1. PARTIES
The parties to the Agreement are set out in the Item Schedule and are referred to respectively as “Buyer” and “Agent”.
2. APPOINTMENT
2.1 The Buyer appoints the Agent to provide the following services of Deal Sourcing & Deal Negotiation:
3. FUNCTIONS OF THE PARTIES
3.1 The Agent is responsible for conducting the following functions:
a. Sourcing of The Property(s) for the Buyer’s review from a variety of sources, including but not limited to Vendors, Agents and 3rd Party Deal Finders;
b. Advising the Buyer in relation to the "On Market" or "Off Market" status of The Property where known;
c. Compiling of an "Information Pack" about The Property, including but not limited to it's zoning, site area, known constraints, development potential, and current Development Approval Status
d. Liaising with Owners of The Property, Vendors, Listing Agent or Deal Finder representing The Property as relevant; and
e. Negotiating on The Property in order to enact a Purchase of The Property as defined within Clause 9 under the instructions of the Buyer;
f. Liaising with the Buyer’s legal representative;
3.2 The Buyer acknowledges that the Agent cannot execute a Purchase of The Property as defined within Clause 9 on behalf of the Buyer unless appointed as an Enduring Power of Attorney for the Buyer.
3.3 The Buyer agrees to:
a. Notify the Agent in writing of any amendments to their personal contact details, or other material facts regarding the Buyer’s proposed Purchase of The Property;
b. Cooperate with the Agent at all times, including without limitation by providing instructions in a timely manner and being available for property inspections.
c. Not circumvent the Agent by dealing directly with the Owner of The Property, Vendor, Listing Agent or Deal Finder of The Property, without the express written permission of the Agent;
d. Advise the Agent in writing of any negotiations that have been entered into regarding The Property with any party(s);
e. Provide the Agent in writing with a copy of any executed Contract, Deed, Option, Agreement, Joint Venture or other arrangement entered into:
4. AUTHORITY
4.1 The Buyer authorises the Agent:
a. To represent that they are acting for the Buyer;
b. To make all enquiries regarding The Property as instructed by the Buyer during the negotiation process;
c. To liaise with Owners of The Property, Vendors’, Listing Agent's & Deal Finder's;
d. To appoint persons to assist the Buyer, including but not limited to: solicitors, mortgage brokers, valuers, pest and building inspectors and strata inspectors;
e. To make offers on The Property under the instructions of the Buyer; and
4.2 The Buyer acknowledges they are responsible for paying any Fees as set out in Clause 9 of this Agreement.
5. LIMITATIONS
5.1 The Agent is licensed in the relevant state or territory to act on behalf of Buyers to Purchase The Property.
5.2 The Agent will always use his or her best endeavours to act in the best interest of the Buyer, however the Agent’s skills are limited to the functions associated with the Purchase of The Property.
5.3 Where a person is appointed pursuant to Clause 4.1(d) of this Agreement, the Agent is not liable for the actions of any of those persons.
5.4 Notwithstanding Clause 4.1 (d) the Buyer is entitled to appoint their own persons at any time.
5.5 The function of the Agent is limited to the functions outlined in Clause 3.1.
6. VARIATION
6.1 This Agreement may be varied at any time by the parties, subject to Clause 6.2 and 6.3 of this Agreement.
6.2 Where either party wishes to vary this Agreement, that party must provide alternate instructions in writing to the Agent varying:
a. The Item Schedule; or
b. The Terms & Conditions of this Agreement.
6.3 For the purposes of Clause 6.2 of this Agreement, either party must confirm their acceptance or rejection of the proposed variations, in writing, to the other party.
7. TERM
The Term of this Agreement is for 12 months.
8. EXCLUSIVITY
8.1 The Buyer acknowledges that the Agent is Exclusive for this specific Property, and that the Buyer has not been introduced to The Property via any other sources.
8.2 This is an Open Buyer’s Agency Agreement in all other aspects, and that the Buyer may appoint another agent to also source alternate properties on behalf of the Buyer.
