These Terms provide the terms on which Spacenow permits Users to:
- access and use the Spacenow Platform (Platform) including using the website, services and functionality made available through the Platform;
- view and interact with any content, information, communications, advice, text or other material provided by Spacenow (Platform Content);
- upload content, including pictures, photographs, graphics, information, comment, content, communications, text or other material, including in relation to Spaces and Host Services (User Content) to the Platform; and
- communicate and transact directly with other Users.
You or the Principal may be a Host, a Guest, an employee, agent, consultant, service provider, subcontractor (including a third party supplier) or a third party nominated by a Host or a Guest from time to time (collectively, you). You agree to be bound by these Terms when you use, browse or access any part of the Platform.SpaceNow may from time to time review and update these Terms including to take account of new laws, regulations, products or technology. Your use of the Platform will be governed by the most recent Terms posted on the Platform. By continuing to use the Platform, you agree to be bound by the most recent Terms. It is your responsibility to check the Platform regularly for updated versions of the Terms.If SpaceNow updates the Terms and you believe that this change will have a detrimental impact on you or on your use of the Platform, you are entitled to terminate these Terms by giving SpaceNow notice of your decision no later than 30 days after the effective date of the change by contacting SpaceNow at email@example.com with the subject line “Termination for Change”, with a description of your request to terminate and your contact details. It is your obligation to take a copy of your User Content before providing this notice to SpaceNow as later access may not be granted. Any account you have may also be cancelled and you must no longer access or use the Platform under the suspended account.You accept that SpaceNow provides a Platform only and does not provide or license any Spaces to Guests. The Licence Agreement for use of a Space is between a Host and a Guest and not with SpaceNow.
1. Definitions and Interpretation
1.1 DefinitionsAdministration Fee has the meaning given in clause 7.3(b)(i)(B);
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales;
Building means the building in which the Space is located, and includes any common areas and shared facilities located in the building;
Confidential Information means: these Terms including Information submitted or disclosed by either Party during negotiations, discussions and meetings relating to these Terms;
- these Terms including Information submitted or disclosed by either Party during negotiations, discussions and meetings relating to these Terms;
- Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
- all other Information belonging or relating to a Disclosing Party, or any related entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party;
Controller means, in relation to a person:
- a controller (as defined in the Corporations Act), receiver, receiver and manager, administrator, liquidator (whether provisional or otherwise) of that person or that person’s property or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity; or
- anyone else who (whether or not as agent for the person) is in possession, or has control, of that person’s property to enforce an encumbrance;
Corporations Act means the Corporations Act 2001 (Cth);(a) Disclosing Party means the Party to whom Information belongs or relates;Fees means the amounts payable to the Host from the Guest for the provision of Host Services, including any amounts paid on account of VAT (GST);
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self- regulatory organisation established under statute;
Guest means users who are registered on the Platform to browse, connect, communicate with and/or purchase Host Services from Hosts;
Host means the providers who are registered on the Platform to advertise, connect, communicate with and/or sell their Host Services to Guests;
Host Services means the services provided by the Host to the Guest and include but are not limited to, the provision of access to and use of the Host’s Space and any other services advertised by the Host on the Platform;
Host Originated Guest means a Guest who first makes a Reservation for a Space as a result of invitation from the relevant Host;
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
- forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
- copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
- samples or specimens disclosed by either Party;
Insolvency Event means, in respect of a party, any one or more of the following events or circumstances:
- a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
- having a Controller or analogous person appointed to it or any of its property;
- being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act or any other Law;
- seeking protection from its creditors under any Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors;
- any analogous event or circumstance to those described in paragraphs (a) to (d) under any Law; or
- taking any step or being the subject of any action that is preparatory to, or reasonably likely to result in, any of the above, unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation and in the case of SpaceNow is approved by you;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
- patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder’s rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- any application or right to apply for registration of any of these rights;
- any registration of any of those rights or any registration of any application referred to in paragraph (b); and
- all renewals, divisions and extensions of these rights;
Law means in any jurisdiction that is applicable to this Agreement:
- any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time to which a Party is subject;
- the common law and the law of equity as applicable to the Parties from time to time;
- any binding court order, judgement or decree;
- any applicable regulation, industry code, policy or standard enforceable by law; or
- any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any Government Agency having jurisdiction over a Party or any of that Party’s assets, resources or business;
Licence Agreement means the licence agreement which applies between a Host and a Guest in accordance with clause 3.5;
Loss means any loss, damage, cost or expense;
Party means you or Spacenow;
Personal Information has the meaning given in the relevant Privacy Law;
Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
Receiving Party means the Party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party;
Reservation means a reservation for a Space or other Host Services made on the Platform by a Guest;
Services means the services provided by Spacenow to Users set out in clause 3;
Service Charges means the fees payable by the Host to Spacenow for the provision of Services;
Space means the space, property, location, room or area of land subject to the Host Services provided by the Host to the Guest, as specified on the Platform or otherwise agreed to by the Parties;
Space Rules means all additional terms, conditions and policies provided by the Host relating to the use of Space as set out on the Platform, provided to the Guest by the Host or as otherwise set out in the Licence Agreement;
Spacenow Originated Guest means any Guest other than a Host Originated Guest;
Terms means these agreed terms; and
VAT (GST) has the meaning set out in clause 13.
2. Registration of Accounts
2.2 In order to access certain features and functionality of the Platform (such as uploading User Content and accessing Platform Content) you will have to register as a User of the Platform (User) and obtain either a Host or Guest account (Account) by providing all of the information required at registration.
2.3 When creating your Account, you become a User and warrant that you are of legal age to form a binding contract with Spacenow and have the necessary capacity to enter into a binding legal contract, and that all information you have provided is true, accurate and complete. You must provide an email address that you own or control.
2.4 You will be fully responsible for all acts and omissions of any person using your password and Account, as if they were your own acts and omissions. You agree that you will not share, disclose, or permit disclosure of, your password, let anyone else access your Account or do anything that would risk the security of your Account. Spacenow will not in any event be liable for any Loss arising out of the use or misuse of your password and Account, and you will indemnify Spacenow against all Loss in this regard.
2.5 You must notify us immediately if you become aware of any unauthorised access or use of your Account.
2.6 You agree that you will not create more than one personal Account and if we disable or terminate your Account for any reason, you will not create another one without our permission, whether through the use of your own personal details or those related to you or created by you.
2.7 We reserve the right to refuse registration of any Account, at our sole discretion.
2.8 Your registration as a User (and your Account) may be refused if your User Content uploaded via your Account involves
a. any of the prohibited uses as set out in clause 9; or
b. is otherwise deemed inappropriate in our absolute discretion.
3.1 Spacenow provides an online platform that enables Hosts and Guests to communicate and transact directly.
3.2 The Platform displays links to Spaces that the Host advertises or otherwise makes available from time to time.
3.3 Spacenow is not an owner, operator, provider or otherwise in control of any Space or Host Services. The responsibility of Spacenow is solely limited to the operation of the Platform.
3.4 In providing the Platform, Spacenow merely facilitates transactions directly between Hosts and Guests. When a Host advertises or otherwise makes available Host Services which are reserved by Guests, this forms a contract on the terms of the Licence Agreement between the Host and the respective Guest. Spacenow is not a party to any agreements formed between a Host and a Guest, nor is it acting as a real estate agent, broker, or insurer.
3.5 The Licence Agreement applying between the Host and Guest will be as set out at www.spacenow.com/licenceagreement unless the Host and the Guest agree in writing to an alternate form of Licence Agreement.
3.6 By advertising, or otherwise making available Spaces on the Platform, the Host is making a commitment to provide the Spaces and the Host Services in accordance with these Terms.
4. Modifications and Cancellations
4.1 Spacenow will adjudicate any disagreements relating to refunds between Guests and Hosts, but is not ultimately responsible for providing refunds to Guests.
