Terms & Conditions
The agent wishes to engage the referrer to refer to the agent potential purchasers of property which the agent or its subsidiaries or related parties may have for sale.
The parties hereto agree and covenant as follows:
1. Interpretation
In this agreement, headings and underlining’s are for convenience only and do not affect the interpretation of this agreement and unless the context otherwise requires:
(a) Words importing the singular include the plural and vice versa;
(b) Words importing a gender include any gender;
(c) Other parts of speech and grammatical forms of word or phrase defined in this agreement have a corresponding meaning;
(d) An expression importing a natural person includes any company, partnership, joint venture association, corporation or other body corporate and any governmental agency;
(e) A reference to anything (including, but not limited to, any right) includes a part of that thing;
(f) A reference to a part, clause, party, annexure, exhibit or schedule is a reference to a part and clause of, and a party, annexure, exhibit or schedule to, this agreement and a reference to this agreement includes any annexure and schedule;
(g) A reference to a statute, regulation, proclamation, ordinance or by-laws includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinance and by-laws issued under that statute;
(h) A reference to a document includes all amendments or supplements to, or replacements or novation’s of, that document;
(i) A reference to a party to a document includes that party successors and permitted assigns; and
(j) No provision of this agreement will construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision. DEFINITIONS
1. Related parties means related parties are defined in the corporations act 2001 (Cth). 2. Engagement
The agent engages the referrer to refer clients to the agent such that the agent may be able to assist such clients to purchase the property. The referrer will provide all reasonable assistance to the agent towards the successful purchase of a property for each client that it refers to the agent under this agreement. 3. Other referrers may be engaged
Nothing in this agreement will prevent the agent engaging or employing any other referrers or any person, including its own employees, to refer purchasers in relation to the properties for which the agent has instructed the referrer to refer purchasers. 4. Term
The agent appoints the referrer to refer clients to the agent in accordance with this agreement and the agreement shall remain in force until terminated or updated with a new agreement. Where an updated referral agreement (indicated by date) is executed any previous agreement between the same parties, for the same purpose are terminated. 5. Referrers Responsibilities
5.1 The referrer will use reasonable endeavours towards the successful purchase of property for each client that it refers to the agent.
5.2 The referrer shall provide the agent with regular update and feedback from each client between the points of first referring the client to successful purchase of property by the client. 6. Indemnity
The referrer hereby indemnifies the agent and its subsidiaries and related parties, and agrees to keep the agent and subsidiaries and related parties indemnified, in relation to any claim made against the agent and its subsidiaries and related parties relating to misrepresentations, whether intentional, reckless or otherwise, made by the referrer, it employees or referrers with respect to the properties. 7. Referrers warranties
The referrer represents and warrants to the agent that:
7.1 It has full legal capacity and power to enter into and perform this Deed and the transactions contemplated by this agreement;
7.2 This agreement constitutes its valid and legally binding obligations enforceable against it in accordance with its terms;
7.3 It shall ensure that its representatives and consultants do not, without prior written approval of the agent, directly or indirectly approach of any of the agents contacts including vendors, registered proprietors or any real property, developers, builders, their successors, and permitted assigns, officers, employees, agents and will not use any proprietary information relating to the agent or its contacts or people introduced to the referrer by the agent;
7.4 It shall as its own expense indemnify the agent and its respective successors, assigns, and employees from liability, loss, damage, cost and expense (including without limitation reasonable legal costs) incurred or sustained by the gent with respect to any warrantied or terms in the agreement made by the referrer. The indemnity is a counting one and survives the termination of this agreement;
(a) Words importing the singular include the plural and vice versa;
(b) Words importing a gender include any gender;
(c) Other parts of speech and grammatical forms of word or phrase defined in this agreement have a corresponding meaning;
(d) An expression importing a natural person includes any company, partnership, joint venture association, corporation or other body corporate and any governmental agency;
(e) A reference to anything (including, but not limited to, any right) includes a part of that thing;
(f) A reference to a part, clause, party, annexure, exhibit or schedule is a reference to a part and clause of, and a party, annexure, exhibit or schedule to, this agreement and a reference to this agreement includes any annexure and schedule;
(g) A reference to a statute, regulation, proclamation, ordinance or by-laws includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinance and by-laws issued under that statute;
