Please read these Terms of Service (‘Terms’, ‘Terms of Service’) carefully before using the airdeskers.com.au website (the ‘Service’) operated by AirDeskers (‘us’, ‘we’, or ‘our’). Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. They contain important information about your legal rights, remedies and obligations. By accessing or using the AirDeskers Platform, you agree to comply with and be bound by these Terms.
(THE PARTY LISTED AS LICENSOR IN THE ITEM SCHEDULE)
WILDERNESS PROPERTIES PTY LTD ACN 614 946 897 ATF GARDNER FAMILY TRUST T/A AIRDESKERS
|Item 1.1v||Licensor and Contact Details||
Business Name: as per ‘Listing Name’ online
User Name: as per first part of email address prior to ‘@’ symbol
Phone Number: as per ‘phone number’ online
Email: as per ‘contact email’ online
|Item 1.2||Start Date||Date the form is clicked ‘submit listing’ online|
|Item 1.3||Termination with notice||This Agreement may be terminated with one (1) months’ written notice.|
|Item 1.4||Exclusive Agreement||Is the Agent the only party able to licence the Premises……..Yes../ No|
|Item 1.5||Agents Authorised to:||
Authorisation includes but is not limited to those as described in clauses:
· 4.5, 4.6, 6.6
Provide details of premises and marketing for licensees
(fees exclude GST unless shown otherwise)
· See Annexure A (if applicable)
· Cost of Induction tour by Agent or Third party: $200- automatically payable if Licensor cannot provide.
· Fees to be paid within 10 business days of invoice or as contained in invoice.
· Standard rate for letting fee 15% of Licence Agreement Value.
|Item 1.7||Special Conditions||
|Item 1.8||Agent and Contact Details||
Name: Wilderness Properties Pty Ltd ACN 614 946 897 ATF Gardner Family Trust T/A AirDeskers and/ or Home Logic Real Estate
Contact Number: 0418 804 679
|Item 1.9||Premises address||
As per ‘location’ online
|Item 1.10||Licenced Area description||
As per ‘listing labels’ and ‘description’ online
Between LICENSOR and AGENT
1.12 In this Agreement (which includes the Item Schedule) the following terms mean:
“Agent” means party that has express (oral or written) or implied authority to act for another (the Licensor) so as to bring the Licensor into contractual relationships with other parties. An agent is under the control (is obligated to) the Licensor, and (when acting within the scope of authority delegated by the Licensor) binds the Licensor with his or her acts;
“Agreement” means these terms, conditions and the Item Schedule;
“Business Day” means a day which is not a Saturday, Sunday or public holiday in the capital city of the state in which the Premises is located;
“Fees” monies to be paid to the Agent as provided in Item (1.6), including any Letting Fees;
“Fees, Charges & Expenses” any extraordinary expense the Agent incurred in marketing the Premises such as furniture rental or purchase, travel by Agent’s employees, photograph and video services, floor plan design, professional services and 3rd party advertising (for the removal of doubt this list is not exhaustive).
“GST/VAT” (Goods and Services Tax / Value Added Tax) A tax on the monetary value considered to be added to the final price paid by consumers (if relevant);
“Item” an Item in the Item Schedule forming part of this Agreement;
“Item Schedule” means the second page of this Agreement;
“Letting Fee” monies payable, on a Licensee entering into an initial agreement for a Licenced Area, to the Agent as provided in Item (1.6) calculated as either a percentage of the total Licence Agreement Value or as a Standard Monthly Licence fee.
“Licence Agreement” means any agreement between the Licensor and a Licensee in relation to a Licenced Area;
“Licence Agreement Value” means the total money excluding GST/VAT (if applicable) stated as payable by the Licensee to the Licensor under a Licence Agreement of a Licenced Area in respect of the first twelve (12) months of that Licence Agreement or the whole duration of that Licence Agreement if the Licence Agreement is for a shorter period;
“Licenced Area” means an area licenced or available to be licenced by the Licensor to a third party under a Licence Agreement;
“Licensee” means a Prospective Licensee who enters into a Licence Agreement for the Premises with the Licensor;
“Paid Month” when the term paid month is referred to this factors in a standard full months fee and excludes any incentives or discounts applied;
“Premises” means an area designated by the Licensor as being available to be a Licenced Area;
“Licensor” the licensor is the party who gives legal authority for another party called the “Agent” to act on the licensor’s behalf. The licensor can be an individual, corporation or government agencies;
“Prospective Licensee” means a person or corporation referred to the Licensor by the Agent and who has reasonably indicated an interest in entering into an Agreement with the Licensor and becoming a Licensee;
“Services and/or Outgoings” the total of any monies other than licence fees payable by the Licensee (excluding GST/VAT (if applicable)) to, for or on behalf of the Licensor in accordance with the provisions of the Licence Agreement for the term thereof, excluding any refundable security deposit. Such items include connectivity chargers for telephone and internet, fixed commitment to meeting room usage and kitchen facilities. This figure excludes set up fees for these services and pay as you go fees such as administration services and meeting rooms.
