This Agreement sets out the terms upon which You engage Us to provide the Services.

OPERATIVE PROVISIONS

1. Definitions and Interpretation

   
   1.1. Definitions

   Act means the Corporations Act 2001 (Cth).

   Agreement means this agreement including the Details and any of its schedules and annexures.

   Applicable Law means:

   (a) In New South Wales, the Property and Stock Agents Act 2002 (NSW);

   (b) In the Australian Capital Territory, the Agents Act 2003 (ACT);

   (c) in Victoria, the Estate Agents Act 1980 (Vic);

   (d) in Western Australia, the Real Estate and Business Agents Act 1978 (WA);

   (e) in Queensland, the Property Occupations Act 2014 (Qld);

   (f) in South Australia, the Land Agents Act 1994 (SA);

   (g) in Tasmania, the Property Agents and Land Transactions Act 2016 (Tas); and

   (h) in the Northern Territory, the Agents Licensing Act 1979 (NT).

   Business means the business set out in the Details.

   Business Day means any day except a Saturday, Sunday or public holiday in the Jurisdiction.

   Commencement Date means the commencement date in the Details.

   Confidential Information includes any information which is designated or marked as confidential and any information which the other Party knows or ought reasonably know should be treated as confidential and includes:

   (i) names and contact details of the Party's customers, clients, employees, contractors and suppliers and their personnel and all supplier lists or databases;

   (j) the terms of this Agreement;

   (k) any information relating to the contractual and other arrangements and relationships relating to the Party, including pricing and other financial information, strategic, business and marketing plans, tenders and any contract proposals and other information with actual or potential commercial value to the other Party;

   (l) information relating to the Party's business methods and processes including its organisational structures (including information regarding the skills and remuneration of its personnel) and policies and procedures;

   (m) trade secrets, inventions, formulas, know-how, improvements and discoveries, manuals and technical documentation, research and development relating to the Party and the Party's business.

   Contracted Staff means the personnel recruited and supplied by Us to You under this Agreement.

   Expenses means the costs incurred by Us on Your behalf which are required for carrying out the Services.

   GST has the same meaning give to it and’ goods and services tax’ in the GST Act.

   GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

   Insolvency Event means:

   (n) in the case of an individual, partnership or trust:

   (i) the commission of an act of bankruptcy by a person under any legislation;

   (ii) the entering into of any arrangement, or the transfer of any assets, for the benefit of creditors;

   (iii) an admission from the Party that any debts of the Party cannot be repaid; or

   (iv) anything analogous or of substantially the same effect to any of the events described above;

   and

   (o) in the case of a corporation:

   (i) the Party becomes an externally administered body corporate under the Act;

   (ii) steps are taken by any person towards making the Party an externally administered body corporate under the Act; or

   (iii) the Party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Act.

   Invoice Date means the invoice date set out in the Details.

   Jurisdiction means the jurisdiction set out in the Details.

   Order Form means a written order for the supply of Services to be made under this Agreement.

   Our Fee means the fee paid by You to Us as set out in the Details and any Order Form and amended from time to time.

   Party means a party to this Agreement and Parties means all of them together.

   Payment Date means the date which is five Business Days after the date of the relevant invoice.

   Renewal Period means the renewal period set out in the Details.

   Services means the services to be provided under this Agreement as set out in the Details and detailed in any Order Form.

   Term means the term set out in the Details plus any Renewal Periods.

   WHS Legislation means:

   (p) where the Services are performed in the Australian Capital Territory, the Work Health and Safety Act 2011 (ACT), the Crimes Act 1900 (ACT), and the Work Health and Safety Regulation 2011 (ACT);

   (q) where the Services are performed in New South Wales, the Work Health and Safety Act 2011 (NSW), and the Work Health and Safety Regulation 2017 (NSW);

   (r) where the Services are performed in Victoria, the Occupational Health and Safety Act 2004 (Vic), and the Occupational Health and Safety Regulations 2017 (Vic);

   (s) where the Services are performed in Western Australia, the Work Health and Safety Act 2020 (WA), and the Occupational Safety and Health Regulations 1996 (WA);

   (t) where the Services are performed in Queensland, the Work Health and Safety Act 2011 (Qld), and the Work Health and Safety Regulation 2011 (Qld);

   (u) where the Services are performed in South Australia, the Work Health and Safety Act 2012 (SA), and the Work Health and Safety Regulations 2012 (SA);

   (v) where the Services are performed in Tasmania, the Work Health and Safety Act 2012 (Tas), and the Work Health and Safety Regulations 2012 (Tas); and

   (w) where the Services are performed in the Northern Territory, the Work Health and Safety (National Uniform Legislation) Act 2011 (NT), and the Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT).

