Exclusive Selling Agency Agreement - Business Broking - AUNSWRECM011

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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 v3.4

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, $750,000 a buyer must withhold 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) and provides it to the buyer in a timely manner prior to settlement; or

the Vendor is a mortgagee exercising power of sale and the residue payable to the mortgagee after payment of sale costs and mortgage debt is not more than zero and the mortgagee provides a written declaration to that effect to the buyer in a timely manner prior to settlement.

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

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

 

01 Sep 2022 v3.3

Additions / Changes:

 

Item 2

Solicitor/Conveyancer: ………………………………………………………………….………………………

Firm Name Company: ……………………………………………………………………………………….…

Business Address: ……………………………………………………………………………………………          

Service of Documents Address:…………………………………………………………………………………

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

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

 

Item 7

The Agent must, not act on behalf of the Vendor unless the Agent, in accordance with Clauses 21 and 32 of Schedule 2 of the Regulations to the Act:

(1) has conducted a preliminary physical inspection of the Business (unless the Vendor has indicated in writing

that such an inspection is not required).

(2) has given to the Vendor a completed copy of this Sales Inspection Report for the Business.

 

Item B

(1) Subject to this Agreement the Agent shall be entitled to a Commission determined as follows: …………………………………………………………………………………………………........………(incl. GST)

(2) Based on the Agent’s estimated selling price (Item 5.1) the Commission (Item B(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 will vary based on the actual Sale Price of the Business)

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 business or introduces a buyer who later buys the business.

(a) you or another agent sells the business, or

(b) another agent introduces a buyer who later buys the business.

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

(The Agent’s Commission is based on the selling price of the Business together with Stock and includes GST if applicable)

 

Item F

Details of specific instruction regarding:

(1)inclusions, including goodwill, plant, fittings, stock in inventory and work in progress, to be included in the sale: Arrangements for the transfer to the purchaser of any liability for the leasing or hire purchase of goodwill, plant, fittings or stock in inventory and work in progress, included in the sale:

 

 

 

(2)   Encumbrances affecting the inclusions (see Item 4.3)

(3)Marketing of the Business: (see Item H)
(4)Prospective purchaser’s inspection of the Business Premises: (see Item G)
(5)Prospective purchaser’s inspection of the Business Records:

 

Item L

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.

Name of Agent / Authorised Representative          

………………………………………………………………………………………………………………            

Signature of Agent   ………………………………………      Date:  …… / …… / ……

 

Signature of Guarantor(s)Date:

 

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

 

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

 

Clause 1 (10)

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.

 

23 Aug 2022 v3.2

Additions / Changes:

 

Item M

GUARANTOR                                                                                                             Clause 19

(To be completed where the Appointment is executed by Company Director(s) or Trustees)

Name: …………………………………………………………………………..…………..…………………..…

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

ABN:……………………………….Phone: (…).……………………………. Mobile:……………………………

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

 

Item N

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

Signature of Vendor(s)               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:

………………………………………………    …… / …… / ……

 

Signature of Guarantor(s)                     Date:

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

 

Clause 8

The Agent having complied with its obligations under this Agreement and not having been negligent, the Vendor (and the Guarantor) 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:

 

Clause 19

Guarantor

Where the Vendor is a company or a trustee of a Trust, the party named in Item M, in consideration of the Agent entering into this Agreement, guarantees the due and punctual performance by the Vendor of its obligations under this Agreement, including payment of all monies. In the case of default by the Vendor, the Guarantor will indemnify the Agent in accordance with Clause 8 hereof.

 

23 Mar 2020 v3.1

Additions / Changes:

 

Item 7

The Agent must, not act on behalf of the Vendor unless the Agent, in accordance with Clauses 1 and 2 of Schedule 2 of the Regulations to the Act:

 

Item I

AGENT DISCLOSURE

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.

The Agent shall be entitled to retain Rebates, Discounts and/or Commissions as disclosed below:

Source and details of Rebates, Discounts and Commissions

Estimated Amount


 


 


 

 

Clause 1.1(1)

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

 

Clause 1.1(10)

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.

 

Clause 6.1

The Agent must and is authorised and directed, by the Vendor, to disclose all relevant and material facts in relation to the Business.

 

Clause 6.2

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 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.

 

Clause 13

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 Vendor and as disclosed in Item I.

 

05 Sep 2019 v3.0

Additions / Changes:

 

Clause 1.1(6)

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.

 

Clause 1.1(11)

Personal Information: means personal information as defined in the Privacy Act 1988 (CTH).

 

Clause 17

Privacy Statement

17.1

The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.

17.2

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

17.3

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)

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


(2)

property data collection agencies; and/or


(2)

Owner’s Corporations and financial institutions; and/or


(3)

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.

17.4

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.

17.5

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

17.6

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

17.7

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

 

Clause 18

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.

 

15 Oct 2018 v2.9

Additions / Changes:

 

All instances of 'fax' removed.