“Special Conditions” means the provisions set out in Item (1.7);
“Standard Monthly Licence Fee” The total of all licence fee and services (excluding GST/VAT (if applicable)) payable for a standard month during the term of the Licence Agreement. This figure excludes any incentives offered under the Licence Agreement, discounts or free months;
“Tax Invoice” means a valid tax invoice issued by the Agent in accordance with the local GST/VAT laws. The tax invoice will be addressed to the Licensor and set out with reasonable specification details of the Fees and underlying transactions to which it relates;
2. Licensor’s Confirmation
- By signing this Agreement the Licensor(s) warrants and confirms:
- having read this Agreement;
- having authority to enter into this Agreement; and
- it has the authority and has obtained all relevant rights, Licences, consents and authorisations:
- to enable the Agent to do all things (including as described in Item 1.5) and exercise all rights contemplated by this Agreement;
- to enable the Licensor to do all things and perform all obligations contemplated by this Agreement;
- to grant the Agent letting rights of the Premises during the term of this Agreement; and
- has approval to licence the premises to a 3rd party, including but not limited to any consents and authorisations required under any head lease or sub lease for the Premises.
3. Appointment of Agent
- For the duration of this Agreement the Licensor appoints the Agent and its permitted assigns as letting/referral/marketing agent.
- If this Agreement is an exclusive agreement as indicated in Item (1.4), for the duration of this Agreement the Licensor:
- appoints the Agent as exclusive letting agent; and
- will refer any prospective Licensees of which the Licensor becomes aware to the Agent.
- Authority vested in the Agent by this Agreement shall be deemed to be also vested in the Agent’s authorised employees.
4. Agent’s Obligations and Authority
- The Agent is authorised and directed, by the Licensor, to disclose all relevant and material facts in relation to the Premises to Prospective Licensees.
- The Agent must not make any statement that is false, misleading or deceptive or conceal any material facts in relation to the Premises.
- The Agent is authorised to licence/advertise/promote the Premises in accordance with Item (1.5), and/or as further instructed in writing by the Licensor.
- The Agent is responsible for locating and introducing to the Licensor suitable Prospective Licensees based on agreed established criteria for this type of selection so as to enable the Licensor to make an informed decision as to the acceptability of the Prospective Licensees. Provided however, the Licensor confirms it does not rely on the Agent to establish beyond the extent of the criteria, the credit worthiness of the Prospective Licensees.
- The Agent will, subject to the Licensor’s written instruction or as authorised by this Agreement, negotiate, finalise and where necessary execute on behalf of the Licensor any licence documentation, agreement or variations thereto or guarantees, including any other documents in relation to the licence authorised by this Agreement.
- This Agreement authorises the sale of the Premises by the Agent should a Prospective Licensee introduced by the Agent enter into an agreement to purchase the Licensor’s Premises or a business entity related to the Licensor. When this occurs the Agent is entitled to a Sales Commission Fee of 2% of the agreed value of the transaction or as previously agreed between the Agent and the Licensor. The fee is payable regardless of the party who executes the agreements between the Licensor and the Prospective Licensee.
- This Agreement authorises the Agent to be the Licensor’s property manager in the event that a lease or sub lease agreement is entered into between the Licensor and a Licensee or Prospective Licensee.
- The Agent is authorised to deduct from monies received by the Agent on behalf of the Licensor all fees and other authorised outlays owing to or incurred by the Agent in association with this Agreement, including those Fees, Charges and Expenses authorised in Items (1.6) and (1.7).
- The Agent must provide financial statements and account to the Licensor with respect to all monies collected, received, paid or used by the Agent in carrying out the Agent’s obligations under this Agreement (only applicable where the Agent is collecting the funds from the Licensee). The Agent will issue tax invoices when necessary in respect of all monies owing by the Licensor to the Agent.
- Should the Agent act in conjunction with other agents to effect a Licence only one Letting Fee will be payable (unless otherwise agreed).
- Where Fees, Charges & Expenses exceed at any time the amount being held by the Agent in accordance with this Agreement, the Agent is not required to make payment in respect of any shortfall and will advise the Licensor and may require payment from the Licensor.
