Termes et conditions
ACMI X Studio Membership Terms and Conditions This document sets out the terms and conditions on which ACMI grants the Member the right to use the Space and the Services.
1. Definitions In these Terms, the following definitions apply:
- ACMI means Australian Centre for the Moving Image (ABN 37 375 237 227) an entity established under the Film Act 2001 (Vic) and having its registered office at the Alfred Deakin Building, Federation Square, corner of Swanston and Flinders Streets, Melbourne, Victoria 3000.
- ACMI Property means any furniture, equipment, documents or other property in the Space that is owned or controlled by ACMI.
- Australian Consumer Law means the Australian Consumer Law set out in schedule 2 of the Competition and Consumer Act 2010 (Vic).
- Confidential Information means all information of a confidential nature directly or indirectly disclosed by or on behalf of the Member or ACMI and includes information relating to the Member’s or ACMI’s business, employees, clients, products, projects and exhibitions in production, and business processes.
- Fair Use means the use of the Space and the Services by Members in an equitable, respectful and reasonable manner, having regard to the needs of other Members.
- Fee means any fee specified on the Website and/or Portal in relation to the Member’s Membership or the Services, including the Membership Fee, as may be varied by ACMI from time to time in accordance with clauses 5.4 and 17.1.
- Force Majeure Event means any unforeseen event or circumstances arising after the date of these Terms which is outside the reasonable control of the parties and which prevents a party from being able to meet its obligations under these Terms, including without limitation, natural disasters, war, terrorism, fire and strikes by public servants.
- Member means the owner of a Membership.
- Member Property means any equipment, documents, property or possessions that the Member brings into the Space.
- Membership means membership of ACMI X, the categories and inclusions of which are detailed on the Website and/or the Portal.
- Membership Fee means the fee relevant to the Member’s Membership and published on the Website and/or the Portal.
- Policies mean any of ACMI's codes of conduct, policies and procedures accessible on the Portal or otherwise made available to the Member, as added or amended by ACMI from time to time.
- Portal means ACMI's online Member platform “Nexudus”.
- Services means the services included in the Member's Membership, as detailed on the Website and/or the Portal.
- Space means ACMI X Studio co-working space located at the Australian Ballet Centre, Level 4, 2 Kavanagh Street, Southbank, Victoria and includes all communal, meeting, kitchen and social spaces.
- Terms means these Membership Terms and Conditions, Policies, the terms specified on the Website and on the Portal.
- Website means the ACMI X website located at http://acmix.spaces.nexudus.com.
2. The Membership
- ACMI will endeavour to provide the Services to the best of ACMI's ability.
- The Member's Membership is personal to the Member. The Member must not transfer their Membership to someone else.
- The Member must comply with the Member's obligations under these Terms and with the Policies.
- The Member must comply with any reasonable requirements or directions provided by ACMI in relation to the use and occupation of the Space.
- The Member must comply with all laws and any requirements of any authority in connection with the use of the Space.
- The Member must not do or permit anything to be done in connection with the Space which in the reasonable opinion of ACMI may endanger the Space or be a risk to any person or ACMI Property. The Member must:
- observe and obey all fire or emergency drills;
- ensure it is aware of and complies with all occupational health and safety and emergency procedures; and
- inform ACMI immediately if the Member is aware of a risk or danger (for example: a bomb threat or a fire) in any part of the Space.
- The Member must ensure at the end of its term for the use of the Space (or sooner as a result of termination of these Terms) it will:
- ensure that the Space is left in a clean and tidy condition and any damage caused by the Member has been repaired to ACMI’s satisfaction; and
- deliver to ACMI all keys, passes and security codes giving access to any parts of the Space which are held by the Member or any of the Member’s agents, guests, employee’s or invitees, whether or not they were supplied by ACMI.
3. The Space
- The Member acknowledges that the Space is a shared office. The Member must be respectful of other users in the Member's occupation and use of the Space.
- The Space is a collaborative workspace, and the Member acknowledges that it may be working in close proximity to individuals or organisations that compete with the Member's business. The Member must comply with clause 10 in relation to all Confidential Information of other ACMI X Studio members.
- The Member acknowledges that due to the shared nature of the Space, and ACMI’s work including exhibitions and projects in production, sensitive information may sometimes be overheard or seen, and the Member agrees to respect the right of privacy and confidentiality of other Members and ACMI in such circumstances.
- ACMI grants the Member a licence to use the Space in accordance with the Member’s Membership.
- Membership does not give the Member exclusive rights to:
- Occupy any part of the Space; or
- Use any of the Services.
- These Terms do not create any estate or interest in the Space, other than a contractual right. These Terms do not constitute a lease at law and the Member may not claim before a court or tribunal that these Terms constitutes a lease at law. In the event that a court or tribunal determines that these Terms are a lease at law, ACMI may, at its option, terminate these Terms by written notice.
