TERMS & CONDITIONS

1. APPOINTMENT

a.  The Client exclusively appoints the Agent as its exclusive Agent for the purchase of real property as per the description specified in the Schedule.
b.  The Agent accepts the appointment subject to the terms of this Agreement.

2. TERM AND TERMINATION

a.  This Agreement commences on the date of execution and continues for the Term specified in the Schedule.
b.  Either party may terminate this Agreement: By providing 7 days’ notice, where the other party has breached an essential term of this agreement and despite written notification from the party detailing such breach, has failed to rectify the breach within 7 days. By providing 14 days’ notice, where the termination is for convenience.
c.  Any such notice under this clause 2 must be provided in writing to the other party.
d.  The Agreement ends on the day specified in the notice, or if not specified, on the day it is received by the other party.

3. DUTIES OF AGENT

The Agent will at all times during the term of this Agreement:
a.  At all times act in the best interests of the Client;
b.  At all times act ethically and professionally;
c.  Identify and present to the Client properties similar or most suitable, which in the Agent’s opinion, meets the Clients requirements to that which is set out in the Schedule;
d.  Evaluate each property presented and provide professional opinion on its suitability in accordance with the Schedule and the overall investment strategy that the Client has provided the Agent;
e.  Provide advice on the suburb profile, identified growth potential, market sentiment and other key factors that will influence the current and future value for the property selected;
f.  Use expertise to negotiate with the vendor of the property selected to purchase the property on most favourable terms;
g. Obtain such reports and warranties as to the structural integrity of the property and other building matters that the client may require and authorizes; and
h.  Generally, act in good faith.
 

4. DUTIES OF CLIENT

The Client agrees:
a.  That they have honestly completed the schedule and completely to allow the Agent to find suitable properties for the Client, as per the Schedule.
b.  To not directly purchase or appoint any other Agent during the term of this Agreement to purchase a property in the Location as listed in the Schedule.
c.  To pay the Agent the full fee per property purchase specified in the Schedule by the date specified.
d.  Keep confidential all information provided to the Client by the Agent during the term of this Agreement.

5. CLIENT WARRANTIES

The Client warrants:
a.  They are 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;
b.  Have the financial capacity to purchase a property in the price range specified in the Schedule.
c.  They understand and agree that the advice provided by the Agent may only be relied upon by the Client for the purpose of selecting a property to purchase for the use specified by the Client and must not be relied upon for any other purpose.
d.  They understand and agree that the Agent does not provide any warranties in relation to:
      i.  easements, covenants, caveats, rights of way or encroachments;
      ii.  planning regulations or policies that apply to the property;
      iii.  The structural integrity of the property or that there is no
      iv.  unapproved structures, timber infestation, asbestos or any other defect
      v.  environmental site contamination or any failure by any party to comply with environmental legislation;
      vi.  currency of licenses and permits in relation to the property; and
      vii.  a change of land use being possible in relation to any property and the Client must rely on its own inspections.

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6. CLIENT ACKNOWLEGDEMENTS

The Client acknowledges and agrees that:
a.  By signing this Agreement, the Clients authorizes the Agent to make representations, negotiate and bid at auction for a property on their behalf:
b.  The Agent has not provided legal, financial or taxation advice to the Client.
c.  The Agent does not hold an Australian Financial Services License as defined by section 913B of the Corporations Act 2001 (Cth) and the Agent is not authorized to provide financial services to the Client.
d.  The Agent has not provided financial services to the Client and has not taken any financial circumstances into account when providing any advice.
e.  The Client has had the opportunity to obtain independent legal, financial and taxation advice in relation to the purchase of the property selected;
f.  The Agent has advised the Client to obtain written finance approval prior to the purchase of the property selected;
g.  If this Agreement is signed on behalf of a company or trust, then the obligations of the Client stated in this Agreement is guaranteed personally by its directors or the trustees (if, the trustee is a company then, by its directors) and beneficiaries.
h. The market may not have a suitable property within the parameters as required by the Client and the Agent may require the Client to revise its requirements and provide the Agent with a new schedule.