5. Licensor’s Obligations and Authority
- The Licensor confirms having at the time of entering into this Agreement disclosed all details to the Agent of all relevant and material facts relating to the Premises.
- The Licensor will at all times during the currency of this Agreement keep the Agent advised of and disclose to the Agent in writing all relevant and material facts and changes thereto in relation to the Premises.
- There is a positive obligation on the Licensor to disclose all relevant and material facts and information in relation to the Premises. Any failure to disclose such facts or information known to the Licensor which may detract from the letting of the Premises, will be a breach of this Agreement.
- The Licensor acknowledges that, once a Licence Agreement has been entered into by the Licensor and the relevant Licensee, it shall not be the responsibility of the Agent to enforce such agreement, and the Agent’s liabilities and obligations to the Licensor are limited to the Agent’s liabilities and obligations to the Licensor under this Agreement.
- In addition to complying with the terms of this Agreement, the Licensor must comply with the requirements of all relevant acts, legislation, by-laws, rules and regulations, local, state and federal, including but not limited to public liability insurance, occupational health and safety, first aid, fire safety including equipment and evacuation induction.
- Should the Agent refer a suitable Prospective Licensee to the Licensor and the Licensor rejects such Prospective Licensee, the Licensor takes sole responsibility, and the Agent is not liable to the Licensor, for any action that may follow as a result of that decision.
- The Licensor must retain a signed copy of this Agreement which will be automatically delivered via email once executed by both the Agent and the Licensor.
- On request by the Agent, the Licensor must provide the Agent within forty eight (48) hours of the request, a report confirming the status of all Prospective Licensees as to the deal stage and any closed/won deals.
- The Licensor is responsible for payment of all of the Agent’s Fees, Charges and Expenses. Clause 8 does not release the Licensor from such obligations. If such monies received by the Agent in accordance with clause 4.8 are insufficient to cover the amounts due to the Agent then the Licensor must pay any outstanding Fees, Charges or Expenses to the Agent upon the receipt of a tax invoice.
- Unless already notified within two (2) Business Days of the Licensor entering into a Licence Agreement with any Licensee referred by the Agent and regardless of the time elapsed since the Licensee was referred by the Agent to the Licensor, the Licensor must notify the Agent of such a Licence Agreement/Commercial agreement taking place. Notification must be acknowledged by updating the deal stage in writing to the Agent. Once complete the Licensor has twenty four (24) hours to update the deal values to the Agent to facilitate the Agent invoicing for the referral.
- The Licensor is responsible for ensuring the Prospective Licensee completes an induction tour of the premises including any and all occupational health and safety requirements for the Premises.
- If the Licensor is unable to complete an induction tour prior to the commencement of the Licence Agreement then the Licensor shall promptly request the Agent to complete the induction tour at the cost set out in the Item Schedule. The Licensor acknowledges that the Agent may use a third party to complete the induction tour.
- The Licensor is legally responsible for the impact of any deceptive or misleading claims relating to the availability and pricing for their listings which are listed on the AirDeskers Website and/or related 3rd party websites. The Licensor is legally obliged to honour any misleading pricing to a prospective Licensee.
- If the Licensor rejects a Prospective Licensee and the reasons behind the rejection are found to be misleading the Agent has the rights to terminate the Agreement with the Licensor with thirty (30) days’ notice due to a material breach of trust.
- The Licensor must at all times disclose to the Agent all offers and correspondence with any Prospective Licensee that relate to the process of securing the Prospective Tenant as a customer via email.
- The Licensor and its employees must notify the Agent of any Prospective Licensee who enquires direct to the Licensor where the enquiry was in response or otherwise in relation to any advertising placed by the Agent, as soon as practicable after the Licensor receives such enquiry. Prospective Licensees of this nature must be allocated as an Agent Referral in the Licensors records and if converted to a customer fees need to be paid to the Agent based on the successful referral.
- During the term of this Agreement, the Licensor must maintain, at its own cost, all rights, licences, consents and authorisations specified in clause 1.3.
- Where the Premises being licenced or offered for licence is a workplace as defined under the local related Work Health and Safety Act, the Licensor must ensure that the Premises are compliant with the relevant provisions of the local laws relating to Work Health and Safety Act.
6. Agent’s Fees and Remuneration
- The Agent shall be entitled to Fees for services and remuneration for Fees Charges and Expenses in the amounts set out in Items (1.6 or 1.7) respectively, for the execution of services referred to in Item (1.5) of this Agreement. The fees can include (but are not limited to) any extraordinary cost previously agreed to by the Agent and the Licensor which aids in the process of securing a tenant such as furniture rental or purchase, travel by the Agents employees, photograph and video services, floorplan design, professional services and 3rd party advertising.
