CONSULTING AGREEMENT: TERMS & CONDITIONS
APPOINTMENTThe Buyer appoints the Agent exclusively for the procurement and purchase of real property of the details, description and Location specified in the Schedule.
The Agent accepts the appointment subject to the terms of this Agreement.PERIOD
2. 1 This Agreement commences on the date of this Agreement and continues for the Term specified in the Schedule (“Initial Term”).
2.2 In the event that the Initial Term is reached, provided a valid termination notice has not been received by either party, the Agreement automatically is extended by a further period of 12 months.TERMINATION
The Agent may terminate this Agreement with immediate effect by giving written notice to the Buyer: (a) where the Buyer has not paid Fees past due for a period of 60 days and prior alternate payment agreement has not been reached with the Agent;
(b) where the Buyer commits a material breach of this Agreement and is incapable of remedy, or, after 14 days of being provided notice by the Agent outlining nature of breach, has failed to remedy the same; (c) at its absolute discretion, without reason.
The Buyer may terminate this Agreement by giving 21 days written notice to the Agent: (a) where the Agent commits a material breach of this Agreement and is incapable of remedy, or, after 14 days of being provided notice by the Buyer outlining nature of breach, has failed to remedy the same; (b) where the Agent has failed to provide the Packaged Services continuously for a period of 6 months.
In the event the Agent terminates this Agreement under clause 3.1 the Agent is entitled to the full Service Fee and any damages as a result of the Buyers breach.
In the event the Buyer terminates this Agreement under clause 3.2, the Buyer is entitled to a full refund of Service Fee or part thereof paid to the Agent.
CONSEQUENCES OF TERMINATION
4.1 The Buyer acknowledges and accepts that, subject to clauses 3.2, 3.4 and 8 if the Buyer terminates this Agreement for any reasons(s), the Agent is entitled to deduct from the Service Fee, or part thereof paid an amount commensurate to services rendered and costs incurred by the Agent as at the date it receives the Buyer’s written notice of termination. The amount to be deducted will be determined by the Agent in its absolute discretion.
PROPERTY PROCUREMENT PARAMETERS
The Buyer acknowledges and agrees that: a) the Agent will endeavour to present a property similar to criteria as agreed in the Schedule; b) the market may not have a suitable property within the parameters as required by the Buyer; c) the Agent may require the Buyer to revise its requirements and provide the Agent with a new Schedule; and d) a revision requested by the Agent pursuant to clause 9(c) will not be a valid ground for termination of this Agreement.
If the Buyer terminates this Agreement on the basis of the preceding clauses under this heading, the Agent will be entitled to the full Service Fees and any other damages it is entitled to in law.
DUTIES OF AGENT
The Agent will, at all times during the term of this Agreement: a) act in the Buyer’s best interest as the Buyer’s advocate and will utilise the skills and experience of the Agent in providing advice in relation to and assisting the Buyer to select a property to purchase; b) provide advice to the Buyer of the most suitable property, which, in the Agent’s opinion, meets the Buyer’s general requirements as outlined in the Schedule; c) negotiate with the vendor of the property selected by the Buyer to purchase the property on favourable terms; d) act as general consultant to the Buyer on all matters concerning the purchase of property in the Location stated in the Schedule and keep the Buyer informed of the sources of supply of property in that Location, general level of market prices of property from time to time in the Location and general conditions appearing likely to affect the future price of the property or interfere with the supply of property in that Location; e) inform the vendor of the property (or the vendor’s agent if one has been appointed) of the fact that the Agent is acting as Agent for the Buyer; f) obtain such warranties as to the nature, quality and suitability of the property as the Buyer may require; and
g) generally, act in good faith.
