Five Degrees Property Pty Ltd – Terms and Conditions
1.1 “Broker” means Five Degrees Property Pty Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, Five Degrees Property Pty Ltd.
1.2 “Vendor” means the person/s or entity requesting the Broker to provide the Services, as specified in any quotation, order, invoice or other document, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Investor” means any investor or purchaser introduced by the Broker to the Vendor (on a referral basis) for the purpose of the Vendor and the Investor entering into a valid and binding contract for the purchase of any property (and/or any subsequent building of a dwelling or other structure) by the Vendor.
1.4 “Services” means all facilitation services provided and/or the introduction to any Investor, by the Broker to the Vendor, at the Vendor’s request, from time to time.
1.5 “Fee” means the price payable for the Services, as agreed between the Broker and the Vendor in accordance with clause 5 of this contract.
1.6 “Confidential Information” means any information which has been designated as confidential by either party in writing, or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relating to the personal affairs, properties, assets, trading practices, services, developments, trade secrets, intellectual property rights, know-how, personnel, customers and suppliers, and all personal information of both parties (and the Investor) within the meaning of the Privacy Act 1988.
2.1 The Vendor is taken to have exclusively accepted, and is immediately bound, jointly and severally, by these terms and conditions, if the Vendor enters into any agreement with any Investor for the purchase of any property (and/or any subsequent building of a dwelling or other structure).
2.2 These terms and conditions may only be amended with the Broker’s consent in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Vendor and the Broker.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The Broker is acting solely as a facilitator between the Vendor and the Investor. Should the Investor fail to contract with the Vendor for the purchase of any property (and/or any subsequent building of a dwelling or other structure) from the Vendor, or if a dispute arises in respect of any agreement between the Vendor and the Investor, the Broker shall be under no liability to the Vendor, Investor and/or any third party, and in particular will not be responsible for any loss or damages sustained by the Vendor, Investor and/or any third party.
4. Change in Control
4.1 The Vendor shall give the Broker not less than fourteen (14) days prior written notice of any proposed change of ownership of the Vendor and/or any other change in the Vendor’s details (including but not limited to, changes in the Vendor’s name, address, contact phone or fax number/s, or business practice). The Vendor shall be liable for any loss incurred by the Broker as a result of the Vendor’s failure to comply with this clause.
5. Fee and Payment
5.1 The Broker shall be entitled to deduct or charge the Vendor a Fee as payment for the Services provided, together with GST and any other charges. At the Broker’s sole discretion, the Fee
(which is calculated as a percentage of the price of any contract between the Vendor and the Investor) shall be either:
(a) as indicated on any invoice provided by the Broker to the Vendor; or
(b) the Broker’s quoted Fee (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Broker reserves the right to change the Fee if there is any material change to the specifications of the Services, or the particulars of the contract between the Investor and the Vendor, which increases the price of that contract.
5.3 Time for payment for the Services being of the essence, the Fee will be payable by the Vendor on the date/s determined by the Broker, which may be:
(a) thirty (30) days following the end of the month in which a statement is posted to the Vendor’s address or address for notices; or
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Vendor by the Broker.
5.4 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Vendor and the Broker.
5.5 Unless otherwise stated the Fee does not include GST. In addition to the Fee the Vendor must pay to the Broker an amount equal to any GST the Broker must pay for any provision of Services by the Broker under this contract, or any other agreement. The Vendor must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Vendor pays the Fee. In addition, the Vendor must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
5.6 The Vendor acknowledges and agrees that the Vendor’s obligations to the Broker for the provision of Services shall not cease until:
(a) the Vendor has paid the Broker all amounts owing for the particular Services; and
(b) the Vendor has met all other obligations due by the Vendor to the Broker in respect of all contracts between the Broker and the Vendor.
5.7 Receipt by the Broker of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Broker’s ownership or rights in respect of the Services, and this agreement, shall continue.
5.8 The Vendor shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Vendor by the Broker nor to withhold payment of any invoice because part of that invoice is in dispute.