(h) A reference to a document includes all amendments or supplements to, or replacements or novation’s of, that document;
(i) A reference to a party to a document includes that party successors and permitted assigns; and
(j) No provision of this agreement will construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision. DEFINITIONS
1. Related parties means related parties are defined in the corporations act 2001 (Cth). 2. Engagement
The agent engages the referrer to refer clients to the agent such that the agent may be able to assist such clients to purchase the property. The referrer will provide all reasonable assistance to the agent towards the successful purchase of a property for each client that it refers to the agent under this agreement. 3. Other referrers may be engaged
Nothing in this agreement will prevent the agent engaging or employing any other referrers or any person, including its own employees, to refer purchasers in relation to the properties for which the agent has instructed the referrer to refer purchasers. 4. Term
The agent appoints the referrer to refer clients to the agent in accordance with this agreement and the agreement shall remain in force until terminated or updated with a new agreement. Where an updated referral agreement (indicated by date) is executed any previous agreement between the same parties, for the same purpose are terminated. 5. Referrers Responsibilities
5.1 The referrer will use reasonable endeavours towards the successful purchase of property for each client that it refers to the agent.
5.2 The referrer shall provide the agent with regular update and feedback from each client between the points of first referring the client to successful purchase of property by the client. 6. Indemnity
The referrer hereby indemnifies the agent and its subsidiaries and related parties, and agrees to keep the agent and subsidiaries and related parties indemnified, in relation to any claim made against the agent and its subsidiaries and related parties relating to misrepresentations, whether intentional, reckless or otherwise, made by the referrer, it employees or referrers with respect to the properties. 7. Referrers warranties
The referrer represents and warrants to the agent that:
7.1 It has full legal capacity and power to enter into and perform this Deed and the transactions contemplated by this agreement;
7.2 This agreement constitutes its valid and legally binding obligations enforceable against it in accordance with its terms;
7.3 It shall ensure that its representatives and consultants do not, without prior written approval of the agent, directly or indirectly approach of any of the agents contacts including vendors, registered proprietors or any real property, developers, builders, their successors, and permitted assigns, officers, employees, agents and will not use any proprietary information relating to the agent or its contacts or people introduced to the referrer by the agent;
7.4 It shall as its own expense indemnify the agent and its respective successors, assigns, and employees from liability, loss, damage, cost and expense (including without limitation reasonable legal costs) incurred or sustained by the gent with respect to any warrantied or terms in the agreement made by the referrer. The indemnity is a counting one and survives the termination of this agreement;
7.5 It shall not without the written consent in writing of the agent, issue, use or publish and advertisement. Material, or documentation in relation to any product or service of the agent, including but not limited to research material and seminar material prepared by or carried out by the agent;
7.6 The execution of this agreement and the performance by it of its obligations or the exercise of its rights under this agreement:
(i) Contravene a law or authorisations, approval, permit or consent binding on it; or
(ii)Contravene an agreement or obligation binding on it;
7.7 That the referrer shall maintain professional indemnity insurance during the term off this agreement;
7.8 That the referrer shall maintain sufficient staff at all times to promote the services of the agent to their clients and provide reasonable assistance to each client referred; and
7.9 That the referrer and its employees and referrers will comply with the laws of the state of New South Wales and the laws of any jurisdiction in which the referrer its employees or referrers is representing the agent from time to time. 8. Agents warranties
The agent represents and warrants the referrer that:
8.1 It has full legal capacity and power to enter into and perform this deed and the transactions contemplated by this agreement;
8.2 This agreement constitutes its valid and legally binding obligations enforceable against it in accordance with its terms; and
8.3 The execution of this agreement and the performance by it of its obligations or the exercise of its rights under this agreement do not:
(i) Contravene a law or authorisation, approval, permit or consent binding on it; or
(ii) Contravene an agreement or obligation binding on it. 9. Information to be confidential
9.1 Except as provided in this agreement or unless the gent advises otherwise, the referrer must keep all documents, plans, particulars, and information supplied by the
agent (“the material”) confidential, and the referrer acknowledges that the material is confidential except for the part of the material that can be obtained in the public domain. 9.2 The referrer must not without consent of the agent communicate any part of the material to any person other than in the ordinary course of business of obtaining purchasers for the properties.
