In this Agreement: “Agreement” means this membership agreement; “Additional Services” has the meaning given to such term in clause 4(d); “Additional Service Fee” has the meaning given to such term in clause 4(d);“Allocated Office Space ” means the allocated office space within the Premises specified in the Key Details for a Dedicated service or a Private Office service; “Claim” means any claim, action, demand, proceeding, judgment or order however arising, whether in connection with or relating to this Agreement, or at law, or in equity, or by statute, and whether by a party to this Agreement or by any other person or entity; “Commencement Date ” means the date specified as such in the Key Details, being the date on which Hexa Space will commence providing the Services to the Member under this Agreement; “End Date” means the date specified as such in the Key Details, being the last day for the provision of Services by Hexa Space to the Member under this Agreement, provided that if this Agreement is renewed pursuant to Clause 2, “End Date” shall mean the last day of the applicable Further Term; “Exit Fee” means the fee payable by the Member to Hexa Space either (i) upon the termination or expiry of this Agreement or (ii) if the Member requests to change the Allocated Office Space and Hexa Space agrees to such request, in each case in respect of the cleaning of any Allocated Office Space specified in this Agreement, which shall be an amount based on the size of the relevant Allocated Office Space and which shall be specified in the Inventory List; “Further Term” has the meaning given to such term in clause 2(b); “House Rules” means the rules applicable to the use of the Premises (including the Allocated Office Space if any) made available to the Member on or before the Agreement Date, as may be updated or amended by Hexa Space from time to time; “Initial Fee Payment” means the amount specified as such in the Key Details; “Intended Workstations” means the number of workstations (if any) specified as such in the Key Details, being (a) with respect to a Flexible Desk and Dedicated Desk service, the number of workstations taken up under such service, or (b) with respect to a Private Office service, the number of workstations designated by Hexa Space in respect of the assigned Allocated Office Space regardless of the actual number of workstations located in such Allocated Office Space; “Interest Rate” means a rate of interest at 2% per month or the maximum interest rate permitted by applicable law, whichever is lower; “Inventory List” means, where this Agreement is entered into in respect of a Flexible Desk and Dedicated Desk service or a Private Office service, the list of fittings, fixtures, furniture, equipment and any other items provided by Hexa Space in respect of the specified Allocated Office Space and their respective replacement costs (where applicable), which list shall be verified and signed by Hexa Space and the Member on or before the Commencement Date;“Hexa Space” means the person identified as such on page 1 of this Agreement; “Hexa Space Members” means (other than the Member) those persons or entities who have signed membership agreements with Hexa Space in respect of the Premises or any Other Premises, and “Hexa Space Member” means any of them;“Flexible Desk ”, “Dedicated Desk”, and “Private Office”, respectively, shall mean the service described as such (as applicable) in the Hexa Space website at www.hexaspace.com.au.or such other webpage as Hexa Space may inform the Member from time to time; “Key Details” means the section entitled as such on page 1 of this Agreement; “Member” means the person identified as such on page 1 of this Agreement and shall include its Personnel and any other person it invites to the Premises and/or any Allocated Office Space specified in this Agreement; “Membership” has the meaning given to such term in clause 3(a); “Membership Fee ” means the amount specified as such in the Key Details; “Other Premises” means any co-working or serviced office center of Hexa Space other than the Premises; “Overstaying Fee ” has the meaning given to such term in clause 7(f); “Personal Data” has the meaning given to such term in the Privacy Laws; “Personnel” means officers, employees, agents and subcontractors; “Premises” means the Hexa Space specified as such on page 1 of this Agreement; “Privacy Laws” means the Privacy Act 1988 (Cth) and any other applicable law or codes relating to the protection of Personal Data as well as all regulations made thereunder; “Security Deposit” means the amount specified as such in the Key Details; “Services” has the meaning given to such term in clause 4(a); and “Service Term” means the term specified as such in the Key Details.
- Subject to clause 2(b), this Agreement commences on the “Agreement Date” as specified on page 1 of this Agreement and, unless terminated earlier in accordance with its provisions, will continue until the End Date.