   Your Jurisdiction means your jurisdiction as set out in the Details.

2. Services

   2.1. Engagement

   You engage Us to perform the Services set out in this Agreement and any Order Form in relation to Your Business on the terms and conditions of this Agreement.

   
   2.2. Period
   (a) This Agreement commences on the Commencement Date and continues for the Term.

   (b) This Agreement will automatically renew for the Renewal Periods, unless either Party provides the other Party with a written termination notice at least 90 days before the expiry of the then current Term.

   
   2.3. Non-exclusive

   You acknowledge that We conduct Our own services business across numerous clients and from time to time and;
   (a) may accept appointment from other businesses to provide services to them on similar or different terms; and

   (b) may compete with You in the provision of services to other clients;

3. Fee

   In consideration for delivering the Services, You will pay Us Our Fee on the Payment Date via direct debit.

   
   3.1. Review

   (a) will review our fees in relation with CPI and rises in costs where necessary

   (b) If the Parties cannot agree on the review for Our Fee, then the fee structure for the year in which the review was due to commence will continue to apply until the dispute is resolved in accordance with clause 13.

   
   3.2. Expenses

   You will reimburse Us for any Expenses incurred on Your behalf.

   
   3.3. Invoice

   (a) We will issue an invoice to You on the Invoice Date.

   (b) You must pay the invoice before the Payment Date.

   (c) If You do not pay the invoice before the Payment Date, and We hold funds on Your behalf, You authorise Us to pay the invoice from the funds We hold on
   Your behalf on the Payment Date.

   (d) If you do not pay the invoice by the Payment Date and We do not hold funds on Your behalf, You agree to Us recovering the unpaid invoice(s) as a debt due to Us, set-off the debt from any amount We may owe You and/or suspend the Services or refrain from providing any further Services subject to Our discretion.

   
   3.4. Referral Fees

   You acknowledge that We may, from time to time, receive discounts, referral fees or commissions in connection with the Services (‘Referral Fees’). You agree that You have no claim to the Referral Fees and the Referral Fees belong exclusively to Us.

4. Our OBLIGATIONS
   
   We shall, in performing the Services under this Agreement:

   (a) accept any lawful instructions or direction from You whether given verbally or in writing and carry out that instruction properly and faithfully;

   (b) carry out the Services to the standards set out in Schedule 1;

   (c) conduct the Services, utilising Our own systems, processes, know-how and intellectual property in a timely and efficient manner;

   (d) exercise the standard of skill, care and diligence in the conduct of the Services that would be reasonably expected of an appropriately qualified provider of the same or similar services.

   (e) exercise the utmost good faith with due regard to Your interests;

   (f) maintain and renew as applicable all licences necessary for Us to carry out the Services, for which We are responsible;

   (g) comply with all applicable legislation; and

   (h) keep You fully and regularly informed about all matters affecting or relating to the Services.

5. Your Obligations
   

   5.1. Cooperation and information

   In order for Us to effectively deliver the Services, You will:

   (a) co-operate with Us as We reasonably require;

   (b) notify Us within one Business Day of any event, circumstance, communication, fact or thing that may affect or alter the nature of Your Business or the carrying out of Our Services;

   (c) provide the information and documentation that We reasonably require;

   (d) ensure that Your staff and agents co-operate with and assist Us;

   (e) maintain and renew as applicable all licences necessary for Us to carry out the Services, for which You are responsible;

   (f) comply with all applicable legislation;

   (g) make payment of all Fees and Expenses in a timely manner in accordance with clause 3; and

   (h) be liable for any associated costs which are reasonably incurred by us in the event You do not comply with or delay to fulfil Your obligations as set out under clauses 5.1(a) to 5.1(g).

   5.2. Licence Requirements

   (a) We will provide all facilities and services required to deliver the Services, excluding any services or activities that require a real estate licence.

   (b) You agree that the Services are administrative in nature and You are required to be a licenced real estate agent in accordance with the Applicable Law (Your Licence).

   (c) You agree that any Services that relate to the trust account operated under Your Licence will be performed by Us on Your behalf at Your risk and responsibility, under delegated authority from You.

