MEMBERSHIP AGREEMENT
In this Agreement the term “Vogue” refers to Vogue Lounge Inc., a company duly incorporated under the laws of British Columbia with a business address located at 230-8411 Bridgeport Road, Richmond, British Columbia, V6X 1R7 and the term “Member” refers to the undersigned.
y selecting the check-box below, the Member acknowledges that the Member has read, understood, and agreed with all terms and conditions contained in this Agreement and the schedules attached thereto. This Agreement constitutes the entire agreement of the parties and no other agreement or understanding exists between the Member and Vogue. Vogue has made no express or implied warranties or representations to the Member other than those expressly set forth in this Agreement.
WHEREAS:
A. Vogue manages the operations of the Facility.
B. In exchange for the Basic Membership Fee, Members are entitled to access to and use of the Facility as set out herein.
C. Vogue wishes to offer a membership to the Facility to the Member, and the Member wishes to subscribe for a membership to the Facility, on the terms and subject to the conditions set out herein.
THIS AGREEMENT WITNESSES that in consideration of the premises, mutual covenants, and agreements herein set forth, the sufficiency of which is hereby acknowledged, the parties mutually covenant and agree as follows:
1. DEFINITIONS AND INTERPRETATION
(a) For the purposes of this Agreement, except as otherwise expressly provided or as the context otherwise requires, the following terms shall have the following meanings:
(i) “Additional Policy” has the meaning ascribed thereto in Section 8(h);
(ii) “App” means the Vogue Lounge mobile application;
(iii) “Applicable Laws” means any and all codes, statutes, laws, regulations, rules, permits, licenses, orders, standards and directions of any federal, provincial, state, local or other governmental authority, regulatory or administrative body, agency, or board that has legislative authority over the Member from time to time in force which are applicable to the Member.
(iv) “Basic Membership Fee” has the meaning ascribed thereto in subsections 4(a) hereof;
(v) “Basic Services” has the meaning ascribed thereto in Section 2 and “Basic Service” means any one of them;
(vi) “Booking” has the meaning ascribed thereto in Section 3(a);
(vii) “Booking Fee” has the meaning ascribed thereto in Section 3(c);
(viii) “Business Day” means any day which is not a Saturday, Sunday, or statutory holiday in Richmond, British Columbia;
(ix) “Commencement Date” means that date upon which the Member’s registration as a Member of the Facility has been accepted by Vogue in its sole discretion. Vogue is deemed to have accepted the Member’s registration as a Member of the Facility upon Vogue’s provision of the Member’s unique login credentials for the App and Website to the Member.
(x) “Facility” means the Vouge Lounge, a salon and spa facility located at the civic address of 230-8411 Bridgeport Road, Richmond, British Columbia, V6X 1R7 and contains the furnishings listed in Schedule “A” attached hereto as modified by Vogue in its sole discretion from time to time,;
(xi) “Material Breach” has the meaning ascribed thereto in Section 16(a);
(xii) “Licences” has the meaning ascribed thereto in Section 10(d);
(xiii) “Policy Notice” has the meaning ascribed thereto in Section 8(h);
(xiv) “Privacy Policy” means that Privacy Policy attached hereto to as Schedule “C” as amended from time to time in accordance with such Privacy Policy;
(xv) “Services” has the meaning ascribed thereto in Section 8(a);
(xvi) “Slot” has the meaning ascribed thereto in Section 3(a);
(xvii) “Term” has the meaning ascribed thereto in Section 7;
(xviii) “Terms of Use” means those Terms of Use attached hereto as Schedule “B” as amended from time to time in accordance with such Terms of Use;
(xix) “Website” means the Vogue Lounge website located at the following url: www.vougelounge.ca;
(xx) “Work Stations” means the _26_ work stations located in the Facility and “Work Station” means any one of them.
(b) For the purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i) “this Agreement” means this Membership Agreement as it may, from time to time, be supplemented or amended;
(ii) headings are for convenience of reference only and do not form a part of this Agreement, nor are they intended to interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof;
(iii) all references to currency herein are references to Canadian currency, unless otherwise stated;
(iv) any reference to any entity shall include and shall be deemed to be a reference to any entity that is an heir, successor, permitted assign, or personal representative to such entity; and
(v) words importing the masculine gender include the feminine or neuter gender and words importing the singular include the plural and vice versa.
