Agreement for Services as Lessee’s agent
These terms and conditions (“Terms”) constitute the standard terms and conditions for Englander Davis Pty Ltd (ABN XXX), trading as Englander Principal of Suite 9/10 Lake Kawana Blvd, Bokarina Qld 4575 (“Negotiator”), and
____________________ of _____________________________(“Client”)
- PURPOSE OF THESE TERMS:
- The purpose of this document is to formalise agreement for the Services to be provided as listed in Schedule 1.
- The Negotiator will provide the Services to the Client from the Commencement Date listed in Schedule 2, during the term of the agreement.
- The Services of the Negotiator are provided on a ‘No Win, No Fee’ basis, which means that the Negotiator will only be entitled to the Fees described in Schedule 3 if the Negotiator is successful in negotiating a deal whereby the Negotiator secures for the Client a total rent saving on commercial space that is equal to or greater than a minimum of six (6) months’ rent on a Property (including a free rental period or half rental payment period), with the total rent saving being calculated on reductions from the Property Owner’s expectations of the rent for the Property prior to the start of the negotiations carried out by the Negotiator.
- These Terms describe and govern the parties’ arrangements for these Services as follows:
- DEFINITIONS & INTERPRETATION:
- “Associate” means, in relation to the Client:
- an associate of the Client under sections 10 to 17 of the Corporations Act;
- a body corporate in which the Shareholder beneficially owns not less than 50% of the shares, securities or other rights granted by the body corporate entitling holders to distributions based on the profits, earnings or net liquidation proceeds of the body corporate;
- a limited partnership whose general partner is a related body corporate of the Client;
- a general partnership all of whose general partners are related bodies corporate of the Client;
- a trust of which a related body corporate of the Client is the responsible entity, trustee, manager or investment adviser of the trust;
- where the Client is a limited partnership, general partnership or a trust, any custodian of all or any of the assets of that limited partnership, general partnership or trust; or
- where the Client is an individual, the spouse or de facto partner, mother, father, brother, sister or child over the age of 18 of the Shareholder or the spouse of the Shareholder (including any adopted child); with spouse and de facto partner having the meaning set out in the Acts Interpretation Act 1901 (Cth).
- “Confidential Information” means any written or oral information that is provided by or disclosed directly or indirectly through any means that is not already in the public domain, and may include information about business processes, business affairs or financial information, personal information about employees or contractors, except when disclosure:
(i) is required by law or any regulatory authority; or
(ii) is made with the express written consent of the party providing the information; or
(iv) occurs when the party receiving the information can establish the information is in the public domain (other than through a breach by that party of its confidentially obligations under this agreement); or
(v) occurs when the party receiving the information has received the information from a third party who is entitled to disclose such information.
- “Consequential Loss” means any indirect or consequential loss or damage; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of this agreement and whether or not foreseeable at the time of entering into this agreement.
- Client’s Personnel” means any director, employee, independent contractor, agent, consultant or other representative of the Client.
- “Negotiator’s Personnel” means any director, employee, independent contractor, agent, consultant or other representative of the Negotiator who is directed to provide any Services under this agreement.
- “Commencement Date” means the date set out in Schedule 2 on which the Negotiator will commence providing the Services to the Client.
- “Corporations Act” means the Corporations Act 2001 (Cth).
- “End Date for Completion of Services” means the date set out in Schedule 2 which is the date by which the Client expects the Negotiator will have completed providing the Services.
- “Fees” means the success fees for the Services provided by the Negotiator that are described in Schedule 3.
- “GST” means the goods and services tax as defined in the A New Tax System (Goods and Services) Act 1999 (Cth).
- “Letter of Authority” means letter of authority from the Client to the Negotiator in the form set out in Schedule 4, which the Negotiator with provide to the Property Owner their real estate agents or consultants, real estate managers or representatives to confirm the authority of the Negotiator to act as the exclusive agent of the Client to negotiate deals for renting commercial space to be occupied by the Client.
- “Overdue Payment Interest” means the interest rate, which is calculated on a daily basis, that is the ‘General Interest Charge Rate’ set by the Australian Taxation Office.
- “Payment Date” means the earlier of (a) the date upon which the Client, an Associate or related body corporate enters into a contract for the lease or license to occupy of a Property, or (b) the date on which the Client should have entered into a contract for the lease or license to occupy of a Property but was unable to do so due to the fault of the Client.
- “Personal information” has the same meaning as set out in the Privacy Act 1988 (Cth) and includes information or an opinion about an identified individual, or an individual who is reasonably identifiable, such as a person’s name, phone number, email and residential address and other identifying information about a person.
