1 Definitions and interpretation
In this Agreement:
ACL means the Australian Consumer Law schedule of the Competition and Consumer Act 2010 (Cth) and its associated regulations as amended;
Agreement means these Terms and Conditions, the provisions of the Schedule (including any Special Conditions) and the House Rules;
Business Day means each Monday to Friday which is not a public holiday in the State of Australia in which the Space is located;
Business Hours means from 8:30 am until 5:30 pm on every Business Day
Fees means the fees payable by the Member to TTS, being the Membership Fees and Daily Fees (as applicable), as specified in this Agreement;
GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
House Rules means the policies and rules enacted from time to time by TTS in relation to the use, occupation and enjoyment of the Space, including TTS’s code of conduct, the terms of which are incorporated into (and form part of) this Agreement by reference;
Insolvency Event means where:
(a) in the case of an individual, the individual enters into a scheme of arrangement with creditors or becomes bankrupt;
(b) in the case of a legal entity that is not an individual:
(i) a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to the entity;
(ii) the entity enters into a scheme of arrangement with its creditors; or
(iii) the entity is wound up;
(c) the entity assigns any of its property for the benefit of creditors or any class of creditors; or
(d) a person with a legal right over any assets of the entity takes any step towards taking possession or takes possession of those assets or exercises any power of sale;
Licence means a limited, non-sublicensable, non-transferrable licence granted to you by TTS to use each Work Desk and Meeting Space in accordance with this Agreement;
Member is as defined in the Schedule and is also referred to as ‘you’ and ‘your’. Member also includes all executors, administrators, successors and permitted assigns of the person defined in the Agreement;
Membership Fee means the fee payable by the Member to TTS for each subscription licence, subject to any increases or variations in accordance with this Agreement;
TTS means The Third Space, also referred to as ‘we’, ‘our’ and ‘us’;
TTS IP means all intellectual property owned, licensed, associated with or created by TTS or its employees or agents. It includes copyright, patents, trademarks (whether registered or not), registered designs, colour schemes, logos, uniquely shaped or styled products, business methods, business plans and business documents.
Representatives means any people who are at or in the Space due to any connection they have with you, including your employees, contractors, invitees or guests;
Space means the space referred to in the Schedule;
Special Conditions means the special conditions (if any) specified in the Schedule;
Start Date is the start date of entry into this Agreement;
Terms and Conditions means the terms and conditions set out in this document.
In this Agreement, unless the context indicates a contrary intention:
(a) the term “person” includes an individual, a body politic, corporation and a statutory or other authority or association whether incorporated or unincorporated;
(b) a reference to this Agreement or to any other deed, agreement, document or instrument includes, respectively, this Agreement or such other deed, agreement, document or instrument as amended, novated, supplemented, varied or replaced from time to time;
(c) words importing the singular shall include the plural (and vice versa) and words denoting a given gender shall include all other genders;
(d) “including” is not a word of limitation;
(e) all dollar amounts are in Australian dollars unless stated otherwise;
(f) headings are for convenience only and do not affect interpretation; and
(g) a reference to any amount is a reference to all or part of that amount.
2 Desks and Services
(a) The Third Space has the right to change any service fees and conditions by providing 14-days’ notice.
(b) We grant you a Licence, subject to your compliance of these terms of this Agreement, from the Date of Entry until this Agreement ends for whatever reason in exchange for you paying the Fees, and subject always to the terms of this Agreement.
(c) Any Services we provide to you under this Agreement, whether or not they began on the Start Date, can only be ended in accordance with the terms of this Agreement.
(d) Notwithstanding anything else in this Agreement, we may at any time and in our absolute discretion, substitute any one or more of the Work Desks, Permanent Workstations or Services for a reasonably equivalent Work desk, workstation or service or for a desk, workstation or service of the same or similar value (according to our then current fees).
3 Invoices and Payments
(a) Invoices for one-off bookings and additional charges will be issued at the time the booking is created.
