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LEGAL RESOURCES.

LEGAL RESOURCES

Privacy Policy

1.Our Privacy Policy

This Privacy Policy governs the collection, storage, use and dissemination by us of any Personal Information (as defined in the Privacy Act 1988 (Cth) (the Privacy Act)) that you provide to AnySpaces Australia Pty Ltd (ABN 32 621 947 528) trading as AnySpaces (us/we). We are bound by Australian privacy laws and the Australian Privacy Principles, which are contained in Schedule 1 of the Privacy Act.

2.Consent

By your use of the AnySpaces software platforms and offerings or your use of www.anyspaces.com.au (the Platform) you consent to the collection, storage, use and dissemination of your Personal Information in accordance with this Privacy Policy and as otherwise permitted by the Privacy Act.

3.Personal Information

(a)   Identifiable

We collect Personal Information from you including names, e-mail addresses, mobile telephone numbers, physical addresses, information and credit card or debit car information, information regarding your activity on the Platform.

(b)    Non-Identifiable

We may collect and use certain information, which by itself is not capable of identifying you. This information may include your gender, date of birth, the identity of your Internet browser, the identity of your smartphone or tablet device, the type of operating system you use, your IP address and the domain name of your Internet service provider and/or mobile phone carrier to optimise our provision of goods and/or services to you. We may also acquire information from other sources, such as from other companies and from other public documents.

4.Your Access to the App

The Personal Information we collect from you enables us to operate the Platform. If you do not provide us with this Personal Information, we may not be able to provide you with full access to the Platform, and/or supply you with the goods available on the Platform.

5.Prohibitions on Personal Information Usage

We will keep all Personal Information we receive from you confidential and will not sell or knowingly divulge such Personal Information to any third parties, unless:

  • (a)  we are required to share your Personal Information with a third party in order to comply with the law or to comply with a court order or subpoena;
  • (b) we receive a claim from a third party that you have breached any law;
  • (c) we are required to provide it to our Related Entities;
  • (d) it is necessary to provide it to our third party service providers and contractors; or
  • (e) it is necessary to protect the safety and security of you, our Platform.

6.Personal Information Usage

The Personal Information collected by us will be used for providing you with information and for the provisions of the services and/or goods that we provide. We use the Personal Information collected to provide our services and/or goods to you in the following ways:

  • to enable us to fulfil any orders of goods that you purchase from us;
  • to enable us to verify your identity;
  • to enable us to send you notifications regarding our services or goods;
  • to enable us to provide you with personalised content;
  • to enable us to send you email announcements, sms messages, or updates regarding our services, goods, events or advertisements;
  • to enable us to respond to any comments, questions or requests from you; and/or
  • to enable us to carry out any other purpose for which the information was collected.

7.Keeping Personal Information Secure

We strive to ensure the security, integrity and privacy of your Personal Information and will use all reasonable endeavours to keep your Personal Information in a secure environment. However, such security cannot be guaranteed due to the nature of the internet. These measures are designed to assist in Personal Information not being accessed by unauthorised personnel, lost or misused. If you reasonably believe that there has been an unauthorised use or disclosure of your Personal Information please contact us on 1300 88 00 83 or email info@anyspaces.com.

8.Changing or Deleting Personal Information

(a) The Personal Information we hold about you (such as your name and email address) is kept so that we may correctly identify you. Please let us know if this Personal Information is not accurate, complete or up-to-date.

(b) You can update this Personal Information at any time by either emailing or calling us or by updating your account on the Platform directly. Alternatively, upon your request, we  will correct or delete inaccurate or incomplete Personal Information we hold about  you. You have a right to get a copy of the Personal Information we hold about you. To request access or to change or delete certain Personal Information, please contact us on 1300 88 00 83 or email info@anyspaces.com.

9.Cookies 

Cookies are pieces of information that the Website transfers to your computer’s memory or hard disk, for record-keeping. We use cookies only to the limited extent of recognising you when you use the Platform, to track usage patterns and deliver customised content to you. However, this information is not linked to any Personal Information that you may provide and cannot be used to identify you. If you do not want information collected through Cookies, most internet browsers allow you to deny or accept Cookies.

10.Disputes 

If you reasonably believe that there has been an unauthorised disclosure of your Personal Information, please contact us on 1300 88 00 83 or email info@anyspaces.com

 11.Changes to Privacy Policy

If our policy on information collection or usage changes, we will update this Privacy Policy accordingly. We reserve the right to change this Privacy Policy at any time without notice to you.

Terms and Conditions

By downloading or using the app, these terms will automatically apply to you – you should make sure therefore that you read them carefully before using the app:

  • We are offering you this app to use for your own personal use without cost, but you should be aware that you cannot send it on to anyone else, and you’re not allowed to copy, or modify the app, any part of the app, or our trademarks in any way.
  • You’re not allowed to attempt to extract the source code of the app, and you also shouldn’t try to translate the app into other languages, or make derivative versions. The app itself, and all the trade marks, copyright, database rights and other intellectual property rights related to it, still belong to AnySpaces.
  • At the top of these terms and conditions you will be able to find links to our website where we set out our Privacy Policy and the Termination Policy for users of the App.
  • AnySpaces is committed to ensuring that the app is as useful and efficient as possible. For that reason, we reserve the right to make changes to the app or to charge for its services, at any time and for any reason. We will never charge you for the app or its services without making it very clear to you exactly what you’re paying for.

Email Disclaimer Agreement

Emails and any attachments are confidential and are intended solely for the recipient. If you are not the intended recipient, you must not disclose or use the information contained in it. If you have received this email in error, please tell us immediately by return email and delete the original transmission and its contents from your computer. The contents and any attachments are the opinion of the sender and not necessarily that of any of the AnySpaces entities. Any use, dissemination, forwarding, printing or copying of this email and any file attachments is strictly prohibited without the permission of the sender. The material in this email is protected by Australian Copyright Legislation and in copyright legislation in other countries.

WARNING: We cannot guarantee e-mails are virus-free. You should scan attachments with the latest virus scan before opening. We will not be liable for any loss, cost or damage of any kind whatsoever caused by any receipt or use of this e-mail and attachments.

