Terms and Conditions

1. Definitions and interpretation

1.1. Unless the context requires otherwise, capitalised terms have the meanings given to them in the body of this Agreement, and the following words and expressions shall have the meanings set out below:

(a) Agreement means this Purchase Concierge Agreement, including these terms and conditions, the Formal Instrument of Agreement and all schedules (including the Schedule), annexures and attachments to these terms and conditions;

(b) Better Insights Brief means the questionnaire provided by Milk Chocolate to the Client, within which the Client will specify their requirements and the relevant information so as to allow Milk Chocolate to provide the Purchase Concierge Services;

(c) Client means the Client set out in Item 1 of Schedule 1 (and includes the Client’s representative set out in Item 1 of the Schedule), or as appointed by the Client and notified to Milk Chocolate from time to time;

(d) Client’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of the Client or any of its personnel before the date of this Agreement and/or developed by or on behalf of the Client or any of its personnel independently of this Agreement;

(e) Confidential Information includes information which:

(i) is disclosed to the Receiving Party in connection with this Agreement at any time;

(ii) is prepared or produced under or in connection with this Agreement at any time;

(iii) relates to the Disclosing Party’s business, assets or affairs; or

(iv) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

(f) Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of use or property or money, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

(g) Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

(h) Force Majeure means any event or circumstance beyond a Party’s reasonable control and may include one or more (or a combination) of the following:

(i) an act of God (including but not limited to fire, earthquake, cyclone, landslide, tsunami, or other natural disaster);

(ii) civil unrest, armed conflict, act of terrorism, insurrection, military coup, war (whether declared or not) or other like hostilities;

(iii) ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination; or

(iv) disease, epidemic, pandemic, and/or government sanctioned shutdown.

(i) Formal Instrument of Agreement means the document attached to or referred to in these terms and conditions, forming part of this Agreement;

(j) Improvements means any development, modification, adaptation or improvement of any New Materials made by or on behalf of either Party (or any of their respective personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the term of this Agreement;

(k) Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

(l) Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

(m) Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent;

(n) Milk Chocolate’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services that Milk Chocolate may provide to the Client under this Agreement, and which may contain material which is owned by or licensed to Milk Chocolate, and is protected by Australian and international laws;

(o) New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of Milk Chocolate or the Client or any of either Party’s respective personnel in connection with this Agreement or the provision of the Purchase Concierge Services, whether before or after the date of this Agreement;

(p) Parties means the Client and Milk Chocolate;

(q) Property has the meaning given in clause 3.16;

(r) Purchase Concierge 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, as adjusted in accordance with this Agreement; and

(s) Purchase Concierge Services means the services as defined in clause 3 of this Agreement;

(t) Receiving Party means the party receiving Confidential Information from the Disclosing Party; and

(u) Website means milkchoc.com.au

1.2. In this Agreement, unless the context otherwise requires:

(a) Headings have been inserted for guidance only and are not to be used to construe the meaning of any part of this Agreement;

(b) Words denoting the singular include the plural and vice versa;

(c) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(d) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(e) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(f) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(g) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(h) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(i) a reference to time is to local time in New South Wales; and

(j) a reference to $ or dollars refers to the currency of Australia from time to time.

2. Appointment of Milk Chocolate

The Client hereby engages Milk Chocolate to provide the Purchase Concierge Services and Milk Chocolate hereby accepts that appointment.

3. Purchase Concierge Services

3.2. The Purchase Concierge Services shall be provided in the following stages, with stages 8 to 12 repeated until a property is approved by the Client and effectively purchased by the Client:

(a) Stage 1 – Introduction;

(b) Stage 2 – Project Approval;

(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.

Stage 1: 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. The Parties acknowledge and agree this Agreement applies retrospectively in respect of the Purchase Concierge Services (and any other Purchase Concierge Services) provided by Milk Chocolate, and any payments made by the Client to Milk Chocolate, prior to execution of this Agreement.

Stage 2: 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.

Stage 3: Questionnaire

3.6. Milk Chocolate will provide the Client with a form of the Better Insights Brief, for the Client to complete.

3.7. The Client will complete the Better Insights Brief to the best of their ability specifying the Client’s requirements.

Stage 4: Research

3.8. Based on the Better Insights Brief, Milk Chocolate will conduct 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 property prices in the local market.

3.10. Milk Chocolate will prepare a shortlist of properties, that matches the Better Insights Brief so far as reasonably possible.

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.

Stage 5: View Properties

3.12. Milk Chocolate will discuss requirements with real estate agents and inspect the shortlisted properties.

Stage 6: Property Recommendations

3.13. After stage 3, Milk Chocolate will provide access to their bespoke website where the Client will view:

(a) an overview of the Client’s requirements and the process undertaken by Milk Chocolate;

(b) suburb due diligence and research findings;

(d) document and data storage;

(e) details of recommended properties for purchase; and

(f) an opportunity for the Client to provide feedback,

(the Bespoke Website).

Stage 7: Client Viewing

3.14. Milk Chocolate will arrange for inspections of recommended properties.

3.15. Where the Client is situated interstate or overseas, they may nominate a person to attend inspections of the recommended properties.

Stage 8: Negotiation

3.16. Where the Client identifies a property for purchase (the Property), Milk Chocolate will use its reasonable 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.

Stage 9: Reports

3.17. Milk Chocolate will arrange for the performance of due diligence on the Property, but this due diligence is limited and does not include the following:

(a) an invasive plumbing assessment;

(b) an electrical safety assessment;

(d) strata reports;

(e) a pest report;

(f) a building report; and

(g) any other reports that are necessary for the Client to undertake due diligence on the Property.

Milk Chocolate recommends the Client purchase the additional reports which are specific to the Property. These reports can be purchased by the Client from the relevant third party providers separately, and are in addition to the Purchase Concierge Fee.

Milk Chocolate will arrange for the purchase of the required reports on the Client's behalf, with the Client's approval of costs.

The Client is solely responsible for making payment for the reports to the relevant third party providers, upon receipt of invoices from the third party providers and at or about the time that Milk Chocolate orders the reports

Stage 10: 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.

Stage 11: Exchange

3.19. Milk Chocolate will liaise with a solicitor or conveyancer nominated by the Client or as otherwise referred by Milk Chocolate, to complete the exchange of contracts for the purchase of the Property. The solicitor’s fees are not included in the Purchase Concierge Fee and the Client will be liable to pay for the solicitor or conveyancer fees separate to this Agreement. The solicitor will be engaged by the Client directly.

Stage 12: Settlement

3.20. Milk Chocolate will attend to the settlement of the Property (to the extent required) including the pre-settlement inspection.

4. Communication

4.1. Milk Chocolate will provide the Client access to a variety of communication methods 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 Purchase Concierge Services and both Milk Chocolate and the Client warrants that they will take all reasonable steps to ensure that any communication between the Parties will be dealt with promptly and in accordance with the communication methods set out in Item 3 of Schedule 1.

5. Purchase Concierge Fees

5.1. The Client shall pay to Milk Chocolate the Purchase Concierge Fees in consideration of Milk Chocolate performing the Purchase Concierge Services.

5.2. The Client acknowledges and agrees that the Purchase Concierge Fees are payable in stages pursuant to Item 2 of Schedule 1.

5.3. The Client will pay the Purchase Concierge Fees by such means as notified by Milk Chocolate.

Additional Amounts Payable

5.4. The Client acknowledges that additional fees apply, as set out in this Agreement, and if:

(a) Milk Chocolate is engaged to Project Manage the construction or renovations of the property;

(b) the service known as “Milk Chocolate Moving Concierge” is required;

(d) the Client changes the brief once the stage 4 Purchase Concierge Services (in clauses 3.8 - 3.11) have been approved by the Client, requiring new regions to be researched, in which case, a new engagement fee of 25% is payable by the Client within seven days of the new brief being confirmed by Milk Chocolate in writing.

6. Milk Chocolate’s Obligations and Rights

6.1. Milk Chocolate shall perform the Services in a professional manner using reasonable skill, care and diligence, and will act in accordance with the Clients’ lawful and reasonable instructions.

6.2. Milk Chocolate will comply with all applicable 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 the Client is purchasing.

6.4. Milk Chocolate will notify the Client if, at any time, a conflict of interest arises, and Milk Chocolate may take any reasonably necessary steps to resolve the conflict.

7. Client’s Obligations and Rights

7.1. The Client hereby warrants and agrees that they appoint and authorise Milk Chocolate as their agent and authorise Milk Chocolate to take any reasonable steps on behalf of the Client as required for the performance of the Services.

7.2. The Client acknowledges and agrees that, while Milk Chocolate is authorised to act on the Client’s behalf, unless otherwise agreed between the Parties the Client is solely responsible for the payment of all third party costs payable in the course of the provision of the Purchase Concierge Services, or arising from, or in connection with, the Client’s purchase of the Property (including the Client’s solicitor’s fees and any mortgage fees).

7.3. 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 (NSW).

7.4. 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 for the Property and to purchase the Property for the purchase price (if their finances are approved); and

(d) if the Client does not have its 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 legal and financial advice, inquiries of any statutory authorities (including 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 third party property portals and data providers.

8.3 The Client acknowledges that any financial or investment information 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 by both Parties, at which time the ‘Engagement Fee’ has to be 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 as the Client’s buyer’s agent, for a period of 6 months from the date of this Agreement.

10.2. The exclusive rights in clause 10.1 shall survive termination of this Agreement (except for termination by Milk Chocolate pursuant to clause 11.5).

11. Termination

11.1. In the event that Milk Chocolate breaches a material term of this Agreement, the Client may terminate this Agreement by providing 14 days’ written notice to Milk Chocolate, and provided the material breach is not remedied within the notice period.

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 14 days’ written notice to the Client, and payment will be due to Milk Chocolate for the Purchase Concierge Services provided up to the date of termination only.

11.3. The expiry or 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 expires or is terminated and the Client purchases a property that has been sourced by Milk Chocolate within six months of the expiry or termination date, the Client is liable for, and must immediately pay to Milk Chocolate, the full amount of the Purchase Concierge Fees as per clause 5, Item 2 of Schedule 1.

11.5. Either Party may terminate this Agreement, at any time, by giving the other Party no less than 30 days’ written notice.

11.6 Upon the expiry or termination of this Agreement:

(a) each Party shall immediately return to the other Party (where possible), or delete or destroy (where not possible to return), any of the other Party’s Confidential Information and Intellectual Property in its possession;

(b) each Party shall pay to the other Party any amounts due and payable under the Agreement as at the date of the Agreement; and

12 Intellectual Property Rights

12.1 As between the Parties:

(a) Milk Chocolate owns all Intellectual Property Rights in Milk Chocolate’s Materials; and

(b) the Client owns all Intellectual Property Rights in the Client’s Materials,

and nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Milk Chocolate’s Materials or the Client’s Materials.

12.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in Milk Chocolate upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in Milk Chocolate, the Client agrees to do all acts necessary or desirable to assure Milk Chocolate’s title to such rights.

12.3 Milk Chocolate grants the Client a non-exclusive, revocable, worldwide and non-transferable right and licence, for the duration of the term of this Agreement, to use Milk Chocolate’s Materials that Milk Chocolate provides to the Client, and the New Materials and Improvements, solely for the purposes for which they were developed and for the Client’s use and enjoyment of the Purchase Concierge Services, as contemplated by this Agreement.

12.4 If the Client has any Moral Rights in any material provided, used or prepared in connection with this Agreement, the Client agrees to consent to Milk Chocolate’s use or infringement of those Moral Rights.

13 Australian Consumer Law

13.1 Certain legislation, including the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time (ACL), and similar consumer protection laws and regulations, may confer the Client with rights, warranties, guarantees and remedies relating to the provision of the Purchase Concierge Services by Milk Chocolate to the Client which cannot be excluded, restricted or modified (Statutory Rights).

13.2 If the ACL applies to the Client as a consumer, nothing in this Agreement excludes the Client’s Statutory Rights as a consumer under the ACL. The Client agrees that, to the maximum extent permitted by law, Milk Chocolate’s Liability for the Purchase Concierge Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

13.3 Subject to the Client’s Statutory Rights, Milk Chocolate excludes all express and implied warranties, and all material, work and services (including the Purchase Concierge Services) are provided to the Client without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

14 Liability

14.1. Despite anything to the contrary, to the maximum extent permitted by law, Milk Chocolate will have no liability for any Liability, and the Client waives and releases Milk Chocolate from any such Liability, caused or contributed to by, arising from or in connection with:

(a) the Client’s, its personnel’s or any third party’s, acts or omissions;

(b) any use or application of, or reliance on, the Purchase Concierge Services by a person or entity other than the Client, or other than as reasonably contemplated by this Agreement;

(c) any works, services, goods, materials or items which do not form part of the Purchase Concierge Services (as expressed in this Agreement), or which have not been provided by Milk Chocolate;

(d) any third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Purchase Concierge Services may be contingent on, or impacted by;

(e) the Purchase Concierge Services being unavailable, or any delay in Milk Chocolate performing the Purchase Concierge Services to the Client, for whatever reason; and/or

(g) any event outside of Milk Chocolate’s reasonable control.

14.2. Despite anything to the contrary, to the maximum extent permitted by law:

(a) each Party’s liability for any Liability will be reduced proportionately to reflect the extent to which the other Party may have caused or contributed to the relevant Liability;

(b) neither Party will be liable to the other Party for any Consequential Loss; and

(c) Milk Chocolate’s aggregate liability for any Liability arising from or in connection with this Agreement shall be limited to Milk Chocolate reperforming the Purchase Concierge Services the subject of the Liability to the Client or, in Milk Chocolate’s sole discretion, to Milk Chocolate repaying the Client the amount of the Purchase Concierge Services Fees paid by the Client to Milk Chocolate in respect of the relevant Liability, and in any event, Milk Chocolate’s aggregate liability for all Liabilities arising from or in connection with this Agreement shall not exceed $500.

15. Force Majeure

If a Party is prevented from or delayed in performing an obligation by a Force Majeure, and provided the Party takes reasonable steps to mitigate or remove the Force Majeure and its effects (where possible), then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances.

16 Confidentiality

16.1 Each Receiving Party agrees:

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

16.2 The obligations in clause 16.1 do not apply to Confidential Information that:

(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

(b) is authorised to be disclosed by the Disclosing Party;

(d) must be disclosed by Law or by a regulatory authority, including under subpoena.

16.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 16. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 16.

17. General

17.1. 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 irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

17.2. Each provision of this Agreement which, by its nature, including any indemnities, shall survive the expiry or termination of this Agreement.

17.3. Milk Chocolate shall not assign or deal with the whole or any part of any of its respective rights and obligations under this Agreement without the prior written consent of the Client, such consent not to be unreasonably withheld.

17.4. This Agreement is not intended to create a partnership, joint venture or employment relationship between the Parties.

17.5. 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.

17.6 If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

17.7 By accepting this Agreement, The Client consents to and agrees that Milk Chocolate may advertise or publicise the broad nature of our provision of the Purchase Concierge Services provided to the Client and case studies or posts involving the Properties, including on the Website, Milk Chocolate's social media channels, and/or in its promotional material.

17.8 This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

17.9 Each Party shall promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

17.10 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

17.11 This Agreement may be executed in any number of counterparts that together will form one instrument.

17.12 This Agreement may only be amended by written instrument executed by the Parties.

17.13 If Milk Chocolate considers that a direction from the Client constitutes a change or variation to the Purchase Concierge Services, Milk Chocolate will inform the Client of the impact of the variation on the Agreement (including the Purchase Concierge Fees).

Standard Terms - Purchase