- “Property” or “Properties” means any office space, retail space, warehouse space, factory space or any other commercial real estate.
- “Property Owner” means the legal or beneficial owner of a property, including any custodian of a property that may be owned by a partnership, general partnership or trust.
- “Related body corporate” has the meaning given to related body corporate in the Corporations Act.
- “Services”means the services described in Schedule 1.
- “Tax Invoice” means an invoice in a form that complies with the requirements of the GST legislation, for each taxable supply under this agreement.
- In this agreement unless the context requires otherwise:
- The singular includes the plural and vice versa.
- A reference to one gender includes a reference to all other genders.
- another grammatical form of a defined word or expression has a corresponding meaning.
- “Includes”, “including” and similar expressions are not words of limitation.
- A reference to a party that is a corporation includes a reference to all related corporations as that term is defined under the Corporations Act.
- Headings to clauses are included for the sake of convenience only and do not affect the interpretation of the clauses to which they relate.
- References to any statute or statutory provision includes that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute.
- This Agreement binds each party’s legal representatives, successors and assigns.
- Where a party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement will endure for the benefit of and bind all of them jointly and each of them severally.
- All amounts stated herein are in Australian Dollars.
- The Schedule forms part of this Agreement.
- In consideration of the Negotiator promising to use their best endeavours, to carry out the Services, the Client authorises the Negotiator to act on behalf of the Client to negotiate the rent and related deal terms for the lease or license to occupy Property, beginning on the Commencement Date until the End Date for Completion of Services, or such date as the agreement is terminated in accordance with these Terms, whichever first occurs.
- The Client will sign and deliver the Letter of Authority to the Negotiator, who may provide it to Property Owners or their real estate agents, property managers, consultants or representatives to confirm the Negotiator’s authority to act as agent of the Client, provided that the Negotiator will not act on the Letter of Authority in the event the Client subsequently terminates this agreement.
- The Negotiator agrees to provide the Services in accordance with these Terms. The Negotiator agrees to provide these Services in a professional manner and in accordance with generally accepted industry practice and standards.
- The Client agrees to promptly provide relevant information and review Properties submitted by the Negotiator for approval to proceed with the negotiations; in this agreement, time of the essence.
- The Client represents and warrants:
- they have the full legal capacity and authority to agree to these Terms;
- all information provided by the Client is accurate and not misleading; and
- they will provide all relevant information and material facts required for the Negotiator to carry out the Services in a timely manner.
- In this clause “material facts” means: (i) anything an average person would consider important to their decision whether or not to lease any Properties, or (ii) any fact that is important to the Client.
- The Client represents and warrants:
- Services, the Client agrees to pay the Negotiator the Fees in accordance with Schedule 3.
- The Client agrees to pay the Fees to Negotiator on the Payment Date in respect of a property where the Client:
- The Client agrees to pay the Fees if the Client is unable to complete and execute a lease or license to occupy of a property due to the fault of the Client.
- The Client agrees to pay the Fees if the Client, an Associate or a related body corporate enters into a contract for the lease or license to occupy of the Property within 12 months of the expiry or termination of this agreement, where the lease or licence obtained by the Client is substantially the same rental level or at lower rental levels as negotiated by the Negotiator.
- If GST is payable in respect of payments made by the Client to the Negotiator under this agreement, the amounts payable will be increased by the amount of the GST and the Negotiator will provide the Client with a Tax Invoice.
- If on the Payment Date the Client fails to pay the Fees to the Negotiator then the Client shall pay the Overdue Payment Interest to the Negotiator on the Fees, calculated on and from the date on which the Fees was due, and such monies will be a debt due from the Client to the Negotiator.
- All Fees and other monies due to the Negotiator must be paid by way of by direct deposit, cash, electronic bank transfer, or any other method of payment as accepted by the Negotiator from time to time for the purposes of this agreement.
The relationship under these Terms is that of principal and agent. These Terms do not make either party a partner or employee of the other. No act or omission of either party is to bind the other party except as expressly set out in these Terms.
- TERM AND THE EFFECT OF TERMINATION
- These Terms remain in full force and effect for the period set out in Schedule 2 unless terminated by either party as described in Schedule 2, provided that any termination of this agreement is without prejudice to either parties’ rights accrued, or obligations incurred prior to the effective termination.
- INFORMATION PROVIDED TO PERFORM THE SERVICES
The Negotiator agrees that they will:
- keep confidential and secure;
- not use directly or indirectly; and
- not disclose directly or indirectly,
any Confidential Information that the Client discloses to the Negotiator.
