Exclusive Auction Agency Agreement - AUNSWRECM003

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BLACK = Old Item/Clause  | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

 

15 Oct 2018 v3.6

Additions / Changes:

 

All instances of 'fax' removed.

 

Clause 5.1

In consideration of and in accordance with the terms of this Agreement, the Vendor appoints the Agent (and its permitted Assigns) for the duration of this Agreement to sell the Property for the Vendor and the Agent agrees. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 5.2

Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 5.3

In carrying out the duties and services specified in this Agreement the Agent is authorised to utilise the services of any suitable person or company, provided however where required under the Act such duties or services must be carried out by a licensed person.

 

Clause 5.4

The Agent (licensee) in charge of the business must properly supervise, in accordance with the guidelines issued by the Commissioner for Fair Trading, all persons (employee or otherwise) engaged in the business carried on by the Agent.

 

Clause 9.6

The services and amounts detailed in this Agreement cannot be varied without agreement in writing signed by the parties.

 

Clause 14.2

This Agreement cannot be varied without agreement in writing signed by the parties.

 

Clause 17.1

The parties agree and confirm any documents and communications in relation to this Agreement may be forwarded electronically and where this Agreement document has been forwarded electronically (either for signing or otherwise) the party receiving the Agreement document confirms having consented to the delivery of the Agreement document (and any other materials) by way of the electronic means of delivery before receiving the documentation.

 

Clause 17.8

The parties agree and consent to execution, by any party, delivery and service of documents electronically using by a method provided by DocuSign or such other agreed an electronic signing signature service provider.

 

19 Feb 2018 v3.5

Additions / Changes:

 

Item M

Signature of Vendor         Date:                   Signature of Vendor       Date:

………………………………  …… / …… / ……  ………………………………  …… / …… / ……

By signing below the parties acknowledge and confirm having read and understood this Agreement.

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:

………………………………   …… / …… / ……

 

Clause 1.1(4)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions Act 2000 (NSW) including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.

 

Clause 1.1(9)

Related Document: means any written communication (including Notices) with regard to this matter between the parties, including any Electronic Documents.

 

Clause 2

Vendor’s Confirmation

By signing this Agreement the Vendor(s) warrants and confirms:

(1)

it is the owner of the Property.

(1)

having read this Agreement.

(2)

it has having authority to enter into this Agreement.

(3)

having authority to grant the Agent Selling rights of the Property during the term of this Agreement specified in Item A

 

Clause 14

Provision of Documents

The parties agree and confirm this Agreement may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Agreement.

 

Clause 17

Related Documents / Notices / Electronic Communication

17.1

The parties agree and confirm any documents and communications in relation to this Agreement may be forwarded electronically 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.

17.2

A Related Document to be served on any party under this Agreement shall be in writing and may be served on that party:


(1)

by delivering it to the party personally; or


(2)

by leaving it for the party at that party’s address as stated in this Agreement; or


(3)

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 Agreement; or


(4)

by email to the party at the appropriate email address as stated in this Agreement; or


(5)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 17.2(1) to (4) above.

17.3

A 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 document would be delivered.

17.4

A document sent by electronic communication will be deemed to have been received in accordance with Section 13A of the Electronic Transactions Act 2000 (NSW).

17.5

Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.

17.6

Documents must be served before 5pm on a business day, failing which, such document will be deemed to have been served on the next business day.

17.7

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.

17.8

The parties agree to execution, delivery and service of documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

 

01 Jul 2017 v3.4

Additions / Changes:

 

Item L

Note: For properties with a market value of, at or more than, $2,000,000 $750,000 a buyer must withhold 10 12.5% 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 Property is likely to sell for $2,000,000 $750,000 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.

(1)

Does the Vendor have a Clearance Certificate?           __ Yes  __ No  __ N/A

(2)

If ‘No’ above has the Vendor applied?                           __ Yes on …… / …… / ……  __ No  

 

24 Mar 2017 v3.3

Additions / Changes:

 

Item 9

Items 1 to 8 make up the inspection report required by the Act and have been completed by the Agent in Item 3.

 

Agent’s Signature: ………………………………………………………… Date of Report: …… / …… / ……

 

Terms and Conditions Title

Terms of Agreement (in conjunction with the Sales Inspection Report and the Exclusive Auction Agency Agreement (Commercial and Industrial))

 

Clause 10

Financial and Investment Advice

10.1

The Agent makes no representation as to being a financial or investment advisor.