(b) Membership fees will be invoiced from the date of entry into the plan and renewed on the 1st of the following month, unless cancelled in accordance with Clause 4 below.
(c) By providing card information, you agree for it to be saved and authorise future payments as a nominated bank card for the purpose of the service delivery.
(d) Payments will be automatically processed on the specified due date with funds from the nominated bank card.
(e) The amount payable by the recipient of that supply is a GST exclusive amount and the recipient of that taxable supply will pay to the supplier of it the GST payable in respect of that supply in addition to the other consideration payable.
(f) Where you have incurred any liability to us, whether arising from this Agreement or otherwise, we may (without notice to you) set-off the amount of such liability against any liabilities of us to you, whether such liability is liquidated or unliquidated, present or future, accrued or contingent.
(g) Invoices as to be paid by the due date as outlined on the invoice. If a party fails to make payment by the due date, The Third Space has the right to suspend the user’s account.
4 Cancellation and Refunds
(a) Any booking that is cancelled up to 24 hours before the start time will not be charged.
(b) Any booking that changed or cancelled less than 24 hours from that starting time is liable to 100% of the costs and will not be eligible for a refund.
(c) Any reductions made in booking length on the day shall not be refunded.
(d) Disputes regarding the cancellation of services and payments should be made in writing to the TTS Host.
(e) Membership plans must be cancelled no less than 14 days before the next invoice is issued or you will be required to pay the full amount for the following monthly period.
5 Member obligations
(a) You must ensure that you and your Representatives, at all times:
(i) comply with all instructions given by TTS and the House Rules; and
(ii) comply with all applicable laws, regulations, code of practices or policies, whether they are from any government authority, building management, us or other entity.
(b) You must not sell, mortgage, sublet, assign or grant any sort of interest in each Licence or your rights and obligations under this Agreement.
(c) You must not use the Space:
(i) for any other purpose that is prohibited in the House Rules; and
(ii) to carry on a business that competes with our business of licensing space and/or desks.
(d) Except as permitted by the House Rules, you must not use our name in any way in connection with your business or otherwise associate yourself with us.
(e) You must comply with any maintenance obligations set out in the House Rules but always, properly use, operate and safeguard our property, including but not limited to furniture, furnishings, appliances, and all mechanical, electrical, gas and plumbing fixtures, and keep them clean and sanitary. You must immediately notify us in writing of any problem, malfunction or damage to any area within the Space or to our property of which you are aware. You will be liable to pay for all repairs and replacements where you cause such problem, malfunction or damage, or where such problem, malfunction or damage results from your failure to notify us immediately.
(f) You must seek our written consent prior to making any alterations or installing anything in respect to the Desks or the Space.
(g) You must comply with any security procedures set out in the House Rules or communicated by us to you from time to time.
(a) Unless otherwise specified in the Schedule, you may terminate this agreement at any time in accordance with Clause 4.
(b) We may terminate this Agreement effective immediately by providing written notice where:
(i) you have failed to meet the terms as outlined in this schedule.
(ii) we have reasonable evidence that the you have acted illegally or caused a person serious harm or have caused, or is intending to cause, us harm;
(iii) you have breached this Agreement and we have given you written notice of such breach and allowed you a reasonable time to remedy the breach (which need not be more than 14 Business Days) and the breach has not been remedied within the time allowed by us
7 End of term
(a) Once this Agreement has ended, we have the right to refuse you entry to the Space.
(b) Despite any other clause of this Agreement, all clauses that by their nature survive termination will survive termination or ending of this Agreement for whatever reason.
(a) We maintain public liability insurance that covers the Space and we carry our own contents insurance. Our insurance policy does not extend to your property or the property of any of your Representatives. You should make your own insurance arrangements to ensure that your property, the property of your Representatives and any other liabilities are covered, including for any loss or damage to any of your property left unattended or unsecured in the Space.
(a) You are liable for the actions of your Representatives as though their actions were your actions.
