Fishburners Membership Terms & Conditions | Fishburners

Fishburners Membership Terms & Conditions

These terms and conditions apply to you if you are a dedicated or community member at our Sydney or Brisbane office. If you are a virtual member click here.

These terms and conditions govern your membership and your use of the Benefits provided by Fishburners to you as a Member.

1. Definitions

1.1 In these terms and conditions, unless the context otherwise requires:

Benefits means the membership benefits associated with your type of membership offered by us and accessible to you during the term of your membership with us. A list of the Benefits currently offered by us are available here for Sydney members and here for Brisbane members.

Business Hours means 10am till 6pm during weekdays, excluding public holidays.

Fees means the membership fees described in clause 7.

Fishburners is referred to as we, us and our;
you as the Member is referred to as you and your;

Member means any person who has applied to us for membership and has been granted membership status in accordance with the guidelines set by us. A Member may also be a ‘Founder Member’. This is a designation given by us to the person who identifies as being the founder of the startup business described in their application to us for membership;

Premises means all premises occupied by us (and all equipment, fixtures and fittings located in these Premises) to which you are given access as part of your membership;

Guest means any person who is not a Member who you invite onto the Premises to meet with you for business purposes (including an intern, agent, volunteer, supplier, customer or client);

Term has the meaning given to it in clause 3.1.
your business or your startup business includes a reference to the body corporate (for example the proprietary limited company) through which the business is undertaken;

2. Interpretation

2.1 In these terms and conditions, unless the context otherwise requires:

  1. words denoting any gender include all genders;
  2. headings are for convenience only and do not affect interpretation;
  3. the singular includes the plural and vice versa;
  4. a reference to a party includes its successors and permitted assigns;
  5. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
  6. a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  7. unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar inclusive expressions; and
  8. a reference to this agreement or these terms and conditions means this document and includes any variation or replacement of these terms and conditions.

3. Scope

3.1 You become a Member once your application has been accepted and we receive your first payment of the Fees. We will notify you in writing when we receive the Fees and your membership commences. Your membership will continue until terminated in accordance with clause 24 (Term).

3.2 We accept the business that you list in your membership application. If your business changes or pivots during the Term, or you start work on or with another business, you must notify us in writing immediately.

3.3 Each Member runs and operates their own business separate to us. We are not responsible for any communication, interaction or relationship between you and another Member that arises during the Term and/or from your use of the Benefits. We do not independently verify the qualifications, skills or experience of each Member and we do not independently verify the details they provide about themselves on the Portal or another communication channel operated by us. Our service extends insofar as providing you the Benefits.  

3.4 You must also ensure that any person who enters the Premises at your invitation who is not a Member (including, but not limited to, an intern, agent, volunteer or guest) (Guest) complies with these terms and conditions.

4. Membership Benefits

4.1 Your membership entitles you to the Benefits offered by us from time-to-time.

4.2 A list of the membership types, Fees and Benefits you have access to as part of your membership can be found here for Sydney members and here for Brisbane members.

4.3 The Benefits may vary during your membership and not all the Benefits are guaranteed to be available during the time of your membership.

4.4 We may from time-to-time offer discretionary Benefits to you. The discretionary Benefits may vary. You have no contractual right to receive discretionary Benefits, and they do not form part of the Benefits.

5. Portal

5.1 We hereby grant to you a non-exclusive, non-transferable right to access our online intranet portal (Portal), use the services available through the Portal and use any documentation and/or content which is on the Portal (Content) during the Term and solely for your internal business operations on these terms and conditions.

5.2 You must ensure that you keep your password to access the Portal secure and confidential.

5.3 We reserve the right to monitor your use of the Portal to verify your identity, ensure you are making proper use of the Portal and to improve performance of the Portal.

5.4 If the monitoring referred to in clause 5.3 reveal that any password has been provided to or acquired by any individual who is not authorised by us, then without prejudice to our other rights, we reserve the right to promptly disable such passwords and all related access to the Portal.