10.2

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.

10.3

An intending buyer should assess the suitability of any investment in the Property 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.

10.4

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.

 

Clause 10

Agent’s Opinion (Item 5)

10.1

The Agent makes no representation as to being a financial or investment advisor.

10.2

The Agent’s estimated selling price is applicable as at the date of this Agreement and is the Agent’s honest and fair opinion of the estimated value.

 

Clause 11

Agent’s Opinion (Item 5)

11.1

In respect of the Agent’s estimated selling price (ESP) (Item 5.1) it is:

(1)

applicable as at the date of this Agreement; and

(2)

the Agent’s honest and fair opinion.

11.2

Should the Agent be called upon by the Vendor to provide supporting evidence of the ESP’s reasonableness, the Agent must provide such evidence.

 

31 Jan 2017 v3.2

Additions / Changes:

 

Item L

CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)

Note: For properties 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 Property 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

(1)

Does the Vendor have a Clearance Certificate?  __ Yes  __ No  __ N/A

(2)

If ‘No’ above has the Vendor applied?  __ Yes on …... / …... / …...  __ No

 

Clause 6.3

The Agent will be responsible for ensuring all persons engaged by the Agent to perform functions in respect of this Agreement hold, where required, appropriate licenses and comply with relevant legislation and regulations.

 

01 Sep 2016 v3.1

Additions / Changes:

 

Item L

CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)

Note: For properties 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 Property 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

 

Clause 1.1

In this Agreement (which includes the Item Schedule) the following terms mean:

(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto as amended from time to time.

(2)

Agreement: this Agency Agreement, consisting of the attached:

(a)

the Item Schedule – Sales Inspection Report; and

(b)

the Item Schedule – Exclusive Auction Agency Agreement; and

(c)

the Terms of Agreement; and

(d)

any additional annexures, schedules or documents that may be attached.

(3)

Duty Holder: has the meaning given to it under Chapter 3 of the Work Health and Safety Regulation 2011.

(4)

GST: where used in this Agreement, has the meaning used in A New Tax System (Goods and Services Tax) Act 1999 and “GST” includes any applicable rulings issued by the Commissioner of Taxation.

(5)

Item: an Item in the attached Item Schedules forming part of this Agreement.

(6)

Material Fact: where used in this Agreement, has the meaning as in Section 52 of the Act.

(7)

Property: the land and improvements there on, the subject of this Agreement (as described in Item (4)).

 

Clause 7.7

Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.

 

Clause 9.9

In accordance with Section 55 of the Act, there will be no entitlement to commission or expenses for services performed unless a copy of this Agreement is served on the Vendor not more than 48 hours after being signed by the Vendor.

 

Clause 17

Safety

Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.

 

13 Jul 2015 v3.0

Additions / Changes:

 

Item 5

AGENT OPINION Note: Item 5.1 is an opinion, not a valuation & excludes GST

5.1

Estimated Selling Price (or range): …………………. To …………………… (incl. GST if applicable)

5.2

Most suitable method of sale:    ……………………………………………………….....………………

Note: The effect of GST on the sale price must be considered before entering into a contract of sale.

WARNING: This is general advice and its preparation has not taken into account the individual circumstances of the Vendor or the Vendor’s objectives, financial situation or needs.

 

Item A

TERM OF AGREEMENT (EXCLUSIVE AGENCY PERIOD)

The Term of this Exclusive Agency Agreement (Exclusive Agency Period) commences on …………………………………………… and concludes on ………………………………………….. unless extended in writing by the Vendor.

 

Item B

NON EXCLUSIVE AGENCY

Both parties agree that on the conclusion of the Exclusive Agency Period (Item A) this Agreement will continue as a Non-Exclusive Agency Agreement until terminated in writing by either party or the Property is sold. Such termination will be without prejudice to either parties existing rights, duties or obligations.

 

Item B(1)

The Agent must not sell the Property if bidding does not reach the Reserve Price of ………………………. (incl. GST if applicable) without the express permission of the Vendor, or a person authorised to give that permission by the Vendor. Should this be left blank the Reserve Price must be given in writing to the Auctioneer before the Auction commences.