- Upon expiry of the Service Term, this Agreement will automatically renew for successive terms equal to the current Service Term (each a “Further Term”), unless either party gives the other party written notice of non-renewal on or before the notice date as follows:
Notice date For all Services where the Service Term is not more than 2 months Notice date is at least 1 month prior to expiry of Service Term For all Services where the Service Term is more than 2 months Notice date is at least 2 months prior to expiry of Service Term For a Flexible Desk Dedicated or Private Office service where the Intended Workstations is 30 or more workstations and the Service Term is 12 months or more Notice date is at least 4 months prior to expiry of Service Term
- Each Further Term will be on the same provisions as this Agreement, subject to any adjustments to the Membership Fee required to be made to reflect Hexa Space’s prevailing Membership Fee for the Services at the time of renewal, provided that any benefits or privileges specified in the section entitled “Additional Information” on page 1 of this Agreement or in an appendix to this Agreement shall not apply with respect to any Further Term unless expressly provided otherwise.
- Hexa Space shall provide the Member with the Services during the Service Term and any Further Term, subject to the provisions of this Agreement and the House Rules (“Membership”).
- The Member acknowledges and agrees that:
- the Membership and this Agreement do not confer upon the Member a lease or tenancy or any right of exclusive possession or any ownership of or title to any part of the Premises and/or the Allocated Office Space
- (if any) and that they remain in Hexa Space’s possession and control;
- the availability of the Services under this Agreement is subject to clause 4(e) and compliance by the Member of its obligations under this Agreement, and the availability and scope of the Additional Services that Hexa Space provide under this Agreement are subject to change from time to time at Hexa Space’s discretion.
- The Member acknowledges and agrees that Hexa Space:
- shall collect and use the Personal Data of the Member, including the information included in the Key Details, and may from time to time collect and use Personal Data from the Member’s Personnel and other Permitted Occupiers, for the purpose of (1) fulfilling Hexa Space’s obligations under this Agreement or applicable laws or (2) complying with directions from governmental authorities. The Member further agrees to facilitate any such collection of Personal Data from its Personnel; and
- may record the common areas in the Premises and the Other Premises via video for security purposes.
- Hexa Space shall comply with the Privacy Laws when collecting, using and storing such Personal Data. (e) The Member acknowledges and agrees that the House Rules form a part of this Agreement and that Hexa Space may vary the provisions of this Agreement or of the House Rules (including without limitation making any additions or deletions) as it deems reasonably appropriate or necessary. To the extent of an inconsistency between the terms of this Agreement and the House Rules, this Agreement prevails. Hexa Space shall not, without the consent of the Member, vary this Agreement or the House Rules pursuant to this clause 3(e) in a way which would have the effect of varying the Fees payable under this Agreement or materially adversely affecting the Services under this Agreement.
4. Hexa Space Obligation
- Hexa Space agrees to provide to the Member during the Service Term and any Further Term the service stated on the first page of this Agreement i.e. either the Private Office, Flexible Desk, Dedicated Desk, or Virtual Office (together with the rights set out in paragraph (b) below, as applicable, the “Services”).
- The Services include:
- access to the Premises and access to the Allocated Office Space (if applicable);
- non-exclusive use of the passageways, lavatories, pantries, breakout areas and other common areas, and any other common facilities in the Premises and the Other Premises; and
- access to and use of online community portal and member network of Hexa Space.
- Hexa Space will use reasonable care and skill in performing the Services to a reasonable standard and, subject to clause 15, in accordance with applicable laws.
- In addition to the Services, the Member shall have access to events and offerings from Hexa Space and, upon request to and subject to agreement by Hexa Space, any other additional services related to or complementary to the Services, in each case at such additional fees and upon such other terms (if any) to be advised by Hexa Space (collectively the “Additional Services”). Any additional fee charged in respect of an Additional Service shall be referred to in this Agreement as the “Additional Service Fee ”. Hexa Space shall inform the Member of the Additional Service Fee (if any) required of any Additional Serice before such Additional Serices is to be provided, and the Member can decline such Additional Serice before it is provided if it doesn not agree with such Additional Service Fee.
