Appointment
On signing the Client Consulting Agreement, the BUYER appoints DDP herein referred to as the ‘AGENT’ as its exclusive Agent for the purchase of real property and the Agent accepts the appointment subject to the terms of this Agreement.
Period
This Agreement commences on the date of this Agreement and continues for the Term specified on the Client Consulting Agreement.
Termination
Either party can terminate this Agreement by notice in writing for breach or at their discretion without reason. If such a notice is given, then this Agreement ends on the day specified in the notice, or, if not specified, immediately.
In the event that the Buyer terminates this Agreement for whatever reason, the Buyer must pay the Agent the Retainer Fee and Service Fees as completed by the Buyer as at the date of termination. The Agent will at its discretion calculate the Service Fees completed as at the date of termination with same payable within 7 days of the date of issue of the Agent’s invoice for same.
Statement of Property Details
The Buyer acknowledges and agrees that it will disclose to the Agent within 2 weeks of signing the Client Consulting Agreement what kind of property the buyer wishes to purchase.
The parties agree that the details of this property description will be recorded in an email format and sent to the Buyer for approval and will then form part of the agreement and shall be herein referred to as the ‘Buyers Form’.
Duties of Agent
The Agent will at all times during the term of this Agreement:
act in the Buyer’s best interest as the Buyer’s advocate and will utilise the skills and experience of the Agent in providing advice in relation to and assisting the Buyer to select a property to purchase;
provide advice to the Buyer of the best property, in the Agent’s view, fitting the Buyer’s general requirements as outlined in the Buyer’s Form and whether the property selected represents good value;
negotiate with the vendor of the property selected by the Buyer to purchase the property on favourable terms;
act as general consultant to the Buyer on all matters concerning the purchase of property in the Area and keep the Buyer informed of the sources of supply of property in the Area, general level of market prices of property from time to time in the Area and general conditions appearing likely to affect the future price of the property or interfere with the supply of property in the Area.
inform the vendor of the property (or the vendor’s agent if one has been appointed) of the fact that the Agent is acting as Agent for the Buyer; and
obtain such warranties as to the nature, quality and suitability of the property as the Buyer may require.
Duties of Buyer
The Buyer agrees that it will:
properly and fully complete the Buyers Form with the Agent’s representative during the initial meeting with a mentor;
obtain independent legal, financial and taxation advice in relation to the purchase of the selected property;
not during this Agreement purchase a property within the same geographic Area (The suburb and/or surrounding suburbs) other than through the Agent; and
not during this Agreement appoint another Agent to act as the Buyers Agent for the purpose of buying a property in the Area (The suburb and/or surrounding suburbs) ;
indemnify the Agent for any loss or damage arising under this Agreement.
pay the Agent the Fees as described in the Client Consulting Agreement.
submit to the non exclusive jurisdiction of the courts of New South Wales, Australia;
consent to the Agent providing services similar to those specified in this Agreement to any third party during the term of this Agreement;
keep confidential all information provided to the Buyer by the Agent during the term of this Agreement.
Buyer’s Warranties
The Buyer warrants that:
it is not a “foreign person” as defined in section 21A of the Foreign Acquisitions and Take overs Act 1975 (Cth) (“FATA”) as the meaning is extended by section 4(6) of the FATA or a “person to who this section applies” within the meaning of section 26A as section 26A is affected by section 5A of the FATA; and
it has the financial capacity to purchase a property
Limitations
The advice provided by the Agent in relation to property may only be relied upon by the Buyer and may not be relied upon by any other party without the prior written authorization of the Agent.
The advice provided by the Agent may only be relied upon by the Buyer for the purpose of selecting a property to purchase for the use specified by the Buyer in the Buyers Form and must not be relied upon for any other purpose without the prior written authorization of the Agent.
The Buyer acknowledges and agrees that the Agent makes no warranties in relation to any property and the Buyer must rely on its own inspection of the property including (but not limited to):
that there are no easements, covenants, caveats, rights of way or encroachments on the property;
that there are any planning regulations or policies that apply to the property;
that the property is structurally sound or that there is no unapproved structures, timber infestation, asbestos or any other defect in the property;
that there is no environmental site contamination or any failure by any party to comply with environmental legislation in relation to the property;
that all licences and permits in relation to the property are current and can be renewed; and
that a change of land use is possible in relation to the property.
Legal, Financial & Taxation Advice
The Buyer acknowledges and agrees that:
the Agent has not taken the Buyer’s financial circumstances into account when providing its advice;
the Agent must not and has not provided legal, financial or taxation advice to the Buyer;
the Agent does not hold an Australian Financial Services Licence as defined by section 913B of the Corporations Act 2001 (Cth) and the Agent is not authorised to provide financial services to the Buyer and the Agent must not and has not provided financial services to the Buyer;
the Buyer has obtained independent legal, financial and taxation advice in relation to the purchase of the property selected; and
the Agent has advised the Buyer to obtain written finance approval prior to the purchase of the property selected.
Fees
The Buyer must pay the Agent the fee as specified in the Client Consulting Agreement on the date that this Agreement is signed by the Buyer.
If any portion of the fee remains unpaid then it must be paid within 7 days of equity being released in the Buyers existing property.
The Agent is deemed to have fulfilled its obligations when:
the Agent has introduced the Buyer to a property and the Buyer enters into a binding Agreement for the purchase of the property (whether conditional or unconditional) within 12 months of the termination of this Agreement; or
the Buyer has entered into a binding Agreement for the purchase of any property (whether conditional or unconditional) in the same geographic 30km area within 12 months of the termination of this Agreement, whether or not the Agent introduced the Buyer to the property; or
the Buyer breaches this Agreement.
All fees are non refundable under any circumstances, including (but not limited to) if the Agreement for the purchase of the property is rescinded or terminated for any reason.
The Buyer acknowledges that it charges the property purchased with payment to the Agent of any money owed to the Agent pursuant to this Agreement and acknowledges the right of the Agent to register a caveat in respect of the property purchased to protect this charge. The Buyer, and the Buyer’s third party related entity /person that enters into a binding contract to purchase the Property, will not dispute any claim for recovery of the Fees as outlined in the Client Consulting Agreement, plus interest and administrative and legal recovery costs, if legal proceedings are required to be issued for the recovery of same.
DEFINITIONS
Any amounts received by the Agent for referrals as per Section 47 – Property Stock & Business Agents Act 2002 is available on the website www.ddpproperty.com.au
Buyer, Agent, Parties includes their respective employees, agents or representatives.
Fees means the amount as recorded in the Client Consulting Agreement.
Privacy
The Buyer consents to the use and disclosure of personal information collected by the Agent in accordance with the Agent’s Privacy Policy and the Privacy Act 1988.
DATE UPDATED: 24th January 2015