PO Form 6 - Business Sales - AUQLDRECMA02

Top  Previous  Next

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

 

01 Jul 2018 v2.3

Additions / Changes:

 

Item A Note

Where the Commission Method is expressed as a percentage (Item A (2)) the Commission Amount (Item A(3)) is an estimated amount calculated on the Estimated Sale Price (Item A(1)) and the actual commission for this service will be worked out only on the actual sale price.

 

Item B

Name:     ……………………………………………………………………………………………………………

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

              ………………………………………………………………………… Fax: (…)…………………….

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

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

 

Item C

Name:     ……………………………………………………………………………………………………………

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

              ………………………………………………………………………… Fax: (…)…………………….

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

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

 

Item H

Name:     ……………………………………………………………………………………………………………

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

              ………………………………………………………………………… Fax: (…)…………………….

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

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

 

Item J

PRIOR APPOINTMENT Property Occupations Regulation 2014 (QLD) – section 21

(The Client MUST read and complete this Item before signing this Appointment)

1.

__

The Client confirms being satisfied the Agent has taken reasonable steps to ascertain whether the Client has already appointed another agent to provide the services as outlined in this Appointment.

1.

Statement to Client: If you have already appointed a property agent (Previous Appointment) and the Previous Appointment has not ended in accordance with the Property Occupations Act 2014, by signing this appointment you may have to pay the following:


a)

a commission under each appointment:


b)

damages for breach of contract under the existing agents appointment.

2.

The Client warrants confirms that: (Tick one box only)


a)

__ No other Appointment of Property Agent is current for the services outlined in this

    Appointment.


 

OR


b)

__ Another Appointment of Property Agent is current for the services outlined in this

    Appointment.

3.

Section 21(4) Statement to Client: If you have already appointed another property agent (existing agent) to provide the services as outlined in this Appointment, by signing this Appointment you may have to pay the following:


a)

a commission under each appointment; and


b)

damages for breach of contract under the existing agent’s appointment.


Where the Client has ticked option 2(b) above, by signing this appointment the Client acknowledges and confirms the content of the Prior Appointment Item Q(1).

 

Clause 9.1

The Client agrees Commission will be due and payable:

(1)

on settlement of the sale; or as detailed in Part 7 (When Commission is Payable) of the attached Property Occupations Form 6; or

(2)

as may otherwise be detailed in Part 7 (When Commission is Payable) of the attached Property Occupations Form 6; or on settlement of the sale; or

(3)

pursuant to Clause 9.2.

 

Clause 9.2

Should an enforceable Business sale contract be entered into but not completed due to:

(1)

any act or omission of the Client; or

(2)

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

(3)

the deposit being forfeited; to the Client as a result of default under the Contract by the Purchaser in term of the Business sale contract to the Seller,

the Client agrees the Commission is payable to the Agent forthwith. Provided however, where Clause 9.2(3) 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.

 

Clause 9.3

Commission payable to the Agent in accordance with Clause 9.2(3) will not exceed the amount of the deposit forfeited unless, or until, the Client recovers additional monies from the Buyer sufficient to cover the balance Commission then outstanding.

 

07 May 2018 v2.2

Additions / Changes:

 

Item K

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 Seller has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Property is likely to sell for $750,000 or more and the Seller is an Australian Resident it would be advisable for the Seller to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.

 

Has the Client received from the ATO a:

Clearance Certificate:       __ Yes   __ Have Applied  on:  …… / …… / …….  __ N/A

 

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

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

 

Clause 1(7)

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

 

Clause 16

Related Documents / Notices / Electronic Communication

16.1

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

16.2

Any Related Document, including this Appointment, to be served on any party under this Appointment 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 Appointment; 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 Appointment; or


(4)

by as an electronic communication via facsimile transmission, email or SMS text message to the party at the appropriate electronic address as stated in this Appointment; 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 Related document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related document would be delivered.

16.4

A Related document sent by electronic communication will be deemed to have been received in accordance with Section 24 of the Electronic Transactions (Queensland) Act 2001.

