as “Advisory Managers”.
- Election. Managers of the Company shall be elected by the members except as provided in Section 2.4 hereof. If the members are unable to put forth a qualified candidate, the Voting Managers may appoint.
- Vacancies. Vacancies in the managers, including vacancies resulting from an increase in the number of managers, may be filled by a majority vote of the remaining members of the managers though less than a quorum, or by a sole remaining manager, and each person so selected shall be a manager to serve for the balance of the unexpired term and until his or her successor has been selected and qualified or until his or her earlier death, resignation or removal.
Removal and Resignation.
- Removal by action of members. All managers or any individual manager may be removed from office without assigning any cause by the vote of members entitled to elect managers. In case the managers or any one or more managers are so removed, new managers may be elected at the same meeting. A supermajority vote of seventy-five percent (75%) of the members is required to remove a manager.
- Removal by action of the managers. The managers may declare vacant the office of a manager if said manager: (i) has been judicially declared of unsound mind; (ii) has been convicted of an offense punishable by imprisonment for a term of more than one year; or (iii) if within sixty (60) days after notice of his or her election, said manager does not accept such office either in writing or by attending a meeting of the managers and fulfilling such other requirements of qualification as this Agreement or the Certificate of Organization may provide.
- Resignation. Any manager may resign at any time from his or her position as a manager of the Company upon written notice to the Company. The resignation shall be effective upon receipt thereof by the Company or at such subsequent time as may be specified in the notice of resignation.
- Regular Meetings. Except as provided in Article VI, the managers shall hold an annual meeting for the election of officers and the transaction of other proper business either as soon as practical after, and at the same place as, the annual meeting of members or at such other day, hour and place as may be fixed by the managers. The managers may designate by resolution the day, hour and place, within or without the Commonwealth of Pennsylvania, of other regular meetings.
- Special Meetings. Special meetings of the managers may be called by the chairperson of the managers, if any, the president or any manager. The person or persons calling the special meeting may fix the day, hour and place, within or without the Commonwealth of Pennsylvania, of the meeting.
- Notice of Meetings. No notice of any annual or regular meeting of the managers need be given. Written notice of each special meeting of the managers, specifying the place, day and hour of the meeting, shall be given to each manager at least forty-eight (48) hours before the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the managers need be specified in the notice of the meeting.
- Quorum of and Action by Managers. A majority of the managers in office shall constitute a quorum for the transaction of business. The acts of a majority of managers present at a meeting at which a quorum is present shall be the acts of the managers except where a different vote is required by law or the Certificate of Organization or this Agreement. Every manager shall be entitled to one vote.
- Interested Managers or Officers; Quorum. A contract or transaction between the Company and one or more of its managers or officers, or between the Company and any other domestic or foreign Company for profit or not-for-profit, partnership, joint venture, trust or other enterprise in which one or more of this Company’s managers or officers are managers or officers or have a financial or other interest, shall not be void or voidable solely for that reason, or solely because the common or interested manager or officer is present at or participates in the meeting of the managers that authorizes the contract or transaction, or solely because the common or interested manager’s or officer’s vote is counted for such purpose, if: (1) the material facts as to the relationship or interest and as to the contract or transaction are disclosed or are known to the managers and the managers authorize the contract or transaction by the affirmative vote of a majority of the disinterested managers even though the disinterested managers are less than a quorum; or (2) the material facts as to the manager’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the members entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of those members; or (3) the contract or transaction is fair as to this Company as of the time it is authorized, approved or ratified by the managers or the members. Common or interested managers may be counted in determining the presence of a quorum at a meeting of the managers which authorizes a contract or transaction specified in this Section 2.10. Ownership in Work Hard Digital ServicesRed Blue Voice, LLC is exempted from this provision.
- Compensation. By resolution of the managers, each manager may be paid his or her expenses, if any, of attendance at each meeting of the managers or committee thereof, and may be paid a stated salary as manager or a fixed sum for attendance at each meeting of the managers or committee thereof or both. No such payment shall preclude any manager from serving the Company in any other capacity and receiving compensation therefor and a manager may be a salaried officer or employee of the Company.
- Presumption of Assent. A manager of the Company who is present at a meeting of the managers, or of a committee of the managers, at which action on any company matter is taken shall be presumed to have assented to the action taken unless his or her dissent is entered in the minutes of the meeting or unless such manager files his or her written dissent to the action with the secretary of the meeting before the adjournment thereof or transmits the dissent in writing to the secretary of the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a manager who voted in favor of the action. Nothing in this section shall bar a manager from asserting that minutes of a meeting incorrectly omitted said manager’s dissent if, promptly upon receipt of a copy of such minutes, said manager notified the secretary, in writing, of the asserted omission or inaccuracy.
- Presiding Officer. All meetings of the managers shall be called to order and presided over by the chairperson of the managers, if any, or, if there is no chairperson or in the chairperson’s absence, by the president or, in the absence of the chairperson and president, by a chairperson of the meeting elected at such meeting by the managers.
- Full Time. Managers need not devote their full time to the interest of the Company.
- Responsibilities. One of the managers shall be appointed by the board as the “Benefit Manager.” The Benefit Manager is an independent advisor to the board that is responsible for monitoring and reporting on the success and/or failure of Company in meeting its General Public Benefit and Specific Public Benefits, as defined from time to time by the board of managers.
- Benefit Report. The Benefit Manager is responsible for issuing an annual report (“Benefit Report”). The Company shall bear the costs of preparing the Benefit Report. On or before the 90th day following the end of each fiscal year of the Company, the Benefit Manager shall cause the Company Benefit Report to be provided to the members and the public at large via the Company website. The Benefit Report shall measure the success and/or failure of Company in meeting its General Public Benefit and Specific Public Benefits.
ARTICLE III – COMMITTEES OF THE MANAGERS
- Committees of the Managers. The managers may, by resolution adopted by a majority of the managers in office, establish one or more committees, each committee to consist of one or more of the managers of the Company. The managers may designate one or more managers as alternate members of any committee who may replace any absent or disqualified member at any meeting of the committee or for purposes of any written action of the committee. A committee, to the extent provided in the resolution of the managers creating it, shall have and may exercise all of the powers and authority of the managers except that a committee shall not have any power or authority as to: (i) the submission to members of any action requiring the approval of members pursuant to law, as it may hereafter be amended; (ii) the creation or filling of vacancies in the managers; (iii) the adoption, amendment or repeal of this Agreement; (iv) the amendment, adoption or repeal of any resolution of the managers that by its terms is amendable or repealable only by the managers, or (v) action on matters committed by this Agreement or resolution of the managers to another committee of the managers. Each committee of the managers shall serve at the pleasure of the managers.
- Committee Rules. Unless the managers provides otherwise by resolution each committee shall conduct its business and take action in the same manner as the managers conducts its business pursuant to the Certificate of Organization of the Company and this Agreement.
ARTICLE IV – OFFICERS
- Officers and Qualifications. The Company shall have a president, a secretary, and a treasurer, each of whom shall be elected or appointed by the managers. The managers may also elect a chairperson of the managers, one or more vice presidents, and such other officers and assistant officers as the managers deems necessary or advisable. All officers shall be natural persons of full age. Any two or more offices may be held by the same person. It shall not be necessary for officers to be managers of the Company. Officers of the Company, as between themselves and the Company, shall have such authority and perform such duties in the management of the Company as is provided by or pursuant to this Agreement or in the absence of controlling provisions in this Agreement as is determined by or pursuant to resolutions or orders of the managers.
- Election, Term, and Vacancies. The officers and assistant officers of the Company shall be elected by the managers at the annual meeting of the managers or from time to time as the managers shall determine and each officer shall hold office for one (1) year and until his or her successor has been duly elected and qualified or until said officer’s earlier death, resignation or removal. A vacancy in any office occurring in any manner may be filled by the managers and, if the office is one for which this Agreement prescribe a term, shall be filled for the unexpired portion of the term.
- Removal. Any officer or agent of the Company may be removed by the managers with or without cause, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.
- Resignation. Any officer may resign at any time upon written notice to the Company. The resignation shall be effective upon receipt thereof by the Company or at such subsequent time as may be specified in the notice of resignation.
- Bond. The Company may secure the fidelity of any or all of its officers by bond or otherwise.
- Chairperson of the Managers. The chairperson of the managers, if any, shall preside at all meetings of the members and of the managers at which he or she is present, and shall have such authority and perform such duties as the managers may from time to time designate. If no chairperson has been appointed, the president shall act as chairperson of the board.
- President. The president shall, in the absence of the chairperson of the managers, if any, preside at all meetings of the members and of the managers at which he or she is present. Subject to the control of the managers and, within the scope of their authority, and any committees thereof, the president shall: (a) have general and active management of all the business, property and affairs of the Company; (b) see that all orders and resolutions of the managers and the committees thereof are carried into effect; (c) appoint and remove subordinate officers and agents, other than those appointed or elected by the managers, as the business of the Company may require; (d) have custody of the company seal, or entrust the same to the secretary or an attorney representing the Company; (e) act as a duly authorized representative of the managers in all matters, except where the managers has formally designated some other person or group to act; and (f) in general perform all the usual duties incident to the office of president and such other duties as may be assigned to such person by the managers. In the absence of a specific appointment, the president, if a member, shall be the Tax Matters Partner, or, otherwise, the manager with the longest tenure as a member who is willing to serve as such.
- Vice Presidents. Each vice president, if any, shall perform such duties as may be assigned to him or her by the managers or the president.
- Secretary. The secretary shall: (a) keep or cause to be kept the minutes of all meetings of the members, the managers, and any committees of the managers in one or more books kept for that purpose; (b) be responsible for the care of the company records, stock books and stock ledgers of the Company; (c) keep or cause to be kept a register of the address of each member, which address has been furnished to the secretary by such member; (d) see that all notices are duly given in accordance with law, the Certificate of Organization, and this Agreement; and (e) in general perform all the usual duties incident to the office of secretary and such other duties as may be assigned to him or her by the managers or the president.
- Assistant Secretary. The assistant secretary, if any, or assistant secretaries if more than one, shall perform the duties of the secretary in his or her absence and shall perform such other duties as the managers, the president, or the secretary may from time to time designate.
