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BLACK = Old Item/Clause | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted
28 Nov 2023 v3.1
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Item 16
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CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)
Note: Where the sale of the business includes real property with a market value of, at or more than, $750,000 a buyer must withhold 12.5% of the market value of the real property and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). Where such real property is included and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to avoid purchase monies being withheld.
(1) Does the Vendor have a Clearance Certificate? __ Yes __ No __ N/A
(2) If ‘No’ above has the Vendor applied? __ Yes on …... / …... / …... __ No
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13 Dec 2022 v3.0
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Item 1
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VENDOR
Name/s: ………………………………………………………………………………………………………………
Business Name: ..............................................................................................................................
Address: ………………………………………………………………………………………………………………
ABN: …………………… ACN: …………………… Phone: (…)……………………Mobile: ………………
Email: ……………………………………………………………………………...… GST Registered: Yes/No
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Item 3
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AGENT
Name/s: ………………………………………………………………………………………………………………
Address: ………………………………………………………………………………………………………………
ABN: ………………… ACN: ………………… Phone: (…)………………….…Mobile: ………………….
Contact: ………………………………………………………………………………………………………………
Email: ………………………………………………………………….…… Licence No.:………………………...
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18 Aug 2021 v2.9
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Item 11
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COMMISSION SHARING
Will the Agent’s commission be shared with other people (other than a licensed estate agent or an agent’s representative either of whom are employed by the agent, or a licensed agent who is in partnership with the agent)?
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16 Apr 2019 v2.8
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Item 9.1
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Vendor’s Sale Price: $ ………............................... <Including GST (if applicable)/Excluding GST>
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03 Dec 2019 v2.7
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Item 9.1
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Vendor’s Sale Price: $ ……….............. <Including GST/Excluding GST> (Including GST if applicable)
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30 May 2019 v2.6
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Item 1
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Name/s: …………………………………………………………………………………………………………….
Business Name: ……………………………………………………………………………………………………
Address: …………………………………………………………………………………………………………….
ABN: …………….. Phone: (…)………………….. Fax: (…)………………….. Mobile: …………………
Email: ………………………………………………………………………........... GST Registered: Yes/No
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Item 2
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Solicitor/Conveyancer: ……………………………………………………………………………………………...
Company: …………………………………………………………………………………………………………….
Business Address: …………………………………………………………………………………………….……
Service of Documents Address: ……………………………………………………………………………………
Phone: (…)………………………… Fax: (…)………………………… Mobile: …………………………………
Email: …………………………………………………………………………………………………………………
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Item 3
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Name/s: …………………………………………………………………………………………………………….
Address: …………………………………………………………………………………………………………….
ABN: …………….. Phone: (…)………………….. Fax: (…) ………………….. Mobile: …………………
Contact: …………………………………………………………………………………………………………….
Email: ……………………………………………………………………… Licence No.: …………………….
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Item 4.1
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Business Details:
Business Name: …………………………………………………………………………………………………..
Business Registration No.: …………………….……………………… ABN: …………………………………
Type of Business: ………………………..…………………………………………..……………………………
Address: ………………………………………………………………………………………..…………………
…………………………………………………………………………………………………………...
Phone: (…)……………………… Fax: (…) ……………………… Email: ………………………………………
Website: ……………………………………………………… Domain: …………………………………………..
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Item 9 Note
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Note: Where the Commission Method is expressed as a percentage (Item 9.2) the Commission Amount (Item 9.3) is an estimated amount calculated on the Vendor’s Sale Price (Item 9.1) and the actual commission for this service will be worked out only on the actual sale price.
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Clause 1.1(6)
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Data Collection Agency: means an agency or organisation that collects real estate data to provide information to the real estate, finance and property valuation industries to enable data analysis.
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Clause 1.1(12)
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Personal Information: means personal information as defined in the Privacy Act 1988 (CTH).
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Clause 13
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13.1
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The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.
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13.2
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The Privacy Policy outlines how the Agent collects and uses Personal Information provided by you as the Vendor, or obtained by other means, to provide the services required by you or on your behalf.
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13.3
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You as the Vendor agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to:
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(1)
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potential buyers, to the extent required to prepare a contract for the sale of the Business; and/or
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(2)
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property data collection agencies; and/or
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(2)
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Owner’s Corporations and financial institutions; and/or
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(3)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, and administration relating to the use of the Agent’s products and services, and but must do so in complianceying with legislative and regulatory requirements.
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13.4
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Documents or copies of documents provided to establish the identity of the Vendor or persons entitled to deal on behalf of the Vendor, will be retained by the Agent in accordance with the Australian Privacy Principles and will not be used for any purpose other than confirming the identity of such person/s.
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13.5
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf.
