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BLACK = Old Item/Clause | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted
01 Sep 2022 v2.2
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Item I
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By signing below the parties acknowledge and confirm having read and understood this Agreement.
| Signature of Owner(s) Date: Date: | |
……………………………………… …… / …… / …… ……………………………………… …… / …… / ……
……………………………………… …… / …… / …… ……………………………………… …… / …… / ……
Note: Where signed by Buyer’s authorised representative or the Buyer is a corporation evidence of authority to sign must be provided.
Name of Agent / Authorised Representative:
………………………………………………………………………
Signature of Agent ………………………………………… Date: …… / …… / ……
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Clause 1 (7)
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Material Fact: where used in this Agreement, means facts as are to be disclosed in accordance with Section 52(1)(b) of the Act, and of a kind more particularly detailed in clause 6054 of the Regulation.
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Clause 4.11
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In so far as applicable, Schedule 2 of the Property and Stock Agents Regulation 201422 applies to this Agreement.
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23 Mar 2020 v2.1
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Item F
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AGENT DISCLOSURE
The Agent shall be entitled to retain Rebates, Discounts and/or Commissions as disclosed below:
Source and details of Rebates, Discounts and Commissions
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Estimated Amount
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Note: Disclosure of Rebates, Discounts and/or Commission does not apply in respect of commercial property (Section 57(2) of the Act). Therefore completion of this Item is recommended but optional.
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Clause 1.1(1)
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Act: the Property, and Stock and Business Agents Act 2002 and Regulations thereto as amended from time to time.
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Clause 1.1(7)
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Material Fact: where used in this Agreement, means facts as are to be disclosed in accordance with Section 52(1)(b) of the Act, and of a kind more particularly detailed in clause 54 of the Regulation.
Note: Refer to ‘Misrepresentation Guidelines – NSW Fair Trading’ for more details on what may constitute a material fact.
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Clause 4.1
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The Agent must, in compliance with Section 52 of the Act, not induce any other person to enter into a contract or arrangement by any statement, representation or promise that the Agent knows to be false, misleading or deceptive or by any failure to disclose a material fact of a kind prescribed by the Regulation.
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Clause 4.11
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In so far as applicable, Schedule 2 5 of the Property, and Stock and Business Agents Regulation 2014 applies to this Agreement.
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Clause 9
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Agent’s Disclosure
The Agent is entitled to retain any Rebates, Discounts and/or Commissions in connection with services performed by the Agent in the capacity of the Agent for or on behalf of the Buyer as disclosed in Item F.
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05 Sep 2019 v2.0
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Clause 1.1(3)
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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(7)
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Personal Information: means personal information as defined in the Privacy Act 1988 (CTH).
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Clause 12
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Privacy Statement
12.1
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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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12.2
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The Privacy Policy outlines how the Agent collects and uses pPersonal iInformation provided by you as the Buyer, or obtained by other means, to provide the services required by you or on your behalf.
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12.3
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You as the Buyer 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 vendors, to the extent required to prepare a contract for the purchase of the Property; 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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12.4
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Documents or copies of documents provided to establish the identity of the Buyer or persons entitled to deal on behalf of the Buyer, 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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12.5
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Without provision of certain information the Agent may not be able to act effectively or at all on the Buyer’s behalf.
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12.6
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The Buyer has the right to access such pPersonal iInformation and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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12.7
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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Clause 13
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Data Collection
Upon signing this Agreement 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 Agreement and any subsequent sales contract.
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15 Oct 2018 v1.9
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All instances of 'fax' removed.
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Clause 3.1
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In consideration of and in accordance with the terms of this Agreement, the Buyer appoints the Agent (and its permitted Assigns), for the duration of this Agreement to carry out the agreed services as listed in Item B and the Agent agrees. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.
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Clause 3.2
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Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.
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Clause 3.3
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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.
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Clause 3.4
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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.
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Clause 7.5
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The services and amounts detailed in this Agreement cannot be varied without agreement in writing signed by the parties.
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Clause 10.2
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This Agreement cannot be varied without agreement in writing signed by the parties.
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Clause 13.1
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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.
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Clause 13.8
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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.
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19 Feb 2018 v1.8
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Item J
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Signature of Buyer Date: Signature of Buyer Date:
……………………………… …… / …… / …… ……………………………… …… / …… / ……
By signing below the parties acknowledge and confirm having read and understood this Agreement.
Signature of Buyer(s) Date: Date:
……………………………… …… / …… / …… ……………………………… …… / …… / ……
……………………………… …… / …… / …… ……………………………… …… / …… / ……
Note: Where signed by Buyer’s authorised representative or the Buyer is a corporation evidence of authority to sign must be provided.
Signature of Agent Date:
……………………………… …… / …… / ……
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Clause 1.1(3)
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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.
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Clause 1.1(6)
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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
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Buyer’s Confirmation
By signing this Agreement the Buyer(s) warrants and confirms:
(1)
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having read this Agreement.
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(2)
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having authority to enter into this Agreement.
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Clause 2
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Buyer’s Confirmation
By signing this Agreement the Buyer(s) warrants and confirms it has authority to enter into this Agreement.
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Clause 10
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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.
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Clause 13
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Related Documents / Notices / Electronic Communication
13.1
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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.
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13.2
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A Related Document to be served on any party under this Agreement 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 Agreement; 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 Agreement; or
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(4)
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by email to the party at the appropriate email address as stated in this Agreement; 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 13.2(1) to (4) above.
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13.3
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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.