4.2 Unless otherwise specified in the Licence Agreement, a Host may cancel a Reservation if it loses the right to occupy the Space. If it does so, it must refund all Fees paid by the Guest (including any Service Charges paid to Spacenow).
4.3 The Host must set a cancellation policy for each Space and comply with the relevant refund policy set out in the following table:
|Cancellation Policy||Full Refund (excluding any applicable Administration Fees)||50% refund (excluding any applicable Administration Fees)||No Refund|
|Most Flexible||Reservations cancelled at least 24 hours prior to commencement||Reservations cancelled within 24 hours of commencement|
|Flexible||Reservations cancelled at least 7 days prior to commencement||Reservations cancelled at least 24 hours, but less than 7 days prior to commencement||Reservations cancelled within 24 hours of commencement|
|30 Day||Reservations cancelled at least 30 days prior to commencement||Reservations cancelled at least 7 days, but less than 30 days prior to commencement||Reservations cancelled within 7 days of commencement|
|90 Day||Reservations cancelled at least 90 days prior to commencement||Reservations cancelled at least 14 days, but less than 90 days prior to commencement||Reservations cancelled within 14 days of commencement|
4.4 The following apply in respect of all modifications:
- the Host will not modify a Reservation without the express agreement of the Guest; and
- following a Reservation being made by a Guest, the Host will not require that the Guest pay a higher amount than stipulated in the Reservation.
5.1 User Content
- When you use the Platform, you may upload User Content.
- Any User Content uploaded by you to the Platform:
- may be accessed and viewed by the public; and
- may be used by SpaceNow in accordance with the licence granted to it by clause 5.1(d), including in the promotion of the Platform
- You agree to be solely responsible for any User Content that is posted or uploaded to the Platform.
- You retain all Intellectual Property Rights in the User Content uploaded to the Platform. By uploading the User Content, you grant SpaceNow a perpetual, non-exclusive, royalty free, irrevocable, transferable and worldwide licence (including the right to sub-licence), to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from and incorporate in other works, the User Content, at any time in the future in any form and for any purpose.
- You consent to your User Content being altered, edited or adapted by us for any reason including to ensure your User Content does not infringe these Terms. To the extent that you have any moral rights (pursuant to the Copyright Act 1968 (Cth)) in the User Content, by agreeing to these Terms, you provide an irrevocable and unconditional consent in favour of us, our successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with your User Content (whether or not currently in existence) to:
- perform, exhibit, reproduce, adapt and communicate any part of your User Content in any medium and anywhere in the world without attributing you or any other person as an author of or contributor to that User Content;
- do any act or omission that would constitute a derogatory treatment of your User Content;
- make any use of your User Content that may falsely attribute authorship of the User Content to another person;
- delete or adapt or change any of your User Content in any way, including by addition to or subtraction from your User Content; or
- combine or juxtapose your User Content with anything else.
- Where the User Content uploaded by you to the Platform contains material from third parties, you warrant that you have obtained the moral rights consents described in clause 5.1(e) from such third parties.
We may access or examine any User Content and at our discretion monitor, move, remove, block, modify, edit, refuse to upload or disable access to User Content which we consider, in our sole discretion, to breach any law or these Terms or to be otherwise unacceptable.
- You acknowledge that we:
- have no responsibility or liability for the deletion or failure to store any User Content uploaded by you or any other user on the Platform; and
- are not responsible for any User Content uploaded to the Platform by you or any User nor under any obligation to monitor, move, remove, block, modify, edit, refuse to upload or disable access to it.
- You represent and warrant that:
- you own the User Content or have the necessary licences, rights, consents and permissions to publish the User Content you upload on the Platform;
- you have the right and power to grant the licence contained in clause 5.1(d) to us;
- the User Content uploaded by you will not infringe the Intellectual Property Rights of any third party; and
- you will not upload User Content that will cause you to breach these Terms, in particular clause 9.