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13.6
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The Vendor has the right to access such Personal Information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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13.7
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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Clause 14
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Data Collection
Upon signing this Authority the parties agree the Agent, and the form completion service provider providing this form, may without disclosing Personal Information collect, use and disclose to Data Collection Agencies information contained in this Authority and any subsequent sales contract.
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26 May 2018 v2.5
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Clause 12
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In compliance with the Estate Agents (Professional Conduct) Regulations 20108 the Agent has in place procedures for resolving complaints and disputes arising from the operation of the Agent’s estate agency practice. If a complaint is made the Agent will advise the dispute resolving procedures. The Agent will make every effort to minimize or resolve disputes relating to the Agent’s performance.
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07 May 2018 v2.4
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Title
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Exclusive Selling Agency Authority
(Business Broking)
(Note: Where there is insufficient space in any Item place details in an Annexure and refer to the Annexure in the Item - e.g. ‘Refer Additional Expenses Annexure’)
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Item 16
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Note: Where the sale of the business includes real property with a market value of, at or more than, $750,000 a buyer must withhold 12.5% of the market value of the real property and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). Where such real property is included and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to avoid purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / ……. __ N/A
(1) Does the Vendor have a Clearance Certificate? __ Yes __ No __ N/A
(2) If ‘No’ above has the Vendor applied? __ Yes on …... / …... / …... __ No
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Item 17
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Signature of Agent:
………………………………………………………..……………………………… Date: .…./.…./……
By signing this Authority the Vendor(s) confirm(s) having read and understood the provisions of Clause 2.1 of the Authority.
Signatures of Vendor(s):
………………………………………………………..……………………………… Date: .…./.…./……
………………………………………………………..……………………………… Date: .…./.…./……
………………………………………………………..……………………………… Date: .…./.…./……
By signing below the parties acknowledge and confirm having read and understood this Authority.
Signature of Vendor(s) Date: Date:
……………………………………… …… / …… / …… …………………………… …… / …… / ……
……………………………………… …… / …… / …… …………………………… …… / …… / ……
Note: Where signed by Vendor’s authorised representative or the Vendor is a corporation evidence of authority to sign must be provided.
Signature of Agent:
……………………………………… Date: …… / …… / …….
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Clause 1.1(12)
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Related Document: means any written communication (including Notices), with regard to this matter, between the parties, including any Electronic Documents.
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Clause 2.1
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By signing this Authority the Vendor(s) warrants and confirms:
(1)
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it is the owner of the Business.
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(1)
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having read this Authority.
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(2)
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it has authority being authorised to enter into this Authority
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(3)
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having authority to grant the Agent selling rights of the Business.
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Clause 14
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Related Documents / Notices / Electronic Communication
14.1
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The parties agree and confirm any documents and communications in relation to this Authority may be forwarded electronically in accordance with this clause and where this document has been forwarded electronically (either for signing or otherwise) the party receiving the document confirms having consented to the delivery of the document (and any other materials) by way of the electronic means of delivery before receiving the documentation.
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14.2
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Any Related Document, including this Authority, to be served on any party under this Authority shall be in writing and may be served on that party:
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(1)
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by delivering it to the party personally; or
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(2)
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by leaving it for the party at that party’s address as stated in this Authority the Item Schedule; or
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(3)
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by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in this Authority the Item Schedule; or
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(4)
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by as an electronic communication by facsimile transmission, email or SMS text message to the party at the appropriate electronic address as stated in this Authority the Item Schedule; or
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(5)
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by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 14.2(1) to (4) above.
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14.3
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A Related document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related document would be delivered.
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14.4
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A Related document sent by electronic communication will be deemed to have been received in accordance with Section 13A of the Electronic Transactions (Victoria) Act 2000.
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14.5
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Related Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.
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14.6
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Related Documents must be served before 5pm on a business day, failing which, such Related document will be deemed to have been served on the next business day.
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14.7
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The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.
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14.8
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The parties agree to execution, delivery and service of Related documents electronically by a method provided by DocuSign or such other agreed electronic signing service provider.
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01 Jul 2017 v2.3
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Item 16
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Note: Where the sale of the business includes real property For businesses with a market value of, at or more than, $2,000,000 $750,000 a buyer must withhold 10 12.5% of the market value of the real property purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Business is likely to sell for $2,000,000 or more Where such real property is included and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent avoid purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / ……. __ N/A
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01 May 2017 v2.2
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Item 6
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AGENT’S ESTIMATE OF SELLING PRICE
Note: If a price range is specified, the difference between the upper and lower amounts cannot be more than 10% of the lower amount.