 

Item C

COMMISSION   Note: Prices for goods and services are GST inclusive. See Clause 9.7

(1)

Subject to this Agreement, on the sale of the Property the Agent shall be entitled to a Commission of determined as follows: ……………………………………………………………………….. (incl. GST)

(The Agent’s Commission is based on the GST inclusive/ exclusive selling price)

(2)

Based on the Agent’s maximum estimated selling price (Item 5.1) the Commission (Item C(1)) in dollars would be: ………………………………………………………………………………. (incl. GST)

(Where a range of value is entered into Item 5.1 the estimated selling price is based on the maximum value in that range)

(Note: the Commission fee will vary based on the actual sale price of the Property)

 

IMPORTANT: This is an exclusive agency agreement. This means you may have to pay the agent commission even if another agent (or you) sells the property or introduces a buyer who later buys the property.

WARNING: Have you signed an agency agreement for the sale of this property with another agent? If you have you may have to pay 2 commissions (if this agreement or the other agreement you have signed is a sole or exclusive agency agreement).

 

Item H

VENDOR’S BANK DETAILS (if required)

Vendor’s Details

Bank: …………………………………… Branch: …………………………… BSB No.: ……………………. Account Name: …………………………………………………….. Account No.: ……………………………

 

Item K

Heading

SPECIAL CONDITIONS

Special Conditions to this Agreement where inserted at the direction of the Vendor 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.

 

Item N

RECEIPT OF COPY OF AGREEMENT (See Section 55(1)(c) of the Act)

A signed copy of this Agreement must be served, by the Agent, on the Vendor within 48 hours after signing by the Vendor.   If a copy was given at the time of signing, the Vendor(s) confirm having received such copy by initialing.   Vendor(s) initials: …………………………………

 

Clause 1.1(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto the Property, Stock and Business Agents Regulations 2014 as amended from time to time.

 

Clause 1.1(2)

Agreement: this Agency Agreement, consisting of the attached:

(a)

Item Schedule – Sales Inspection Report; and

(b)

Item Schedule – Exclusive Auction Agency Agreement; and

(c)

Terms of Agreement.

 

Clause 1.1(5)

Item: an Item in the attached Item Schedules forming part of this Agreement.

 

Clause 1.1(6)

Material Fact: A Material Fact has, where used in this Agreement, has the meaning as given to it by in Section 52 of the Act.

 

Clause 4

Non-Exclusive Appointment

Both parties agree that on the conclusion of the Exclusive Agency Period (Item A) this Agreement will continue as a Non-Exclusive Agency Agreement until terminated in writing by either party, or the Property is sold (the Non-Exclusive Agency Period). Such termination will be without prejudice to either party’s existing rights, duties or obligations.

 

Clause 6.9

Should the Agent act in conjunction with other Agents to effect a sale, only one Commission Fee will be payable.

 

Clause 7.2

The Vendor will at all times during the currency of this Agreement keep the Agent advised of and disclose to the Agent in writing all relevant and material facts and changes thereto about in relation to the Property.

 

Clause 8

Indemnity

The Agent having complied with its obligations under this Agreement 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 arising out of this Agreement in respect of:

(a)

authorised sales advertising and signage; or

(b)

the Vendor’s failure to comply with this Agreement; or

(c)

the Vendor’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or

(d)

the Agent acting on behalf of the Vendor under this Agreement; or

(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts; or

(f)

any claim for compensation in respect of damage or loss to the Vendor’s goods.; or

(g)

a warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Property with such a label or instruction attached.

The Agent will be indemnified by the Vendor in respect of actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Vendor.

 

Clause 9.3

The Commission will be payable to the Agent if the Property is sold during the Exclusive Agency Period irrespective of whether the Property is sold by the Agent, Vendor or another person.

 

Clause 9.5

The Agent shall be entitled to Commission, Fees for services and reimbursement remuneration of for Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Vendor) in the amounts set out in Items (C) and (D) respectively, for the execution of services under this Agreement.

 

Clause 9.9

In accordance with Section 55 of the Act, there will be no entitlement to commission for services performed unless a copy of this Agreement is served on the Vendor not more than 48 hours after being signed by the Vendor.

