General Terms and Conditions of Trade

These Terms & Conditions, together with the Service Agreement, govern Property Home Base's provision of Buyer Advocacy Services. By signing the Agreement, the Client/s accept these Terms.

1  Definitions

1.1      “Contract” means these terms and conditions, together with the Service Agreement.

1.2      “PHB” means Property Home Base Pty Ltd (ABN 68 606 427 258) T/A Property Home Base and associated trading entities including Buyers Home Base, its successors and assigns, or any person acting on behalf of, and with the authority of PHB.

1.3      “Purchaser” means the person(s) who signs a Service Agreement with PHB and requests the supply of Services; where more than one person, they are jointly and severally liable; a partnership binds each partner jointly and severally; a trustee is bound personally and as trustee; and it includes the Purchaser’s executors, administrators, successors and permitted assigns.

1.4      “Client” means the Purchaser. The Service Agreement and these Terms use the two terms interchangeably.

1.5      “Services” means all services detailed in the Service Agreement or as otherwise agreed between the parties from time to time.

1.6      “Purchaser’s Agreement” means the Service Agreement entered between the parties which outlines the scope of Services and the fees.

1.7      “Vendor” means a third party unrelated to PHB that provides the opportunity to purchase their property to the Purchaser.

1.8      “Property” means the property which the Purchaser may be interested to purchase and which falls within the scope of Services.

1.9      “Fee” means the fees set out in the Service Agreement and clause 4.

1.10    “Relevant State” means the State or Territory in which the Property is located.

1.11    “GST” means Goods and Services Tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). “Confidential Information” has its ordinary meaning as information of a confidential nature disclosed between the parties.

2  Interpretation

2.1 In this Contract, unless it is stated to the contrary or the context requires otherwise:

(a) words in the singular shall include the plural (and vice versa), words importing one gender shall include every gender, a reference to a person shall include any other legal entity of whatsoever kind (and vice versa) and where a word or a phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;

(b) a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction);

(c) the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’;

(d) a reference to dollars ($), is a reference to Australian currency;

(e) this Contract is not to be interpreted against PHB merely because PHB prepared this Contract; and

(f) the following order of precedence (in descending order) will be applied to resolve any conflict, ambiguity, or discrepancy in this Contract:

(i) the Exclusive Service Agreement;

(ii) these Terms and Conditions; and

(iii) any schedules.

(g) any reference (other than in the calculation of consideration, or of any indemnity, reimbursement, or similar amount) to cost, expense or other similar amount is a reference to that cost exclusive of GST.

3  Acceptance and Relationship

3.1      The Purchaser is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions upon signing the Service Agreement. Any amendment must be in writing and agreed by both parties. No agent or representative of PHB may make any representation not expressed in writing by PHB.

3.2      The Purchaser engages PHB to provide the Services, and PHB accepts that engagement. PHB acts as the Purchaser’s buyer’s agent and advocate under the exclusive authority granted in the Service Agreement, and otherwise as an independent service provider; nothing in this agreement constitutes a relationship of employer and employee, principal and agent (except to the extent of that authority), partnership, or joint venture.

3.3      Electronic signatures are accepted in accordance with the applicable Electronic Transactions legislation.

4  Fees and Payments

5 PHB’s Obligations

5.1      PHB undertakes to provide the Services with all due care and in accordance with relevant technical and professional standards.  The Services will be performed in accordance with any specific requirements detailed in the Service Agreement and based on the Purchaser’s written specifications (such as income or financing, credit-standing, assets, etc.). The Purchaser agrees to clearly instruct PHB of its requirements pertaining to the type of Property purchase and to notify PHB immediately if there is any change in those requirements.

5.2      The Purchaser acknowledges and agrees that PHB may subcontract part of the Services to a third party.  Notwithstanding any such subcontracting arrangement, PHB will remain solely liable to the Purchaser for the provision of the Services and compliance with this Contract.

5.3      The Purchaser acknowledges and agrees that the Services may require a range of support, information and access which the Purchaser must provide to PHB in a timely manner.  If the Purchaser fails to provide such information, support or documentation that PHB requires (within the time period reasonably required by PHB), PHB may elect to suspend performance of the Services by a period commensurate with the period of the Purchaser’s delay.  If the Purchaser delays the provision of information, support or access by a period of 30 days or more, PHB may charge the Purchaser for any additional costs incurred as a result of the Purchaser’s failure and/or delay.

6  Documentation

6.1      The Documentation is prepared on the basis that the Purchaser has made full and frank disclosure of all information and material facts. To the extent permitted by law, PHB accepts no responsibility for errors in information or statements provided by the Purchaser or others, or for any matter outside the scope of the Services.

6.2      The Purchaser accepts that an inadvertent error or omission by PHB in the formation or administration of this Contract, not attributable to PHB’s negligence or wilful misconduct, does not entitle the Purchaser to treat this Contract as repudiated or invalid.

7  Default and Consequences of Default

7.1      If any Fee is not paid by its due date, interest accrues on the unpaid amount from the due date until payment at the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic) (or the equivalent statutory rate in the Relevant State).

7.2      If the Purchaser owes PHB money, the Purchaser indemnifies PHB for the reasonable costs of recovering the debt (including reasonable debt-collection and legal costs). If the Purchaser becomes insolvent or a receiver/administrator is appointed, all amounts owing become immediately payable.

8  Termination

8.1      Either party may terminate by written notice. If the Purchaser is in breach (including as to payment), PHB may give notice and, if the breach is not remedied within 7 days, terminate. On the Purchaser’s notice, PHB will stop providing the Services.

8.2      On termination, the Purchaser remains liable for all Fees and amounts accrued up to termination. Confidentiality, liability and payment obligations survive termination.

8.3      If the Purchaser terminates other than for PHB’s unremedied material breach, or PHB terminates for the Purchaser’s breach, the Purchaser remains liable for the Initial Engagement Fee and for any Completion Fee that is payable under the ‘When Fees Remain Payable’ provision of the Service Agreement (that is, where the Purchaser purchases a property PHB introduced or negotiated, including within 30 days of termination). No separate cancellation fee is charged.

9  Liability

9.1    Nothing in this Contract excludes, restricts or modifies any consumer guarantee, right or remedy under the Australian Consumer Law that cannot lawfully be excluded.

9.2    In providing the Services, PHB will exercise the degree of skill, care and diligence reasonably expected of a competent provider of the Services. Recommendations are provided in good faith.

9.3    To the extent the Services are not of a kind ordinarily acquired for personal, domestic or household use, PHB’s liability for failure to comply with a consumer guarantee is limited, at PHB’s election, to supplying the Services again or paying the cost of having them supplied again. Otherwise, and subject to clause 9.1, PHB’s liability is limited to the amount of the Fees paid for the relevant Services.

9.4    Subject to the above, PHB is not liable for the acts or omissions of third parties (including vendors, agents, and recommended advisers), for matters outside the scope of the Services, or for loss arising from information supplied by the Purchaser. PHB is not liable for any loss if a purchase is unsuccessful.

10  Dispute Resolution

10.1    If a dispute arises, a party must give written notice of the dispute and the parties must confer in good faith within 14 days to try to resolve it. Failing resolution, either party may refer the dispute to the courts or the relevant consumer tribunal of the Relevant State. Nothing prevents a party seeking urgent interlocutory relief.

11  Service of Notices

11.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by email to the other party’s last known email address.

11.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

12  General

12.1 The failure by either party to enforce any provision of this Contract shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of this Contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

12.2 This Contract shall be governed by the laws of the state in which PHB has its principal place of business and are subject to the jurisdiction of the courts in that state.

12.3 None of the conditions, warranties or other terms implied by Commonwealth, State or Territory laws (“the implied terms”) shall apply to this Contract except to the extent that the implied terms cannot be lawfully excluded.

12.4 PHB may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Purchaser’s consent.

12.5 The Purchaser cannot licence or assign its rights or obligations under this Contract without the written approval of PHB.

12.6 The Purchaser agrees that PHB may amend their general terms and conditions for subsequent future contracts (including PHB’s Privacy Policy) with the Purchaser by disclosing such changes in writing or via PHB’s website www.propertyhomebase.com.au. These changes shall be deemed to take effect from the date on which the parties enter the new contracting arrangement.

12.7   Delivery of an executed counterpart of this Contract by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.  If a party delivers an executed counterpart of this Contract under this clause:

(a) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this Contract; and

(b) in any legal proceedings relating to this Contract, each party waives the right to raise any defence based upon any such failure.

12.8 All Parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligation on them.

12.9 Confidentiality

12.9.1 Each party must:

(a) keep all Confidential Information of the other party confidential;

(b) not use or exploit any Confidential Information of the other party in any way except in the proper performance of, or receipt of, the Services in accordance with this Contract;

(c) not disclose or make available any Confidential Information of the other party in whole or in part to any third party;

(d) not copy, reduce to writing or otherwise record any Confidential Information of the other party except in the proper performance of the Services in accordance with this Contract; and

(e) ensure that any and all persons with whom the Confidential Information is shared in accordance with this Contract:

(i) comply with the obligations in this Contract as if each of them was a party to this Contract; and

(ii) do not do, or omit to do, anything which, if done or omitted to be done by a party to this Contract, would constitute a breach of this Contract by such party.

12.9.2 Each party is responsible for, and liable to the other party in respect of, the actions or omissions of any and all of the persons to whom they share Confidential Information as if they were the actions or omissions of that party.

12.10 Force Majeure

To the maximum extent permitted by law, PHB and its representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of PHB under this Contract where such damage or delay is caused by circumstances beyond the reasonable control of PHB and PHB will be entitled to a reasonable extension of time for the performance of such obligations, and the Purchaser acknowledges and agrees that PHB holds the benefit of this clause 13.10 for itself and as agent and trustee for and on behalf of each of its representatives.

12.11 Privacy

PHB’s Privacy Policy is deemed to be included as part of this Contract in its entirety.