Single amount: $……………………… OR Between: $……………………… and $………………………
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Item 9
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The Agent’s Commission will be as calculated on the Estimated Sale Price (Item (9.1)) using one of the Commission Methods set out in Item 9.2:
9.1
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Vendor’s Estimated Sale Price: $ …………………………………… (Including GST if applicable)
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9.2
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Commission Method: (tick only one)
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__
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………… % (incl. GST) of the Sale Price
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__
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………… % (incl. GST) of the first $ ………… of the Sale Price plus ………… % (incl. GST) of the Balance
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__
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Fixed Amount of $ ……………….. (incl. GST)
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__
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Other: …………………………………………………………………………………………………
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9.3
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Commission Amount: $ …………… plus GST of $ …………… Total Payable: $ ……………… (incl. GST)
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Note: Where the commission is expressed as a percentage of Sale Price or part thereof (Item 9.2) the Commission Amount (Item 9.3) is an estimated amount calculated on the Vendor’s Estimated Sale Price (Item 9.1) and upon sale of the Business the actual commission for this service will be calculated worked out only on the actual sale price.
Note: Liabilities, with respect to the Business, assumed by the Buyer will not, unless otherwise provided, form part of the Selling Price.
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Item 13
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Important Information for Vendor(s)
A rebate includes any discount, commission, or other benefit, and includes non-monetary benefits. It is illegal for an Agent to keep any rebate they receive for advertising or other outgoings purchased by the Agent on your behalf. Section 48A of the Estate Agents Act 1980 requires the Agent to immediately pay you any rebate they receive in relation to the sale of your property.
The Agent is not entitled to retain any rebate and must not charge you an amount for any expenses that is more than the cost of those expenses.
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__
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The Agent will not be, or is not likely to be, entitled to any rebates.
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OR
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__
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The Agent will be, or is likely to be, entitled to rebates.
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These rebates are listed below. List of rebates:
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•any outgoings; or |
•any pre-payments made by the person engaging or appointing the Agent (the Client) in respect of any intended expenditure by the Agent on the Client’s behalf; or |
•any payments made by the Client to another person in respect of the work |
Goods/Services to which rebate relates
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Name of person or organisation providing rebate
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Amount (including GST) (if amount not known, provide an estimate)
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Clause 1.1(6)
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Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions (Victoria) Act 2000 including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.
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Clause 1.1(12)
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Related Document: means any written communication (including Notices), with regard to this matter, between the parties including any Electronic Documents.
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Clause 9
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Financial and Investment Advice
9.1
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The Agent makes no representation as to being a financial or investment advisor.
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9.2
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The Vendor acknowledges any financial and investment advice provided by the Agent is general advice and its preparation has not taken into account the individual circumstances of the person or the person’s objectives, financial situation or needs.
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9.3
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An intending buyer should assess the suitability of any investment in the Business in the light of the buyer’s own needs and circumstances, which the buyer can do personally or by consulting an appropriately licensed financial adviser.
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9.4
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If there is any conflict of interest the Agent may have in connection with the provision of the advice referred to above the Agent must disclose full details of any benefits that may accrue to the Agent as a result thereof.
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Clause 9
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Agent’s Opinion
9.1
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The Agent makes no representation as to being a financial or investment advisor.
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9.2
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The Agent’s Estimated Selling Price range is applicable as at the date of this Authority and is the Agent’s honest and fair opinion of the estimated value.
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9.3
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Nothing in this section requires the Estimated Selling Price (Item 6) and the Vendor's Sale Price (Item 5) to be the same amount.
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9.4
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An Agent making a false representation as to the Estimate Selling Price commits an offense under the Act in which case penalties apply.
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Clause 11
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Provision of Documents
The parties agree and confirm documents may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Authority.
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Clause 14
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Related Documents/Notices
14.1
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The parties agree and confirm documents may be forwarded electronically in accordance with this clause.
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14.2
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Any Related Document, including this Authority, to be served on any party under this Authority shall be in writing and may be served on that party:
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(1)
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by delivering it to the party personally; or
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(2)
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by leaving it for the party at that party’s address as stated in the Item Schedule; or
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(3)
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by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in the Item Schedule; or
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(4)
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as an electronic communication by facsimile transmission, email or SMS text message to the party at the appropriate electronic address as stated in the Item Schedule; or
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(5)
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by delivery to an alternative address provided in writing by the party, by any of the methods outlined in Clauses 14.2(1) to (4) above.
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14.3
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A Related Document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related Document would be delivered.
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14.4
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A Related Document sent by electronic communication will be deemed to have been received in accordance with Section 13A of the Electronic Transactions (Victoria) Act 2000.
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14.5
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Related Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.
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14.6
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Related Documents must be served before 5pm on a business day, failing which, such Related Document will be deemed to have been served on the next business day.
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14.7
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The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.
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14.8
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The parties agree to execution, delivery and service of Related Documents electronically by a method provided by DocuSign or such other agreed electronic signing service provider.
