Lister's Agreement - anyspaces.com

Everything you need to know

Listers Agreement.

PARTIES

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

and

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

RECITALS

anyspaces.com is in the business of facilitating the allocation of Licensed Areas within the Venue.
The Licensor is the owner, or an authorised nominee of the owner, of the Venue.
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.
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:

the Recitals are materially true and correct; and
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:

reference to a person includes any other entity recognised by law;
the singular includes the plural and vice versa;
words importing one gender include all genders;
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;
an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;
an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;
clause headings are for reference purposes only;
reference to an Item is a reference to an Item in the Schedule to this Agreement;
reference to a Schedule is a reference to the corresponding Schedule to this Agreement;
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;
reference to a time is to that time in Sydney, Australia;
reference that something is to be done in writing includes electronic communication;
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
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

Agreement means this Listers Agreement;
Agreement Date means the date of this Agreement;
Assignment means any transfer, assignment or disposal;
Associate has the same meaning as in the Corporations Act;
Author has the meaning given to it in Part IX of the Copyright Act 1968 (Cth);
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;
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;
Centre Rules means the rules governing the Venue as laid out in promoter guidelines;
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,
Control has the meaning given to it in the Corporations Act;
Copyright Act means the Copyright Act 1968 (Cth);
Corporations Act means the Corporations Act 2001 (Cth);
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);
CRM Software means any computer software developed by anyspaces.com for the management of the Licensor or Licensees;
Declined Revenue means any Revenue which is put forward via a booking application which is rejected by the Licensee or by the Property Manager;
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);
Disclosing Party means a party whose Confidential Material has been obtained, received or otherwise accessed by a Recipient;
Financial Year means a year commencing 1 July and concluding 30 June on the following year;
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;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
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;
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;
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;
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);
Licence Fees has the meaning given to it in the Booker Agreement;
Month means each month in a calendar year;
Property Manager is the manager responsible for the management of the Venue.
Recipient means a Party which has received, obtained or otherwise gained access to the Confidential Material of the Disclosing Party;
Related Entity has the same meaning as in the Corporations Act;
Restraint Area means the area set out in Item 4 of Terms Sheet;
Restraint Period means the period set out in Item 4 of Terms Sheet;
Revenue means total gross revenue receivable by way of Licence Fees;
Service Fee means any amounts that anyspaces.com receives from Licensee, less the Venue Fee;
Special Condition means any extra conditions to this Agreement set out in Item 5 of Terms Sheet;
Bookers Agreement means the agreement activated by the customer;
Term means the term of this Agreement as set out in Item 3 of Terms Sheet;
Venue means the location specified in Item 2 of Terms Sheet;
Venue Fee means the fee set out in Item 1 of Terms Sheet;
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:

during the Term; and
on the terms and conditions set out in this Agreement and the Bookers Agreement.
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.
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:

as a sub-licensor; and
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:

it expires or is removed from the platform and as agreed by anyspaces.com ;
it is renewed upon the agreement of both Parties; or
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

All amounts payable under this agreement are stated exclusive of GST.
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.
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:

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
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.

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:
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;
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;
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;
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;
The Licensee has agreed to the Booker Agreement;
The Licensee has a current public liability insurance cover up to a limit of $20 million certificate relating to their registered business submission;
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

anyspaces.com will perform the following additional duties:
outbound marketing;
negotiation and execution of the Bookers Agreement with customers;
insurance checks of customers;
invoicing and cash collection of customers;
online booking and calendar system for customer bookings; and
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

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;
will provide a copy of the policy, certificate of currency and evidence of payment of premium to the Licensor forthwith upon demand; and
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:

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
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

Nothing in this Agreement is intended to be construed as granting the Licensor any goodwill or ownership rights in the Intellectual Property.
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:

ensure that the Intellectual Property is kept secure from unauthorised use and access; and
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

The Intellectual Property remains, at all times, and in perpetuity, the property of the anyspaces.com.
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:

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
use reasonable endeavours to ensure that no entity except anyspaces.com is named as the Author of that IP Improvement.

Confidential Material

A Recipient:

must use the Confidential Material only for the performance of its obligations under this Agreement and for no other purpose;
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;
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;
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;
must not use the Confidential Material in any way that results in competition with the Disclosing Party;
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;
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;
acknowledges that the Disclosing Party will always retain legal ownership of the Confidential Material; and
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:

assign or novate any of its rights under this Agreement; or
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:

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
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

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.
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.
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.
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:

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;
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;
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
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:

during the Term, allow any other entity to allocate or licence any casual mall leasing areas within the Venue; or
during the Restraint Period and within the Restraint Area:
solicit the business of any Licensee; or
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:

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

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.
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.