Service Agreement

PARTIES

EXPLANATION

1. Spark has the right to occupy the Premises and operates a serviced office business from parts of the Premises.

2. The Member wishes to licence the Office within the Premises and Spark has agreed to licence the Office to the Member and provide access to certain services on the terms and conditions of this Agreement.

TERMS

1. DEFINITIONS AND INTERPRETATION

   1. Definitions: In this Agreement, unless the context otherwise requires:
      "Building" means the building containing the Premises and all other structures and improvements situated at 8 Innovation Parkway, Birtinya QLD;
      "Fees" means the fees stated in Item 4;
      "Item" means an item in the Reference Schedule;
      "Premises" means Suite 5, Level 1, in the Building;
      "Purpose" means the purpose set out in Item 3;
      "Services" means the Services stated in Item 6 which are to be provided to the Member under the terms of this Agreement;
      "Term" means the period stated in Item 4;
      "Office" means the Work Station or office as identified in Item 2 which is located in the Premises;
      "Spark Members" are companies or individuals, including their staff and contractors, which have an existing service agreement with Spark.

   2. Interpretation: Unless otherwise stated, references to:

      1. One gender includes the others;

      2. The singular includes the plural and vice versa;

      3. A person includes a body corporate, association or other entity and vice versa;

      4. A party includes the party's executors, administrators, successors and permitted assigns;

      5. Money is a reference to Australian currency;

      6. A time of day is a reference to Queensland time;

      7. An agreement or document is to that agreement or document as amended, supplemented, novated or replaced from time to time;

      8. Writing includes a facsimile or email and any other means of reproducing words in a tangible and permanently visible form in English;

   3. Headings: Headings are for convenience only and do not form part of this Agreement or affect its interpretation.

   4. Grammatical Similarities: Where a word or phrase is specifically defined in this Agreement, other grammatical forms of that word or phrase bear meanings corresponding to and consistent with that definition.

   5. Paragraphs: Each paragraph or sub-paragraph in a list is to be read independently from others in the list, unless the context otherwise requires.

2. LICENCE TO USE

   1. Subject to the provisions of this Agreement and in return for payment of the Fees and the covenants by the Member, Spark grants the Member a licence during the Term to use the Office for the Purpose.

   2. During the Term, the Member may also use any communal kitchen and bathroom facilities in the Premises which have been allocated by Sancus for the use and enjoyment of the Member and other occupiers of the Premises.

   3. The Member must not use the Office for any purpose other than the Purpose, without Spark's prior written consent. Use of a "retail" nature, involving frequent unscheduled visits by members of the public, is not permitted.

   4. The Member must not carry on a business which competes with Spark's business of providing serviced office accommodation. The Member must not use the name Spark or any of its associated companies in any way in connection with the Member's business.

   5. Spark can enter the Office at any time for any purpose (including but not limited to access to carry out testing, repair or works, routine inspection, cleaning and maintenance) on giving reasonable notice, except in an emergency when no notice is required.

   6. Spark may by notice suspend the provision of the Office and any Services (including access to the Premises) for reasons of political unrest, strikes, pandemic or other events beyond Spark's reasonable control, in which event payment of Fees will also be suspended if the suspension continues for more than one Business Day.

   7. On the commencement date of the Term, Spark may require the Member to sign an inventory of all furniture and equipment the Member is permitted to use, together with a record of its condition, and details of the keys or entry cards issued to the Member.

   8. Nothing in this Agreement is to be construed as constituting a relationship of a Landlord and Tenant between Spark and the Member.

3. FEES

   1. The Member must pay the Fees at the time and in the manner stated in Item 4 of the Reference Schedule, without set-off, counterclaim or deduction.

   2. Spark may charge interest on any Fees owing but unpaid, at the rate of 10% per annum from the due date of payment until the date fully paid.

   3. Spark reserves the right to withhold Services (including for the avoidance of doubt, denying the Member access to the Premises) while there are any outstanding Fees and/or interest owing under this Agreement, or while the Member is in breach of this Agreement.

    

4. SERVICES PROVIDED BY SPARK

   1. Subject to the Member complying with the provisions of this Agreement, Spark will provide the Services until expiry or sooner determination of the Term.

   2. Spark does not make any representations or warranties as to;

      1. the security of Spark's network or the internet, or of any information that the Member may place on that network; or

      2. a particular degree of availability will be attained in connection with the Member's use of the Services.