(b) You will not make any claim in tort, contract or otherwise against TTS’s landlord or any other party related to the Space.
(c) Although we use reasonable endeavours to oversee the space during Business Hours, we do not accept responsibility for, and are not liable for, any loss or damage to your property or your Representatives’ property.
(d) Except where specifically stated, or as contained in any express warranty provided in relation to the Services, this Agreement does not include by implication any other term, condition or warranty in respect of the quality, reliability, merchant ability, acceptability, fitness for purpose, condition, description, assembly, compatibility with any particular hardware or software, manufacture, design or performance of the Services or any contractual remedy for their failure.
(e) If you are a consumer under the ACL, nothing in this Agreement restricts, limits or modifies your rights or remedies against us for failure of a statutory guarantee under the ACL.
(f) We are not liable for any indirect or consequential losses or expenses suffered by you, your Representatives or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
(g) Nothing in the Agreement excludes, restricts or modifies the application of any legislation applicable to the hire of supply of services which cannot be so excluded, restricted or modified.
(h) To the fullest extent permitted by law, if we are liable to you for any loss, our aggregate liability to you is limited in all circumstances to the total amount the Fees you have paid to us under this Agreement in the preceding month.
(a) You indemnify us for all losses suffered by us as a result of your or your Representatives’ failure to comply fully with the terms of this Agreement.
(b) For the purposes of this clause 10, “losses suffered by us” includes all payments which we are required to pay and all payments which we chose to pay to remedy or partially remedy the loss, all payments which we chose to pay to rectify your Failure, the cost of all claims made against us and the cost of any legal action we are required to partake in either to defend ourselves or to enforce our rights.
11 Event outside of our control
Where an event outside of our control (Force Majeure Event) hinders or prevents our ability to provide the Licence or any Services, any one or more of the Services or any part of a Service or the Licence, we may, at our election:
(a) take no action, in which case we will, subject to clause 9, have no liability to the Member;
(b) suspend provision of the affected Services and the Licence and:
(i) not require payment by you of the applicable Fees (as determined by us) for the period the Services are suspended; or
(ii) provide services which are equivalent to the affected Services; or
(iii) provide a licence which is equivalent to the Licence; or
(c) terminate this Agreement effective immediately by providing written notice.
(a) Subject to clause 12(b), this Agreement is the complete agreement between the parties on all subject matter related to it and this Agreement supersedes all prior agreements. Neither party relies on any representation made by the other in entering into this Agreement.
(b) If there is any inconsistency between these Terms and Conditions, the Special Conditions (if any) and the House Rules, then the order of precedence shall be (in descending order):
(i) the Special Conditions;
(ii) the House Rules; and
(iii) the Terms and Conditions.
(c) We may amend this Agreement by written notice to you. This Agreement may also be amended by written agreement between the parties.
(d) The Agreement is subject to the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.
(e) In no event will any delay, neglect or forbearance on our part in enforcing (in whole or part) any provision of this Agreement be, or be deemed, a waiver thereof or a waiver of any other provision or shall in any way prejudice any of our rights under this Agreement.
(f) A notice required to be given under this Agreement must be in writing and handed personally or sent by email to the last known address of the addressee. Notices sent by email are deemed received within 8 Business Hours of the time of sending.
(g) If any provision (or part of a provision) of this Agreement is found by a court to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
(h) We may assign any or all of our rights and obligations under this Agreement to any other party at any time without the need to notify you.
(i) The terms of this Agreement are confidential and neither party may disclose them unless it is absolutely necessary for that party to carry on their business or for the provision of professional advice.
(j) You may not make an offer of employment to any of our or any of our employees or former employees unless such employee or former employee has independently (without any unsolicited information being brought to the attention of the employee or former employee by the Member, or person associated with the Member) responded to an advertisement for a position and successfully completed the selection process.
(k) All TTS IP is owned by us and is not licensed, assigned or transferred in any way to you and you acknowledge that you do not acquire any interests in the TTS IP whatsoever.