Booker’s Agreement

TERMS AND CONDITIONS

This Agreement is between the Licensor, the Licensee and the Nominated Representative.

Recitals

(A) The Licensor has been licensed the right to sub-license the Licensed Area from the Centre Owner or its representative (Head Licensor), under a Head Licence.

(B) The Licensor is in the business of facilitating the allocation of promotional space within the Centre.

(C) The Licensee wishes to be allotted promotional space in the Centre on the terms and conditions set out in this Agreement.

1. LICENCE

(A) The Licensor grants to the Licensee, and the Licensee accepts, the right to use the Licenced Area within the Centre for the duration of the Term, in accordance with the terms and conditions set out in this Licence Agreement (the Agreement).

(B) The Licensor, the Licensee and the Nominated Representative, if applicable (the Parties) acknowledge and agree that this Agreement is not intended to be implied, construed or in any other way considered to constitute a retail lease. The Parties agree to make any amendments, or enter into any documents, required to give effect to this clause.

(C) The Licensee agrees and acknowledges that the licence outlined in clause 1(a) (the Licence) is conditional upon the owner of the Centre (Centre Owner) consenting to the licence to the Licensee. (D) The Licensee agrees and acknowledges that this Licence is subject to the rights and obligations contained in the Head Licence, and that the Licensee must not do – or omit to do – anything which causes the Licensor to be in breach of the Head Licence.

2. TERM

The Term:

(A) commences on the Commencement Date;

(B) continues until the earlier of:

  1. the Expiry Date; or
  2. it is terminated in accordance with clause 6; or
  3. one day prior to the termination or expiry of the Head Licence.

3. LICENSED AREA

(A) The Licensee may use the Licensed Area for the purposes of promoting its products and services that have been approved by the Licensor and/or the Centre Owner.

(B) The Licensee accepts the Licensed Area in the condition that it is in at the commencement of the Licence, and subject to all faults and/or defects.

(C) The Licensee shall only be entitled to use the Licensed Area as a promotional trade stand, and the Licensee agrees that it must, at all times, comply with:

  1. the specifications outlined in Appendix A;
  2. the rules of the Centre; and
  3. the Licensor’s and/or Centre Owner’s directions from time to time. This includes changing or moving the site allocated to the Licensee, to an alternate commensurate space.

4. LICENSEE OBLIGATIONS

The Licensee acknowledges and agrees that it must, at all times:

(A) keep the Licensed Area in a clean, tidy, secure and otherwise satisfactory appearance during the Term;

(B) comply with the directions and instructions of the Licensor and/or the Centre Owner;

(C) undertake its business activities in the Licensed Area in a professional manner that is consistent with the reputation of the Centre;

(D) comply with the rules of the Centre at all times and ensure that it does not: a. interfere with the operation of any businesses within the Centre; and/or b. offend, cause a nuisance or annoy any other tenant or customer of the Centre,

(E) comply with all applicable legislation and the directions of all authorities;

(F) upon request by the Licensor, complete a booking form;

(G) upon request by the Licensor, complete any certificates required under legislation;

(H) comply with the promoter guidelines, which are displayed on  https://www.anyspaces.com/cms/booker-guidelines/

(I) provide current, accurate and up to date information to the Licensor and/or the Centre Owner; and (J) take out and maintain, for the duration of the Term, a public liability insurance policy in the amount of $20,000,000 with a reputable insurer provider. The Licensee agrees to give the Licensor a copy of the insurance certificate, confirming this, prior to the Commencement Date or as requested by the Licensor from time to time.

5. FEES AND PAYMENTS

(A) Deposit: The Licensor may request that the Licensee provide a deposit (the Deposit) prior to the Commencement Date, in which event, the Licensee:

  1. agrees to pay the Deposit; and
  2. acknowledges that the Deposit is nonrefundable.

(B) License Fee: The Licensee agrees to pay the Licensor the Licence Fee in consideration for the Licence. The Licensee acknowledges that there may be, depending on the Centre, additional fees payable by the Licensee, in which case:

  1. such fees will be disclosed to the Licensee on the front page of this Agreement; and
  2. the Licensee agrees to pay such fees to the Licensor, in addition to the Licence Fee.

(C) All amounts payable under this Agreement are in Australian Dollars and, unless otherwise stated, exclude GST. The Licensee acknowledges and agrees that they will be liable to pay GST in relation to the Licence Fee and/or the Facilities Fee (collectively, the Fees).

(D) Payment:

  1. The Licensee will, after receiving an itemised invoice from the Licensor (the Invoice), pay the Licensor the Fees by the due date set out in the Invoice, via electronic funds transfer.
  2. In the event that the Licensee wishes to pay the Fees using a debit or credit card, then they acknowledge and agree that a further surcharge will be payable.

(E) Application of Payments: The Licensor may, in its absolute discretion, apply or set off any payments received from the Licensee towards any past indebtedness of the Licensee to the Licensor. (F) Late Payments: In the event that the Licensee fails to pay an amount that is due under this Agreement by the date specified, then the Licensor acknowledges and agrees:

  1. that the Licensor will be entitled to claim interest from the Licensee at the rate of 10% per annum, calculated daily between the date when the payment was due and the date when it is received by the Licensor in cleared funds; and b. that the Licensee may be liable to pay the Licensor an administration cost of 150AUD per week; and/or
  2. that the Licensor may terminate the Licence in accordance with clause 6.

(G) Date Change Fees: In the event that the Licensee wishes to vary the dates of the booking, they agree to pay the Licensor a date change fee of 150AUD, subject to clause 10(H).

6. TERMINATION

(A) The Licensor

  1. If the Licensee fails to comply with its obligations under this Agreement, then the Licensor may terminate this Licence, with immediate effect. If this occurs, then the Licensee agrees that they will be liable for part or whole of the Fees, as specified in clause 6(B)., depending of the timing of such termination.
  2. The Licensor may terminate this Agreement at any time in its absolute discretion, without liability to the Licensee.

