Terms and conditions
June 1, 2017
This document sets out the terms and conditions that apply to the supply of Services by SpaceBook Pty Ltd ABN 44 618 217 084 (SpaceBook) and to the use of the Website and Application.
1. Supply of Services
1.1 You agree these Terms apply to all Services provided by SpaceBook and that these Terms are binding upon you whether or not you become a Registered User of the Services.
1.2 You will only use the Services, whether or not in conjunction with either the Website or Application, strictly in accordance with these Terms.
1.3 You agree not to engage in any illegal conduct when dealing with the Website, Application, or Services.
2. Use of Website
2.1 You may view Listings on the Website as an unregistered visitor to the website.
2.2 If you want to create a Listing or book a Space, you must become a Registered User.
3. Account registration
3.1 You may not have more than one active SpaceBook account and agree to provide accurate, current and complete information when registering for an account with SpaceBook.
3.2 Where you register for a SpaceBook account, you are responsible for the safeguarding of your account and your account password. You agree to immediately notify SpaceBook of any unauthorised use of your SpaceBook account. A breach of this section will entitle SpaceBook to terminate your account.
3.3 You may create a SpaceBook account and become a Registered User by following the registration process on the Website, or by logging in to a Third Party Account via the Website or Application.
3.4 You may link your SpaceBook account with a Third Party Account by either:
a. providing your Third Party Account login information to SpaceBook; or
b. allowing SpaceBook to access your Third Party Account.
3.5 Where you disclose Third Party Account information to us, you:
a. represent that you are entitled to do so; and
b. acknowledge that SpaceBook will store that information, and other information obtained in connection with accessing your Third Party Account.
3.6 Depending on your relationship with SpaceBook, where information is stored under clause 3.4b, you acknowledge that SpaceBook may make that information available:
a. on your SpaceBook account; and
b. the Website or Application,
for the purposes of providing the Services.
3.7 You agree and acknowledge that your relationship with the providers of any Third Party Account is governed solely by the agreements in place between you and those providers. Where a Third Party Account becomes unavailable to SpaceBook or is terminated by the Third Party Account Provider, SpaceBook will no longer have access to the information connected to your Third party Account. You have the ability to disable the connection between your SpaceBook account and your Third Party Account(s) at any time through your account settings.
4.1 If you are a Registered User, you may:
a. create Listings, and specify certain requirements to be met in order for a SpaceBook account holder to book Spaces in your Listings as well as set the price of the Space Fee; and/or
b. request to book Spaces advertised in Listings by other Listing owners.
4.2 You agree that if you create a Listing, all information requested during the creation of the Listing must be accurate, including, but not limited to:
a. the location, capacity, size, features and availability of the Space;
b. the physical address of the Space;
c. the Space Fee of the Space, including whether or not a security deposit or bond is required, and if so, how and/or when the security deposit or bond will be refunded; and
d. all sublease or licence terms relating to the Space.
4.3 You acknowledge and agree that once a customer has requested a booking of a Space through a Listing, the Price for that booking may not be altered.
4.4 By creating a Listing, you accept all responsibility for the content of that Listing, and warrant that the Listing:
a. will not breach any third party agreements or conflict with any third party rights; and
b. will comply with all relevant laws, rules and regulations including the ACL (where applicable).
4.5 You acknowledge that SpaceBook reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason.
4.6 Where a booking is requested for the Space in your Listing, you will be required to confirm or reject the booking within 24 hours, or alternatively, a commercially reasonable time as determined by SpaceBook.
4.7 When a booking is requested, we will share certain information with you, including:
a. the first and last name of the SpaceBook account holder requesting the booking;
b. certain Third Party Account information of the account holder requesting the booking (if applicable); and
c. any credit check information obtained.
4.8 If you confirm a requested booking, SpaceBook will provide you with a confirmation of that request via email or message, depending on your SpaceBook account preferences. SpaceBook will collect the Price, and will initiate payment of the Space Fee to you within 24 hours of when the occupation of the Space is scheduled to commence.
