OFFICE HUB MEMBERSHIP AGREEMENT
Terms of Agreement
Terms of Agreement
In this Agreement (which includes the Item Schedule) the following terms mean:
Agreement: means these terms and the Item Schedule;
Agent: Party that has express (oral or written) or implied authority to act for another (the principal) so as to bring the principal into contractual relationships with other parties. An agent is under the control (is obligated to) the principal, and (when acting within the scope of authority delegated by the principal) binds the principal with his or her acts.
Fees: monies to be paid to the Agent as provided in Item (1.5 on the homepage of the agreement), including any Letting Fees;
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.
License Agreement: means any agreement between the Principal and a Licensee in relation to a Licensed Area;
License Agreement Value: means the total money excluding GST/VAT stated as payable by the Licensee to the Principal under a License Agreement of a Licensed Area in respect of the first 12 months of that License Agreement or the whole duration of that License Agreement if the License Agreement is for a shorter period;
Licensed Area: means an area licensed or available to be licensed by the Principal to a third party under a License Agreement;
Licensee: means a Prospective Licensee who enters into a License Agreement for the Premises with the Principal;
Online Deal Confirmation Form: A dedicated Agent URL link that confirms the values, terms and tenure of an agreement
Principal: the principal is the party who gives legal authority for another party called the “agent” to act on the principal’s behalf. The principal can be an individual, corporation or government agencies.
Prospective Licensee: means a person or corporation referred to the Principal by the Agent and who has reasonably indicated an interest in entering into a Agreement with the Principal and becoming a Licensee;
Premises: Is deemed to be physical or virtual space as designed by the Principal to be available to rent, lease or purchase;
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 Principal and set out with reasonable specification details of the Fees and underlying transactions to which it relates;
Standard Monthly Rent: The total of all rent and services (excluding GST/VAT) payable for a standard month during the term of the License Agreement. This figure excludes any incentives offered under the License Agreement, discounts or free months;
Fees, Charges & Expenses: any extraordinary expense the Agent incurred in marketing the Premises such as furniture rental or purchase, travel by Office Hub employees, photograph and video services, floor plan design, professional services and 3rd party advertising.
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;
Item: an Item in the Item Schedule forming part of this Agreement;
Item Schedule: means the first page of this Agreement;
Letting Fee: monies payable, on a Licensee entering into an initial agreement for a Licensed Area, to the Agent as provided in Item (1.5 on the homepage of the agreement) calculated as either a percentage of the total License Agreement Value or as a Standard Monthly Rent (e.g. 1 month model).
Services and/or Outgoings: the total of any monies other than rent payable by the Licensee (excluding GST/VAT) to, for or on behalf of the Principal in accordance with the provisions of the License Agreement for the term thereof, excluding any refundable security deposit. Such items include connectivity chargers for telephone and internet, fixed commitment to meeting room rental and kitchen facilities. This figure excludes set up fees for these services and pay as you go fees such as administration services, meeting rooms.
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.
MyOfficeHub: The dedicated portal for the Principal to access to update properties, inventory and deals.
Special Conditions: means the provisions set out in Item (1.6 on the homepage of the agreement).
By signing this Agreement the Principal(s) warrants and confirms:
(a) having read this Agreement;
(b) having authority to enter into this Agreement; and
(c) it has the authority and has obtained all rights, Licenses, consents and authorisations:
(1) to enable the Agent to do all things (including as described in Item 1.4 on the homepage of the agreement,) and exercise all rights contemplated by this Agreement;
(2) to enable the Principal to do all things and perform all obligations contemplated by this Agreement; and
(3) has approval to license/rent the premises to a 3rd party, including any consents and authorisations required under any head lease or sub lease for the Premises;
(4) to grant the Agent letting rights of the Premises during the term of this Agreement.