   3. The Member is responsible for adopting its own security measures (e.g. encryption).

   4. The Member must comply with any copyright notices, license terms or other notices appearing on screen or as part of any material on the Internet or Spark's network. The Member must not copy, use or exploit such software or other material in any way, unless Spark gives express permission to do so, and in that event the Member must strictly comply with the terms of any permission.

   5. The Member warrants that Spark's provision of the Services to the Member will not infringe the rights of any third party.

5. MEMBER'S COVENANTS AND OBLIGATIONS

   1. The Member must:

      1. take good care of all parts of the Premises, the Office, and any equipment, fittings and furnishings which the Member uses;

      2. immediately report any lost keys or access cards, and pay the cost of replacement keys or cards and / or changing locks, if required;

      3. if accessing the Office after usual business hours, ensure that all doors are locked upon departure;

      4. comply with all relevant laws and regulations in relation to the conduct of the Member's business;

      5. arrange insurance for the Member's own property which it brings into the Premises and for the Member's own liability to its employees and to third parties

   2. The Member must not:

      1. alter any part of the Office without Spark's prior written consent;

      2. not install any furniture or office equipment, cabling, IT or telecom connections without Spark's consent, which Spark may refuse at its absolute discretion;

      3. make copies of any keys or entry cards or allow any others to use the keys or entry cards without Spark's prior written consent;

      4. do anything which is illegal or which may cause a nuisance or annoyance to other occupiers of the Building, or do anything that may interfere with the use of the Premises by Spark or by others;

      5. do anything which may increase the insurance premiums for any insurances effected by Spark in relation to the Premises or the Building.

   3. While this Agreement is in force and for a period of six months after it ends, the Member must not solicit or offer employment to any Spark Members or anyone who was a Spark Member in the last 3 months, without Spark's express written consent. If the Member does so, Spark estimates its loss at the equivalent of one year's salary for each of the Spark Members concerned and the Member must pay Spark damages equal to that amount.

   4. The Member is liable for any damage caused by the Member or by those in the Premises with the Member's permission or invitation.

   5. The Member agrees to comply with Spark's Privacy policy and Code of Conduct, details of which may be found at:

      • https://sparkbureau.org/privacy-policy, &

      • https://sparkbureau.org/code-of-conduct and may be updated from time to time by Spark.

6. SPECIAL CONDITIONS

   1. The special conditions (if any) stated in Item 7 apply to this Agreement and to the extent of any inconsistency, override the provisions of this Agreement.

7. LIABILITY

   1. The Member occupies the Office and the Premises at the Member's own risk.

   2. Spark is not liable for any loss as a result of Spark's failure to provide a Service as a result of mechanical breakdown, strike, delay, pandemic, failure of team, termination of Spark's interest in the Premises, or otherwise unless Spark does so deliberately or is grossly negligent.

   3. The Member releases Spark from any and all liability arising out of or incurred in connection with any loss or delay in relation to any mail or delivery to the Premises or the Office.

   4. The Member agrees Spark will not in any circumstances have any liability for loss of business, loss of profits, loss of anticipated savings, loss of or damage to data, third party claims or any consequential loss. The Member is strongly advised to insure against all such potential loss, damage expense or liability.

   5. The Member indemnifies Spark in respect of all liability, claims, damages, loss and expenses which may arise (except to the extent caused by the gross negligence or wilful misconduct of Spark):

      1. If someone dies or is injured while in the Premises or Office;

      2. From a third party in respect of the Member's use of the Premises or the Office and the Services; or

      3. If the Member does not comply with the terms of this Agreement; or

      4. Due to any act or omission of the Member.

   6. The Member must also pay any cost, including reasonable legal fees, which Spark incurs in enforcing this Agreement.

8. CONFIDENTIALITY

   1. The terms of this Agreement are confidential and must not be disclosed by either party without the consent of the other party.

   2. This obligation survives termination of this Agreement.

9. EXPIRY OR TERMINATION

   1. If for any reason Spark cannot provide the Office stated in this Agreement by the date when the Agreement is due to start, Spark will have no liability to the Member for any loss or damages but the Member may cancel the Agreement without penalty.

   2. This Agreement may be ended by either party at any time on the giving of 28 days' prior notice.

   3. Spark may terminate this Licence immediately by giving the Member notice if:

      1. the Member becomes insolvent, goes into liquidation or becomes unable to pay the Member's debts as they fall due;

      2. the Member is in breach of one of its obligations and the breach either is not capable of remedy or, if capable of remedy, the Member has failed to remedy within fourteen days of a notice to remedy that breach; or

      3. the Member's conduct, or that of someone at the Premises with the Member's permission or at the Member's invitation, is incompatible with ordinary office use, or involves an illegal activity, or is aggressive or a nuisance to other occupiers and users of the Premises.