- The Negotiator will not disclose or allow access by any person or third party to any of the Confidential Information unless required to perform the Services in which case, the Negotiator will ensure that the recipient of the Confidential Information is under the same duty of confidentiality as the Negotiator is under these Terms.
- The Negotiator may be required, in certain circumstances, to disclose personal information in good faith in the following circumstances: by operation of law, including as required by planning and zoning law, real estate law or tax law; in the case of any threatened or potential emergency situation involving any risk or threat to the safety of any person; or in the case of any dispute or litigation where disclosure is necessary to protect the Negotiator, and the Negotiator’s Personnel.
- The confidentiality provisions of clause 8 survive the expiry or termination of this agreement until such time as the Confidential Information ceases to be confidential, as described in clause 2.2.
- The Negotiator will keep any personal information provided by the Client in a secure manner in accordance with Privacy Act 1988 (Cth) and the Australian Privacy Principles, in relation to the collection, use and disclosure of personal information by the Negotiator.
- The Negotiator may be required, in certain circumstances, to disclose personal information in good faith in the following circumstances: by operation of law, including as required by planning and zoning law, real estate law or tax law; in the case of any threatened or potential emergency situation involving any risk or threat to the safety of any person; or to supply the Services, including the disclosure of personal information to Property Owners, and their real estate agents, real estate managers, consultants or representatives.
- The Negotiator the right to disclose the name and any other personal information of any Seeker to any law enforcement authority or other competent authority or to any person for the purpose of legal proceedings, prosecution, and investigation of any breach, alleged breach of the law or this agreement.
- DISCLAIMERS & LIMITATION OF LIABILITY
- The Client acknowledges and agrees that:
- there is no guarantee or warranty that the Negotiator will be able to negotiate deals for leasing any Property that meets the needs and requirements of the Client;
- any real-estate, financial or investment advice provided by the Negotiator to the Client is of a general nature only whose preparation does not take into account the individual circumstances, objectives, financial situation or needs of the Client. The Client is advised to consult with their own independent financial and/or investment advisor;
- Negotiator is trained in dealing in real estate but are not qualified to determine the physical condition of any Property or any defects or improvements thereon and the Negotiator will not be liable for any defects, whether latent or patent, of any Property; and
- all information supplied by the Property Owner or their real estate agents, property managers, consultants or representatives may not have been verified and is not warranted by the Negotiator as being accurate and will be relied on by the Client at the Client’s own risk. The Client must make their own enquiries and analysis and to carry out their own due diligence to determine if any Property is suitable for their own particular purposes and suitable for their needs and requirements.
- Legislation may confer certain rights, warranties and guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law (“ACL”) in the Consumer and Competition Act 2010 (Cth). At no time are these statutory rights sought to be excluded.
- When the statutory rights apply, to the extent possible, the liability of the Negotiator in respect of any claim is limited to, at the option of the Negotiator:
- the supply of any services again; or
- the payment of the cost of having any services supplied again.
- Subject to clause 10.1 & 10.2, to the extent permitted by law, the Negotiator excludes all express or implied representations, conditions, guarantees, warranties and terms relating to the Services, except those set out in this agreement.
- The Client’s loss, damage, costs including legal costs, or expense whether direct, indirect, or incidental loss or damage or Consequential Loss, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by the Client or claims made against the Client, arising out of or in connection with the inability to access or use the Services, and the late supply of Services, even if the Negotiator has been expressly advised of the likelihood of such loss or damage.
- In any case, the Negotiator’s liability is limited at all times to the amount of the total invoiced fees paid by the Client for the Services.
- The Client acknowledges and agrees that:
10.6 Clause 10 survives the expiry or termination of this agreement.
- The Client will hold and keep indemnified the Negotiator and the Negotiator’s Personnel against all actions, suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against the Negotiator or the Negotiator’s Personnel (or both) in the course of or arising out of the proper performance or exercise of any of the powers, duties or authorities of the Negotiator under this agreement; or arising from any tortious act or omission or any breach of statutory duty by the Client or the Client’s Personnel (or both); or which may result either directly or indirectly from a breach of this agreement.
- If at any time any aspect of the Services is not reasonably acceptable to the Client, or the parties disagree for any reason in relation to the Services, the Client will immediately notify the Negotiator of any concerns that the Client has and will give a reasonable opportunity for the Negotiator to respond and address these concerns. Feedback and discussion are important features of the Services and it is up to the Client to provide such feedback in order to give the Negotiator an opportunity to resolve any issue quickly and effectively.
- If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both the Client and the Negotiator. At no time will any communications or discussions be made public, including but not limited to publishing such communications or discussions via any social media platforms. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
- In the event of any dispute in relation to the delivery of the Services that cannot be resolved, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each party agrees to pay its own costs.
- GOVERNING LAW
These Terms are governed by the laws from time to time in force in the state of Queensland, Australia. Both parties agree to unconditionally submit to the exclusive jurisdiction of the Courts of Queensland in the city of Brisbane for determining any dispute concerning these terms.
- MISCELLANEOUS PROVISIONS
- These Terms and the Schedules sets out the entire agreement between the parties and it replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter and these Terms and the Schedules cannot be modified or varied except by written agreement signed by each party.
- Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
- If a provision is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.
- Each party must promptly execute all documents and do all things necessary or desirable to give full effect to the arrangements set out in this agreement.
- This agreement will be effective when signed by both parties below or signed in counterparts (i.e., separately) on the date of the last party to sign.
|EXECUTED AS AN AGREEMENT: SIGNED for and on behalf of [Client]|
Item 1: Services
- Services to be provided as listed below:
- In respect to Properties approved by the Client, negotiate offers for lease with the Property Owners or their real estate agents, property managers, consultants or representatives for the purpose of obtain the optimum terms as to rental payments;
- Assisting in the preparation and delivery of draft lease documents to the [Client’s solicitor / property manager] or as otherwise directed by Client; and
- Assisting in the process of closing the transaction.
- The Negotiator is not authorised to enter into or sign a lease agreement for any Properties on behalf of the Negotiator.
- The Negotiator may allow other independent agents to act in conjunction with them in order to carry out the Services but only one fee will be payable in respect to the Services.
- The Negotiator is not authorized to enter into or sign a lease on behalf of the Client, unless they hold a power of attorney from the Client that provides such an authority.
- The Negotiator will not perform any other services for the Client other than as specified in this agreement.
Item 2: Additional professional services that are not part of the Services
- The following additional professional services are not included as Services under this agreement:
- Obtaining building/pest inspections; and
- Making inquiries or searches in relation to the town planning, commercial zoning or industrial zoning laws, regulations, ordinances and codes that control the type of activities a business may conduct in a particular area and the category of business that can occupy the zoned area.
Item 3: Disclosure by Negotiator
The Negotiator discloses that the Negotiator may receive the following fees, rebates, discounts or commissions in relation to Properties that are recommend to the Client:
The Negotiator will never accept any fees, rebates, discounts or commissions in relation to Properties that are recommend to the Client.
|Minimum Term, Commencement Date and Final End Date|
|Commencement Date: End Date for Completion of Services:|
(1) The Client and the Negotiator can agree in writing to end the term of this agreement early.
(2) For appointments of sixty (60) days or more, either party can terminate this agreement by giving thirty (30) days written notice, but the appointment must run for at least sixty (60) days unless both parties agree to an earlier end date.
Property Owner’s expectations of the rent for the Property
- In this agreement the “Property Owner’s expectations of the rent for the Property” means the expected rent for the Property that is provided by the Property Owner or their real estate agents, real estate managers, consultants or representatives to the Negotiator in writing, or is otherwise available to the Negotiator, at the start of the negotiations conducted by the Negotiator in accordance with this agreement.
Negotiator’s success fee
- The Client acknowledges that the Negotiator will be entitled to the success fee, which is calculated as a fifteen percentage (15%) of the total rent saving, provided that the Negotiator secures a minimum discount of six (6) months’ rent from the Property Owner’s expectations of the rent for the Property (including a free rental period or half rental payment period).
- The total rent saving being calculated as follows:
- For example:
- if the Negotiator achieves rent free period that is a total rent saving of 6 months’ rent that is, by way of an example, a discount of $20,000.00 (excluding GST, if any) from the Property Owner’s expectations of the rent for the Property, then the Client pays the Negotiator 15% of $20,000.00, which equals $3,000 + GST; and
- if the Negotiator achieves rent free period that is a total rent saving of 6 months’ rent that is, by way of an example, a discount of $20,000.00 (excluding GST, if any) from the Property Owner’s expectations of the rent for the Property; and also achieves a further 50% discount for the rent of a further 6-months, which is a further discount of $10,000.00 (excluding GST, if any); then the total rent saving is $30,000.00 (excluding GST, if any); then the Client pays the Negotiator 15% of $30,000.00, which equals $4,500 + GST.
- In the event the Client terminates the agreement before the End Date for Completion of Services, the Client will pay the Negotiator liquidated damages of $250 + GST. The Parties acknowledge this termination payment is a genuine pre-estimate of the loss that the Negotiator will incur as the result of the early termination of the agreement.