 

Item 1

Name/s: ………………………………………………………………………………………………………………

             ……………………………………………………………………………………………………………..

Business Name: ……………………………………………………………………. ACN: ………………………

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

Address: ………………………………………………………………………………………………………………

            ………………………………………………………………………………………………………………

Phone:    (…)…………………..…………… Mobile: ………………………………  GST Registered: Yes/No

Email:          ………………………………………………………………………………………………………………

 

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 Business is sold. Such termination will be without prejudice to either party’s existing rights, duties or obligations.

 

Clause 3

Exclusive Selling Appointment

The Vendor by this Agreement appoints the Agent as Exclusive Selling Agent for the duration of this Agreement and will refer any prospective purchasers of which the Vendor becomes aware to the Agent.

 

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 Business is sold (the Non-Exclusive Agency Period). Such termination will be without prejudice to either party’s existing rights, duties or obligations.

 

Clause 5.1

In consideration of and in accordance with the terms of this Agreement, the Vendor appoints the Agent and its permitted Assigns:

(1)

as Exclusive Agent for the period set out in Item A of the Item Schedule; and

(2)

as Non Exclusive Agent for the period commencing subsequent to the period detailed in Item A of the Item Schedule.

to sell the Business for the Vendor and the Agent agrees.

 

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 Business for the Vendor and the Agent agrees.

 

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 5.3

The Vendor will refer any prospective purchasers of which the Vendor becomes aware to the Agent.

 

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 9.1

The Vendor acknowledges the Agent is entitled to Commission if:

(1)

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

(2)

during the Non-Exclusive Agency Period (Clause 4 Item B) the Business is sold to a purchaser who has been effectively introduced by the Agent; or

(3)

after the conclusion of the Exclusive or Non-Exclusive Agency Period (Items A and Clause 4 B) the Business is sold to a purchaser who has been effectively introduced by the Agent during either of those Agency periods.

 

Clause 9.6

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

 

Clause 15.2

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

 

Clause 18.1

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 18.8

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 v2.8

Additions / Changes:

 

Item O

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(6)

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(12)

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 Business.

(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 Business during the term of this Agreement specified in Item A.

 

Clause 13

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 16

Related Documents / Notices / Electronic Communication

16.1

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.

16.2

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 16.2(1) to (4) above.

16.3

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.

16.4

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).

16.5

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

16.6

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.

16.7

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.

16.8

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 v2.7

Additions / Changes:

 

Item N

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.

(1)

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

(2)

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

 

26 Apr 2017 v2.6

Additions / Changes:

 

Clause 8.3

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

 

24 Mar 2017 2.5

Additions / Changes:

 

Item 8

Items 1 to 7 make up the inspection report required by the Act and has been completed by the Agent in Item 3.

 

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

 

Terms and Conditions Title

Terms of Agreement (the Exclusive Selling Agency Agreement (Business Broking) in conjunction with the Sales Inspection Report)

 

Clause 8

Financial and Investment Advice

8.1

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

8.2

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.

8.3

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.

8.4

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 8

Agent’s Opinion (Item 5)

8.1

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

8.2

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 9

Agent’s Opinion (Item 5)

9.1

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.

9.2

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 v2.4

Additions / Changes:

 

Item N

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

(1)

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

(2)

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

 

Clause 4.3

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 v2.3

Additions / Changes:

 

Item N

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

 

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 Selling Agency Agreement; and

(c)

the Terms of Agreement; and

(d)

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

(3)

Assets: the assets of the Business agreed to be sold or assigned as listed in Item (4.2).  This may include Plant and Equipment that is wholly owned, leased or rented by the Vendor.

(4)

Assignment or Subletting Fee: monies paid to the Agent as detailed in Item (E), for the assignment or subletting of the Premises (if leasehold) to the purchaser subject to the terms of any current Lease.

(5)

Business: the said Business detailed in Item (4.1) together with all Assets as listed in Item (4.2).

(6)

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

(7)

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

(8)

New Lease Negotiations Fee: monies paid to the Agent as detailed in Item (E), for the negotiation of a new lease of the Premises where an existing lease of the Premises is not or unable to be assigned to the Purchaser.  

(9)

Plant and Equipment: the plant and equipment, machinery, motor vehicles, furniture, fixtures, fittings and such other items owned by the Seller forming part of the Assets.

(10)

Premises: the land and building as per Item (4.1) used for carrying on the Business.

(11)

Stock: all merchantable stock at the landed value including stock to be used or sold in connection with carrying on the Business.

 

Clause 5.7

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.

 

Clause 7.9

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 16

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.

 

11 Jun 2015 v2.2

Copyright statement updated.