4.9 The Listing owner agrees to only accept payment from SpaceBook in accordance with the Services, and not to solicit payment directly from a SpaceBook account holder that requests a booking. A breach of this clause gives SpaceBook the right to terminate the Listing and/or booking request and act in accordance with the Cancellation Policy.
4.10 Once a requested booking is confirmed by a Listing owner and the Price has been paid by the Registered User who requested the booking, the Listing owner and Registered User agree that:
a. a legally binding agreement is created directly between the Listing owner and the SpaceBook account holder regarding the licensing of the Space; and
b. SpaceBook is not a party to that agreement, it simply is a facilitator of the transaction.
4.11 SpaceBook recommends that a written agreement be entered into between the Listing owner and Registered User. However:
a. SpaceBook is not a party to any such agreement;
b. will not compel the Registered User and Listing Owner to enter into any such agreement; and
c. recommends that the parties seek independent legal advice in relation to any such agreement.
4.12 If a Listing Owner does not confirm a booking request in accordance with clause 4.6, the booking request will be cancelled and the Price or any other monetary amounts collected by SpaceBook for the requested booking will be refunded.
Booking a Listing
4.13 If you request to book a Space in a Listing, you agree and acknowledge that if the booking request is confirmed, you will pay the Price to SpaceBook in accordance with the terms of this Agreement.
4.14 The Price must be paid to SpaceBook within:
a. 48 hours of receiving confirmation that the Listing Owner has generated a booking invoice
A Listing Owner is under no obligation to hold the booking if the Space has not been paid in full and all requirements outlined by the Listing Owner are completed. Confirmation that a booking has been confirmed will be provided to you either via message or email, depending on your SpaceBook account preferences.
4.15 SpaceBook is entitled to:
a. verify your identity and/or ability to pay the Price (including conducting credit and other checks on you) at any time after a booking request is made; and
b. obtain a pre-authorisation of payment for the Price from you.
4.16. SpaceBook may use a related entity or a third party service provider to provide payment services acting as a payment facilitator and escrow agent on behalf of the Listing Owner and Space Seeker ("Escrow Provider").
5. Third Party Services
5.1. SpaceBook may from time to time include on the SpaceBook Website promotions for and links to services offered by third parties ("Third Party Services"). These Third Party Services are not provided by SpaceBook.
5.2. Third Party Services are offered to you pursuant to terms and conditions offered by the third party. Third Party Services may be promoted on the SpaceBook Website as a convenience to our users who may find the Third Party Services of interest or of use.
5.3. If You engage with any Third Party Service provider your agreement will be directly between you and that Third Party Service provider.
5.4. SpaceBook makes no representation or warranty as to the Third Party Services. However, to help us continue to improve our SpaceBook Website, please let us know of any issue that You experience using a Third Party Service by contacting us at support.gospacebook.com.
6.1 SpaceBook warrants that any Service provided by SpaceBook to you will:
a. be with due care and skill;
b. performed within a reasonable amount of time (where applicable); and
c. fit for its relevant purpose.
7. Confidential Information
7.1 Confidential Information disclosed under this agreement by a party to the other party is only to be used by the Receiving Party for dealings under these Terms and the provision of Services and the Space.
7.2 The parties each reserve all rights in the Confidential Information and no rights or obligations in respect of the Confidential Information other than those expressly contained in this document are granted or are to be implied from these Terms.
7.3 Confidential Information may only be disclosed by the Receiving Party:
a. to the extent required to perform its obligations or exercise its rights under these Terms;
b. pursuant to a court order or to the extent compelled by law to do so, after having notified the Disclosing Party within a reasonable time to permit the opportunity to seek a protective order, unless such notice is prohibited by the court or by law; or
c. as otherwise authorised in writing by the Disclosing Party.
8. Intellectual Property
8.1 You acknowledge that all Intellectual Property Rights in and associated with the Website, Application and Services, including the SpaceBook Trade Mark are, and remain, the sole property of SpaceBook.
