Terms and Conditions

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:

  • Full Buyer’s Agent Service; or
  • Auction Bidding Service; or
  • Negotiation Service.

2.2 For the purposes of this Agreement:

  • Full Buyer’s Agent Service includes all functions specified in Clause 3.1.
  • Auction Bidding Service includes all functions specified in Clause 3.2.
  • Negotiation Service includes all functions specified in Clause 3.3.

2.3 The services provided by the Agent are set out on the Front Cover of the Agreement.

3. FUNCTIONS OF PARTIES

3.1 Where the Agent is appointed to provide the Full Buyer’s Agent Service, the Agent is responsible for conducting the following functions:

  • Sourcing property for the Buyer’s review in accordance with the Buyer’s Brief;
  • Providing sales data to the Buyer;
  • Advising the Buyer in relation to what due diligence should be undertaken prior to purchasing a property;
  • Liaising with the vendor’s agent regarding potential properties for purchase by the Buyer;
  • Negotiating the purchase price of a property and the terms and conditions of a Contract for Sale and Purchase of Land and under the instructions of the Buyer;
  • Registering at any auction that the Buyer instructs;
  • Bidding on behalf of the Buyer at an auction, up to an approved price communicated by the Buyer; and
  • Liaising with the Buyer’s legal representative.

3.2 Where the Agent is appointed to provide the Auction Bidding Service, the Agent will be responsible for conducting the following functions:

  • Providing sales data to the Buyer;
  • Registering at any Auction that the Buyer instructs; and
  • Bidding on behalf of the Buyer at an auction, up to an approved price communicated by the Buyer.

3.3 Where the Agent is appointed to provide the Negotiation Service, the Agent will be responsible for conducting the following functions:

  • Liaising with owners of property or vendors’ agents; and
  • Negotiating the purchase price of a property and the terms and conditions of a Contract for Sale and Purchase of Land under the instructions of the Buyer.

3.4 The Buyer acknowledges that the Agent cannot execute a Contract for the Sale and Purchase of Land on behalf of the Buyer unless appointed as an Enduring Power of Attorney for the Buyer.

3.5 If the Buyer is the successful bidder at an auction, the Buyer must either:

  • Be available for executing the Contract for the Sale and Purchase of Land; or
  • Arrange a person who is an Enduring Power of Attorney for the Buyer, to be available at the auction; or
  • Authorise the Auctioneer in writing to execute the Contract for the Sale and Purchase of Land.

3.6 The Buyer agrees to:

  • Notify the Agent in writing of any amendments to the personal details or property specifications of this Agreement or material facts regarding the Buyer’s proposed purchase of the property;
  • Cooperate with the Agent at all times, including without limitation by providing instructions in a timely manner and being available for property inspections.

3.7 Where the Buyer alters their brief, the Agent will prepare a new brief, which will be served on the Buyer.

3.8 Once a brief is served under clause 3.7, it substitutes the Buyers Brief set out in this Agreement.

4. AUTHORITY
4.1 The Buyer authorises the Agent:

  • To represent that they are acting for the Buyer;
  • To make all enquiries regarding properties as set out on the Buyer’s Brief;
  • To liaise with vendors’ agents who have listed properties that match those described on the Buyer’s Brief;
  • To appoint persons to assist the Buyer, including but not limited to: solicitors, mortgage brokers, valuers, pest and building inspectors and strata inspectors;
  • To make offers on properties under the instructions of the Buyer; and
  • To bid at auctions on behalf of the Buyer, if instructed.

4.2 The Agent is not authorised:

  • To engage in any additional Buyer’s Agent services in relation to any properties that are not specified on the Buyer’s Brief; and
  • To appoint any person to assist the Buyer without the Buyer’s formal approval.

4.3 The Buyer acknowledges they are responsible for paying any fees associated with persons set out in Clause 4.1(d) 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 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 purchasing of 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 selected service on the Item Schedule;
  • The functions outlined in Clause 3.

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:

  • The Item Schedule; or
  • The Instruction Sheet; or
  • The Terms 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.

6.4 From time to time, the Buyer will amend their instructions after viewing properties and being approved for finance. Where the Buyer has amended their instructions, the Agent will amend the Instruction Sheet to this Agreement and provide a new Instruction Sheet to the Buyer, which will constitute a new retainer for the Agent.

7. TERM

7.1 The term of this Agreement is set out on the Item Schedule.

7.2 Either party may terminate this Agreement in writing by giving written notice to the other party that the Agreement is at an end no later than 14 days prior to the expiry of the current term under this Agreement.

7.3 Where either party does not terminate the Agreement, the term of the Agreement is extended for the same term as set out on the Item Schedule.

7.4 The Agent may terminate the Agreement in writing without notice where the Buyer has failed to pay any fees or remuneration under this Agreement.

7.5 Notwithstanding clause 7, this Agreement may be terminated immediately provided written consent is given by all parties.

8. EXCLUSIVITY

8.1 This is an exclusive Buyer’s Agency Agreement.

8.2 The Buyer cannot appoint another agent unless the Agent has been terminated in accordance with Clause 7.

9. ENTITLEMENT TO PAY

9.1 Where the Agent has been appointed on the Item Schedule to provide only the Auction Bidding Service, the Agent is entitled to be paid the Auction Bidding Service Fee and Auction Retainer Fee set out on the Item Schedule for every auction the Agent is instructed to attend on behalf of the Buyer.