- You understand that we do not guarantee any confidentiality with respect to any User Content you upload to the Platform.
- You acknowledge and agree that we are under no obligation to take legal action in relation to commencing, defending, enforcing, settling or compromising (as appropriate) any infringement, claim or action relating to your Intellectual Property Rights in User Content.
5.2 Platform Content
- The Platform is owned and operated by or on behalf of SpaceNow.
- The Platform Content is for general information and promotional purposes only. In providing a Platform for Hosts and Guests to connect and transact, SpaceNow provides no endorsements as to the qualities of the Guest or any verification of the Spaces or Host Services advertised on the Platform. Any use of the Platform Content, materials or information by another person or organisation is at your own risk.
- The Platform Content includes feedback obtained from Guests and Hosts. Guests and Hosts may submit feedback to the Platform following completion of Host Services in respect of a specified Reservation. Hosts agree and acknowledge that Guests may publicly post feedback in the form of ratings and reviews of the Spaces or Host Services. Guests agree and acknowledge that Hosts may publicly post feedback as to the Guests’ conduct with respect to the Spaces or Host Services. Guests and Hosts agree that SpaceNow may, but is not obligated to, monitor feedback, and you release SpaceNow from any and all claims, causes of action, obligations or liabilities arising from or relating to such feedback.
- The Platform Content is obtained and developed from a variety of sources including but not limited to collaborations with third parties and information provided by third parties under licence. Inclusion of Platform Content is not an endorsement of any organisation, product, service or advice.
- SpaceNow grants you a non-exclusive and non-transferable right to use the Platform for your own use, subject to the restrictions specified elsewhere in these Terms.
- All Intellectual Property Rights, including copyright, in the Platform and the Platform Content are owned or licensed by SpaceNow or any of its related entities. You must not copy, modify or transmit any part of the Platform or the Platform Content.
- The Platform may contain trade marks, logos and trade names of SpaceNow or third parties which may be registered or otherwise protected by law. You are not permitted to use any trade marks, logos or trade names appearing on the Platform.
6. Access and Communication
6.1 Subject to the consumer guarantees provided for in the ACL (as defined in clause 11), SpaceNow does not warrant that you will have continuous access to the Platform.
6.2 SpaceNowwillnotbeliableifthePlatformisunavailable toyouduetocomputerdowntimeattributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.
6.3 SpaceNow does not guarantee the delivery or security of communications over the internet as such communications rely on third party service providers, and electronic communication (including electronic mail) is vulnerable to interception by third parties.
6.4 Whilst SpaceNow takes reasonable precautions to protect information transmitted via the Platform, SpaceNow cannot and does not guarantee the security or confidentiality of these communications or the security of the Platform.
6.5 SpaceNow does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Platform and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
7. Host Obligations
This Section only applies in respect of a Host.7.1 Authority
As a Host, you must:
- have the requisite authority and right to grant a licence for the Space subject to the Host Services on the terms of the Licence Agreement;
- ensure that you have sufficient rights in and to the Space to participate in the Host Services as a Host, including any applicable permits; and
- ensure that your participation in the Hosting Services as a Host will not violate or result in the breach of any agreement between you and any third party.
- not publish, or otherwise make available a listing for a Space that you are not legally empowered to deal with;
- not circumvent the Platform or the obligation to pay the Service Charges stipulated in clause 7.3(b); and
- publish, or otherwise make available, hosting data necessary to ensure the operation of the Platform.