3.1 For the duration of this Agreement the Principal appoints the Agent as letting/referral and/or marketing agent.
3.2 If this Agreement is an Exclusive Leasing Agreement as indicated in Item (1.3 on the homepage of the agreement), for the duration of this Agreement the Principal:
(a) appoints the Agent as exclusive letting agent; and
(b) will refer any prospective Licensees of which the Principal becomes aware to the Agent.
3.3 Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.
4.1 The Agent is authorised and directed, by the Principal, to disclose all relevant and material facts in relation to the Premises to Prospective Licensees.
4.2 The Agent must not make any statement that is false, misleading or deceptive or conceal any material facts in relation to the Premises.
4.3 The Agent is authorised to rent/advertise/promote the Premises in accordance with Item (1.4 on the homepage of the agreement), and/or as further instructed in writing by the Principal.
4.4 The Agent is responsible for locating and introducing to the Principal suitable Prospective Licensees based on agreed established criteria for this type of selection so as to enable the Principal to make an informed decision as to the acceptability of the Prospective Licensees. Provided however, the Principal confirms it does not rely on the Agent to establish beyond the extent of the criteria, the credit worthiness of the Prospective Licensees.
4.5 The Agent will, subject to the Principal’s written instruction or as authorised by this Agreement, negotiate, finalise and where necessary execute on behalf of the Principal any License documentation or variations thereto or guarantees, including any other documents in relation to the lease authorised by this Agreement.
4.6 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 Principal’s Premises or a business entity related to the Principal. 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 Principal. The fee is payable regardless of the party who executes the agreements between the Principal and the Prospective Licensee.
4.7 The Agent is authorised to deduct from monies received by the Agent on behalf of the Principal 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 (1.5) and (1.6) on the homepage of the agreement.
4.8 The Agent must provide financial statements and account to the Principal 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 Principal to the Agent.
4.9 Should the Agent act in conjunction with other agents to effect a License only one Letting Fee will be payable (unless otherwise agreed).
4.10 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 Principal and may require payment from the Principal.
5.1 The Principal confirms having at the time of entering into this Agreement disclosed correct details to the Agent of all relevant and material facts relating to the Premises.
5.2 The Principal 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.
5.3 There is a positive obligation on the Principal 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 Principal which may detract from the letting of the Premises, will be a breach of this Agreement.
5.4 The Principal acknowledges that, once a License Agreement has been entered into by the Principal 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 Principal are limited to the Agent’s liabilities and obligations to the Principal under this Agreement.
5.5 In addition to complying with the terms of this Agreement, the Principal must comply with the requirements of all relevant acts, legislation, by-laws, rules and regulations, local, state and federal.
5.6 Should the Agent refer a suitable Prospective Licensee to the Principal and the Principal rejects such Prospective Licensee, the Principal takes sole responsibility, and the Agent is not liable to the Principal, for any action that may follow as a result of that decision.
5.7 The Principal must retain a signed copy of this Agreement which will be automatically delivered via email once executed by both the Agent and the Principal.
5.8 On request by the Agent, the Principal must provide the Agent within 48 hours of the request, a report confirming the status of all Prospective Licensees as to the deal stage and any closed/won deals.
5.9 The Principal is responsible for payment of all of the Agent’s Fees, Charges and Expenses. Clause 4.7 does not release the Principal from such obligations. If such monies received by the Agent in accordance with clause 4.7 are insufficient to cover the amounts due to the Agent then the Principal must pay any outstanding Fees, Charges or Expenses to the Agent upon the receipt of a tax invoice.
5.10 Unless already notified within 2 Business Days of the Principal entering into a License Agreement with any Licensee referred by the Agent and regardless of the time elapsed since the Licensee was referred by the Agent to the Principal, the Principal must notify the Agent of such a License Agreement/Commercial agreement taking place. Notification must be acknowledged by updating the deal stage in MyOfficeHub by converting the stage to Closed/Won. Once complete the Principal has 24 hours to update the deal values in the Online Deal Confirmation form to facilitate the Agent invoicing for the referral.
5.11 Rejection of Prospective Licensee Policies
Rejection Rule No 1 – Prospective Licensee and their requirements are new to the Principal.