- The Member may not permit other parties to use the Space and/or the Services or deal with its interests under these Terms without the prior written approval of ACMI. ACMI and its agent may enter the Space at all times for any reason.
- The Member is responsible for ensuring that the Space and the Services meet the needs of the Member's business or enterprise. ACMI makes no warranties or representations that the Space or the Services are suitable for the Member's purposes or intended use.
- It is the Member's responsibility to satisfy itself as to the suitability of the ACMI Property for the Member's purposes, and to use the ACMI Property in a safe manner. Prior to bringing any electrical equipment into the Space, the Member must ensure that the equipment has been inspected and tested in accordance with AS/NZS 3760:2010.
- The Member is liable for, and agrees to indemnify ACMI against, any damage caused to the Space or any ACMI Property, or for any claim brought against ACMI, by malfunctioning or incorrectly used equipment brought into the Space by the Member, the Member's employees or the Member's guests. This includes, but is not limited to, damage caused by non-compliant electrical equipment or electrical equipment not fit for use in Australia.
- The Member must make good or indemnify ACMI (at ACMI's option) for any damage caused to the Space or ACMI Property by the Member, the Member's employees or the Member's guests (excluding fair wear and tear).
- Upon becoming aware of anything in the Space which may be unsafe, the Member must promptly notify ACMI.
- The Member must not use illegal drugs or offensive language, or engage in threatening behaviour, or abuse of ACMI's staff or other Members.
- The Member must not damage any ACMI Property, or that of another Member.
- The Member must not:
- display or affix any signs, advertisements, posters, flag or notices, to any part of the Space or ACMI Property which may cause a nuisance, interfere with any other person or be dangerous or offensive in ACMI’s reasonable opinion;
- in any way interfere with, hinder or obstruct access to any air-conditioning plant or equipment, lifts, escalators, fire alarm system or any other service; and remove ACMI Property from the Space.
4. Making changes or cancelling - Cancellation by ACMI
- ACMI may cancel the Member's Membership by written notice to the Member:
- With immediate effect, if the Member:
- breaches the Member's obligations in clause 3;
- breaches any of the Member's other obligations in these Terms and, if such breach is capable of remedy, the Member does not remedy the Member's breach within 7 days of being notified by ACMI; or
- fails to comply with any of the Policies, provided that ACMI has given the Member written notice of such failure and ACMI's required remedy, and a reasonable time to rectify the failure.
- With 30 days’ notice at any time, if the Member’s Membership is not for a fixed term; or
- With 30 days’ notice, expiring on the last day of the fixed term, if the Member’s Membership is for a fixed term.
- These Terms end, and the Member must vacate the Space, if ACMI’s right to occupy the Space ends or is terminated.
- Cancellation by Member
- The Member may cancel the Membership by written notice to ACMI:
- With 30 days’ notice at any time, if the Member’s Membership is not for a fixed term; or
- With 30 days’ notice, if the following circumstances apply:
- ACMI makes changes to these Terms (except where these changes are required at law), the inclusions in the Member’s Membership, or the Services;
- the changes would take effect during the term of the Member’s Membership; and
- the changes substantively reduce the benefits enjoyed by the Member under the Membership.
- Continued Occupancy After Agreed Term
- 4.3 If the Member continues to occupy the Space after the end of the agreed term, without objection by ACMI:
- (a) the Member occupies the Space subject to the same Terms; and
- (b) ACMI or the Member may end these Terms during any period of overholding immediately by notice in writing to the other party.
5. Payment of Fee
- ACMI will use reasonable endeavours to provide the Member with the Space and the Services in consideration for the Member paying the Fee in the manner specified in this clause.
- The Member will be invoiced at the start of each month or as otherwise agreed in writing with the Member.
- It is the Member’s responsibility to ensure it has sufficient funds in the Member’s nominated account to enable the successful debit of the Fee each month or as otherwise agreed. If the transaction is rejected for any reason the Member will be liable for any reasonable costs incurred by ACMI in recovering the debt, including but not limited to any legal, bank or collection agency fees.
- ACMI may review the Fee from time to time in accordance with the Terms at ACMI’s reasonable discretion.
- Unless the Member is notified otherwise, the Fee quoted is exclusive of Goods and Services Tax (GST).
- ACMI may charge the Member an administration fee of up to $50 each time the Fee remains overdue past the 30th of the month.