7.2 Policies and Regulation
- As a Host, you agree and are solely responsible for ensuring:
- the Space is safe and suitable for occupation for its purpose in accordance with all applicable and customary work, health and safety Laws and requirements;(c) the Space is maintained in good and tenantable repair and in compliance with all applicable Laws, regulations, local authority requirements, building codes and any other applicable requirements;
- the Space is inspected for damage and non-compliance with these Terms in between each Reservation;(e) the Space is free for any known defects or conditions that would pose a hazard to the risk and safety of any Guest if used for the intended purpose of the Space;
- the Space is clean, tidy and ready for use at the start of any Reservation;
- the Space and Host Services correspond with the description and are fit for the purposes advertised on the Platform;
- the Host Services will be performed in compliance with these Terms and all applicable Laws;
- the Reservation of the Space through the Platform does not violate any lease, mortgage, or other agreements relating to or secured over or registered in respect of the Space or the Building or any applicable Laws, local authority requirements, building codes and any other applicable requirements;
- the Guest is provided with the correct and up to date Space Rules;
- if a Reservation is to begin at a specified time or on a specified date, that the Space is available to the Guest at that time or on that date. In the event the Space is not available to the Guest at that time or on that date, you shall make available to the Guest at the originally scheduled time and date another Space in the same Building of equal or larger size and similar configuration for the same Fee; and
- any Licence Agreement entered into with a Guest complies with all applicable Laws and regulations.
7.3 Fees, Pricing and Billing
a. As a Host, you are solely responsible for:
(i) establishing the Fees to be charged to Guests for a Space which must be inclusive of all VAT (GST);
(ii) issuing a VAT (GST) invoice (or such equivalent document which may be required in the relevant location) to a Guest in accordance with applicable Laws on request if you are eligible to do so;
(iii) paying the Service Charges for the use of the Platform in accordance with this clause 7.3;
(iv) obtaining any insurances required or customary for Reservations on the Platform and for the use of the Space, in accordance with applicable Laws;
(v) paying all applicable taxes in connection with your use of the Platform;
(vi) providing and maintaining accurate contact and payment information, including without limitation applicable tax information such as your Australian Business Number (ABN);
(vii) keeping complete and accurate records regarding Space usage and payment by Guests, which Spacenow may audit upon reasonable notice to confirm proper payment and compliance with these Terms;
(viii) ensuring that any bank fees arising from any error or omission in your payment information and contact information is deducted from your Fees;
(ix) ensuring that changes to the Fees in respect of an hourly Reservation will not affect the amount billed for hourly Reservations that have already been booked, even if such hourly Reservations have not yet begun;
(x) ensuring that changes to the Fees for monthly Reservations will not affect the amount billed during the term for monthly Reservations that have already been booked;
(xi) ensuring that, in respect of any renewals of Reservations, changes to the Fees for monthly Reservations will take affect the first full month beginning at least 30 days after the change is made through the Service; and
(xii) notifying Spacenow of a change to any Fees through the Platform to enable Spacenow to amend the profile for the Space.
b. As a Host, Spacenow is entitled to invoice you directly for the following default Service Charges:
(i) for each Reservation with Spacenow Originated Guests:
(A). 10% + GST of the Fees for the Reservation by a Guest of a particular Space (Commission Fee);
(ii) for each Reservation with Host Originated Guests, the Commission Fee in respect of such Reservation. Spacenow shall determine at its sole discretion if a Guest is a Host Originated Guest or not.
c. There will be no Service Charges for Reservations cancelled and refunded in accordance with these Terms.
d. Spacenow may automatically deduct the Service Charges and any other amounts due to it (including for any overpayments) from payments made by Guests prior to any remittance to Hosts. Spacenow will not be required to pay Hosts any Fees until and unless the Guest has paid (and a Guest will be considered to not have paid in the event of a chargeback).
e. As a Host, Spacenow will endeavour to remit payment to you within 48 hours of a Reservation being made or within 48 hours following the billing cycle with respect to recurring payments, subject to variations with respect to payment method, your location and weekends/public holidays.
f. If you dispute any Service Charges hereunder, you must notify Spacenow in writing within 30 days of receiving the relevant invoice, failure of which will result in a waiver by you of any claim relating to the disputed Service Charge.
g. If Spacenow believes that it is obligated to obtain tax information and you do not provide this information after being requested to do so, Spacenow may withhold your payments until you provide the specified information or confirm in a manner that is satisfactory to Spacenow that you are not a person or entity from whom Spacenow is required to obtain tax information.