 

01 Mar 2015 v2.1

Additions / Changes:


Item 5.1

Estimated Selling Price range (or range): …..........…….… to ...…..........…….… plus Stock


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 C

COMMISSION Note: Prices for goods & services are GST inclusive. See Clause 7.7

(1)

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

(2)

Based on the Agent’s 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 will vary based on the actual Sale Price of the Business)

Subject to this Agreement, on the sale of the whole or part of the Business (at the Price listed in Item 6.1) the Agent shall be entitled to Commission:

(a) based on the Agent’s maximum estimated selling price (Item 5.1)  the Commission for the sale of the Business would be $ ..…………………….(incl. GST)   (Note: this amount will vary based on the actual Sale Price of the Business)

(b) calculated as follows: …………...……………………….………..……..……………… (incl. GST)

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 K

VENDOR’S BANK DETAILS (if required)

Vendor’s Details  

Bank: …………………………………………Branch:………………..……BSB No.: …………….........……….

Account Name: ……………………………..………………………… Account No.: ……………………………


Item M Note

The Special Conditions to this Agreement are where inserted at the direction of under instruction from the Vendor a party to this Agreement 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.


Item N

SIGNATURES

Signature of Vendor                    Date:                        Signature of Vendor                     Date:

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

 

Signature of Agent                      Date:

…………………………………      ……/……/……

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


Clause 1.1(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto the Property, Stock and Business Agents Regulation 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 Selling Agency Agreement; and

(c)

Terms of Agreement.


Clause 1.1(7)

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


Clause 4.9

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


Clause 5.2

The Vendor will at the commencement and 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 Business.


Clause 6

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)

or 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)

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.


Clause 7.2

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

(a)

any default by the Vendor; or

(b)

the Vendor, 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 Vendor agrees the Commission is payable to the Agent forthwith. Provided however, where Clause 7.2(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.

WARNING: The term immediately above provides that a commission is payable under this agreement even if the sale of the business is not completed.


Clause 7.5

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) as set out in Items (C), (E) and (F) respectively, for the execution of services under this Agreement.


Clause 7.9

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 8.2

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


Clause 16

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.

 

03 Sep 2014 v2.0

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 K

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

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

 

12 Mar 2014 v1.9

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 Business; 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 v1.8

Additions / Changes:


Clause 11.4

Where the Business being offered for sale is or includes a workplace as defined under the Work Health and Safety Act Regulation 2011, and the Principal is the person with management or control of the workplace, the Principal confirms, unless otherwise disclosed in the Item Schedule hereto, that the Principal, 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.

Note: Section 428 of the Work Health & Safety Regulation 2011 requires a person with management or control of the workplace to ensure, so far as is reasonably practicable, that a copy of the Asbestos Register for the workplace is given to the person who is assuming management or control of the workplace.


Clause 15.2(2)

property data collection agencies; and/or

 

02 Jul 2012 v1.7

Additions / Changes:


Item L

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.


Item L

ADDITIONAL INSTRUCTIONS


Item M

SPECIAL INSTRUCTIONS CONDITIONS


Item N

Signature of Principal             Date:                       Signature of Principal               Date:

 

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


Clause 11.4

Where the business Property being offered for sale is or includes a workplace under the Work Health and Safety Regulation 2011, and the Principal Owner is the person with management or control of the workplace Property, the Principal Owner confirms, unless otherwise disclosed in the Item Schedule hereto, that the Principal 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.

 

14 Mar 2012 v1.6

Additions / Changes:


Item 6.1

Price the Business is to be listed at: $………………………… including/excluding/plus GST plus Stock


Item 6.2

Deposit:  $.........................   including/excluding/plus GST


Item 6.3

Balance monies payable:  $....................... including/excluding/plus GST


Item C(a)

based on the Agent’s maximum estimated selling price (Item 5.1)  the Commission fee for the sale of the Business would be $ ..…………………….(incl. GST)   (Note: this amount will vary based on the actual Sale Price of the Business)


Clause 6

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 v1.5

Additions / Changes:


Item L

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 6

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 11.3

any hazardous goods must comply with the Work Occupational Health and Safety Regulations 2011 and containers must be appropriately labeled in accordance with the regulations.


Clause 11.4

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.

 

02 Aug 2011 v1.4

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: ………….……….. GST Registered: Yes/No

Email: ………………………………………….……..….. Licence Number/s*: ….………………….....……….  


Item L

Note

The Special Conditions are inserted under instruction from a party to this Agreement 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.


Clause 7.7

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


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 and administration relating to the use of the Agent’s products and services 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 access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

 

03 Mar 2010 v1.3

Additions / Changes:


Clause 3.3

The Principal purchaser will refer any prospective purchasers of which the Principal becomes aware to the Agent.

 

05 Aug 2009 v1.2

Additions / Changes:


Clause 7.1

The Principal acknowledges the Agent is entitled to Commission if:

(a)

during the initial or any extended Exclusive Agency Period (Item A) the Business is sold; or

(b)

during the Non Exclusive Agency Period (Item B) the Business 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 Period (Items A and B) the Business 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 v1.1

Additions / Changes:


Clause 7.1(d)

a binding contract is entered into pursuant to Clauses 7.1(a), 7.1(b) or 7.1(c) and not completed due to the default of the Principal.


Clause 7.2

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 7.2(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.