2. SERVICES AND AMENITIES
In exchange for the monthly Basic Membership Fee set out in Section 4(a) hereof, the Member shall be entitled to:
(i) access the Facility;
(ii) access and use the App and Website using the Member’s unique login credentials, which Vogue shall provide to the Member within five (5) Business Days of the Commencement Date;
(iii) subject to Section 3 hereof, make Bookings; and
(iv) attend Members’ only events hosted at the discretion of Vogue from time to time.
(collectively, the “Basic Services”)
3. WORK STATION RENTALS
(a) The Member shall be entitled to reserve, for the Member’s exclusive use, any Work Station for thirty (30) minute time increments (each a “Slot”) each such reservation being a “Booking”. The Member shall make all Bookings by using the App.
(b) The Member shall only be permitted to reserve a single Work Station for the Member’s exclusive use per Slot.
(c) Immediately upon the completion of a Booking, the Member shall pay to Vogue a fee (a “Booking Fee”) in the amount of EIGHT DOLLARS ($8.00), plus goods and service tax, for each Slot reserved by the Member in each Booking by way of automatic bank account withdrawal or credit charge. For example, if in a Booking a Member reserved a Work Station for two Slots, representing a time period of sixty (60) minutes, then the Member would be required to pay to Vogue a Booking Fee equal to SIXTEEN DOLLARS ($16.00), plus goods and service tax.
(d) In the event that the Member does not pay the Booking Fee in accordance with Section 3(c) hereof, the Booking shall immediately be cancelled and the Member shall forfeit the right to exclusively use the Work Station.
(e) At the commencement of each Booking the Member shall scan the QR located at the applicable Work Station.
(f) The Member hereby acknowledges and agrees that if the Member cancels a Booking less than twenty-four (24) hours in advance of that Booking, the Booking Fee shall be absolutely forfeited to Vogue.
(g) The Member hereby acknowledges and agrees that Work Stations are available on a first come first serve basis and that Vogue provides no assurance or guarantee to the Member with respect to the availability of any of the Work Stations.
(h) Vogue reserves the right, in its sole discretion at any time and from time to time, to:
(i) alter or increase or decrease the number of Work Stations available in the Facility for the Member’s use;
(ii) alter or increase or decrease the furnishings located in the Facility and/or at the Work Stations;
(iii) alter the location of the Work Stations within the Facility and the general configuration of the Facility; and
(iv) access the Facility and the Work Stations.
(i) Vogue reserves the right, in its sole discretion at any time and from time to time, to refuse or cancel any Booking placed by the Member on the App for any reason (including after the Member has submitted its Booking), regardless of whether the Booking has been confirmed and the Booking Fee has been paid by the Member. If the Member has already paid the applicable Booking Fee and Booking is cancelled in accordance with this Section 3(i), Vogue will attempt to, within a reasonable time, issue a refund to the Member for the amount that was charged for the cancelled Booking.
4. MEMBERSHIP FEES AND DEPOSIT
(a) Subject to Section 4(d) hereof, the Member shall pay to Vogue a Basic Membership Fee in the amount of TWO HUNDRED DOLLARS ($200.00), plus goods and service tax, each month on the anniversary of the Completion Date for the duration of the Term by way of automatic bank account withdrawal or credit charge for Vogue’s provision of the Basic Services to the Member.
(b) The Basic Membership Fee shall, at the sole discretion of Vogue, be subject to increase no more than once in twelve (12) consecutive months, and prior to the increase in the Basic Membership Fee, Vogue shall provide the Member notice of the proposed increase, which notice shall be delivered to the Member in accordance with subsection 18(a) hereof no later than sixty (60) days prior to the date on which the Basic Membership Fee increases, and the notice of the Basic Membership Fee increase shall set out the amount of the increase and the date upon which the increase will occur.
(c) Vogue shall not increase the Basic Membership Fee, except in accordance with subsection 4(b) hereof, unless as otherwise mutually agreed in writing by Vogue and the Member.