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30 Sep 2016 v2.1
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Item 17
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CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)
Note: For businesses with a market value of, at or more than, $2,000,000 a Buyer must withhold 10% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Business is likely to sell for $2,000,000 or more and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / ……. __ N/A
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18 May 2016 v2.0
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Item 5
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Vendor’s Sale Price: $ ……………………………………………… GST exempt / including GST GST Inclusive plus Stock valued in accordance with the Contract for Sale of Business
Vendor’s Preferred Settlement Date: …………………… days from date of Contract
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Item 10
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COMMISSION FEE PAYABLE TO AGENT FOR SERVICES
(this statement must be incorporated within the Authority in the approved form – s49A(1)(c) Estate Agents Act 1980)
Selling Fee: Based on an estimated Selling Price of $......................... GST Exempt/Including GST the Agent’s Selling Fee would be as calculated using one of the following methods:
__ ………….% of the Selling Price
__ …..….….% of the first $ ...................... of the Selling Price plus ………% of the balance
__ Fixed amount of $ …………………….. plus GST
__ Other: ………………………………………………………………………………………………………………
Where calculated on a % basis, as set out above, the Selling Fee as an actual dollar amount would be:
Selling Fee: $ .......................... plus GST of $ ……..…….…. Total Fee Payable: $ ………... (incl. GST)
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The Agent’s Commission will be as calculated on the Estimated Sale Price (Item (10.1)) using one of the Commission Methods set out in Item (10.2):
10.1 Estimated Sale Price: $ …………………………………… (Including GST if applicable)
10.2 Commission Method: (tick only one)
__ ………… % (incl. GST) of the Sale Price
__ ………… % (incl. GST) of the first $ ………… of the Sale Price plus ………… % (incl. GST) of the Balance
__ Fixed Amount of $ ……………….. (incl. GST)
__ Other: ……………………………………………………………………………………………………………
10.3 Commission Amount: $ …………… plus GST of $ ……… Total Payable: $ …………… (incl. GST)
Note: Where the commission is expressed as a percentage of Sale Price or part thereof (Item 10.2) the Commission (Item 10.3) is an amount calculated on the Estimated Sale Price (Item 10.1) and upon sale of the Business the actual commission for this service will be calculated only on the actual sale price.
Note: Liabilities, with respect to the Business, assumed by the Buyer will not, unless otherwise provided, form part of the Selling Price.
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Item 11
HEADING
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EXPENSES (Attach schedule Iif insufficient space room attach schedule)
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Item 16
HEADING
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SPECIAL CONDITIONS
The Special Conditions to this Authority are where inserted at the direction of under instruction from the Vendor a party to this Authority and where not prepared by that party, were prepared by the Vendor or an Australian Legal Practitioner instructed by the Vendor and not by the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.
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Clause 1.1(6)
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Commission: includes fees, charges, rewards or other remuneration whether monetary or otherwise.
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Clause 4.5
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Where authorised in writing to do so by the Vendor, the Agent may:
(1)
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participate in the exchange or filling up of the sale contract.
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(2)
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sign the Contract where the terms have been agreed to by the Vendor.
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Clause 5.5
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Where a product, fixture or fitting provided with the Business has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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Clause 6
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Indemnity
The Agent having complied with its obligations under this Authority and not having been negligent, the Vendor indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses (including Fees and Expenses) which the Agent may suffer or incur in respect of:
(a)
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the Vendor’s failure (without fault on the part of the Agent) to comply with this Authority;or
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(b)
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the Vendor’s failure to give the Agent appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or
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(c)
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in accordance with the terms and conditions of this Authority, the Agent acting on behalf of the Vendor under this Authority; or
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(d)
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a warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Business with such a label or instruction attached.
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Clause 7
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Commissions, Fees and Expenses Agent’s Fee Reimbursement
7.1
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The Vendor acknowledges the Agent is entitled to the Commission Selling Fee if:
(a)
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during the initial or any extended exclusive authority period (Item 7), the Business is sold; or
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(b)
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during the ongoing authority period (Item 8) the Business is sold and the Agent is the effective cause of sale; or
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(c)
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during the initial or extended or ongoing authority period a signed offer is provided by the Agent to the Vendor which is in the form of a contract enforceable if signed by the Vendor and exchanged with the Buyer, at a price that is not less than the Vendor’s Sale Price (Item 5) and otherwise in accordance with this Authority; or
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(d)
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within 120 days after the conclusion of the exclusive authority period, the Business is sold to a Buyer introduced by the Agent during the exclusive authority period and the Agent is the effective cause of the sale; or
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(e)
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a binding sale contract is entered into pursuant to or in accordance with Clauses 7.1(a), 7.1(b) or 7.1(d) and not completed due to:
(1)
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cancellation by mutual consent
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(2)
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the default of the Vendor
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(3)
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repudiation by the Vendor
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(4)
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breach of warranty by the Vendor resulting in termination of the Contract by the Buyer.
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7.2
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The Agent will be entitled to the Commission Selling Fee if the Business is sold during the exclusive authority period irrespective of whether the Business is sold by the Agent, Vendor or another person.
