1.1 Capitalised terms used in these Terms & Conditions have the following meanings:
Agent means the real estate agent or Agency representative applying for or using the Service.
Agency means the real estate agency applying for or using the Service.
Agreement means the terms and conditions contained herein.
Appraisal means a valuation or rental assessment of a property by You including a visit to the property.
Business day means a day other than a Saturday or Sunday on which banks are open for business generally in Sydney, New South Wales.
Client means the owners, or owners’ authorised representatives of a property registered with Perfect Agent.
Fees means Referral Fees and any other amount payable to the Company under this Agreement, including without limitation, the other amounts payable specified in clause 5.
Intellectual Property Rights means all and any patents, patent applications, trademarks, service marks, branding, logo trade names, registered designs, unregistered design rights (including those associated with the Site), copyrights, know how, trade secrets and rights in confidential information, and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.
Lead means information with respect to any property and/or contact details provided by Perfect Agent.
Perfect Agent or the Company means Perfect Realty Pty Ltd (ABN: 19 605 152 412) t/a Perfect Agent.
Related Entity means any person, agent or entity which sells, manages or leases a property and is a member of your franchise group, commercial entity or operating under the same brand.
Service means the provision of Leads by Perfect Agent.
Site means www.perfectagent.com.au or any other website operated by the Company.
2.Agent and Agency to be bound
2.1 The Agent warrants that they are an authorised representative of the Agency, whether the Agent is a holder of a valid real estate licence or is an employee, contractor or officer of the Agency.
2.2 By entering this Agreement, the Agent agrees to be bound in a personal capacity and confirms that he/she has the authority to bind the Agency.
3.Agreement subject to change
3.1 The terms of this Agreement can be changed by the Company at any time upon the provision of seven days’ written notice to You.
3.2 If You continue to use the Site and the Service after receiving written notification of an amendment to this Agreement, You will be deemed to have accepted the updated Agreement.
4.Provision of Service and grant of licences
4.1 Subject to this Agreement and in consideration of the payment of Fees when due, the Company agrees to provide the Service to You for use in connection with the marketing and provision of real estate services to property owners referred to You by the Company.
4.2 In order to use the Company’s Service and systems, You must conform to quality standards and other guidelines which may be specified or communicated on the Site from time-to-time.
4.3 You may not use the Company’s Service except as expressly stated in this Agreement.
4.4 You must not do anything to contest or impair any of the Company's rights in the Site or its systems or any other Intellectual Property Rights belonging to the Company, and may not create or use any composite mark containing a trade mark of the Company or any mark substantially identical to or deceptively similar to a trade mark of the Company, without the prior written consent of the Company.
4.5 You acknowledge and agree that the Company retains all rights over the Site, systems and the Company’s Intellectual Property Rights and that all use is for the benefit of the Company and any goodwill arising from use accrues for the benefit of the Company. No right, title or interest (except as set out in this Agreement) is transferred to You by the operation of this Agreement.
5.1 By accepting these Terms & Conditions, You agree to pay the following Fees:
5.1.1 Referral Fees:
a In the case of the sale of a property referred to You by Perfect Agent, a sum equal to 20% of the real estate agent sales commission is payable to Perfect Agent. The Referral Fee is payable to the Company on the earlier of completion or settlement of the sale contract;
b In the case of securing a mandate to manage, or the rental of a property referred to You by Perfect Agent, one week’s rent payable to the Company on the earlier of:
commencement of the rental period; or
receipt by You of the rental commission from the property owner.
c For the purposes of this Agreement a property is deemed to have been referred to You by Perfect Agent if the Agent, the Agency or any of the Agency's authorised representatives:
submit a bid for that property; or
are provided with a Lead for that property.
d A property is deemed to have been referred to You by Perfect Agent if the circumstances set out in clause 5.1.1c) are satisfied, regardless of whether:
the Lead was originally referred as a sale or a rental or an appraisal;
the bid is accepted by the property owner;
the property owner is an existing client of the Agency or a Related Entity, or has made previous enquiries with the Agency or a Related Entity regarding the property, except where you have satisfied clause 5.1.4;
the sale or rental is concluded or management secured by another authorised representative of the Agency or a Related Entity;
the sale or rental is concluded or management secured by another authorised representative of the Agency, a Related Entity or any third party (including but not limited to property management companies) to whom you referred the Lead;
the Agent or authorised representative who was provided the Lead no longer works for the Agency;
the property owner is someone other than the person registering the property with Perfect Agent (for example where a partner of the owner registers the property or where the owner is a company or trust); or
regardless of whether another agent(s) and/or agency was engaged by the Client prior to you.