16.5

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

16.6

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

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 Related documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

 

14 Aug 2017 v2.1

Additions / Changes:

 

Government copyright statement inserted.

 

01 Jul 2017 v2.0

Additions / Changes:

 

Item K

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 Seller 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 Seller is an Australian Resident it would be advisable for the Seller to obtain a Clearance Certificate from the ATO to prevent avoid purchase monies being withheld.

 

Has the Client received from the ATO a:

Clearance Certificate:               __ Yes   __ Have Applied  on:  …… / …… / …….  __ N/A

 

13 Feb 2017 v1.9

Additions / Changes:

 

Item A

Commission (Payable in accordance with Property Occupations Form 6 Part (7))

The Agent’s Commission will be calculated using one of the Commission Methods set out in Item A(2):

1. Estimated Sale Price: $.........................................................   (Including GST if applicable)

2. Commission Method: (tick only one)

  __    ............ % (incl. GST) of the Sale Price

  __   ………… % (incl. GST) of the first $ ………… of the Sale Price plus ………. % (incl. GST) of the Balance

   __   Fixed Amount of $ ……………….. (incl. GST)

   __   Other: …………………………………………………………………………………………………………

3. Commission Amount: $ ……………plus GST of $.................. Total Payable: $................. (incl. GST)

Note: Where the commission is expressed as a percentage (Item A(2)) the Commission Amount (Item A(3)) is an estimated amount calculated on the Estimated Sale Price (Item A(1)) and the actual commission for this service will be worked out only on the actual sale price.

 

15 Sep 2016 v1.8

Additions / Changes:

 

Item K

CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Client, as Seller)

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 Seller 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 Seller is an Australian Resident it would be advisable for the Seller to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.

 

Has the Client received from the ATO a:

Clearance Certificate:        __ Yes    __ Have Applied  on:  …… / …… / ……    __ N/A

 

01 Aug 2016 v1.7

Additions / Changes:

 

PO Form 6

Changes as per Office of Fair Trading

 

01 Jul 2016 v1.6

Additions / Changes:

 

PO Form 6

Changes as per Office of Fair Trading

 

06 Oct 2015 v1.5

Additions / Changes:

 

PO Form 6

Minor changes as per Office of Fair Trading

 

01 Oct 2015 v1.4

Additions / Changes:

 

PO Form 6

Changes as per Office of Fair Trading

 

Clause 1(2)

Appointment: means Property Occupations Form 6 Appointment of a Property Agent including Item Schedule, Terms of Appointment and any other annexures. the whole of this document.

 

Clause 1(5)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions (Queensland) Act 2001 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(6)

Sale Price: means the total of the Sale/Purchase Price (incl. GST) as detailed in the Business sale contract.

 

Clause 1(7)

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

 

Clause 12.4

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

 

Clause 16

Provision of Documents

The parties agree and confirm this Appointment may be forwarded electronically if the recipient has provided an electronic address in this Appointment.

 

Clause 16

Related Documents/Notices

16.1

The parties agree and confirm documents may be forwarded electronically in accordance with this clause.

16.2

Any Related Document, including this Appointment, to be served on any party under this Appointment shall be in writing and may be served on that party:

(a)

by delivering it to the party personally; or

(b)

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

(c)

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 Appointment; or

(d)

as an electronic communication by facsimile transmission, email or SMS text message to the party at the appropriate electronic address as stated in this Appointment; or

(e)

by delivery to an alternative address provided in writing by the party, by any of the methods outlined in Clauses 16.2(a) to (d) above.

16.3

A Related Document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related Document would be delivered.

16.4

A Related Document sent by electronic communication will be deemed to have been received in accordance with Section 24 of the Electronic Transactions (Queensland) Act 2001.

16.5

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

16.6

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

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 Related Documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

 

Clause 19

Safety

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

 

11 Jun 2015 v1.3

Copyright statement updated.

 

13 May 2015 v1.2

Additions / Changes:

 

Clause 15(e)

any liability where a product or fitting has been supplied to the premises with a warning label or safety instructions attached and such label having been removed, damaged or defaced.

