THIS AGREEMENT IS BETWEEN
Milk Chocolate Property Pty Ltd (ABN 43 630 656 692) of Suite 7.03, 75 Mary Street, St Peters in the State of New South Wales (“Milk Chocolate”)
AND
The parties set out in Item 1 of the Schedule (the “Client”)
(Collectively referred to as the “parties”).
RECITALS
A. Milk Chocolate offers end-to-end Purchase Concierge Services.
B. The Client has agreed to engage Milk Chocolate to provide the Purchase Concierge Services.
C. Both Milk Chocolate and the Client agree to the engagement pursuant to the terms and conditions of this Agreement.
OPERATIVE PROVISIONS
1. Definitions
1.1. Unless the context requires otherwise the following words and expressions shall have the meanings set out below:
(a) Agreement means this Purchase Concierge Agreement;
(b) Client means the Client or the Client’s representative set out in Item 1 of Schedule 1 or as appointed by the Client from time to time;
(c) Fees means the fees payable to Milk Chocolate by the Client in consideration of the performance by Milk Chocolate of the Purchase Concierge Services hereunder being the amount calculated in accordance with Item 2 of Schedule 1; and
(d) Website means milkchoc.com.au
2. Interpretation
(a) Headings have been inserted for guidance only and are not to be used to construe the meaning of any part of this Agreement; and
(b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, reference to a document or Agreement includes reference to that document or Agreement as changed, novated or replaced from time to time, words denoting any gender include all genders.
3. Purchase Concierge Services
3.1. The Client hereby engages Milk Chocolate to provide the Purchase Concierge Services and Milk Chocolate hereby accepts that engagement.
3.2. The Purchase Concierge Services shall proceed in the following stages (Point h - l repeated until property is approved by the client and purchased) :
(a) Stage 1 – Introduction;
(b) Stage 2 – Project Approval;
(c) Stage 3 – Questionnaire;
(d) Stage 4 – Research;
(e) Stage 5 – View Properties;
(f) Stage 6 – Property Recommendations;
(g) Stage 7 – Client Viewing;
(h) Stage 8 – Negotiation for best purchase price;
(i) Stage 9 – Reports;
(j) Stage 10 – Auction/Offer;
(k) Stage 11 – Exchange; and
(l) Stage 12 – Settlement,
(the “Services”).
Introduction
3.3. Milk Chocolate meets with the Client in person or arranges a phone conference or teleconference to discuss the Client’s key needs, requirements and expectations.
Project Approval
3.4. The Client and Milk Chocolate will execute this Agreement.
3.5. The Client will pay the Engagement Fee and agrees and acknowledges that the Engagement Fee is non-refundable.
Questionnaire
3.6. Milk Chocolate will provide the Client with a Better Insights Brief to complete.
3.7. The Client will complete the Better Insights Brief to the best of their ability specifying the Client’s requirements (the “Better Insights Brief”).
Research
3.8. Based on the Better Insights Brief, Milk Chocolate will conduct extensive research to match the Client’s purchasing criteria with suitable properties in the appropriate States, suburbs and streets.
3.9. Milk Chocolate will perform due diligence on factors which affect the prices in the local market.
3.10. Milk Chocolate will prepare a shortlist of properties that matches the Buyer’s Brief.
3.11. Milk Chocolate will perform due diligence on the shortlisted properties including assessing data and key indicators that affect a property purchase, access to public transport and infrastructure, comparable property analysis and full property feasibility studies.
View Properties
3.12. Milk Chocolate will discuss requirements with agents and inspect the shortlisted properties.
Property Recommendations
3.13. After stage 3, Milk Chocolate will provide access to the bespoke website that allows the Client to view:
(a) an overview of the Client’s requirements and the process undertaken by Milk Chocolate;
(b) suburb due diligence and research findings;
(c) personal blog and newsfeed;
(d) document and data storage;
(e) details of a minimum of three (3) recommended properties for purchase; and
(f) an opportunity for the Client to provide feedback.