(B) The Licensee: In the event that the Licensee wishes to terminate this Agreement and/or the Licence, then they must notify the Licensor in writing and they agree that they will be liable to pay the Licensor one hundred percent (100%) of the Fees, unless otherwise agreed by the Licensor in writing.

(C) Upon Termination or Expiry Date, the Licensee agrees and acknowledges that, upon the expiration or termination of the Licence, the Licensee must immediately:

  1. return the Licensed Area to the condition that it was prior to the commencement of the Licence, including but not limited to removing all of the Licensee’s items and ensuring the Licensed Area is clean and tidy and free from rubbish;
  2. pay the Licensor and/or the Centre Owner the cost of repairing any damage caused to the Licensed Area and/or the Centre by the Licensee, its employees, agents, customers, invitees, representatives and/or directors; and
  3. otherwise comply with the directions of the Licensor and/or Centre Owner.

7. INTELLECTUAL PROPERTY

(A) Nothing in this Agreement is intended to be construed as granting the Licensee any goodwill or ownership rights in the Intellectual property of the Licensor (the Intellectual Property).

(B) The Intellectual Property is the exclusive property of the Licensor and as such all goodwill accrued in relation to the Intellectual Property accrues to the exclusive benefit of the Licensor.

(C) The Licensee shall keep the contents of this Agreement confidential and not disclose it to a third party without the Licensor’s consent.

(D) The Licensee must not mislead or deceive, or make disparaging remarks to, the public or any other entity in relation to the Licensor, and in this regard the Licensee agrees to indemnify the Licensor in relation to any claims, demands, proceedings, losses, damages and expenses which the Licensor may sustain as a result of a breach of this clause.

8. ASSIGNMENT

(A) The Licensor may, in its absolute discretion, undertake an assignment, novation, merger or acquisition to or with a third party in relation to all or any part of its rights, interest, obligations and/or liabilities under this Agreement.

(B) The Licensee you may not assign its obligations under this Agreement to a third party without the Licensor’s prior express written consent, in its absolute discretion.

9. GUARANTEE, LIABILITY, WARRANTIES & INDEMNITIES

(A) Guarantee: The Licensee and the Nominated Representative unconditionally and irrevocably guarantee to the Licensor the prompt performance of all obligations which apply to the Licensee under this Agreement, irrespective of whether the Licensor has first sought to enforce such obligations with the Licensee.

  1. The Licensor may recover monies from the Nominated Representative which the Licensee owes the Licensor as a liquidated debt.
  2. The liability of the Nominated Representative is not discharged, impaired or otherwise affected by any amendment, variation, waiver in relation to, breach, insolvency event or unenforceability of provisions of the Licensee, the Nominated Representative, the Licensor or this Agreement.

(B) Limitation of Warranties and Liability

  1. The provisions of various statutes, rules, and regulations in force from time to time, which apply to this Agreement, may not, or may not except to a limited extent, be varied, modified or excluded. To the extent that it is not lawful to vary, modify or exclude them they shall, but only to the extent required by law, form part of this Agreement.
  2. This Agreement contains certain express terms and warranties. To the extent permitted by law, there are no other terms, warranties or conditions, whether statutory, express, implied, collateral or otherwise, and such terms, warranties or conditions are hereby expressly excluded to the extent permitted by law.
  3. In no event shall the Licensor or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, be liable to the Licensee or anyone claiming under or through the Licensee, for any punitive, exemplary, incidental, indirect, or special damages, or consequential loss, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or error in information (whether negligent or not) supplied before or after the date of this Agreement in connection with its subject matter, whether based on contract, tort (including but without limitation negligence), or any other legal or equitable grounds, even if the Party knew or ought to have known of the possibility of such damages or consequential loss. ‘Consequential loss’ shall include but not be limited to loss or profits, interest revenue, use, or goodwill (or similar financial loss), loss of data, business interruption, or payments made or due to any third party. d. The Licensee hereby releases and forever discharges the Licensor from and against all liability, claims, losses or damages arising in relation to thee Licensor’s breach of this Agreement.
  4. Any liability of the Licensor or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, for and all losses including without limitation, causes of action and claims based upon breach of contract, tort (including but not limited to negligence), breach of warranty, or any other legal or equitable grounds, under, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or for error of information supplied before or after the date of this agreement in connection with its subject matter, shall not exceed in total the amount of fees paid to the Licensor by the Licensee during the consecutive twelve month period immediately preceding the occurrence of the first such event giving rise to such liability.

(C) Guarantee and Indemnity: The Licensee and the Nominated Representative agree to indemnify the Licensor and its agents, directors, and employees from all claims, demands, losses, damages, proceedings, compensation, costs, charges, expenses and liabilities:

  1. which may arise in respect of any accident, loss or damage to property or death of or injury to any person of whatever nature or kind in relation to the Licensed Area and/or the Centre, including caused by any person or by the Licensee;
  2. for which the Licensee or Nominated Representative may be or become liable whether during or after the Term in respect of or directly or indirectly arising from any loss, damage or injury caused by the neglect or default of the Licensor or its agents, employees, contractors or directors to fully, duly, punctually and properly to pay, observe and perform any of its obligations, covenants, terms and conditions contained in this Agreement;
  3. arising from the Licensee’s breach of this Agreement; and/or
  4. arising from, or in connection with, the Licensee’s use and/or occupation of the Licensed Area and/or Centre.

10. GENERAL PROVISIONS

(A) Waiver: The Parties agree that a failure by a Party to enforce any provisions of this Agreement shall not operate as a waiver of that Party’s rights in relation to enforcement of those provisions.

(B) Notices: Unless otherwise specified in the Agreement, all notices, requests, demands, and other communications (other than routine operational or billing communications) required or permitted hereunder shall be in writing.

(C) Severability: If anything in this Agreement is deemed to be unenforceable, illegal or void, then it is severed and leaves intact all other non-severable parts of this Agreement, which remain in full force. (D) Force Majeure: The Licensor shall not be in default of this Agreement due to any failure or delay in the performance of any obligations if that failure or delay is due to any cause which is beyond the reasonable control of the Licensor and furthermore is not due to the Licensor’s fault or negligence, which causes shall include, without limitation: storms, floods, other acts of nature, fires, explosions, epidemics, pandemics, riots, war or civil disturbance, strikes or other labour unrests, embargoes and other governmental actions or regulations that would prohibit the Licensor from performing its obligations under this Agreement.