- Treasurer. The treasurer shall have general supervision of the fiscal affairs of the Company. The treasurer shall, with the assistance of the president, chief executive officer, and managerial staff of the Company: (a) see that a full and accurate accounting of all financial transactions is made; (b) invest and reinvest the capital funds of the Company in such manner as may be directed by the managers, unless such function shall have been delegated to a nominee or agent; (c) deposit or cause to be deposited in the name and to the credit of the Company, in such depositories as the managers shall designate, all monies and other valuable effects of the Company not otherwise employed; (d) prepare such financial reports as may be requested from time to time by the managers; (e) cooperate in the conduct of any annual audit of the Company’s financial records by certified public accountants duly appointed by the managers; and (f) in general perform all the usual duties incident to the office of treasurer and such other duties as may be assigned to him or her by the managers or the president.
- Salaries. Unless otherwise provided by the managers, the salaries of each of the officers elected by the managers shall be fixed from time to time by the managers and the salaries of all other officers of the Company shall be fixed from time to time by the president or such other person as may be designated from time to time by the president or the managers. Compensation to any officer shall not exceed $100,000 per year, as determined by the managers
ARTICLE V – UNIT CERTIFICATES AND TRANSFERS
- Certificates. Unit certificates shall be in such form as shall be approved by the managers and shall state: (i) that the Company is formed or otherwise organized under the laws of the Commonwealth of Pennsylvania; (ii) the name of the person to whom issued; and (iii) the number and class of units and the designation of the series, if any, which the unit certificate represents. Every unit certificate shall contain the substance of the legend required to be placed thereon by Section 7.1 hereof and shall be executed by facsimile or otherwise, by or on behalf of the Company, by the president or any vice president. Certificates may be in digital or electronic form with such designation of authenticity of certificate and signature as determined sufficient by the managers.
- Transfer of Units. Transfer of units of the Company is subject to the restrictions on transfer set forth in Section 7.1 of this Agreement and shall be made only on the stock transfer records of the Company (which may be kept in written or computer form). Transfers shall be made by the Company or its duly authorized agent as required by law. The Company shall be entitled to treat the person in whose name units stand on the books of the Company as the owner thereof for all purposes.
- Lost, Destroyed or Stolen Certificates. If the registered owner of a unit certificate claims that the security has been lost, destroyed or wrongfully taken, another may be issued in lieu thereof in such manner and upon such terms as the managers may authorize and shall be issued in place of the original security, if the owner: (a) so requests before the Company has notice that the security has been acquired by a bona fide purchaser; (b) files with the Company a sufficient indemnity bond; and (c) satisfies any other reasonable requirements imposed by the Company.
ARTICLE VI – MANNER OF GIVING NOTICE, WAIVER OF NOTICE, ACTION WITHOUT MEETING, BY CONFERENCE TELEPHONE AND MODIFICATION OF PROPOSALS
- Manner of Giving Notice. Whenever written notice is required to be given to any person under the provisions of law, as the same may hereafter be amended, or by the Certificate of Organization or this Agreement, it may be given to the person either personally or by sending a copy thereof by first class or express mail postage prepaid, courier service charges prepaid, or by facsimile, or email, to the member’s address (or to the member’s email, facsimile or telephone number on file) appearing on the books of the Company or, in the case of managers, supplied by the manager to the Company for the purpose of notice. Notice sent by mail by courier service shall be deemed to have been given when deposited in the United States mail or with a telegraph office or courier service for delivery, except that, in the case of managers, notice sent by regular mail shall be deemed to have been given forty-eight hours after being deposited in the United States mail or, in the case of email or facsimile, when dispatched, provided that there is an email or facsimile delivery confirmation receipt and the email or facsimile, as the case may be, is on file with the Company. Each member is solely responsible to maintain a valid email address on file with the Company. Notices by the Company to the email address on file shall be deemed delivered when sent, irrespective of whether the email is actually delivered, whether the email is or remains valid and whether or not a delivery receipt is used or the email is returned undeliverable. Each member assumes all risks of delivery of email to the email address on file with the Company. The Company is also authorized to use online collaboration facilities.
- Waiver of Notice. Whenever any written notice is required to be given by statute or the Certificate of Organization or this Agreement, a waiver thereof in writing, signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of the notice. Neither the business to be transacted at, nor the purpose of, a meeting need be specified in the waiver of notice of such meeting, except that, in the case of a special meeting of members, the general nature of the business to be transacted at the meeting shall be so specified in the waiver of notice thereof. Attendance of a person, either in person or by proxy, at any meeting shall constitute a waiver of notice of the meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting was not lawfully called or convened.
- Manager Action by Unanimous Written Consent. Except as otherwise provided in the Certificate of Organization, any action required or permitted to be taken at a meeting of the members, of a class of members, or the managers, or of any committee of managers may be taken without a meeting if, prior or subsequent to the action, a consent or consents thereto in writing setting forth the action so taken is signed by all the members who would be entitled to vote at a meeting for such purpose, or by all of the managers in office, or by all of the members of such committee in office, as the case may be, and is filed with the secretary of the Company.
- Member Action by Partial Written Consent. Except as otherwise expressly provided in the Certificate of Organization, any action required or permitted to be taken at a meeting of the members, or of a class of members, may be taken without a meeting upon the written consent of members who would have been entitled to cast the minimum number of votes that would be necessary to authorize the action at a meeting at which all members entitled to vote thereon were present and voting. The consents shall be filed with the secretary of the Company. Consents may be signed in counterpart.
- Meetings by Means of Conference Telephone; Video Conference; Online Collaboration. One or more persons may participate in a meeting of the members, of the managers, or of any committee of managers, by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other, or other online collaboration facilities approved by the board from time to time. Such participation shall constitute presence in person at the meeting.
- Modification of Proposals. Whenever the language of a proposed resolution is included in a written notice of a meeting required to be given by statute or by the Certificate of Organization or this Agreement, the meeting considering the resolution may without further notice adopt it with such clarifying or other amendments as do not enlarge its original purpose.
ARTICLE VII – CERTAIN MEMBER RIGHTS
- Financial Reports to members; Transfer Restrictions. Financial statements of the Company need not have been prepared by independent certified public accountants. Each member hereby waives any contrary requirements of law, as amended, any successor thereto, or any statute of similar import. No member may sell, assign, transfer or otherwise dispose of any units of the Company unless the proposed transferee thereof executes this Agreement as a member. All certificates evidencing units of the Company shall bear in substance the following legend, in addition to any other legends required by law:
“The units represented by this certificate are subject to restrictions against transfer set forth in Section 7.1 of the Operating Agreement of the Company and other agreements executed by the holder of such units reflecting the same, and may not be sold, assigned, transferred or otherwise disposed of except in accordance with the terms of such instruments. Copies of this Agreement and said agreements are available for review by such member at the offices of the Company upon request.”
- Inspection of Company Records. Every member shall, upon written verified demand stating the purpose thereof, have a right to examine, in person or by agent or attorney, during the usual hours for business for any proper purpose, the unit register, books and records of account, and records of the proceedings of the organizers, members and managers and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to the interest of the person as a member. In every instance where an attorney or other agent is the person who seeks the right of inspection, the demand shall be accompanied by a verified power of attorney or other writing that authorizes the attorney or other agent to so act on behalf of the member. The demand shall be directed to the Company at its registered office in Pennsylvania or at its principal place of business wherever situated.
ARTICLE VIII – PERSONAL LIABILITY, INDEMNIFICATION AND INSURANCE
- Personal Liability of Managers. A manager of the Company shall not be personally liable for monetary damages for any action taken, or any failure to take any action, to the fullest limitations provided by law, unless the manager has breached or failed to perform the duties of his or her office as required by statute and such breach or failure to perform constitutes self-dealing, willful misconduct or recklessness; provided, however, that the foregoing provision shall not eliminate or limit: (i) the responsibility or liability of such manager pursuant to any criminal statute, or (ii) the liability of a manager for the payment of taxes pursuant to local, state or federal law. Any repeal, modification or adoption of any provision inconsistent with Section 8.1 of this Agreement shall be prospective only, and neither the repeal or modification of this provision nor the adoption of any provision inconsistent with this provision shall adversely affect any limitation on the personal liability of a manager of the Company existing at the time of such repeal or modification or the adoption of such inconsistent provision.
Mandatory Indemnification of Managers and Certain Other Persons.
- The Company shall indemnify and hold harmless to the full extent not prohibited by law, as the same exists or may hereinafter be amended, interpreted or implemented (but, in the case of any amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than are permitted the Company to provide prior to such amendment), each person who was or is made a party or is threatened to be made a party to or is otherwise involved in (as a witness or otherwise) any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative and whether or not by or in the right of the Company or otherwise, (hereinafter, a “proceeding”) by reason of the fact that he or she, or a person of whom he or she is the heir, executor, or administrator, is or was a manager or officer of the Company or is or was serving at the request of the Company as a manager, officer or trustee of another Company or of a partnership, joint venture, trust or other enterprise (including without limitation service with respect to employee benefit plans), or where the basis of such proceeding is any alleged action or failure to take any action by such person while acting in an official capacity as a manager or officer of the Company, or in any other capacity on behalf of the Company while such person is or was serving as a manager or officer of the Company, against all expenses, liability and loss, including but not limited to attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement (whether with or without court approval), actually and reasonably incurred or paid by such person in connection therewith.
- Notwithstanding the foregoing, except as provided in Section 8.3 below, the Company shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the managers of the Company.
- Subject to the limitation set forth above concerning proceedings initiated by the person seeking indemnification, the right to indemnification conferred in this Section 8.2 shall be a contract right and shall include the right to be paid by the Company the expenses incurred in defending any such proceeding (or part thereof) or in enforcing his or her rights under this Section 8.2 in advance of the final disposition thereof promptly after receipt by the Company of a request therefor stating in reasonable detail the expenses incurred; provided, however, that to the extent required by law, the payment of such expenses incurred by a manager or officer of the Company in advance of the final disposition of a proceeding shall be made only upon receipt of an undertaking, by or on behalf of such person, to repay all amounts so advanced if and to the extent it shall ultimately be determined by a court that he or she is not entitled to be indemnified by the Company under this Section 8.2 or otherwise.
- The right to indemnification and advancement of expenses provided herein shall continue as to a person who has ceased to be a manager or officer of the Company or to serve in any of the other capacities described herein, and shall inure to the benefit of the heirs, executors and administrators of such person.