(the “Bespoke Website”).
Client Viewing
3.14. Milk Chocolate will arrange for inspections of recommended properties.
3.15. Where Clients are situated interstate or overseas, they may nominate a person to attend inspections of the recommended properties.
Negotiation
3.16. Where the Client identifies a property for purchase (the “Property”), Milk Chocolate endeavours to negotiate the best possible purchase price with the vendor or the vendor’s agent based on an appraisal of the market value of the property.
Reports
3.17. Milk Chocolate will perform due diligence on the property and recommend you purchase the required reports specific to the property. This cost is on top of our service fee.
These reports include but not limited to:
(a) Invasive Plumbing Assessment;
(b) Electrical Safety Assessment;
(c) Structural Engineer Report;
(d) Strata Reports;
(e) Pest Report; and
(f) Building Reports.
Auction/Offer
3.18. Where the Client requests that Milk Chocolate attend an auction or make offers for the Property, Milk Chocolate will bid on the Client’s behalf at no extra cost.
Exchange
3.19. Milk Chocolate will liaise with a solicitor nominated by the Client or referred to by Milk Chocolate to complete the exchange of contracts for the purchase of the Property. The Client is liable to pay for the solicitor fees in full.
Settlement
3.20. Milk Chocolate will attend to settlement of the Property including the pre-settlement inspection.
4. Communication
4.1. Milk Chocolate will provide the Client access to a variety of communication methods that can be relied on to facilitate ongoing real-time communication between the Client, and Milk Chocolate, including but not limited to the methods of communication set out in Item 3 of the Schedule 1.
4.2. The parties acknowledge and agree that communication between the parties is vital to the performance of the Services contemplated by this Agreement and both Milk Chocolate and the Client warrant that they will take all reasonable steps to ensure that any communication between the parties will be dealt with promptly and in line with the communication methods set out in Item 3 of Schedule 1.
5. Fees
5.1. The Client shall pay to Milk Chocolate the Fees in consideration of Milk Chocolate performing the Services.
5.2. The Client acknowledges and agrees that the Fees are payable in stages pursuant to Item 2 of Schedule 1.
5.3. The Client will pay the Fees by Direct Debit into the account nominated in Item 4 of Schedule 1.
Additional Amounts Payable
5.4. Client acknowledges that additional fees apply if::
(a) Milk Chocolate is engaged to Project Manage the construction or renovations of the property;
(b) “Milk Chocolate Moving Concierge” is required
(c) Once the Reverse Brief, Suburb Due Diligence and Research (3.8 - 3.11) have been approved by the client, if then at the clients request the brief changes requiring new regions to be researched, a new engagement fee of 25% is payable within seven days of the new brief being confirmed.
6. Milk Chocolate’s obligations and rights
6.1. Milk Chocolate shall carry out its obligations hereunder promptly and will always act in accordance with the Clients’ lawful instructions employing competence, diligence and due care in carrying out duties in the best interest of the Client at all times.
6.2. Milk Chocolate will comply with all relevant state and national laws and regulations, and the Real Estate Buyers Agents Association of Australia Code of Conduct, including but not limited to holding current professional indemnity insurance appropriate for the industry.
6.3. Milk Chocolate agrees to act exclusively in the Client’s best interest and warrants that no commission payment is received from the vendor or the vendor’s agent with respect to a property that a client is purchasing.
7. Client’s obligations and rights
7.1. The Client hereby warrants that they appoint Milk Chocolate as their agent and authorise Milk Chocolate to take all reasonable steps required for the performance of the Services.
7.2. The Client acknowledges and agrees that, while Milk Chocolate is authorised to act on your behalf, the Client is solely responsible for the payment of all third party costs payable in the course of the provision of the Services agreed to under this Agreement, excluding inspections covered pursuant to clause 3.17.
7.3. The Client hereby agrees to indemnify Milk Chocolate in respect to any loss and damage which may be directly suffered by Milk Chocolate as a result of any breach by the Client of the terms of this Agreement, or as a result of any act or default of the Client arising during the performance of the Services and shall be capped at two times fees paid by client under this agreement.
7.4. The Client warrants it will supply Milk Chocolate in writing with all the material facts in respect of its proposed property acquisition. In this clause “material fact” has the same meaning as in Section 52 of the Property Stock and Business Agents Act 2002.
7.5. The Client warrants that it:
(a) has the authority to enter into this Agreement;
(b) will maintain realistic expectations as to the type and quality of property that can be purchased within the price range stated in the Better Insights Brief;
(c) is ready, willing and able to enter into a contract of sale (if their finances are approved);
(d) If the client does not have it’s finances approved, is ready, willing and able to enter into a mortgage application.
8. Professional and Other Advice
8.1. The Client acknowledges that all advice provided is general in nature and subject to the inherent volatility of the real estate market. Milk Chocolate’s advice does not form legal advice, town planning, building, renovation, architectural or other professional advice. The Client must rely upon its own inquiries of any statutory authorities (Council, sewerage, water, environmental) to establish the quality or suitability of the Property for their purposes.
8.2. Milk Chocolate does not make any warranty regarding the accuracy of information supplied to the Client in good faith from property portals and data providers.
8.3 The client will hold and keep indemnified Milk Chocolate against all actions, suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against Milk Chocolate in the course of or arising out of the proper performance or exercise of any of the powers, duties or authorities of Milk Chocolate under the agreement.
8.4 The client acknowledges that any financial or investment advice provided by Milk Chocolate to the client is of a general nature only whose preparation does not take into account the individual circumstances, objectives, financial situation or needs of the client. The client is advised to consult with their own independent financial and/or investment advisor.
9. Commencement
9.1. This Agreement commences on the date that this Agreement is executed and the ‘Engagement Fee’ has been paid by the Client to Milk Chocolate.
10. Period of Agreement
10.1. In consideration of Milk Chocolate promising to use its best endeavours, the Client grants Milk Chocolate exclusive rights to search for and appraise property, negotiate the purchase of property, and bid at auctions on behalf of the Client for a period of six (6) months from the date of this Agreement.
10.2. At expiry, the exclusive rights continue until such time as the Client purchases a property or this Agreement is terminated in writing by either party.
11. Termination
11.1. In the event that Milk Chocolate does not in the opinion of the Client carry out its responsibilities competently and promptly as set out herein this Agreement may be terminated by the Client by providing seven (7) days’ notice and payment will be due to Milk Chocolate for the services provided to the date of termination only.
11.2. If the Client fails to make any payment to Milk Chocolate as and when it falls due, then this Agreement may be terminated by Milk Chocolate by providing seven (7) days’ notice and payment will be due to Milk Chocolate for the services provided to the date of termination only.
11.3. The termination of this Agreement shall not prejudice any other rights and remedies the parties may have under this Agreement one against the other.
11.4. If this agreement is terminated and the client purchases a property that has been sourced by Milk Chocolate within six months of the termination date, the client will have to pay Milk Chocolate the fee as per clause 5, Item 2 of Schedule 1.
12. General
12.1. This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in the State of New South Wales, Australia, and the parties agree that the court system of that State shall be the forum of choice in relation to this Agreement.
12.2. No party shall divulge any confidential information obtained from the other in the performance of this Agreement
12.3. Milk Chocolate shall not assign any of its respective rights and obligations hereunder.
12.4. Nothing herein contained shall be deemed or construed to create the relationship of partners between the parties hereto.
12.5. The covenants, provisions, terms and agreements contained herein expressly or by statutory implication cover and comprise the whole of the Agreement between the parties and the parties expressly agree and declare that no further or other covenants, Agreements, provisions or terms shall be deemed to be implied herein or to arise between the parties by way of collateral of other Agreement by reason of any promise, representation, warranty or undertaking given or made by either party to the other and such implication or collateral or other Agreement is hereby negatived.