   (d) You acknowledge and agree that We bear no liability or responsibility of any kind arising from the performance or nonperformance of the Services related to the provisions of clauses 4.2(b) or 4.2(c).

6. Intellectual Property

   
   6.1. Ownership of Intellectual Property

   (a) We are the owner of the systems, processes, know-how, copyright and other proprietary rights used by Us in providing the Services.

   (b) SERVICE PROVIDER OWNS IP CREATED UNDER AGREEMENT - We are the owner of all intellectual property created by Us under this Agreement.

7. PRIVACY
   

   (a) You acknowledge and agree that You have complied with the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act in relation to any personal information that You provide to Us, or allow Us to access.

   (b) We will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act when We deliver the Services.

   (c) We agree to immediately notify You in writing if We become aware of an actual or suspected:

   (i) eligible data breach;

   (ii) privacy incident;

   (iii) breach of Our obligations under this clause 7; or

   (iv) claim by any person in relation to a breach or alleged breach of privacy, and take such action as is reasonably directed by You.

8. Liability
   

   8.1 Except for those required or implied by legislation, We give no express warranty in relation to our Services, other than those contained in this Agreement.

   
   8.2 We, Our officers, owners, employees and contractors will not be liable for any loss or damage or cost suffered by You or to any third-party as a result of Us performing or nonperforming the Services and/or exercising Our authority and functions in accordance with this Agreement, except to the extent that We caused any such loss or damage.

   
   8.3 You agree:

   (a) to ratify any action done by Us in the performance of Our obligations under this Agreement;

   (b) that You will be solely responsible for determining as to whether the Services are fit for Your purpose; and

   (c) that Our liability to You is governed solely by the Australian Consumer Law (ACL) (and any other applicable consumer protection laws) and by this Agreement.

   
   8.4 To the maximum extent permitted by law and apart from the warranties set out in the ACL, all other warranties of any kind in respect of the Services are excluded by this Agreement.

   
   8.5 To the extent it is lawful, neither Party shall be liable to the other Party for any special, indirect, incidental, punitive or consequential loss suffered by the other Party, whether arising under contract, warranty, or tort (including negligence or strict liability) or any other liability, which includes but is not limited to economic loss, data loss or loss of goodwill, turnover, profits or business.

   
   8.6 Notwithstanding anything to the contrary contained in this Agreement, We will not be liable to You for any third-party claims, under any circumstances.

   
   8.7 Nothing contained in this Agreement shall release You from any liability or responsibility of any kind implied under any legislation, regulation or licencing requirements.

9. Indemnity
   

   9.1 You hereby agree to indemnify in full and keep Us, our officers, owners, employees and contractors harmless from and against all debts, demands, liabilities, claims, costs, expenses, charges, fines, penalties, actions, omissions, misrepresentations and judgments of any kind, or nature from anyone which We may, at any time, sustain or incur by reason of or arising in or about the performance or non-performance of the Services, or any acts or omissions associated.
   

   9.2 You agree to hold Us, our officers, owners, employees and contractors harmless from and against any claims submitted by a third party or on Your behalf of or in Your name for which You, Your employee or agents provided Us false, fraudulent, incomplete, inaccurate, misleading or otherwise incorrect information or data.
   

   9.3 This clause 8 shall survive the termination of this Agreement.

10. Confidentiality
    
    (a) None of the Parties may disclose to any person or use for either its own benefit or anyone else’s benefit, any Confidential Information of another Party without that Party’s prior written agreement.

    (b) These obligations will apply during and after the term of this Agreement and will survive the termination of this Agreement.

    (c) The obligations in this clause 10 do not apply to disclosures where:

    (i) the Party has given prior written authority to disclose the Confidential Information;

    (ii) the Party wishing to disclose the Confidential Information is required to do so by law providing that that Party notifies the other Party of the requirement to do so as soon as practical and they disclose no more than is strictly required and take all reasonable steps to ensure that the disclosed Confidential Information will be treated confidentially;

    (iii) the Confidential Information has become public knowledge unless this is as a result of the disclosing Party’s breach of these obligations; or

    (iv) the Confidential Information was already known to the recipient at the time of disclosure.

11. Suspension

    11.1. Suspension by You

    (a) You may suspend the Services (or any part) with 1 months notice by giving notice in writing to Us.

    (b) If We receive a direction under clause 11.1(a), We agree to immediately suspend the performance of the Services or the relevant part.

    11.2. Costs of Suspension

    If the suspension arises as a result of:

    (a) Our breach or non-performance of Our obligations under this Agreement, We acknowledge that We then have no right to be paid any costs, expenses or damages arising from the suspension; or

    (b) any other cause, the Parties acknowledge that:

    (i) the suspension will entitle Us to be paid the actual costs directly incurred by Us as a result of the suspension; and

    (ii) We agree to take all reasonable steps to mitigate those costs.

    11.3. Recommencement

    Subject to clause 3.3(d) We agree to, as soon as reasonably practicable, recommence the carrying out of the Services (or any part) on receipt of a written notice from You requiring Us to do so.

    11.4 Suspension by Us

    Except as directed by You under this clause 11 and subject to clause 3.3(d), We agree not to suspend all or any part of the Services.
    
    
    

12. Termination

    12.1. Your Right to Terminate

    You may terminate this Agreement:

    (a) immediately by giving written notice to Us to remedy a breach of this Agreement and We do not do so within 30 Business Days.

    (b) If We become subject to an Insolvency Event.

    
    12.2. Our Right to Terminate

    We may terminate this Agreement:

    (a) immediately by giving written notice to You to remedy a breach of this Agreement and You do not do so within 30 Business Days; or

    (b) if You become subject to an Insolvency Event.

    
    12.3. Procedure on Termination or on Expiry of term

    Without affecting any other rights or obligations of the Parties (including in respect of any breach by a Party under this Agreement), upon termination or the expiry of this Agreement,

    (a) We will hand to You or as directed by You, any records and information held by Us in respect of Your Business;

    (b) We will account to You for all money held by Us;

    (c) You will pay to Us all money owing to Us;

    (d) You agree not to poach or solicit any of Our staff or contractors; and

    (e) You and We will take all available steps to avoid or minimise any costs, expenses, loss or damage to either Party resulting from the termination or expiry of this Agreement.

13. Dispute Resolution

    The Parties must use reasonable endeavours to resolve any dispute under this Agreement by taking the following steps:

    (a) a Party may serve notice on the other Party advising of a dispute (Notice);

    (b) senior managers of the Parties must meet within seven days of receipt of the Notice to attempt to resolve the dispute;

    (c) if the dispute remains unresolved after 10 days of receipt of the Notice, the CEO or equivalent of each Party will meet to resolve the dispute within 30 days of receipt of the Notice;

    (d) if the dispute still remains unresolved the Parties will resort to mediation or other alternative dispute resolution methods; and

    (e) if the dispute remains unresolved, or a Party elects to move straight to expert determination in lieu of mediation or other alternative dispute resolution methods, the Parties will resort to expert determination and the opinion of the expert will be binding on the Parties,

    before they commence legal proceedings (except proceedings for interlocutory relief). Costs of any mediator or expert will be borne equally between the Parties.

14. Notice

    
    14.1. Giving of notice

    A notice or other communication required or permitted to be given by one Party to another under this Agreement must be in writing and:

    (a) delivered personally; or

    (b) sent by email to the email address of the addressee as may be specified by the addressee from time to time for the receipt of notices under this Agreement.
    

    14.2. Service of notice

    A notice or other communication under this Agreement is taken to have been given (unless otherwise proved):

    (a) if delivered personally, when delivered on a Business Day, or otherwise on the next Business Day;

    (b) if sent by email on the day of sending on a Business Day, or otherwise on the next Business Day.
    

    14.3. Change of address

    A Party may change its address or email address for service by giving notice of that change in writing to the other Parties.

    
    

15. CONTRACTED STAFF
    This clause 15 applies to Contracted Staff, if selected as Services in the Details.

    
    15.1. Wages and Employee Entitlements

    Provided that You pay to Us Our Fee, We agree to be fully responsible for the wages and entitlements of the Contracted Staff as set out under the Fair Work Act 2009 (Cth), which include but are not limited to annual leave, long service leave, sick leave, redundancy pay and superannuation.

    
    15.2. Workplace Health and Safety

    (a) You agree to provide a workplace for the Contracted Staff that is safe and clean and otherwise in accordance with the requirements of WHS Legislation.

    (b) You agree, at Your cost, to comply with the WHS Legislation, and if requested by Us, provide evidence of Your compliance with the WHS Legislation.

    
    15.3. Replacement of Contracted Staff

    (a) If the Contracted Staff are not performing to the level of care and skill You requested, You may provide notice to Us requesting that We replace them with a substitute. Based on availability.

    (b) Upon receipt of notice under 15.3(a), We agree to arrange for the removal of that Contracted Staff and, if We have a suitable replacement available, replace him or her with a person acceptable to You within five Business Days, unless the reason for removal relates to workplace health and safety issues or protection of persons or property, in which case We agree to remove that Contracted Staff immediately.

    
    15.4. Non-solicitation

    (a) You agree that You, and any of your related entities, will not approach, induce or solicit or persuade any of Our employees or contractors from continuing to be employed or engaged in Our Business or commence working directly with Your Business for a minimum of 12 months from their last day working on Your file.

    (b) If, however you breach sublease (a) above, You agree to pay to Us a recruitment fee at Our usual rates which is due and payable on the date Our employee or contractor leaves their engagement with Us.

16. Insurances
    
    16.1. We agree to hold and keep current, at Our own cost, the following insurances:

    (a) professional indemnity insurance in the amount of $1,000,000 per occurrence;

    (b) public liability insurance in the amount of $10,000,000 per occurrence;

    (c) workers compensation; and

    (d) any other insurances as required by law.
    

    16.2. We agree to provide, on request by You, evidence of the insurances set out in clause 16.1.
    
    

17. GST

    
    17.1. Payment of GST

    (a) The fees, charges, taxes and Expenses payable under this Agreement do not include GST.

    (b) If GST is payable on any supply made by a Party under or in connection with this Agreement, the consideration provided (or to be provided) for that supply will be increased by an amount equal to the GST liability properly incurred by the Party making the supply (GST Amount).

    (c) The Party making the supply must promptly provide a tax invoice or receipt, which is in an approved form for GST purposes, for any supply for which the Party making the supply may recover GST.

    (d) If a Party has incurred a cost on which GST is payable, that Party may claim the cost plus GST, unless the Party is entitled to an input tax credit in respect of such GST.

    (e) Any GST Amount must be paid at the same time and in the same manner as the consideration on which the GST Amount is calculated. However, the Party receiving the supply is not required to pay the GST Amount until seven days after receiving a tax invoice.

18. Special Conditions
    The Special Conditions set out in the Details apply to this Agreement.

19. CONTRACT DOCUMENTS
    
    The Agreement between You and Us comprises the Details, Schedules, the Terms and Conditions and the Special Conditions. If there is an inconsistency between the documents constituting this Agreement, then the documents will prevail in the following order to the extent of any inconsistency:

    (a) Special Conditions;

    (b) Details (other than the Special Conditions);

    (c) Terms and Conditions; then

    (d) Schedules.
    
    

20. GENERAL
    

    20.1. Jurisdiction

    This Agreement will be governed by the laws in force in the Jurisdiction and the Parties submit to the jurisdiction of the courts of the Jurisdiction.

    
    20.2. Currency

    Unless specifically agreed otherwise between the Parties, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).

    
    20.3. Assignment

    (a) We may assign all of Our rights under this Agreement:

    (i) without Your consent if the assignment is due to a restructure; or

    (ii) with Your consent in any other case, which You cannot unreasonably withhold.

    (b) You may assign all of Your rights under this Agreement with Our consent.

    
    20.4. Force Majeure

    We will not be responsible for failure to perform the Services in a timely manner under this Agreement when such failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, epidemic or pandemic, fire, flood, explosion, earthquake or serious incident, strike labour trouble or work interruption or any cause beyond Our reasonable control.

    
    20.5. Amendments and Waivers

    (a) This Agreement may be amended only by a written document signed by the Parties.

    (b) A waiver of a provision of this Agreement or a right or remedy arising under this Agreement, including this clause 20.5, must be in writing and signed by the Party granting the waiver.

    (c) A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right.

    (d) Failure by a Party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver.

    (e) A waiver is only effective in the specific instance and for the specific purpose for which it is given.

    
    20.6. Invalidity

    If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, it may be deleted or modified to the extent that is necessary and this Agreement will otherwise remain in force.

    
    20.7. Counterparts

    This Agreement may be signed in any number of counterparts and all those counterparts together make one instrument.

    
    20.8. Entire Agreement

    This Agreement constitutes the entire agreement between You and Us.