5.5 You will comply, and ensure that each of your employees or agents complies, with any policies published by us on the Portal.

5.6 You must not:

  1. attempt to gain unauthorised access to computer systems or content through the Portal;
  2. use a false email address, impersonate others or misrepresent your affiliation with others;
  3. share your login and password details with any other person or use the login details of any other person to access the Portal;
  4. use the Portal or any of the materials and/or content made available through the Portal in a way that violates any applicable laws, the intellectual property or other rights of ours or others, or that is fraudulent, obscene, unprofessional, offensive, misleading or defamatory;
  5. reverse engineer, decompile or disassemble the Portal or use the Portal to develop a solution that is the same or substantially similar to the Portal;
  6. licence, sell, rent, lease, transfer, assign or otherwise commercially exploit, or otherwise make the Portal and/or the Content available to any third party;
  7. assist third parties in obtaining access to the Portal and/or the Content; or 
  8. except as permitted under these terms and conditions, modify, reproduce, display, publish, distribute, copy, transmit, perform, license, create derivative works from, transfer, or sell or re­sell any information, documentation, software, or materials made available through the Portal.

5.7 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Portal and/or the Content and, in the event of any such unauthorised access or use, promptly notify us.5.8 The rights provided under this clause 5 are granted to you only and will not be considered granted to any subsidiary or holding company of yours.

5.9 Subject to any aspects of the Portal for which you will take responsibility, the Portal will be managed and supported exclusively by third party provider Bisner Europe B.V. (company number: 64895246).

6. Member Warranties and Obligations

6.1 You warrant that:

  1. you are at least 18 years old;
  2. the details you provide to us, about yourself (and/or the organisation you are applying for membership) are true, accurate and complete; and
  3. you have the authority to provide such information to us;

6.2 You must:

  1. act honestly and always in the best interests of us;
  2. comply with all applicable laws and regulations with respect to your membership;
  3. promptly follow all lawful and proper directions from us in respect to your conduct in connection with your membership;
  4. inform us of any act of dishonesty pertaining to our business, property or transactions by other Member or on the part of any person which may have come to your knowledge;
  5. familiarise and follow our policies at all times during your employment;
  6. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our network and the Portal, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and
  7. at all times in dealings with other Members, our clients, partners, sponsors, suppliers, contractors and Guests conduct yourself in a manner that protects and enhances our reputation.

7. Membership Fees

7.1 The Fees charged by us for membership are those shown on our website from time to time. We reserve the right to adjust the Fees. We will give at least one months’ notice for any increase in Fees.

7.2 For dedicated membership, you must pay your Fees at least two months in advance each month.

7.3 For community membership, you must pay your Fees at least one month in advance each month.

7.4 If, when you become a Member, your payment of the Fees for that month does not align with our billing cycle part way, you will be charged the Fees pro rata for that period until you are on our regular billing cycle.  

7.5 All Fees are GST exclusive unless stated otherwise.

7.6 The Fees are not refundable upon request in any circumstances.

7.7 We will engage a third-party payment facilitator called Chargebee to enable you to pay the Fees and for us to receive the Fees. We do not store and/or collect your payment details. 

7.8 We will send you an invoice when you pay for your membership Fees. Unless otherwise specified the invoice will be sent to the email address specified in your membership application.

7.9 We reserve the right to suspend or terminate your membership and prevent you accessing the Benefits, in accordance with clause 24.5, if your Fees are overdue by 7 days or more. Please note late fees may also be charged for any outstanding Fees.  

7.10 If you dispute any part of an invoice, then you must pay the amount not in dispute by the due date.

7.11 You must notify us with at least five days written notice of any change to your membership, including a change in membership type or the number of memberships/desks your startup needs (but not including a cancelation of your membership. For cancellation notice periods see clause 24), by completing the Account Request Form here.

8. Use of Premises

8.1 You must only use them for office purposes, and the business you specified in your membership application, unless you have obtained our prior written consent.

