OPERATING AGREEMENT OF WORK HARD PITTSBURGH, LLC
(A Pennsylvania Limited Liability Company)
This is the Operating Agreement (“Agreement”) of Work Hard Pittsburgh, LLC (the “Company”), dated on or as of __________________, 2016.
The Company was organized on ____________, 2016 as a Pennsylvania limited liability company by the filing of a certificate of organization with the Department of State of the Commonwealth of Pennsylvania under and pursuant to the The Pennsylvania Limited Liability Company Law of 1994, as amended (the “Act”).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the members of the Company (“Members”) agree as follows:
1.01. Definitions. In addition to the terms defined in other provisions of this Agreement, the following terms shall have the meanings set forth below unless the context requires otherwise:
“Act.” The Pennsylvania Limited Liability Company Law of 1994, 15 Pa.C.S. § 8901 et seq., and any successor statute, as amended from time to time.
“Agreement.” This Operating Agreement, as amended, modified, supplemented, or restated from time to time.
“Benefit Manager.” Person X. Person serving as Benefit Manager and any other Person or Persons serving at the time as a manager of the Company as provided in this Agreement. Responsibility of the Benefit Manager are defined in Article VI.
“Benefit Report.” Measures the success and/or failure of Company in meeting its General Public Benefit and Specific Public Benefits. The Benefit Manager is responsible for issuing an annual Benefit Report. The Benefit Report will be provided to the general public via the Company website and will be filed with the Pennsylvania Department of State is required to do so.
“Best Interests.” Means the list of considerations described in Section 2.03.
“Capital Account.” The individual account maintained by the Company with respect to each Member as provided in section 7.04.
“Capital Contribution.” The aggregate amount of cash and the agreed value of any property or services (as determined by the Member and the Company) contributed by each Member to the Company as provided in section 7.01. In the case of a Member that acquires a Membership Interest by an assignment or transfer in accordance with the terms of this Agreement, “Capital Contribution” means the Capital Contribution of that Member’s predecessor proportionate to the acquired Membership Interest.
“Certificate.” The certificate of organization of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the Department of State of the Commonwealth of Pennsylvania pursuant to the Act.
“Code.” The Internal Revenue Code of 1986, as amended.
“Company.” See the preamble.
“Management Committee.” Josh Lucas and Jason Phillips shall serve as members of the Management Committee until they decide to expand the Management Committee, they resign from the position or are removed from the position by a majority vote of the Members per Article VIII.
“Member.” Any Person who at the time is a member of the Company. “Members” means two or more Persons when acting in their capacities as Members of the Company. For purposes of the application of a provision of the Act to the Company, the Members shall constitute one class or group of Members.
“Membership Interest.” The interest of a Member in the Company, including, without limitation, interests in Profits and Losses, rights to distributions (liquidating or otherwise), allocations, information, and to consent to or approve actions by the Company, all in accordance with the provisions of this Agreement and the Act.
“Percentage Interest.” The proportionate Membership Interest of a Member expressed as a percentage, as shown on Annex A.
“Person.” A natural person, corporation, general or limited partnership, limited liability company, joint venture, trust, estate, association, or other legal entity or organization.
“Profits and Losses.” For each taxable year or other period, an amount equal to the Company’s taxable income or loss for that year or period, determined in accordance with Code § 703(a) (for these purposes, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code § 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
- Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to the foregoing shall be added to such taxable income or loss.
- Any expenditures of the Company described in Code § 705(a)(2)(B) or that are treated as Code § 705(a)(2)(B) expenditures pursuant to Treas. Reg. § 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits and Losses pursuant to the foregoing shall be subtracted from such taxable income or loss.
- In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraph (2), (3), or (4) of the definition of Gross Asset Value, the amount of the adjustment shall be taken into account as gain or loss from the disposition of the asset for purposes of computing Profits and Losses.
- Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of the property differs from its Gross Asset Value.
- In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for the taxable year or other period, computed in accordance with the definition of Depreciation under this Agreement.
- Notwithstanding the above, any items that are specially allocated to certain Members shall not be taken into account in computing Profits and Losses.
“Stakeholders.” Those affected by the actions of the Company, including volunteers and beneficiaries of service projects, our nonprofit partners, advocates for those in need, current and retired Company employees, the suppliers and customers of the Company, the communities and society in which the Company operates and the Earth upon which we live.
“Treasury Regulations” or “Treas. Regs.” The income tax regulations, including temporary regulations, promulgated under the Code, as those regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
2.01. Registered Office. Pursuant to 15 Pa.C.S. § 109, the registered office of the Company in Pennsylvania is ___________________.
2.02. Purpose. The purpose of the Company is to empower entrepreneurs by delivering resources that allow for self-organization, education, sharing of capacity, access to capital, and risk reduction by providing a structure and framework for cooperative ownership of a world class business incubator. The Company delivers capacity to entrepreneurs by organizing Stakeholders, offering impact-driven investment vehicles, and provides training via mentorship and direct instruction while providing reasonable economic returns for our investors.
2.03. 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 Management Committee shall 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 Management Committee should 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. Our efforts will be measured by social impact metrics with the intent of refining our alignment with the Company’s goal and purpose.
- Nothing in this Article, 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.
- Notwithstanding the foregoing, a Manager is entitled to rely upon the definition of “Best Interests” as set forth above in enforcing his or her rights hereunder and under state law, and such reliance shall not, absent another breach, be construed as a breach of a Manager’s fiduciary duty of care, even in the context of a transaction involving the transfer of Membership Units where, as a result of weighing other Stakeholders’ interests, the Manager determines to accept an offer, between two competing offers, with a lower price per unit.
3.01. Management by Management Committee.
- Day-to-Day Responsibility. The day-to-day business and affairs of the company shall be managed by or under the direction of a Management Committee. A member, as such, shall not take part in, or interfere in any manner with, the management, conduct, or control of the business and affairs of the company, and shall not have any right or authority to act for or bind the company unless taking action by a vote of the Members per Article VIII or as otherwise provided in this Agreement, as such may be amended from time to time.
- Authority and Duty of Management Committee. Except as otherwise provided by resolution adopted by the Management Committee, the Managers may act only collectively as a board and by resolution duly adopted. Individual Managers shall have only such authority and perform such duties as the Management Committee may, from time to time, delegate to them.
- Consensus Decision-Making. All voting of the Management Committee must be done with consensus and a unanimous vote of the Managers is necessary before undertaking any action. The Management Committee shall follow the rules in On Conflict and Consensus in all cases to which they are applicable and in which they are not inconsistent with this Operating Agreement and any special rules or orders the Company may adopt. In the event the Management Committee cannot agree in respect of a decision on behalf of the Company, such decision shall be made by a panel (the “Deadlock Panel”). One member of Deadlock Panel shall be appointed by each member of the Management Committee and the remaining member shall be jointly agreed upon and appointed by the Management Committee. The recommendation of the Deadlock Panel shall be binding on the Management Committee, the Members and the Company when the majority of the members of the Deadlock Panel agree on the decision necessitating the implementation of this 3.01(c).
- Nonexclusive Service. The Managers need not devote services to the company on a substantially full-time basis and need only devote as much time to the company’s activities as the Management Committee determines to be necessary for the efficient conduct thereof, except to the extent otherwise required by a separate employment or other agreement the execution of which by the company was authorized by vote of the Members, excluding the affected Manager if a member, or by vote of disinterested Managers.
3.02. Number and Term of Office of Managers; Qualifications.
- Election of Managers. The Managers shall be elected annually by the Members. Nominees for election as Managers receiving the highest number of votes, up to the number of Managers to be elected, shall be elected as Managers. The initial Management Committee will consist of Josh Lucas and Jason Phillips until the Management Committee decides to increase or reduce the number of Managers.
- Term of Office. Each Manager shall hold office until the next annual meeting of Members and until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation, or removal.
- Qualifications of Managers. Managers must be Members and do not need to be residents of the Commonwealth of Pennsylvania.
3.03. Managers; Delegation and Duties. The company shall have such Managers, other employees, and agents as shall be necessary or desirable to conduct its business. The Management Committee may elect a member or other person to serve as an Manager of the company.
3.04, Manager Compensation. The salaries or other compensation, if any, of the Managers, other employees, and agents of the company shall be fixed from time to time by the Management Committee or such other persons as have been delegated that authority.
3.04. Vacancies; Removal; Resignation.
- Vacancies. Any vacancy occurring in the Management Committee may be filled by election at an annual or special meeting of Members called for that purpose. Any vacancy occurring in the Managers may also be filled by action of the Managers at any regular or special meeting of the Managers. A Manager elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office.
- Removal of Managers. At any meeting of Members at which a quorum of Members is present called expressly for that purpose, or pursuant to a written consent adopted pursuant to this agreement, any Manager may be removed, with or without cause, by 3/5 majority vote of the Members.