(E) Governing Law

  1. This Agreement will be governed by and construed in accordance with the laws from time to time in force in the state of New South Wales and both Parties submit to the nonexclusive jurisdiction of the courts of that state.
  2. The Parties agree that this Agreement will be amended in the event that any laws are changed or introduced which, in the opinion of the Parties or its solicitors, renders the Agreement unenforceable, illegal or void.

(F) Survival of Clauses upon Termination: The expiration or termination of this Agreement does not operate to terminate or extinguish any of the continuing obligations under this Agreement and those obligations remain in full force and effect and are binding upon the Parties.

(G) Time of the Essence: Time is of the essence in this Agreement unless it is agreed to otherwise by the Parties.

(H) Variation

  1. In the event that either Party wishes to vary the terms of the Licence, they must notify the other Party in writing.
  2. The Licensor may vary any term of the Licence at any time in their absolute discretion.
  3. If the Licensee requests a variation to this Agreement, the Licensor will be entitled to either:
  4. confirm the variation, in which event the Licensee acknowledges that different Fees may be payable (including an administrative fee of 150AUD); or
  5. terminate the Licence, in which event the Licensor shall not be liable in any way to the Licensee and the Licensee be liable for part or whole of the Fees, as specified in clause 6(b), depending of the timing of such termination.

(I)Counterparts: This Agreement may be executed in any number of counterparts, including by way of facsimile, or, if agreed to by the Parties, email, each of which constitutes an original. Both Parties acknowledge that the counterparts together are one and the same agreement

APPENDIX A: PROMOTIONAL TRADE STAND INFORMATION

The Licensee agrees to comply with the following specifications and/or obligations in relation to the promotional trade stand (the Stand):

  1. The provision of the Stand is the sole responsibility of the Licensee.
  2. The final design and construction of the Stand is subject to the Licensor’s approval and/or the event organiser. If any changes are required to be made to the Stand, then the Licensee shall carry these out, at its own cost, prior to the Commencement Date.
  3. Any alterations to the Stand are subject to the Licensor’s prior written approval.
  4. The Stand must be professionally branded with the Licensee’s own trademarks and/or trade names and signs that are deemed by the Licensor as professional.
  5. The Stand must be constructed of non-combustible materials and carry a certification from the proper government, semi-government or acceptable authority in the appropriate form verifying that status. The Licensee may be requested to provide the Licensor with a copy of the said fire certificate prior to the Commencement Date. Should the Licensee fail to produce a valid fire certificate in accordance with this paragraph 1.5 of Appendix A, then the Licensor reserves the right to terminate this Agreement and cancel the booking with immediate effect and claim (or retain) the full Licence Fees payable by the Licensee.
  6. The Stand must be in accordance with the dimensions advised to the Customer by the Licensor, but in any event must not exceed the dimensions of the specified site.
  7. Any electrical work connected with the Stand shall comply with all applicable Australian electrical standards and be approved by an appropriately certified and qualified electrician. The Licensee may be requested to provide the Licensor with a certification from such an electrician verifying that status prior to the Commencement Date. Should the Customer fail to produce that certificate in accordance with this paragraph 1.7 of Appendix A, then the Licensor reserves the right to terminate this Agreement and cancel the booking with immediate effect, and claim (or retain) the full Licence Fees payable by the Licensee.
  8. The Licensee agrees to staff the Stand at all times during the opening hours of the Venue, by suitably qualified and presentable personnel. The Licensee is permitted two personnel only to work on the Stand, unless otherwise agreed in writing. Where the Licensee’s personnel are not suitably attired and/or do not behave in a responsible manner, then the Licensor and/or the Venue organisers reserve the right to expel the Licensee’s personnel from the event. The Licensee shall at all Licensee also acknowledges and accepts that the event organiser may also issue rules and guidelines that must be adhered to by all Stand holders, and the Licensee hereby agrees to abide by those rules and guidelines.
  9. Where the Licensee’s Stand involves the sale, supply and/or promotion of food and/or drink, then the Licensee must also provide a certificate from the Department of Health or other appropriate government authority in the appropriate form verifying that government standards are being met. Where the Licensee fails to produce such a certificate in accordance with this paragraph 1.9 of Appendix A, then the Licensor reserves the right to terminate this Agreement and cancel the booking with immediate effect, and claim (or retain) the full Licensee Fees payable by the Licensee.
  10. The Licensee also agrees to provide the Licensor with a suitable digital image of the Licensee’s proposed Stand no less than three (3) days prior to the Commencement Date. Where the Licensor reasonably considers that the design of the Licensee’s Stand is inappropriate for any reason, then the Licensee shall amend/alter their promotional trade stand accordingly within one (1) day of such notice.
  11. At the end of the event the Licensee agrees to remove its Stand in accordance with the Licensor and/or the event organiser’s instructions and must ensure that the Licensed Area of the Stand is clean and returned to its original condition. Where the Licensee fails to do so, then the Licensee shall be liable to pay additional Licence Fees as advised by Licensor and/or the event organiser.
  12. The Licensor reserves the right to amend the above specifications and/or obligations upon giving the Licensee reasonable notice.  This includes changing or moving the site allocated to the Licensee, to an alternate commensurate space.

Termination Policy

The Licensor (AnySpaces):

If the Licensee fails to comply with its obligations under this Agreement, then the Licensor may terminate the Licence, with immediate effect. If this occurs, then the Licensee agrees that they will be liable for the whole of the Licence and Facilities Fees, unless otherwise agreed by the Licensor in writing.

The Licensor may terminate this Agreement at any time in its absolute discretion, without liability to the Licensee.

The Licensee (the Booker):

In the event that the Licensee wishes to terminate this Agreement and/or the Licence, then they must notify the Licensor in writing and they agree that they will be liable to pay the Licensor one hundred percent (100%) of the Fees, unless otherwise agreed by the Licensor in writing.

Upon Termination or Expiry Date the Licensee agrees and acknowledges that, upon the expiration or termination of the Licence, the Licensee must immediately do the following:

  • return the Licensed Area to the condition that it was prior to the commencement of the Licence, including but not limited to removing all of the Licensee’s items and ensuring the Licensed Area is clean and tidy and free from rubbish;
  • pay the Licensor and/or the Head Licensor the cost of repairing any damage caused to the Licensed Area and/or the Licensed Area by the Licensee, its employees, agents, customers, invitees, representatives and/or directors; and
  • otherwise comply with the directions of the Licensor and Head Licensor.

Date Change Fees:

In the event that the Licensee wishes to vary the dates of the booking, they agree to pay the Licensor a date change fee of 150AUD, subject to clause 10(H) of the License document.

Lister’s Agreement

PARTIES

  1. For Australian listings – ANYSPACES AUSTRALIA  PTY LTD (32 621 947 528) For New Zealand listings ANYSPACES NZ LIMITED (94294047820906) (anyspaces.com); 

and

  1. The legal entity you have entered on sign up (Licensor).

RECITALS

  1. anyspaces.com is in the business of facilitating the allocation of Licensed Areas within the Venue.
  2. The Licensor is the owner, or an authorised nominee of the owner, of the Venue.
  3. The Licensor has agreed to engage anyspaces.com to allocate the Licenced Areas on behalf of the Licensor to Licensees in accordance with the terms and conditions of this Agreement and the Bookers Agreement.
  4. In consideration for anyspaces.com allocating the Licenced Areas to Licensees, the Licensor agrees to pay anyspaces.com the Service Fee.

OPERATIVE PROVISIONS

1. Definitions And Interpretation

1.1 Recitals

The Parties agree that:

  1. the Recitals are materially true and correct; and 
  2. that the Recitals and Schedules are part of the operative provisions of this Agreement.

1.2 Interpretation

In this Agreement unless the context otherwise requires:

  1. reference to a person includes any other entity recognised by law;
  2. the singular includes the plural and vice versa;
  3. words importing one gender include all genders;
  4. any reference to any of the Parties by their defined terms includes that Party’s executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
  5. an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;

  6. an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;
  7. clause headings are for reference purposes only;
  8. reference to an Item is a reference to an Item in the Schedule to this Agreement;
  9. reference to a Schedule is a reference to the corresponding Schedule to this Agreement;
  10. reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it;
  11. reference to a time is to that time in Sydney, Australia;
  12. reference that something is to be done in writing includes electronic communication;
  13. if the time for something to be done or to happen is the 29th, 30th or 31st day of a month, and that day does not exist, the time is instead the next day; and
  14. if the time for something to be done or to happen is a day that is not a business day, the time is extended to the next business day.

1.3 Definitions

  1. Agreement means this Listers Agreement;
  2. Agreement Date means the date of this Agreement;
  3. Assignment means any transfer, assignment or disposal;
  4. Associate has the same meaning as in the Corporations Act;
  5. Author has the meaning given to it in Part IX of the Copyright Act 1968 (Cth);
  6. Breach Notice means a written notice served by a non-defaulting party on a defaulting party with respect to a purported breach of this Agreement and which sets out the nature of the breach, how the breach can be remedied and a reasonable time for remedying the breach;
  7. Business Day means a day on which banks are open for business in Australia or New Zealand excluding a Saturday or a Sunday or a public holiday;
  8. Centre Rules means the rules governing the Venue as laid out in promoter guidelines;
  9. Confidential Material includes:
    1. all information, whether marked “confidential” or not, pertaining to a Party, its Related Entities or Associates, including but not limited to business, financial, intellectual property information, information which may be constructed at law as being confidential to a Party, its Related Entities or Associates and information which may reasonably be constructed as being confidential; and 
    2. all documentation, whether marked “confidential” or not, owned by a Party, its Related Entities or Associates, including but not limited to written material, electronic files, online information and database information, but does not include Confidential Material which:
      1. is in the public domain at the time of its disclosure by the Party,
      2. is required to be disclosed by law, in relation to which the Recipient agrees to notify the Disclosing Party as soon as practicable; or
    3. the Disclosing Party agrees in writing may be disclosed,
  10. Control has the meaning given to it in the Corporations Act;
  11. Copyright Act means the Copyright Act 1968 (Cth);
  12. Corporations Act means the Corporations Act 2001 (Cth);
  13. Costs means any cost (including legal and other professional costs), charge, expense, outgoing or expenditure (including, but not limited to, fees and disbursements payable to contractors, consultants, lawyers, accountants, auditors and other skilled people or professionals);

  14. CRM Software means any computer software developed by anyspaces.com for the management of the Licensor or Licensees;
  15. Declined Revenue means any Revenue which is put forward via a booking application which is rejected by the Licensee or by the Property Manager;
  16. Default Interest Rate means interest at the rate which is 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic);
  17. Disclosing Party means a party whose Confidential Material has been obtained, received or otherwise accessed by a Recipient;
  18. Financial Year means a year commencing 1 July and concluding 30 June on the following year;
  19. GST means any tax, levy, charge or impost implemented under the GST Act or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
  20. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  21. Intellectual Property means all intellectual property rights of anyspaces.com which arise by operation of legislation, common law or equity, and which includes, but is not limited to the CRM Software, the system, trademarks, copyright, patents, patents pending, know how, trade secrets, names of domains, products, brands and services, moral rights, designs, inventions, Confidential Material, irrespective of whether these items or rights are registered, or capable of registration;
  22. IP Improvement means any improvement, amendment, new work, derivative work or other creation by the Licensor of the Intellectual Property, in respect of which the Licensor obtains or may obtain any intellectual property rights;
  23. Licensee(s) means an entity which is allotted a Licenced Area, by anyspaces.com, within the Venue in accordance with a Bookers Agreement and approved by the Licensor through the booking application process;
  24. Licenced Area(s) means the areas to be leased in the Venue (as may be varied by the Licensor from time to time by notice in writing to anyspaces.com);
  25. Licence Fees has the meaning given to it in the Booker Agreement;
  26. Month means each month in a calendar year;
  27. Property Manager is the manager responsible for the management of the Venue.
  28. Recipient means a Party which has received, obtained or otherwise gained access to the Confidential Material of the Disclosing Party;
  29. Related Entity has the same meaning as in the Corporations Act;
  30. Restraint Area means the area set out in Item 4 of Terms Sheet;
  31. Restraint Period means the period set out in Item 4 of Terms Sheet;
  32. Revenue means total gross revenue receivable by way of Licence Fees;
  33. Service Fee means any amounts that anyspaces.com receives from Licensee, less the Venue Fee;
  34. Special Condition means any extra conditions to this Agreement set out in Item 5 of Terms Sheet;
  35. Bookers Agreement means the agreement activated by the customer;
  36. Term means the term of this Agreement as set out in Item 3 of Terms Sheet;
  37. Venue means the location specified in Item 2 of Terms Sheet;
  38. Venue Fee means the fee set out in Item 1 of Terms Sheet;
  39. Week means seven (7) consecutive days, the first day being Monday and the last day being the ensuing Sunday unless otherwise indicated.

2. Scope

2.1 Grant

The Licensor grants to anyspaces.com, and anyspaces.com accepts, the exclusive right to sub-licence promotional and casual mall leasing space within the Venue(s) on behalf of the Licensor:

  1. during the Term; and
  2. on the terms and conditions set out in this Agreement and the Bookers Agreement.
  3. anyspaces.com acknowledges that the rights conferred on it by this Agreement are personal rights in contract only and will not create any tenancy or any estate or interest in the Licensed Areas.
  4. The form of Booker Agreement must be approved by the Licensor.

2.2 Operation

anyspaces.com will enter into sub-licence arrangements directly with customers:

  1. as a sub-licensor; and
  2. on the terms and conditions set out in the Bookers agreement, and promoter guidelines.

2.3 Venue Fee

anyspaces.com agrees to pay the Licensor the Venue Fee in consideration for the Licensor allocating anyspaces.com the Licenced Areas in accordance with this Agreement.

3. No retail lease

The Parties acknowledge and agree that this Agreement is not intended to be implied, construed or in any other way considered to constitute a retail lease. Both Parties agree to make any amendments, or enter into any documents, required to give effect to this clause 3.

4. Term

The term commences in accordance with the Terms Sheet or from your addition onto the platform; and continues until:

  1. it expires or is removed from the platform and as agreed by anyspaces.com ;
  2. it is renewed upon the agreement of both Parties; or
  3. it is terminated in accordance with clause 12.

5. Fees And Payments

5.1 CALCULATION AND PAYMENT

Fees

anyspaces.com will pay the Licensor the percentage of fees referred to in the Terms Sheet or a default of 75%.

Calculation

anyspaces.com will calculate the Licence Fees which are due from Licensees on behalf of the Licensor on the first day of each Month in relation to the Licence Fees due for the previous Month.

Payment

anyspaces.com will provide the Licensor with access to certain records, so that the Licensor may view a detailed breakdown of all Licence Fees due for occupancy of Licensed Areas during each Month and after receiving an itemised invoice from the Licensor, pay the Licensor the Venue Fee by 5:00pm Australian Eastern Standard Time on the seventh (7th) day of the Month following the Month in relation to which the Venue Fees have been calculated.

5.2 GST

  1. All amounts payable under this agreement are stated exclusive of GST.
  2. If a Party is liable to pay GST in respect of any goods or service received under this Agreement, the Party supplying the goods or service will invoice the receiving Party for that tax and will ensure that the invoice complies with the form of tax invoice required by the relevant tax legislation.
  3. The receiving Party must pay the amount of tax invoiced simultaneously with the corresponding consideration required to be paid or given under this Agreement.

5.3 Application of Payments

Either Party may, in its absolute discretion, apply or set off any payments received from the other Party towards any past indebtedness of the other Party to that Party.

5.4 Invoicing

anyspaces.com must provide Licensees with an invoice under its own name

5.5 Refunds

The Licensor agrees and acknowledges that:

  1. anyspaces.com is entitled to retain all Service Fees payable in relation to Booker Agreements which anyspaces.com have entered into during the Term and which the Licensor has accepted; and 
  2. in the event this Agreement is terminated, for any reason, anyspaces.com is entitled to retain any Service Fees for bookings made with Sub-Licensee prior to the date of termination.

6. anyspaces.com Obligations

6.1 Supply

anyspaces.com must offer the Licenced Areas to Licensees in accordance with the terms of this Agreement and the Booker Agreement.

6.2 Range

anyspaces.com acknowledges that the Licensor may, in its absolute discretion, vary the range of the Licenced Areas which are to be offered by anyspaces.com to Licensees, with written notice to anyspaces.com and updated correctly onto the platform by the Licensor.

6.3 Licence Fees

anyspaces.com agrees and acknowledges that it must comply with any Licence Fees which the Licensor sets in relation to the allocation of the Licenced Areas by anyspaces.com to Licensees.

6.4 Licensee Compliance

All breaches of compliance by the Licensee must be reported by the Licensor using the incident management process on the anyspaces.com platform. anyspaces.com will ensure to follow up directly with the Licensee on the incident report.

  1. anyspaces.com agrees and acknowledges that it is co-responsible with the Licensor for ensuring the following minimum standards and procedures are adhered to when selecting Licensees for the allocation of Licenced Areas:
  2. All Licensees must be approved in advance by the Property Manager from the campaign submission or written communication, unless otherwise agreed for automatic approval conditions;
  3. No licensee will be allowed who is selling a product or providing a service which is in direct competition to the tenants of the Venue unless approved by the licensor;
  4. No licensee will be allowed who is selling a product or providing a service (or doing either in a manner) which may offend or annoy the primary customers of the Venue unless approved by the licensor;
  5. anyspaces.com must ensure all licensees comply with the promoter guidelines at all times and do not interfere with the operation of the tenants or the business of the primary tenants of the Venue to the best of its abilities;
  6. The Licensee has agreed to the Booker Agreement;
  7. The Licensee has a current public liability insurance cover up to a limit of $20 million certificate relating to their registered business submission;
  8. The Licensee has all the required permits and approvals required to conduct their business or services to the best of anyspaces.com knowledge or as requested by the Licensor during the approval process.

6.5 Additional Obligations

  1. anyspaces.com will perform the following additional duties:
  2. outbound marketing;
  3. negotiation and execution of the Bookers Agreement with customers;
  4. insurance checks of customers;
  5. invoicing and cash collection of customers;
  6. online booking and calendar system for customer bookings; and
  7. performance checks, conducted with the Licensor.

7. Exclusivity

The Licensor acknowledges and agrees that it will not, during the Term or the Restraint Period, either directly or indirectly, either alone or in partnership, or as a director or shareholder of any company, or as an employee, consultant, representative, agent or advisor or otherwise solicit the business of any Licensee unless agreed in writing. This clause does not apply in respect of any current lease, as at the Agreement Date, licence or other arrangement (including a renewal) in place at the Venue as at the date of this Agreement.

8. Reports and Meetings

anyspaces.com acknowledges and agrees that it must attend any meetings that the Licensor requires anyspaces.com to attend, but no more than one (1) meeting per quarter; and if requested by the Licensor, conduct and present quarterly reviews with the assistance of the Licensor. The Licensor must provide anyspaces.com with one (1) months’ notice in relation to a meeting. The Licensor must take into account the Declined Revenue upon any review of the performance by anyspaces.com under this Agreement.

9. Insurance

The Licensor has responsibility for taking out and maintaining appropriate insurance policies with reputable insurers in relation to the Venue.

9.1 anyspaces.com

  1. must at its cost effect and keep current during the Term a public risk insurance policy for an amount of $20,000,000.00 for any one claim bearing an endorsement whereby the indemnity under the policy is extended to include the risks and all other claims arising out of or in connection with this Agreement;
  2. will provide a copy of the policy, certificate of currency and evidence of payment of premium to the Licensor forthwith upon demand; and
  3. will not do or permit anything to be done which may render void or voidable such insurance.

9.2 anyspaces.com must ensure that the Licensee:

  1. at its cost effects and keep current during the Term a public risk insurance policy (noting the interests of the Licensor) for an amount of $20,000,000.00 for any one claim bearing an endorsement whereby the indemnity under the policy is extended to include the risks and all other claims arising out of or in connection with the Bookers Agreement; and
  2. will provide a copy of the policy, certificate of currency and evidence of payment of premium to the Licensor forthwith upon demand.

10. Intellectual Property

10.1 USE

  1. Nothing in this Agreement is intended to be construed as granting the Licensor any goodwill or ownership rights in the Intellectual Property.
  2. The Intellectual Property is the exclusive property of anyspaces.com and as such all goodwill accrued in relation to the Intellectual Property accrues to the exclusive benefit of anyspaces.com.

10.2 Security

The Licensor must use its best endeavours to:

  1. ensure that the Intellectual Property is kept secure from unauthorised use and access; and
  2. notify anyspaces.com as soon as practicable in the event that the Licensor discovers an infringement of the Intellectual Property by a third party.

10.3 Obligations

Ownership

  1. The Intellectual Property remains, at all times, and in perpetuity, the property of the anyspaces.com.
  2. All references in this clause 10.3 to anyspaces.com include its Related Entities or nominees as applicable.

Assignment and Licensing

No party may assign its rights under this Agreement. 

Authorship

In the event that the Licensor, its personnel, representatives or suppliers are deemed an Author of an IP Improvement, the Licensor must at anyspaces.com’s cost:

  1. provide or procure a written assignment of title in that IP Improvement, which must including a statement of acknowledgement from the relevant Author that such an assignment is fair and reasonable in order to give effect to the ownership rights of Anyspaces.com in relation to that IP Improvement; and
  2. use reasonable endeavours to ensure that no entity except anyspaces.com is named as the Author of that IP Improvement.

Confidential Material

A Recipient:

  1. must use the Confidential Material only for the performance of its obligations under this Agreement and for no other purpose;
  2. must keep the Confidential Material in a secure place or device which is accessible only by the Recipient and furthermore must ensure that no unauthorised entities obtain access to the Confidential Material;
  3. must not disclose the Confidential Material to a third party without the prior express written consent of the Disclosing Party, and furthermore acknowledges that the Disclosing Party may withdraw such consent in its absolute discretion;
  4. must not use the Confidential Material for personal commercial (or otherwise) benefit or for the commercial (or otherwise) benefit of a third party and furthermore acknowledges that use of the Confidential Material contrary to this subclause which results in damage or loss to the Disclosing Party may give rise to a cause of action against the Recipient for that damage or loss;
  5. must not use the Confidential Material in any way that results in competition with the Disclosing Party;
  6. may only disclose the Confidential Material to its directors, shareholders, officers, employees, advisors, nominees and agents in the event that it is absolutely necessary and then only in the event that the Recipient undertakes to bind those entities to confidentiality provisions which are the same as those outlined in this Agreement;
  7. must immediately inform the Disclosing Party of any breach of this Agreement by any entity and take all steps necessary to assist in the rectification of such breach and the prevention of a reoccurrence of such breach;
  8. acknowledges that the Disclosing Party will always retain legal ownership of the Confidential Material; and
  9. acknowledges that nothing in this Agreement is intended to imply any type of licence or assignment of the Confidential Material to the Recipient.

11. Assignment

Subject to clause 11.B, a Party may not:

  1. assign or novate any of its rights under this Agreement; or
  2. subcontract the performance of any of its obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.

The Licensor may assign or novate any of its rights under this Agreement to any transferee of its interest in the Venue.

12. Termination

Either Party may terminate this Agreement:

  1. by serving the other Party with fourteen (14) days’ written notice in the event of a breach of an essential term by the other party; or
  2. immediately, in the event the other Party commits a breach which involves fraud, a serious offence or endangerment of public safety.

13. Rolling over

The provisions of this Agreement roll over on a continuous basis in the event that this Agreement is not terminated.