If the Agent refers a Prospective Licensee and the Principal has no previous knowledge of the Prospective Licensee or their workspace requirements, the Principal must accept the Prospective Licensee referral and Referral Fees will be payable in accordance with this Agreement if the Prospective Licensee enters into a License Agreement with the Principal. A referral can be rejected if the Agent refers a Prospective Tenant without a confirmed tour in place by the Agent or Principal and a 3rd party referral is received to the Principal and a tour is completed from the 3rd party’s referral. In this case the Principal must reject the Agent’s referral via the Agent’s “reject lead” link on the referral emailed to the Principal. The rejection must happen within 24 hours of the 3rd party tour completing.
Rejection Rule No 2 – The Prospective Licensee and their requirements are existing in the Principal’s sales pipeline – Tour completed.
If the Agent refers a Prospective Licensee and the Principal has a completed tour and is actively managing the Prospective Licensee’s workspace requirements, the Principal can reject the referral by clicking the Agent’s “reject lead” link on the Agent’s referral email. This must happen within 4 business hours of the referral being sent by the Agent.
Rejection Rule No 3 – The Prospective Licensee and their requirements are existing in the Principal’s sales pipeline – No tour completed.
If the Agent refers a Prospective Licensee and the Principal has not shown any Premises or has no confirmed tour in place to show the Prospective Licensee its premises, then the Principal needs to accept the Prospective Licensee from the Agent when the Agent confirms a tour date and time and the tour completes. If the Agent’s referral to the Principal has no confirmed tour day and time then the Principal must reject the referral by clicking the Agent’s “reject lead” link on the Agent’s referral email. This must happen within 4 business hours of the referral being sent by the Agent and reference needs to be made confirming that the Principal has the referral but no tour is confirmed.
Rejection Rule No 4
If a Principal (or their agents/employees) fails to attend, show up to a tour or requests to change a tour that is confirmed by the Agent, the referral is deemed to be automatically accepted and no rejection can be made by the Principal.
5.12 The Principal and associated employees are required to record any deal updates or insights relating to a deal by logging into MyOfficeHub and updating the stage and comments section dedicated to the deal in question. The expectation is that the Principal and its employees update MyOfficeHub at least once a fortnight to ensure transparency of deal negotiations between the Agent and Principal.
5.13 The Principal is legally responsible for the impact of any deceptive or misleading claims relating to the availability and pricing for their listings managed in MyOfficeHub which are listed on the Office Hub Website and/or related 3rd party websites. The expectation is that the Principal updates MyOfficeHub within 48 hours to change the availability or pricing of any listings where there is a discrepancy. The Principal is legally obliged to honour any misleading pricing to a prospective Licensee where it is proven that there was a failure to complete the condition above.
5.14 If the Principal rejects a Prospective Licensee and the reasons behind the rejection are found to be misleading the Agent has the rights to terminate the Principal with 30 days notice due to a material breach of trust.
5.15 The Principal and its employees or contractors will not call, email or communicate with a Prospective Licensee prior to a “Tour Booked” referral, unless instructed by the Agent or it is within 15 minutes of the Tour Booked inspection time set by the Agent.
5.16 The Principal 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 and/or by updating the Office Hub Deal Tracker called MyOfficeHub.
5.17 The Principal and its employees must notify the Agent of any Prospective Licensee who enquires direct to the Principal where the enquiry was in response or otherwise in relation to any advertising placed by the Agent, as soon as practicable after the Principal receives such enquiry. Prospective Licensees of this nature must be allocated as an Agent Referral in the Principal’s records and if converted to a customer, fees need to be paid to the Agent based on the successful referral.
5.18 During the term of this Agreement, the Principal must maintain, at its own cost, all rights, licenses, consents and authorisations specified in clause 2(c).