- Resignation of Managers. Any Manager may resign at any time. A resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the remaining Managers or, in the case of the resignation of the last Manager, by the Members. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
3.05. Meetings of Management Committee.
- Quorum; Manner of Acting. Unless otherwise provided in the certificate or this agreement, a majority of the Managers in office shall constitute a quorum for the transaction of business by the Managers, and the act of a majority of the Managers present at a meeting at which a quorum is present shall be the act of the Managers. A Manager who is present at a meeting of the Management Committee at which action on any matter is taken shall be presumed to have assented to the action unless his or her dissent is entered in the minutes of the meeting or unless he or she files written dissent to the action with the secretary of the meeting before the adjournment thereof or delivers the dissent to the company immediately after the adjournment of the meeting. The right to dissent shall not apply to a Manager who voted in favor of the action.
- Location. Meetings of the Management Committee may be held at such place or places as shall be determined from time to time by the Managers.
- Waiver of Notice. A waiver of notice of a meeting signed by the Manager entitled to the notice, whether before or after the meeting, shall be deemed equivalent to the giving of the notice. Attendance of a Manager at a Management Committee meeting constitutes a waiver of notice of the meeting, except where a Manager attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
- Annual Meeting. In connection with any annual meeting of Members for the election of Managers to the Management Committee, the Managers may, if a quorum is present, hold a meeting for the transaction of business immediately after and at the same place as the annual meeting of the Members. Notice of the meeting at that time and place shall not be required.
- Regular Meetings. Regular meetings of the Management Committee shall be held at such times and places as shall be designated from time to time by the Managers. Notice of regular meetings shall not be required.
- Special Meetings. Special meetings of the Management Committee may be called by any Manager on at least 24 hours’ notice to the other Managers. The notice need not state the purpose or purposes of, nor the business to be transacted at, the meeting, except as may otherwise be required by law or provided for by the certificate or by this agreement.
3.06. Action by Consent or Remote Conference.
- Action by Consent. Any action required or permitted to be taken at a meeting of the Management Committee may be taken without a meeting if, prior or subsequent to the action, a consent or consents thereto by all of the Managers in office is filed with the records of the company. The consents shall be in writing or in electronic form.
- Remote Participation. One or more Managers may participate in Management Committee meeting by means of conference telephone, electronic technology, or such other means by which Managers not physically present in the same location may communicate with each other on a substantially simultaneous basis. Participation in a meeting pursuant to this subsection shall constitute presence in person at the meeting.
3.07. Compensation of Managers. Managers shall receive such compensation, if any, for their services as Managers as may be designated from time to time by the Management Committee. In addition, Managers shall be entitled to be reimbursed for out-of-pocket costs and expenses incurred in the course of their service as Managers.
3.08. Conflicts of Interest.
- Other Business Opportunities. Subject to the other express provisions of this agreement or any other contract between the Company and its Members or Managers, each Manager of the company at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, independently or with others, except ones in direct competition with the company, with no obligation to offer to the company or any member or Manager the right to participate therein.
- Interested Transactions. A contract or transaction between the company and one or more of its Managers, or between the company and another domestic or foreign association in which one or more of its Managers has a management role or a financial or other interest, shall not be void or voidable solely for that reason, or solely because the Manager is present at or participates in the meeting of the Managers that authorizes the contract or transaction, or solely because the vote of the Manager is counted for that purpose, if:
- the material facts as to the relationship or interest and as to the transaction are disclosed or known to the Management Committee and the Managers authorize the contract or transaction by the affirmative votes of a majority of the disinterested Managers whether or not the disinterested Managers constitute a quorum;
- the material facts as to the relationship or interest and as to the transaction are disclosed or 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
- the contract or transaction is fair to the company as of the time it is authorized, approved, or ratified by the Management Committee or the Members.
- Establishment. The Management Committee may designate one or more committees, each committee to consist of one or more Managers.
- Alternate Committee Members. The Management Committee may designate one or more Managers as alternate Members of any committee of the Managers, who may replace any absent or disqualified member at any meeting of the committee. If the Management Committee has not designated an alternate member of a committee, in the absence or disqualification of a member of that committee, the member or Members thereof present at any meeting and not disqualified from voting, whether or not such Members constitute a quorum, may unanimously appoint another Manager to act at the meeting in the place of the absent or disqualified member.
- Authority. A committee, to the extent provided by the Managers, shall have and may exercise all the powers and authority of the Managers in the management of the business and affairs of the company, except that a committee shall not have any power or authority as to the following:
- the submission to the Members of any action requiring approval by the Members under the Act or this agreement,
- the creation or filling of vacancies in the Managers,
- the amendment of the certificate or this agreement,
- the amendment or repeal of any resolution of the Managers that by its terms is amendable or repealable only by action of all of the Managers then in office, or
- action on any matter committed exclusively to another committee of the Managers.
3.10. Limitation of Liability. A Manager shall not be personally liable, as such, for monetary damages (other than under criminal statutes and under federal, state, and local laws imposing liability on Managers for the payment of taxes) for any action taken, or any failure to take any action, unless the Manager’s conduct constitutes self-dealing, willful misconduct, or recklessness. No amendment or repeal of this section shall apply to or have any effect on the liability or alleged liability of any person who is or was a Manager of the company for or with respect to any acts or omissions of the Manager occurring prior to the effective date of such amendment or repeal. If the Act is amended to permit a Pennsylvania limited liability company to provide greater protection from personal liability for its Managers than the express terms of this section, this section shall be construed to provide for such greater protection.
ARTICLE IV – BENEFIT MANAGER
4.01. Responsibilities. The Benefit Manager is an independent advisor to the Management Committee 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.
4.02. Benefit Report. The Benefit Manager is responsible for issuing an annual 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.
4.03 Benefit Enforcement. If, in the opinion of the Benefit Manager, the Management Committee is not acting to further the General Public Benefit or the Specific Public Benefit, the Benefit Manager will inform every Member/Owner of Company of this deficiency in hopes of working collectively to further General and Specific Public Benefits.
ARTICLE V – MEMBERSHIP INTERESTS
5.01. Initial and Subsequent Members. The Members of the Company are the Persons listed on Annex A. A Person who is not already a Member and who acquires a previously outstanding Membership Interest in accordance with this Agreement shall automatically be admitted as a Member; other Persons may be admitted as Members from time to time on such terms as are fixed by the Management Committee. It shall not be necessary for Persons who are subsequently admitted as Members or who acquire any or all of an existing Member’s Membership Interest to execute this Agreement either by counterpart or amendment. When any Person is admitted as a Member or ceases to be a Member, the Manager shall prepare a revised version of Annex A and distribute it to all the Members.
5.02. Record Holders of Membership Interests. The Company shall be entitled to treat the Person in whose name a Membership Interest stands on the books of the Company as the absolute owner thereof and as a Member of the Company. The Company shall not be bound to recognize any equitable or other claim to, or interest in, such Membership Interest on the part of any other Person, whether or not the Company has express or other notice of any such claim.
5.03. Granting and Termination of Membership Interest. In the spirit of organizing under cooperative principles, the Company will grant an equal share of the business to each new member subject to the following requirements:
- Membership is granted at the sole discretion of the Management Committee.
- Members are free to voluntarily terminate Membership or to resign temporarily pursuant to the guidelines set forth below in part (g) and shall take all steps necessary to effectuate the return of Membership Interest to the Company.
- In addition to any qualification for Membership established by law, in order to acquire and maintain ownership of Company Units, a person shall purchase Units by way of Sweat Equity. A person shall not be considered for Membership or receive a share of Company profits or losses until this person has:
- successfully and satisfactorily completed a probationary period, defined as no less than three months, but no more than six months; and
- satisfactorily completed two hundred (200) hours of Sweat Equity.
- In order to remain a Member of Company, a Member must attend quarterly meetings and donate at least eight hours of work annually for each percentage of ownership share that they have in the Company. If a Member cannot fulfill any of the above obligations, the Member must submit an explanation to the Management Committee of the extenuating circumstances and the Management Committee, at its sole discretion, may choose to allow this gap in participation via written acceptance or rejection.
- LIFETIME WORK TOTAL.
- Should Membership be terminated for any reason, the Member(s) surrendering Membership Units is entitled to his or her share of profits and losses up to the time of termination per Section 6.09.
- When a Member terminates membership or “takes a break” (resigns temporarily) from the group, it is expected that they communicate to the group the following:
- The timeframe for a decision about staying or going (or, when is the next check-in about the Member’s progress away from the group)
- The terms of the break: (a) Will the Member attend any meetings? (b) Will the Member’s voice weigh in on decision-making? (c) Will the Member contribute toward any coordinator work?
- The plan for passing off duties (even temporarily)
- At minimum, two weeks notice is requested, if possible.
5.04. Lack of Authority. A Member in his, her, or its capacity as such shall not have the authority or power to act for or on behalf of the Company or otherwise bind the Company in any way.
5.05. No Right of Partition. A Member shall not have the right to seek or obtain partition by court decree or operation of law of any Company property, or the right to own or use particular assets of the Company.