5.1.2 Other amounts payable:
a Payments not made by the due date will accrue interest at a rate of 1.5% per month, pro-rata (or the highest rate permitted by law, whichever is the lesser) from the due date, until payment date.
b You agree to reimburse the Company for any costs, expenses, or fees expended by the Company in connection with any collection efforts against You, including reasonable internal and external legal or collection fees.
c Failure to notify Perfect Agent within three business days:
of an authority to lease, manage or sell a property in accordance with clause 5.1.5(a); or
that a property has been sold or leased in accordance with clause 5.1.5,
will incur a property-tracking fee of $185 per failure to notify at listing and successful transaction.
a Referral Fees and any other amounts quoted in this Agreement are GST exclusive amounts, with the exception of referral fees for rentals which are GST inclusive.
b Terms used in this clause 5.1.3 have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999.
c A party must pay GST on a Taxable Supply made to it under this Agreement. It must do so at the same time and in the same manner as it is required to pay the consideration for the Taxable Supply to which the GST relates.
d A party making a Taxable Supply to another party under this Agreement must issue a tax invoice in the format required by law to the other party for the Taxable Supply. The tax invoice must set out the amount of the GST payable by that other party. The tax invoice must be issued at the same time as the consideration for the Taxable Supply is due.
e Each party must do anything reasonable to assist the other party to comply with its GST obligations in relation to this Agreement.
5.1.4 The Company will accept an existing relationship as a basis to not charge a Referral Fee if You:
a notify the Company, setting out the grounds (see below for details of acceptable grounds) on which You claim an existing relationship, no later than 3 business days following provision of the Lead; and
b provide the Company with written evidence acceptable to the Company to support the grounds on which You claim an existing relationship within five business days following provision of the Lead, otherwise a Referral Fee is payable by You. Acceptable grounds and associated evidence include, but are not limited to, the following:
A current, signed property management authority dated earlier than the provision of the Lead;
A current, signed sales authority dated earlier than the provision of the Lead;
An Appraisal within the 30 days prior to the provision of the Lead:
A copy of the valuation sent to the property owner, or property owners’ representatives including evidence of date sent;
Listing sheet or appraisal notes, written during the visit outlining specific characteristics of the property, including evidence of the date;
Screen image of an email communication between You, and the Client referencing the appraisal appointment or valuation;
A Record of an Appraisal appointment from Customer Relationship Management software. The date stamp against the entry in the client record must not be manually generated;
Phone record showing calls between the Agency, and the Client; or
Screen image of an internal email communication referencing the date, the property address and the Appraisal.
6. Agent and Agency responsibilities
6.1 The Agent agrees to:
6.1.1 disclose the terms and conditions of this Agreement and the fact that he or she has entered into this Agreement to the Agency and any other authorised representatives of the Agency using, or likely to use the Service;
6.1.2 provide accurate details to the Company for inclusion on the Site - including, but not limited to, the Agent’s name, contact details, including: the Agency's telephone number; Agent’s mobile phone number and applicable email address; and any other information reasonably required by the Company from time to time;
6.1.3 undertake his or her own evaluation of Leads;
6.1.4 promptly consider and respond to any Leads in good faith;
6.1.5 promptly, and in any event within no later than 3 business days, advise Perfect Agent in writing:
188.8.131.52 upon signing an authority to manage a property, or list a property for sale or rent with a property owner referred to You by Perfect Agent;
184.108.40.206 upon signing a contract of sale or lease agreement with respect to a property referred to you by Perfect Agent, including sale price and expected completion date in the case of a sale, and weekly rental and lease commencement date in the case of a rental;
220.127.116.11 if relevant, when a contract of sale becomes unconditional; and
18.104.22.168 if applicable, of the early payment of any commission due to the Agent or Agency.
6.1.6 pay Perfect Agent the Fees.
6.2 The Agency agrees to:
6.2.1 honour any offers made by the Agent;
6.2.2 within 3 business days, notify the Company if the Agent leaves the Agency and provide details of a replacement authorised representative;
6.2.3 pay the Fees in the event that the Agent does not for whatever reason (for example, where the Agent ceases to be employed by the Agency);
6.2.4 disclose the terms of this Agreement and the fact that it has entered into this Agreement to any other authorised representative of the Agency using, or likely to use the Service
7. The Company’s responsibilities
7.1 The Company will update Your details when You provide us with new information or as otherwise requested by You.
7.2 The Company does not independently verify the information provided by property owners or other Site users and accepts no responsibility arising from any incorrect information provided to You by the Company or otherwise obtained by You from the Site.
7.3 You acknowledge that the Company is under no obligation to provide Leads to You and that any Leads will be provided on a non-exclusive basis.
8. Suspension and termination
8.1 In the event Fees are not paid in full when due, for any reason or in the absolute discretion of the Company, the Agent or Agency has not complied with this Agreement, the Company may suspend all or any portion of the Service provided to you until such time as all Fees have been paid and/or, in the opinion of the Company, the non-compliance has been rectified.
8.2 In the event of suspension of the Service for non-payment of Fees, any re-instatement of the Service by the Company may be conditional upon satisfactory assurance of Your ability to pay for the Service.