9.2 The Buyer must pay the Auction Bidding Service Fee and Auction Bidding Retainer Fee prior to each Auction the Buyer has instructed the Agent to bid on their behalf.

9.3 Where the Agent has been appointed on the Item Schedule to provide only the Negotiation Service, the Buyer may be required to pay the following fees:

  • The Retainer Fee; and
  • The Negotiation Service Fee.

9.4 Where the Agent has been appointed on the Item Schedule to provide the Full Buyer’s Agent Service, the Buyer may be required to pay the following fees:

  • The Retainer Fee; and
  • The Full Buyer’s Agent Service Fee.

9.5 For abundant clarity, where the Agent is appointed to undertake the Full Buyer’s Agent Service, an Auction Bidding Service Fee or Negotiation Service Fee set out on the Item Schedule is not payable.

9.6 Where the Agent has been appointed to undertake the Full Buyer’s Agent Service or Negotiation Service the Buyer must pay the Retainer Fee as set out on the Item Schedule, upon the execution of this Agreement.

9.7 For abundant clarity:

  • The Retainer Fee is non-refundable if the Buyer does not proceed to a purchase; and
  • The Retainer Fee forms part of the Full Buyer’s Agent Service or Negotiation Service.

9.8 The Agent is entitled to the Full Buyer’s Agent Service Fee or Negotiation Service Fee where the Buyer enters into an unconditional Contract for the Sale and Purchase of Land to buy property within the Term of this Agreement, regardless of who introduced the Buyer to the property and where the Buyer locates the property.

9.9 Where a Buyer purchases a property within 12 months of the expiry of this Agreement, the Agent is entitled to their Full Buyer’s Agent Service Fee or Negotiation Service Fee, provided that:

  • The Buyer was introduced to the property by the Agent;
  • The Buyer was introduced to the owner of the property by the Agent; or
  • The Buyer was introduced to the vendor’s agent by the Agent.

9.10 For the purposes of this Agreement, a property may be purchased by:

9.11 The Agent is entitled to their Full Buyer’s Agent Service Fee or Negotiation Service Fee where the Buyer has purchased a property through a relative, business associate, or any associated entity that the Buyer controls.

9.12 The Buyer must pay the Full Buyer’s Agent Service Fee or Negotiation Service Fee upon the exchange of any Contract for the Sale and Purchase of Land where the Agent is entitled to be paid under this Agreement.

9.13 For the purposes of this Agreement, a “Contract for Sale” includes any option to purchase including a call option or a put and call option.

9.14 Where the Buyer has not paid the Full Buyer’s Agent Service Fee or Negotiation Service Fee in accordance with this Agreement or has indicated that they intend not to pay the Full Buyer’s Agent Service Fee or Negotiation Service Fee, the Agent is entitled to register this unpaid fee as a debt with any credit reporting body.

9.15 Where the Buyer is a corporation, the Director guarantees the payment of all fees under this Agreement

9.16 Where the Agent is entitled to a fee under this Agreement and that fee has not been paid, the Buyer grants a charge over the property purchased by the Buyer through the Agent upon the completion of any Contract for the Sale and Purchase of land.

9.17 Notwithstanding Clause 9.12, the parties may agree to pay the Full Buyers Agent Service Fee or Negotiation Service Fee as follows:

  • 50% on exchange; and
  • 50% on the completion of the Contract;

9.18 For the purposes of Clause 9.17(b), where the property is subject to an option deed, completion occurs either when the option period lapses under the deed or when a binding contract between the parties has been affected.

9.19 For the purposes of Clause 9.17(b), all fees must be paid no later than 1 year after the execution of this agreement.

9.20 This clause does not merge on termination of this Agreement.

10. DISCLOSURES AND REBATES

10.1 The Buyer acknowledges that the Agent has disclosed any conflict of interests prior to executing this Agreement; and

10.2 The Buyer acknowledges that they have been made aware of any rebates received by the Agent prior to executing this Agreement.

11. INDEMNITY

11.1 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.

11.2 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.

12. 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.

13. WARRANTIES

13.1 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.

13.2 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.

13.3 Although the Agent utilises information from published and trusted third parties, the Agent cannot guarantee this information. The Buyer should verify any information with the relevant professionals and the Buyer acknowledges that under no circumstances will the Agent be liable for any advice, acts, or omissions of such third parties.

13.4 The Agent is not a valuer, and information provided regarding the current or future value of the property is indicative based on the most recent electronic data.

13.5 The Buyer warrants that they have the authority to enter into this Agreement.

14. ELECTRONIC TRANSACTIONS

14.1 Pursuant to the Electronic Transactions Act 2000, the parties may execute this Agreement electronically.

14.2 Notwithstanding any other provision of this Contract, this Agreement does not need to be signed in counterparts.

15. WRITING
For the purposes of this Agreement any electronic communication is deemed to be given ‘in writing’.

16. JURISDICTION

16.1 For the purposes of this Agreement, jurisdiction will be determined by the location of the property subject to any dispute.

16.2 The parties agree that all litigation will be heard in the Courts in the jurisdiction of that property.