6.1 The Agent shall be entitled to Fees for services and remuneration for Fees, Charges and Expenses in the amounts set out in Items (1.5 or 1.6 on the homepage of the agreement) respectively, for the execution of services referred to in Item (1.4 on the homepage of the agreement) of this Agreement. The fees can include any extraordinary cost previously agreed to by the Agent and the Principal which aids in the process of securing a tenant such as furniture rental or purchase, travel by the Agent’s employees, photograph and video services, floorplan design, professional services and 3rd party advertising.
6.2 The Agent will be entitled to the Letting Fee if:
(a) 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 Principal, or any other party; or
(b) the Premises or services provided by the Principal are agreed and contracted to by a Licensee who was introduced to the Principal by the Agent prior to the termination of this Agreement;
6.3 Unless otherwise specified in Item (1.5) or (1.6) on the homepage of the agreement, a Letting Fee detailed therein will be payable when a Licensee enters into possession of the Premises or begins to pay rent. The Agent will be entitled to the Letting Fee if a License Agreement is entered into and is subsequently terminated due to the default of the Principal.
6.4 The Principal acknowledges and confirms in accordance with clause 6.1 and 6.2 that the Premises may not be leased without the Principal paying the Agent a Letting Fee (this clause applies to exclusive agreements only).
6.5 A fee may be payable if letting of additional space/services (including renewals) by the Principal takes place within 18 months of entering the initial License Agreement.
6.6 If a Sub Lease or conventional lease agreement is required to secure an agreement to lease the Premises with the Prospective Licensee, the Agent is authorised to prepare the “Heads of Agreement” 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 Principal.
6.7 All fees, unless otherwise specified in Item (1.5) or (1.6) on the homepage of the agreement, will be payable upon provision by the Agent of a tax invoice or statement of account.
6.8 The fees agreed to under this Agreement, including services and amounts detailed in this Agreement cannot be varied without both the Agent and the Principal agreeing in writing to the change. Additionally, the basic terms of this membership can be changed by the Agent. Notification of the change will be provided via the URL link within the referral email sent to the Principal when introducing a Prospective Licensee to the Principal.
6.9 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 and local taxes such as VAT/GST.
6.10 The standard payment terms of this agreement are 14 days or as stipulated in section 1.6 of the main body of the agreement.
6.11 Fee Capping Guarantee (Applies only when the Fee Type in 1.6 is classified as “1 Month”) – if the Licensee physically moves out of the Premises within 4 months of the agreement commencement date the Principal is to notify the Agent in writing and declare the total fees received during this term to request the guarantee credit. A credit note will be applied to the Principal’s account when the fee paid to the Agent is greater than 25% of the total fees paid by the Licensee to the Principal. i.e if the rent and services is $1,000USD pcm and the term was 2 months the total rent received by the Principal is $2,000USD. 25% of the total rent is $500USD, meaning a credit will be applied to the Principal’s account of $1,000USD (base fees) less $500USD (25% capped fee) = $500USD. Note: The credit note remains on the Principal’s account to be offset against future fees payable by the Principal to the Agent. The Credit Note cannot be redeemed in any other way.
6.12 If the Agent is preparing a License Agreement for a Prospective Licensee a fee equal to $200AUD will be charged as a setup fee by the Agent payable by the Licensee for an office and $50AUD per person for coworking. This fee is not passed to the Principal as it is a contract preparation fee the Agent charges as a fee to complete the agreements. (This fee does not apply where the Principal has authority to prepare their own agreements i.e. Serviced Office provider.)
7.1 The Principal releases and indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:
(a) authorised letting advertising or signage;
(b) the Principal’s failure to comply with this Agreement;
(c) the Principal’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority;
(d) the Licensee’s failure to comply with his/her obligations under the relevant License Agreement, at no fault of the Agent;
(e) a Licensee’s failure to comply with his/her obligations under any applicable act, law or legislation with respect to the relevant License Agreement;
(f) the Agent acting in the capacity of agent of the Principal in accordance with this Agreement;
(g) damage to or loss of any property of any person caused or contributed to by the the Principal or any Licensee;
(h) personal injury or death of any person caused or contributed to by the Principal or any Licensee; or
(i) any breach of or failure to comply with the warranties provided under clause 2(c).