6. Provision of the Services
6.1 The Broker undertakes to use its best endeavours to provide reliable Services, and supply Investors based on the Vendor’s specifications (such as income or financing, credit-standing, assets,etc.). The Vendor agrees to clearly instruct the Broker of its requirements regarding Investors and to notify the Broker immediately if there is any change in those requirements.
6.2 The introduction of the Investor is strictly confidential between the Vendor and the Broker, and any contract between the two parties for the purchase of any property (and/or any subsequent building of a dwelling or other structure) from the Vendor as a result from such introduction shall impose a liability on the Vendor to pay the Broker the appropriate Fee in accordance with the Broker’s payment terms.
6.3 Clause 6.2 shall also be applicable where any agreement for purchase of any property (and/or any subsequent building of a dwelling or other structure) results from the Vendor passing on the introduction of the Investor to any other party.
7. Intellectual Property and Confidentiality
7.1 Where the Broker has supplied the Vendor with any documentation (including designs, sketches, drawings, plans and specifications) pertaining to the Investor’s requirements regarding the purchase of any property (and/or any subsequent building of a dwelling or other structure) from the Vendor, then the copyright in that documentation shall remain the property of the Broker.
7.2 Each party:
(a) shall treat all Confidential Information belonging to the other party and/or the Investor as confidential and safeguard it accordingly; and
(b) shall not disclose any Confidential Information belonging to the other party and/or the Investor to any other person without the prior written consent of the other party and/or the Investor, except to such persons and to such extent as may be necessary for the performance of any agreement between the parties, or except where disclosure is otherwise expressly permitted by the provisions of the such agreement.
7.3 The Broker shall take all necessary precautions to ensure that all Confidential Information obtained from the Vendor under, or in connection with, this contract: –
(a) is given only to such of its staff and professional advisors or consultants engaged to advise it in connection with the contract as is strictly necessary for the performance of the contract and only to the extent necessary for the performance of the contract;
(b) is treated as confidential and not disclosed (without prior approval) or used by such staff or professional advisors or consultants otherwise than for the purposes of the contract.
7.4 The provisions of clauses 7.2 and 7.3 shall not apply to any Confidential Information received by one party from the other:
(a) which is or becomes public knowledge (otherwise than by breach of this clause);
(b) which was in the possession of the receiving party, without restriction as to its disclosure, before receiving it from the disclosing party;
(c) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(d) is independently developed without access to the Confidential Information; or
(e) which must be disclosed pursuant to a statutory, legal or Parliamentary obligation placed upon the party making the disclosure.
7.5 The Vendor shall immediately notify the Vendor of any breach of security in relation to Confidential Information and all data obtained in the performance of the contract and will keep a record of such breaches. The Vendor will use its best endeavours to recover such Confidential Information or data however it may be recorded. The Vendor will co-operate with the Broker in any investigation that the Vendor considers necessary to undertake as a result of any breach of security in relation to Confidential Information or data.
8.1 The Vendor hereby disclaims any right to rescind, or cancel any contract with the Broker, or to sue for damages, or to claim restitution, arising out of any inadvertent misrepresentation made to the Vendor by the Broker, and the Vendor acknowledges that the Services are acquired relying solely upon the Vendor’s skill and judgment.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Vendor acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in any monetary obligation of the Vendor for Services that have previously been provided, and that will be provided in the future, by A.N.R for the Vendor.
9.3 The Vendor undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which A.N.R may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, A.N.R for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of A.N.R;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of A.N.R.
9.4 A.N.R and the Vendor agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Vendor waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Vendor waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by A.N.R, the Vendor waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Vendor must unconditionally ratify any actions taken by A.N.R under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of the Broker agreeing to provide Services, the Vendor charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Vendor either now or in the future, to secure the performance by the Vendor of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Vendor indemnifies the Broker from and against all the Broker’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Broker’s rights under this clause.
10.3 The Vendor irrevocably appoints the Broker (and each director of the Broker) as the Vendor’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Vendor’s behalf.