8.2 While you have 24/7 access to the Premises and desk you must not sleep on the Premises.

8.3 You must not conduct auction or sale on the Premises.

8.4 You may use the Premises address as your business address and/or registered office.

8.5 You must not smoke on the Premises at any time

8.6 You must comply with our Code of Conduct. Without limiting this obligation, you must:

  1. not behave in an offensive manner to our staff or other members or their Guests;
  2. keep your desk and the adjacent area clean and free of rubbish;
  3. use the facilities available at the Premises for the intended purpose;
  4. not alter any part of the setup of the Premises;
  5. take good care of all parts of the Premises;
  6. not put up any partitions or make any alterations or additions to the Premises;
  7. not bring any explosive or flammable or corrosive fluids or chemicals into the Premises; and
  8. not obstruct or prevent the use of the Premises by other Members or their Guests.

8.7 A swipe card is required by all members to access the Premises. These cards will be issued by us and will be subject to payment of a deposit. To ensure security in the space, you must not lend your swipe card to any other person and, must notify us immediately if it is lost or stolen.

8.8 More details about the arrangements for the issue and replacement of swipe cards are available on request.

8.9 No tenancy interest, leasehold estate or other real property interest is created in your favour with respect to the Premises.

9. Desk Usage

9.1 If you have a dedicated membership then you and members of your team will have an exclusive right to use the desk(s) allocated to you. However, we may change the desk(s) allocated to you from time to time in our absolute discretion. We will endeavour to give you as much notice as possible of a change and at the least we will provide you five days’ notice.

9.2 If you have a community membership then you and members of your team will have a non-exclusive right to use the desk(s) identified as being community desks.

9.3 You must not allow any other person, including other Members, to use your desk without our prior written consent.

9.4 You must not touch or remove anything from another Member’s desk without their expressed permission.

9.5 We reserve the right to use all desks for events. If we need your desk you will be notified in writing about the proposed date and nature of the event. You must remove your property from your desk in advance of the event.

10. Internet

10.1 We do not make any representations as to the security of Fishburners network or the internet or of any information that the client places on it. You should adopt whatever security measures (e.g. encryption) you believe is appropriate to your circumstances.

10.2 We cannot guarantee that a particular degree of availability will be attained in connection with your use of Fishburners network or internet. Your sole and exclusive remedy shall be the remedy of such failure by Fishburners within a reasonable time after notice by email or phone.

10.3 Your network activity may be monitored from time to time to improve performance and to ensure we are complying with our legal and security obligations.

10.4 All due care will be taken to ensure personal communications are not interrupted.

10.5 You must not use the internet access provided for excessive downloads or for a purpose considered to be illegal in Australia. The use includes, and is not limited to, the use of any torrent client software.

11. Guests

11.1 You are entitled to invite Guests onto the Premises during Business Hours.

11.2 Your Guests’ visit must be for business purposes only.

11.3 Your Guest may stay on the Premises for no longer than three hours.

11.4 If your Guests’ stay is longer than three hours they will need to purchase a Day Pass from us.

11.5 We reserve the right to charge you for:

  1. a Day Pass if any of your Guests stay longer than three hours and you have not purchased a Day Pass; and
  2. a fee if your Day Pass Guest does not return their swipe card.

11.6 You are responsible for your Guests. You must accompany them while they are on our Premises.

11.7 If your Guest breaches any of these terms and conditions then you will be deemed to be in breach of these terms and conditions.

12. Founder Members

12.1 If you are a Founder Member, then you:

    1. must notify us about any new employees and/or contractors joining your business if they are going to be working on the Premises (in which case they will need to be accepted as a Member by us and if successful you will need to pay an additional membership for them);
    2. you are responsible for any of our property provided to the employees and/or contractors of your business;
    3. must ensure each employee and contractor of your business complies with our Code of ConductWHS PolicyDesk Use Policy and our other policies;
    4. must notify us of any employees and/or contractors who are leaving your business, if they have been working on the Premises, so we can cancel their membership with us; and
    5. must ensure that any of our property (such as swipe cards, keys or access codes) provided to employees and/or contractors of your business is returned to us when no longer required.

12.2 We will provide you and the employees and/or contractors working in your business with the number of desks for which you have agreed to pay and at the premises which you have nominated as your primary location.

13. Equipment

13.1 Notwithstanding that we may operate an entry access system or otherwise take steps to maintain the Premises in a safe or secure manner, we do not give any representations that the Premises are safe or secure for your equipment or other property, nor that the electricity supply will not damage your equipment. We are not liable for any theft, loss or damage to your equipment or other property.

13.2 It is your responsibility to check that any equipment you bring onto the Premises is not faulty and is not a safety risk to other Members.

13.3 We reserve the right to inspect and test any equipment you bring onto the Premises. We may prevent you from using the equipment and require you to remove it from the Premises if we decide it is necessary.

13.4 You must not use any equipment in the Premises that is likely to create a noise level that is unreasonable for other Members.

13.5 You must not install or connect any electrical equipment on the Premises that may overload the available electricity supply or the facilities through which that supply is made available to you.

13.6 Except for computers, displays, peripherals and chargers, you must not install any electrical or electronic equipment without our prior written consent. We reserve the right to withhold consent in the case of surveillance equipment, heaters and other equipment that might interfere with other Members safe use and enjoyment of the Premises.

14. Privacy

14.1 In order to apply for membership, you must provide us with certain information about yourself and your business. To the extent that this information is Personal Information (as defined in the Privacy Act 1998) (Act) we will handle and store this information in accordance with the Act and our Privacy Policy here.

14.2 You acknowledge that you may share or upload Personal Information with us (including on the Portal) and that such information will be accessed by us for the purposes of providing you with Benefits associated with your membership and operating our business.

14.3 You may provide us with other data, information or material during the erm (including during your use of the Portal) (Data). You grant consent for us to access, review or copy on our own account, or disclose and transfer to any third party, any Data, to the extent required:

  1. to permit us together with our officers, employees and contractors to provide you the Portal, Benefits and services associated with your membership;
  2. to effect a sale (or proposed sale) of all or part of our business; and
  3. otherwise as required or permitted by any law to which we and our related bodies corporate may be subject.

15. Surveillance

15.1 We reserve the right to monitor all internet on our network and/or using our resources.

15.2 We have installed cameras at the Premises which monitor and record movement of persons at the Premises. We reserve the right to watch these recordings and use the content as permitted by the Workplace Surveillance Act 2005 (NSW) (Act) or any other similar legislation applicable.

15.3 You agree that notice given to you is sufficient for the purposes of the Act or any other similar legislation applicable.

16. Confidentiality

16.1 We operate in a competitive environment. We may disclose to you, or you may become aware of information about us and our partners, sponsors, clients and suppliers which is of a confidential nature.  

16.2 You must keep confidential, at all times, to any person all information provided to you by us or overheard by you whether or not the information is recorded in a material form and whether or not marked as being confidential.

16.3 You are expected to use all reasonable endeavours to protect our confidential information and prevent any unauthorised use or disclosure of our confidential information to third parties.

16.4 You are expected to notify us promptly in writing if you become aware or suspect any actual, threatened or suspected unauthorised use of our confidential information.

17. Compliance

17.1 You must comply with our Code of ConductWHS PolicyDesk Use Policy and our other policies relating to membership and use of the Premises and the facilities in the Premises (Policies). The Policies do not form part of these terms and conditions. Copies of them are available on our website.

17.2 You must check our Policies regularly as they may be changed by us. We will endeavour to give you notice of any change but we do not guarantee to do so.

17.3 You must inform your Guests about the Policies and take all steps to ensure that your Guests comply with them.

17.4 You must comply with and ensure that your business complies with all Australian laws and regulations that govern the conduct of your business.

17.5 You must not do anything, in connection with your membership, that is illegal, that may interfere with the use of the Premises by us or by other Members and their Guest, or that may cause any nuisance or annoyance, increase the insurance premiums we have to pay, or harm our reputation or that may cause us loss or damage.

18. Insurance

18.1 Our insurance does not provide cover to anyone other than Fishburners Limited and our staff. You are responsible for taking out your own insurance to cover your equipment and other property.

18.2 You must take out and maintain at your cost or ensure that your business takes out and maintains, during the Term:

    1. a comprehensive public liability insurance policy for an insured sum of not less than $20 million for a single occurrence, covering amounts which you or your business may become legally liable to pay consequent upon:
      1. injury to a person; and
      2. loss of, or damage to, real or personal property (including the loss of use thereof); and
    2. a workers compensation insurance policy that is effective in the location(s) in which you or your business conducts business in respect of all claims and liabilities, whether at common law or under statute, relating to your liability or the liability of your business as an employer in respect of any accident or injury to any person employed by you or your business for such amount that is required under the applicable workers compensation legislation.

18.3 You must comply with, and ensure that your business complies with, all of the terms and conditions of any insurance policy taken out under this Insurance clause.

18.4 You must not do or allow anything which would prejudice any of the insurances or cause them to be terminated.

18.5 You must on request being made by us, promptly provide to us copies of any insurance policy taken out under this Insurance clause together with a certificate of currency for that insurance policy.

19. Limitation of Liability

19.1 We exclude liability to you for any of these things incurred by you: loss of revenue, loss of profit, loss of goodwill, loss of customers, loss of capital, damage to reputation, loss in connection with any other contract, loss of data, or indirect, Consequential Loss or special loss, damage or expense.

19.2 We do not exclude or restrict our liability for any matter which it would be unlawful for us to exclude or attempt to exclude our liability.

19.3 We are not responsible for:

  1. any injury (whether physical or mental) that occurs while you are a member; or
  2. any loss of property that occurs while you are a member.

19.4 To the full extent permitted by the law, our liability for our breach of any guarantee, condition or warranty is limited to the Fees actually paid by you in respect of your membership in the year in which the event giving rise to our liability occurs.  

19.5 For the purposes of this clause Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

20. Indemnity

20.1 You must indemnify us against and pay on demand any and all loss, liability or costs (including third party claims for personal injury, death or tangible property damage) suffered or incurred by us or our officers, employees, contractors, agents and visitors arising out of or in connection with your actions or omissions or those of the staff of your business, including:

  1. negligence;
  2. fraud, unlawful conduct or wilful misconduct;
  3. fraudulent or innocent misrepresentation;
  4. breach of these terms and conditions or any of our policies; and
  5. breach of any laws.

21. No Disparagement

21.1 You agree that during and after the Term you will not make, say or broadcast (by any means or through any medium) any statement which disparages or injures (or which might have the effect of disparaging or injuring) the reputation of us or any of our officers, directors, employees or contractors.

22. Non-Solicitation

22.1 At any time during the Term, and for a period of 6 months after the Term, you must not approach any of our employees and/or contractors, for the purpose of persuading that person to terminate his or her employment or contract with us.

22.2 You may employ a person who was previously one of our employees or contractors if:

  1. that person ceased to be employed or engaged by us more than 6 months before being employed or engaged by you; or
  2. we consent to you doing so (a right we can exercise at our absolute discretion) and, if demanded, you promptly reimburse us for all reasonable costs and expenses that we incur in recruiting and training a replacement.

22.3 If, after the Term, you engage with another organisation which is in the business of coworking, or you create your own coworking space, you must not approach any other Members for the purpose of persuading that Member to terminate their membership with us.

23. Use of the Fishburners name and IP

23.1 You acknowledge that any intellectual property rights (including graphics, logos, design, or icons) relating to us and/or appearing on the Portal remain the property of us and/or our licensors.

23.2 You must not take, copy or use for any purpose the name Fishburners or any of our other business names, trade marks, service marks, logos or other intellectual property without our prior written consent.

23.3 You may use our name, to the extent that you are referring yourself to as a Member of ours.

23.4 You will not at any time after the Term represent yourself, as being in any way connected with or interested in our business.

24. Termination and Suspension

24.1 You become a member once your application has been accepted by us and your membership will continue until terminated in accordance with clause 24.

24.2 We may terminate your membership, with immediate effect, by giving you written notice if:

  1. you do not pay your Fees in accordance with our terms of payment;
  2. the nature of your business changes as described in clause 3.2 and the new arrangement is not compatible with your membership and the values to which we subscribe;
  3. you are in breach of any one or more of these terms and conditions provided that, where the breach is capable of being remedied, we have given you written notice of the breach, given you 14 days to remedy the breach and you have failed to remedy the breach in that 14 day period; or
  4. your conduct, in our reasonable opinion, is incompatible with your membership and the values to which we subscribe.

24.3 We may also terminate or suspend your membership:

  1. for convenience, by giving you at least one month’s written notice; or
  2. with immediate effect if we can no longer provide you access to the Portal or provide you with the Benefits.

24.4 You may terminate your membership:

  1. for convenience, by giving us at least two months’ written notice by completing the Account Request Form here; or
  2. if we are in material breach of these terms and conditions by giving us at least two months’ written notice, provided that, where the breach is capable of being remedied, you have given us written notice to remedy the breach and we have failed to do so within 14 days of receiving that notice.

24.5 We may suspend access to the Benefits if you fail to pay any Fees, which have become due from you in respect of your membership. During the period of suspension you will remain liable to pay the Fees due to us in respect of your membership.   

25. After Termination

25.1 When you cease to be a Member you cease to be entitled to the Benefits and you must vacate the Premises.

25.2 On or before the last day of your membership, you must return all keys, swipe cards and other property belonging to us. A fee will be charged for any items that are not returned within 24 hours upon the agreed date your membership will be cancelled.

25.3 When you vacate the Premises you must leave your desk and the adjacent area clean and free of any rubbish and in the same condition as it was when you took possession (fair wear and tear excluded).

25.4 We reserve the right to charge additional fees for any repairs required to restore your desk and adjacent area to the condition it was when you took possession (fair wear and tear excluded).

25.5 If you leave any property in the Premises, we may dispose of that property at your cost in any way we choose. We are not obliged to account to you for the proceeds we receive (if any) from the sale of your property.

26. Updates to these Terms and Conditions

26.1 We may change these terms and conditions at any time and, if we make changes, we will take reasonable steps to let you know about the changes. However, you should also keep track of whether changes have been made to these terms and conditions by referring to the date of publication at the end of this page.

26.2 If you continue to enjoy the Benefits following any amendment to these terms and conditions you will be taken to have agreed to comply with the terms and conditions as changed. If you do not agree with changes to the terms and conditions, you can choose to no longer be a member.  

27. Notices

27.1 Any notice we send to you will be emailed to the email address that you provide to us when applying for membership.

28. General

28.1 These terms and conditions supersede all prior arrangements, understandings or agreements between us and you.

28.2 We may change these terms and conditions by giving you written notice as the day on which the change will take effect and what action taken by you will be deemed to be acceptance.

28.3 A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.

28.4 We and you must use reasonable efforts to do all things necessary or desirable to give full effect to these terms and conditions.

28.5 If any provision in these terms and conditions is invalid under any law, the provision will be limited, narrowed, construed or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary, the invalid provision will be deleted from these terms and conditions and the remaining provisions will remain in full force and effect.

28.6 Clauses 6, 14, 16, 19, 20, 21, 22, 23, 25, and 28 will remain valid and binding upon each party following expiry or termination of your membership and this agreement. However, this clause does not prevent the survival of any other provision which, in the absence of this clause, would be deemed to survive expiry or termination of your membership and this agreement.

28.7 These terms and conditions are to be governed by and construed in accordance with the laws of New South Wales and any claim made by either party against the other which in any way arises out of these terms and conditions will be heard in New South Wales. You agree to submit to the jurisdiction of the courts in New South Wales.

Terms and conditions as at 19 December 2018