TERMS AND CONDITIONS OF SERVICE

General Terms and Conditions of Trade



1. Definitions

1.1 “Contract” means these terms and conditions, together with the Purchaser’s 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 Purchaser Agreement with PHB and requests of PHB the supply of Services, and if:

(a) the Purchaser comprises more than one person, a reference to the Purchaser is a reference to all persons who comprise the Purchaser, each of whom are jointly and severally liable under this Contract;

(b) if the Purchaser is a partnership, the Contract binds each partner jointly and severally;

(c) if the Purchaser is a trustee of a trust, that trustee shall be bound by this Contract both personally and in their capacity as a trustee; and

(d) includes the Purchaser’s executors, administrators, successors and permitted assigns.

1.4 “Services” means all services detailed in the Purchaser’s Agreement or as otherwise agreed between the parties from time to time (in accordance with the variation regime contemplated by clause 5 of this Contract).

1.5 “Purchaser’s Agreement” means the Client Engagement Letter entered between the parties which outlines 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 their property to the Purchaser.

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

1.8 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them.

1.9 “Fee” means the fees set out in the Purchaser’s Agreement and as otherwise set out in clause 5 of this Contract.

1.10 “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;

(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 Purchaser’s 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

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 PHB Contract prior to a Property purchase (and/or any subsequent building of a dwelling or other structure).

3.2 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

3.3 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.

3.4 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.

4. Relationship Between the Parties

4.1  The Purchaser hereby engages PHB to provide the Services to the Purchaser, and PHB hereby accepts that engagement and agrees to provide the Services to the Purchaser, in accordance with the terms of this Contract.

4.2 The Purchaser acknowledges and agrees that 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.

4.3 PHB is an independent service provider of the Purchaser and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership, or joint venture between the parties.

5. Fees and Payments

6. PHB’s Obligations

6.1 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 Purchaser’s 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.

6.2 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.

6.3 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.

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. To the extent permitted by law, PHB accepts no responsibility or liability whatsoever:

(i) unless such full disclosure has been made to PHB; 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 Documentation 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 the appointment of a debt collector and the 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 by the Purchaser to PHB becomes overdue, or in PHB’s opinion the Purchaser will be unable to make a payment when it falls due;

(b) 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

(c) 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 this Contract, PHB may suspend performance and provide notice of breach to the Purchaser.  The Purchaser must rectify the relevant breach within 7 days of receipt of PHB’s notice of breach.  Any failure of the Purchaser to rectify the relevant breach will entitle PHB to terminate this Contract, in which case 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.

9.3 In the event of any termination of this Contract in any circumstances and for any reason whatsoever:

(a) the Purchaser will remain liable to pay all Fees and other amounts accrued up to and including the date of termination (including any outstanding amounts of the overall Fee that have not been paid), whether or not invoiced prior to the date of termination;

(b) PHB will send to the Purchaser a final invoice for the balance of any unbilled Fees or other charges accrued up to and including the date of termination and clause 5 will apply in respect thereof;

(c) termination will not affect the rights or liabilities that the parties have accrued under it prior to such termination; and

(d) the obligations of the parties pertaining to confidentiality, liability and remedies will survive the termination of this Contract.

9.4 If the Purchaser terminates the Contract for a reason other than PHB’s breach of a material obligation (rectification of which has not occurred within 30 days of the Purchaser providing PHB with notice of such breach), or PHB terminates the Contract because of the Purchaser’s breach, insolvency or receivership (and fails to remedy such breach within seven (7) days of PHB giving notice to the Purchaser of such breach), then the Purchaser is liable to not only pay all amounts contemplated by clause 9.3, but must also pay a cancellation fee equal to the below which the Purchaser acknowledges and agrees is a genuine pre-estimate of the costs and losses that PHB will suffer as a result of termination by the Purchaser:

(a) a cancellation fee of one thousand dollars ($1,000.00) may be applicable; or

(b) twenty-five percent (25%) of the potential Completion 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, to the extent permitted by law, 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) PHB’s total liability arising under this Contract is strictly limited to the proceeds that PHB may receive from its Professional Indemnity Insurance in respect of the relevant 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, to the extent permitted by law, 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, PHB 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 in good faith 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 VCAT.

12. Service of Notices

12.1 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.

12.2 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.

13. General

13.1 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.

13.2 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.

13.3 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.

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

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

13.6 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.

13.7   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.

13.8 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.

13.9 Confidentiality

13.9.1 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.

13.9.2 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.

13.10 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.

13.11 Privacy

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