- Payment of Indemnification. If a claim for indemnification under Section 8.2 hereof is not paid in full by the Company within thirty (30) days after a written claim therefor has been received by the Company, the claimant may, at any time thereafter, bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part on the merits or otherwise in establishing his or her right to indemnification or to the advancement of expenses, the claimant shall be entitled to be paid also the expense of prosecuting such claim.
- Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of a final disposition conferred in Section 8.2 and the right to payment of expenses conferred in Section 8.3 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses hereunder may be entitled under any provision hereof, agreement, vote of members, vote of managers or otherwise, both as to actions in his or her official capacity and as to actions in any other capacity while holding that office, the Company having the express authority to enter into such agreements or arrangements as the managers deems appropriate for the indemnification of and advancement of expenses to present or future managers and officers as well as employees, representatives or agents of the Company in connection with their status with or services to or on behalf of the Company or any other Company, partnership, joint venture, trust or other enterprise, including any employee benefit plan, for which such person is serving at the request of the Company. No member as such or any officer, manager, employee or agent of any member or the Company shall be liable to the Company or any other member for losses or liabilities arising from the conduct of the affairs of the Company or from the conduct of any employee or agent of the Company.
- Funding. The Company may create a fund of any nature, which may, but need not be, under the control of a trustee, or otherwise secure or insure in any manner its indemnification obligations, including its obligation to advance expenses, whether arising under or pursuant to this Article VIII or otherwise.
- Insurance. The Company may purchase and maintain insurance on behalf of any person who is or was a manager or officer or representative of the Company, or is or was serving at the request of the Company as a representative of another Company, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the Company has the power to indemnify such person against such liability under the laws of this or any other state.
- Modification or Repeal. Neither the modification, amendment, alteration or repeal of this Article VIII or any of its provisions nor the adoption of any provision inconsistent with this Article 8 or any of its provisions shall adversely affect the rights of any person to indemnification and advancement of expenses existing at the time of such modification, amendment, alteration or repeal or the adoption of such inconsistent provision.
ARTICLE IX – TERM AND DISSOLUTION
- Term. The term of the Company shall commence as of the date of this Agreement and shall continue until termination pursuant to the provisions hereof or otherwise provided in the Certificate of Organization.
- Events Causing Termination. Except as otherwise provided herein, the Company shall be dissolved and shall terminate, and its affairs shall be wound up, upon the occurrence of any of the following: (i) the bankruptcy of the Company; (ii) the consent of the members having ninety percent (90%) of the votes; (iii) the sale or other disposition of all or substantially all of the assets of the Company; (iv) the death, bankruptcy or dissolution of any member, unless the business of the Company is continued, within ninety (90) days of the occurrence of such event, by the consent of all the remaining members.
- Actions, Death, etc., of members. No action of or event affecting a member shall dissolve or terminate the Company unless specifically provided in Section 9.2 of this Agreement.
- Distribution in Case of Termination. Upon the termination of the Company, the managers shall proceed to wind up the affairs of the Company, liquidate the assets and apply and distribute the proceeds, unless within ninety (90) days after such event all of the remaining members agree in writing to continue the Company, in the following order of priority:
- To the payment of the debts and liabilities of the Company and the expenses of liquidation in the order of priority as provided by law, and to the establishment of any reserves which the managers or liquidating agent shall deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company. Said reserves may be paid over by the managers or liquidating agent to a bank or an attorney-at-law to be held in escrow for the purpose of paying any such contingent or unforeseen liabilities or obligations, and at the expiration of such period as the Managers or liquidating agent shall deem advisable, such reserves shall be distributed to the members or their assigns in the order of priority provided in this Section 9.4;
- To the members in an amount equal to the credit balance in each of their capital accounts, after giving effect to all contributions, distributions and allocations for all periods. Liquidation shall be conducted in accordance with Section 1.704-1(b)(2) of the Treasury Regulations. The Company shall terminate when all property owned by Company shall have been disposed of and the net proceeds, after satisfaction of liabilities to creditors, shall have been distributed among the embers as aforesaid. The establishment of any reserves in accordance with the provisions of subsection 9.4(a) shall not have the effect of extending the term of the Company.
- Rights of members on Liquidation. Except as otherwise provided in this Agreement, regarding liquidation of the Company assets: (i) each member shall look solely to the assets of the Company and shall have no right or power to demand or receive property other than cash from the Company in such amount as provided in Section 9.4; and (ii) no member shall have priority over any other member as to the return of his or her capital contributions, distributions or allocations, except as otherwise agreed in writing between such member and the Company or otherwise waived by the member otherwise entitled to the benefit hereof. No member shall have any financial interest or right of distribution, except to the extent that such member is a member.
ARTICLE X – TRANSFER OF COMPANY INTERESTS
Transfer of Interests, Generally.
- The members shall not have the right to transfer their interests in the Company except as otherwise specifically provided in this Agreement. A transfer shall include a voluntary or involuntary sale, exchange, assignment, gift, pledge, hypothecation, or other encumbrance or disposition (hereinafter a “transfer”). No transferee of an interest in the Company or in this Agreement shall have any rights as a member of the Company, unless the transfer was made in accordance with this Agreement.
- The ownership and transferability of interests in the Company are substantially restricted. Neither record title nor beneficial ownership of a Company interest of any member may be transferred or encumbered except as otherwise set forth in this Agreement. This Company is formed by those who know and trust one another, who have surrendered certain management rights, or who will have assumed management responsibility and risk based upon their relationship and trust. Capital is material to the business and investment objectives of the Company. An unauthorized transfer of a member’s interest could create a substantial hardship to the Company, jeopardize its capital base, and adversely affect its tax structure. The restrictions upon ownership and transfer under this Article X are not intended as a penalty, but as a method to protect and preserve existing relationships based upon trust and the Company’s capital and its financial ability to continue. Therefore, the members agree that no member shall transfer, or permit to be transferred, all or any portion of his or her record title or beneficial interest in the Company whether now or hereafter acquired, except in accordance with the terms of this Agreement, with the prior written consent of ninety percent (90%) of the members, or the approval of the board of managers.
- Any attempted transfer of any Company interest not in accordance with the terms of this Agreement shall be null and void and shall not be reflected on the Company’s books.
- Each member hereby acknowledges the reasonableness of the restrictions on transfer imposed by this Agreement in view of the Company purposes and the relationship of the members. Accordingly, the restrictions on transfer contained herein shall be specifically enforceable.
- Permissible Transfers. Transfers of interests in the Company shall be subject to and made only in accordance with this Article X and any purported transfer to the contrary shall be null and void ab initio and shall not be recognized by or binding upon the Company. A member may transfer all, or any part of its interest in the Company only if such member shall have first obtained the advance written consent to such transfer from the board of managers, who shall have complete discretion to approve or disapprove.
- Acquisition on Death, Legal Compulsion or of an Interest Conveyed to Another Without Authority. If any person acquires a Company interest or becomes an assignee in violation of the terms of this Agreement or by death of a member, or as a result of an order of a court which the Company is required by law to recognize, or if a member makes an unauthorized transfer or assignment of a Company interest in violation of the terms of this Agreement, which the Company is required by law to recognize, including a transfer of a member’s interest at death, or if the member violates any term or condition of this Agreement as determined by the board of managers, then the Company shall have the unilateral option to acquire the interest of the member (or the transferee or assignee, as the case may be), or any fraction or part thereof, upon the following terms and conditions:
- The Company shall have the option to acquire the interest by giving notice of its intent to purchase within ninety (90) days from the date it is determined that the Company learns of its right to acquire the interest. The member, or transferee or assignee, shall sell or otherwise transfer and assign such interest to the Company if the option is exercised upon the terms and conditions set forth herein. In the case of an impermissible transfer at death, the transferee or assignee shall be deemed to be the decedent’s personal representative.
- The entire interest or units shall be acquired by the Company for the total sum of ONE DOLLAR ($1.00). (It is understood and agreed that there is no substantive or fair market equity cash-out value for membership, except in the event of a liquidation or cash-out disposition event of all or substantially all of the Company during the lifetime of the member.)
- Closing of the sale shall occur at the principal office of the Company at 10:00 a.m. on the first Tuesday of the month following the month in which the appraisal described above is rendered. The member (transferee or estate, as the case may be) shall execute any reasonably acknowledgement requested by the Company to evidence the unfettered redemption of the interest.
- Indemnity. If a member shall, or shall attempt to, sell, assign, transfer, pledge, subject to any security interest, or otherwise dispose of its Company interest (except in a transaction with or consented to by the other members or permitted hereunder) without compliance with the requirements of this Article 10, or if a member or a member’s estate or transferee fails to acknowledge in writing the redemption of any units by the Company, such member (or estate or transferee, as the case may be) shall indemnify and hold harmless the other members and the Company against and from any and all liabilities, obligations, costs and expenses the other members or the Company may incur as a result of such failure.
- Failure of Cooperative Requirements. Each member, in order to acquire and/or to maintain membership interests in the Company, must pay any fees and perform such services as required by the board of managers from time to time in the then-current Standards and Practices, incorporated herein by this reference. Failure to be in strict compliance shall cause such consequences as defined therein, including, but not limited to, complete loss of ownership interests by redemption by the Company without compensation therefor.
ARTICLE XI – GENERAL PROVISIONS
- Registered Office. The registered office of the Company, required by law to be maintained in the Commonwealth of Pennsylvania, as determined by resolution of the managers. The principal place of business of the Company may be, but need not be, the same as the registered office. The address of the registered office may be changed from time to time by the managers.
- Other Offices. The Company may have additional offices and places of business in such places, within or without the Commonwealth of Pennsylvania, as the managers may designate or as the business of the Company may require.
- Company Seal. The Company may have a company seal which shall have inscribed thereon the name of the Company, the year of organization, and the words “Limited Liability Company Seal – Pennsylvania” or such inscription as the managers may determine. The seal may be used by causing it or a facsimile thereof to be impressed or affixed, or in any manner reproduced
- Capital Contributions. Notwithstanding anything in this Agreement to the contrary, capital contributions and/or property made for the purpose of purchasing an interest in the Company shall be deemed forfeited without later claim in the similar manner as the purchase of an equity interest in a corporate entity, and shall be apportioned into the capital accounts of the other pre-existing members on a pro-rata basis as existed immediately prior to such purchase and accounted for the same in accordance with applicable tax law. The liquidation percentage to which a member shall be entitled in provided in Article IX hereof.