- Hexa Space may replace the Allocated Office Space, if any, with another Allocated Office Space of comparable size at the Premises where reasonably necessary for Hexa Space’s operational requirements. In such circumstances, Hexa Space must provide prior notice to the Member detailing the change, provided that prior notice is not required where such change is necessitated by an emergency or any situation affecting health and/or safety.
5. Member’s Obligations
- The Member agrees to:
- comply with its obligations under this Agreement and the House Rules as well as all applicable laws which may from time to time be imposed on the use of the Services;
- take reasonable care of the Allocated Office Space (if any) and the Premises (including without limitation the machinery, equipment, items, equipment and cable connections, furniture and fittings) and keep them in good and clean condition (subject to fair wear and tear);
- not carry out any alterations, additions or any changes of a structural nature or otherwise to the Premises, any Other Premises, or any Allocated Office Space specified in this Agreement without prior written consent from Hexa Space;
- ensure that the Premises, any Other Premises and any Allocated Office Space specified in this Agreement are secured when leaving such premises;
- not do or permit anything be done on the Premises, any Other Premises and/or any Allocated Office Space specified in this Agreement that is or likely to, in Hexa Space’s reasonable opinion:
- be a nuisance or annoyance or harassment;
- interfere withthe quiet, comfort and peace of suchpremises;
- cause any injury, damage or loss to Hexa Space or any Hexa Space Member or any other person or entity; or
- be unlawful, immoral or illegal in nature or constituting a criminal offence or tortious act under any applicable laws; and
- not carry out its own repair or rectification works in the Premises and/or any Allocated Office Space specified in this Agreement.
- The Member acknowledges and agrees that:
- the Member is responsible for any person in the Premises or Allocated Office Space with the Member’s permission (“Permitted Occupier”); and
- any breach of the Member’s obligations in this Agreement or the House Rules by a Permitted Occupier shall be deemed to be a breach of this Agreement by the Member.
6. Security Deposit
- The Member shall pay to Hexa Space the Security Deposit as security for the due performance and observance by the Member of all its obligations under this Agreement and the House Rules.
- The Security Deposit shall be paid by the Member as part of the Initial Fee Payment, which shall be paid by the Member pursuant to clause 7(a). The Security Deposit must be maintained in full throughout the Service Term and any Further Term.
- The Member will, within seven (7) days of receiving a demand from Hexa Space, pay to Hexa Space such sum as may be necessary to ensure that the Security Deposit is maintained in the amount set out in the Key Details.
- Hexa Space has the right to deduct from the Security Deposit any amount due and owing by the Member to Hexa Space whether under this Agreement or any other agreement (including without limitation the Membership Fee, any Additional Service Fee, any Exit Fee, any Overstaying Fee, bank charges, and/or any other amount described in this Agreement).
- Payment of the Security Deposit by the Member or any deduction from it by Hexa Space will not relieve the Member from any of its obligations under this Agreement and/or the House Rules or act as a waiver or otherwise limit Hexa Space’s rights against the Member in respect of any breach of this Agreement and/or the House Rules.
- The Security Deposit cannot be used by the Member to offset against any Membership Fees or any Additional Service Fee or any other fees or amount owing to Hexa Space pursuant to this Agreement.
- Subject to any deductions made by Hexa Space pursuant to this Agreement, the Security Deposit is refundable, without any interest, to the Member within sixty (60) days of the later of (i) the expiry or termination of this Agreement and (ii) the date by which the Member has fulfilled its obligations under this Agreement and/or the House Rules to Hexa Space’s reasonable satisfaction.