ARTICLE VI—TRANSFERS, ADDITIONAL MEMBERS
6.01. Transfers of Units in General. No Member may sell, exchange, pledge, encumber, give, devise or otherwise dispose of, either voluntarily or by operation of law, any of his or her Units, or any rights or interest appertaining thereto, whether now owned or hereafter acquired, except as permitted by this Agreement. Any purported transfer of Units by a Member that is not in accordance with the provisions of this Agreement shall be null and void and shall not operate to transfer any right, title or interest in such Units to the purported transferee. The Company shall not cause or permit the transfer of any Units to be made on its books unless the transfer is permitted by this Agreement and has been made in accordance with its terms.
6.02. Restrictions on Transfer of Units.
- Generally. No Member may voluntarily sell, assign, pledge, encumber, give, devise or otherwise dispose of any interest in any of his or her Membership Units.
- Procedure for Placement of Units. In the event that a Member voluntarily desires to surrender her Units at any time, that Member’s Units shall be allocated among the remaining Members pro rata in accordance with their respective holdings of Units
6.03. Restrictions on Encumbrances. No Member shall assign, pledge, grant a security interest in or otherwise permit any lien or encumbrance to attach to any interest in any Membership Unit, unless approved in writing by the Management Committee. Any action taken in violation of this restriction shall be null and void.
6.04. Duty to Return Units to Company in Certain Events. The Company and the Other Members shall have the respective rights and obligations to assume of the Units of a Member if any of the following events occurs:
- Death. In the event of the death of a Member at any time, the Company and the Other Members, successively, shall have the right–but not the obligation–to assume all (but not less than all) of such Member’s Units. The Company may elect to assume all (but not less than all) of such Member’s Units by giving written notice to her estate within 30 days after the date of such Member’s death.
- Bankruptcy or Insolvency. In the event of the institution of a proceeding in a court having jurisdiction seeking a decree or order for relief in respect of any Member in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) for a substantial part of his property, and such proceeding shall remain undismissed or unstayed and in effect for a period of 90 consecutive days or such court shall enter a decree or order granting the relief sought in such proceeding; or in the event any Member shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of a substantial part of his property, or shall make a general assignment for the benefit of his creditors, or shall take any formal action in furtherance of any of the foregoing; then, in any such event, (i) the Member owning the affected Units shall give the Company and the Other Members written notice thereof promptly upon the occurrence of such event, and (ii) the Company and the Other Members, successively, shall have the right–but not the obligation–to assume all of such Member’s Units. The Company may elect to assume all (but not less than all) of such Member’s Units by giving written notice to such Member within 30 days after the date of receipt of such notice from the subject Member.
- Divorce of Member. In the event any Member becomes divorced or divides his marital property, and in connection therewith an agreement is entered into or an order is entered granting any Units to the spouse of such Member, then on the date when it is finally determined that such an agreement or order is to be entered into or entered, (i) the Member owning the affected Units shall give the Company and the Other Members written notice thereof promptly upon the occurrence of such event, and (ii) the Company shall have the right–but not the obligation–to assume all of such Member’s Units.
- Failure to Participate. In the event that any Member does not participate in the operation of the Company for a period of 3 weeks without first receiving written approval from the Managing Members for this nonparticipation, the Company shall have the right–but not the obligation–to assume all of such Member’s Units.
- Request of Management Committee and With Supermajority Vote of Members. At the written request of the Management Committee, each Member agrees to surrender all Membership Units held should this be determined, at the sole discretion of the Management Committee, to be in the best interest of the Company.
6.05. No Payment for Assumption. No financial compensation will be provided for the assumption of Membership Units by Company or Members whether the assumption of the Membership Units was voluntary or involuntary on the part of the Member giving up the Membership Units.
6.06. Closings. All transactions between and among the parties hereto under this Agreement shall be consummated at a closing to be held at the Company’s principal offices or at such other location as may be designated by the Management Committee or agreed upon by the parties to the transaction. At the closing:
- Delivery. Each Membership Unit being transferred shall be delivered free and clear of all liens, claims, encumbrances and any other restrictions.
- Certificate of Appointment. If required, a representative of the estate of a deceased Member shall deliver a certified copy of the certificate of appointment of the personal representative and evidence of fiduciary authority and of release of waiver of notice of transfer from federal or state tax officials.
- Resignations. If the subject Member is an employee, officer and/or director of the Company, he shall deliver to the Company, as the case may be, written resignations from such positions to be effective immediately upon delivery.
- Other Documents. The subject Member shall execute any document which is required by this Agreement or reasonably necessary or desirable to effect the assumption of the Units contemplated hereby.
6.07. Essence of Agreement. The provisions of this Article VIII shall be deemed to be of the essence with respect to the Units and upon application to any court of equity having jurisdiction, each of the parties hereto shall be entitled to a decree against any person violating or about to violate the provisions hereof seeking specific performance of the provisions hereof or any injunction to restrain any violation thereof. The remedy provided for herein shall be in addition and without prejudice to any other legal, equitable or contractual remedies which the parties may have.
6.08. Admission of Additional Members. The Management Committee shall have full power and authority at any time or from time to time to designate one or more Persons for admission as a Member, provided, however, that no Person shall be admitted as an additional Member unless such Person shall enter into a written instrument in form and content satisfactory to the Management Committee whereby such Person joins in and becomes a party to this Agreement and thereby a “Member” hereunder. All New Securities (as defined below) issued by the Company shall dilute, on a pro rata basis, the Units of all then-existing Members.
6.09. Distributions and Allocations in Respect of Transferred Units. If any Unit is transferred, or any Person is otherwise admitted as a Member, during any Fiscal Year or period, Net Profits, Net Losses and all other items attributable to such Unit for such Fiscal Year or period shall be allocated among the Members by taking into account their varying interests during such Fiscal Year or period in accordance with Code Section 706(d). Unless otherwise required by the Regulations, such assignment, transfer or admission shall be deemed to have occurred at the end of the calendar month during which such event shall have actually occurred, and such allocations shall be determined and made pursuant to a pro forma closing of the books of the Company as of the end of such month. With respect to a transferred Membership Unit (or any interest therein), (a) all distributions on or before the deemed date of such transfer shall be made to the transferor and all distributions thereafter shall be made to the transferee and (b) solely for purposes of making such allocations and distributions, the Company shall recognize such transfer not later than the end of the calendar month during which it is given notice of such transfer. Neither the Company nor the Management Committee shall incur any liability for making allocations and distributions in accordance with the provisions of this Section 8.09.
6.10. Banking. All funds of the Company shall be deposited in such bank account or accounts of federally insured banks as shall be determined by the Management Committee. Such funds shall not be commingled with any of the funds of any Member. All withdrawals therefrom shall be made upon written authorization signed by any Person authorized to do so by the Management Committee.
ARTICLE VII—FINANCIAL AND TAX MATTERS
7.01. Capital Contributions. The Company shall keep a record of the Capital Contributions made by the Members. A Member shall not be required to make any capital contribution to the Company not specifically agreed to in writing between the Member and the Company, or be obligated or required under any circumstances to restore any negative balance in his, her, or its Capital Account.
7.02. Return of Contributions. A Member is not entitled to the return of any part of the Member’s Capital Contribution, or to be paid interest in respect of the Member’s Capital Account or Capital Contribution. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member’s Capital Contributions.
7.03. Advances by Members. A Member may agree, with the consent of the Management Committee, to loan funds to or guarantee obligations of the Company. A loan to the Company or guarantee of its obligations by a Member is not a Capital Contribution.
7.04. Capital Accounts.
- Tax Provisions. The allocation and capital account maintenance provisions of Treasury Regulations under section 704 of the Code are hereby incorporated by reference, including a “qualified income offset” within the meaning of Treas. Reg. § 1.704-1(b)(2)(ii)(d), the rules regarding allocation of “partner nonrecourse deductions” under Treas. Reg. § 1.704-2(i)(1), “minimum gain chargeback” under Treas. Reg. § 1.704-2(f) and “partner nonrecourse debt minimum gain chargeback” under Treas. Reg. § 1.704-2(i)(4), and the limitation on allocation of losses to any Member that would cause a deficit capital account in excess of such Member’s capital contribution obligations and share of minimum gain and partner nonrecourse debt minimum gain under Treas. Reg. § 1.704-1(b)(2)(ii)(d) as modified by Treas. Reg. §§ 1.704-2(g)(1) and 1.704-2(i)(5).
- Contributed Property. To the extent contributed property has a fair market value at the time of contribution that differs from the contributing Member’s basis in the property, and to the extent the carrying value of property of the Company for Capital Account purposes otherwise differs from the Company’s basis in such property, depreciation, gain, and loss for capital account purposes shall be computed by reference to such carrying value rather than such tax basis. In accordance with section 704(c) of the Code, income, gain, loss, and deduction with respect to such property shall, solely for tax purposes, be shared among the Members so as to take account of the variation between the basis of the property to the Company and its fair market value at the time of contribution, or at the time that the carrying value of such property is adjusted under Treas. Reg. § 1.704-1(b)(2)(iv)(f), as the case may be.