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7.3
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The Commission Selling Fee will be calculated on the actual price the Business is sold for (Selling Price) notwithstanding such Selling Price may be greater or less than the Vendor’s Sale Price set out in Item (5).
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7.4
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The Commission Selling Fee, as detailed in Item (10), will be payable by the Vendor on settlement of the sale or within 7 days of the Vendor’s default in Clause 7.1(e).
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7.5
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The Vendor authorises and directs the Commission Selling Fee, fees and Expenses (including taxes and GST if applicable) to be paid to the Agent by the person (including the Agent) holding the deposit monies or other monies due under the contract for the sale of the Business, be that the stakeholder or other person as provided herein. The Authority shall be sufficient authority and discharge for such payment.
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7.6
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The Agent will not be entitled to the Commission Selling Fee (Item 10) if after the termination or conclusion of this Authority the Vendor has signed an Exclusive Authority with another Agent.
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7.7
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The Agent is entitled to Fees for Services and reimbursement or payment of Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Vendor) as set out in Items (10) and (11) respectively, and whilst this Authority is in force and provided there are no genuine disputes as to the Agent’s conduct of this Authority, is irrevocably authorised to deduct from monies received by the Agent on behalf of the Vendor all such Fees, Commissions and Expenses.
The Vendor will pay all Commissions, fees, charges, Expenses and other outlays owing to or incurred by the Agent in association with this Authority (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Vendor), as detailed in Items (10) and (11).
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7.8
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This Authority cannot be varied without agreement in writing signed by the parties.
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7.9
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Unless otherwise stated, all prices of Goods and Services under this Authority include (where applicable) GST.
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7.10
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If the Agent is entitled to an input tax credit on any payment or expense the Vendor will reimburse such payment or expense to the Agent at its GST free value unless payment by the Vendor to the Agent amounts to a taxable supply as defined in the GST Act in which case the Vendor will pay the payment or expense plus GST.
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7.11
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The Vendor acknowledges the Agent may, during the term of the Authority, to better facilitate the provisions of the Authority, utilise the services of another Agent in which case there may be commission sharing and upon the Vendor granting consent to commission sharing, which consent will not be unreasonably withheld, the Vendor will complete a new Authority making such provision, but otherwise on the same terms as this Authority (unless amendment is agreed to) including completion of Item (12) to enable such commission sharing for the balance term of this Authority.
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7.12
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The parties agree the Business is sold, or a sale obtained, when a binding contract, which is obtained in compliance with this Authority for the sale of this Business becomes unconditional.
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7.13
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The parties agree a Buyer will have been introduced to the Business where the Agent has been a source of information with respect to bringing to the attention of a Buyer that such Business is available for purchase.
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Clause 10
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Buyer’s Default
In the case of default by the Buyer in not completing the purchase the Vendor will pay the Agent’s Commissions, Ffees and/or Expenses and to do so may utilize any forfeited or recovered deposit monies. Should any balance Commissions, Ffees and/or Expenses remain unpaid thereafter, the Vendor shall pay same in accordance with this Authority.
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Clause 15
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Safety
Where a product, fixture or fitting provided with the Business has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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11 Jun 2015 v1.9
Copyright statement updated.
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01 Mar 2015 v1.8
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Item 13
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Any complaint relating to commission or outgoings can be made to the Director, Consumer Affairs Victoria (CAV), GPO Box 4567 123, Melbourne, VIC Victoria, 3001 or by telephoning 1300 73 70 30.
Unless there are exceptional circumstances, Consumer Affairs Victoria cannot deal with any dispute concerning commission or outgoings unless it is given notice of the dispute within 28 days of the client receiving an account for, or notice that the agent has taken the amount in dispute, whichever is later.
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Clause 6(d)
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a warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Business with such a label or instruction attached.
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Clause 15
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Safety
Where a product, fixture or fitting provided with the Business has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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12 Mar 2014 v1.7
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Clause 14
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Privacy Statement
14.1
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The Agent collects and uses personal information provided by you as the Vendor to provide the services required by you or on your behalf.
The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988) and where required maintain a Privacy Policy.
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14.2
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The Privacy Policy outlines how the Agent collects and uses personal information provided by you as the Vendor, or obtained by other means, to provide the services required by you or on your behalf.
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14.3
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You as the Vendor agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to:
(1)
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potential buyers, to the extent required to prepare a contract for the sale of the Business; and/or
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(2)
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property data collection agencies; and/or
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(3)
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Owners Corporations & financial institutions; and/or
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(4)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.
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14.4
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf.
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14.5
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The Vendor has the right to access such information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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14.6
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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14.7
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By signing this Authority the Vendor consents to the collection and use of information as provided for in this Privacy Statement.