14. Liability, Warranties & Indemnities

14.1 Limitation of Warranties and Liability

  1. The provisions of various statutes, rules, and regulations in force from time to time, which apply to this Agreement, may not, or may not except to a limited extent, be varied, modified or excluded. To the extent that it is not lawful to vary, modify or exclude them they shall, but only to the extent required by law, form part of this Agreement.
  2. This Agreement contains certain express terms and warranties. To the extent permitted by law, there are no other terms, warranties or conditions, whether statutory, express, implied, collateral or otherwise, and such terms, warranties or conditions are hereby expressly excluded to the extent permitted by law.
  3. In no event shall either Party or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, be liable to the other Party or anyone claiming under or through that Party, for any punitive, exemplary, incidental, indirect, or special damages, or consequential loss, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or error in information (whether negligent or not) supplied before or after the date of this Agreement in connection with its subject matter, whether based on contract, tort (including but without limitation negligence), or any other legal or equitable grounds, even if the Party knew or ought to have known of the possibility of such damages or consequential loss. ‘Consequential loss’ shall include but not be limited to loss or profits, interest revenue, use, or goodwill (or similar financial loss), loss of data, business interruption, or payments made or due to any third party.
  4. Any liability of a Party or its respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, for and all losses including without limitation, causes of action and claims based upon breach of contract, tort (including but not limited to

    negligence), breach of warranty, or any other legal or equitable grounds, under, based on, arising out of or in connection with this Agreement, or any matter relating to this Agreement, or for error of information supplied before or after the date of this agreement in connection with its subject matter, shall not exceed in total the amount of fees paid to the other Party by the Party during the consecutive twelve month period immediately preceding the occurrence of the first such event giving rise to such liability.

14.2 Indemnity

The Licensor agrees to indemnify anyspaces.com from all claims, demands, losses, damages, proceedings, compensation, costs, charges, expenses and liabilities:

  1. which may arise in respect of any accident, loss or damage to property or death of or injury to any person of whatever nature or kind in relation to the Venue caused by the Licensor except where such arises as a result of anyspaces.com’s negligence, deliberate act or mistake, or breach of any obligations imposed upon it by law;
  2. for which the Licensor may be or become liable whether during or after the Term of this Agreement in respect of or directly or indirectly arising from any loss, damage or injury caused by the neglect or default of the Licensor or its agents, employees, contractors or directors to fully, duly, punctually and properly to pay, observe and perform any of its obligations, covenants, terms and conditions contained in this Agreement;
  3. arising from the Licensor’s misrepresentations to anyspaces.com in relation to its ownership of the Venues or appointment as property manager of the Venues, as the case may be; or
  4. arising from the Licensor’s failure to comply with any legislation during the operation of the Venue.

14.3 Restraint

The Licensor and its directors, Related Entities, and Associates, agree and acknowledge that it will not, either directly or indirectly, either alone or in partnership, or as a director or shareholder of any company, or as an employee, subcontractor, contractor, lender, representative, agent, advisor or by way of a Relative:

  1. during the Term, allow any other entity to allocate or licence any casual mall leasing areas within the Venue; or
  2. during the Restraint Period and within the Restraint Area:
  3. solicit the business of any Licensee; or
  4. employ or solicit the skills or knowledge of any employee, subcontractor, advisor, nominee or agent of anyspaces.com.

This clause does not apply in respect of any current lease, as at the Agreement Date, licence or other arrangement (including a renewal) in place as at the date of this Agreement.

15. Waiver

The Parties agree that a failure by a Party to enforce any provisions of this Agreement shall not operate as a waiver of that Party’s rights in relation to enforcement of those provisions.

16. Notices

Unless otherwise specified in the Agreement, all notices, requests, demands, and other communications (other than routine operational or billing communications) required or permitted hereunder shall be in writing and shall be deemed to have been received by a Party:

  1. when actually received in the case of hand delivery against a signed receipt;
  2. two (2) business days after being given to a reputable overnight courier with a reliable system for tracking delivery;
  3. when sent by confirmed facsimile;
  4. upon receipt, when mailed by Australia Post, registered or certified mail, return receipt requested, postage prepaid; or
  5. one (1) Business Day after transmission by electronic mail.

 17. Severability

If anything in this Agreement is deemed to be unenforceable, illegal or void, then it is severed and leaves intact all other non-severable parts of this Agreement, which remain in full force.

18. Force Majeure

Neither Party shall be in default of this Agreement due to any failure or delay in the performance of any obligations if that failure or delay is due to any cause which is beyond the reasonable control of that Party and furthermore is not due to that Party’s fault or negligence, which causes shall include, without limitation: storms, floods, other acts of nature, fires, explosions, epidemics, pandemics, riots, war or civil disturbance, strikes or other labour unrests, embargoes and other governmental actions or regulations that would prohibit either Party from performing its obligations under this Agreement.

19. Governing Law

  1. This Agreement will be governed by and construed in accordance with the laws from time to time in force in Sydney Australia and both Parties submit to the non-exclusive jurisdiction of the courts.
  2. The Parties agree that this Agreement will be amended in the event that any laws are changed or introduced which, in the opinion of the Parties or its solicitors, renders the Agreement unenforceable, illegal or void.

20. Survival of clauses upon termination

The expiration or termination of this Agreement does not operate to terminate or extinguish any of the continuing obligations under this Agreement and those obligations remain in full force and effect and are binding upon the Parties.

21. Special Conditions

The Special Conditions in Commercial Term sheet if any, form part of this Agreement.

22. Time is of the essence

Time is of the essence in this Agreement unless it is agreed to otherwise by the Parties.

23. Variation

An amendment or variation to this Agreement must be effected in writing and signed by the Parties.

24 Counterparts and Signatories

24.1 Counterparts

This Agreement may be executed in any number of counterparts, including by way of facsimile, or, if agreed to by the Parties, email, each of which constitutes an original. Both Parties acknowledge that the counterparts together are one and the same agreement.

24.2 Signatories

This Agreement binds all parties even if one or more of the persons named as a Licensor do not execute this Agreement.

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