9.3 The material, and any advertising and promotional material relating to the properties remains the property of the agent, and the agent retains copyright to the material and any advertising and promotional material.
9.4 The referrer must upon demand by the agent return all documents including the material and any advertising or promotional material to the agent and the referrer acknowledges that it has no right to a lien in respect of those things as security for any liability of the agent to the referrer in accordance with or outside of this agreement. 10. Referral Fee
The referrer will be entitled to be paid a referral fee if it refers a purchaser to the agent and the purchaser subsequently enters into a contract for a property introduced to them by the agent or as otherwise agreed in writing to the agent.
10.1 The agent may reject in its absolute discretion and referral which in the opinion of the gent is not a genuine referral and the referrer will not be entitled to be a paid a referral fee any referral so rejected.
10.2 The referral fee will be payable subject to one of the referral fee options and payment terms noted in schedule 1. The agent will advise the referrer in writing of the relevant fee options and payment terms are applicable to each referral fee payable under this agreement. Referral fee options or payment terms other than those noted in schedule 1 may apply in which case the agent will notify the referrer in writing.
10.3 The referral fee is inclusive of GST.
10.4 The agent will require the referrer to provide a valid tax invoice prior to the payment of any referral fee due under this agreement.
10.5 In the event a sales contract from a referred client is terminated by either developer or client and an advance has been paid to the referrer, the advance shall immediately become due and payable to the agent upon the agent making written demand upon the referrer. 11. Default
If either party defaults in the performance of any obligation imposed upon that party in this agreement, the remaining party may rescind this agreement by notice in writing provided in the event the default is remediable or involves the payment of money, written notice has been given in accordance with clause 13 and the notice shall have expired. 12. Notice of default
Time shall be of the essence in this agreement. If either party defaults under this agreement and written notice is required to be given in accordance with clause 12, the party serving the written notice shall not be entitled to exercise any of the rights arising out of that default until the expiration of 14 days from the date of the service of written notice on the other party specifying the default and how it must be remedied and then only if the other party fails to remedy the default within the 14 day period.
7.6 The execution of this agreement and the performance by it of its obligations or the exercise of its rights under this agreement:
(i) Contravene a law or authorisations, approval, permit or consent binding on it; or
(ii)Contravene an agreement or obligation binding on it;
7.7 That the referrer shall maintain professional indemnity insurance during the term off this agreement;
7.8 That the referrer shall maintain sufficient staff at all times to promote the services of the agent to their clients and provide reasonable assistance to each client referred; and
7.9 That the referrer and its employees and referrers will comply with the laws of the state of New South Wales and the laws of any jurisdiction in which the referrer its employees or referrers is representing the agent from time to time. 8. Agents warranties
The agent represents and warrants the referrer that:
8.1 It has full legal capacity and power to enter into and perform this deed and the transactions contemplated by this agreement;
8.2 This agreement constitutes its valid and legally binding obligations enforceable against it in accordance with its terms; and
8.3 The execution of this agreement and the performance by it of its obligations or the exercise of its rights under this agreement do not:
(i) Contravene a law or authorisation, approval, permit or consent binding on it; or
(ii) Contravene an agreement or obligation binding on it. 9. Information to be confidential
9.1 Except as provided in this agreement or unless the gent advises otherwise, the referrer must keep all documents, plans, particulars, and information supplied by the
agent (“the material”) confidential, and the referrer acknowledges that the material is confidential except for the part of the material that can be obtained in the public domain. 9.2 The referrer must not without consent of the agent communicate any part of the material to any person other than in the ordinary course of business of obtaining purchasers for the properties.