- The Agent will be entitled to the Letting Fee if:
- the Premises or services are agreed and agreements are executed with a Prospective Licensee referred by the Agent at any time during the term of this Agreement whether by the Agent, the Licensor, or any other party; or
- the Premises or services provided by the Licensor are agreed and contracted to by a Licensee who was introduced to the Licensor by the Agent prior to the termination of this Agreement;
- Unless otherwise specified in Item (1.6) or (1.7), a Letting Fee detailed therein will be payable when a Licensee enters into possession of the Premises or begins to pay the licence fee. The Agent will be entitled to the Letting Fee if a Licence Agreement is entered into and is subsequently terminated due to the default of the Licensor.
- The Licensor acknowledges and confirms in accordance with clause 1 and 6.2 that the Premises may not be licenced without the Licensor paying the Agent a Letting Fee (this clause applies to exclusive agreements only)
- A fee may be payable if letting of additional space/services (including renewals) by the Licensor takes place within eighteen (18) months of entering the initial Licence Agreement, (applicable if detailed in Item (1.6) or (1.7)).
- If a Sub Lease or conventional lease agreement is required, the Agent is authorised to prepare the “Heads of Agreement”, lease, sub lease or other document as required and be paid a referral fee up front as soon as the “Heads of Agreement” or any such related agreement is authorised by both parties and deposits secured by the Prospective Licensee to the Licensor.
- All fees, unless otherwise specified in Item (1.6) or (1.7), will be payable upon provision by the Agent of a tax invoice or statement of account.
- The Fees agreed to under this Agreement, including services and amounts detailed in this Agreement cannot be varied without both the Agent and the Licensor agreeing in writing to the change.
- Unless otherwise expressly stated, all monies payable or other considerations for Goods and Services to be provided under or in accordance with this Agreement are inclusive of local taxes such as VAT/GST.
- The standard payment terms of this Agreement are fourteen (14) days or as stipulated on tax invoices.
7. Release and Indemnity
- The Licensor releases and indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses however arising out of this Agreement in respect of:
- authorised letting advertising or signage;
- the Licensor’s failure to comply with this Agreement;
- the Licensor’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority;
- the Licensee’s failure to comply with his/her obligations under the relevant Licence Agreement, at no fault of the Agent;
- a Licensee’s failure to comply with his/her obligations under any applicable act, law or legislation with respect to the relevant Licence Agreement;
- the Agent acting in the capacity of agent of the Licensor in accordance with this Agreement;
- damage to or loss of any property of any person caused or contributed to by the the Licensor or any Licensee;
- personal injury or death of any person caused or contributed to by the Licensor or any Licensee; or
- any breach of or failure to comply with the warranties provided under clause 1.
- A release or indemnity in this clause 1 does not apply to the extent any action, claim, demand, loss, cost, damage or expense is caused or contributed to by the negligence or default of the Agent or its officers and employees.
- The Licensor acknowledges that the Agent is acting as a letting agent and is not responsible for reporting any matters (including defects, latent or otherwise) other than those that are readily apparent during the course of any inspections or as are brought to their attention as letting agent by the Licensee. The Agent is not otherwise qualified and it is the Licensor’s responsibility to obtain specific advice with respect to the Premises and its soundness as to building and structural integrity, pest, health and other requirements. As such, the Licensor indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of, or in respect of this Agreement, resulting from matters of cleanliness, safety, construction, building requirements or building deterioration.
- Where the Licensor elects to use the Agent’s standard form of Licence Agreement for granting licences to Licensees.
- the Agent gives no warranties as to the suitability of the standard form of Licence Agreement for use by the Licensor;
- the Licensor acknowledges it has read and is satisfied with the terms and conditions of the Agent’s standard form of Licence Agreement; and
- the Licensor releases the Agent from any actions, claims, demands, loss, cost or damages incurred by the Licensor in connection with the use of the Agent’s standard form of Licence Agreement.
- Where the Licensor is not authorised to prepare their own Licence Agreement, it is mutually agreed that the Licensor or any other entity will not prepare/issue any licence or rental agreements for any prospective tenant referred by the Agent. This includes taking any initial upfront bonds, security and/or licence deposits.
- Subject to clause 3, any liability of the Agent for any loss or damage, however caused (including by the negligence of the Agent), suffered by the Licensor in connection with this Agreement is limited to the Fees paid by the Licensor to the Agent under this Agreement in the twelve (12) months before the Licensor first suffers loss or damage in connection with this Agreement.
- The Licensor shall be deemed to have approved a Licensee once a Prospective Licensee has booked an induction tour with the Licensor, Agent or Agent’s third party.