7. INDEMNITY AND LIMITATION OF LIABILITY

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a.  The Client indemnifies and continues to indemnify the Agent against any claims, losses or costs arising directly or indirectly from the services rendered, including but not limited to, the condition of the property, to the Client and/or its related entity or persons, unless due to wilful neglect by the Agent.
b.  The Client agrees that any liabilities, claims, losses or costs claimed by it or awarded by a competent authority or court against the Agent will be limited to the value of Fee stated in the Schedule.
c.  The Client indemnifies and continues to indemnify the Agent against any claims by any third parties involved in the transaction.
d.  The Agent takes no responsibility for the actions of any third party involved in the transaction. If a third party proves to be negligent in their actions, the Client agrees that they will remedy the issue directly with the third party and/or their public liability insurer.

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8. FEES

a.  The Client must pay the Agent the Fee as specified in the Schedule on the date that this Agreement is signed by the Client, or as otherwise agreed between the parties.
b.  If this Agreement is terminated and the Agent has introduced the Client to a property in the Location and the Client enters into a binding Agreement for the purchase of the property (whether conditional or unconditional) within 12 months of the termination the client must pay the Agent the Fee as specified in the Schedule.
c.  If the Client engages any provider or real estate agent introduced to them by the Agent and the Client enters into a binding Agreement for the purchase of the property (whether conditional or unconditional) regardless of the involvement of the Agent, the client must pay the Agent the Fee as specified in the Schedule.
d.  If the Client terminates this Agreement for any reason throughout its course, the Client acknowledges and understands that an administration charge will become payable to the Agent within 7 days of termination of this Agreement. The administration charge will be determined at the time of termination entirely at the discretion of the Agent based on works already completed for the Client as at that date.
e.  A refund will not be issued where the Client has rejected the properties presented and has consequently terminated the Agreement without providing the Agent reasonable opportunity to present further properties suitable to the criteria as set in the Schedule.
f.  If the Client attains finance pre-approval although is subsequently unable to attain formal finance approval, the Agent will hold the Fee as specified in the Schedule on credit for a period of up to 24 months. The Client is to provide proof as to the circumstances in which they are unable to attain formal finance approval.
g.  The only grounds for a refund are if the Client is unable to attain finance pre-approval (as declared by at least 2 finance brokers) and/or a successful SMSF setup. The Client has an obligation to make a genuine attempt to obtain finance, liaise with brokers, collate all their financial information and do anything that may be required by finance brokers, lenders and any other relevant party in order to obtain finance pre-approval.
h.  Client tardiness, lack of action or failure to communicate or becoming unresponsive to contact from Ethical Property Investing and/or other relevant parties is not a ground for a refund for not being able to attain finance pre-approval or SMSF setup.
i.  The Agent will not issue a refund where the Client has not provided full and accurate disclosure of their financial position, including assets and liabilities to the selected financier at pre-approval stage which leads to finance not being achieved following formal review of their application. It is vital that clients provide full and honest information at all times to the Agent, our brokers and any and all other parties.

j.  If a property is found as per criteria in the Schedule and presented to the Client and the client subsequently terminates this Agreement, the entire Fee as specified in the Schedule is payable to the Agent, within 7 days of termination of this Agreement.
k.  The Fee shall be paid in full and free of any counterclaim or set off.
l.  The Client acknowledges, agrees and consents to granting a security interest pursuant to Personal Property Securities Act 2009 (Cth) over the property purchased against any money owed to the Agent pursuant to this Agreement (including, interest and costs) and to register
its such interest with the Personal Property Securities Register.
m.  A refund of fees paid and/or due will only be granted in the event that the Client is declared as unable to attain finance by at least two independent brokers of Ethical Property Investing's choice. Where a client fails to complete and lodge a finance application as directed, this will not constitute grounds of unable to attain finance and therefore qualify for any refund.
n.  The Client agrees that a change of mind will not constitute grounds for any refund in the event that finance pre-approval has been obtained.
o.  If the Client requests a refund, they are to meet with a Senior Sales Consultant prior to the termination of this Agreement.
p.  For the avoidance of doubt, the Agent is deemed to have fulfilled its obligations at the point where the Client enters into a binding contract to purchase a property in the Location.
q.  Refunds issued on a credit card are subject to the nominal credit card fee.

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9. DISCLOSURE

a.  The Agent from time to time may refer you to other service providers for their services. The service providers that you may be referred to by the Agent for as per NSW Fair Trading Section 47 Property Stock Business Agent Act 2002 And QLD Fair Trading section 157 of the Property Occupations Act 2014 will be disclosed to you, upon request.
b.  The Agent agrees to disclose to you any amount received for a successful referral.