8.3 Any party may terminate this Agreement by giving the other parties 30 days written notice.
8.4 Suspension or termination of this Agreement shall not relieve You of the liability to pay any Fees.
8.5 In the event that the Company (in its absolute discretion) determines that You have failed to:
8.5.1 pay Fees when due; or
8.5.1 comply with a term or condition of this Agreement, then, without prejudice to its rights under clause 8.1, the Company may terminate this Agreement immediately and the Agent, the Agency and any Related Entities will no longer be entitled to receive the Service (or any similar services) from the Company unless notified otherwise by the Company.
9.1 The Agent represents, warrants and undertakes to the Company that it is authorised to act on behalf of the Agency.
9.2 The Agency represents, warrants and undertakes to the Company that it holds to the extent necessary a valid real estate licence.
9.3 The Agent and the Agency each represent, warrant and undertake to the Company that:
9.3.1 they will not infringe any third party's Intellectual Property Rights;
9.3.2 they will not expressly state or imply any relationship or affiliation with the Company or endorsement by the Company except as expressly permitted by this Agreement; and
9.3.3 they will not do anything that has, or is likely to have (either directly or indirectly), the effect of defaming, disparaging or adversely effecting the integrity or reputation of the Company, including by directly or indirectly placing or allowing the placement of offending content on the Site.
10. Guarantees and warranties
10.1 The Agent and Agency each acknowledge and agree that they are solely responsible for the information, data and other content they provide to the Company and the Company is entitled to operate on the assumption that the information it receives is accurate and current in all respects and that they have the necessary rights of or authority from any third party with a proprietary interest in the information to deal with this information and provide it to the Company.
10.2 The Agent and Agency will continually indemnify the Company against any claim or proceeding that is made, threatened or commenced, and against any liability, loss, damage, cost or expense (including reasonable legal costs on a full indemnity basis) that the Company incurs or suffers as a result of:
10.2.1 any claims brought by or on behalf of any third party relating to information or content provided to the Company by the Agent or Agency (including claims in respect of misleading or deceptive conduct or infringement of any third party’s Intellectual Property Rights); or
10.2.2 any wilful, unlawful or negligent act or omission by the Agent, Agency or the employees, agents, authorised representatives and subcontractors of the Agency.
11.Disclaimer of warranties and limitation of Liability
11.1 To the maximum extent permitted by law, the company will not be liable to the Agent, Agency, any related bodies corporate, affiliates, Related Entity or any employees, authorised representatives, agents or subcontractors of the same for any direct, indirect, incidental, consequential (including among other things loss of revenue or profits, loss of data, third party claims or loss of good will), punitive or exemplary damages of any kind (whether based on breach of contract, tort (including negligence), strict liability or otherwise) incurred by the Agent or Agency in connection with this Agreement, even if the Agent or Agency has been advised that such damages are possible.
11.2 Where the laws of any country or state in which this Agreement operates implies into this Agreement any term, condition or warranty, and those laws avoid or prohibit provisions in a contract excluding or modifying the application of the term, condition or warranty, then the term, condition or warranty shall be deemed to be included in this Agreement provided that the liability of the Company, its officers, directors, employees, agents and related bodies corporate for a breach of any such term, condition or warranty, including any economic or consequential loss which the Agent or Agency may sustain shall be limited, at the option of the Company, to the resupply of the Services again, or the payment of the cost of having the Service resupplied.
12.1 Independent contractors. The Company is an independent contractor. The Company does not have the right to act as Your agent, representative or partner and neither the Agent nor the Agency has the right to act as an agent, representative or partner of the Company. This Agreement must not be construed to create an association, agency, joint venture or partnership between the Company and the Agent or Agency.
12.2 Waivers. A right created by this Agreement can only be waived if the waiver is in writing and signed by the party entitled to that right. Delay by a party in exercising a right does not amount to a waiver, and a written waiver will not operate as a subsequent waiver of the same right or of any other right of that party.
12.3 Assignment. Neither the Agent nor the Agency may assign, sub-licence or transfer (or attempt to assign, sub-licence or transfer) its rights or obligations under this Agreement (including the right to receive the Service) to any other party (including a Related Entity) without the prior written consent of the Company. Any assignment or sub-licence without the prior written consent of the Company shall be null and void. This Agreement may be assigned by the Company without the consent of the Agent or the Agency.
12.4 Enforceability. Each provision of this Agreement is individually severable. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected. The legality, validity and enforceability of the provision in any other jurisdiction will not be affected.
12.5 Disputes. In the event of a dispute between the parties arising in connection with this Agreement, each party must nominate an officer of equivalent seniority who must meet in good faith to resolve the dispute. If they cannot resolve the dispute within 15 days, the Agency’s chief executive officer (or equivalent) and an officer of equivalent seniority from the Company must meet in good faith to resolve the dispute. If the dispute is not resolved within a further 15 days, either party may take any action it deems appropriate.
12.6 Governing law. This Agreement is governed by the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there without regard to the principles of conflicts of law.
12.7 Entire agreement. This Agreement contains everything the parties have agreed to in relation to the subject matter it deals with. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this Agreement was executed.
12.8 Joint and individual liability and benefits. Except as otherwise set out in this Agreement, any covenant, agreement, representation or warranty under this Agreement by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually.