1.Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Agreement means these terms and conditions, including the Contract Particulars, and any terms incorporated by reference to the Website;
BMP means BuyMyHome (Agency) Pty Ltd (ACN 143 987 722) and its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth);
Business Day means a day, not being a Saturday, Sunday or Public Holiday in the Jurisdiction;
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise;
Commencement Date means the date the Customer accepts this Agreement and pays the Service Fee to BMP;
Consequential Loss means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
Conveyancing Services means the services of a conveyancer to act on behalf of the vendor of the Property promoted by BMP;
Contract Particulars means those particulars inputted at the time of establishing the Customer’s online account with BMP, as may be amended from time to time in accordance with this Agreement;
Consumer Law means the Australian Consumer Law or any other applicable consumer protection laws or regulations of a State or Territory;
Customer means the Customer specified in the Contract Particulars including that person’s or those persons’ agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth);
GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) 1999 (Cth);
Jurisdiction means the State of Victoria;
Listing Party means a third party website provider which lists the Property for sale or lease (as applicable) on its website;
Loss means any loss or damage whatsoever and howsoever caused and includes, without limitation, injury to or death of any person, damage to any real or personal property (including intellectual property) of any person, loss of income or profits, actual or prospective liability to any third party, any legal costs and any indirect or Consequential Loss or damage;
Property means the property specified in the Contract Particulars;
Service Fee means the fee for the Services as specified on the Website as at the Commencement Date for the Services;
Services means the services to be provided by BMP to the Customer as specified on the Website as at the Commencement Date and confirmed in the tax invoice provided to the Customer for the Service Fee, and any other services agreed between BMP and the Customer from time to time; and
Website means BMP’s website at www.buymyplace.com.au.
In this Agreement, unless the context otherwise
(a) a reference to time is a reference to time in the Jurisdiction;
(b) clause and subclause headings are for reference purposes only;
(c) the singular includes the plural and vice versa;
(d) a reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it; and
(g) when a thing is required to be done or money is required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day.
2.Provision of Services
The Customer appoints BMP to provide the Services and BMP accepts that appointment on the terms of this Agreement.
2.2 Provision of Services
In this Agreement, unless the context otherwise
(a) Subject to clause 3, BMP will use its reasonable endeavours to perform the Services in a timely manner. Any change to the Services requested by the Customer will be at the absolute discretion of BMP and may be subject to additional fees payable by the Customer.
(b) There is no minimum term for this Agreement. The Property will be listed until the earlier of: (i) the Customer notifying BMP the Property has been sold or otherwise instructing BMP to remove the listing, or (ii) 2 years from the Commencement Date when BMP may remove the listing at its absolute discretion. All requests to remove listings must be addressed to firstname.lastname@example.org or via an online submission through the BMP Client Dashboard on the Website. BMP requires at least 3 business days’ notice of a Customer’s instruction to remove a listing.
2.3 Third parties
(a) The Customer authorises BMP to:
(i) list for sale or lease (as applicable) the Property on Listing Party websites and the Customer agrees to be bound by the terms and conditions of those Listing Parties for such listings. BMP does not guarantee the availability, continuity or performance of these Listing Party websites; and
(ii) procure any third or related party to provide any part of the Services, as agent for the Customer.
(b) The Customer acknowledges and agrees the provision of the Services may be subject to the availability of third parties, including Listing Parties, in relation to which BMP has no or limited control over.
(a) To the extent BMP procures any third party to provide any part of the Services, while BMP will take reasonable measures to procure those third parties to properly execute their commitment in a proper and timely manner, BMP does not act as broker or agent for those third parties and will not be responsible for any delay or failure by any third party to do so.
The Customer must:
(a) provide the following information to BMP so BMP can appropriately provide the Services;
(i) photographs of the Property (if required for the Services),
(ii) completed listing application form with Property details,
(iii) completed payment form,
(iv) photographic identification of each Customer, or, if the Customer is a corporation, photographic identification of a director along with a copy of the current ASIC Company Extract demonstrating that the individual is a director of the Customer;
(v) rates notice or copy of the Certificate of Title of the Property; and
(vi) if the Customer is not the registered proprietor of the Property, proof of their authorisation to handle the sale or lease on the proprietor’s behalf. (For example: a copy of the power of attorney, or proof of directorship of the company that owns the property, or copy of the trust deed if the property is held on trust).
(b) promptly provide BMP with any information that may affect the manner, timing or cost of performing any Services;
(c) not impede or interfere with BMP or its personnel in the performance of any Services (other than on an urgent basis where the health or safety of any person or any property may be at risk).
(d) where necessary, provide BMP with sufficient access to the Property to enable BMP to perform the Services;
(e) not under any circumstances enter its contact details including contact name, contact number, email address etc on a listing with a Listing Party; and
(f) act in good faith and in a professional and courteous manner towards BMP in relation to this Agreement and the Services.
‘Failure to provide this information does not discharge the Customer’s financial obligations under this Agreement.
(a) The Customer must pay the Service Fee in full, and without deduction, retention or set-off of any kind before BMP is obliged to provide the Services.
(b) The Customer acknowledges that BMP is under no obligation to provide the Services until it has confirmed the Customer’s acceptance of this Agreement and payment of the Service Fee.
Each of the parties represents and warrants to the other that:
(a) it has the requisite power and authority to enter into this Agreement and to carry out the obligations contemplated by this Agreement;
(b) this Agreement has been duly executed by it and is a legal, valid and binding Agreement enforceable against it; and
(c) it has not, and it has not received notice that a third party has, taken any steps in relation to it to wind it up, appoint a controller or administrator, seize or take possession of any of its assets or make an arrangement, compromise or composition with any of its creditors.
5.2 Customer’s warranties and acknowledgements
(a) The Customer warrants to BMP that it is one of the following:
(i) the registered proprietor of the Property, acting with the authority of all other joint proprietors or tenants in common;
(ii) the director of the registered proprietor of the Property acting with the approval of the board of directors of the registered proprietor;
(iii) acting pursuant to a legally enforceable power of attorney from the registered proprietor of the Property that has not been revoked;
(iv) the trustee of a trust that is the registered proprietor of the Property and is acting in accordance with the relevant trust deed;
(v) acting as a mortgagee in possession of the Property;
(vi) acting as the executor of or pursuant to a grant of probate in relation to the estate of the registered proprietor that authorises the Customer to sell the Property; or
(vii) acting pursuant to an order of a court of a State or Territory in Australia that authorises the Customer to sell the Property.
(b) The Customer warrants that any information provided to BMP in the Contract Particulars or during the course of the Services is accurate, complete, and not misleading in any way. The Customer acknowledges that BMP is not responsible for verifying any information provided by the Customer.
(c) The Customer acknowledges and agrees that:
(i) BMP assists the Customer to conduct a private sale or lease (as applicable) of the Property by providing marketing services and does not act on behalf of the Customer in relation to a sale or lease (as applicable);
(ii) BMP is not acting as a real estate agent, or any equivalent designation, of the Customer, for the purposes of any State or Territory legislation;
(iii) in particular, for the purposes of the Property Stock and Business Agent Act 2002 (NSW) and the Agents Act 2003 (ACT), BMP does not act on behalf of the Customer in relation to a sale and therefore will not conduct preliminary physical inspection of the Property; and
(iii) BMP is not responsible for, and makes no guarantee of, a successful the sale or lease (as applicable) of the Property by the Customer.
5.3 BMP’s warranties
To the extent permitted by law, all warranties and conditions that are capable of exclusion and would, apart from this provision, form part of this Agreement, are expressly excluded.
6.Third party conveyancing services
In this clause 6, Conveyancer means Lawlab Pty Ltd or any related entity of Lawlab Pty Ltd, trading as “Lawlab” or “Lawlab Conveyancing”.
6.2 Terms and conditions
Where the Customer makes a request to acquire Conveyancing Services through the facility made available by BMP for the purpose, the Customer:
(a) acknowledges that BMP is not the provider of the Conveyancing Services, and that the Conveyancing Services are provided by the Conveyancer;
(b) the terms on which the Conveyancing Services will be supplied are those terms communicated to the Customer by the Conveyancer or as otherwise agreed;
(c) represents and warrants that the Customer is authorised to acquire the Conveyancing Services for and on behalf of the proprietor of the Property on the terms of this Agreement;
(d) appoints BMP:
(i) to refer the Customer’s relevant contact details, including details of the Property and details of the proprietor of the Property, to the Conveyancer (Referral); and
(ii) to hold an amount equal to the Conveyancing Services Fee (Conveyancing Payment), paid to BMP by the Customer for the purpose of applying same to the Conveyancing Services Fee, as agent for the Customer and either:
(A) at BMP’s election:
(i) pay the Conveyancing Services Fee from the Conveyancing Amount (less any Referral Fee) when due and payable to the Conveyancer upon provision of the Conveyancing Services; or
(ii) depositing the Conveyancing Payment with the Conveyancer in anticipation of the Conveyancer performing the Conveyancing Services; or
(B) to the extent not otherwise paid to the Conveyancer in accordance with foregoing, BMP returning same to the Customer within 10 business days of a request by the Customer to do so;
(e) agrees and acknowledges that BMP will receive a financial benefit from the Conveyancer (Referral Fee) should the Conveyancer provide Conveyancing Services for the Property arising from the Referral; and
(f) acknowledges and agrees that, if so agreed between BMP and the Conveyancer, BMP may retain the Referral Fee from the Conveyancing Payment, provided that the Conveyancer agrees with BMP that neither the Customer nor the proprietor of the Property will have any additional liability to the Conveyancer for payment of the Conveyancing Services Fee beyond the Conveyancing Payment (less the Referral Fee);
(g) agrees and acknowledges that none of BMP, nor its officer, employees or agents make any representation or warranty regarding the Conveyancer or the Conveyancing Services, including the Conveyancer’s licence or authority at law to provide the Conveyancing Services or the standard or quality of the Conveyancing Services); and
(h) indemnifies BMP, its officers, employees and agents, for any loss or damage suffered in connection any claim by, or on behalf of, the Conveyancer, whether in contract, tort or otherwise, arising from any act, omission or representation of the Customer or proprietor of the Property.
6.3 Limitation of liability
Without limiting the effect of clause 9, to the fullest extent permitted by law, BMP will not be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for or relating to the performance of the Conveyancing Services or any other act or omission by the Conveyancer.
This clause 6 will survive termination of this Agreement.
(a) All intellectual property rights including, without limitation, trademarks, service marks, trade names, patents, designs, copyright and other rights used in the provision of the Services or embodied in the Website (whether registered, registrable or not) (Intellectual Property Rights) are the sole property of BMP and must not be used without express written consent.
(b) The purchase of Services under this Agreement does not confer on the Customer any licence or assignment of any Intellectual Property Right throughout the world that subsists in the Services, in the Website or is otherwise held by BMP.
(c) The Customer must not reproduce, copy, edit, publish, transmit or upload BMP’s materials in any way without BMP’s express written permission.
(a) BMP may terminate this Agreement by written notice to the Customer if the Customer:
(i) breaches any term of this Agreement and the breach is not capable of remedy or the Customer does not remedy that breach within fourteen (14) days of written notice by BMP;
(ii) becomes insolvent, or commits any act of insolvency, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed (an “Insolvency Event”);
(iii) being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(iv) being a natural person, dies.
(b) If BMP gives the Customer a notice under clause 8(a):
(i) any and all sums then outstanding will become immediately due and payable to BMP if the Customer suffers an Insolvency Event, or defaults in paying any other sums due to BMP, notwithstanding the provisions of any other clause in this Agreement;
(ii) BMP may, in addition to terminating this Agreement:
(I) retain the Service Fee and any other moneys paid by or on behalf of the Customer;
(II) be regarded as discharged from any further obligations under this Agreement; and
(III) pursue any additional or alternative remedies provided by law.
(c) Subject to clause 2.2(b), either party may terminate this Agreement at its convenience after the first anniversary of the Commencement Date by written notice to the other party.
9.Limitation of liability
(a) Except where legislation prevents BMP’s liability from being limited, or where a limitation of liability would otherwise render BMP liable to a penalty, BMP’s liability in connection with the provision of Services is limited, to the extent permitted by law, to any one of the following as determined by BMP in its sole discretion:
(i) BMP providing the Services again; or
(ii) BMP refunding the Service Fee paid by the Customer.
(b) To the extent the law permits and notwithstanding any other clause of this Agreement, BMP excludes all liability whatsoever to the Customer for any Consequential Loss.
(c) Nothing in this Agreement seeks to limit, restrict or exclude any of the Customer’s rights to the extent that they cannot be limited, restricted or excluded under any applicable Consumer Law.
The Customer agrees to indemnify, and keep indemnified, BMP from and against any Loss or claims, including any third party claims, arising out of a breach of this Agreement by the Customer or any person authorised to represent the Customer.
Except where legislation cannot be excluded or would make this clause illegal, or where the inclusion of this clause would otherwise make BMP liable to a penalty, the Customer releases BMP from any claim that is made against BMP for damages or otherwise in respect of any Loss, damage, death or injury arising from negligence or otherwise caused directly or indirectly by or arising from the provision of Services except to the extent that such Loss, damage, death or injury has been caused by BMP.
If any provision of this Agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable, the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired.
12.2 Variation and assignment
This Agreement may be varied by agreement between the parties in writing or verbally (where sales agent of BMP). The Customer must not assign its rights under this Agreement without BMP’s prior written consent.
12.3 Governing law and jurisdiction
This agreement is governed by the law of the State of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and waives any right to claim that those courts are an inconvenient forum.
12.4 GST and other taxes and duties
(a) If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
(b) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
(c) This clause is subject to any other specific agreement regarding the payment of GST on supplies.
(d) Unless otherwise stated, any reference in this Agreement to a fee, cost, expense or other similar amount is a reference to that amount exclusive of GST.
Waiver by BMP of a breach of this Agreement or of any right or power arising on a breach of this Agreement must be in writing and signed by BMP. A right or power created or arising on a breach of this Agreement is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
12.6 No right to offset
No amount owing whether present, future, actual, contingent or prospective and on any account whatsoever by the Customer to BMP may be offset against any amount owing whether present, future, actual, contingent or prospective of the Customer to BMP hereunder on any other account whatsoever.
12.7 Third parties
This Agreement confers rights only upon a person expressed to be a party, and not upon any other person.
12.8 Entire Agreement and inconsistency
(a) This Agreement expresses and incorporates the entire agreement between the parties in relation to the provision of the Services and the Customer agrees that this Agreement will in all circumstances prevail over any other document, or other terms.
(b) Subject to clause 12.8(c), this Agreement supersedes and excludes all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the provision of Services including but not limited to those relating to the performance of those Services or the results that ought to be expected from the Services.
(c) If there is an inconsistency between any other terms agreed by the Customer and BMP in writing and/or this Agreement, the terms agreed by the Customer and BMP in this Agreement will prevail to the extent of any inconsistency.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
(b) The Customer authorises BMP to use all information, including personal information, that the Customer provides to BMP and authorises BMP to share this information with third parties where such disclosure is reasonably required for BMP to provide the Services or required by law.
(c) BMP will take reasonable steps to preserve the security of the Customer’s personal information.
This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same document.