- Fiscal Year. The fiscal year of the Company shall end on the 31st day of December in each year.
- Amendment of this Agreement. This Agreement may be amended or repealed, and a new Operating Agreement may be adopted, by the managers, regardless of whether the members have previously adopted or approved the provision hereof being amended or repealed, except where the power to repeal, adopt or amend a this Agreement on any subject is expressly committed to the members by law, as it may hereafter be amended, and subject always to the power of the members to change any action taken by the managers. Any change in this Agreement shall take effect when adopted unless otherwise provided in the resolution effecting the change.
- Power of Attorney. The members hereby make, constitute and appoint the managers and any additional or successor managers, as the agent and attorney-in-fact for such members with power and authority to act in their names and on their behalf in the execution of documents and, where necessary or appropriate, acknowledgment and filing of documents including, without limitation, this Agreement and the Certificate of Organization, including all amendments duly adopted thereto; any other instrument which may be required to be filed by the Company under the laws of any state or by any governmental agency or which the managers otherwise deems it advisable to file; any document or agreement which the managers may enter into on behalf of the Company in accordance with the authority of the managers as provided in this Agreement, any documents which may be required to effect the continuation of the Company, the admission of an additional or substituted member, or the dissolution and termination of the Company, provided such continuation, admission or dissolution and termination are in accordance with the terms of this Agreement; and to do any and all other acts on behalf of such members as are consistent with the terms of this Agreement. This power of attorney is coupled with an interest and is irrevocable.
- Sale of the Company. In the event that the Company accepts an offer from a third-party to purchase a minimum of ninety percent (90%) of the outstanding units, then all members (including any member who did not accept such third-party’s offer to purchase) shall be required to sell all of their units on the same terms and conditions, if the third-party desires to purchase such units.
- Filings, etc. At the expense of the Company, the members shall promptly have prepared, executed and filed or recorded all legally required fictitious name or other applications, registrations, publications, certificates and affidavits for filing with the proper governmental authorities and have arranged for the proper advertisement, publication and filing of record thereof.
- Confidential Information; Restrictive Covenant. Each members acknowledges the confidential, trade secret and/or proprietary information of the Company, including, without limitation, its client lists, methods, operations manual, know- how, record-keeping techniques, systems, processes, printed materials, supplier lists, strategic business plans, projections and proposals (the “Information”). Each member agrees: (a) during and after the term hereof, he or she shall not use or disclose Information, except for the benefit of the Company as determined by the Company in its discretion. Each member acknowledges that the Company exclusively owns all right, title and interest in the Information. Upon termination hereof, each member promises promptly to return any and all materials containing Information whether embodied into tangible form to the Company. NO MEMBER MAY HAVE OR RETAIN AN INTEREST IN THIS COMPANY IF SAID MEMBER HAS DIRECTLY OR INDIRECTLY (OR PRESUMED IF SUCH MEMBER’S IMMEDIATE FAMILY) HAS AN INTEREST IN ANY COMPANY WITH COMPETITIVE INTERESTS WHEREBY IT WOULD BE TO THE DETRIMENT OF THE COMPANY TO HAVE SUCH MEMBER RECEIVE CONFIDENTIAL INFORMATION OF THE COMPANY; THE VOTING MEMBERS SHALL HAVE SOLE AUTHORITY TO MAKE DETERMINATIONS IN THIS REGARD.
- Tax Matters Partner. If the Company is subject to the consolidated audit procedures of sections 6221 to 6234 of the Code, a Manager on the Board shall be the “tax matters partner” of the Company pursuant to section 6231(a)(7) of the Code, except that, if the Manager is not a Member, the “tax matters partner” shall be a Member that is designated as such by vote of the Members. Any Member who serves as tax matters partner shall take such action as may be necessary to cause each other Member to become a “notice partner” within the meaning of section 6223 of the Code. Any Member who is designated “tax matters partner” shall inform each other Member of all significant matters that may come to its attention in its capacity as “tax matters partner” by giving notice thereof on or before the fifth Business Day after becoming aware thereof and, within that time, shall forward to each other Member copies of all significant written communications it may receive in that capacity. The Company shall reimburse the tax matters partner for any costs incurred representing the interests of the Members in respect of Company tax matters.
ARTICLE XII MISCELLANEOUS PROVISIONS
- Binding Effect and Benefit of This Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, as the case may be.
- Notices. Except as otherwise expressly provided herein, all notices which are required or contemplated by this Agreement shall be in writing. Delivery of such notices shall be deemed to be made when the same are either personally served upon the person entitled thereto or sent by facsimile or email to such person (with delivery receipt acknowledged by the person receiving such) or three (3) days after being deposited in the mails, by certified or registered mail, with postage prepaid, addressed to such person at its mailing address as shown on the Company’s records as changed by notice to parties hereto in accordance herein.
- Integration; Termination. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof. No termination, revocation or waiver of this Agreement shall be binding unless in writing and signed by all of the members.
- Interpretation. This Agreement shall be interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of laws provisions, but shall not be construed against the drafter of this Agreement. As used in this Agreement, the neuter, masculine and/or feminine gender shall include the neuter, masculine or feminine gender as required by the context of the sentence and the plural shall include the singular wherever appropriate. The titles of the Articles and Sections herein have been inserted as a matter of convenience of reference only and shall not control or affect the meaning or construction of any of the terms or provisions hereof. The Board of Managers is hereby vested with sole and absolute authority to interpret the meaning of the provisions of this Operating Agreement and the member submit to the exclusive determination of the Board of Managers.
- Counterparts. The parties hereto may execute this Agreement in any number of counterparts, each of which, when executed and delivered, shall be an original; but all such counterparts shall constitute one and the same instrument.
- Severability of Provisions; Survival. Each provision of this Agreement shall be considered severable. If for any reason any provision or provisions hereof are determined to be illegal or invalid, such illegality or invalidity shall not impair the operation of or affect those portions of this Agreement that are valid and this Agreement shall be construed in all respects as if such invalid or illegal provision was omitted. Terms and conditions of this Agreement which, by their nature, are intended to survive terminations thereof, shall survive termination hereof.
- Arbitration. All disputes arising under related to or in connection with this Agreement, or the interpretation or enforcement thereof, shall be resolved exclusively in Pittsburgh, Allegheny County, Pennsylvania. The parties consent to the personal jurisdiction of the Commonwealth of Pennsylvania and all proceeding shall occur exclusively in such Commonwealth. All disputes arising under related to or in connection with this Agreement, or the interpretation or enforcement thereof, shall be resolved by settlement by binding arbitration conducted in accordance with the rules of commercial arbitration of the American Arbitration Association. There shall be three (3) arbitrators. All arbitrators shall be selected within thirty days after the demand for arbitration is filed and served upon the other party, failing which, the American Arbitration Association shall make the selections not completed within that time period. The decision of a majority of the arbitrators shall be final and binding upon the parties, and be non-appealable. The decision of the arbitrators may be entered as a judgment, and enforced as such, in any court of competent jurisdiction. This agreement to arbitrate shall be specifically enforceable by a court of competent jurisdiction. Each party shall bear the fees and expenses of its arbitrator, counsel and witnesses and shall unit equally the fees and expenses of the third arbitrator. The cost of the arbitration shall be borne in accordance with the award of the arbitrators, otherwise the parties shall unit the same equally.
- No member may be a direct or indirect owner, advisor, consultant, partner or other affiliate, with or without compensation, of any company that is competitive with the Company; except as may be approved in writing by the board of managers. Accordingly, each member, during the entire term of members, must disclose and is encouraged forthrightly to disclose to the board of managers in writing any interest that may violate this provision in order to acquire appropriate consents from the board of managers
- As a condition of membership, each person agrees to the conditions set forth by the board of managers, from time to time, for membership, including, but not limited to, vesting, continued professional service and/or other participation requirements, as set forth in writing from time to time in the discretion of the Board of Managers as set forth in Appendix A – Standards and Practices. Every member agrees that the board of managers may modify said Appendix A from time to time, provided, however, that no revision thereof shall operate retroactively to affect vested interests or be in derogation of established rights of ownership.
Approved as of 01/02/19
The Work Hard Pittsburgh Cooperative
Operating Agreement – Appendix A
Standards and Practices
This Standards and Practices is an appendix to the Work Hard Pittsburgh, LLC (sometimes, the “Co-Op”) Operating Agreement and is an integral part of the Operating Agreement applicable to Members. Also, these Standards and Practices are or may be an appendix (by reference) to the agreement between The Co-op and any CoWorker or prospective member, as the case may be. Provisions relating to non-Members and Members are respectively applicable relative to membership status. The Executive Committee may revise these Standards and Practices, from time-to-time, in its discretion.
The Work Hard Pittsburgh Cooperative is a cooperatively owned and operated business incubator that provides training, resources, sales support, and access to capital to its Members.
As more fully set forth in the Operating Agreement, the The Co-op mission is to make it easier for any entrepreneur to start, scale, and sustain a business venture, with the further mission to adhere to the standard cooperative values of self-help, self-responsibility, democracy, equality, equity and solidarity. The Co-op is mindful of its position within the community and our responsibility to promote sustainable development and work with others to create a more just and equitable society.
- Consent Round. A consent round is a form of dynamic governance where Members generate consent through iterative rounds of decision making validated by objective facts, continuous improvement, and measured outcomes. Committees organized to gather membership’s input use Consent Rounds.
- Operating Principles. The The Co-op mission is generally to adhere to the values and principles practiced universally by cooperatives. As such, management seeks Member consent on issues through dynamic governance as is practical and non- detrimental to the business and sustainability of cooperative. The Co-op has the following universal cooperative values:
- Voluntary and Open Membership. The Co-op is a voluntary organization that is open to all people able to use its services and willing to accept the responsibilities of membership. The Co-op does not discriminate and celebrates the diversity of its membership.
- Democratic Member Control. The Co-op is a democratic organization controlled by its Members who actively participate in setting policies and making decisions through best practice dynamic governance. The Executive Committee members are elected from among the membership and are accountable to the membership.
- Economic Participation by Members. Members contribute to the operational and other capital of the Co-Op. At least part of that capital is intended to remain in the common property of the Co-Op. The Co-op allocates surpluses for any or all of the following purposes, among others as determined by the Executive Committee: developing the cooperative; setting up reserves and investment funds; benefiting Members in proportion to their contributions to the Co-Op; and supporting other activities approved by the membership.
- Autonomy and Independence. The Co-op is an autonomous, self-help organizations controlled directly or indirectly by its Members, in many occasions through representation by boards and committees. When the Co-Op enters into agreements with other organizations or raises capital from external sources, it is done with the goal that is directed to the Co-Op’s continued autonomy.
- Education, Training, and Information. The Co-op is committed to providing education and training for Members, elected representatives, employees, and community at large so they can contribute effectively to their respective communities, aide in the development of cooperative(s) and to better understand the value of cooperative organizing structures.
- Cooperation Among Cooperatives. The Co-op is committed to strengthening the cooperative movement by working with other local, national, regional and international cooperatives.
- Concern for Community. The Co-op is committed to sustainable development of communities and supporting equal access to economic opportunity for the people that live in our neighborhoods.
The Board of Managers (“Executive Committee”).
The term “Executive Committee” is the same organic body also known in Pennsylvania law and in the Operating Agreement as the “Board of Managers” or more generally stated as the “board.” The terms are used interchangeably, and the terms “Manager” and “Executive Committee Member” (whether or not capitalized) mean a member of the Executive Committee. The Executive Committee has broad authority to manage and operate The Co-op. The Executive Committee, as a group, are empowered to make day-to-day operational strategic decisions and to make all residual determinations, implemented by the Co-Op officers (e.g. President). When an even number of Executive Committee members exists, any deadlock or tied votes will be broken by a majority vote of the members.
Co-Op Member. The Co-op is owned in a cooperative framework. Members (“Member(s)”) are considered to earn units over time through their participation, service, and cash contribution. Generally, Members have access to value adding services as available, in addition to access to facilities.
- CoWorker. A “CoWorker” (as distinguished from a “Member”) of The Co-op has access to facilities and site resources. CoWorkers DO NOT earn units of The Co-op and are not included in the membership. CoWorkers are customers of the Co-Op and purchase services that overlap, in some cases, with those provided to Members. A condition of becoming or remaining a CoWorker is strict compliance with all agreements and operational policies of The Co-op, and submission to final resolution of disputes regarding policies in the discretion of the Executive Committee.
- Access and Amenities. Members and CoWorkers are generally provided 24/7 access to common areas located inside of facilities. Dedicated space is available for additional fees. Dedicated space for an affiliated organization may be purchased for an additional fee. Membership or facilities use by CoWorkers does not create tenancy of right, but rather provides a conditional prepaid usage license to access the provided amenities on a monthly or casual basis.
Active Member Amenities by Type.
|Amenity (subject to compliance)
|24/7 Access to facilities
|Access to equipment
|Allowed to purchase dedicated space
|Access to co-op controlled capital funds
|Priority access to freelance jobs
|Access to member-to-member service exchange
|Allowed to sit on policy shaping committees
|Participation in profit distributions if and when they occur
A unit is an equity share of The Co-op (“Unit” or “Units” as the context requires). Under appropriate standards and conditions, Units are intended to be issued over time for active participation as described in “Earning Additional Units.” Generally:
- IMPORTANT: There is no right or expectancy of receiving or otherwise earning Units; the grant of any Unit is always within the discretion of The Co-op as a discretionary determination, based upon objective and subjective factors, as such factors are established from time-to-time, with grants determined ultimately in the discretion of the Executive Committee upon the recommendation of the Membership Committee. The contributions made by a Member or prospective Member to The Co-op is always considered fully completed with any such contributions in consideration for any then-current operational benefits by The Co-op. The grant of any Unit can only be in and by an express and specific writing signed by the President of the Co-Op on behalf of a duly made determination by the Executive Committee. Moreover, no person may rely upon any then-established standards or rubric for consideration (which are suggested guidelines only), and the Membership Committee may modify criteria, subjective or objective, for the then-current Unit grant considerations. Units have significant limitations on transfer and may never have liquid value, as more fully set forth in the Operating Agreement.
- Compliance. Ownership of Units is conditioned upon fully continued compliance with the Operating Agreement.
- Expiration. Units do not expire, per se; provided, however, that the Executive Committee, with the input of the Membership Committee reserves the right to redeem outstanding Units for which the Member has been inactive for at least five (5) consecutive years, at a redemption price not less than the pro rata fair market value established by the Executive Committee with the assistance of the then-current accounting firm for the Co-Op, to be paid in not less than three annual payments.
- Active and Inactive Members. A Unit-holder may be active or inactive, depending upon whether the Unit-holder has satisfied then-current requirements for participation in operation of the Co-Op. Inactive members cannot participate in committees and may have their site access revoked. A “Legacy Member” is a Member who is not active but is the owner of at least one Unit for a period of two years as determined by the Executive Committee. Accordingly, certain Members may own Unit(s) while not having operational participatory rights.
- Earning Additional Units. Members are eligible to be considered for the grant of Units if they pay the then-current annual membership fees (“Annual Membership Fee”) and complete all required member service (“Annual Service Hours” or “Membership Service”). All membership service and dues must be completed by a date each year determined by the Executive Committee with the advice of the Membership Committee, December 31st unless otherwise determined, each year. New member are not admitted in the fourth quarter.
- Annual Membership Fee. Members pay a monthly fee that may change from time-to-time. Members must be notified in advance of changing fees and obligations as determined by the Executive Committee and informed by the Finance Committee and Membership. The amount due each month is the pro rata portion of the Annual Membership Fee.
- Annual Service Hours. Members must complete the then-current annual membership service hours.
- Annual Service Hours can be Member-to-Member, Member-to-Co-Op, and Member-to-community, and advancing Co-Op governance practice.
- Appropriate Annual Service Hours are approved and determined at the discretion of the Executive Committee with the advice of the Membership Committee, in the best interests of the Co-Op.
- New Members. All new Members must receive approval of the Executive Committee with the advice of the Membership Committee, and must be accepted in accordance with The Co-op documentation. Membership is prospective only. The Membership Committee may include subjective criteria and/or subjective ratings by Membership Committee members for evaluation as set forth above for the offer of Units.
- Liquidation of Units.
- Within thirty (30) days of an annual financial assessment (or review or audit, as the case may be, in the discretion of the Executive Committee), Unit buyout offers may be announced, if applicable, by the Executive Committee.
- Finance Committee advises how many Units can be liquidated, if any, and the proposed offer price.
- Members can request buyout of all or some of their outstanding Units. In the event that any Member does not agree to sell all Units or at a price accepted by Executive Committee, The Co-op can omit that Member from consideration. The Co-op reserves the right to establish buyback bid and purchase mechanisms and may purchase Units first from a Member willing to accept a lower value; provided, however, that subjective criteria are permissible to be considered based upon need, etc.
- All buyouts are subject to appropriate documentation acceptable to and in the best interests of the Co-Op, including, but not limited to releases.
- If more Member buyouts are requested than funds allow, a selection Buyback Rubric (with objective and subjective criteria) will be used to prioritize buyouts as set forth below, but is not necessarily determinative. All Members yield to the discretion of the Executive Committee making the determination in its discretion. The Membership Committee will evaluate requests with input from members seeking buyouts and make nonbinding recommendations to the Executive Committee.
- Dividends. Dividends are awarded on a pro rata basis based upon the number of outstanding Units as of the date determined by the Executive Committee. Dividend distributions are awarded at the discretion of Management when capital generating or liquidity events occur. There is no guarantee of dividends. Generally, dividends can be awarded when liquidity events occur like the sale of real estate or acquisition of coop-owned products. The Executive Committee may assign some portion or all of the profit as Member dividends. In the event that there is any tax liability annually to the Members, the Co-Op will distribute funds necessary to pay the income tax at the highest individual tax rate; provided, however, that such payment may not occur until the expiration of all filing and/or payment extension deadlines for the Co-Op.
Committees exist to gather and communicate member input to the Executive Committee. Committees can, at any time, fact find and report findings to the membership. The Executive Committee is obligated to provide facts and scenarios to committees. Committee recommendations regarding decisions, business practice, and operations are non binding on the Co-Op. Only active members may participate in operational aspects of the Co-Op. Committee scope and mission must be described in writing in a document publicly viewable by Members.
- Executive Prerogative. All committees are created, terminated, scoped, controlled and operate within and pursuant to the approval and final direction of the Executive Committee. Subject to reasonable discretion and specific constraints by the Executive Committee, ordinary day-to-day operational decisions by the Managers of the Co-Op (President, Vice President, Secretary, Treasurer) do not require committee input. Additionally, investments decisions by the Executive Committee under ten thousand dollars ($10,000) that are in adherence to their fiduciary responsibilities. do not require committee input
- Governance by The Membership Through Committees. Committees allocated a budget are authorized to spend that money within the scope of their written mission to organize, provide services, amenities, activities and opportunities to the membership without approval from the Executive Committee. Operational decisions require committee input and Executive Committee approval if they meet any of the following criteria:
- New initiatives that require Co-Op resources amounting to ten thousand dollars ($10,000) or more in value or require ten percent (10%) of the Manager’s or member(s) time will be reviewed by the appropriate committee.
- Investments, improvements, equipment, & staffing equal to or greater than ten thousand dollars ($10,000).
- Changes to governance or Operating Agreement.
- Chairperson. A “Chairperson” is the organizer and coordinator of a committee.
- Comment Period. All decisions and recommendations being made to the Executive Committee by committees must allow for a comment period from the membership at large. During this time, members are given an opportunity to comment, raise concerns, and request clarification. Member input must be documented. Any Member objections that are formally documented, must be accompanied by supporting evidence.
- New Committees. Proposed committees must have a formation meeting and must have approval of the Executive Committee. Notification of a new committee formation must be posted to the membership with at least two weeks of notice. The Chairperson will convene a committee formation meeting. Members interested in serving on the committee must attend or make arrangements with the Chairperson. Member roles, committee function, size, metrics of success, and outcomes will be defined and added to a publicly viewable written document.
- Operational Committee (“OC”). An OC advises the Executive Committee on complex issues and decisions. An OC is characterized by committees that require Member time on task equal to or exceeding 8 hours, exceed a cost of equal to or over $1,000 annually, have long term goals and outcomes of equal to or over 90 days, manage decisions that affect equal to or over 25% of the membership, have many or complex external relationships and dependencies, and have at least three people participating. An OC may request an operational budget from the Executive Committee
- Formation. Any active Member or prospective Member of The Co-op can start or participate on an OC. Members participating on an OC is determined through a nomination round. Members are nominated to OC. Each Member’s nomination must include a statement of qualifications. Self-nomination to a committee is allowed. Nominated members and their qualifications are to be discussed in a Consent Round at the formation meeting. Unit-holding Members in attendance vote on nominees inclusion on the OC. Top vote getting nominated Members are awarded committee seats. The Executive Committee approves recommended appointments.
- Ad Hoc Committee (AC). An AC is a committee that requires Member time on task to be less than 8 hours, have a cost of under $1,000 annually, have short term goals and outcomes of under 90 days, manage decisions that affect under 25% of the membership, have few and simple external relationships and dependencies, and must have at least three people participating. Any active Unit-holding Member or prospective member of The Co-op, LLC can start and participate on an AC. ACs are governed as the Chairperson sees fit with consent driven decision making encouraged. Chairpersons must receive the Executive Committee’s approval for any cost or expense.
- Informal Groups. Members may form informal groups among themselves as they may desire with the understanding that informally created groups are not part of the operational structure of The Co-op; and, provided further, that no informal group or member thereof, may hold itself out as an agent or representative of The Co-op, or speak or act for The Co-op in any capacity, or use the name, likeness, or resources of The Co-op, without written advance approval of the Executive Committee.
- Legacy Members. Legacy Members have not participatory rights in the operations of the Co-Op or committees.
- Events Committee. The event committee oversees all event related programming for the Co-Op, its subsidiaries, and their respective customers as appropriate. Specific responsibilities include:
- Gather and document exact event requirements.
- Produce detailed proposals for events including timelines, venues, suppliers, permitting, staffing and budgets.
- Research venues, suppliers, and contractors and then negotiate prices.
- Hire and manage staff and subcontractors.
- Manage and coordinate vendors, suppliers and day of event logistics.
- Liaise with other Committees to maximize sales and the impact of social media and marketing teams.
- Create public postings for the event
- Coordinate catering, organize guests and speakers
- Create and distribute gift baskets, perks, and swag.
- Organise facilities for parking, traffic control, public transportation, security, first aid, hospitality and media.
- Make sure that insurance, legal, health and safety requirements are followed.
- Oversee the dismantling and removal of the event and reset the venue.
- Produce post-event evaluation and document and report event metrics of success.
- Acquire new clients and roadmap future events in a timely manner.
- Update and report areas of concern and progress to the Executive Committee.
Every member who owns at least one (1) unit shall be entitled to one vote irrespective of the number of units held by such member. Every member has one vote and only one vote on matters properly set forth for voting.
- The Executive Committee decides what issues are presented to Members for vote.
- Committees can recommend issues for a vote.
- Legacy Members cannot vote or participate on OCs or operational matters, but only on limited fundamental transactions as set forth in the Certificate of Organization and/or Operating Agreement.
Approved as of 01/02/19
Work Hard Pittsburgh
Terms & Conditions
Acceptance of Terms
Last updated 5/11/2018. The services Work Hard PGH, LLC (“Work Hard”) provides to its cooperative members and co-workers (“You” or “Your”) are subject to the following Terms and Conditions (T&C) and the Code of Conduct below. Work Hard reserves the right to update the T&C and Code of Conduct at any time without notice to You.
There are two types of users of Work Hard’s facilities: cooperative members and co-workers. These Terms & Conditions and Code of Conduct apply to both types.
Your status as either a cooperative Member or a co-worker does not create tenancy, but rather provides You with a prepaid usage license to access the provided amenities on a monthly or casual basis.
Services Available to Cooperative Members and Co-workers
- 24/7 access to common areas located inside of facilities. Extended access is for work use only.
- Mailboxes for current cooperative members and co-workers.
- Access to office space, work stations, internet services, office equipment, conference space, green screens, podcasting studios, and other available services (collectively, “Services”).
- Dedicated space for your organization can be purchased for a recurring fee of $45/month. Dedicated space provides members with 10’ x 10’ area to be configured permanently for exclusive use.
- Extra keys for your staff to access our facilities can also be purchased for a recurring fee of $10/month each.
- Use of facilities for workspace, events, instruction, and meetings.
- To maintain an account at any of our facilities, You must provide a valid home address and proof of residency.
- You must also:
- Reset any moved furniture
- Dispose of all trash and recycling associated with Your designated area or event
- Remove all trash and recycling to outside dumpsters if indoor trash containers are full
- Maintain a professional and clean work environment that doesn’t interfere with the business and operation of other users
- A $25 cleanup fee will be charged to Your account if the above described maintenance is not performed.
Fees and Payment
Basic access to Work Hard is $45/month. Additional charges may occur for dedicated or reserved space in facilities.
Your bank account or credit card will be auto debited each month. If You require an invoice, please request copies from firstname.lastname@example.org. Upon payment, You will receive an electronic receipt. If You fail to make an auto payment or otherwise pay Work Hard its access fee, Work Hard will send You weekly payment reminders. Failure to make a payment for 30 days will result in a revocation of Your access rights and license. Retrieval of personal property left inside facilities will be coordinated with a site manager.
A second invoice will be issued at the end of each month and will include any variable and consumable charges, such as telephone usage, printing, copying, and access to cloud-based storage services that may have been incurred during the previous billing period. Payment for variable charges will be paid within 30 days of second invoice unless other arrangements have been made with Work Hard. Work Hard reserves the right to restrict access to variable and consumable services for accounts with outstanding balances.
No Unlawful or Prohibited Use
You will not use the Services of Work Hard for any purpose that is unlawful or prohibited by these Terms and Conditions and Code of Conduct. You may not use the Services of Work Hard in any manner that could damage, disable, overburden, or impair any Work Hard 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 Work Hard 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, nor should You post or download files that You know or should know are illegal or that You have no rights to.
You hereby represent and warrant that You have all requisite legal power and authority to enter into and abide by these Terms & Conditions 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.
Renewals and Terminations
This Agreement is automatically renewed at the end of each period with consent of each party.
The T&C and Code of Conduct must be adhered to at all times. Failure to follow T&C or Code of Conduct can result in non-renewal or even early termination of the usage license. Work Hard reserves the right to terminate any Service at any time, immediately and without notice, if You fail to comply with the T&C or Code of Conduct. This includes non-payment or violation of rules either written or communicated orally to You. Upon termination of license, Work Hard will refund any amounts paid for unused periods that remain after deducting any pending charges on a pro-rata basis.
You may terminate Your license at any time by giving written notice in the form of email. Termination shall be effective at the end of the month. If You terminate Your license, You will not receive a pro-rata refund for the unused portion of Services.
Obligation to Law
Your participation in and use of the Services provided by Work Hard deems necessary that Work Hard will satisfy any applicable law, regulation, legal process or governmental request, or edit, refuse to post, or remove any information or materials, in whole or in part at the sole discretion of Work Hard.
You acknowledge and agree that during Your participation in and use of the Services You may be exposed to Confidential Information. “Confidential Information” shall mean all information, in whole or in part, that is disclosed by Work Hard or any participant of the Services or any employee affiliate, or agent thereof, that is non-public, confidential or proprietary in nature. Confidential information also includes, without limitation, information about business, sales, operations, know-how, trade secrets, business affairs, any knowledge gained through examination or observation of or access to the facilities, computer systems and/or books and records of Work Hard, any analyses, compilations, studies or other documents prepared by Work Hard or otherwise derived in any manner from the Confidential Information that You are obliged to keep confidential or know or have reason to know should be treated as confidential.
Your participation in and/or use of the Services obligates You to
- maintain all Confidential Information in strict confidence;
- not disclose Confidential Information to any third parties;
- not use the Confidential Information in any way directly or indirectly determined to be that of Work Hard or any participant or user of the Services.
All confidential information remains the sole and exclusive property of Work Hard or the respective disclosing party. You acknowledge and agree that nothing in this T&C, Code of Conduct, or Your participation or use of the Services will be construed as granting any rights to You, by license or otherwise, to any Confidential Information or any patent, copyright or other intellectual property, proprietary right of Work Hard or any participant or user of the Services.
Participation in or Use of Services
You acknowledge that You are participating in or using the Services at Your own free will and decision. You acknowledge that Work Hard 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.
Disclaimer of Warranties
To the maximum extent permitted by the applicable law, Work Hard 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: 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.
Exclusion of Incidental, Consequential and Certain Other Damages
To the maximum extent permitted by the applicable law, in no event shall Work Hard or its subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly and individually be liable for any direct, special, incidental, indirect, punitive, consequential or other damages whatsoever (including, but not limited to damages for: loss of profits, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care, negligence, and any other pecuniary or other loss whatsoever) arising out of or in any way related to the participation in or inability to participate in or use of the Services, the provision of or failure to provide Services, participation in outings or events planned or facilitated by Work Hard, or otherwise under or in connection with any provision of this agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Work Hard and even if Work Hard has been advised of the possibility of such damages.
Limitation of Liability and Remedies
Notwithstanding any damages that You might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Work Hard or its subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, Your, representatives, employees, successors and assigns under any provision of this T&C and Your exclusive remedy for all of the foregoing shall be limited to actual damages incurred by You based on reasonable reliance up to Five Hundred Dollars ($500). The foregoing limitations, exclusions and disclaimers, including the previous sections shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
You shall, during and after the participation in and use of the Services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Work Hard, or any of the Work Hard officers, directors, members, employees, personnel, agents, policies, services, or products, other than to comply with law.
You release, and hereby agree to indemnify, defend and hold harmless Work Hard PGH, LLC and Work Hard PGH, LLC subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly and individually, from and against all claims, liabilities, losses, damages, costs, expenses, judgments, fines and penalties based upon or arising out of Your negligent actions, errors and omissions, willful misconduct and fraud in connection with the participation in or use of the Services. You further agree in the event that You bring a claim or lawsuit in violation of this agreement, You shall be liable for any attorney fees and costs incurred by Work Hard PGH, LLC or its respective officers and agents in connection with the defense of such claim or lawsuit.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WORK HARD SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WORK HARD PGH, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
In the event that any provision or portion of this T&C is determined to be invalid, illegal, or unenforceable for any reason, in whole or in part, the remaining provisions of this T&C shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
Work Hard carries Liability and Business Personal Property insurance. As a user of the coworking space, it is Your responsibility to carry Your own Renters Insurance policy that covers Your equipment while occupying our space. Work Hard is under no obligation to carry insurance that covers Your lost, stolen, or damaged goods as a result of Your use of Services provide. Please provide Work Hard with a copy of Your policy for reference.
Name and Likeness
You hereby grant to Work Hard a license to use, without further compensation or approval from You, Your name, image, portrait, voice, likeness and all other rights of publicity, or any derivative or modification thereto that Work Hard may create, in any and all mediums, now known or hereafter developed, provided that such use is in relation to Work Hard’s business and consistent with professional business standards.
Code of Conduct
Work Hard is dedicated to providing a productive, welcoming, and collaborative working environment for cooperative members and co-workers. This code of conduct outlines our expectations for everyone who uses the space, whether as cooperative member, a co-worker, or as an organizer or attendee of meetups and other events taking place in the space. The code of conduct applies not only in our space, but also online networks, at all related events, and in one-on-one communications carried out in the context of community business. It also states the consequences of violating these expectations.
Use of Services
You are prohibited from using Work Hard’s Services to do any of the following:
- Create or engage in contests, pyramid schemes, chain letters, junk email, spamming, spimming or any duplicative or unsolicited messages (commercial or otherwise);
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through Work Hard servers or internet connections.
- Upload, or otherwise make available, file(s) that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as a limitation, copyright, 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.
- Upload files that contain viruses, Trojan Horses, Worms, time bombs, candlebots, corrupted files, or any other similar software or programs that may damage the operation of another computer or property of another cooperative member or facility user.
- Download any file 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.
- Violate any code of conduct or other guidelines which may be applicable for any particular Service.
- Harvest or otherwise collect information about others, including email addresses, without the authorization or consent of the disclosing party.
- Violate any applicable laws or regulations; or
- Create false identity for the purpose of misleading others.
All cooperative members and co-workers are expected to keep their workspaces clean and leave shared workspaces as if nobody used them. Organizing, wiping surfaces, and other small tasks can make a huge difference, the other users will appreciate it and you will be setting a good example to follow. If a workspace becomes excessively dirty or messy, Work Hard may charge a cleaning fee. Please reuse and recycle when possible.
Loud conversations tend to be distracting to those around you making it difficult to focus. Be mindful and use your “inside voice” when speaking to other users or making phone calls.
In order to further our goals of providing a productive, welcoming, and collaborative environment, Work Hard prohibits the following in its facilities whether by cooperative members, co-workers, or guests:
- Consumption of alcohol during normal business hours (8AM-6PM) without a written exception
- Appearing visibly intoxicated at any time
- Use of illegal drugs or substances
- Possession of illegal drugs or substances
- Intimidating, harassing, abusive, discriminatory, derogatory, or demeaning speech or actions by any participant in our space, online networks, and in all related events and communications.
- Harassment includes, but is not limited to, reasonably offensive verbal comments related to gender, gender identity and expressed sexual orientation, disability, physical appearance, age, body size, race, ethnicity or religion; sexual images in public spaces; deliberate intimidation; stalking; following; harassing photography or recording; sustained disruption of talks or other events; inappropriate physical contact; and unwelcome sexual attention.
- Theft of property, ideas, or clients
- Creating or maintaining a threat to the safety of Yourself or others
- Bringing weapons into the facilities
Enforcement of Code of Conduct
Consequences of Violations
Unacceptable behavior from any cooperative member, co-worker, or guest, will not be tolerated. Anyone asked to cease a violating behavior is expected to comply immediately and may be asked to leave the premises.
Serious violations of this Code of Conduct, especially with respect to conduct harmful to others, will result in termination of Your license to use the facilities and Services. For less serious violations, Work Hard will engage in the following progressive discipline policy:
First Offense: Verbal Warning from head of Membership Committee
Second Offense: Written Warning from head of Membership Committee
Third Offense: Formal Disciplinary Meeting with Membership Committee
Fourth Offense: Termination of License and/or Membership
If you are subject to unacceptable behavior, harassment, or have any other concerns, please notify a member of the Membership Committee immediately.
If you witness unacceptable behavior, intervene immediately by addressing both parties directly, to tell the first person their behavior is inappropriate, and to ask the second person what they would need to feel safer or would like to have done about the situation, as well as notifying a member of the Membership Committee.
If you feel you have been falsely or unfairly accused of violating this Code of Conduct, you should notify a member of the Membership Committee.
Last revised: May 12, 2017
What Does This Policy Cover?
This Policy covers all information provided by you to us using one of the following methods (each a “Covered Method”):
- visit or use any websites owned or operated by or on behalf of Work Hard PGH, including WorkHardPGH.com (our “Websites”);
- provide information to use via e-mail, text, or electronic communications, such as filling out forms on one of our Websites (“Submitted Forms”).
- install and use any of the software applications that we may develop for use on tablets or mobile devices (each an “App”);
- information that you post or upload to one of our pages on a social media site, including tweets, images, user-generated content, Personal Information, digital sounds, and pictures (“Social Information”)
- interact with our advertising or applications that we serve on third-party websites and services (“Served Ads”)
This Policy does not apply to information collected any way other than via a Covered Method (including as a result of you using or clicking on any application or content that may link to or be accessible from or on the Website (“Linked Sites”) or any advertising displayed on one of our Websites that is provided by anyone other than us (“Third Party Ads”).
Because Work Hard PGH offers a variety of programming and is structured as a cooperative, it is likely that you will provide the same information to us multiple different ways. Additionally, you may interact with our membership as a client, collaborator, or vendor.
What Information Do We Collect?
Any time that you use one of our Websites or Apps, provide information via a Submitted Form or click on or interact with a Served Ad, we will likely collect some types of information from you as a result of that action. Depending on the action you take, we may collect any of the following types of information:
- personally identifiable information (“PII”) that you provide to us;
- certain types of financial and payment information to complete transactions with us, including to pay registration fees or tuition fees (“Financial Information”);
- information that relates directly to you other than your PII that you provide to us such as records and copies of your correspondence, responses to surveys, details of transactions you carry out, interactions with our members, and search queries on the Websites (“Volunteered Information”);
- certain information that we automatically collect as you navigate through the Site or use an App about your equipment, devices and browsers, and your use of our Websites and Apps (“Usage Information”);
- and information that is provided to us from third parties, for example, our business partners (“Third Party Information”).
The following is a more detailed description of each of these types of information:
When you use our Websites or Apps, we may ask you to provide the following PII:
- First, middle and last name, previous names
- E-mail address
- Date of birth
- Mailing address
- Organization name
- Valid day or evening telephone number
- Cell phone number
If you collaborate or contract services with Work Hard PGH, we will require additional PII:
- Educational history and transcripts
- Social Security number
- Government issued ID (such as driver’s license)
- Country of origin
- Employment status and history
- Military affiliation
- Career goals
- Financial Information
We may also request other Financial Information and information related to financial aid eligibility.
First, you may correspond with us directly, answer surveys on our Websites, or provide us with unsolicited information. Except for PII or Financial Information, we do not assume any obligation of confidentiality or nondisclosure for Volunteered Information. You should be selective about the information you choose to disclose as Volunteered Information.
Second, certain of our Websites or Apps may permit you to communicate with other users or post certain content or comments to public forums that can be viewed by other users. Anything that you post in these areas is public and not protected. You should not post any PII or Financial Information to any public forum. We cannot control the actions of other users of the Websites and do not guarantee that Volunteered Information will not be viewed by unauthorized persons or competitors.
When you use our Websites or Apps, we may use certain technologies to automatically collect certain Usage Information, including:
- IP address
- Operating system
- Browser type
- Collection date
- Day of week, time of day (hour)
- Language settings
- Country, state, designated market area (DMA), city (relating to IP address, if available)
- Domain (.com, .net, .mil, .org, .edu, etc.)
- Web pages viewed
- Email clicks or other actions taken
We also may use certain technologies, such as cookies, to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking) for the purpose of using such data to deliver advertising that is based on your web-viewing behaviors.
Using cookies also helps us to improve our Website and to deliver a better and more personalized service, including enabling us to:
- Estimate our audience size and usage patterns.
- Store information about your preferences, allowing us to customize our Websites according to your individual interests.
- Speed up your searches.
- Recognize you when you return to our Websites.
We may use the following types of cookies:
Flash Cookies. Certain features of our Websites may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from and on our Websites. Flash cookies are not managed by the same browser settings as are used for browser cookies. For information about managing your privacy and security settings for Flash cookies, see Choices about How We Use and Disclose Your Information.
Web Beacons. Pages of our Websites and our e-mails may contain small electronic files known as Web Beacons (also referred to as clear gifs, pixel tags and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an e-mail and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
In using behavioral tracking, we follow the Self-Regulatory Principles for Online Behavioral Advertising developed by the Digital Advertising Alliance (a coalition of marketing, online advertising, and consumer advocacy organizations).
- We do not associate your interaction with unaffiliated sites with your Personal Information in providing you with interest-based ads.
- We do not provide any Personal Information to advertisers or to third party sites that display our interest-based ads.
- We may use information provided about you by third parties (such as the sites where you have been shown ads or demographic information) that we may use to provide you more relevant and useful advertising.
How Do We Use Your Information?
We use information that we collect about you or that you provide to us, including any Personal Information:
- to present our Websites and Apps to you;
- to determine your admissibility and to register you for your selected educational programs at Work Hard PGH;
- to determine your eligibility as a member of the Work Hard PGH cooperative;
- to contact you regarding your status with Work Hard PGH;
- to provide requested products and services;
- to respond to your inquiries and provide customer support;
- to administer promotions in which you have indicated an interest;
- for our internal marketing purposes, which include, but are not limited to, sending you material about products, services, updates, etc. that we think may be of interest to you;
- for investigation of information security and information asset protection-related incidents;
- to test, correct and improve our content, applications and services;
- to develop new applications, products and services;
- for behavioral tracking purposes;
- to prevent potentially illegal activities (including illegal downloading of copyrighted materials in accordance with our Copyright Infringement policy);
- to investigate suspicious activity and financial aid fraud;
- to obtain or collect payment;
- to provide you with information concerning arrangements and other options for the repayment of funds loaned to you;
- to maintain educational and business records for reasonable periods;
- in connection with the contemplated or actual reorganization, merger, acquisition, financing, securitization, insuring, sale or other disposal of all or part of our business or assets;
- for any other purpose for which you provide it;
- to notify you about changes to our Websites or Apps or any products or services we offer or provide through it;
- to allow you to participate in interactive features on our Websites;
- as may be required or permitted by legal, regulatory, industry self-regulatory, insurance, audit or security requirements applicable to us;
- in any other way we may describe when you provide the information; and
- for any other purpose with your consent.
When Would We Disclose Your Information?
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction. We may disclose Personal Information:
- for any of the purposes listed above for which we may use your Personal Information;
- to fulfill the purpose for which you provide it;
- for any other purpose disclosed by us when you provided the information;
- with your consent;
- to comply with any court order, law or legal process, including to respond to any government or regulatory request; and
- if we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Work Hard PGH, our customers or others.
In addition, your Social Information will be displayed to other users of our social media sites. For example, if you comment on our Facebook page, other users of Facebook will see any comment you post and will be able to view any public information on your Facebook page.
What Are Your Options For Managing Your Information?
You can review and change your Personal Information by logging into the Websites and visiting your account profile page.
You may also send us an e-mail at email@example.com to request access to, correct or delete any Personal Information that you have provided to us. We cannot delete your Personal Information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.
Even if you delete your Volunteered Information, anything that was posted to a public forum may remain viewable in cached and archived pages, or might have been copied or stored by other Websites users.
If you have provided us with your prior express written consent to receive communications via an automatic telephone dialing system (auto-dialer), artificial or prerecorded voice messages, or text messages, you may opt out at any time by texting STOP to cancel future text messages except for one additional confirmation message stating that you’ve opted out.
If you do not wish to receive marketing e-mail or direct mail communications from us, you may express your choice where indicated on the applicable e-mail or other communication.
If you do not wish to receive marketing telephone calls, including calls from an automated telephone dialing system, you may express your choice to opt-out by e-mailing firstname.lastname@example.org.
If you are a Work Hard PGH student or alumni, you may limit access to certain portions of your educational records by sending us an e-mail at email@example.com.
Submitting any of the opt-out requests described above will only remove you from our list. We are not responsible for the use any other party may make of any information that has been transferred in accordance with this Policy prior to our receipt of your opt-out.
What About Children Under the Age of 13?
Our Websites and Apps are not intended for children under 13 years of age. If you are under 13, do not use or provide any information via a Website or App, including your name, address, telephone number, e-mail address or any screen name or user name you may use. If we learn we have collected or received Personal Information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org.
Do We Record or Monitor Any Communications?
We may monitor, record, and retain all incoming and outgoing communications, including e-mails and phone calls for training of our representatives and for quality assurance purposes. By electing to call us or e-mail us, you agree that your call may be recorded or your e-mail may be retained. We only retain recordings and records for as long as necessary to adequately discharge the legitimate business purpose related to the call or e-mail purposes, unless a specific communication needs to be retained for legal reasons.
How Do We Protect Your Information?
We take commercially reasonable precautions and have implemented commercially reasonable technical measures intended to protect against the risks of unauthorized access to, erroneous disclosure of, and unlawful interception of Personal Information submitted via the Website. However, your e-mail transmissions and/or other communications containing Personal Information may be unlawfully intercepted or accessed by third parties and/or the Website may be subject to hostile network attacks or administrative errors. We cannot and do not guarantee the security of any information transmitted over the Internet. Once we receive your Personal Information, we take steps that we believe are commercially reasonable to limit access to your Personal Information to only those employees and service providers whom we determine need access to the Personal Information to provide the requested products, services, offers or opportunities that may be of interest to you. However, even after we receive your Personal Information, we cannot guarantee that your Personal Information may not be accessed, disclosed, altered, or destroyed as a result of a breach of our commercially reasonable efforts or as a result of any other event beyond our reasonable control. Accordingly, we cannot and do not guarantee that your Personal Information is completely secure and safe from such risks. FOR THE AVOIDANCE OF DOUBT, EXCEPT AS REQUIRED BY APPLICABLE LAW OR THE PCI STANDARDS, WE EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ENSURING, GUARANTEEING OR OTHERWISE OFFERING ANY DEFINITIVE PROMISE OF SECURITY IN CONNECTION WITH YOUR PERSONAL INFORMATION OR USAGE INFORMATION.
What about international users of the Websites and Apps?
By using a Website or App, you agree and acknowledge that the Website or App is hosted in the United States.
If you are accessing a Website or App from a physical location outside the United States (other than the European Union), your use of the Website or App is governed by U.S. law and you are transferring your Personal Information to the United States. Any claim or dispute between you and us that arises in whole or in part from your use of a Website or App shall be decided exclusively by arbitration.
If you are accessing a Website or App from a physical location inside the European Union, we comply with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of Personal Information transferred from the European Union to the United States and have certified our compliance to the Department of Commerce. If there is any conflict between the terms in this Policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit www.privacyshield.gov.
Our participation in the Privacy Shield applies to all Personal Information that is received from the European Union and European Economic Area.
We remain responsible and liable under the Privacy Shield Principles if third-party agents that we engage to process Personal Information on our behalf do so in a manner inconsistent with the Principles, unless we can prove that we are not responsible for the event giving rise to the damage.
If you believe that we have not adhered to this Policy, please contact us by e-mail at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. For any complaints that cannot be resolved directly, we will settle the dispute exclusively under the JAMS Streamlined Arbitration Rules or JAMS International Mediation Rules. We are subject to the investigatory and enforcement powers of the U.S. Federal Trade Commission (FTC).
How Do We Notify You About Changes To This Policy?
What Is Our Contact Information?
Work Hard PGH
744 E. Warrington Ave.
Pittsburgh, PA 15210
This Agreement is by and between Work Hard Pittsburgh, LLC (“WHPGH”) and the person agreeing to the terms and conditions of this document either online or in print form of this document (“Client”). WHPGH and Client, intending to be legally bound, agree as follows:
1. THE ENTIRE AGREEMENT.
Client acknowledges that this Agreement is a binding agreement (even if clicked-through online), and, further, that this Agreement is the final, complete and exclusive statement of the entire agreement and understanding between the parties. This Agreement supersedes any prior and contemporaneous proposals, requests for proposals, and all communications regarding the subject matter of this Agreement, whether oral or written. This Agreement may not be modified except by a written document which specifically references this Agreement and the specific term or condition to be modified, and is executed by the parties.
In addition to term otherwise defined, as used herein and throughout this Agreement: 1.1 Agreement means the entire content of this document (“Digital Service Contract”), and by this reference, incorporated with any other Supplements specifically designated in communications between the parties. 1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables. 1.3 Copyrights means the property rights in works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law. 1.4 Deliverables means the services and work product specified in the Supplements delivered by WHPGH to Client, in the form and media specified in the Supplements. 1.5 WHPGH Tools means all design tools developed and/or utilized by WHPGH in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements. 1.6 Final Content means all creative content developed or created by WHPGH, or commissioned by WHPGH, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and WHPGH’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials. 1.7 Final Deliverables means the final versions of Deliverables provided by WHPGH and accepted by Client. 1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by WHPGH and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Content. 1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Supplements. 1.10 Services means all services and the work product to be provided to Client by WHPGH as described and otherwise further defined in the Supplements. 1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration. 1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
Supplements to this Digital Service Contract shall be provided by WHPGH to Client, prior to the execution hereof, as part of the formation process for this Agreement. Supplements describe specific terms and conditions applicable to the Project set forth herein. By way of example, the parties may simply acknowledge by email communications that the attachments in an email are the Supplements to this Agreement. Supplements are subject to modification until the execution of this Agreement, which, thereafter, may be modified only as provided in this Agreement for amendments of this Agreement.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by WHPGH, Client shall pay to WHPGH fees in the amounts and according to the payment schedule set forth in the Supplements, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
4. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the WHPGH; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Supplements; (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors; and (d) compliance with all WHPGH administrative procedures, as established by WHPGH from time-to-time.
At all times, Client retains its copyright in its submitted work, content and/or developments. Upon Client’s full and final payment, all right, title and interest to the copyright in the Final Deliverables shall be and is hereby assigned to Client, except that no such assignment shall occur regarding any Third Party Materials, common tools, libraries or routines developed by WHPGH or third parties apart from this Agreement or as part of common distribution, or improvements thereto, regarding which Client shall have a perpetual royalty-free license to use the same for its internal purposes. At all times, WHPGH retains the right to reproduce, publish and display the Deliverables in WHPGH’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website. At all times, WHPGH shall be entitled to publish attribution for the services and results arising from or related to this Agreement and regarding Client.
6. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under this Agreement except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
7. RELATIONSHIP OF THE PARTIES
7.1 Independent Contractor. WHPGH is an independent contractor, not an employee of Client or any company affiliated with Client. WHPGH shall provide the Services under the general direction of Client, but WHPGH shall determine, in WHPGH’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. WHPGH and the work product or Deliverables prepared by WHPGH shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement. 7.2 WHPGH Agents. WHPGH shall be permitted to engage and/or use third party agents or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, WHPGH shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement. 7.3 No Solicitation. During the term of this Agreement, and for a period of one (1) year after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any WHPGH, employee or Design Agent of WHPGH, whether or not said person has been assigned to perform tasks under this Agreement (“Restricted Resource”); provided, however, that the Client may, on a non-exclusive basis, hire any person who was a Participant in Sessions for which Client was Sponsor (“Unrestricted Resource”), and provided further that, in such event of hiring an Unrestricted Resource, Client adheres to WHPGH’s Resource Engagement Protocol. In the event such employment, consultation or work-for-hire event occurs of a Restricted Resource, and without limiting other remedies to which WHPGH is entitled, Client agrees that WHPGH shall be entitled to an agency commission to be the greater of, twenty-five percent (25%) of either (a) said person’s starting salary with Client, or (b) fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. WHPGH, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity. 7.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by WHPGH, and WHPGH shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by WHPGH.
8. TERM AND TERMINATION
8.1 This Agreement shall commence upon the Effective Date and shall remain effective until the termination of the Sessions and delivery of the Final Deliverable. 8.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
- becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
- breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
8.3 In the event of termination under any circumstances, WHPGH shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by WHPGH or WHPGH’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional C