General Terms and Conditions of Trade
1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, proposal order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “PHB” means Property Home Base Pty Ltd T/A Property Home Base and associated trading entities Buyers Home Base, its successors and assigns, or any person acting on behalf of, and with the authority of PHB.
1.3 “Purchaser” means any Purchaser who signs a Purchaser Agreement with PHB and requests of PHB the supply of Services, as specified in the Purchasers Agreement or any other supporting document, and if:
(a) there is more than one Purchaser, requesting the Services is a reference to each Purchaser jointly and severally; and
(b) if the Purchaser is a partnership, it shall bind each partner jointly and severally; and
(c) if the Purchaser is a part of a Trust, shall be bound personally and in their capacity as a trustee; and
(d) includes the Purchaser executors, administrators, successors and permitted assigns.
1.4 “Services” means all facilitation Services provided and/or the introduction to any Purchaser, by BHB to a Vendor, at the Purchaser’s request, from time to time.
1.5 “Purchaser’s Agreement” means the letters or other Documents prepared by PHB and submitted to the Purchaser to describe the scope of Services to be provided, and the amount or method of calculation of the Fee and reimbursable expenses.
1.6 “Vendor” means a third party person/s or entity unrelated to PHB that provides the opportunity to purchase the Vendor’s Property listing(s).
1.7 “Property” means the address of the property/home for purchase as agreed between the Vendor and the Purchaser as specified in this Contract for which the Services are to be provided by PHB.
1.8 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Purchaser information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the Purchaser’s computer. If the Purchaser does not wish to allow Cookies to operate in the background when ordering from the website, then the Purchaser shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.10 “Fee” means the cost of the Services, as agreed between PHB and the Vendor in accordance with clause 5 of this contract.
1.11 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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; and
(b) a reference to a statue, 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); and
(c) the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’; and
(d) a reference to dollars ($), is a reference to Australian currency; and
(e) this Contract is not to be interpreted against PHB merely because they 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) Terms and Conditions of Trade; and
(ii)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
3.1 The Purchaser is taken to have exclusively accepted, and is immediately bound, jointly and severally, by these terms and conditions, upon signing PHB Contract prior to a Property purchase (and/or any subsequent building of a dwelling or other structure).
3.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 These General Terms and Conditions may be read in conjunction with PHB’s Appendix in respect of additional Terms and Conditions and/or any special Terms and Conditions (where applicable) stipulated in the Purchaser’s Agreement. If there are any inconsistencies between the incorporated documentation (including, but not limited to, any special Terms or Conditions), then any conflicting Term or Condition contained in any quotation, order, invoice or other document, or amendments expressed to be supplemental to this Contract, shall prevail.
3.5 None of PHB’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of PHB in writing nor is PHB bound by any such unauthorised statements.
3.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.7 The Purchaser acknowledges and accepts that the obligations of privacy, intellectual property and confidentiality as covered in PHB’s Appendix to this Contract shall survive the finalisation or discontinuance of any Contract between the Purchaser and PHB.
4. Agency
4.1 PHB is acting solely as a facilitator between the Vendor and the Purchaser. Should the Purchaser fail to contract with the Vendor for the purchase of any Property (and/or any subsequent building of a dwelling or other structure) from the Vendor, or if a dispute arises in respect of any agreement between the Vendor and the Purchaser, PHB shall be under no liability to the Vendor, Purchaser and/or any third party, and in particular will not be responsible for any loss or damages sustained by the Vendor, Purchaser and/or any third party.
5. Fee and Payment
5.1 PHB shall be entitled to deduct or charge the Purchaser a Fee as payment for the Services provided, together with GST and any other charges. At PHB’s sole discretion, the Fee shall either be
(a) as indicated on any invoice provided by PHB to the Purchaser; or
(b) the Fee as at the date of completion of the Services as stated in the Purchaser’s Agreement.
5.2 PHB reserves the right to change the Fee:
(a) if a variation to the Services (including any variation to the Purchaser’s brief or specifications) is requested; or
(b) where additional costs are incurred by PHB due circumstances beyond PHB’s control (e.g. unexpected delays, additional site visits, or where access to the Property is not available as agreed or pre-arranged, etc.).
5.3 Variations will be charged for on the basis of PHB’s quotation, and will be detailed in writing, and shown as variations on PHB’s invoice. The Purchaser shall be required to respond to any variation submitted by PHB within ten (10) working days. Failure to do so will entitle PHB to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At PHB’s sole discretion, an engagement Fee shall be due and payable upon acceptance of the Purchaser’s Agreement.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Purchaser on the date/s determined by PHB, which may be:
(a) the Fee as agreed between the parties payable upon confirmation of an unconditional offer of purchase of a Property;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice furnished to the Purchaser by PHB upon finalisation of settlement of the Property.
5.6 Payment may be made by cheque, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Purchaser and PHB.
5.7 Unless otherwise stated the Fee does not include GST. In addition to the Fee the Purchaser must pay to BHB an amount equal to any GST PHB must pay for any provision of Services by PHB to the Vendor under this Contract or any other agreement. The Purchaser must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Purchaser pays the Fee. In addition, the Vendor must pay any other taxes and duties that may be applicable in addition to the Fee, except where they are expressly included in the Fee.
5.8 The Purchaser acknowledges and agrees that the Purchaser’s obligations to PHB for the provision of the Services shall not cease (and where it is intended that any ownership of the Documentation shall pass, it shall not pass) until:
(a) the Purchaser has paid PHB all amounts owing for the particular Services; and
(b) the Purchaser has met all other obligations due by the Purchaser to PHB in respect of all contracts between the parties.
5.9 Receipt by PHB of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then BHB’ ownership or rights in respect of the Services, and this Contract, shall continue.
6. PHB’s Obligations
6.1 PHB undertakes to use its best endeavours to provide reliable Services in accordance with the Services outlines with the Purchasers Agreement that forms part of this contract, based on the Purchaser’s 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.
7. Documentation
7.1 The Documentation:
(a) is prepared on the basis that the Purchaser has provided PHB with a full and frank disclosure of all information and other material facts which may affect the preparation of such Documentation. PHB accepts no responsibility or liability whatsoever:
(i) unless such full disclosure has been made toPBHB; and
(ii)for errors in any information obtained or statements from the Purchaser or other applicable parties, or any matter outside the scope of the Services to be provided by PHB.
7.2 The Purchaser acknowledges and accepts that PHB shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by PHB in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by PHB in respect of the Services. 7.3 In the event such an error and/or omission occurs in accordance with clause 7.2, and is not attributable to the negligence and/or wilful misconduct of PHB; the Purchaser shall not be entitled to treat this Contract as repudiated nor render it invalid.
8. Default and Consequences of Default
8.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PHB’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.2 If the Purchaser owes PHB any money, the Purchaser shall indemnify PHB from and against all costs and disbursements incurred by PHB in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PHB’s contract default fees and bank dishonour fees).
8.3 Without prejudice to PHB’s other remedies at law, PHB shall be entitled to cancel all, or any part, of any order of the Purchaser which remains unfulfilled, and all amounts owing to PHB shall, whether or not due for payment, become immediately payable if:
(a) any money payable to PHB becomes overdue, or in PHB’s opinion the Purchaser will be unable to make a payment when it falls due; or
(b) the Purchaser has exceeded any applicable credit limit provided by PHB;
(c) the Purchaser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit
of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser
9. Termination
9.1 Without prejudice to any other remedies PHB may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment) under these terms and conditions, PHB may suspend or terminate the provision of Services to the Purchaser. PHB will not be liable to the Purchaser for any loss or damage the Purchaser suffers because PHB has exercised its rights under this clause.
9.2 The Purchaser may terminate the Contract at any time by providing written notice to PHB. As soon as this notice is received, PHB shall stop providing the Services. Termination of the Contract shall not prejudice, or affect, the accrued rights, claims and/or liabilities of either party to the contract.
9.3 If the Purchaser terminates the Contract, or PHB terminates the Contract because the Purchaser is in material breach thereof (and fails to remedy such breach within seven (7) days of PHB giving notice to the Purchaser of such breach), then the Purchaser shall be liable to pay PHB for all Services provided up until the date of termination, plus any disbursements and all loss incurred (whether direct or indirect) by PHB as a direct result of termination by the Purchaser (including, but not limited to, any loss of profits), notwithstanding that at PHB’s sole discretion:
(a) a cancellation fee of one thousand dollars ($1,000.00) may be applicable; or
(b) twenty-five percent (25%) of the potential transaction Fee whichever is the greater.
10. Liability
10.1 In providing the Services, PHB:
(a) shall exercise the degree of skill, care and diligence normally expected of a competent professional. Whilst every effort has been made to ensure the accuracy of the opinions, information and forecasts expressed in the Documentation, no liability is accepted for any incorrect statement, information or forecast within; and
(b) will provide written and verbal recommendations pursuant to the Services, however at all times prior, during and following provision of the Services, such recommendations are provided in good faith only. 10.2 In consideration of clause 10.1, PHB’s servants, employees and agents are not subject to any liability whatsoever (whether by reason of lack of due care and attention, or otherwise), and the Purchaser releases and discharges PHB and its servants, agents and employees from all actions, suits, claims, demands, causes of actions, costs and expenses, legal equitable under statute, and otherwise, and all other liabilities of any nature (whether or not the parties were, or could have been, aware of them) which the Purchaser may have, or but for this disclaimer, could or might have had against PHB and its servants, agents and employees, in any way related to the Services provided, or the circumstances recited in this disclaimer, or allegations arising out of, or in any way related to, the Services provided to the Purchaser. Notwithstanding this disclaimer, PHB shall only be liable to the Purchaser for the consequences of any negligent act, omission or statement of PHB, and then only to the extent and limitations referred to in clause 10.3(a).
10.3 Unless otherwise specified in writing:
(a) the loss and damage for which PHB is so liable, and the recompense to be made by BHB to a Purchaser for such liability as specified in clause 10.2, shall be limited to the maximum value of PHB’s Professional Indemnity Insurance in respect of any single act, omission or statement; and
(b) all references herein to loss or damage shall be deemed to exclude any liquidated damages, or loss or damage sustained by any third party in respect of which the Purchaser is liable and responsible (as between the Purchaser and the third party) whether by statute, contract tort or otherwise; and
(c) the liability of PHB to the Purchaser shall expire twelve (12) months from the issue of the last invoice relevant to the particular Services, unless in the meantime the Purchaser has made a claim in writing to PHB, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable. 10.4 Notwithstanding clauses 10.2 and 10.3, BHB shall not be liable for any loss or damage sustained or sustainable by a Purchaser in relation to:
(a) errors occurring in plans, designs or specifications not created or prepared by PHB; or
(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, PHB; or
(c) the use of any Documentation or other information of advice without the approval of PHB.
11. Dispute Resolution
11.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Purchaser acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Incidental Items previously supplied by PHB to the Purchaser;
(b) all Incidental Items will be supplied in the future by PHB to the Purchaser; and
(c) all the Purchaser’s present and after acquired property being a charge, including anything in respect of which the Purchaser has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Purchaser to PHB for Services – that have previously been provided and that will be provided in the future by PHB to the Purchaser
12.3 The Purchaser undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which PHB may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, PHB for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of PHB;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of PHB.
12.4 PHB and the Purchaser agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Purchaser waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Purchaser waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by PHB, the Purchaser waives their right to receive a verification statement in accordance with section 157 of the PPSA. 12.8 The Purchaser must unconditionally ratify any actions taken by PHB under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of PHB agreeing to provide Services, the Purchaser charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Purchaser either now or in the future, to secure the performance by the Purchaser of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Purchaser indemnifies PHB from and against all PHB’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PHB’s rights under this clause.
13.3 The Purchaser irrevocably appoints PHB (and each director of PHB) as the Purchaser’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Purchaser’s behalf.
14. Service of Notices
14.1 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 facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
14.2 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.
15. General
15.1 The failure by either party to enforce any provision of these terms and conditions 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 these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BHB has its principal place of business, and are subject to the jurisdiction of the courts in that state.
15.3 None of the conditions, warranties or other terms implied by Commonwealth, State or Territory laws (“the implied terms”) shall apply to any agreement between PHB and the Client for the provision of the Services except to the extent that the implied terms cannot be lawfully excluded.
15.4 PHB may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Purchaser’s consent.
15.5 The Purchaser cannot licence or assign without the written approval of PHB.
15.6 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.buyershomebase.com.au. These changes shall be deemed to take effect from the date on which the Purchaser accepts such changes, or otherwise at such time as the Purchaser makes a further request for PHB to provide Services to the Purchaser.
15.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control
of either party.
15.8 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.
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, proposal order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “PHB” means Property Home Base Pty Ltd T/A Property Home Base and associated trading entities Buyers Home Base, its successors and assigns, or any person acting on behalf of, and with the authority of PHB.
1.3 “Purchaser” means any Purchaser who signs a Purchaser Agreement with PHB and requests of PHB the supply of Services, as specified in the Purchasers Agreement or any other supporting document, and if:
(a) there is more than one Purchaser, requesting the Services is a reference to each Purchaser jointly and severally; and
(b) if the Purchaser is a partnership, it shall bind each partner jointly and severally; and
(c) if the Purchaser is a part of a Trust, shall be bound personally and in their capacity as a trustee; and
(d) includes the Purchaser executors, administrators, successors and permitted assigns.
1.4 “Services” means all facilitation Services provided and/or the introduction to any Purchaser, by BHB to a Vendor, at the Purchaser’s request, from time to time.
1.5 “Purchaser’s Agreement” means the letters or other Documents prepared by PHB and submitted to the Purchaser to describe the scope of Services to be provided, and the amount or method of calculation of the Fee and reimbursable expenses.
1.6 “Vendor” means a third party person/s or entity unrelated to PHB that provides the opportunity to purchase the Vendor’s Property listing(s).
1.7 “Property” means the address of the property/home for purchase as agreed between the Vendor and the Purchaser as specified in this Contract for which the Services are to be provided by PHB.
1.8 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Purchaser information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the Purchaser’s computer. If the Purchaser does not wish to allow Cookies to operate in the background when ordering from the website, then the Purchaser shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.10 “Fee” means the cost of the Services, as agreed between PHB and the Vendor in accordance with clause 5 of this contract.
1.11 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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; and
(b) a reference to a statue, 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); and
(c) the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’; and
(d) a reference to dollars ($), is a reference to Australian currency; and
(e) this Contract is not to be interpreted against PHB merely because they 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) Terms and Conditions of Trade; and
(ii)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
3.1 The Purchaser is taken to have exclusively accepted, and is immediately bound, jointly and severally, by these terms and conditions, upon signing PHB Contract prior to a Property purchase (and/or any subsequent building of a dwelling or other structure).
3.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 These General Terms and Conditions may be read in conjunction with PHB’s Appendix in respect of additional Terms and Conditions and/or any special Terms and Conditions (where applicable) stipulated in the Purchaser’s Agreement. If there are any inconsistencies between the incorporated documentation (including, but not limited to, any special Terms or Conditions), then any conflicting Term or Condition contained in any quotation, order, invoice or other document, or amendments expressed to be supplemental to this Contract, shall prevail.
3.5 None of PHB’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of PHB in writing nor is PHB bound by any such unauthorised statements.
3.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.7 The Purchaser acknowledges and accepts that the obligations of privacy, intellectual property and confidentiality as covered in PHB’s Appendix to this Contract shall survive the finalisation or discontinuance of any Contract between the Purchaser and PHB.
4. Agency
4.1 PHB is acting solely as a facilitator between the Vendor and the Purchaser. Should the Purchaser fail to contract with the Vendor for the purchase of any Property (and/or any subsequent building of a dwelling or other structure) from the Vendor, or if a dispute arises in respect of any agreement between the Vendor and the Purchaser, PHB shall be under no liability to the Vendor, Purchaser and/or any third party, and in particular will not be responsible for any loss or damages sustained by the Vendor, Purchaser and/or any third party.
5. Fee and Payment
5.1 PHB shall be entitled to deduct or charge the Purchaser a Fee as payment for the Services provided, together with GST and any other charges. At PHB’s sole discretion, the Fee shall either be
(a) as indicated on any invoice provided by PHB to the Purchaser; or
(b) the Fee as at the date of completion of the Services as stated in the Purchaser’s Agreement.
5.2 PHB reserves the right to change the Fee:
(a) if a variation to the Services (including any variation to the Purchaser’s brief or specifications) is requested; or
(b) where additional costs are incurred by PHB due circumstances beyond PHB’s control (e.g. unexpected delays, additional site visits, or where access to the Property is not available as agreed or pre-arranged, etc.).
5.3 Variations will be charged for on the basis of PHB’s quotation, and will be detailed in writing, and shown as variations on PHB’s invoice. The Purchaser shall be required to respond to any variation submitted by PHB within ten (10) working days. Failure to do so will entitle PHB to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At PHB’s sole discretion, an engagement Fee shall be due and payable upon acceptance of the Purchaser’s Agreement.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Purchaser on the date/s determined by PHB, which may be:
(a) the Fee as agreed between the parties payable upon confirmation of an unconditional offer of purchase of a Property;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice furnished to the Purchaser by PHB upon finalisation of settlement of the Property.
5.6 Payment may be made by cheque, bank cheque, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Purchaser and PHB.
5.7 Unless otherwise stated the Fee does not include GST. In addition to the Fee the Purchaser must pay to BHB an amount equal to any GST PHB must pay for any provision of Services by PHB to the Vendor under this Contract or any other agreement. The Purchaser must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Purchaser pays the Fee. In addition, the Vendor must pay any other taxes and duties that may be applicable in addition to the Fee, except where they are expressly included in the Fee.
5.8 The Purchaser acknowledges and agrees that the Purchaser’s obligations to PHB for the provision of the Services shall not cease (and where it is intended that any ownership of the Documentation shall pass, it shall not pass) until:
(a) the Purchaser has paid PHB all amounts owing for the particular Services; and
(b) the Purchaser has met all other obligations due by the Purchaser to PHB in respect of all contracts between the parties.
5.9 Receipt by PHB of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then BHB’ ownership or rights in respect of the Services, and this Contract, shall continue.
6. PHB’s Obligations
6.1 PHB undertakes to use its best endeavours to provide reliable Services in accordance with the Services outlines with the Purchasers Agreement that forms part of this contract, based on the Purchaser’s 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.
7. Documentation
7.1 The Documentation:
(a) is prepared on the basis that the Purchaser has provided PHB with a full and frank disclosure of all information and other material facts which may affect the preparation of such Documentation. PHB accepts no responsibility or liability whatsoever:
(i) unless such full disclosure has been made toPBHB; and
(ii)for errors in any information obtained or statements from the Purchaser or other applicable parties, or any matter outside the scope of the Services to be provided by PHB.
7.2 The Purchaser acknowledges and accepts that PHB shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by PHB in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by PHB in respect of the Services. 7.3 In the event such an error and/or omission occurs in accordance with clause 7.2, and is not attributable to the negligence and/or wilful misconduct of PHB; the Purchaser shall not be entitled to treat this Contract as repudiated nor render it invalid.
8. Default and Consequences of Default
8.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PHB’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.2 If the Purchaser owes PHB any money, the Purchaser shall indemnify PHB from and against all costs and disbursements incurred by PHB in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PHB’s contract default fees and bank dishonour fees).
8.3 Without prejudice to PHB’s other remedies at law, PHB shall be entitled to cancel all, or any part, of any order of the Purchaser which remains unfulfilled, and all amounts owing to PHB shall, whether or not due for payment, become immediately payable if:
(a) any money payable to PHB becomes overdue, or in PHB’s opinion the Purchaser will be unable to make a payment when it falls due; or
(b) the Purchaser has exceeded any applicable credit limit provided by PHB;
(c) the Purchaser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit
of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser
9. Termination
9.1 Without prejudice to any other remedies PHB may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment) under these terms and conditions, PHB may suspend or terminate the provision of Services to the Purchaser. PHB will not be liable to the Purchaser for any loss or damage the Purchaser suffers because PHB has exercised its rights under this clause.
9.2 The Purchaser may terminate the Contract at any time by providing written notice to PHB. As soon as this notice is received, PHB shall stop providing the Services. Termination of the Contract shall not prejudice, or affect, the accrued rights, claims and/or liabilities of either party to the contract.
9.3 If the Purchaser terminates the Contract, or PHB terminates the Contract because the Purchaser is in material breach thereof (and fails to remedy such breach within seven (7) days of PHB giving notice to the Purchaser of such breach), then the Purchaser shall be liable to pay PHB for all Services provided up until the date of termination, plus any disbursements and all loss incurred (whether direct or indirect) by PHB as a direct result of termination by the Purchaser (including, but not limited to, any loss of profits), notwithstanding that at PHB’s sole discretion:
(a) a cancellation fee of one thousand dollars ($1,000.00) may be applicable; or
(b) twenty-five percent (25%) of the potential transaction Fee whichever is the greater.
10. Liability
10.1 In providing the Services, PHB:
(a) shall exercise the degree of skill, care and diligence normally expected of a competent professional. Whilst every effort has been made to ensure the accuracy of the opinions, information and forecasts expressed in the Documentation, no liability is accepted for any incorrect statement, information or forecast within; and
(b) will provide written and verbal recommendations pursuant to the Services, however at all times prior, during and following provision of the Services, such recommendations are provided in good faith only. 10.2 In consideration of clause 10.1, PHB’s servants, employees and agents are not subject to any liability whatsoever (whether by reason of lack of due care and attention, or otherwise), and the Purchaser releases and discharges PHB and its servants, agents and employees from all actions, suits, claims, demands, causes of actions, costs and expenses, legal equitable under statute, and otherwise, and all other liabilities of any nature (whether or not the parties were, or could have been, aware of them) which the Purchaser may have, or but for this disclaimer, could or might have had against PHB and its servants, agents and employees, in any way related to the Services provided, or the circumstances recited in this disclaimer, or allegations arising out of, or in any way related to, the Services provided to the Purchaser. Notwithstanding this disclaimer, PHB shall only be liable to the Purchaser for the consequences of any negligent act, omission or statement of PHB, and then only to the extent and limitations referred to in clause 10.3(a).
10.3 Unless otherwise specified in writing:
(a) the loss and damage for which PHB is so liable, and the recompense to be made by BHB to a Purchaser for such liability as specified in clause 10.2, shall be limited to the maximum value of PHB’s Professional Indemnity Insurance in respect of any single act, omission or statement; and
(b) all references herein to loss or damage shall be deemed to exclude any liquidated damages, or loss or damage sustained by any third party in respect of which the Purchaser is liable and responsible (as between the Purchaser and the third party) whether by statute, contract tort or otherwise; and
(c) the liability of PHB to the Purchaser shall expire twelve (12) months from the issue of the last invoice relevant to the particular Services, unless in the meantime the Purchaser has made a claim in writing to PHB, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable. 10.4 Notwithstanding clauses 10.2 and 10.3, BHB shall not be liable for any loss or damage sustained or sustainable by a Purchaser in relation to:
(a) errors occurring in plans, designs or specifications not created or prepared by PHB; or
(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, PHB; or
(c) the use of any Documentation or other information of advice without the approval of PHB.
11. Dispute Resolution
11.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Purchaser acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Incidental Items previously supplied by PHB to the Purchaser;
(b) all Incidental Items will be supplied in the future by PHB to the Purchaser; and
(c) all the Purchaser’s present and after acquired property being a charge, including anything in respect of which the Purchaser has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Purchaser to PHB for Services – that have previously been provided and that will be provided in the future by PHB to the Purchaser
12.3 The Purchaser undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which PHB may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, PHB for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of PHB;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of PHB.
12.4 PHB and the Purchaser agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Purchaser waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Purchaser waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by PHB, the Purchaser waives their right to receive a verification statement in accordance with section 157 of the PPSA. 12.8 The Purchaser must unconditionally ratify any actions taken by PHB under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of PHB agreeing to provide Services, the Purchaser charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Purchaser either now or in the future, to secure the performance by the Purchaser of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Purchaser indemnifies PHB from and against all PHB’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PHB’s rights under this clause.
13.3 The Purchaser irrevocably appoints PHB (and each director of PHB) as the Purchaser’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Purchaser’s behalf.
14. Service of Notices
14.1 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 facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
14.2 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.
15. General
15.1 The failure by either party to enforce any provision of these terms and conditions 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 these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BHB has its principal place of business, and are subject to the jurisdiction of the courts in that state.
15.3 None of the conditions, warranties or other terms implied by Commonwealth, State or Territory laws (“the implied terms”) shall apply to any agreement between PHB and the Client for the provision of the Services except to the extent that the implied terms cannot be lawfully excluded.
15.4 PHB may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Purchaser’s consent.
15.5 The Purchaser cannot licence or assign without the written approval of PHB.
15.6 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.buyershomebase.com.au. These changes shall be deemed to take effect from the date on which the Purchaser accepts such changes, or otherwise at such time as the Purchaser makes a further request for PHB to provide Services to the Purchaser.
15.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control
of either party.
15.8 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.