8.2 SpaceBook will not be liable for any third party Intellectual Property infringements or breach of the ACL in connection with a Listing.
8.3 You indemnify and agree to keep indemnified SpaceBook against any and all claims incurred by SpaceBook in relation to or in any way directly or indirectly connected with any breach of any Intellectual Property Rights caused by you through your use of the Services, Website or Application.
9. Limitation of liability
9.1 You understand and acknowledge that SpaceBook is not:
a. a party to the transaction between the Listing Owner and Registered User, or to any agreements entered into between you and a third party regarding the Space or other transaction. SpaceBook simply facilitates introductions and secures payment;
b. an agent or insurer for any party, or a real estate agent or broker;
c. the owner or operator of the Spaces or any other properties in connection with the Spaces;
d. responsible for the content of any Listings, including the determination of the Space Fee; or
e. responsible for the terms or content of any arrangement, whether written or otherwise, entered into between a Listing owner and a Registered User.
9.2 SpaceBook is strictly a provider of the Services, SpaceBook and shall not be liable for:
a. misrepresentations made in a Listing by the Listing owner in relation to a Space;
b. the accuracy of the information provided by a Registered User in a Registered User’s SpaceBook account;
c. the conduct of Listing owners or other third parties you may deal with or come in to contact with as a consequence of using the Website, Application, or Services;
d. the condition, legality or suitability of any Space;
e. the conduct of any damage caused by any Registered User occupying a Space that has been advertised in a Listing; or
f. the compliance of Listing owners, Space owners, or SpaceBook account holders that occupy or use a Space with any property, tax, insurance or other relevant laws.
9.3 In accordance with clause 8.2, you acknowledge that all bookings of a Listing for a Space are made at your own risk.
9.4 To the extent permissible under law, SpaceBook’ responsibilities are solely limited to:
a. facilitating the availability of the Website, Application and Services; and
b. serving as a limited agent of each Listing owner for the purpose of accepting payments on behalf of the Listing owner.
9.5 Notwithstanding SpaceBook’ responsibility set out in clause 8.4b, you agree that SpaceBook must not be liable for any acts or omissions of:
a. the Listing owner; or
b. the person(s), whether Registered Users or otherwise who occupy the Space, including (but not limited to) any damage caused to the Space during occupation.
You agree that regardless of the basis of any legal remedy or liability you will not:
i. impose liability on, or seek any legal remedy from SpaceBook; and
ii. hold SpaceBook harmless and full indemnify SpaceBook (without limitation) in relation to any remedy or liability and all claims, loss, damages, costs or expenses.
9.6 In addition to the limitation of 8.5, you agree that SpaceBook must not be liable for any:
a. loss of, or damage to, data;
b. special, indirect, exemplary and/or any economic consequential loss or damages; or
c. lost revenue, profits, business, goodwill or anticipated savings.
9.7 Notwithstanding the general exclusions of clauses 8.5 and 8.6, if SpaceBook becomes liable to you (regardless of the basis upon which you are entitled to claim any damages, loss, costs, or expenses) SpaceBook's entire maximum aggregate liability to you (including where a third party claim is made against you) must not, under any circumstances, exceed the Service Fee.
10. Dispute resolution
10.1 In the event of a dispute between the parties, any party may give the other party a written notice of the dispute adequately identifying and providing the details of the dispute.
10.2 Within ten business days after receiving a notice of dispute (or such longer time as the we may agree), representatives of the parties are to confer to resolve the dispute. All aspects of any such conference will be privileged and confidential.
10.3 If the negotiations of clause 9.2 do not successfully resolve the dispute, either of us can refer the dispute to mediation within five days of the negotiations ceasing. Any mediation will be attended by both parties in good faith. The mediation will be conducted:
a. in Sydney, Australia;
b. by a mediator agreed on by the parties. If the parties are unable to agree on a mediator within a reasonable period, the then current Chairman of LEADR (or successor body) or the Chairman's nominee, will nominate a mediator.