7.05. Profits and Losses. At all times while there is more than one Member, Profits and Losses shall be allocated to the Members in accordance with Percentage Interests, except as otherwise provided in section 7.04.
- General Rule. Except as otherwise provided in this Agreement, the Management Committee may authorize, in its sole discretion, the Company to make distributions to the Members. All distributions, other than liquidating distributions, shall be made to the Persons shown as holders of record of Membership Interests at the time in proportion to their Percentage Interests.
- Minimum Distribution. With respect to any taxable year of the Company in which Members are allocated taxable income for federal income tax purposes (and for this purpose all items of income, gain, loss, or deduction required to be separately stated pursuant to section 703 of the Code shall be included in the calculation of taxable income (other than the amount, if any, by which capital losses exceed capital gains)), the Company shall attempt to distribute to the Members, within 90 days after the close of that taxable year, no less than the amount determined by multiplying the Company’s taxable income (computed as set forth in this sentence) by the highest composite federal, state, and local income tax rate applicable to any Member. For purposes of the preceding sentence, the Company’s taxable income for a year shall be reduced by any net loss of the Company in prior years that has not previously been so taken into account under this section 7.06(b). Nothing herein shall require the Company to borrow money or reduce its cash flow so as to restrict its ability to operate the day-to-day activities of the business in order to make such distributions.
7.07. Establishment of Reserves. The Management Committee shall have the right and obligation to establish reasonable reserves for maintenance, improvements, acquisitions, capital expenditures, and other contingencies, such reserves to be funded with such portion of the operating revenues of the Company as the Management Committee may deem necessary or appropriate for that purpose.
7.08. Tax Returns. The Management Committee shall arrange for the preparation of all tax returns required to be filed for the Company. Each Member shall be entitled to receive, upon written request to the Management Committee, copies of all federal, state, and local income tax returns and information returns, if any, which the Company is required to file. All information needed by the Members and other Persons who were Members during the applicable taxable year for income tax purposes shall be prepared by the Company’s accountants and furnished to each such Person after the end of each taxable year of the Company.
7.09. Tax Elections. To the extent permitted by applicable tax law, the Company may make the following elections on the appropriate tax returns:
- to adopt the calendar year as the Company’s taxable year;
- to adopt the cash method of accounting and to keep the Company’s books and records on the income-tax method;
- if a transfer of a Membership Interest as described in section 743 of the Code occurs, on written request of the transferee, or if a distribution of Company property is made on which gain described in section 734(b)(1)(A) of the Code is recognized or there is an excess of adjusted basis as described in section 734(b)(1)(B) of the Code, to elect, pursuant to section 754 of the Code, to adjust the basis of Company properties;
- to elect to amortize the organizational expenses of the Company and the start-up expenditures of the Company ratably over a period of 60 months as permitted by sections 195 and 709(b) of the Code; and
- any other election the Management Committee may deem appropriate and in the best interests of the Members.
7.10. 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 Management Committee 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.
7.11. Tax Withholding. Unless treated as a Tax Payment Loan, any amount paid by the Company for or with respect to any Member on account of any withholding tax or other tax payable with respect to the income, profits, or distributions of the Company pursuant to the Code, the Treasury Regulations, or any state or local statute, regulation, or ordinance requiring such payment (each a “Withholding Tax Act”) shall be treated as a distribution to the Member for all purposes of this Agreement. To the extent that the amount required to be remitted by the Company under a Withholding Tax Act exceeds the amount then otherwise distributable to the Member, the excess shall constitute a loan from the Company to the Member (a “Tax Payment Loan”). Each Tax Payment Loan shall be payable upon demand and shall bear interest, from the date that the Company makes the payment to the relevant taxing authority, at the applicable federal short-term rate under section 1274(d)(1) of the Code, determined and compounded semiannually. So long as any Tax Payment Loan or the interest thereon remains unpaid, the Company shall make future distributions due to the Member under this Agreement by applying the amount of any such distribution first to the payment of any unpaid interest on all Tax Payment Loans of the Member and then to the repayment of the principal of all Tax Payment Loans of the Member. The Members shall take all actions necessary to enable the Company to comply with the provisions of any Withholding Tax Act applicable to the Company and to carry out the provisions of this subsection.
8.01. Voting Rights of Members. Each Member shall be entitled to cast that number of votes on each action to be taken by vote of the Members as shall equal the number of Membership Units owned by that Member.
8.02. Action by Members. Except as otherwise provided in the Act, the Certificate or this Agreement, whenever any action is to be taken by a majority vote of the Members, it shall be authorized upon receiving the affirmative vote of Seventy-Six (76%) the votes cast by all Members entitled to vote thereon. Recording the fact of abstention does not constitute casting a vote.
8.03. Actions Requiring a Majority Vote of the Members. Notwithstanding anything in this Agreement to the contrary, the following actions may only be taken after receiving a majority vote of the Members:
- acquiring, selling or otherwise disposing of any Company equity, or investing in or acquiring any interest in any business enterprise or creating any partnership except as otherwise expressly provided for in this Agreement;
- merging or consolidating or agreeing to merge or consolidate the Company with or into another company or companies;
- liquidating, reorganizing or recapitalizing the Company or adopting any plan to do so;
- approving any change in the Company’s fiscal year, or any change in the accounting principles used by the Company except by the extent required by GAAP;
- the lease, loan or other obligation of the Company requiring the personal guaranty of any Member;
- terminating the status of any Member of the Company as a service provider to the Company;
- electing any person to the Management Committee of the Company;
- removing any Manager from the Management Committee of the Company;
- repurchasing Membership Units from any Member;
- to sell or transfer any real property owned by the Company;
- to sell or otherwise dispose of all or substantially all of the assets of the Company as part of a single transaction or plan so long as such disposition is not in violation of or a cause of a default under any other agreement to which the Company may be bound; and
- such other acts as agreed upon by the Management Committee and Members from time to time pursuant to this Section 8.03 as requiring such vote of the Member.
8.04. Related Party Transactions. No contract or transaction between the Company and one or more Members or Managers or between the Company and any other corporation, partnership, association, or other organization in which one or more of the Company’s Members or Managers or officers are directors, managers or officers, or have a financial interest (a “Related Party Transaction”), is void or voidable solely for this reason, or solely because the Manager or Member is present at or participates in the meeting of the Management Committee that authorizes the contract or transaction, or solely because any such Manager’s or Member’s votes are counted for such purpose, if:
- the material facts as to the Member’s or Manager’s relationship or interest and as to the contract or transaction are disclosed or are known to the Management Committee or Members, as the case may be, in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Managers or Members, even though the disinterested Managers or Members are less than a quorum;
- the material facts as to the Member’s or Manager’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 a vote of the Members; or
- the contract or transaction is fair as to the Company as of the time it is authorized, approved or ratified, by the Management Committee or the Members.
8.05 Vote of Interested Member(s). Interested Members shall be counted in determining the presence of a quorum at a meeting of the Members that authorizes the contract or transaction.
8.06. Meetings of Members.
- Quorum. A meeting of the Members shall not be organized for the transaction of business unless a quorum is present. The presence 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 the 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, the Members present may adjourn the meeting to such time and place as they may determine. Those Members entitled to vote who attend a meeting of Members:
- at which Managers are to be elected that has been previously adjourned for lack of a quorum, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing Managers.
- that has been previously adjourned for one or more periods aggregating at least 15 days because of an absence of a quorum, although less than a quorum, shall nevertheless constitute a quorum for the purpose of acting upon any matter set forth in the notice of the meeting if the notice states that those Members who attend the adjourned meeting shall nevertheless constitute a quorum for the purpose of acting upon the matter.
- Location. All meetings of the Members shall be held at the principal place of business of the Company or at such other place within or outside the Commonwealth of Pennsylvania as shall be specified or fixed in the notice thereof.
- Adjournment. The chairman of the meeting or the Members present and entitled to vote shall have the power to adjourn a meeting from time to time, without any notice other than announcement at the meeting of the time and place at which the adjourned meeting will be held.
- Call of Meetings. A meeting of the Members for any proper purpose or purposes may be called at any time by the Management Committee or by Members entitled to cast at least 20% of the votes that all Members are entitled to cast at the particular meeting. Only business within the purpose or purposes described in the notice of the meeting may be conducted at a meeting of the Members. The notice shall specify the time and location of the meeting.
- Notices. Notice of a meeting of Members shall be given to the Members either personally or by sending a copy thereof:
- by first class or express mail, postage prepaid, or courier service, charges prepaid, to the postal address of each Member appearing on the books of the Company. Notice pursuant to this paragraph shall be deemed to have been given when deposited in the United States mail or with the courier service.
- by facsimile transmission, e-mail, or other electronic communication to the facsimile number or address for e-mail or other electronic communications supplied by a Member to the Company for the purpose of notice. Notice pursuant to this paragraph shall be deemed to have been given when sent.
- Waiver of Notice. A waiver of notice of a meeting signed by the Member entitled to the notice, whether before or after the meeting, shall be deemed equivalent to the giving of the notice. Attendance of a Member at a meeting constitutes a waiver of notice of the meeting, except where a Member attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
- General Rule. Every Member entitled to vote at a meeting of the Members or to express consent or dissent without a meeting may authorize another Person to act for the Member by proxy. The presence of, or vote or other action at a meeting of Members by, or the expression of consent or dissent by, a proxy of a Member shall constitute the presence of, or vote or action by, or consent or dissent of the Member.
- Minimum Requirements. Every proxy shall be executed by the Member or by the duly authorized attorney-in-fact of the Member and filed with the Management Committee. A telegram, telex, cablegram, or other electronic transmission by the Member, or a photographic, photostatic, facsimile, or similar reproduction of a writing executed by the Member shall be treated as properly executed for purposes of this section if it sets forth a confidential and unique identification number or other mark furnished by the Company to the Member for the purposes of a particular meeting or transaction.
- Revocation. A proxy, unless coupled with an interest, shall be revocable at will, notwithstanding any other agreement or any provision in the proxy to the contrary, but the revocation of a proxy shall not be effective until written notice thereof has been given to the Management Committee. An unrevoked proxy shall not be valid after three years from the date of its execution unless a longer time is expressly provided in the proxy. A proxy shall not be revoked by the death or incapacity of the maker unless, before the vote is counted or the authority is exercised, written notice of the death or incapacity is given to the Management Committee.
- Conduct of Meetings. All meetings of the Members shall be presided over by the Management Committee, an individual designated by the Management Committee or, in the absence of the Management Committee or an individual designated by the Management Committee, an individual chosen by the Members present. The Person presiding at the meeting shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order.
8.08. Action by Consent or Remote Participation.
- Action by Consent. Any action required or permitted to be taken at a meeting of Members may be taken without a meeting, without prior notice, and without a vote, upon the 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 in writing or in electronic form and shall be filed with the Management Committee. An action taken by less than unanimous consent of the Members shall not become effective until after at least ten days’ written notice of the action has been given to each Member entitled to vote thereon who has not consented thereto.
- Remote Participation. The presence or participation, including voting and taking other action, at a meeting of Members, by conference telephone or other electronic means, including without limitation the Internet, shall constitute the presence of, or vote or action by, the Member.
8.09. Voting by Joint Holders. Where a Membership Interest is held in any form of joint or common ownership by two or more Persons:
- if less than all of those Persons are present in person or by proxy at a meeting of the Members, the entire Membership Interest held in joint or common ownership shall be deemed to be represented at the meeting and the Company shall accept as the vote of that Membership Interest the vote cast by a majority of those Persons present; and
- if the Persons are equally divided upon whether the Membership Interest held by them shall be voted or upon the manner of voting the Membership Interest, the voting of the Membership Interest shall be divided equally among the Persons without prejudice to the rights of those Persons among themselves.
8.10. Liability of Members. The Members, as such, shall not be liable for the debts, obligations, or liabilities of the Company except to the extent required by the Act.
8.11. Indemnification. The Company shall indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or proceeding, including without limitation actions by or in the right of the Company, whether civil, criminal, administrative, or investigative, by reason of the fact that the Person is or was a Manager or an officer of the Company, or is or was serving while the Manager of the Company at the request of the Company as a director, manager, officer, employee, agent, fiduciary, or other representative of another corporation (for profit or not-for-profit), limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise, against all liabilities, expenses (including without limitation attorneys’ fees), judgments, fines, excise taxes, and amounts paid in settlement in connection with the action or proceeding unless the act or failure to act by the Person giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness. The Company shall have the power to indemnify employees and agents of the Company on the same basis as provided in this section with respect to the Manager, and to advance expenses to employees and agents on the same basis as provided in section 8.10, as the Management Committee may from time to time determine or authorize.
8.12. Advancement of Expenses. Expenses (including without limitation attorneys’ fees) incurred by any Person who was or is a Manager of the Company in defending any action or proceeding referred to in section 8.11 shall automatically be paid by the Company, without the need for action by the Management Committee, in advance of the final disposition of the action or proceeding upon receipt of an undertaking by or on behalf of the Person to repay the amount advanced if it shall ultimately be determined that the Person is not entitled to be indemnified by the Company.
8.13. Exception. Notwithstanding anything in this article VII to the contrary, the Company shall not be obligated to indemnify any Person under Section 8.11 or advance expenses under section 8.12 with respect to proceedings, claims, or actions commenced by any Person, other than mandatory counterclaims and affirmative defenses.
8.14. Interpretation. The indemnification and advancement of expenses provided by or pursuant to this article VII shall not be deemed exclusive of any other rights to which any Person seeking indemnification or advancement of expenses may be entitled under any insurance policy, agreement, vote of Members, approval of the Manager, or otherwise, both as to actions in the Person’s official capacity and as to actions in another capacity while holding an office, and shall continue as to a Person who has ceased to be the Manager or an officer and shall inure to the benefit of the heirs, executors, and administrators of the Person. If the Act is amended to permit a Pennsylvania limited liability company to provide greater rights to indemnification and advancement of expenses for its managers and officers than the express terms of this article VII, this article VII shall be construed to provide for such greater rights.
8.15. Contract. The duties of the Company to indemnify and to advance expenses to the Manager or an officer as provided in this article VII shall be in the nature of a contract between the Company and each such Person, and no amendment or repeal of any provision of this article VII shall alter, to the detriment of such Person, the right of the Person to the advancement of expenses or indemnification related to a claim based on an act or failure to act that took place prior to the amendment or repeal or the termination of the service of the Person as the Manager or officer, whichever is earlier.
ARTICLE IX—BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.01. Maintenance of Books.
- Financial Records. The Company shall keep books and records of accounts which shall be maintained on a cash basis, or such other method as is required for federal income tax purposes, in accordance with the terms of this Agreement, except that the Capital Accounts of the Members shall be maintained in accordance with this Agreement.
- Company Records. In addition to the financial records required to be maintained under subsection (a), the Company shall keep the following records:
- a list setting forth the full name and last known mailing address of each Member and the Manager.
- a copy of the Certificate and all amendments thereto.
- copies of all of the Company’s federal, state, and local income tax returns and annual financial statements.
- copies of the currently effective written Operating Agreement, and all amendments thereto, and copies of any operating agreements no longer in effect.
- minutes of the proceedings of the Members.
- In General. The Manager shall be responsible for arranging preparation of financial reports of the Company and for the coordination of the financial matters of the Company with the Company’s certified public accountants. The financial statements described in subsections (b) and (c) shall be prepared in accordance with accounting principles generally employed when financial records are kept on the cash basis. The Company shall bear the costs of preparing the reports required by subsections (b) and (c).
- Annual Reports. On or before the 90th day following the end of each fiscal year of the Company, the Manager shall cause each Member to be furnished with a balance sheet, an income statement, and a statement of changes in Members’ capital of the Company for, or as of the end of, that year, which have been reviewed or audited by the Company’s certified public accountants.
- Quarterly Reports. On or before the 60th day following the end of each calendar quarter, the Manager shall cause each Member to be furnished with a balance sheet, an income statement, and a statement of changes in Members’ capital of the Company for, or as of the end of, that calendar quarter, which have been prepared internally by the Company.
- Other Reports. The Manager also may cause to be prepared or delivered such other reports as the Manager may deem appropriate.
9.03. Financial Accounts. The Manager shall establish and maintain one or more separate bank and investment accounts in the Company name with financial institutions and firms that the Manager determines. The Manager may not commingle the Company’s funds with the funds of any Member.
ARTICLE X—DISSOLUTION, LIQUIDATION, AND TERMINATION
10.01. Dissolution. The Company shall dissolve, and its affairs shall be wound up, only upon the first to occur of the following:
- the affirmative vote, consent, or agreement of the Members holding at least 76% of the outstanding Percentage Interests; or
- the entry of an order of judicial dissolution of the Company under section 8972 of the Act.
10.02. Liquidation and Termination.
- Procedure. On dissolution of the Company, the Manager shall act as liquidator or may appoint one or more representatives or Members as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Manager. The steps to be accomplished by the liquidator are as follows:
- as promptly as possible after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Company’s assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;
- the liquidator shall first pay, satisfy, or discharge from Company funds all of the debts, liabilities, and obligations of the Company to its creditors (including, without limitation, all expenses incurred in liquidation and any advances described in section 4.03) or otherwise make adequate provision for payment and discharge thereof (including, without limitation, the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine), all in accordance with the provisions of the Act as may be applicable;
- after all of the payments required by paragraph (2) have been made, any remaining assets of the Company shall be distributed to the Members as follows:
- the liquidator may sell any or all Company property, including to Members, and any resulting gain or loss from each sale shall be computed and allocated to the Capital Accounts of the Members;
- with respect to all Company property that has not been sold, the fair market value of that property shall be determined and the Capital Accounts of the Members shall be adjusted to reflect the manner in which the unrealized income, gain, loss, and deduction inherent in property that has not been reflected in the Capital Accounts previously would be allocated among the Members if there were a taxable disposition of that property for the fair market value of that property on the date of distribution; and
- after completion of the steps in subparagraphs (i) and (ii), the remaining assets shall be distributed 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.
- Distributions. All distributions in kind to the Members under this section shall be made subject to the liability of each distributee for costs, expenses, and liabilities relating to the assets distributed in kind theretofore incurred or for which the Company has committed prior to the date of termination and those costs, expenses, and liabilities shall be allocated to the distributees pursuant to this section. The distribution of cash and/or property to a Member in accordance with the provisions of this section constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest in all the Company’s property. To the extent that a Member returns funds to the Company, it has no claim against any other Member for those funds.
10.03. Deficit Capital Accounts. Notwithstanding anything to the contrary contained in this Agreement, and notwithstanding any custom or rule of law to the contrary, to the extent that the deficit, if any, in the Capital Account of any Member results from or is attributable to deductions and losses of the Company (including non-cash items such as depreciation), or distributions of money pursuant to this Agreement to all Members in proportion to their respective Percentage Interests, upon dissolution of the Company such deficit shall not be an asset of the Company and such Members shall not be obligated to contribute such amount to the Company to bring the balance of such Member’s Capital Account to zero.
10.04. Certificate of Dissolution. On completion of the liquidation of Company assets as provided herein, the Company is terminated, and the Manager (or such other person or persons as the Act may require or permit) shall file a Certificate of Dissolution with the Department of State of the Commonwealth of Pennsylvania and take such other actions as may be necessary to terminate the existence of the Company.
ARTICLE XI—GENERAL PROVISIONS
- To the Members. Any notice required to be given to a Member under the provisions of this Agreement or by the Act shall be given either personally or by sending a copy thereof:
- by first class or express mail, postage prepaid, or courier service, charges prepaid, to the postal address of the Member appearing on the books of the Company. Notice pursuant to this paragraph shall be deemed to have been given to the Member when deposited in the United States mail or with a courier service for delivery to the Member.
- by facsimile transmission, e-mail, or other electronic communication to the Member’s facsimile number or address for e-mail or other electronic communications supplied by the Member to the Company for the purpose of notice. Notice pursuant to this paragraph shall be deemed to have been given to the Member when sent.
- To the Management Committee or the Company. Any notice to the Company or a Manager must be given to the Manager at the principal place of business of the Company.
11.02. Entire Agreement. This Agreement constitutes the entire agreement among the Members with respect to the subject matter hereof and supersedes all prior agreements, express or implied, oral or written, with respect thereto. The express terms of this Agreement control and supersede any course of performance or usage of trade inconsistent with any of the terms hereof.
11.03. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the period of the applicable statute of limitations has run.
11.04. Amendment. This Agreement or the Certificate may be amended from time to time only with the approval of the Manager and by vote of the Members at any meeting of the Members.
11.05. Binding Effect and Rights of Third Parties. This Agreement has been adopted to govern the operation of the Company, and shall be binding on and inure to the benefit of the Members and their respective heirs, personal representatives, successors, and assigns. This Agreement is expressly not intended for the benefit of any creditor of the Company or any other Person, except a Person entitled to indemnification, contribution, or advancement of expenses under article VII. Except and only to the extent provided by applicable statute no such creditor or other Person shall have any rights under this Agreement.
11.06. Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania (including, without limitation, provisions concerning limitations of actions), without reference to the conflicts of laws rules of that or any other jurisdiction, except that federal laws shall also apply to the extent relevant.
11.07. Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected thereby and that provision shall be enforced to the greatest extent permitted by law.
11.08. Construction. Whenever the context requires, the gender of any word used in this Agreement includes the masculine, feminine, or neuter, and the number of any word includes the singular or plural. All references to articles and sections refer to articles and sections of this Agreement, and all references to annexes are to annexes attached hereto, each of which is made a part hereof for all purposes. The headings in this Agreement are for convenience only; they do not form a part of this Agreement and shall not affect its interpretation.
11.09. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. If executed in multiple counterparts, this Agreement shall become binding when any counterpart or counterparts, individually or taken together, bear the signatures of all of the initial Members.
IN WITNESS WHEREOF, the Members have executed this Agreement as of the date first above written.
Work Hard PGH, LLC Members
Name and Address of Each Member Percentage Interest Membership Units
ANNEX B – CERTAIN FINANCIAL AND TAX MATTERS
B.1. Definitions. In addition to the terms defined in other provisions of this agreement, including without limitation section 1.01, the following terms shall have the meanings set forth below:
“Adjusted capital account deficit.” The deficit balance, if any, with respect to any member, in the member’s capital account as of the end of the relevant taxable year, after giving effect to the following adjustments (i) increasing the capital account by any amounts that the member is obligated to restore or is deemed to be obligated to restore pursuant to Treas.Reg. §§ 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1), and 1.704-2(i)(5); and (ii) reducing the capital account by the items described in Treas.Reg. §§ 1.704‑1(b)(2)(ii)(d)(4), (5), and (6). The foregoing definition of adjusted capital account deficit is intended to comply with the provisions of Treas.Reg. § 1.704‑1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
“Business day.” Any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the Commonwealth of Pennsylvania are closed.
“Company minimum gain.” See the definition of “partnership minimum gain” set forth in Treas.Reg. §§ 1.704-2(b)(2) and 1.704-2(d).
“Depreciation.” For each taxable year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the gross asset value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, depreciation shall be an amount that bears the same ratio to such beginning gross asset value as the federal income tax depreciation, amortization, or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization, or other cost recovery deduction for such year is zero, depreciation shall be determined with reference to such beginning gross asset value using any reasonable method selected by the Management Committee, and if the company uses the “remedial allocation method” under Treas.Reg. § 1.704-3(d) with respect to any asset, depreciation for that asset shall be computed in accordance with Treas.Reg. § 1.704‑3(d)(2).
“Excess nonrecourse liabilities.” Liabilities having the meaning set forth in Treas.Reg. § 1.752-3(a)(3).
“Gross asset value.” The adjusted basis for federal income tax purposes of an asset, except as follows:
- The initial gross asset value of any asset contributed by a member to the company shall be the gross fair market value of the asset, as determined by the contributing member and the company.
- The gross asset values of all company assets shall be adjusted to equal their respective gross fair market values, as determined by the Management Committee, as of the following times:
- the acquisition of an additional interest in the company by any new or existing member in exchange for more than a de minimis contribution of money, other property, or services;
- the distribution by the company to a member of more than a de minimis amount of money or other property as consideration for an interest in the company; or
- the liquidation of the company for federal income tax purposes within the meaning of Treas.Reg. § 1.704-1(b)(2)(ii)(g);
except that the adjustments pursuant to clauses (i) and (ii) above shall be made only if the Managers reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the members in the company.
- The gross asset value of any company asset distributed to any member shall be the gross fair market value of such asset on the date of distribution.
- The gross asset values of company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of those assets pursuant to Code § 734(b) or Code § 743(b), but only to the extent that the adjustments are taken into account in determining capital accounts pursuant to Treas.Reg. § 1.704-1(b)(2)(iv)(m) and section B.2, except that gross asset values shall not be adjusted pursuant to this subsection (4) to the extent the Managers determines that an adjustment pursuant to subsection (2) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (4).
- If the gross asset value of an asset has been determined pursuant to subsection (1), (2), or (4), that gross asset value shall thereafter be adjusted by the depreciation taken into account with respect to that asset for purposes of computing profits and losses.
“Member nonrecourse debt.” See the definition of “partner nonrecourse debt” set forth in Treas.Reg. §§ 1.704-2(b)(4) and 1.704-2(i).
“Member nonrecourse debt minimum gain.” See the definition of “partner nonrecourse debt minimum gain” set forth in Treas.Reg. § 1.704-2(i).
“Member nonrecourse deductions.” See the definition of “partner nonrecourse deductions” set forth in Treas.Reg. §§ 1.704-2(i)(1) and 1.704-2(i)(2).
“Nonrecourse deductions.” Deductions having the meaning set forth in Treas.Reg. §§ 1.704-2(b)(1) and 1.704-2(c).
“Profits and losses.” For each taxable year or other period, an amount equal to the company’s taxable income or loss for that year or period, determined in accordance with Code § 703(a) (for these purposes, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code § 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
- Any income of the company that is exempt from federal income tax and not otherwise taken into account in computing profits and losses pursuant to the foregoing shall be added to the taxable income or loss.
- Any expenditures of the company described in Code § 705(a)(2)(B) or that are treated as Code § 705(a)(2)(B) expenditures pursuant to Treas.Reg. § 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing profits and losses pursuant to the foregoing shall be subtracted from the taxable income or loss.
- In the event the gross asset value of any company asset is adjusted pursuant to subsection (2), (3), or (4) of the definition of gross asset value, the amount of the adjustment shall be taken into account as gain or loss from the disposition of the asset for purposes of computing profits and losses.
- Gain or loss resulting from any disposition of company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the gross asset value of the property disposed of, notwithstanding that the adjusted tax basis of the property differs from its gross asset value.
- In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account depreciation for the taxable year or other period, computed in accordance with the definition of depreciation under this agreement.
- Notwithstanding the above, any items that are specially allocated to certain members shall not be taken into account in computing profits and losses.
B.2. Preparation and Maintenance of Capital Accounts.
- The capital account for each member shall:
- be increased by (i) the amount of money contributed by that member to the company, (ii) the fair market value of property contributed by that member to the company (net of liabilities secured by the contributed property that the company is considered to assume or take subject to under section 752 of the Code), and (iii) allocations to that member of profits and any other company income and gain (or items thereof), including income and gain exempt from tax and income and gain described in Treas.Reg. § 1.704-1(b)(2)(iv)(g), and
- be decreased by (i) the amount of money distributed to that member by the company, (ii) the fair market value of property distributed to that member by the company (net of liabilities secured by the distributed property that the member is considered to assume or take subject to under section 752 of the Code), and (iii) allocations of losses and any other company loss and deduction (or items thereof), including loss and deduction described in Treas.Reg. § 1.704‑1(b)(2)(iv)(g).
- The members’ capital accounts also shall be maintained and adjusted as permitted by the provisions of Treas.Reg. § 1.704-1(b)(2)(iv)(f) and as required by the other provisions of Treas.Reg. §§ 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments to reflect the allocations to the members of depreciation, depletion, amortization, and gain or loss as computed for book purposes rather than the allocation of the corresponding items as computed for tax purposes, as required by Treas.Reg. § 1.704-1(b)(2)(iv)(g). On the transfer of all or part of a membership interest, the capital account of the transferor that is attributable to the transferred membership interest or part thereof shall carry over to the transferee member in accordance with the provisions of Treas.Reg. § 1.704-1(b)(2)(iv)(1).
B.3. Profits. After giving effect to the special allocations set forth in sections B.5 and B.6, profits for any taxable year shall be allocated to the members, first, in proportion to their deficit capital account balances, if any, until the deficits are eliminated, and the remainder, if any, in such manner as to cause, to the extent possible, each member’s capital account balance to equal the amount the member would be distributed under the terms of this agreement other than section 9.02, and under the terms of any profit units granted pursuant to section 3.03, if the company were to sell all its assets for their gross asset value and distribute the net proceeds of the sale to the members.
B.4. Losses. After giving effect to the special allocations set forth in sections B.5 and B.6, losses for any taxable year shall be allocated, first, in such manner as to cause, to the extent possible, each member’s positive capital account balance to equal the amount the member would be distributed under the terms of this agreement other than section 9.02, and under the terms of any profit units granted pursuant to section 3.03, if the company were to sell all its assets for their gross asset value and distribute the net proceeds of the sale to the members, and the remainder, if any, to the members in proportion to their units other than profit units, except that the losses allocated to any member shall not exceed the maximum amount of losses that can be so allocated without causing the member to have an adjusted capital account deficit at the end of any taxable year. In the event some but not all of the members would otherwise have adjusted capital account deficits as a consequence of an allocation of losses, the limitation set forth at the end of the preceding sentence shall be applied on a member-by-member basis so as to allocate the maximum permissible losses to each member under Treas.Reg. § 1.704-1(b)(2)(ii)(d).
B.5. Special Allocations. The following special allocations shall be made in the following order:
- Minimum Gain Chargeback. Notwithstanding any other provision of this Annex B, if there is a net decrease in company minimum gain during any company taxable year, each member shall be specially allocated items of company income and gain for such year (and, if necessary, subsequent years) in accordance with Treas.Reg. § 1.704-2(f). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each member pursuant thereto. This section B.5(a) is intended to comply with the minimum gain chargeback requirement in Treas.Reg. § 1.704‑2(f) and shall be interpreted consistently therewith.
- Member Minimum Gain Chargeback. Notwithstanding any other provision of this agreement except section B.5(a), if there is a net decrease in member nonrecourse debt minimum gain attributable to a member nonrecourse debt during any company taxable year, each member who has a share of the member nonrecourse debt minimum gain attributable to such member nonrecourse debt, determined in accordance with Treas.Reg. § 1.704-2(i)(5), shall be specially allocated items of company income and gain for such year (and, if necessary, subsequent years) in accordance with Treas.Reg. § 1.704‑2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each member pursuant thereto. The items to be so allocated shall be determined in accordance with Treas.Reg. § 1.704-2(i)(4). This section B.5(b) is intended to comply with the minimum gain chargeback requirement in Treas.Reg. § 1.704-2(i)(4) and shall be interpreted consistently therewith.
- Qualified Income Offset. In the event any member unexpectedly receives any adjustments, allocations, or distributions described in Treas.Reg. § 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) that would create an adjusted capital account deficit for such member, items of company income and gain shall be specially allocated to each such member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the adjusted capital account deficit of such member as quickly as possible, provided that an allocation pursuant to this section B.5(c) shall be made if and only to the extent that such member would have an adjusted capital account deficit after all other allocations provided for in this agreement have been tentatively made as if this section B.5(c) were not in the agreement.
- Gross Income Allocation. In the event any member has at the end of any company taxable year a deficit capital account balance that is in excess of the amount the member is obligated to restore or deemed obligated to restore pursuant to Treas.Reg. §§ 1.704-2(g)(1) and 1.704-2(i)(5), each such member shall be specially allocated items of company income and gain in the amount of such excess as quickly as possible, except that an allocation pursuant to this section B.5(d) shall be made if and only to the extent that such member would have a deficit capital account in excess of such amount after all other allocations provided for in this agreement have been tentatively made as if section B.5(c) and this section B.5(d) were not in the agreement.
- Nonrecourse Deductions. Nonrecourse deductions for any taxable year or other period shall be allocated among the members in proportion to their respective percentage interests.
- Member Nonrecourse Deductions. Any member nonrecourse deductions for any taxable year or other period shall be specially allocated to the member who bears the economic risk of loss with respect to the member nonrecourse debt to which such member nonrecourse deductions are attributable in accordance with Treas.Reg. § 1.704-2(i).
- Excess Nonrecourse Liabilities. The excess nonrecourse liabilities of the company shall be allocated among the members in accordance with their respective percentage interests.
- Fractions Rule Compliance. In the event that any member (or other person taxable on the income allocable to a member) is a tax-exempt entity for which the company’s compliance with the “fractions rule” of section 514(c)(9)(E) of the Code and regulations under that section is necessary so as to avoid having income and gain of the company allocable to the member treated as unrelated debt-financed income, the allocations set forth in sections B.4 through B.6 hereof shall be deemed modified to the extent required, if any, to cause the allocations to comply with the fractions rule.
B.6. Curative Allocations. The allocations set forth in section B.5 (the “regulatory allocations”) are intended to comply with certain requirements of Treas.Reg. § 1.704-1(b). Notwithstanding any other provisions of this agreement (other than the regulatory allocations), the regulatory allocations shall be taken into account in allocating profits, losses, and items of income, gain, loss, and deduction among the members so that, to the extent possible, the net amount of such allocations of profits, losses, and other items and the regulatory allocations to each member shall be equal to the net amount that would have been allocated to each such member if the regulatory allocations had not occurred. Notwithstanding the preceding sentence, regulatory allocations relating to (i) nonrecourse deductions shall not be taken into account except to the extent that there has been a reduction in company minimum gain, and (ii) member nonrecourse deductions shall not be taken into account except to the extent that there has been a reduction in member nonrecourse debt minimum gain.
B.7. Tax Allocations: Code § 704(c).
- In accordance with Code § 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the company shall, solely for tax purposes, be allocated among the members so as to take account of any variation between the adjusted basis of such property to the company for federal income tax purposes and its initial gross asset value.
- In the event the gross asset value of any company asset is adjusted pursuant to subsection (2) of the definition of gross asset value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its gross asset value in the same manner as under Code § 704(c) and the Treasury Regulations thereunder.
- Any elections or other decisions relating to allocations pursuant to this section B.7 shall be made by the Managers in any manner that reasonably reflects the purpose and intention of this agreement. Allocations pursuant to this section B.7 are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any member’s capital account or share of profits, losses, other items, or distributions pursuant to any provision of this agreement.
B.8. Miscellaneous Allocation Provisions.
- For purposes of determining the profits, losses, or any other items allocable to any period, profits, losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Management Committee using any permissible method under Code § 706 and the Treasury Regulations promulgated thereunder.
- Except as otherwise provided in this agreement, all items of company income gain, loss, deduction, and any other allocations not otherwise provided for shall be divided among the members in the same proportions as they share profits or losses, as the case may be, for the year.
- Depreciation recapture income (including amounts treated as ordinary income under Code §§ 1245 and 1250 and unrecaptured section 1250 gain as defined in Code § 1(h)(6)) shall, to the extent permitted under applicable Treasury Regulations, be allocated to the members to whom the corresponding amounts of depreciation were allocated.
B.9. Allocations on Dissolution. Notwithstanding any other provision of this agreement to the contrary, in the event of a dissolution of the company, a sale or exchange of all or substantially all of its assets, or a conversion of the company to a corporation, profits and losses, and, to the extent necessary, gross income and gross deductions, for the taxable year that includes such event shall be allocated among the members in such manner as to cause their capital accounts, as closely as possible, to be proportionate to their percentage interests.
B.10. Election of Liquidation Value Safe Harbor. Each member, by executing this agreement, hereby agrees to the following:
- The company is authorized and directed to elect the safe harbor, in accordance with proposed Treas.Reg. § 1.83-3(l) and the proposed revenue procedure thereunder (once such regulations and revenue procedure become effective), under which the fair market value of each interest in the company that is transferred in connection with the performance of services shall be treated as being equal to the liquidation value of that interest (the “safe harbor election”).
- The company and each member (including any person to whom an interest in the company is transferred in connection with the performance of services) agree to comply with all requirements of the safe harbor election with respect to all interests in the company transferred in connection with the performance of services while the safe harbor election remains effective, including the requirement that all relevant federal income tax items be reported consistently with the safe harbor election.
- The effective date of the safe harbor election shall be the earliest permitted date under the applicable regulations and revenue procedure, once those become effective, and the safe harbor election shall continue to apply until such time (if ever) as all members affected by the safe harbor election shall agree to terminate it and the company shall affirmatively terminate it under applicable procedures.
- The tax matters member shall file, with the company’s federal income tax return for the taxable year in which the safe harbor election becomes effective, a document, executed by the tax matters member, stating that the company is electing, on behalf of the company and the members, to have the safe harbor election apply irrevocably with respect to all interests in the company transferred in connection with the performance of services while the safe harbor election is in effect.
- The company shall comply with the applicable record-keeping requirements for the safe harbor election, and the company and the members shall take all other actions, if any, required to comply with the requirements of the safe harbor election as ultimately promulgated, to the extent practicable.
Acceptance of Terms
The services Work Hard PGH, LLC provides to its members or users of its facilities (“You” or “Your”) are subject to the following Terms and Conditions (T&C). Work Hard PGH, LLC reserves the right to update the T&C at any time without notice to You.
There are two types of Work Hard Pittsburgh membership:
- Cooperative Member – Work Hard Pittsburgh, LLC is cooperatively owned. Cooperative Members earn units over time through their participation, service, and cash contribution. Membership in the Work Hard Pittsburgh Co-op is governed by our Operating Agreement. Generally, co-op members have access to value adding services in addition to access to facilities.
- General Member – A General Member of Work Hard Pittsburgh has full access to facilities and site resources. General Members DO NOT earn units of Work Hard Pittsburgh, LLC.
Both types of membership provide 24/7 access to common areas located inside of facilities. Dedicated space is available for additional fees.
Here’s a handy table to help you understand the difference.
|Cooperative Member||General Member|
|24/7 Access to facilities||Y||Y|
|Access to equipment||Y||Y|
|Allowed to purchase dedicated space||Y||Y|
|Access to co-op controlled capital funds||Y||N|
|Priority access to freelance jobs||Y||N|
|Access to member-to-member service exchange||Y||N|
|Allowed to sit on policy shaping committees||Y||N|
|Participation in profit distributions if and when they occur at the discretion of the Management||Y||N|
Dedicated space for your organization can be purchased for an additional fee. Dedicated space provides members with 10’ x 10’ area to be configured permanently for exclusive use. Please see our Operating Agreement for a thorough description of the rules and process that govern the rights listed above.
Your membership or facilities use does not create tenancy, but rather provides You with a prepaid usage license to access the provided amenities on a monthly or casual basis.
Last updated 6/17/2017
Description of Services
Work Hard PGH, LLC may provide You with access to office space, industrial space, warehouse space, workstations, internet services, office equipment, conference space, greenscreens, podcasting studios, and other services (collectively, “Services”). The Services at all times are subject to the T&C.
Fees and Payment
Basic access to Work Hard Pittsburgh, LLC facilities 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 form email@example.com. Upon payment, a receipt will be provided to You electronically. Failure to make an auto payment 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 PGH, LLC. Work Hard PGH, LLC reserves the right to restrict access to variable and consumable services for accounts with outstanding balances.
Facilities and Maintenance
Work Hard PGH, LLC allows You to use facilities for workspace, events, instruction, and meetings. Your are responsible for the following immediately after facilities use:
- Resetting of moved furniture
- Disposal of all trash and recycling
- Removal of trash and recycling to outside dumpsters if indoor trash containers are full
A $25 cleanup fee will be charged to Your account if the above described maintenance is not performed.
No Unlawful or Prohibited Use
You will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Work Hard PGH, LLC’s 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 PGH, LLC 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 the terms and conditions of the T&C 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.
Use of services
You agree that when participating in or using the Services, You will not:
- Use the Services in connection with 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 PGH, LLC 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.
Renewals and Terminations
This Agreement is automatically renewed at the end of each period with consent of each party.
The T&C must be adhered to at all times. Failure to follow T&C can result in non renewal or even early termination of the usage license. Work Hard PGH, LLC reserves the right to terminate any Service at any time, immediately and without notice, if You fail to comply with the T&C. This includes non-payment or violation of rules either written or communicated orally to You. Upon termination of license, Work Hard PGH, LLC will refund any amounts paid for unused periods that remain after deducting any pending charges on a pro-rata basis.
Your 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 PGH, LLC deems necessary that the company 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 PGH, LLC.
Drug, Tobacco, Vaping, & Alcohol Policy
Smoking or vaping is prohibited inside all Work Hard PGH, LLC facilities. Consumption of alcohol is prohibited during normal business hours (8AM – 6PM, Monday through Friday), unless special event exceptions have been made. Event exceptions must be documented in writing.
Use of illegal drugs and possession of illegal substances is prohibited in all Work Hard PGH, LLC facilities. Persons, guest, or team members using Work Hard PGH, LLC facilities are prohibited from access while under the influence of illegal substances.
Violation of Work Hard PGH, LLC’s Tobacco, Vaping, & Alcohol Policy will result in immediate termination of Your access and license.
Guests from outside organizations must adhere to Work Hard PGH, LLC’s Tobacco, Vaping, & Alcohol Policy. Failure to do so will result in immediate notification of their direct supervisor and revoked access to the facility.
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 PGH, LLC 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 PGH, LLC, any analyses, compilations, studies or other documents prepared by Work Hard PGH, LLC 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 PGH, LLC or any participant or user of the Services.
All confidential information remains the sole and exclusive property of Work Hard PGH, LLC or the respective disclosing party. You acknowledge and agree that nothing in this T&C 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 PGH, LLC, 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 PGH, LLC 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 PGH, LLC 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 PGH, LLC 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, 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 PGH, LLC, and even if Work Hard PGH, LLC 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 PGH, LLC 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 PGH, LLC, or any of the Work Hard PGH, LLC officers, directors, 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 PGH, LLC 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 PGH, LLC 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 PGH, LLC 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 PGH, LLC with a copy of Your policy for reference.
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
- 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 firstname.lastname@example.org 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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org. 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 Costs incurred through and up to, the date of cancellation. 8.4 In the event of termination by Client and upon full payment of compensation as provided herein, WHPGH grants to Client such right and title as provided for in Supplements of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination. 8.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
9.1 Waiver. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. 9.2 Notices. All notices to be given hereunder shall be transmitted in writing to the last known represented address of the respective parties, by overnight carrier or return receipt. Notices may be given by facsimile if a confirmation of sending is retained, and by electronic mail, if to the most recent completed communication email used and if a delivery receipt is retained. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt. 9.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party, except that WHPGH may assign this Agreement to any affiliated company provided that the obligations herein are fully assumed. 9.4 Force Majeure. WHPGH shall not be deemed in breach of this Agreement if WHPGH is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of WHPGH or any local, state, federal, national or international law, governmental order or regulation or any other event beyond WHPGH’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, WHPGH shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services. 9.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Pennsylvania without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the Commonwealth of Pennsylvania. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that WHPGH will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that WHPGH shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein. 9.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. 9.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
10. WARRANTIES AND REPRESENTATIONS
10.1 Client. Client represents, warrants and covenants to WHPGH that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
10.2 WHPGH. (a) WHPGH hereby represents, warrants and covenants to Client that WHPGH will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) WHPGH further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of WHPGH and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by WHPGH, WHPGH shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for WHPGH to grant the intellectual property rights provided in this Agreement, and (iii) to the best of WHPGH’s knowledge, the Final Content provided by WHPGH and WHPGH’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Supplements or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of WHPGH shall be void. (c) WHPGH does not represent that any Deliverables or work product are capable of registering as trademarks or patents, and Client is solely responsible to verify any brands or other properties for commercial use in the relevant marketplace. (d) Except for the express representations and warranties stated in this Agreement, WHPGH makes no warranties whatsoever. WHPGH explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.