- The Agent is not liable to the Licensor for any loss or damage suffered or incurred by the Licensor after the Licensor has approved a Licensee and arising from:
- the acts or omissions of the Licensee;
- any damage to the Licenced Area caused or contributed to by the Licensee;
- any personal injury or death of any person caused or contributed to by the Licensee;
- the Licensee not paying any applicable fees under the relevant Licence Agreement; or
- the Licensee’s performance of or non-compliance with the terms of the relevant Licence Agreement.
- Neither party is liable for any Consequential Loss however caused (including by the negligence of that party), suffered or incurred by the other party in connection with this Agreement. Consequential Loss means any one or more of the following: indirect loss, loss of revenues, loss of reputation, loss of bargain, consequential loss, loss of profits, loss of actual or anticipated savings, lost opportunities, including opportunities to enter into arrangements with third parties, loss or damage in connection with claims against the Licensee by third parties, and loss or corruption of data.
- In case of disputes and/or complaints either party may serve on the other a notice containing full details of the dispute and/or complaint in which case both parties will use their best endeavours to settle the dispute without recourse to litigation and may refer such dispute to mediation or any other relevant professional or government body or authority. The provisions of this clause do not limit either party’s rights to seek independent legal advice and have recourse to other legal remedies.
- This Agreement commences on the Start Date set out in the Item Schedule and continues until terminated in accordance with the terms of this Agreement.
- Either party may terminate this Agreement at any time by written notice to the other party as set out in Item 1.3.
- Either party may, where the other party is in breach of this Agreement, give written notice to the other party specifying the breach and requiring the party against whom the breach is alleged to rectify such breach within twenty one (21) days of receiving such notice, failing which this Agreement may be terminated by the party alleging the breach by giving seven (7) days’ written notice to the other party.
- Any termination shall be without prejudice to either party’s rights under this Agreement.
- Upon termination of this Agreement all monies owing under this Agreement must be paid or reimbursed up to and including the end date of this Agreement on a pro rata basis if necessary within seven (7) days. After the termination if renewals or expansions are agreed as part of the Fees the Licensor is liable to honour all Fees relating to any Licensee who extends beyond their original term up to a maximum time of twelve (12) months from the termination date.
11. Agent’s Opinion
- The Agent makes no representation as to being a legal, financial or investment advisor nor of the suitability of the Prospective Licensee or Licensee.
12. Provision of Agreement
- Each party has received a signed copy of and understands this Agreement or has had the opportunity to obtain professional advice with respect to the Agreement and each party acknowledges it is bound by the Terms of this Agreement.
13. Agent’s Disclosure
- The Agent is entitled to retain any rebates, discounts and/or commissions in connection with services performed by the Agent in the capacity of the Agent for or on behalf of the Licensor.
14. Special Conditions
- Any Special Conditions to this Agreement shall form part of this Agreement. Should there be inconsistency between the Special Condition and the rest of this Agreement, the Special Condition will prevail.
15. Provision of Documents
- The parties agree and confirm this Agreement may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Agreement.
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. Without limiting the foregoing, if the signatures on behalf of one party are on different counterparts, this shall be taken to be, and have the same effect as, signatures on the same counterpart and on a single copy of this Agreement.
17. Electronic Signature and Click Acceptance of Terms
- This Agreement may by executed by way of facsimile or electronic signature and if so shall be considered an original. The parties acknowledge that the “clicking” of “ok” or “accept” on the AirDeskers website in relation to this Agency Agreement shall be deemed to be the Licensors electronic signature and intention to be legally bound by the terms and conditions of the Agency Agreement.
18. Governing Law
- This Agreement shall be governed by the laws from time to time in force in South Australia and the parties submit to the non-exclusive jurisdiction of the Courts of South Australia.
19. Privacy Statement
- The Agent must comply with the provisions of the local laws around Privacy Principles specific to the country the Licensor or Workspace resides in.
- The Licensor agrees that the Agent may collect, use and disclose such information to:
- potential Prospective Licensees, insofar as such information is relevant to the licencing or leasing of the Premises; and/or
- property data collection agencies; and/or
- owner’s corporations & financial institutions; and/or
- tradespeople and similar contractors in order to facilitate the carrying out of works with respect to the Premises; and/or
- other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.
- If the Licensor rejects a referral the Licensor agrees to not use the intellectual property provided by the Agent for it’s own benefit to induce the Licensee to enter an agreement. Upon a rejection taking place the Licensor agrees to destroy the data provided on the prospective Licensee by the Agent within one (1) hour of the rejection taking place.
- The Licensor has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.