10.4 A mediator may not make a decision that is binding on a party unless a party has agreed in writing.
10.5 Except where a party seeks urgent interlocutory relief a party must not initiate court proceedings unless clauses 9.1 to 9.3 have been complied with.
10.6 Each party must continue to perform its obligations under this document notwithstanding the existence of a dispute.
SpaceBook reserves the right, at its sole discretion, to modify the Website, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. The modified Terms will only apply to new Listings, and will not apply to confirmed Space bookings.
The Website, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Website, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Website, Application or Services you represent and warrant that you are 18 or older.
11.3 Force Majeure:
A party will not be liable for any delay in or failure to perform its obligations under this document where that the delay or failure is caused by a Force Majeure event.
11.4 Obligation to mitigate:
You are obligated to mitigate any loss or damage which you may suffer in consequence of any breach by SpaceBook of the terms of this document.
11.5 Legality and severability:
A term or a part of a term of this document that is illegal or unenforceable may be severed from this document and the remaining terms or parts of terms of this document will continue to be in full force and effect.
The principle of contra proferentem shall not apply to the interpretation and application of these Terms.
11.7 Cancellations and refunds:
Cancellations and refunds are governed by SpaceBook’s Cancellation Policy.
11.8 Insurance offered
SpaceBook works with Gow Gates Insurance as our preferred insurance provider for general public liability insurance at a standard coverage of $1,000,000 and up to $20,000,000 per policy period. For more information about our insurance policy, please visit http://gospacebook.com/services/insurance.
11.9 Governing law and jurisdiction:
This document is governed by the laws of Australia and each party submits to the non-exclusive jurisdiction of the courts of Australia and any court competent to hear appeals from any of those courts.
In this document these terms have the following meanings:
Application means SpaceBook's mobile application device that provides access to the Services.
Cancellation Policy means the cancellation policy as set out on the Website, or as otherwise agreed between the parties.
Confidential Information means any information disclosed by either party to the other party that is either by nature confidential, designated by the party disclosing the information (Disclosing Party) as confidential or that the party receiving the information (Receiving Party) knows or reasonably ought to know is confidential. This includes the know-how, ideas, information, concepts, documents, software, manuals, literature, materials, designs, financial and business information and marketing strategies and any Intellectual Property Rights, that are confidential and proprietary to the Disclosing Party, its employees, contractors or suppliers. This does not include any information that is in the public domain other than through a breach of an obligation of confidentiality.
Force Majeure means any circumstance, matter or thing beyond the reasonable control of a party including acts of God, natural disasters, acts of war, riots and terrorist acts.
Intellectual Property Rights means statutory or other proprietary rights in respect of discoveries, inventions, patents, designs, circuit layouts, copyright, registered and unregistered trademarks, trade names, domain names, know-how and any right to keep confidential information confidential, and any application or right to apply for registration of any such rights in any and all jurisdictions.
Listing means a short-term Space listed by the Listing owner as available for licence or rent via the Services.
SpaceBook Trade Mark means Australian Registered Trade Mark No 1490691 registered in classes 35 and 36.
Price means the price payable by the SpaceBook account holder after a requested booking has been confirmed, including the Space Fee and Service Fee, but excluding any applicable taxes or duties.
Registered User means a person who completes SpaceBook's’ account registration process.
Services includes any services provided by SpaceBook's, including services provided by or in connection with the accessibility to Pop Up Brand’s online platform that connects Listing owners who have vacant or underutilised short-term retail space with those seeking such space, whether the online platform is accessed via the Website or the Application.
Service Fee means the Price minus the Space Fee that is payable to SpaceBook for their provision of the Services.
Space means a short-term retail space advertised in a Listing.
Space Fee means the fees payable to the Space owner for the short-term rental or licence to, or other occupation of, the Space, and includes any applicable security deposit or other bond stipulated in the Listing.
Terms means the terms and conditions of this document.
Third Party Account means an account registered with a third party social networking site, including, but not limited to Facebook and Linkedin.
Website means www.popupbrandshq.com and any other affiliated websites run by SpaceBook.