11.1 The Broker may cancel any contract to which these terms and conditions apply, or cancel provision of the Services, at any time before the Services have been provided, by giving written notice to the Vendor. On giving such notice the Broker shall repay to the Vendor any money paid by the Vendor for the Services. The Broker shall not be liable for any loss or damage whatsoever arising from such cancellation.
11.2 In the event that the Vendor cancels the Services, the Vendor shall be liable for any and all loss incurred (whether direct or indirect) by the Broker as a direct result of the cancellation (including, but not limited to, any costs incurred and any loss of profits).
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Broker’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Vendor owes the Broker any money the Vendor shall indemnify the Broker from and against all costs and disbursements incurred by the Broker in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Broker’s contract default fee, and bank dishonour fees).
12.3 Without prejudice to any other remedies the Broker may have, if at any time the Vendor is in breach of any obligation (including those relating to payment) under these terms and conditions the Broker may suspend or terminate the provision of Services to the Vendor. The Broker will not be liable to the Vendor for any loss or damage the Vendor suffers because the Broker has exercised its rights under this clause.
12.4 Without prejudice to the Broker’s other remedies at law the Broker shall be entitled to cancel all or any part of any order of the Vendor which remains unfulfilled and all amounts owing to the Broker shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Broker becomes overdue, or in the Broker’s opinion the Vendor will be unable to make a payment when it falls due;
(b) the Vendor becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Vendor or any asset of the Vendor.
13. Privacy Act 1988
13.1 The Vendor agrees for the Broker to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Vendor in relation to credit provided by the Broker.
13.2 The Vendor agrees that the Broker may exchange information about the Vendor with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Vendor; and/or
(b) to notify other credit providers of a default by the Vendor; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Vendor is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Vendor including the Vendor’s repayment history in the preceding two years.
13.3 The Vendor consents to the Broker being given a consumer credit report to collect overdue payment on commercial credit.
13.4 The Vendor agrees that personal credit information provided may be used and retained by the Broker for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Vendor’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Vendor; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
13.5 The Broker may give information about the Vendor to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Vendor including credit history.
13.6 The information given to the CRB may include:
(a) personal information as outlined in 13.1 above;
(b) name of the credit provider and that the Broker is a current credit provider to the Vendor;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Vendor’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Vendor no longer has any overdue accounts and the Broker has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Broker, the Vendor has committed a serious credit infringement;
(h) advice that the amount of the Vendor’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
13.7 The Vendor shall have the right to request (by e-mail) from the Broker:
(a) a copy of the information about the Vendor retained by the Broker and the right to request that the Broker correct any incorrect information; and
(b) that the Broker does not disclose any personal information about the Vendor for the purpose of direct marketing.
13.8 The Broker will destroy personal information upon the Vendor’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
13.9 The Vendor can make a privacy complaint by contacting the Broker via email. The Broker will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Vendor is not satisfied with the resolution provided, the Vendor can make a complaint to the Information Commissioner at www.oaic.gov.au.
14. The Commonwealth Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
14.1 Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or reenactment thereof), except to the extent permitted by those Acts where applicable.
15.1 The failure by the Broker to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Broker’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the State in which the Broker has its principal place of business, and are subject to the jurisdiction of the Brisbane courts in that State.
15.3 The Broker shall be under no liability whatsoever to the Vendor for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Vendor arising out of a breach by the Broker of these terms and conditions (alternatively the Broker’s liability shall be limited to damages which under no circumstances shall exceed the Fee).
15.4 The Broker may license or sub-contract all or any part of its rights and obligations without the Vendor’s consent.
15.5 The Vendor agrees that the Broker may amend these terms and conditions at any time. If the Broker makes a change to these terms and conditions, then that change will take effect from the date on which the Broker notifies the Vendor of such change. The Vendor will be taken to have accepted such changes if the Vendor makes a further request for the Broker to provide Services to the Vendor.
15.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.7 The Vendor warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.
PLEASE NOTE: A larger print version of the Terms and Conditions is available from the Broker on request. © Copyright – EC Credit Control 1999 - 2016=#33637