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10. PRIVACY

a.  The Client consents to the use and disclosure of personal information collected by the Agent in accordance with the Agent’s Privacy Policy
b.  The Client agrees that the Agent may exchange information about the Client with financiers for the following purposes:
      i.  to assess an application by the Client; and/or
      ii.  to exchange information as to the status of their finance; and/or
      iii.  to assess the creditworthiness of the Client.
 

11. FORCE MAJEURE

a.  To the maximum extent permitted by law, the Agent and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Agent under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Agent and the Agent shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Agent holds the benefit of this clause for itself and as agent and trustee for and on behalf of each of its Representatives.
 

12. INDIRECT LOSS

a.  So far as the law permits, the Agent is not liable in any way for any indirect or consequential loss or loss of profit including, without limitation, any loss by reason of delay, non-delivery, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by the Agent.

13. DEFAMATION

a.  The Client and Agent agrees not to defame or intentionally cause damage to the other party’s reputation, either through oral or by written communication including but not limited to the following:
      i.  Facebook reviews;
      ii.  Google reviews; and
      iii.  Online forums.
 

14. APPOINTMENT OF NOMINEE

a.  The Client and Agent agree that if the Client appoints a nominee following execution of this Agreement for the purposes of completing a property transaction (e.g. Company trust structure or any other relevant structure, formation of a self-managed super fund), the nominee is also subject to these terms as if they are the subject Client. If the Client appoints a nominee following execution of the Agreement, they must advise the Agent of the following: name, address, phone number, mobile and email.
 

15. REBATE/CASHBACK

a. From time to time at the Agents discretion builder rebates and/or cashbacks may be offered on off the plan and new build properties. These payments may be in the form of cash or equity. The timing of such payment is dependent on the builder and will be advised at the time.
b.  The Client acknowledges that in the event that they do not proceed with settlement of their property transaction, the Client agrees to become personally liable for the rebate and/or cashback amount already paid to the Client and must reimburse same to the Agent within 7 days.

16. COMPETITION AND CONSUMER ACT 2010 CTH (CCA)

a.  The Agent’s Services come with guarantees that cannot be excluded under the Australian Consumer Law (Non-Excluded Guarantees).
b.  The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
c.  The Agent’s services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
      i.  to cancel your service contract with us; and
      ii.  to a refund for the unused portion, or to compensation for its reduced value
d.  You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
e.  If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
 

17. MISCELLANEOUS

a.  The Client, Agent and Parties includes their respective employees, agents or representatives and third-party related entity/person.
b.  The Client warrants that it has the power to enter into this Agreement and has obtained all necessary authorisations to allow it to do so (if entering on behalf of a company), it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
c.  The Client agrees that the Agent may amend these terms and conditions or their fees at any time. If the Agent makes a change to these terms and conditions or fees, then that change will take effect from the date on which the Agent notifies the Client of such change. The Client will be automatically deemed to have accepted such changes.
d.  The parties agree that the details contained in the Schedule can be changed by writing between the parties and shall form part of this Agreement.
e.  This Agreement is governed by the laws of the Commonwealth of Australia, and the various states and territories within.
j.  If a property is found as per criteria in the Schedule and presented to the Client and the client subsequently terminates this Agreement, the entire Fee as specified in the Schedule is payable to the Agent, within 7 days of termination of this Agreement.
k.  The Fee shall be paid in full and free of any counterclaim or set off.
l.  The Client acknowledges, agrees and consents to granting a security interest pursuant to Personal Property Securities Act 2009 (Cth) over the property purchased against any money owed to the Agent pursuant to this Agreement (including, interest and costs) and to register its such interest with the Personal Property Securities Register.
m.  A refund of fees paid and/or due will only be granted in the event that the Client is declared as unable to attain finance by at least two independent brokers of Ethical Property Investing's choice. Where a client fails to complete and lodge a finance application as directed, this will not constitute grounds of unable to attain finance and therefore qualify for any refund.
n.  The Client agrees that a change of mind will not constitute grounds for any refund in the event that finance pre-approval has been obtained.
o.  If the Client requests a refund, they are to meet with a Senior Sales Consultant prior to the termination of this Agreement.
p.  For the avoidance of doubt, the Agent is deemed to have fulfilled its obligations at the point where the Client enters into a binding contract to purchase a property in the Location.
q.  Refunds issued on a credit card are subject to the nominal credit card fee