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06 Jan 2014 v1.6
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Item 10
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Selling Fee:
Based on an estimated Selling Price of $......................... GST Exempt/Including GST the Agent’s Selling Fee would be as calculated using one of the following methods:
__ ………….% of the Selling Price
__ …..…….% of the first $...................... of the GST excl. Selling Price plus ………% of the balance
__ Fixed amount of $ …………………….. plus GST
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03 Oct 2013 v1.5
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Item 5
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VENDOR’S SALE PRICE & SETTLEMENT Clause 5.3
Note: Vendor should obtain independent advice as to Sale Price
Vendor’s Sale Price: …………………………………… GST exempt / including GST plus Stock valued in accordance with the Contract for Sale of Business
Vendor’s Preferred Settlement Date: …………………… days from date of Contract
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Item 6
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AGENT’S ESTIMATE OF SELLING PRICE (Section 47A of the Estate Agents Act 1980) Clause 9
Note: This amount is an estimate not a valuation and must include any GST component. (if applicable) The GST status of any estimate is as indicated in Item 5
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Item 7
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TERM OF EXCLUSIVE SELLING AUTHORITY PERIOD (SOLE AGENCY) Clauses 3 & 7.1 (a)
(Where no end period is stated, Section 54(1) of the Estate Agents Act 1980 shall apply – See Item (7) herein)
7.1
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This Exclusive Selling Authority Period will be for a period of …………… days from the date of signing this Authority.
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SOLE AGENCY PERIOD Note: (Section 54 (1) of the Estate Agents Act 1980)
7.2
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Note: (Section 54 (1) of the Estate Agents Act 1980)
If an agreement stating that an estate agent is to act as the sole agent for the sale of any real estate or business does not state when the sole agency is to end, the sole agency ends:
(a) in the case of a sale by auction, 30 days after the date of the auction; or
(b) in any other case, 60 days after the date the agreement is signed by, or on behalf of, the vendor of the real estate or business.
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Item 8
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NON EXCLUSIVE SELLING ONGOING AUTHORITY PERIOD Clauses 3.3 & 7.1(b)
8.1
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At the end of the term of the Exclusive Selling Period Authority (Item 7), unless terminated, this Authority will continue as an Non Exclusive Selling ongoing authority for a period of ……….. days (ongoing authority period). Note: Where no days are inserted, the period shall be 1 Business Day.
The Vendor Agrees: __ Yes __ No Vendor’s Initials: …………………..
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8.2
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Either party may terminate this Authority during the non exclusive selling period at any time on the giving of not less than ………… days written notice. Such termination will be without prejudice to either parties existing rights, duties or obligations.
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Item 9
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PERFORMANCE OF SERVICE SPECIAL INSTRUCTIONS
Note: Terms must not be unfair, refer Schedule 1, Part 2-3 of the Competition and Consumer Act 2010 (Cth).
The parties agree the Agent will perform the services set out below and the Agent agrees to perform such services with due care & skill. [If insufficient space attach schedule]
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Item 10
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FEE PAYABLE TO AGENT FOR SERVICES Clause 7
(this statement must be incorporated within the Authority in the approved form – s49A(1)(c) Estate Agents Act 1980)
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Item 11
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Item 13
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FEES AND EXPENSES ACKNOWLEDGEMENT
The Vendor confirms, prior to signing this Authority, the Agent advised that Expenses and Commission payments were subject to negotiation. Vendor’s Initials: ……………………..
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Item 12
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NOTICE OF COMMISSION SHARING Clause 7.11
Commission Sharing applicable: Will the Agent’s commission be shared with other people (other than a licensed estate agent or an agent’s representative employed by the agent, or a licensed agent who is in partnership with the agent.)?
__ Yes __ No (Important - if “Yes”, complete this Item see clause 2.1(9))
Important information for Vendor(s)
If the Agent has agreed to share the commission that will be payable for selling your property, before getting your signature to engage or appoint them, they must give you this commission sharing statement. This statement shows details of all other people who will share in the commission.
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The Agent’s commission will be shared with other people (other than a licensed estate agent or an agent’s representative employed by the agent, or a licensed agent who is in partnership with the agent.)
In accordance with Section 48 of the Estate Agents Act 1980, the Agent states that the commission the Agent is entitled to under the terms of this Authority will be shared with other people as follows:
Name and address of person with whom commission is to be shared
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Description of such person
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Item 13
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MAKING A COMPLAINT CONCERNING COMMISSIONS AND/OR OUTGOINGS
(this statement must be incorporated within the Authority in the approved form – s49A(1)(c) Estate Agents Act 1980)
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Item 14
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REBATE STATEMENT
(this statement must be incorporated within the Authority in the approved form – s49A(1)(c) Estate Agents Act 1980)
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Item 16
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SPECIAL CONDITIONS Clause 12
The Special Conditions are inserted under instruction from a party to this Authority and where not prepared by that party, were prepared by an Australian Legal Practitioner and not the Agent. No warranty is given by the Agent. Legal advice should be sought.