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 16

Provision of Documents

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

 

Clause 19

Safety

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

 

18 Dec 2014 v1.1

Additions / Changes:

 

Item Schedule Header

Item Schedule - Business Sales

 

Item J

SPECIAL CONDITIONS

Special Conditions to this Appointment where inserted at the direction of the Client were prepared by the Client  or an Australian Legal Practitioner instructed by the Client and not by the Agent. No warranty is given by the Agent with respect to such clauses.  Legal advice should be sought.

 

Item J

PRIOR APPOINTMENT (The Client MUST complete this Item)

1. Statement to Client: If you have already appointed a property agent (Previous Appointment) and the Previous Appointment has not ended in accordance with the Property Occupations Act 2014, by signing this appointment you may have to pay the following:

a)   a commission under each appointment:

b)   damages for breach of contract under the existing agents appointment.

 

2. The Client confirms that:

    (Tick one box only)

a) __ No other Appointment of Property Agent is current for the services outlined in this Appointment.

OR

b) __ Another Appointment of Property Agent is current for the services outlined in this Appointment.

 

3. Where the Client has ticked option 2(b) above, by signing this appointment the Client acknowledges and confirms the content of the Prior Appointment Item J(1).

 

Terms of Appointment Header

Terms of Appointment - Business Sales

 

Clause 4

Exclusive Appointment

If the Client by this Appointment appoints the Agent as Exclusive Agent:

(1)

the Client will for the duration of this Appointment refer any prospective buyers of which the Client becomes aware to the Agent.

(2)

if another party acts for the Client in providing the services set out in this Appointment, the Client will still be responsible for Commission and/or Fees to the Agent as outlined in this Appointment.

4.1

If the Client by this Appointment appoints the Agent as Exclusive Agent the Client will for the duration of this Appointment refer any prospective buyers of whom the Client becomes aware to the Agent.

4.2

The Client confirms, at the date of entering into this Appointment, the Client has not appointed another real estate agent or auctioneer under a sole or exclusive agency for the sale of the Business.

4.3

Where Clause 4.2 does not apply the Client must, before signing this Appointment, complete a written statement acknowledging the Client may have to pay Commission as referred to in Clause 4.4 hereof. (See Section 21 Property Occupations Regulation 2014).

4.4

If the Client enters into more than one Appointment and there is a sale, the Client may have to pay a Commission for each Appointment and/or damages for breach of the Appointment to act.

 

Clause 8

The Client will pay all Fees, Charges, Expenses and other outlays owing to or incurred by the Agent in association with this Appointment, as detailed in Part (8) of the attached Property Occupations Form 6. When no date has been inserted payment will be within 7 days.

 

Clause 9.1

The Client agrees Commission, as detailed in the Appointment, will be due if the Client enters into an enforceable contract of sale when such contract becomes unconditional and is payable:

(a)

on settlement of the sale; or

(b)

pursuant to Clause 9.2

 

Clause 9.1

The Client agrees Commission will be due and payable:

(a)

as detailed in Part (7 - When Commission is Payable) of the attached Property Occupations Form 6;

(b)

on settlement of the sale; or

(c)

pursuant to Clause 9.2.

 

Clause 9.4

The Agent will be entitled to the Agreed Commission if the Business is sold to a person introduced to the Business:

(a)

during the period of an Exclusive Appointment; or

(b)

during the period of Sole or Open Appointment except where the introduction is made by the Client; or

(c)

after the conclusion of the Agency, the Business is sold to a purchaser effectively introduced to the Business by the Agent during the Agency.

 

Clause 15(d)

the Client’s failure to disclose required information relevant to this Appointment; or

 

Clause 15(e)

any liability where a product or fitting has been supplied to the premises with a warning label or safety instructions attached and such label having been removed, damaged or defaced.

 

Clause 17.2

Special Conditions to this Appointment where inserted at the direction of the Client were prepared by the Client or an Australian Legal Practitioner instructed by the Client and not by the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.