DUTIES OF BUYER
By signing this Agreement, the Buyer warrants they: a) have truthfully completed the Schedule in full; b) have had the opportunity to obtain independent legal, financial and taxation advice in relation to the purchase of the selected property; c) will not, during the term of this Agreement purchase a property within the Location other than through the Agent; d) will not, during the term of this Agreement appoint another Agent to act as the Buyer’s Agent for the purpose of buying a property in the Location; e) indemnify the Agent for any loss or damage suffered arising in the proper performance of the Services under this Agreement; f) keep confidential all information provided to the Buyer by the Agent during the term of this Agreement; g) are not a “foreign person” as defined in section 21A of the Foreign Acquisitions and Take overs Act 1975 (Cth) (“FATA”) as the meaning is extended by section 4(6) of the FATA or a “person to who this section applies” within the meaning of section 26A as section 26A is affected by section 5A of the FATA; and h) have the financial capacity to purchase a property in the price range specified in the Schedule
The advice provided by the Agent in relation to property may only be relied upon by the Buyer and may not be relied upon by any other party without the prior written authorisation of the Agent.
The advice provided by the Agent may only be relied upon by the Buyer for the purpose of selecting a property to purchase for the use specified by the Buyer in the Schedule and must not be relied upon for any other purpose.
The Buyer acknowledges and agrees that the Agent makes no warranties in relation to any property and the Buyer must rely on its own inspection of the property including (but not limited to): a) that there are no easements, covenants, caveats, rights of way or encroachments on the property; b) that there are any planning regulations or policies that apply to the property; c) that the property is structurally sound or that there is no unapproved structures, timber infestation, asbestos or any other defect in the property; d) that there is no environmental site contamination or any failure by any party to comply with environmental legislation in relation to the property; e) that all licenses and permits in relation to the property are current and can be renewed; and f) that a change of land use is possible in relation to the property.
The Buyer acknowledges and agrees that: a) the Agent has not taken the Buyer’s financial circumstances into account when providing its advice; b) the Agent must not and has not provided legal, financial or taxation advice to the Buyer; c) the Agent does not hold an Australian Financial Services License as defined by section 913B of the Corporations Act 2001 (Cth) and the Agent is not authorized to provide financial services to the Buyer and the Agent must not, and has not, provided financial services to the Buyer; d) the Buyer has obtained independent legal, financial and taxation advice in relation to the purchase of the property selected; and e) the Agent has advised the Buyer to obtain written finance approval prior to the purchase of the property selected.
INDEMNITY AND LIMITATTION OF LIABILITY
The Buyer indemnifies and continues to indemnify the Agent against any claims, losses or costs arising directly or indirectly from the Agent’s services rendered, including but not limited to, condition of the property, to the Buyer and/or its related entity or persons, unless due to willful neglect by the Agent.
The Buyer agrees that any liabilities, claims, losses or costs claimed by it or awarded by a competent authority or court against the Agent will be limited to the value of Service Fee stated in the Schedule.
The Buyer must pay the Agent the full Service Fee on the date that this Agreement or as otherwise specified in the Schedule.
The Agent is deemed to have fulfilled its obligations, and entitled to the Service Fee as specified in the Schedule when: a) the Agent has provided the Packaged Services as determined to be required by the Agent in order to achieve Buyer’s requirements; b) the Agent has introduced the Buyer to a property in the Location and the Buyer enters into a binding Agreement for the purchase of the property (whether conditional or unconditional) within the Initial Period; c) the Buyer has entered into a binding Agreement for the purchase of any property (whether conditional or unconditional) in the Area within 12 months of the termination of this Agreement, whether or not the Agent introduced the Buyer to the property; or d) the Buyer breaches this Agreement.
The Service Fee shall be paid in full and free of any counterclaim or set off.
The Buyer acknowledges, agrees and consents to granting a security interest pursuant to Personal Property Securities Act 2009 (Cth) over the property purchased against any money owed to the Agent pursuant to this Agreement (including, interest and costs) and to register its such interest with the Personal Property Securities Register.
The Buyer, and the Buyer’s third party related entity / person that enters into a binding contract to purchase the Property, will not dispute any claim for recovery of the Service Fee, plus interest and administrative and legal recovery costs, if legal proceedings are required to be issued for the recovery of same.
The parties agree that the details contained in the Schedule can be changed by writing between the parties and shall form part of this Agreement.
This Agreement is governed by, and will be interpreted in accordance with, the laws of the State of New South Wales. Each party unconditionally submits to the jurisdiction of the courts of New South Wales.
The Buyer acknowledges and consents to the Agent providing services similar to those specified in this Agreement to any third party during the term of this Agreement
SEE OLD TERMS UPDATED JAN 2015