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Item 17
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Signature of Agent:
………………………………..............………… Date: ……/……/…..
By signing this Authority:
(a) each party acknowledges having received a signed copy of this Authority and has had the opportunity to obtain professional advice with respect to this Authority and each party acknowledges it is bound by the terms of this Authority.
(b) the Vendor(s) confirm(s) having read and understood the provisions of Clause 2.1 of the Authority.
Signature of Agent:
………………………………………… Date: ……/……/…..
Signatures of Vendor(s):
………………………………..............………… Date: ……/……/…..
………………………………..............………… Date: ……/……/…..
………………………………..............………… Date: ……/……/…..
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Clause 1.1(3)
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Assets: the assets of the Business agreed to be sold or assigned as listed in Item (4.2) together with any lease of premises upon which the Business is conducted. This may include Plant and Equipment that is wholly owned, leased or rented by the Principal.
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Clause 1.1(5)
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Business: the said Business detailed in Item (4.1) together with all Assets. as listed in Item (4.2).
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Clause 1.1(12)
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Relevant & Material Facts: facts relating to the Vendor’s obligations and authority as detailed in Clause 5, including but without limitation, property ownership, tenancy agreements, safety and condition of the Business and fittings and compliance with relevant Government legislation.
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Clause 2.1
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By signing this Authority the Vendor(s) warrants and confirms:
(1)
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having read this Authority.
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(2)
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being authorised to enter into this Authority
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(3)
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having authority to grant the Agent selling rights of the Business.
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(4)
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the Business is not subject to any binding sale contract at the time of entering into this Authority
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(5)
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the Vendor’s attention has been drawn to Clause 13 relating to Dispute Resolution.
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(5)
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that, in accordance with s 49A(1)(b) of the Estate Agents Act 1980, prior to signing this Authority the Vendor was advised by the Agent that Expenses and Commission were subject to negotiation,.
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(6)
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having received at the time of signing a signed copy of this Authority.
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(7)
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having had the opportunity to obtain legal and other professional advice with respect to this Authority.
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(8)
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that, prior to signing, the Vendor’s attention has been drawn to Item (12) Commission Sharing, Item (13) Making a Complaint Concerning Commission and/or Outgoings, Item (14) Rebate Statement and Clause 13 Dispute Resolution.
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(9)
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Where commission sharing is applicable as indicated in Item (12) the Vendor acknowledges, prior to signing this Authority, having received a notice of commission sharing in accordance with section 48 of the Estate Agents Act 1980.
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Clause 3
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Agency and Authority
3.1
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Exclusive Authority
The Vendor by this Authority appoints the Agent as Exclusive Selling (Sole) Agent for the term of this Authority as set out in Item (7) or any extension to the exclusive authority period thereof and will refer any prospective buyers of which the Vendor becomes aware to the Agent. Authority vested in the Agent by this Authority shall be deemed to be vested in the Agent’s authorised employees.
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3.2
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The Agent agrees to such appointment.
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3.3
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Ongoing Authority
Either party may terminate this Authority during the ongoing authority period at any time on the giving of not less than 14 days written notice. Such termination will be without prejudice to either party’s existing rights, duties or obligations.
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Clause 4.1
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(1)
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The Agent will market the Business, as instructed by the Vendor in accordance with this Exclusive Selling Authority.
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(2)
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The Agent is authorised to advertise the Business for sale, in accordance with the Vendor’s instructions, at the Vendor’s Sale Price (Item 5) or such other price as the Vendor may from time to time instruct in writing.
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Clause 5.2(2)
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at all times during the currency of this Authority, keep the Agent advised of and disclose to the Agent in writing details of any defects or want of repair to the Business likely to result in or cause injury to persons. occupying, entering upon or using the Business.
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Clause 6
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The Agent having complied with its obligations under this Authority and not having been negligent, the Vendor indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses (including Fees and Expenses) which the Agent may suffer or incur in respect of:
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Clause 7.1
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The Vendor acknowledges the Agent is entitled to the Selling Fee if:
(a)
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during the initial or any extended exclusive Selling authority period (Item 7), the Business is sold; or
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(b)
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during the Non Exclusive Selling ongoing authority period (Item 8) the Business is sold and the Agent is the effective cause of sale; or
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(c)
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within 120 days after the conclusion of the exclusive Selling authority period, the Business is sold to a Buyer introduced by the Agent during the exclusive Selling authority period and the Agent is the effective cause of the sale; or
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(d)
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a binding sale contract is entered into pursuant to or in accordance with Clauses 7.1(a), 7.1(b) or 7.1(c) and not completed due to:
(1)
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cancellation by mutual consent
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(2)
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the default of the Vendor
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(3)
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repudiation by the Vendor
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(4)
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breach of warranty by the Vendor resulting in termination of the Contract by the Buyer.