- If GST is imposed on any supply made pursuant to these Terms (Taxable Supply), the Member must pay the GST amount, without any deduction or set-off. The payment of GST is subject to ACMI’s receipt of a valid tax invoice that complies with the requirements of A New Tax System (Goods and Services Tax) Act 1999. The Fee is exclusive of any withholding taxes and payments for other taxes which may arise under any Australian or international law (excluding any income tax obligation arising on ACMI). Any such taxes will be payable by the Member.
6. Meeting spaces
- Meeting spaces will be provided in the Space for the Fair Use of all Members, and meeting space bookings are limited to 1 hour. Members may request a meeting space booking via the Portal.
- ACMI makes no representation or warranty as to the availability or suitability of the Member's desired meeting space. ACMI reserves the right to refuse or vary a Member's meeting space booking, amend or suspend access to the meeting spaces, or limit the number of meeting space bookings a Member makes as may be reasonably necessary from time to time if such action is necessary to ensure Fair Use.
7. Use of Space and Services
The Member is only entitled to use the Space and the Services on the days and times allocated to the Member, subject to Fair Use and having regard to the Member's Membership. ACMI may limit the number of guests the Member brings into the Space from time to time, having regard to Fair Use.
**8. Printing and internet **
- Each Member is entitled to Fair Use of printers and internet within the Space.
- The Member must limit printing to a reasonable amount, in accordance with any Policies introduced from time to time by ACMI and communicated to the Member in writing. Email notification will be deemed an acceptable form of communication in writing to the Member.
- The Member is entitled to Fair Use of the internet within the Space, which will be provided via a WiFi network (Network) and may be accessed via Members’ own devices.
- The Network is able to provide upload and download speeds in excess of 100 MBps, however ACMI does not make any warranty as to the upload or download speeds which may be achieved on Members’ devices.
- The Member must not use the Network for excessive downloads or for any illegal purpose and must have regard to any requirements set out on the Portal.
- The Member must not use any form of 'torrent client' or similar file sharing software on the Network. ACMI may block traffic which may be harmful to Members, the Network or to other parts of the ACMI network.
- ACMI does not warrant that data exchanged with the Network and other parts of the ACMI network will be free of viruses or other malware. Members are responsible for securing any device they use to access the internet, or any printers provided as part of the Services, including the installation of firewalls and anti-virus systems as appropriate.
- ACMI may monitor Network traffic as part of routine management and statistical analysis of the Network but (subject to clause 10.3) will endeavour not to disclose Members’ data to third parties unless that disclosure is required by law.
**9. Security **
A swipe card is needed by all Members to access the Space and will be allocated on sign up. Swipe cards are not transferrable and must be returned to ACMI at the end of the Member's Membership. The Member must not lend the Member's swipe card to any other person and must notify ACMI immediately if it is lost or stolen. If the Member loses the Member's swipe card the Member must purchase a new card from ACMI at the applicable fee.
10. Confidential Information
- Subject to clause 10.2, the Member must not:
- Use, or allow the use of;
- Reproduce or record, or allow the reproduction or recording of;
- Make, permit, solicit or assist any other person to make any announcement, public statement, media release or any other communication or disclosure of any; or
- To the extent permitted by law, do anything that would put it in a position where it is required by law to disclose any, Confidential Information belonging to ACMI or to any other Member.
- Clause 10.1 does not apply to the extent that Confidential Information is:
- Public knowledge (except because of a breach of clause 10.1);
- Required to be disclosed by law or the rules of a stock exchange on which the securities of the Member are quoted; or
- Disclosed with the prior written consent of the owner of the Confidential Information.
- The Member must ensure that the Member's Confidential Information, and that of any of the Member's employees, remains secure within the Space and through the Member's use of the Portal. ACMI is not liable for any unauthorised disclosure of the Member's Confidential Information.
- 10.4 The Member consents to ACMI publishing or otherwise making available information in relation to the Member (including these Terms) as may be required by the Auditor-General or to comply with the Freedom of Information Act 1982 (Vic) and the Member must do all things necessary to assist ACMI in complying with such requirements.
- 10.5 The Member must not, and must ensure that its employees, agents and contractors do not do anything which may bring ACMI’s name into disrepute or otherwise damage ACMI’s goodwill, reputation or public image.
11. Liability and insurance
- The Member must maintain public liability insurance for the amount of $10 million for one single event with a reputable insurer at all times for the duration of the Member’s Membership and provide a certificate of currency to ACMI upon request.
- ACMI accepts no responsibility for loss or damage to any Member Property in the Space.
- ACMI will not be liable for any indirect or consequential loss, including but not limited to any loss of actual or anticipated business, income or loss of opportunity.
- Nothing in these Terms shall exclude or limit any rights or remedies the Member may have under the Australian Consumer Law.
12. Release and indemnity
- The Member occupies and uses the Space and uses the Services at the Member's own risk, and releases ACMI to the extent permitted by law from all liability and loss in connection with the Space and the Services (including where ACMI terminates the Membership for any reason whatsoever).