- The Security Deposit refund will be in the form of a bank transfer to a bank account in the name of the Member the details of which shall be provided by the Member to Hexa Space within five business days from the expiry or termination of this Agreement. If the Member provides the details of such bank account after such period, the number of days Hexa Space has to refund the Security Deposit pursuant to clause 6(g) shall be extended accordingly. The Member shall bear any and all bank transfer or transaction fees, expenses or bank administrative charges or currency exchange issues in connection with such refund.
7. Fees, Payment and Invoicing
- (Initial Fee Payment) The Member shall pay the Initial Fee Payment to Hexa Space the earlier of either seven (7) days from the date Hexa Space issues the invoice in respect of such amount to the Member or the Commencement Date. If the Initial Fee Payment is not paid by the Commencement Date, Hexa Space shall not be required to provide the Services to the Member until the Initial Fee Payment is paid.
- (Membership Fee ) The Member shall pay the Membership Fee to Hexa Space, in each case without any deduction, setoff, withholding or counterclaim:
- (i) where this Agreement is in respect of any other service, monthly in advance by the first day of each month, and Hexa Space shall invoice the Member for the Membership Fee on a monthly basis in advance.
- (Additional Service Fee and Other Amounts ) Hexa Space will invoice the Member for any Additional Service Fee and any other amounts payable under this Agreement as and when such fees or amounts arise. The Member shall pay each such invoice by the due date specified in such invoice.
- (Late Payment) If any invoiced amount is not paid by its specified due date and remains unpaid beyond five working days after Hexa Space has provided notice of such non-payment, Hexa Space may (without limiting its rights or remedies):
- immediately suspend any or all of the Services and/or Additional Services and/or restrict the Member’s access to the Premises, the Other Premises and any Allocated Office Space specified in this Agreement, and charge a re-activation fee of $100 to lift such suspension and/or restriction after the Member has paid all outstanding amounts;
- charge a late payment fee of $80 and also interest at the Interest Rate on such outstanding amount from the day immediately following the specified due date to the date such amount is finally paid in full;
- terminate this Agreement pursuant to clause 12(a);
- treat all incurred amounts as being immediately due and payable;
- take action to recover such outstanding amount and other outstanding amounts owing to Hexa Space (including any interest), and all costs and expenses incurred in recovering such amounts (including without limitation all legal costs on a full indemnity basis);and/or
- charge an administrative fee of $100 for any returned cheque or stop payment cheque issued by the Member.
8. Access to the Allocated Office Space
Hexa Space’s Personnel may, acting reasonably and using reasonable efforts not to unduly affect the business operations of the Member and on reasonable written notice to the Member (except in an emergency or for general daily cleaning), enter the Allocated Office Space (if any) at any time for:
(a) routine inspections to evaluate the state and condition of the Allocated Office Space;(b) to carry out testing, repair works, cleaning and maintenance;(c) to show the Allocated Office Space to interested or prospective clients of Hexa Space after the Member has given due notice of non- renewal of this Agreement pursuant to clause 2(b) and/or(d) any other reasonable reason as specified in the written notice given to the Member prior to such entry.
The Member is encouraged to take out and maintain, at its own cost, for the duration of the Service Term and any Further Term, insurance that covers the Member’s belongings and effects, and any third party liability and/or liability to the Member’s Personnel. Should the Member choose not to take out and maintain any insurance, then the Member hereby releases and indemnify Hexa Space from all loss and damages which may arise out of the Member’s failure to effect the said insurance or which would have been covered by such insurance if it had been effected.
10. Compliance withlaws
- Each party must comply with all applicable laws where the Premises are located including all Privacy Laws and all privacy laws of each other country in which Personal Data is received, collected, held, used or disclosed by that party in connection with this Agreement.
- If the Member is excluded from the operation of all or part of any Privacy Laws, the Member agrees to comply with those Privacy Laws as if it were bound.
- Each party must ensure that its Personnel have not taken, directly or indirectly, any action or refrained from taking any action that would cause that party to be in violation of any applicable laws.
- Each party shall keep the provisions of this Agreement confidential and shall not disclose any such provision to any other person or entity without the prior written consent of the other party, provided that Hexa Space shall have the right to identify the Member as a member of the Premises.
- The confidentiality obligations in this clause do not apply to information that:
- is or becomes legally in the public domain without a breach of such confidential obligations; or
- is required to be disclosed by law.
Hexa Space may immediately terminate this Agreement by written notice:
- if the Fees and/or any other fees or charges payable by the Member under this Agreement are not paid by the due date;
- if the Member has breached any other provisions of this Agreement and/or the House Rules and such breach is not remedied in full within such reasonable period of time provided by Hexa Space after Hexa Space has delivered a notice of breach to the Member; or
- if insolvency, bankruptcy or judicial management (or other similar process) proceedings are commenced against the Member or if the Member becomes unable to pay its debts as they fall due or enters into or becomes subject to any form of insolvency administration or arrangements with its creditors.
13. Effect of termination or expiry
- Upon the termination or expiry of this Agreement:
- the Member’s right to have access to or use the Premises, the Other Premises and any Allocated Office Space specified in this Agreement shall immediately cease;
- where any Allocated Office Space is specified in this Agreement, the Member must promptly deliver up to Hexa Space such Allocated Office Space in a good and clean condition as well as all fittings, fixtures, furniture, equipment and any other items specified in the Inventory List in good and serviceable condition, in each case subject to fair wear and tear, pay to Hexa Space at the price indicated in the Inventory List for any item not delivered up to Hexa Space, and/or otherwise pay to Hexa Space the cost for restoring the Allocated Office Space to such condition;
- in the event any Allocated Office Space specified in this Agreement has been customized at the request of the Member, the Member shall pay to Hexa Space all costs for restoring such Allocated Office Space to the state it was in prior to such customization or to such other state as may be agreed in writing between the Member and Hexa Space;
- where any Allocated Office Space is specified in this Agreement, the Member shall pay to Hexa Space the Exit Fee;
- the Member shall pay to Hexa Space all other amounts payable under this Agreement and not yet paid (regardless of whether any such amount had been previously invoiced);
- Hexa Space has the right to immediately re-occupy, without prior notice, any Allocated Office Space specified in this Agreement;
- any items, belongings and/or personal effects left behind by the Member, its Personnel and/or its Permitted Occupiers will be deemed to have been abandoned and Hexa Space may dispose of such items in any manner at its sole discretion. Hexa Space is not liable for any disposal of such items under this clause and the Member shall be responsible for paying any fees reasonably incurred by Hexa Space in disposing of such items; and
- all amounts payable under this clause 13(a) shall be paid by the Member to Hexa Space within seven (7) days from the date Hexa Space issues an invoice in respect of any such amounts to the Member.
- Upon the termination or expiry of this Agreement, and if this Agreement is in respect of a Flexible Desk, Dedicated Desk or Private Office service, the Member shall be automatically enrolled for a Virtual Office service, at Hexa Space’s then prevailing list price, for three (3) months commencing immediately following the date of expiry or termination of this Agreement; the payment for the three (3) months of such service shall be deducted from the Security Deposit before it is refunded to the Member pursuant to clause 6(g).
- If this Agreement is terminated prior to the End Date, then in addition to its obligations under clause 13(a), the Member shall also pay to Hexa Space the Fees for the remainder of the Service Term in full within fourteen (14) days from the date of Hexa Space’s written notice.
14. Non-Compete and Non-Solicit Restraint
The Member acknowledges and agrees to:
- not, at any time, directly or indirectly, through another business or affiliate, offer to any Hexa Space Member services which are of a similar nature to, or in competition with, those offered by Hexa Space under this Agreement without the prior written consent of Hexa Space;
- abstain from any direct or indirect soliciting of Hexa Space Members within the Premises or any Other Premises without the prior written consent of Hexa Space; and
- not solicit or offer employment to any of Hexa Space Personnel during the Service Term and any Further Term and for a period of twelve (12) months after the expiry or termination of this Agreement.
15. Hexa Space Liability
- Hexa Space provides the Services and Additional Services on an “as is” basis and to the maximum extent permitted by law, excludes any representation, warranty, condition, guarantee or undertaking that may be implied by law or statute into this Agreement.
- Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Member by any consumer protection legislation or any other applicable law that cannot be lawfully excluded, restricted or modified (“Non-Excludable Obligation” ) . However to the fullest extent permitted by law, Hexa Space’s liability for a breach of a Non-Excludable Obligation is limited, at Hexa Space’s option, to the cost of supplying the Services again or payment of the cost of having the Services supplied again.
- Other than any wilful default, gross negligence or fraudulent conduct on Hexa Space’s part, Hexa Space is not responsible for and the Member releases Hexa Space from any claims or liability arising out of or in relation to:
- any interruption, disruption or cessation in the Member’s use of the Premises and/or any Other Premise sand/or the Allocated Office Space;
- any damage, injury or loss caused by any Hexa Space Member or persons on the Premises and/or any Other Premises;
- any accident, happening or injury suffered on the Premises and/or any Other Premises; or (iv) any damage to or loss of any goods or property on the Premises and/or any Other Premises.
- Hexa Space does not represent, warrant or guarantee to the Member any condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement.
- Hexa Space shall not be liable to the Member, in any circumstances, for any special, indirect or consequential damages, including without limitation any loss of profits or losses relating to business interruption.
- Hexa Space shall not be responsible for any mail, package or any other delivery addressed for delivery to the Premises or any Other Premises, or the Allocated Office Space (if applicable).
- The Member agrees that it shall not commence any action or proceeding in connection with or relating to this Agreement unless such action or proceeding is commenced within one year of the occurrence of the alleged cause of action that is the subject of such action or proceeding.
16. The Member’s Liability
- The Member shall be liable for, and hereby indemnifies and holds harmless Hexa Space, and their respective Personnel (the “Indemnified Persons”) from and against, all Claims arising out of or in connection with any breach by the Member of this Agreement or the use of the Services or Additional Services by the Member (except to the extent any such Claim arises due to Hexa Space’s gross negligence or wilful default).
- The Member indemnifies the Indemnified Persons for any and all costs incurred for repairs or replacement to make good any damage resulting from the use by the Member of the Premises, any Other Premises and/or any Allocated Office Space specified in this Agreement, fair wear and tear excepted.
- The condition of the Allocated Office Space as against the Inventory List shall be conclusive evidence against the Member in relation to the damages, costs and/or expenses incurred or suffered by Hexa Space.
17. Limitation of liability
- Each party’s liability under this Agreement will be reduced proportionally to the extent that the liability is caused by the other party.
- Neither party shall be liable for any delays in the performance of obligations under this Agreement (other than payment obligations) resulting from circumstances or causes beyond its reasonable control, including without limitation power outages, fire or other casualty, natural disaster, act of God, epidemic, strike or labour dispute, war or civil unrest, terrorism, or any law, order or requirement of any governmental authority.
- (Entire Agreement ) This Agreement together with the House Rules and the Inventory List (if any) constitute the entire agreement between Hexa Space and the Member with respect to the subject matter of this Agreement. The Member acknowledges it has not relied on any representations or warranties outside of this Agreement in entering into this Agreement.
- (Severability) If any part of the provisions of this Agreement is illegal or unenforceable, it will be severed from these provisions and the remaining provisions will continue in full force and effect.
- (Relationship) The relationship between the parties is one of independent contractors. Nothing in this Agreement creates or implies any partnership, joint venture, fiduciary, agency or employment relationship between the parties. Each party is engaged in the operation of its own respective business, and neither party shall have any right, power or authority to create any obligation, expressed or implied, on behalf of the other party.
- (Jurisdiction) This Agreement is governed by the laws of the state in which the Premises are located and the parties submit to the non- exclusive jurisdiction of the courts of such state.
- (Assignment) The Member must not assign or novate any of its rights or obligations under this Agreement without prior written consent from Hexa Space. Hexa Space may assign its rights or novate this Agreement to any Group Company.