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Clause 7.2
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The Agent will be entitled to the Selling Fee if the Business is sold during the exclusive Selling authority period irrespective of whether the Business is sold by the Agent, Vendor or another person.
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Clause 7.11
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The Vendor acknowledges the Agent may, during the term of the Authority, to better facilitate the provisions of the Authority, utilise the services of another Agent in which case there may be commission sharing and upon the Vendor granting consent to commission sharing, which consent will not be unreasonably withheld, the Vendor will complete a new Authority making such provision, but otherwise on the same terms as this Authority (unless amendment is agreed to) including completion of Item (12) to enable such commission sharing for the balance term of this Authority.
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Clause 9.3
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Nothing in this section requires the Estimated Selling Price (Item 6) and the Vendor's Sale Price (Item 5) to be the same amount.
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Clause 14.2
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You as the Vendor agree the Agent may subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to:
(1)
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potential buyers; and/or
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(2)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration and complying with legislative and regulatory requirements.
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Clause 14.4
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The Vendor has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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11 Sep 2012 v1.3
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Clause 6
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The Agent having complied with its obligations under this Authority, the Vendor indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses (including Fees and Expenses) which the Agent may suffer or incur in respect of:
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17 May 2012 v1.2
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Item 9.1
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At the end of the term of the Exclusive Selling Period (Item 7), unless terminated, this Authority will continue as a Non Exclusive Selling Authority for a period of ……….. days. Note: Where no days are inserted, the period shall be 1 Business Day.
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Item 13
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The Vendor confirms, prior to signing this Authority, the Agent advised that Expenses and Commission payments were subject to negotiation. Vendor’s Initials: ……………………..
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Item 17
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Interest Charged: __Yes __ No (if ‘yes’ complete below)
__ (a) Rate prescribed by the Attorney General in accordance with the Penalty Interest Rates Act1983
OR
__ (b) Rate in (a) + …………% per annum (Eg. The Agent’s overdraft default rate may represent the actual cost of funds)
(Note: if a higher rate than (a) is charged it must not be unfair)
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Clause 1.1(7)
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Expenses: any cost or charge incurred by the Agent (including in respect of advertising or marketing) in carrying out the Agent’s obligations under this Authority. less any rebate, discount, commission or other benefit received by the Agent in respect of such Expenses.
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Clause 4.4
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Where authorised in writing to do so by the Vendor, the Agent may:
(1)
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participate in the exchange or filling up making of the sale contract. where authorised to do so by the Vendor.
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(2)
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sign the Contract where the terms have been agreed to by the Vendor.
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Clause 7.3
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The Selling Fee will be calculated on the actual price the Business is sold for (Selling Price) notwithstanding such Selling Price may be greater or less than the Vendor’s Sale Price set out in Item (5).
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Clause 7.5
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The Vendor authorises and directs the Selling Fee and Expenses (including taxes and GST if applicable) to be paid to the Agent by the person holding the deposit monies or other monies due under the contract for the sale of the Business, be that the stakeholder or other person as provided herein. The Authority shall be sufficient authority and discharge for such payment.
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Clause 7.7
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The Vendor acknowledges before entering into this Authority that the Agent has provided a printed guide to the Agent’s Fees and Commissions and to the Expenses for which the Agent will require to be reimbursed.
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Clause 7.13
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The parties agree a Buyer will have been introduced to the Business where the Agent has been a source of information with respect to bringing to the attention of a Buyer that such Business is available for purchase.
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Clause 8
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Any monies payable under this Authority by the Vendor to the Agent (or any judgment given in respect of this Authority) not paid when due will attract interest from the due date for payment, to the date of payment at the rate prescribed by the Attorney General in accordance with the Penalty Interest Rates Act 1983. in Item (17).
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Clause 11
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The parties agree and confirm documents may be forwarded electronically to a person if that person the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Authority.
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Clause 14.1
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The Agent collects and uses personal information provided obtained from by you as the Vendor to provide the services required by you or on your behalf.
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Clause 14.2
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You as the Vendor agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to: in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable):
(1)
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potential buyers; and/or
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(2)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration and complying with legislative and regulatory requirements.
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(1)
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marketing; and/or
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(2)
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sales promotion and administration; and/or
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(3)
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legislative and regulatory requirements relating to promotion, administration and use of the Agent’s products and services; and/or
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(4)
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analysing, verifying and/or checking the Vendor’s credit, payment and/or status in relation to provision of services.
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Clause 14.3
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf. The Vendor has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.
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Clause 14.4
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The Vendor has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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01 Jan 2011 v1.1
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Item 10
Note
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Note: Terms must not be unfair, refer Schedule 1, Part 2-3 of the Competition and Consumer Act 2010 (Cth).
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Clause 11
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The parties agree and confirm documents may be forwarded electronically to a person if that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Authority.
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