- ACMI is not liable to the Member for any loss or damage incurred by the Member due to:
- Any damage to the Space or the ACMI Property;
- The failure of the Space or the Services to operate properly; or
- Any failure of ACMI to provide the Services due to a Force Majeure Event.
- The Member indemnifies ACMI against all loss and liability in connection with the Member's occupation and use of the Space and the Services, including any damage caused to the Space or the ACMI Property or any loss, injury or death to any person in or about the Space, except to the extent to which ACMI is negligent.
- The Member acknowledges it does not rely upon any representations made by ACMI that the Space and the Services are suitable for its use or any other purpose whatsoever and must make its own enquiries as to the suitability of the Space and the Services. To the extent permitted by law, ACMI expressly disclaims all conditions and warranties, express or implied, in respect of the Member’s use of the Space and the Services.
- ACMI is committed to maintaining the confidentiality and security of the Member's personal information and managing it in an open and transparent way. ACMI takes its obligations under the Privacy and Data Protection Act 2014 (Vic) and the Privacy and Data Protection Principles very seriously and has implemented practices, procedures and systems to ensure ACMI complies with those laws.
- The Member can find further information at http://acmix.spaces.nexudus.com.
**14 Dispute Resolution **
- 14.1 The parties agree to use reasonable efforts to resolve by negotiation any problem that arises between them under these Terms. Neither party will resort to legal proceedings, or terminate these Terms, until the following process has been exhausted, except if necessary, to seek an urgent interim determination.
- 14.2 If the problem arises (including a breach or an alleged breach) under these Terms which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at an operational level:
- (a) either party may notify the other; and
- (b) management representatives of each of the parties will then endeavour in good faith to agree upon a resolution.
- 14.3 The Parties may attempt to resolve any dispute by mediation. The mediation procedure is as follows:
- (a) a party may commence mediation by serving a notice of mediation on the other party;
- (b) the notice must state that a dispute has arisen and identify the subject matter of the dispute;
- (c) the parties must jointly appoint a mediator, and if the parties fail to agree on the appointment within 7 days of the service of the mediation notice, either party may apply to the president of the Law Institute of Victoria to nominate a mediator;
- (d) the parties must jointly appoint the mediator and comply with the instructions of the mediator; and
- (f) if the dispute is not resolved within 30 days after the appointment of the mediator, or any other date agreed by the parties in writing, the mediation ceases.
- 15.1 A notice or other communication required or permitted, under these Terms, to be served on a person must be in writing and may be served:
- (a) personally on the person at the Space; or
- (b) by email to the person’s current email address for service.
- 15.2 The particulars for service of ACMI are specified either on the Portal and/or Website. The particular for service are specified either in the application form for the Space or on the Portal.
- 15.3 A notice or other communication is deemed served:
- (a) if served personally or left at the person’s address/desk upon service; or
- (b) if served by email, at the time of recept of notification delivered to the sender’s email address.
16. Force Majeure
- 16.1 If a party (the Affected Party) is unable to carry out any of its obligations under these Terms due to a Force Majeure Event, the Affected Party shall immediately notify in writing the other party.
- 16.2 Upon such notification, the other party may elect to either suspend these Terms for a period of up to 30 days or, if suspension is not feasible, terminate these Terms. If the Force Majeure Event continues beyond the period of suspension, either party may terminate these Terms. In the event of a suspension or termination pursuant to this clause, no payment of compensation will be due from the Affected Party to the other party.
**17. Miscellaneous **
- 17.1 ACMI may amend the Terms by providing 30 days written notice to the Member.
- 17.2 The Terms are governed by, and must be construed in accordance with, the law in force from time to time in Victoria, Australia and the parties submit to the jurisdiction of the courts of Victoria, Australia.
- 17.3 Any individual executing these Terms on behalf of a party represents and warrants that he or she has been fully empowered to execute these Terms and that all necessary action to authorise the execution of these Terms has been taken.
- 17.4 These Terms are accepted electronically, (includes email) by the Member. If, the Member does not agree with the Terms, please contact ACMI.
- 17.5 If the Member consists of one or more persons, the Terms bind each of them separately and any two or more of them jointly.
- 17.6 Where the Member is entering into these Terms in its capacity as a trustee of a trust, the Member is bound both personally and as a trustee of that trust.
- 17.7 A party may only waive a breach of these Terms in writing signed by that party and a waiver is limited to the instance referred to in writing.
- 17.8 Each party shall bear its own expenses of and incidental to the preparation and execution of these Terms.
- 17.9 Each party acknowledges that it has had an opportunity to obtain legal advice in relation to these Terms.