   4. Termination under this Agreement is without prejudice to any then outstanding obligations the Member may have and the Member must:

      1. pay for additional Services that it has used; and

      2. pay all Fees to the date of termination, or if terminated by Spark under clause 8.3 then all Fees for the remainder of the period for which the Agreement would have lasted had Spark not ended it; and

      3. indemnify Spark against all costs and losses Spark incurs as a result of the termination.

   5. Upon expiry or termination of this Agreement, the Member must:

      1. vacate the Office and deliver same up in good repair order and condition, fair wear and tear excepted,

      2. remove all of the Member's property from the Office and the Premises, and repair any damage caused by that removal; and

      3. return all keys and access cards to Spark; or

      4. pay reasonable costs for replacing locks for lost keys, and replacing access cards.

   6. Spark reserves the right to charge additional reasonable fees for any repairs needed above and beyond normal wear and tear. If the Member leaves any of its property in the Office or on the Premises, Spark may dispose of it in any way Spark may choose without any liability to account to the Member for it or any proceeds of sale.

   7. If the Member continues to use the Office when this Agreement has ended:

      1. The Member is responsible for any loss, claim or liability Spark incurs as a result of the Member's failure to vacate on time; and

      2. Spark may, at its sole discretion, permit the Member an extension subject to a surcharge on the standard Fee and on such terms as Spark may require.

10. NOTICES

    1. Notices under this Agreement must be in writing and may be given by a party or that party's solicitor or authorised agent.

    2. Spark may serve a notice on the Member by:

       1. giving it to the Member personally;

       2. leaving it at or affixing it to the Office;

       3. sending it to the Member's facsimile number; or

       4. sending it to the Member's email address; or

       5. posting it to the Member's last known registered office, place of business or residence.

    3. Notices may also be served on Spark by leaving it at, or posting, faxing or emailing it to Spark's address stated in this Agreement.

    4. Notices:

       1. sent by post will be treated as given two Business Days after posting.

       2. sent by facsimile will be treated as given when the sender obtains a clear transmission report.

       3. sent by email will be treated as given when they become capable of being retrieved by the addressee.

       4. given after 5.00pm will be treated as given on the next Business Day.

11. GENERAL

    1. Multiple Party: If a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly and an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.

    2. Statutes: The provisions of any Statute, which alters the effect of any provision of this Agreement, shall not apply to this Agreement so far as this lawfully can be done.

    3. Severance: If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

    4. No Waiver: A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. No waiver is effective unless it is in writing. The waiver of a power or right is effective only in that specific instance and for the specific purpose for which it was given.

    5. Amendment: No variation or modification of this Agreement shall be of any effect unless in writing and signed by the parties.

    6. Entire Agreement: This Agreement contains the entire agreement and understanding between the parties on the subject matter of this Agreement and supersedes all prior discussions and agreements.

    7. Good Faith: Each party agrees that it will do all things and execute all documents necessary or desirable to give full effect to this Agreement even though not specifically provided for.

    8. Business Days: If anything is required to be done on a day that is not a Business Day, then it must be done instead on the next Business Day where "Business Day" means a week day other than a state-wide public holiday.

    9. Counterparts: This Agreement may be executed in any number of counterparts with the same effect as if the signatures to each counterpart were on the same instrument.

    10. Electronic Form: Both parties acknowledge and agree that the original of this Agreement may be in facsimile or electronic form and agree to accept the facsimile or electronic copy as the original and binding Agreement. Although this Agreement is not conditional upon the subsequent execution of an original and duplicate by the parties, either party may request the other party to execute an original and duplicate of this Agreement in which case the parties agree to do so.

    11. Warranty of Authority: Each person signing this Agreement as an Officer, Attorney, trustee or other representative of a Party, assures each other Party or signatory that he/she possesses unrestricted authority to execute this Agreement in that capacity at the time of signing.

    12. Contra Proferentum: No rule of construction of documents shall apply to the disadvantage of a party on the basis that the party put forward this Agreement.

    13. Governing Law: This Agreement is governed by the laws of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of Queensland courts in respect of any action or proceeding concerning this Agreement.