1. Definitions and interpretation
1.1 Definitions
The following definitions apply unless the context requires otherwise.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria, Australia.
Building Contract means an agreement between the Client and the Contractor to carry out building works at the associated address.
Service Fee means Amount Outlined in the “Confirm YNH Fee Allowance” Field
Confidential Information means the existence, subject-matter and terms of this document and all information, documents, material, data and technology disclosed or provided in any form by or on behalf of a party to another party in connection with this document, its subject-matter or the Discloser’s affairs.
Contract of Sale has the meaning given in clause 2.3(a)(ii).
Discloser means the party who owns Confidential Information.
Governmental Agency means any government or any governmental, semi-governmental, fiscal, monetary, judicial or statutory agency, authority, tribunal, commission, body or other entity, with power, authority or jurisdiction in any part of the world.
GST has the meaning given by section 195-1 of the GST Act or any replacement or other relevant legislation and regulations.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
Offer means any offer received by the YNH from prospective buyers in relation to the Property which are equal to or exceed the Minimum Purchase Price.
Property means the land being referred to in the "Project Site Address" field above.
Recipient means the party in receipt of Confidential Information.
1.2 Interpretation
In this document, unless the context requires otherwise:
(a) the singular includes its plural and vice versa.
(b) words denoting any gender include all genders.
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) headings are for convenience only and do not affect interpretation;
(e) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(f) a reference to a party to this document includes its successors and permitted assigns;
(g) a reference to a particular day or time is to that day or time in Victoria, Australia;
(h) a reference to any agreement (including this document) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;
(i) a reference to a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to this document;
(j) a reference to this document includes any schedules and annexures to this document;
(k) a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible or tangible form;
(l) a reference to dollars or $ is to Australian currency;
(m) a reference to legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(n) words such as including or for example do not limit the meaning of the words preceding them;
(o) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally; and
(p) nothing in this document is to be interpreted against a party solely on the ground that the party or its advisers drafted it.
1.3 Business Days
Unless expressed to the contrary in this document, if the day on or by which a party must do something under this document is not a Business Day, the party must do it on or by the next Business Day.
1.4 Consents or approvals
Unless expressed to the contrary in this document, if the doing of any act, matter or thing under this document is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.
2. Operative provisions
2.1 Service Fee
(a) The Contractor must pay the Agent the Service Fee if all of the following conditions are satisfied:
(i) the Agent introduces the Contractor to the Client and/or the Agent introduces the Client to the Contractor.
(ii) the Contractor enters into a Building Contract to carry out works at the Property with the Client.
(iii) the Client initiates building works by paying the first progress claim scheduled in the Building Contract.
(b) the Service Fee will be payable in equal instalments in line with the progress payments scheduled in the Building Contract. The number of installments must be agreed, in writing between both parties, prior to commencement of works on site. If no agreement is made in writing, the number of installments shall be set as three.
(c) the Contractor will include the Agent in all correspondence requesting monies for progress payments scheduled in the Building Contract.
(d) Service Fee instalments are payable by the Contractor to the Agent within 10 working days of invoicing the Client for the associated progress claim. Services fees are therefore not dependant on client monies being received by the builder.
(f) failure to pay the Service Fee within the time specified above will result in the Contractor incurring late penalties of 10% per week.
(g) the Contractor will be liable to pay subsequent Service Fees to the Agent for all building contracts entered between the Client and the Contractor within 60 months of the date of this agreement.
(i) Subsequent Service Fees will be valued at 1.5% of the associated building contract and will be payable in three equal instalments, as per the aforementioned terms.
2.2 Advertising and promotional material
(a) The Contractor consents to the content and placement of all advertising and promotional material by the Agent
(b) The Agent acknowledges and agrees that:
(i) all advertising and promotional expenses and other expenses incurred by the Agent in relation to the Building Contract are included in the Service Fee.
(ii) the Contractor is not liable to pay any separate advertising and promotional expenses, or other expenses incurred by the Agent unless the parties agree otherwise in writing.
2.3 Agent’s obligations
During the currency of this document, the Agent must:
(a) ensure that it acts ethically and complies fully with this document and all applicable laws, requirements and industry codes and rules relating to the business and activities carried on by the Agent.
2.4 Termination
(a) The Agent may terminate this document immediately at any time and without notice to the Contractor if any of the following events occur:
(i) any default in the performance of the Contractors obligations under this document;
(ii) any default under this document resulting from failure:
(A) to commence performance of the Contractors obligations under this document;
(B) to perform the Contractors obligations regularly, diligently or in a competent manner; or
(C) to perform any provision of, or liability under, this document;
(iii) material non-compliance by the Contractor with or the fact of material inaccuracy of any representation made or deemed to be made or repeated by the Contractor in this document, or in any document provided to the Contractor under or in connection with this document, including any Offer;
(iv) the conviction of the Contractor of any criminal offence relating to fraud which is not set aside on any appeal;
(v) the Contractor being unable effectively to perform, or assist in the performance of its obligations by reason of prolonged sickness, accident or other incapacitating cause affecting the Contractor for a continuous period of 30 days, or periods in aggregate exceeding 30 days in any period of 12 months;
(vi) the Contractor becoming mentally incapable or having his affairs brought under the control of any committee, person or officer under any law relating to mental health;
(vii) any wilful neglect or grave misconduct by the Contractor in the course of performance of or relating to its obligations; or
(viii) the Contractor is disqualified from managing corporations pursuant to the Corporations Act 2001 (Cth).
(b) If clause 2.4(a) applies then this document will come to an end, the parties will be released from any further performance of any liability under this document and all documents and material supplied by the Agent to the Contractor must be returned to the Agent immediately.
(c) The termination of this document pursuant to clause 2.4(a) does not:
(i) affect any provision of this document expressed to operate or have effect subsequent to termination; or
(ii) have any prejudicial effect on any accrued right of any party in relation to a breach of this document by the other party occurring before termination.
2.5 Confidentiality
(a) The Recipient must maintain in confidence all Confidential Information disclosed to it and must ensure that the Confidential Information is kept secret and confidential.
(b) A Recipient may reveal Confidential Information if:
(i) the Recipient first obtains the Discloser’s consent;
(ii) the Recipient is required by law or by any stock exchange to disclose the Confidential Information, in which case the Recipient must:
(A) immediately notify the Discloser of the requirement;
(B) first obtain the Discloser’s consent to the terms of that disclosure; and
(C) permit and assist the Discloser to oppose or restrict the disclosure to preserve, as far as possible, the confidentiality of the Confidential Information;
(iii) the Confidential Information is already in the public domain for reasons other than a breach of this document;
(iv) the Confidential Information is disclosed to the Recipient by a third party legally entitled to disclose that information who is not under an obligation of confidentiality to the Discloser; or
(v) the Confidential Information is clearly marked “confidential” and is disclosed by the Recipient in confidence to an adviser or consultant for the sole purpose of obtaining professional advice and the adviser or consultant undertakes to the Recipient to keep the Confidential Information absolutely secret and confidential.
(c) Despite this clause 2.9, confidentiality may not be used by a party as a reason for refusing to provide information concerning this document to the other party.
3. GST
3.1 Prices are exclusive of GST
Unless expressed to the contrary in this document, all prices and amounts (including any monetary or non-monetary consideration required to be provided under this document) are exclusive of GST.
3.2 Gross up of consideration
If GST is payable in respect of a supply made under or in relation to this document, 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 any consideration for the supply, provided the supplier has given the recipient a tax invoice.
3.3 Indemnity and reimbursement payments
Without limiting clause 3.2, if a party (payer) is required to reimburse another party (payee) for a cost (eg, if the payer is obliged to pay the payee’s legal costs), or a payer is obliged to make a payment to a payee under an indemnity, the reimbursement or indemnity is for the payee’s cost inclusive of GST but excludes any GST component of the cost for which the payee is entitled to claim an input tax credit.
3.4 Adjustment events
If an adjustment event arises in respect of a taxable supply, the GST Amount payable by a recipient under clause 3.2 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier, or by the supplier to the recipient, as the case requires.
3.5 GST interpretation
The following provisions apply solely to this clause 3:
(a) unless otherwise provided in this document, terms used in this clause 3 have the meanings given to those terms by the GST Act;
(b) a reference in this clause 3 to a liability of a party to pay GST or an entitlement of a party to input tax credits includes a reference to GST payable by, or an input tax credit entitlement of, the representative member of a GST group to which that party is a member;
(c) where required to give practical effect to this clause 3 (and despite clause 3.5(a)), a recipient includes any party to this document that is required to provide consideration and a supplier includes any party to whom consideration must be provided (even if there is never any supply);
(d) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) is treated as if it were a separate supply; and
(e) this clause 3 is subject to any other specific agreement regarding the payment of GST on supplies.
4. General provisions
4.1 Entire agreement
This document constitutes the entire agreement between the parties and supersedes any prior conduct, arrangement, agreement or understanding in relation to its subject matter.
4.2 Further assurances
Each party must promptly do all things necessary in order to give effect to this document, including executing and delivering documents.
4.3 Severability
If a provision in this document is unenforceable or invalid in any jurisdiction, it will be ineffective in that jurisdiction to the extent that it is unenforceable or invalid. No provision in this document will otherwise be affected in any jurisdiction.
4.4 Costs
Unless provided to the contrary in this document, each party must pay its own costs in relation to the negotiation, preparation, execution and performance of this document.
4.5 Counterparts
This document may be executed in counterparts. Such counterparts, taken together, will be deemed to constitute the one agreement.
4.6 Notices
A notice or other communication to or by a party under this document:
(a) must be in writing;
(b) may be delivered in person or by post to an address of the recipient specified in this document or any new address of the recipient known to the sender;
(c) subject to paragraph (d), is deemed to be effective:
(i) if delivered in person, upon delivery to the recipient;
(ii) if posted, three Business Days (or six Business Days, if posted outside Australia) after the date of posting to the addressee; and
(d) if delivered or received on a day which is not a Business Day, it is taken to have been delivered or received on the following Business Day and, if delivered or received after 4:00pm (addressee’s time), then notice is taken to have occurred at 9:00am on the following Business Day.
4.7 No assignment
Unless provided to the contrary in this document, a party is not capable of assigning, novating or encumbering any right or liability under this document without the prior written consent of each other party.
4.8 No merger
Unless provided to the contrary in this document, the rights and obligations of the parties under this document do not merge on completion and will survive after completion.
4.9 Relationship of parties
Unless provided to the contrary in this document, no party is authorised to bind another party and nothing in this document is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between any of the parties.
4.10 Remedies
Unless provided to the contrary in this document, the rights and powers under this document are in addition to, and do not exclude or limit, any right or power provided by law or equity
4.11 Successors and assigns
This document binds and benefits the parties to this document, their successors and permitted assigns.
4.12 Variations
This document may only be amended or replaced with the written agreement of all parties.
4.13 Waivers
A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. Any failure or delay by any party to exercise any power or right or rely on a remedy under this document does not operate as a waiver of that power, right or remedy.
4.14 Governing law
The laws of Victoria, Australia govern this document.
4.15 Jurisdiction
Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.
Special Terms Of Service
S1) The Builder agrees to send a signed copy of the final building contract to colin@yournexthome.com.au upon completion.
S2) The builder agrees to provide fortnightly written project updates to YNH stating;
- Progress in the last two weeks
- Projected time (in working days) until next progress claim invoice
S3) The builder will allow shared YNH marketing rights on the site.
S4) The builder will (upon completion of the works) commission a virtual tour of the project and send media to YNH.
S5) The number of progress payments of service fees to YNH shall be agreed in writing prior to signing the building contract. If no number is agreed, the number of payments shall be set as three.
By submitting this, you are agreeing to the aforementioned terms.