 

Clause 19

Safety

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

 

01 Dec 2014

Form replaced by PO Form 6 with the following changes/additions to the attached Item Schedule and Terms of Appointment

Additions / Changes:

 

Item A

Commission (Payable in accordance with Property Occupations Form 6 Part (7))

1. Estimated Sale Price: $.........................................................   (Including GST if applicable)

2. Commission Method: (tick only one)

__   ............ % (incl. GST) of the Sale Price

   __   ………… % (incl. GST) of the first $ ………… of the Sale Price plus ………. % (incl. GST) of the Balance

   __   Fixed Amount of $ ……………….. (incl. GST)

   __   Other: …………………………………………………………………………………………………………

3. Commission Amount: $ ……………plus GST of $.................. Total Payable: $................. (incl. GST)

Note: Where the commission is expressed as a percentage (Item A(2)) the Commission Amount (Item A(3)) is n amount calculated on the Estimated Sale Price (Item A(1)) and the actual commission for this service will be worked out only on the actual sale price.

 

Item E

SALE PRICE INFORMATION AGENT’S OPINION OF SALE PRICE (Tick only one of the boxes below)

 

The Client confirms prior to granting this Appointment the Client did/did not ask the Agent for information about the likely sale price of the business.

 

Note: Where the Client has asked for information about the likely sale price of the business the Agent must, if providing such information, give to the Client:

a) a Comparative Market Analysis; or

b) a written explanation of Market Value.

 

The Client acknowledges in obtaining this Appointment, the Agent:

a) _ was not required by the Client to give an opinion or supply material facts in respect to the Market Price of the Business; or

b) _ was not required by the Client to give an opinion in respect to the Market Price of the Business but did supply the written Statement of Material Facts as set out hereunder/attached hereto for the Client to take into account in deciding on a Listing Price; or

c) _ has given the Client an opinion about the Market Price of the Business and has supplied a written Statement of Material Facts attached hereto that the Agent has taken into account in forming such opinion.

 

The Agent’s opinion of the Market Price is between ……………..……… and …………………………

 

(Tick Clause (c) above if the Agent has given an opinion, supported by Material Facts, to the Client in respect to the Market Price of the Business and completed the Market Price range fields. Supporting documentation must be included or attached)

 

Material Facts: (if insufficient room attach schedule)

 

Note: Refer Property Occupations Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulations 2014 2001 Section 21 (Advice about market price or rent) and Competition and Consumer Act 2010(Cth) Sections 18 & 30 52, 53 & 53A.

 

Item F

The Agent named in Part (2) of the attached Property Occupations Form 6 PAMD Form 21a is acting in conjunction with the Agent/s below:

Conjuncting Agent: ……………..………………………….………………………….. ABN: ………………….…

Licence Number: ………………………………………………...………………..  Licence Expiry: …../.…./…..

 

Clause 1

Definitions

In this Schedule the following terms mean:-

(1)

Act: means Property Occupations Act 2014 Agent and Motor Dealers Act 2000 and Regulations thereto.

(2)

Agreed Commission: the Commission detailed in Part (10) of the attached PAMD Form 21a based on the Sale Price using material facts.

(2)

Appointment: means Property Occupations Form 6 Appointment of a Property Agent PAMD Form 21a Appointment of Real Estate Agent (Commercial and Industrial Sales, Leasing and Property Management) including the whole of this document.

(3)

Code of Conduct: the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation  2001.

Conduct Standards: the Conduct Standards for Licensees and Real Estate Salespersons set out in the Act and Regulations.

(4)

Conjunction Sale: means a sale conducted in association with another or other Agents.

(5)

Listing Price: the sum referred to in Part (4.3) of the prescribed Property Occupations Form 6 PAMD Form 21a.

(6)

Sale Price: means the total of the Sale/Purchase Price (incl. GST) as detailed in the Business sale contract.

 

Clause 2

Appointment of Agent

2.1

In consideration of and in accordance with the terms of this Appointment, the Client appoints the Agent and its permitted Assigns, and the Agent agrees to sell the Business for the Client. Authority vested in the Agent by this Appointment shall be deemed to be vested in the Agent’s authorised employees.

2.2

The start date of this Appointment will be that set out in Part (4.2) of the attached Property Occupations Form 6 PAMD Form 21a or if no date is inserted the later of the dates either the Client or the Agent signed this Appointment.

2.3

Where details as to the type of appointment are not completed in Part (4.6) of the attached PAMD Form 21a this Appointment is a continuing appointment.

2.4

Where this Appointment is a continuing appointment and no end of continuing appointment has been specified in Part 6 of the attached PAMD Form 21a, the Appointment ends 90 days from the start date or where a shorter agreed notice period has been specified in Part 6 of the attached PAMD Form 21a on the giving of a notice in accordance with such shorter period.

 

Clause 3

Listing Price

3.1

The Client instructs the Agent to list the Business at the Listing Price mentioned in Part (4.3) of the attached Property Occupations Form 6 PAMD Form 21a.

3.2

The Client acknowledges it has not relied on any material facts information provided by the Agent other than those that contained in the written Statement of Material Facts annexed hereto in arriving at the Listing Price.

 

Clause 4.3

Where Clause 4.2 does not apply the Client must, before signing this Appointment, complete a written statement acknowledging the Client may have to pay Commission as referred to in Clause 4.4 hereof. (See Section 21 Property Occupations Regulation 2014 Code of Conduct Section 19(c)).

 

Clause 4.4

If the Client enters into more than one Appointment and there is a sale, the Client may have to pay a Commission for each Appointment and/or damages for breach of the Appointment to act.

 

Clause 5

Reappointment

5.1

The Client may reappoint the Agent, in the approved form, for a further period under the same terms and conditions by completing Part 10 (Reappointment) of their copy of this Appointment and providing it to the Agent (s111 of the Act).

5.2

Where the Client has in accordance with Clause 5.1 Reappointed the Agent in the approved form the Parties agree that the Agent has the right to end or revoke the Reappointment by giving written notice to the Client within 7 days after receiving the Reappointment.

5.3

Where the Agent ends or revokes the Reappointment the appointment will end:

(1)

where this appointment has not ended, in accordance with the terms and conditions of the Appointment.

(2)

where this Appointment has ended and the Reappointment commenced, on service of the written notice required in accordance with Clause 5.2.

5.4

Where the Agent does not serve a notice in accordance with Clause 5.2 this will be confirmation of the Agent’s acceptance of Reappointment.

 

Clause 8.6

Notwithstanding the monetary amount listed in Part (10) of the PAMD Form 21a, the actual amount of Commission will be calculated based on the percentage set out in Part (10) of the PAMD Form 21a on the Sale Price as at the date of Settlement.

Notwithstanding the monetary amount listed in Part (7) of the Property Occupations Form 6 the amount of Commission will be calculated in accordance with Item (A) of the Item Schedule.

 

Clause 9

Client’s Warranties

The Client warrants it is the owner of the Business, the description in Part (3) of the PAMD Form 21a is correct and the Client is authorised to appoint the Agent for the sale of the Business.

The Client warrants:

(1)

It is the owner of the Business, the description in Part (3) of the attached Property Occupation Form 6 is correct and the Client is authorised to appoint the Agent for the sale of the Business.

(2)

At the time of entering this Appointment all information relevant to the sale or purchase of the Business has been disclosed by the Client to the Agent and is correct.

 

Clause 10

Material Facts

10.1

The Client confirms having, at the time of entering into this Appointment, disclosed correct details to the Agent of all relevant and material facts information relating to the Business.

10.2

The Client will at all times during the currency of this Appointment keep the Agent advised of and disclose to the Agent in writing, details of all relevant and material facts and changes thereto about the Business.

 

Clause 11

Client’s Obligations

11.1

The Client authorises the Agent, prior to listing, to make its own enquiries into the information provided by the Client in regard to Clauses 9, at the Client’s cost, and Clause 10.1, at the Client’s cost.

11.2

The Client will at all times during the currency of this Appointment keep the Agent advised of and disclose to the Agent in writing, details of all relevant information and changes thereto about the Business.

11.3

The Client authorises the Agent to make such further enquiries as the Agent considers necessary to confirm material facts information relevant to the Business and its sale in order to avoid any errors and confirm information already provided. Any searches undertaken will be at the Client’s cost.

11.3

The Client will provide to the Agent such additional information as the Agent may reasonably request from time to time relevant to matters contained in Clause 11.

 

Clause 12

Agent’s Responsibilities

12.1

In accordance with Section 11 of the Code of Conduct, The appointed Agent must keep the Client informed of:

(1)

any significant development or issue in relation to the sale of the Business.

(2)

each expression of interest, either written or oral, about the sale of the Business.

12.2

Notwithstanding the provision of Clause 12.1(2) the Client by this Appointment agrees only offers in writing and expressions of interest in accordance with the Clients instructions which the Agent, in its discretion considers are significant, shall be communicated to the Client and in so doing agrees Section 11(2) of the Code of Conduct does not apply.

12.3

The Agent must act in accordance with the Clients instructions unless such instructions are contrary to the Conduct Standards prescribed in the Regulations to the Act.

 

12 Mar 2014 v2.0

Additions / Changes:

 

Clause 16

Privacy Statement

16.1

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

16.2

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

16.3

You as Client 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

(3)

Body Corporates & 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.

16.4

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

16.5

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

16.6

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

 

02 Sep 2013 v1.9

Additions / Changes:


Item A

Date of Commencement of Appointment

………./………../………….   If left blank, will be the later of:

(a)the date the Client signs the Appointment

(b)the date the Agent signs the Appointment


Item I

SPECIAL CONDITIONS                                                                                                       Clause 15

The Special Conditions to this Appointment are where inserted at the direction of under instruction from the Client a party to this Appointment and where not prepared by that party, were prepared by the Client or an Australian Legal Practitioner instructed by the Client and not by the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.


Clause 2.2

The start date of this Appointment will be that set out in Part 8 of the attached PAMD Form 21a or if no date is inserted the later of the dates either the Client or the Agent signed this Appointment.


Clause 2.3

Where details as to the type of appointment are not completed in Part 6 of the attached PAMD Form 21a this Appointment is a continuing appointment.


Clause 2.4

Where this Appointment is a continuing appointment and no end of continuing appointment has been specified in Part 6 of the attached PAMD Form 21a, the Appointment ends 90 days from the start date or where a shorter agreed notice period has been specified in Part 6 of the attached PAMD Form 21a on the giving of a notice in accordance with such shorter period.


Clause 4.1

If the Client by this Appointment appoints the Agent as Exclusive Agent the Client will for the duration of this Appointment Agreement refer any prospective buyers of whom the Client becomes aware to the Agent.


Clause 13

The Agent having complied with its obligations under this Appointment and not having been negligent, the Client (and the Guarantor) indemnifies the Agent, its officers and employees from and against all liabilities, actions, claims, demands, losses, costs (on an indemnity basis), damages and expenses arising out of or in respect of this Appointment from:

(a)

the Client’s failure to comply with this Appointment; or

(b)

the Client’s failure to give the Agent appropriate authority or instruction; or

(c)

the Agent acting on behalf of the Client under this Appointment.

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


Clause 16.2

You as Client 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)

Body Corporates & 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.

 

11 Sep 2012 v1.8

Additions / Changes:

 

Item D

ASBESTOS INFORMATION CONCERNING THE PROPERTY                                               Clause 5.1

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.

Complete this Item (D) where the Business being sold is or includes a workplace (Property) and the Client is the person with management or control of the workplace.

Section 428 of the Work Health & Safety Regulation 2011 (WHS Regulation) 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.

Is there a current Asbestos Register for the workplace:  __ Yes  __ No (but required)  __ Not Required*

If ‘yes’ - the Client is required to provide a copy of the Asbestos Register to the Agent.

*Note: An Asbestos Register is required to be kept at the workplace under Section 425 of the WHS Regulation where the workplace contain or are likely to contain asbestos or has been built prior to 31st December 2003.

 

Clause 5

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

5.1

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.

5.2

Insofar as either party to this Appointment is, with respect to the Premises 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 any such obligations, the Agent acts only as Agent for the Client.

5.3

It is the Client’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 8

Client’s Warranties

The Client warrants it is the owner of the Business, the description in Part (3) of the PAMD Form 21a is correct and the Client is authorised to appoint the Agent for the sale of the Business.

 

Clause 9

Material Facts, Verification/ Disclosure

9.1

The Client warrants :

(1)

it is the owner of the Business and is authorised to appoint the Agent for the sale of the Business.

(2)

all information relevant to the sale of the Business including as contained in Part (3) of the PAMD Form 21a disclosed by the Client to the Agent is correct.


9.1

The Client confirms having, at the time of entering into this Appointment, disclosed correct details to the Agent of all relevant and material facts relating to the Business.

9.2

The Client will at all times during the currency of this Appointment keep the Agent advised of and disclose to the Agent in writing, details of all relevant and material facts and changes thereto about the Business.

9.2

The Agent is authorised:

(1)

at the Client’s cost, to make its own enquiries into the information provided by the Client in Clause 8.1(1) and 8.1(2) and to take such reasonable steps as the Agent considers necessary to verify such information.

(2)

to make such further inquiries as the Agent considers necessary to confirm Material Facts relevant to the Business and its sale in order to avoid any errors and confirm information already provided. Any searches undertaken will be at the Client’s cost.


9.3

The Client will provide to the Agent such additional information as the Agent may reasonably request from time to time relevant to matters contained in Clause 9.


 

Clause 10

Client’s Obligations

10.1

The Client authorises the Agent, prior to listing, to make its own enquiries into the information provided by the Client in Clause 8, at the Client’s cost, and Clause 9.1.

10.2

The Client authorises the Agent to make such further inquiries as the Agent considers necessary to confirm material facts relevant to the Business and its sale in order to avoid any errors and confirm information already provided. Any searches undertaken will be at the Client’s cost.

10.3

The Client will provide to the Agent such additional information as the Agent may reasonably request from time to time relevant to matters contained in Clause 11.


 

Clause 16

16.1

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

16.2

You as Client agree the Agent may subject to the Privacy Act 1988 (CTH) for (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)

property data collection agencies; and/or


(3)

Body Corporates & 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.

16.3

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

16.4

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

request the Agent provide details of such information and also correct any inaccurate or out of date information.

 

22 Aug 2012 v1.7

Additions / Changes:


Part 2

The PAMDA Appointment of Agent forms (20a, 21a, 22a, 23 & 24a) all contain wording instructing the parties to 'complete in BLOCK letters'.

 

Even though we will continue to allow the user to enter text in the format of their choice (Uppercase or Upper/Lower) on these forms, as preferred by most agents, we have reverted to forcing the Agent's details only, on these forms, to display and print in Uppercase as advised by the OFT. This is because you can't change your agent details on these forms through ADLForms.

 

01 Jan 2012 v1.6

Additions / Changes:


Item D

The owner has/has not complied with the Asbestos Management Code (Workplace Health & Safety Regulation  2008 S145)

An Asbestos Management Plan (if applicable) is/ is not available

Note: a Seller offering a Property for sale must comply with the Asbestos Management Code before offering the Property for sale.

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 5

Asbestos – Workplace Health and Safety Regulation 2008

In respect to the Property being offered for sale the owner confirms that the owner has complied with the requirements of the Asbestos Management Code.

5.1

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.

5.2

Insofar as either party to this Appointment is, with respect to the Premises 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 any such obligations, the Agent acts only as Agent for the Client.

5.3

It is the Client’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 11

The Agent having complied with its obligations under this Appointment, the Client (and the Guarantor) indemnifies the Agent, its officers and employees from and against all liabilities, actions, claims, demands, losses, costs (on an indemnity basis), damages and expenses arising out of or in respect of this Appointment from:


Clause 12

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


Clause 13

Any Special Conditions to this Appointment shall form part of this Appointment.  Should there be inconsistency between these Terms of Appointment and a Special Condition, the Special Condition will apply.

 

01 Jan 2011 v1.5

Additions / Changes:


Item E

Note: Refer Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 Section 21 (Advice about market price or rent) and Trade Practices Act 1974 Competition and Consumer Act 2010 (Cth) Sections 52, 53 & 53A.


Item I

Prior to signing, the Client should provide to the Agent, proof and details of current Public Liability Insurance, as listed below.

Insurer: ……………………………………  Policy No.:.………….……  Expiry Date:….../…../……


Item J

Note

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


Item K

Warning

WARNING: By signing this Appointment the parties confirm that no legal advice as to the conditions contained herein was provided by the Agent. The parties further agree that any Special Conditions or Clauses were inserted at the specific request of the relevant parties and the Agent gave no legal advice about same. The parties have been advised to seek legal advice with respect to this Appointment. including Special Conditions.


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.


Clause 13

13.1

The Agent collects and uses personal information obtained from you as the Client to provide the services required by you or on your behalf. You as Client 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):


(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.

13.2

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

13.3

The Client has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.

 

17 Nov 2009 v1.4

Additions / Changes:


Item D

The owner has/has not complied with the Asbestos Management Code (Workplace Health & Safety Regulation 2008 S145)

An Asbestos Management Plan (if applicable) is/ is not available

Note: a Seller offering a Property for sale must comply with the Asbestos Management Code before offering the Property for sale.


Item J

Prior to signing the Client should provide, to the Agent, proof and details of current Public Liability Insurance.


Clause 7.6

Notwithstanding the monetary amount listed in Part (10) of the PAMD Form 21a, the actual amount of Commission will be calculated based on the percentage set out in Part (10) of the PAMD Form 21a on the Sale Price as at the date of Settlement.


Clause 8.2

The Agent is authorised:

(1)

at the Client’s cost, to make its own enquiries into the information provided by the Client in Clause 8.1(1) and 8.1(2) and to take such reasonable steps as the Agent considers necessary to verify such information.

(2)

to make such further inquiries as the Agent considers necessary to confirm Material Facts relevant to the Business and its sale in order to avoid any errors and confirm information already provided. Any searches undertaken will be at the Client’s cost.

 

26 Aug 2009 v1.3

Additions / Changes:


PAMD Form

Changes made to the PAMD Form 21a as per the Warning Message, when opening the form, within the ADLForms program.


Item F

The Agent named in Part 2 of the attached PAMD Form 21a is acting in conjunction with the Agent/s below:

Conjuncting Agent: ………………….....................………………………..  ABN: ………………………

License Number: ………………………….......................…….………..  License Expiry: …../.…./…..


Clause 12

By signing this Appointment all parties agree to having given prior approval, in accordance with the Electronic Transactions (Queensland) Act 2001, for electronic transmission of this Appointment and any other related appointments, for signing purposes or otherwise, by as far as such means of communication as have been indicated in this document (ie. Facsimile numbers and email addresses).

 

22 Sept 2008 v1.2

Additions / Changes:


Item D

The owner has/has not complied with the Asbestos Management Code of Practice for the Management and Control of Asbestos in Workplaces [NOHSC:2018(2005)] (Workplace Health & Safety Regulation 2008 S145)

Note: a Seller offering a Property for sale must comply with the Asbestos Management Code before offering the Property for sale.


Item H

Special Conditions:

(a) Were inserted under instruction by a party to this Appointment; and/or

(b) Precedents used by the Agent as Special Conditions were prepared by an Australian Legal Practitioner, not by the Agent who gives no warranty in respect of same and in accordance with the warning in Item (I), legal advice should be sought as to the meaning and effect of such Special Conditions before signing.


Item I

The parties have been advised to seek legal advice with respect to this Appointment, including Special Conditions.


Clause 5

Asbestos – Workplace Health and Safety Regulation 2008

In respect to the Property being offered for sale the owner confirms that the owner has complied with the requirements of the Asbestos Management Code. known as the NOHSC’s document entitled ‘Code of Practice for the Management and Control of Asbestos in Workplaces. [NOHSC:2018 (2005)]

 

04 Feb 2008 v1.1

Changes as per Office of Fair Trading