A release or indemnity in this clause 7.1 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.
7.2 The Principal 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 Principal’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 Principal 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.
7.3 Where the Principal elects to use the Agent’s standard form of License agreement for granting Licenses to Licensees.
(a) the Agent gives no warranties as to the suitability of the standard form of License agreement for use by the Principal;
(b) the Principal acknowledges it has read and is satisfied with the terms and conditions of the Agent’s standard form of License agreement; and
(c) the Principal releases the Agent from any actions, claims, demands, loss, cost or damages incurred by the Principal in connection with the use of the Agent’s standard form of License agreement.
(d) Where the Principal is not authorised to prepare their own License Agreement it is mutually agreed that the Principal or any other entity will not prepare/issue any license or rental agreements for any prospective tenant referred by the Agent. This excludes taking any initial upfront bonds/security payments. To determine if the Principal is authorised to use their own License agreements refer to Clause 1.5 in the main body of the agreement.
8.1 Subject to clause 8.2, any liability of the Agent for any loss or damage, however caused (including by the negligence of the Agent), suffered by the Principal in connection with this Agreement is limited to the Fees paid by the Principal to the Agent under this agreement in the 12 months before the Principal first suffers loss or damage in connection with this Agreement.
(a) authorised letting advertising or signage;
8.2 The Agent is not liable to the Principal for any loss or damage suffered or incurred by the Principal after the Principal has approved a Licensee and arising from:
(a) the acts or omissions of the Licensee;
(b) any damage to the Licensed Area caused or contributed to by the Licensee;
(c) any personal injury or death of any person caused or contributed to by the Licensee;
(d) the Licensee not paying any applicable fees under the relevant License Agreement; or
(e) the Licensee’s performance of or non-compliance with the terms of the relevant License Agreement.
8.3 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 endeavors 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.
10.1 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.
10.2 Either party may terminate this Agreement at any time by notice to the other party as set out in Item 1.4.
10.3 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 21 days of receiving such notice, failing which this Agreement may be terminated by the party alleging the breach by giving 7 days’ written notice to the other party.
10.4 Any termination shall be without prejudice to either party’s rights under this Agreement.
10.5 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 7 days. After the termination if renewals or expansions are agreed as part of the fees the Principal is liable to honour all fees relating to any licensee who extends beyond their original term up to the 12 paid months.
11.1 Where the Premises being leased or offered for lease is a workplace as defined under the local related Work Health and Safety Act, the Premises must be compliant with the relevant provisions of the local laws relating to Work Health and Safety Act.
The Agent makes no representation as to being a legal, financial or investment advisor.
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.
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 Principal.
Any Special Conditions to this Agreement shall form part of this Agreement. Should there be inconsistency between the a Special Condition and the rest of this Agreement, the Special Condition will prevail.
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.
17.1 The Agent must comply with the provisions of the local laws around Privacy Principles specific to the country the Principal or Workspace resides in.
17.2 The Privacy Policy outlines how the Agent collects and uses personal information provided by the Principal and Prospective Tenants, or obtained by other means, to provide the services required by the Principal.
17.3 The Principal agrees that the Agent may collect, use and disclose such information to:
(a) potential Prospective Licensees, insofar as such information is relevant to the leasing of the Premises; and/or
(b) property data collection agencies; and/or
(c) owner’s corporations & financial institutions; and/or
(d) tradespeople and similar contractors in order to facilitate the carrying out of works with respect to the Premises; and/or
(e) 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.
17.4 If the Principal rejects a referral the Principal agrees to not use the intellectual property provided by the Agent to it’s own benefit to induce the Licensee to enter an agreement. Upon a rejection taking place the Principal agrees to destroy the data provided on the prospective Licensee by the Agent within 1 hour of the rejection taking place.
17.5 The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.