 

Clause 10.2

The Agent’s estimated selling price range is acceptable as at the date of this Agreement and is the Agent’s honest and fair opinion of the estimated value.

 

Clause 17

Safety

Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.

 

11 Jun 2015 v2.9

Copyright statement updated.

 

03 Sep 2014 v2.8

Additions / Changes:

 

The word 'Principal' has been changed to 'Vendor' throughout the Agreement due to the release of the Property, Stock and Business Agents Regulations 2014.

 

Item I

__ Principal’s Vendor's Details   or     __ Seller’s Details (please tick one)

Bank: ………………………………………… Branch:…………………………… BSB No.: ……………………. Account Name: ………………………………………………………… Account No.: ……………………………

 

12 Mar 2014 v2.7

Additions / Changes:

 

Clause 15

Privacy Statement

15.1

The Agent collects and uses personal information provided by you as the Principal 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.

15.2

The Privacy Policy outlines how the Agent collects and uses personal information provided by you as the Principal, or obtained by other means, to provide the services required by you or on your behalf.

15.3

You as the Principal agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to:

(1)

potential buyers, to the extent required to prepare a contract for the sale of the Property; and/or

(2)

property data collection agencies; and/or

(3)

Owner’s Corporations & financial institutions; and/or

(4)

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 complying with legislative and regulatory requirements.

15.4

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.

15.5

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

15.6

The Agent will provide (where applicable), on request, a copy of its Privacy Policy.

 

11 Sep 2012 v2.6

Additions / Changes:

 

Clause 6.6

Where the Principal has complied with the Work Health and Safety Regulation 2011 (WHS Regulation) in accordance with Clause 11.2 of this Agreement, the Principal must provide copies of documentation referred therein to the Agent prior to entering into this Agency Agreement.

 

Clause 7(f)

any claim for compensation in respect of damage or loss to the Vendor’s goods.

 

Clause 11

Work Health & Safety

11.1

Where the Property being offered for sale is a workplace as defined under the Work Health and Safety Act 2011, Regulation 2011, insofar as either party to this Agreement is, with respect to such Property a - Person Conducting a Business or Undertaking (PCBU) (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations and relevant Codes of Practice.  Provided however, in carrying out such obligations, the Agent acts only as Agent for the Principal.

11.2

A PCBU with management or control of a workplace must ensure:

(1)

so far as is reasonably practicable, that all asbestos or asbestos containing material at the workplace is identified by a competent person or otherwise its presence is assumed.

(2)

where applicable to the workplace, an asbestos register is prepared, maintained, reviewed and kept at the workplace in accordance with Section 425 of the WHS Regulation.

(3)

where asbestos has been identified at the workplace, an asbestos management plan is prepared, maintained and reviewed in accordance with Section 429 of the WHS Regulation.

(4)

compliance with the relevant provisions of the WHS Regulation and relevant Code of Practice relating to management and control of asbestos in the workplace.

11.3

The Principal authorises and directs the Agent to take steps appropriate to ensure compliance with Clause 11.2, at the Principal’s expense, where:

(a)

the Principal has failed to provide copies of  documents in accordance with Clause 6.6 to the Agent within a reasonable time; or

(b)

the Principal has not, where required by the WHS Regulation, complied with the provisions of Clause 11.2.

11.4

The Property as detailed in Item (4) is the property of, and is at all times, notwithstanding the appointment of the Agent, under the control of, the Principal as Duty Holder.

11.3

It is the Principal’s responsibility to comply, so far as reasonably practicable, with its obligations under Section 21 of the Work Health and Safety Act 2011 with respect to ensuring any fixtures, fittings and plant, to which such Act applies, are without risk to the health and safety of any person.

 

Clause 15.2(2)

property data collection agencies; and/or

 

22 Mar 2012 v2.5

Additions / Changes:


Item K

ASBESTOS                                                                                                                         Clause 11.1

The Owner is required to comply with the Code of Practice for Management and Control of Asbestos for the Premises:

__ - No - Section 425(6) of the Work Health & Safety Regulation 2011 applies

__ - Yes - Is there a current Asbestos Register and Management Plan for the Premises: __ Yes __ No

Note: Section 428 of the Work Health & Safety Regulation 2011 requires that a copy of the Asbestos Register be given to the person assuming management or control of the workplace.


Clause 11.1

Where the Property being offered for sale is a workplace under the Work Health and Safety Regulation 2011,and the Owner is the person with management or control of the Property, the Owner confirms, unless otherwise disclosed in the Item Schedule hereto, that the Owner, to the extent required, has complied with the requirements of the current Code of Practice for the Management and Control of Asbestos in the Workplace. insofar as either party to this Agreement is, with respect to such the Property a - Person Conducting a Business or Undertaking (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations and or relevant Codes of Practice. Provided however, in carrying out such obligations, the Agent acts only as Agent for the Principal.

 

15 Feb 2012 v2.4

Additions / Changes:


Item D(1)

Subject to this Agreement, on the sale of the Property the Agent shall be entitled to Commission a fee of ………………………….. (incl. GST)

(The Agent’s Commission is based on the GST inclusive/ exclusive selling price)


Item D(2)

Based on the Agent’s maximum estimated selling price (Item 5.1) the Commission (Item (D)(1)) in dollars Fee would be …………………………. (incl. GST)

(Note: the fee will vary based on the actual sale price of the Property).


Clause 7

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs damages and expenses arising out of this Agreement in respect of:

 

01 Jan 2012 v2.3

Additions / Changes:


Item K

The Owner is required to comply with the Code of Practice for Management and Control of Asbestos for the Premises:

_ - No - Section 425(6) of the Work Health & Safety Regulation 2011 applies

_ - Yes - Is there a current Asbestos Register and Management Plan for the Premises: _ Yes _ No

Note: Section 428 of the Work Health & Safety Regulation 2011 requires that a copy of the Asbestos Register be given to the person assuming management or control of the workplace.


Clause 1.1(2)

Duty Holder: has the meaning given to i under Chapter 3 of the Work Health and Safety Regulation 2011.


Clause 7

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs damages and expenses arising out of this Agreement in respect of:


Clause 11

Work Occupational Health and Safety

11.1

Where the Property being offered for sale is a workplace under the Work Health and Safety Regulation 2011, and the Owner is the person with management or control of the Property, the Owner confirms, unless otherwise disclosed in the Item Schedule hereto, that the Owner, to the extent required, has complied with the requirements of the current Code of Practice for the Management and Control of Asbestos in the Workplace.

11.2

Insofar as either party to this Agreement is, with respect to the Property a - Person Conducting a Business or Undertaking (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations or relevant Codes of Practice. Provided however, in carrying out such obligations, the Agent acts only as Agent for the Principal.

11.2

The Principal has carried out inspection of any plant and equipment both new and used included in the sale in accordance with the Occupational Health and Safety Regulations 2001.

11.3

The Property as detailed in Item (4) is the property of, and is at all times, notwithstanding the appointment of the Agent, under the control of, the Principal as Duty Holder.

11.4

It is the Principal’s responsibility to comply, so far as reasonably practicable, with its obligations under Section 21 of the Work Health and Safety Act 2011 with respect to ensuring any fixtures, fittings and plant, to which such Act applies, are without risk to the health and safety of any person.


 

01 Nov 2011 v2.2

Additions / Changes:


Item J

BUILDING ENERGY EFFICIENCY DISCLOSURE                                                                 Clause 1.1(6)

Where this Agreement relates to the selling of a Property required under the Building Energy Efficiency Disclosure Act 2010 (BEEDA) to have a valid and current registered Building Energy Efficiency Certificate (BEEC) rating of the energy efficiency of the Property (Recognised Rating), the Principal (as Owner): confirms it has such BEEC and agrees to provide the BEEC to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA

(a)

confirms it has a valid & current Recognised Rating; and

(b)

agrees and undetakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Clause 1.1(6)

Recognised Rating: includes any of the following:

(a)

Building Energy Efficiency Certificate; or

(b)

National Australian Built Environment Rating System (NABERS Energy Star Rating); or

(c)

other recognised rating for the Property.

Note: The above Recognised Ratings can be used during the transition period of the BEEDA which concludes on the 1st November, 2011 after which time a Building Energy Efficiency Certificate will be required.

 

02 Aug 2011 v2.1

Additions / Changes:


Item 3

AGENT   *(Where the Agent trades as a corporation, include the corporation’s licence number)

Name: ...........................................................................................................................................

Address: …………………………………………………………………….....…  ACN: …………………………

……………………………………………………………………………………...  ABN: …………………………

Phone: ..(….)……………………….. Fax: ..(…..)…………………….…. Mobile: ……………………………..

Email: ………………………………………….…………………………………………..………………………...

Licence Number/s*: ….………………………………………………….....……….  GST Registered: Yes/No


Clause 8.6

Unless otherwise stated, all prices of goods and services under this Agreement include (where applicable) GST.


Clause 12

The parties agree and confirm this Agreement documents may be forwarded electronically to a person if the recipient that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.


Clause 15.2(4)

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 complying with legislative and regulatory requirements.


Clause 15.4

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

 

04 Feb 2011 v2.0

Additions / Changes:


Item J

Where this Agreement relates to the selling of a Property required under affected by the Building Energy Efficiency Disclosure Act 2010 (BEEDA) to have a valid and current rating of the energy efficiency of the Property (Recognised Rating), the Principal (as Owner):

(a) confirms it has a valid & current rating of the energy efficiency of the Property (Recognised Rating); and

(b) agrees and undertakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Item N

A signed copy of this Agreement must be served, by the Agent, on the Principal within 48 hours after signing by the Principal. If a copy was given at the time of signing, the Principal(s) confirm having received such copy by initialing.

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

 

__ Copy received by the Principal(s):   Date received: …./…./….  Principal(s) initials: ……………………


Clause 15

15.1

The Agent collects and uses personal information provided by obtained from you as the Principal to provide the services required by you or on your behalf.

15.2

You as the Principal 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)

potential buyers; and/or


(2)

data collection agencies; and/or


(3)

Owner’s Corporations & financial institutions; and/or


(4)

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.


(4)

analysing, verifying and/or checking the Principal’s credit, payment and/or status in relation to provision of services.


(5)

allowing the credit reporting agency to create or maintain a credit information file containing information about you the Principal.

15.2

You as the Principal further agree and consent to the Agent obtaining from a credit report agency a Consumer Credit Report containing personal credit information about you the Principal for the purposes of the collection of overdue payments.  (Section 18k (1) (h) of the Privacy Act 1988 (CTH)).

15.3

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.

15.4

The Principal has the right to request the Agent provide details of such information provided and also do all things reasonably necessary to amend or remove correct any inaccurate or out of date information.

 

01 Nov 2010 v1.9

Additions / Changes:


Item J

Where this Agreement relates to the selling of a Property affected by the Building Energy Efficiency Disclosure Act 2010 (BEEDA), the Principal (as Owner):

(a) confirms it has a valid & current rating of the energy efficiency of the Property (Recognised Rating); and

(b) agrees and undertakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Item M

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Agent

 

………………………………………….

Date: ……/……/……

 

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.


Item N

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

__ Copy received by the Principal(s):

Date received: …./…./….    Principal(s) initials: ……………………


Clause 1.1(6)

Recognised Rating: includes any of the following:

(a)

Building Energy Efficiency Certificate; or

(b)

National Australian Built Environment Rating System (NABERS Energy Star Rating); or

(c)

other recognised rating for the Property.

Note: The above Recognised Ratings can be used during the transition period of the BEEDA which concludes on the 1st November, 2011 after which time a Building Energy Efficiency Certificate will be required.


Clause 12

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 Agreement.

 

05 Aug 2009 v1.8

Additions / Changes:


Clause 8.1

The Principal acknowledges the Agent is entitled to Commission if:

(a)

during the Exclusive Agency Period (Item A) or any extension thereof, the Property is sold; or

(b)

during the Non Exclusive Agency Period (Item B) the Property is sold to a purchaser who has been effectively introduced by the Agent and the Agent is the effective cause of sale; or

(c)

after the conclusion of the Exclusive or Non Exclusive Agency Periods (Item A and B) the Property is sold to a Purchaser who has been effectively introduced by the Agent during either of those Agency Periods. and the Agent is the effective cause of the sale

 

03 Apr 2009 v1.7

Additions / Changes:


Clause 8.1(d)

a binding contract is entered into pursuant to Clauses 8.1(a), 8.1(b) or 8.1(c) and not completed due to the default of the Principal.


Clause 8.2

Should a binding contract be entered into but not completed due to:

(a)

any default by the Principal; or

(b)

the Principal, as Seller, releasing the Purchaser (by mutual agreement or otherwise) from the Purchaser’s contractual obligations; or

(c)

the deposit forfeited to the Seller due to the Purchaser’s non performance

the Principal agrees the Commission is payable to the Agent forthwith. Provided however, where Clause 8.2(c) applies, Commission will remain due but monies payable shall (subject to the Seller’s rights to claim damages for breach of contract) be limited to the receipted deposit monies.

 

04 Dec 2008 v1.6

Additions / Changes:


Clause 1.1(4)

Material Fact: A Material Fact has, where used in this Agreement, the meaning given to it by Section 52 of the Act.


Clause 11

11.1

The Property as detailed in Item (4.1) is the property of and is at all times, notwithstanding the appointment of the Agent under the control of the Principal.

11.2

The Principal has carried out inspection of any plant and equipment both new and used included in the sale in accordance with the Occupational Health and Safety Regulations 2001.


 

20 Dec 2007 v1.5

Additions / Changes:


Item K

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

This Agreement must include a copy of the Sales Inspection Report prepared by the Agent and given to the Principal under Clause 2 of Schedule 2 of the Regulations to the Act.


Clause 5.1

The Agent is authorised and directed, by the Principal, to disclose all relevant and material facts in relation to the Property.


Clause 5.2

The Agent must, in compliance with Section 52 of the Act, not make any promise that is false, misleading or deceptive or conceal any material facts.


Clause 6.1

The Principal has at the time of entering into this Agreement disclosed to the Agent all relevant and material facts about the Property and has not provided information that is or is likely to be misleading or deceptive.


Clause 6.3

There is a positive obligation on the Principal to disclose relevant and material facts. Any failure to disclose information known to the Principal which may detract from this sale will be a breach of this Agreement.


Clause 7

The Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:

(a)

authorised sales advertising and signage; or

(b)

the Principal’s failure to comply with this Agreement; or

(c)

the Principal’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or

(d)

the Agent acting on behalf of the Principal under this Agreement.

(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts

This means The Agent will be indemnified by the Principal in respect of relation to such actions, claims, demands, losses, costs, and damages and expenses so arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Principal.

 

12 June 2007 v1.4

Additions / Changes:


Item D

(The Agent's Commission is based on the GST inclusive/exclusive selling price)


Clause 7(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts.


Clause 14

14.1

The Agent collects and uses personal information obtained from you as the Principal to provide the services required by you or on your behalf.  You as the Principal agree the Agent may collect, use and disclose such personal information in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable): arketing, sales promotion and administration and as required for legislative and regulatory requirements relating to promotion, administration and use of the Agent’s products and services.  Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.  The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.


(1)

marketing; and/or


(2)

sales promotion and administration; and/or


(3)

legislative and regulatory requirements relating to promotion, administration and use of the Agent's products and services; and/or


(4)

analysing, verifying and/or checking the Principal’s credit, payment and/or status in relation to provision of services.


(5)

allowing the credit reporting agency to create or maintain a credit information file containing information about you the Principal.

14.2

You as the Principal further agree and consent to the Agent obtaining from a credit report agency a Consumer Credit Report containing personal credit information about you the Principal for the purposes of the collection of overdue payments. (Section 18k (1) (h) of the Privacy Act 1988 (CTH)).

14.3

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf. The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.

 

05 Apr 2007 v1.3

Additions / Changes:


Item I

The Agent is / is not authorised to conjunct with other agents for a Conjunctional Sale of the Property for the duration of this Agreement. If so Commission is:

 

Commission Apportionment as a %: (If not completed Commission will be apportioned equally)

 

Appointment Agent: ...........................  Conjuncting Agent: ..................................

 

08 Mar 2007 v1.2

Additions / Changes:


Clause 5.8

Should the Agent have a relevant interest in the sale of the Property, no advertisement relating to the sale of the Property shall be published unless the relevant interest is disclosed in the advertisement in accordance with Section 50 (2) of the Act.

 

07 Dec 2006 v1.1

Additions / Changes:


Item 5

5.1  Price the Property is to be listed at: ............................................... (incl. GST if applicable)

5.1  Estimated Selling Price range: ................................ To ......................................

5.2  Most suitable method of sale: .............................................................................