(d) On the Commencement Date the Member shall pay to Vogue:
(i) the amount of FOUR HUNDRED DOLLARS ($400.00), plus goods and service tax, which represents the Basic Membership Fee for the first two (2) months of the Member’s membership to the Facility (the “Initial Fees”); and
(ii) the amount of TWO HUNDRED DOLLARS ($200.00) which represents a deposit (the “Deposit”) that is refundable in accordance with the terms hereof,
by way of automatic bank account withdrawal or credit charge.
5. THE DEPOSIT
(a) If the Member defaults in carrying out any of its obligations under this Agreement Vogue, at its sole option, may deduct from the Deposit the amount incurred by Vogue to sure default without limiting Vogue’s other remedies at law or in equity.
(b) Should all or part of the Deposit be appropriated and lawfully applied by Vogue, the Member shall on demand forthwith pay to Vogue, by way of automatic bank account withdrawal or credit charge, a sufficient amount to restore the Deposit to the amount held by Vogue immediately prior to Vogue’s appropriation or application of the Deposit as aforesaid.
(c) In the event that Vogue terminates this Agreement for cause in accordance with Section 16(a) hereof, the Deposit shall be absolutely forfeited to Vogue and Vogue will be at liberty to pursue additional remedies against the Member, including, without limitation, specific performance and/or damages for breach of this Agreement. The parties hereby agree that the amount of the Deposit constitutes a genuine pre-estimate of the minimum damages suffered by Vogue and Vogue reserves the right to claim for further damages.
(d) In the event that either Vogue or the Member terminates this agreement in accordance with Section 16(d) hereof, then Vogue shall return the Deposit, subject to any applicable deductions pursuant to subsection 5(a) hereof, to the Member within thirty (30) days after the effective date of the termination.
(e) No interest shall be payable to the Member on the Deposit.
6. PAYMENT AUTHORIZATION
(a) The Member hereby authorizes Vogue to charge the Member’s credit card or debit the Member’s bank account, as applicable, for all amounts payable by the Member under this Agreement, including but not limited to, the Basic Membership Fee, the Initial Fees, the Deposit and all Booking Fees, until this Agreement is terminated by either the Member or Vogue in accordance with the terms hereof.
(b) The Member hereby waives any pre-notification requirements and acknowledges and agrees that Vogue will not provide any pre-notification to the Member of any charge or debit charged to the Member’s credit card or bank account, as applicable.
(c) The Member shall provide Vogue written notice, delivered in accordance with Section 18(a) hereof, of any change in the Member’s credit card of bank account information prior to the effective date of such change.
(d) The Member hereby acknowledges that it has certain recourse rights if any charge or debit does not comply with this Agreement, including the right to receive reimbursement for any preauthorized charge or debit that is not authorized or is not consistent with this Agreement. To obtain a form for a reimbursement claim, or for more information on the Member’s recourse rights, the Member can contact its financial institution or visit www.cdnpay.ca.
(e) The Member hereby authorizes Vogue to conduct a credit check on the Member. The Member shall provide in a timely manner all information requested by Vogue for the purpose of conducting such credit check.
7. TERM OF MEMBERSHIP
(a) The membership of the Member shall commence on the Commencement Date and shall terminate on the earlier of:
(i) the date upon which the Member terminates this Agreement in accordance with the terms hereof; or
(ii) the date upon which Vogue terminates this Agreement in accordance with the terms hereof. (the “Term”)
8. USE OF WORK STATIONS AND THE FACILITY
(a) The Member and its employees and agents shall only use the Facility and the Work Stations therein to provide salon and spa services, including hair dressing, manicure and pedicures, make-up services, massage therapy and any other services consented to in writing by Vogue from time to time (collectively, the “Services”) to the Member’s commercial clients or to the Member’s family and friends.
(b) The Member shall only use a Work Station for the duration of that Member’s Booking of that Work Station.
(c) At the conclusion of each Booking the Member shall immediately remove all of the Member’s and its employees, agents and clients’ personal property from the applicable Work Station and the Facility. Vogue reserves the right to remove and dispose of, at the Member’s expense, any of the Member’s and its employees, agents and clients’ personal property from Work Stations and the Facility in the event the Members fails to comply with this paragraph.
(d) The Member shall not allow any pets or animals to enter the Facility and shall ensure that all of the Member’s employees, agents, clients and any other person who performs the Services on the Member’s behalf does not allow any pets or animals into the Facility;
(e) The Member shall not consume and ensure that all of the Member’s employees, agents, clients and any other person who performs the Services on the Member’s behalf not consumer, alcohol or any illicit substances in or around the Facility;
(f) The Member shall not alter, reconfigure or otherwise modify any of the Work Stations, and the furnishings contained therein, or the Facility, and the furnishing contained therein, without first obtaining the prior written consent of Vogue;
(g) The Member shall not use the Facility’s address as its registered and records office address without obtaining Vogue’s prior written consent;
(h) The Member hereby acknowledges and agrees that Vogue reserves the right to implement further policies with respect to the Member’s, and its employees, agents, clients and other persons providing the Services on behalf of the Member’s, use of and access to the Facility and the Work Stations therein (each an “Additional Policy”). Vogue shall deliver notice of the implementation of an Additional Policy (each a “Policy Notice”) to the Member in accordance with Section 18(a) hereof at least five (5) Business Days prior to the effective date of such Additional Policy. Each Policy Notice shall contain a copy of the Additional Policy that will be implemented in accordance with this paragraph. Each Additional Policy implemented in accordance with this paragraph shall be incorporated by reference into this Agreement and shall be binding on the parties hereto.
9. REPRESENTATIONS AND WARRANTIES OF THE MEMBER
The Member herby represents and warrants to and covenants with Vogue as follows:
(a) the Member has due and sufficient right and authority to enter into this Agreement on the terms and conditions set forth in this Agreement and to perform its obligations under this Agreement;
(b) if the Member is a corporation, that it is duly incorporated and is a valid and subsisting corporation in good standing; and
(c) all information provided by the Member to Vogue as required under this Agreement and through the App is true and accurate in all material respects.
10. OBLIGATIONS OF THE MEMBER
At all times during the Term, the Member shall:
(a) pay all amounts payable by the Member pursuant to the terms of this Agreement, including the Basic Membership Fee, the Initial Fees, the Deposit and Booking Fees;
(b) comply with Applicable Laws, and shall cause all of the Member’s employees, agents and any other person who performs the Services on the Member’s behalf to provide the Services in compliance with Applicable Laws;
(c) comply with the terms of the Terms of Use and Privacy Policy; and
(d) at the Member’s own expense, hold and ensure that all of the Member’s employees, agents and any other person who performs the Services on the Member’s behalf also holds or will hold prior to the commencement of that person’s provision of the Services, all required licences, permits, registrations, consents, approvals and government authorizations (collectively, the “Licences”) and maintain at all times during the Term all Licences required to provide the Services.
11. OBLIGATIONS OF VOGUE
At all times during the Term Vogue shall manage the operations of the Facility and provide the Basic Services to the Member.
12. TERMS OF USE AND PRIVACY POLICY
(a) The Member hereby acknowledges and agrees to the terms of the Terms of Use and the Privacy Policy.
(b) The Member hereby acknowledges and agrees that the Member’s breach of any of the terms contained in either of the Terms of Use or the Privacy Policy shall constitute a breach by the Member of the terms of this Agreement.
13. INDEMNIFICATION
(a) Vogue and its directors, officers, employees, successors or assigns are not responsible or liable for any loss, injury (including death), damage or expense incurred by the Member or its directors, officers, employees, successors, agents, clients and assigns, caused by or resulting from, directly or indirectly:
(i) the Member and its directors, officers, employees, successors, agents and assigns or any third party so authorized by the Member’s provision of the Services in the Facility;
(ii) the Member and its directors, officers, employees, successors, agents and assigns or any third party so authorized by the Member’s access to and use of the Facility, the Work Stations, the App or the Website; and
(iii) any discontinuance, suspension, or interruption of Vogue’s performance of its obligations under this Agreement,
unless the loss, injury (including death), damage or expense is directly attributable to the gross negligence or willful misconduct of Vogue, its directors, officers, employees, successors or assigns provided, however, Vogue, its directors, officers, employees, successors or assigns are not responsible for any loss of profit, loss of revenues or other economic loss even if the loss is directly attributable to the gross negligence or willful misconduct of Vogue, its directors, officers, employees, successors or assigns.
(b) The Member shall hereby, at the sole expense of the Member, indemnify and hold harmless Vogue and its directors, officers, employees, successors and assigns from and against any and all claims, losses, suits, actions, judgments, demands, debts, accounts, damages, costs, penalties and expenses (including all legal fees and disbursements) that Vogue may sustain or incur by reason of:
(i) any breach of this Agreement by the Member;
(ii) access to and use of the Facility, the Work Stations, the App or the Website by the Member and its directors, officers, employees, successors, agents, clients and assigns or any third party so authorized by the Member;
(iii) the Member and its directors, officers, employees, successors, agents and assigns or any third party so authorized by the Member’s provision of the Services in the Facility;
(iv) any taxes, interest, penalties or demands which may be made by Canada Revenue Agency or other statutory body with jurisdiction against Vogue for failure to make statutory deductions from invoices submitted by the Member or to make any remittances for or on behalf of the Member or its employees or persons performing services for the Member, as applicable, including but not limited to, charges, taxes, penalties or demands related to Income Tax, Workers’ Compensation, Employment Insurance and Canada Pension Plan; and
(v) any failure by the Member to make any and all payments and remittances required by law as an independent contractor hereunder.
(c) In no way limiting Section 13(b) above, the Member shall indemnify and hold harmless Vogue and its directors, officers, employees, successors and assigns from all claims, losses, suits, actions, judgments, demands, debts, accounts, damages, costs, penalties, expenses (including all legal fees and disbursements) or injury (including death) suffered or incurred by the Member or its directors, officers, employees, successors, agents, clients and assigns or any third party caused by or resulting from the use of the Facility, Work Stations, App or Website except to the extent that any of the foregoing are directly attributable to the gross negligence or willful misconduct of Vogue or its directors, officers, employees, successors and assigns.
14. INSURANCE
(a) At all times throughout the Term, the Member shall at its own expense:
(i) purchase and maintain Commercial General Liability insurance with respect to its use of and provision of the Services in the Facility. The limits of liability shall be no less than TWO MILLION DOLLARS ($2,000,000.00) for bodily injury, personal injury or death to any person, and for property damage per occurrence; and
(ii) purchase and maintain any additional insurance which the Member is required by law to carry, or which the Member considers necessary to cover risks not otherwise covered by insurance specified in this Agreement in its sole discretion.
(b) The Member must provide Vogue with evidence of all required insurance as follows:
(i) within ten (10) Business Days of the Commencement Date, copies of the required insurance policies;
(ii) if any required insurance polic(ies) expire before the end of the Term, the Member must provide to Vogue within ten (10) days of expiration, evidence satisfactory to Vogue, as determined by Vogue in its sole discretion, of new or renewal polic(ies) of all expired insurance; and
(iii) despite subsections 14(b)(i)and 14(b)(ii) above, if requested by Vogue at any time, the Member must provide to the Vogue copies of the required insurance policies.
15. RELATIONSHIP BETWEEN PARTIES
(a) The parties acknowledge and agree that this Agreement is and is intended to be a contract for services and does not create a partnership, employment, joint venture or principal/agent relationship between them. The Member is an independent contractor and does not have a partnership, employment, joint venture or principal/agent relationship of any kind with Vogue. Nothing in this Agreement or otherwise creates an employment or other relationship between Vogue and any employee of, agent of, or person performing services for, the Member.
(b) As an independent contractor, the Member shall be responsible for making any and all business income taxes, other business taxes, and all governmental payments and remittances required by law including, but not limited to, all remittances under the Income Tax Act and the Workers Compensation Act, and Vogue shall not be obligated or responsible to deduct any such amount from any payments made to the Member under this Agreement. Upon request by Vogue, the Member shall provide Vogue with proof of payment and compliance with this paragraph.
(c) Nothing herein contained shall constitute either party as a partner of or agent for the other for any purpose, and neither part shall have the right to incur liabilities or obligations for or on behalf of the other, except as expressly provided herein.
16. TERMINATION
(a) In the event that the Member breaches one or more of its material duties or obligations hereunder (each a “Material Breach”), and such Material Breach has not been cured within five (5) Business Days of the date that the Member receives notice delivered in accordance with Section 18(a) hereof from Vogue advising of said Material Breach, Vogue may terminate this Agreement forthwith for cause by giving notice delivered in accordance with Section 18(a) hereof of such termination to the Member.
(b) Without limiting the generality of the foregoing, each of the following events shall be deemed to be a Material Breach by the Member the occurrence of which shall grant Vogue the right to terminate this Agreement in accordance with section 16(a) hereof:
(i) Vogue, in its sole discretion, determines that the result of the credit check conducted on the Member pursuant to Section 6(e) hereof is unsatisfactory;
(ii) the Member breaches its obligations under Section 8 hereof;
(iii) the Member breaches its obligations under Section 10 hereof;
(iv) the Member breaches its obligations under Section 14 hereof;
(v) the Member breaches its obligations under Section 15 hereof; or
(vi) the Member commits or threatens to commit an act of bankruptcy, makes a general assignment for the benefit of its creditors, becomes insolvent, or otherwise commences action for its winding up, liquidation, or dissolution under any applicable law.
(c) Termination or cancellation of this Agreement will not affect any rights or duties arising under this Agreement with respect to those provisions intended to survive and remain in effect after the termination or cancellation of this Agreement.
(d) Notwithstanding anything to the contrary herein, either party may terminate this Agreement by delivering notice in accordance with Section 18(a) hereof to the other at least thirty (30) days prior to the effective date of such termination and such notice must specify the effective date of the termination of this Agreement.
(e) Notwithstanding the termination of this Agreement for any reason, the Member shall be responsible for the payment of any and all fees, charges and expenses owed to Vogue for the provision of the Basic Services, including the Basic Membership Fee and Booking Fees, in accordance herewith to the effective date of the termination.
(f) Within thirty (30) days of the effective date of the termination of this Agreement, the Member, if using the Facility’s address as the Member’s registered and records office address in accordance with Section 8(g) hereof, shall remove the Facility’s address as its registered and records office address.
17. FORCE MAJEURE
(a) Notwithstanding any other provision contained herein, in the event that either Vogue or the Member should be delayed, hindered or prevented from the performance of any act required hereunder by reason of any unavoidable delay, including strikes, lockouts, unavailability of materials, inclement weather, acts of God, pandemic, government mandated shutdown or closure, or any other cause beyond its reasonable care and control, but not including insolvency or lack of funds, then performance of such act shall be postponed for a period of time equivalent to the time lost by reason of such delay.
(b) The provisions of this Section 17 shall not under any circumstances operate to excuse the Member from prompt payment of the Basic Membership Fee, Initial Fees, the Deposit, Booking Fees and/or any other charges payable under this Agreement.
18. GENERAL
(a) Any notice or other written communication which must be given or sent under this Agreement shall be provided as follows:
(i) to Vogue, at 230-8411 Bridgeport Road, Richmond, British Columbia, V6X 1R7 or through the App; and
(ii) to the Member, through the App or by e-mail sent to the e-mail address provided by the Member or at other such e-mail address(es) as the Member may indicate in writing from time to time by delivering notice of the same in accordance herewith.
(b) If the Member comprises more than one person, their obligations under this Agreement shall be joint and several.
(c) This Agreement may not be assigned by the Member without the prior written consent of Vogue.
(d) The parties hereto agree to execute and deliver such further and other documents and perform and cause to be performed such further acts and things as may be necessary or desirable in order to give full effect to this Agreement and every part thereof.
(e) Each provision of this Agreement shall be severable, and if any provision hereof is illegal or invalid, such illegality or invalidity shall not affect the validity of the remainder of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each of which may be transmitted electronically, with the same effect as if all parties hereto had signed the same document, and all counterparts shall be construed together and shall constitute one and the same agreement.
(g) This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.
(h) Time is of the essence of this Agreement.
(i) Subject to the restrictions on assignment herein contained, this Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns.
(j) The Schedules attached hereto are incorporated by reference into this Agreement.
☑ I hereby acknowledge and agree to all of the terms and conditions contained in this Agreement and in the schedules attached thereto.