9. PURCHASE
9.1 For the purposes of this Agreement, The Property will be considered "Purchased" if any of the following activities occur within the Term of this Agreement:
a. Transferring ownership;
b. Transferring shares in a corporation where the corporation is the registered proprietor of The Property; or
c. Transferring units in a trust where the trust is the beneficial owner of The Property; or
d. Entering into a Contract of Sale; or
e. Entering into a Call Option, Put Option or Put and Call Option; or
f. Signing of a Joint Venture Agreement; or
g. Signing of a Development Management or Project Management Agreement (or similar); or
h. Entered into any other Agreement that allows for the control of The Property for the purposes of developing The Property, or onselling for a profit
10. ENTITLEMENT TO PAY
10.1 The Buyer will be required to pay the the Finders Fee as identified in Item 5 of the Item Schedule where the Buyer enters into a Purchase of The Property as defined within Clause 9, within the Term of this Agreement
10.2 The Agent is entitled to their Finders Fee where the Buyer has Purchased a property through a relative, business associate, or any associated entity that the Buyer controls.
10.3 The Buyer must pay the Finders Fee upon the Purchase of The Property going unconditional, with full payment due 7 days from this date.
10.4 Where the Buyer has not paid the Finders Fee in accordance with this Agreement or has indicated that they intend not to pay, the Agent is entitled to do any or all of the following actions:
a. Register this unpaid Finders Fee as a debt with any credit reference reporting organisation; or
b. Register a Caveatable interest against The Property; or
c. The Buyer grants a charge over The Property:
10.5 Where the Buyer is a corporation, the Director guarantees the payment of all Finders Fees under this Agreement
11. DISCLOSURES AND REBATES
11.1 The Buyer acknowledges that the Agent has disclosed any conflict of interests prior to executing this Agreement; and
11.2 The Buyer acknowledges that they have been made aware of any rebates received by the Agent prior to executing this Agreement.
12. INDEMNITY
12.1 The Buyer will hold and keep indemnified the Agent against all actions, suits, proceedings, claims, demands, costs, and expenses whatsoever which may be taken or made against the Agent during or arising out of The Property performance or exercise of any of the powers, duties or authorities of the Agent under this Agreement.
12.2 The Buyer indemnifies the Agent for all expenses, costs, including but not limited to debt collection fees and/or legal costs and disbursements incurred by the Agent in recovering any outstanding fees under this Agreement.
13. CONFIDENTIALITY
The parties must keep confidential any information identified in this agreement as confidential information, save for any necessary disclosure to their respective legal and financial advisers, or as otherwise required by law.
14. WARRANTIES
14.1 The Agent makes no warranties to any information or data from any third parties and expressly disclaims all liability in relation to such information or data, including but not limited to its accuracy, completeness, suitability or reliability.
14.2 The Agent makes no warranties to referrals to third parties including but not limited to legal representatives, mortgage brokers, building, pest or strata inspection companies, valuers and surveyors, in relation to the Purchase of The Property.
14.3 The Buyer acknowledges that all third parties are independent of the Agent and under no circumstances will the Agent be liable for the advice, acts, or omissions of such third parties.
14.4 The Buyer warrants that it is responsible for its final purchasing decision and that the Agent makes no guarantees or warranties of any kind in relation to The Property.
14.5 The Buyer accepts full responsibility for satisfying itself in relation to all aspects of The Property. Under no circumstances will the Agent be liable for any loss, damage, costs or compensation arising out of, or in connection with, the Buyer’s decision to the purchase The Property.
14.6 The Buyer warrants that they have the authority to enter into this Agreement.
15. ELECTRONIC TRANSACTIONS
15.1 Pursuant to the Electronic Transactions Act 2000, the parties agree to execute this Agreement electronically, with formal acceptance of the contract being by way of selecting "Accept Agency Agreement & View Property Information Pack" button on this page
15.2 Notwithstanding any other provision of this Contract, this Agreement does not need to be signed in counterparts.
16. WRITING
17. For the purposes of this Agreement any electronic communication, including email and SMS, is deemed to be given ‘in writing’.
18. JURISDICTION
18.1 For the purposes of this Agreement, jurisdiction will be determined by the location of The Property subject to any dispute.
18.2 The parties agree that all litigation will be heard in the Courts in the jurisdiction of The Property.