9.3 The material, and any advertising and promotional material relating to the properties remains the property of the agent, and the agent retains copyright to the material and any advertising and promotional material.
9.4 The referrer must upon demand by the agent return all documents including the material and any advertising or promotional material to the agent and the referrer acknowledges that it has no right to a lien in respect of those things as security for any liability of the agent to the referrer in accordance with or outside of this agreement. 10. Referral Fee
The referrer will be entitled to be paid a referral fee if it refers a purchaser to the agent and the purchaser subsequently enters into a contract for a property introduced to them by the agent or as otherwise agreed in writing to the agent.
10.1 The agent may reject in its absolute discretion and referral which in the opinion of the gent is not a genuine referral and the referrer will not be entitled to be a paid a referral fee any referral so rejected.
10.2 The referral fee will be payable subject to one of the referral fee options and payment terms noted in schedule 1. The agent will advise the referrer in writing of the relevant fee options and payment terms are applicable to each referral fee payable under this agreement. Referral fee options or payment terms other than those noted in schedule 1 may apply in which case the agent will notify the referrer in writing.
10.3 The referral fee is inclusive of GST.
10.4 The agent will require the referrer to provide a valid tax invoice prior to the payment of any referral fee due under this agreement.
10.5 In the event a sales contract from a referred client is terminated by either developer or client and an advance has been paid to the referrer, the advance shall immediately become due and payable to the agent upon the agent making written demand upon the referrer. 11. Default
If either party defaults in the performance of any obligation imposed upon that party in this agreement, the remaining party may rescind this agreement by notice in writing provided in the event the default is remediable or involves the payment of money, written notice has been given in accordance with clause 13 and the notice shall have expired. 12. Notice of default
Time shall be of the essence in this agreement. If either party defaults under this agreement and written notice is required to be given in accordance with clause 12, the party serving the written notice shall not be entitled to exercise any of the rights arising out of that default until the expiration of 14 days from the date of the service of written notice on the other party specifying the default and how it must be remedied and then only if the other party fails to remedy the default within the 14 day period.
13. Consequences of breach
Without prejudice to any other right of wither party under this agreement in addition to any other damages to which a party may be entitled as a consequence of breach the non-defaulting party shall be entitled to:
(a) All reasonable expenses incurred by that party as a result of the breach;
(b) In the event of a breach of clause 8.3, the agent will be entitled to receive from the referrer 4% of the value of any contract or arrangement entered into with the agents’ contacts including vendors, officers, employees, agent lost revenue as a result of such breach.
(c) Where the default relates, the payment of money with interest at a rate 2% higher than the rate for time being fixed under section 2 of the penalty interest rates Act 1983. 14. Termination of this agreement
Either party may terminate this agreement by giving thirty (30) days written notice to the other party. The referrer is entitled to receive all referrers fees accrued until the date of termination. Notwithstanding this clause 15 all referrer’s fees remain due and payable in accordance with clause 11. 15. Address for the service of notices
The addresses for the service of notices under this agreement upon each party are the addresses for the parties on the first page of this agreement. 16. Counterparts
This agreement may be executed in any number of counterparts and all those counterparts taken together constitute the one agreement. 17. Law and Jurisdiction
17.1 This agreement by the law in force in New South Wales.
17.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement. 18. Entire agreement
This agreement is the entire agreement of the parties about the subject matter of this deed and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications. No party has entered into this agreement relying on any representations made by or on behalf of the other, other than those expressly made this deed. 19. Costs
Each party agrees to pay its own legal costs in relation to this document. 20. GST
Expressions in this clause which are not defined in this agreement but which are defined in the GST Act, have the same meaning as in the GST Act. Unless otherwise expressly stated, all amounts, prices, values or other sums payable or to be provided under this agreement are inclusive of GST.
If GST is payable on any supply made under this agreement:
(a) The recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under this deed.