- A Coupon reduces the amount of Fees collected from the Guest by SpaceNow by the value of the discount. Coupons may be issued by SpaceNow either in its sole discretion (SpaceNow Coupon) or at the request of the Host (Host Coupon). Coupons may, at the sole discretion of SpaceNow, be applicable to all Spaces or to a particular group of Spaces.
- When calculating the Fees payable to the Host:
- SpaceNow will add back the full value of the discount for each Reservation where a SpaceNow Coupon is redeemed; or
- reduce the Fees collected by the value of the discount for a Host Coupon.
8. Guest Obligations
This Section only applies in respect of a Guest.8.1 As a Guest, you must:
- comply with the Space Rules, the Host’s policies and the Licence Agreement;
- pay the Fees to be charged by Hosts for the Spaces and Hosting Services in accordance with the Licence Agreement entered into with the specified Host;
- comply with all other terms set out in the Licence Agreement with the specified host and all applicable Laws and regulations; and
- not cause any damage to the Host’s Space or bring Loss to the Host arising from a breach of these Terms or from a breach of the Licence Agreement.
9. Prohibited Uses
9.1 As a User of the Platform, you (and you must procure that other people who may use the Platform on your behalf) must:
- not breach or circumvent any applicable Laws;
- not damage or tamper with the operation of the Platform;
- not frame any portion of the Platform without SpaceNow’s written consent;
- not bypass (or attempt to bypass) any security mechanisms imposed by the Platform;
- not impersonate or falsely claim to represent a person or organisation;
- comply with all reasonable directions of SpaceNow with respect to your use of the Platform;
- take all reasonable steps to mitigate the risks inherent in the use of the Plaform, including loss of your own data;
- upon SpaceNow’s request, provide reasonable assistance in the investigation of any security issue relevant to the Platform;
- use your best endeavours to not introduce a virus, worm, Trojan horse, malware, spyware, disabling or malicious device or code, time bomb, or any other software or hardware or configuration that may cause harm or change to the Platform;
- immediately notify SpaceNow if you become aware that the Platform may infringe on the Intellectual Property Rights of a third party;
- not remove, modify or obscure any copyright, trade mark, or other proprietary right notices that appear on the Platform;
- not download, transmit, copy, store, reformat or otherwise modify any element of the Platform; and
- not publish, or otherwise make available, data which is illegal, fraudulent, defamatory, or otherwise offensive to third parties, or otherwise use the Platform in a manner which is unlawful or would infringe the rights of another person including any Intellectual Property Rights.
10.1 You agree and acknowledge that you will fully indemnify SpaceNow in respect of all loss, damages, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with:
- any breach of these Terms;
- your use of the Platform, including any wrongful, wilful or negligent act or omission;
- your communications with SpaceNow;
- your use of third party websites linked to the Platform;
- any claims made by Guests, if you are a Host; or
- any claims made by Hosts, if you are a Guest.
11. Warranties, Consumer Guarantees and Limitation of Liability
11.1 Subject to clause 11.2, any representation, warranty, condition, guarantee or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
11.2 Nothing in these terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Operator by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) or any other applicable law that cannot be excluded, restricted or modified by agreement.
11.3 To the fullest extent permitted by Law, the liability of SpaceNow for a breach of a non-excludable guarantee referred to in clause 11.2 is limited to:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
11.4 SpaceNow is not liable to you:
- for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breac h of contract, tort (including negligence), statute or otherwise) arising in connection with the Platform, all links to or from the Platform or the Spaces or Host Services advertised or referred to on the Platform;or
- in relation to any Licence Agreement or otherwise in relation to the provision of a Space to a Host or the use of a Space by a Guest.
11.5 Subject to this clause 11, the maximum aggregate liability of SpaceNow for all losses, damages and claims arising out of or in connection with these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $500.
12.1 SpaceNow may at any time immediately terminate your access (including restricting access) to the Platform or any feature of the Platform for any reason (including due to your breach or alleged breach of these Terms or of the Licence Agreement) in its sole discretion and without prior notice.
12.2 Should SpaceNow decide to exercise its rights granted by clause 12.1:
- any pending or accepted future Reservations will be immediately terminated;
- SpaceNow may communicate to Users that your account has been cancelled;
- SpaceNow may, if you are a Host, refund the Guest in full for any and all confirmed Reservations; and
- you will not be entitled to any compensation for Reservations that were cancelled as a result of a suspension or termination of your Account.
12.3 You may terminate your SpaceNow Account at any time by providing SpaceNow with a notice of termination in accordance with the termination instructions available on the Platform. Upon receipt of the termination notice, SpaceNow will remove your Account and cease displaying your User Content, including your Spaces if you are a Host and your collections on or through the Platform.
12.4 This clause 12 and clauses 5.1(d), 11 and 14 will survive termination of your access to the Platform in accordance with clause 12 and will continue to the benefit of and be enforceable by SpaceNow.
13. Value Added Tax (Goods and Services Tax)
13.1 In this clause 13:
- “Laws” means any applicable law, statute, by law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), guidance or industry code of practice, rule of court or directive, delegated or subordinate legislation in force from time to time; and
- “VAT (GST)” means value added tax, goods and services tax, consumption tax, services tax or any similar taxes from time to time imposed in any jurisdiction.
13.2 All consideration to be paid or provided pursuant to these terms is expressed exclusive of any VAT properly chargeable in accordance with Laws.
13.3 Subject to clause 13.5, if VAT (GST) applies to a supply made by SpaceNow in accordance with these terms, you must pay SpaceNow an additional amount equal to the VAT (GST) chargeable on the supply.
13.4 You must pay the amount referred to in clause 13.3 to SpaceNow at the same time that the first part of the consideration for the supply is to be paid or provided, subject to SpaceNow issuing a VAT (GST) invoice or other document as may be required to be issued by SpaceNow by any relevant Laws.13.5 The parties agree that if any relevant Laws allow or oblige you to:
- treat any supply made by SpaceNow pursuant to these terms as made by you (as opposed to SpaceNow), or
- to account for VAT (GST) on the supply (instead of SpaceNow accounting for the VAT (GST)),
- you must account for VAT (GST) under the reverse charge procedure or whatever procedure is appropriate according to the Laws and clause 13.3 does not apply.
13.6 If a party is entitled to be reimbursed or indemnified under these terms for a cost or expense which includes VAT (GST), the amount to be reimbursed or indemnified must be reduced to the extent that the party (or another member of a VAT (GST) group of which that party is a member) is entitled to an input VAT (GST) deduction or credit.
13.7 If the VAT (GST) payable on a supply made under these terms varies from the amount paid by you to SpaceNow in accordance with clause 13.3 following a change to the consideration or otherwise, then:
- SpaceNow must recalculate the amount of VAT (GST) payable under clause 13.3 and notify you of the new amount within 14 days of becoming aware of the adjustment or variation;
- a corresponding amount must be paid by SpaceNow to you, or by you to SpaceNow (as the case requires); and
- SpaceNow will issue you any further appropriate VAT (GST) invoice or a credit note for VAT (GST) purposes which is required to evidence or effect the adjustment.
14.1 Entire understanding
- These terms contains the entire understanding between the Parties concerning the subject matter of these terms and supersedes all prior communications between the Parties.
14.2 No adverse construction
- These terms is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
14.3 No waiver
- A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by these terms does not operate as a waiver of that power or right.
- A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these terms;
- A waiver of a breach does not operate as a waiver of any other breach.
- Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
14.5 Governing Law and jurisdiction
- These terms is governed by and must be construed in accordance with the Laws in force in the State of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these terms, its performance or subject matter.
14.6 Operation of indemnities
Unless these terms expressly provides otherwise:
- each indemnity in these terms survives the expiry or termination of these terms; and
- a party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.