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13.4
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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).
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13.5
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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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13.6
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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.
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13.7
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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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13.8
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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.
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01 Jul 2017 v1.7
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Item I
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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).
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24 Mar 2017 v1.6
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Item 3
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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
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Item 6
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Items 1 to 5 make up the Statement of Property Details required by the Act and have been completed by the Agent in Item 3.
Agent’s Signature: ………………………………………………………… Date of Report: …… / …… / ……
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Item C
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(1)
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Subject to this Agreement on the Purchase of a Property the Agent shall be entitled to a Commission determined as follows Fee of: …………………………………………………… (Incl. GST)
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(2)
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Based on the Buyer’s maximum Purchase Price Price Range (Item 5) the Commission (Item C(1)) in dollars Fee would be: …………………………………………….……………………………… (Incl. GST)
(Where a range of value is entered into Item 5 the purchase price is based on the maximum value in that range)
(Note: the Commission this amount will vary based on the actual Purchase Sale Price of a Property)
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Item E
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The Buyer shall reimburse the Agent for the following authorised Expenses incurred during this Agreement:
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Item F
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The Agent shall be entitled to retain Rebates, Discounts Commissions, Rebates and/or Commissions Discounts as disclosed below:
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Item G
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ADDITIONAL INSTRUCTIONS
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Item H
Note
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Special Conditions to this Agreement where inserted at the direction of the Buyer were prepared by the Buyer or an Australian Legal Practitioner under instruction from the Buyer and not from the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.
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Item J
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Signature of Buyer
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Date: ……/……/……
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Signature of Buyer
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Date: ……/……/……
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Signature of Agent
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Date: ……/……/……
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The Buyer acknowledges having received a copy of this Agreement together with a copy of the Statement of Property Details.
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Terms and Conditions Title
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Terms of Agreement (in conjunction with the Statement of Property Details and the Buyers Agency Agreement)
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Clause 1.1
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In this Agreement (which includes the Item Schedule) the following terms mean:
(1)
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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.
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(2)
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Agreement: this Agency Agreement, consisting of:
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(a)
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the Item Schedule – Statement of Property Details; and
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(b)
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the Item Schedule – Buyers Agency Agreement; and
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(c)
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the Terms of Agreement; and
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(d)
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any additional annexures, schedules or documents that may be attached.
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(3)
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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.
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(4)
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Item: an Item in the attached Item Schedules forming part of this Agreement.
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(5)
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Retainer Fee: a non-refundable fee paid to the Agent, as detailed in Item (D) for the provision of services under this Agreement.
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(6)
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Termination Fee: monies payable to the Agent as detailed in Item (D) where the Buyer terminates this Agreement prior to entering into an enforceable Contract to purchase.
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Clause 4.5
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Should the Agent act in conjunction with other Agents to effect a purchase, only one Commission Fee will be payable.
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Clause 6
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The Agent having complied with its obligations under this Agreement and not having been negligent, the Buyer 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)
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the Buyer’s failure to comply with this Agreement; or
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(b)
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the Buyer’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or
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(c)
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the Agent acting on behalf of the Buyer in accordance with under this Agreement; or
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(d)
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the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts.
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The Agent will be indemnified by the Buyer in respect of actions, demands, losses, costs and damages arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Buyer.
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Clause 7.4
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The Agent shall be is entitled to Commission, Fees for services and reimbursement remuneration of Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Buyer) in the amounts as set out in Items C, D and E respectively, for the execution provision of services under this Agreement.
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Clause 7.5
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Such fees and charges shall be due & payable as set out in Items (D) and (E).
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Clause 7.6
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Unless otherwise stated, all prices of goods and services under this Agreement include (where applicable) GST.
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Clause 7.7(2)
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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 Buyer not more than 48 hours after being signed by the Buyer.
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Clause 8
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Financial and Investment Advice
8.1
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The Agent makes no representation as to being a financial or investment advisor.
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8.2
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The Buyer 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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8.3
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The 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.
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8.4
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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 8
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Agent’s Opinion
The Agent makes no representation as to being a financial or investment advisor and will not give advice other than of a general nature. For specific advice the Buyer should consult its own advisors.
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Clause 10
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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.
By signing this Agreement all parties agree to having given prior approval, in accordance with the Electronic Transactions Act 2000 No. 8, for electronic transmission of this Agreement and any other related documents, for signing purposes or otherwise, by such means of communication as have been indicated in this document (ie. Facsimile numbers & email addresses).
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01 Sep 2016 v1.5
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Item H
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CAPITAL GAINS WITHHOLDING PAYMENT
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).
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11 Jun 2015 v1.4
Copyright statement updated.
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03 Sep 2014 v1.3
The word 'Principal' has been changed to 'Buyer' throughout the Agreement due to the release of the Property, Stock and Business Agents Regulations 2014.
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12 Mar 2014 v1.2
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Clause 13
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Privacy Statement
13.1
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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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13.2
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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.
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13.3
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You as the Principal 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 vendors, to the extent required to prepare a contract for the purchase of the Property; 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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Owner’s 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 and administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.
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13.4
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Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.
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13.5
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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.
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13.6
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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15 Jul 2010 v1.1
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Clause 10
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By signing this Agreement all parties agree to having given prior approval in accordance with the Electronic Transactions Act 2000 No. 8, for the electronic transmission of this Agreement and any other related documents, for signing purposes or otherwise, by as far as such means of communication as have been indicated in this document.
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Clause 13
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13.1
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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):
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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.
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13.2
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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.
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