(b) The supplier must give the recipient a tax invoice for the taxable supply. 21. Severability
Any provisions of this agreement which is prohibited, unenforceable, void, voidable or illegal shall to that extent be ineffective and shall be severed from this agreement however the validity or enforceability of the remaining provisions of this agreement will not be effected. 22. Governing Law
(a) This document is governed by the laws in force of New South Wales.
(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts having jurisdiction to hear appeals from those courts. SCHEDULE 1 Referral Fee
Referral of client to agent
Where the referrer refers the purchaser to the agent and the agent completes the sale, the referrer will be entitled to the following $1000 inclusive of GST or otherwise was agreed in writing. 2nd tier referral
In the instance where a client is introduced by the referrer, refers a new client (2nd tier referral) and the referrer is not party to the transaction, the referrer will be paid half of the referral fee. No payments will be made for 3rd tier referrals. Referral fee payment terms
* Once the buyer of the property proceeds to Unconditional stage of the purchase, and makes payment of their Buyers Agency Fee to Search Party Property Pty Ltd, the referral fee will be paid to the referrer.
Without prejudice to any other right of wither party under this agreement in addition to any other damages to which a party may be entitled as a consequence of breach the non-defaulting party shall be entitled to:
(a) All reasonable expenses incurred by that party as a result of the breach;
(b) In the event of a breach of clause 8.3, the agent will be entitled to receive from the referrer 4% of the value of any contract or arrangement entered into with the agents’ contacts including vendors, officers, employees, agent lost revenue as a result of such breach.
(c) Where the default relates, the payment of money with interest at a rate 2% higher than the rate for time being fixed under section 2 of the penalty interest rates Act 1983. 14. Termination of this agreement
Either party may terminate this agreement by giving thirty (30) days written notice to the other party. The referrer is entitled to receive all referrers fees accrued until the date of termination. Notwithstanding this clause 15 all referrer’s fees remain due and payable in accordance with clause 11. 15. Address for the service of notices
The addresses for the service of notices under this agreement upon each party are the addresses for the parties on the first page of this agreement. 16. Counterparts
This agreement may be executed in any number of counterparts and all those counterparts taken together constitute the one agreement. 17. Law and Jurisdiction
17.1 This agreement by the law in force in New South Wales.
17.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement. 18. Entire agreement
This agreement is the entire agreement of the parties about the subject matter of this deed and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications. No party has entered into this agreement relying on any representations made by or on behalf of the other, other than those expressly made this deed. 19. Costs
Each party agrees to pay its own legal costs in relation to this document. 20. GST
Expressions in this clause which are not defined in this agreement but which are defined in the GST Act, have the same meaning as in the GST Act. Unless otherwise expressly stated, all amounts, prices, values or other sums payable or to be provided under this agreement are inclusive of GST.
If GST is payable on any supply made under this agreement:
(a) The recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under this deed.
(b) The supplier must give the recipient a tax invoice for the taxable supply. 21. Severability
Any provisions of this agreement which is prohibited, unenforceable, void, voidable or illegal shall to that extent be ineffective and shall be severed from this agreement however the validity or enforceability of the remaining provisions of this agreement will not be effected. 22. Governing Law
(a) This document is governed by the laws in force of New South Wales.
(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts having jurisdiction to hear appeals from those courts. SCHEDULE 1 Referral Fee
Referral of client to agent
Where the referrer refers the purchaser to the agent and the agent completes the sale, the referrer will be entitled to the following $1000 inclusive of GST or otherwise was agreed in writing. 2nd tier referral
In the instance where a client is introduced by the referrer, refers a new client (2nd tier referral) and the referrer is not party to the transaction, the referrer will be paid half of the referral fee. No payments will be made for 3rd tier referrals. Referral fee payment terms
* Once the buyer of the property proceeds to Unconditional stage of the purchase, and makes payment of their Buyers Agency Fee to Search Party Property Pty Ltd, the referral fee will be paid to the referrer.