Terms and Conditions
Operative clauses
Definitions and interpretation
In this Agreement:
Unless the context requires otherwise, capitalised terms shall have the meanings set out below:
Agreement means this Purchase Service Agreement, including these terms and conditions, the Formal Instrument of Agreement and all schedules (including the Schedules), and any annexures and attachments to these terms and conditions;
Getting to know you Brief means the questionnaire provided by Milk Chocolate to the Client, within which the Client will specify their requirements and the relevant information required for Milk Chocolate to provide the Purchase Services;
Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia;
Change of Property Type Fee has the meaning given in the Fee Terms;
Client means the Client set out in Schedule 1 - Client details (and includes the Client's representative set out in Schedule 1 - Client details or such other representative appointed by the Client and notified to Milk Chocolate from time to time);
Client Account means the account held by the Client on the Website;
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 representatives developed prior to or independent before the date of this Agreement;
Commencement Date means the date on which this Agreement is executed by both parties;
Confidential Information includes information which:
is disclosed to the Receiving Party in connection with this Agreement at any time;
is prepared or produced under or in connection with this Agreement at any time;
relates to the Disclosing Party's business, assets or affairs; or
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;
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 and includes legal costs;
Disclosing Party means the party disclosing Confidential Information to the Receiving Party;
Documents means the Schedule, Terms and Conditions, Formal Instrument of Agreement, Milk Chocolate Terms of Service and any other agreements entered into by or on behalf of the Client with Milk Chocolate and any other terms that may apply to users of the Website from time to time;
Family Home means any property that is not an Investment Property;
Fee Terms means the terms setting out the fees payable by the Client, including the Purchase Service Fees, and which are located in Schedule 2 - Fee terms
Force Majeure Event means any event or circumstance which is beyond a Party's reasonable control including but not limited to:
an act of God (including but not limited to fire, earthquake, cyclone, landslide, tsunami, hurricane, typhoon, mudslide or other natural disaster);
civil unrest, civil rebellion, revolution, armed conflict, act of terrorism, insurrection, military coup, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities;
ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination; or
disease, any widespread illness, quarantine or government sanctioned ordinance or shutdown pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Formal Instrument of Agreement means the document so entitled and attached to these terms and conditions, forming part of this Agreement;
Game Plan means the [property plan applicable to your potential property acquisition and (if applicable) any future plans, including but not limited to rental to tenants, renovations or home improvements, of which further details can be found here: Guide to the Game Plan™ - Milk Chocolate];
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999;
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 representatives), or in respect of which Intellectual Property Rights are acquired by, either Party during the term of this Agreement;
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;
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;
Investment Property means a property:
that is acquired by the Client for the dominant purpose of generating a return from rental income or capital growth in the property;
in respect of which an arm's length rental or leasing agreement is entered into by the Client (or on behalf of the Client) on market terms; and
in respect of which, neither the Client nor any member of the Client's family (nor any family member of the Client's shareholders or the Client's directors) resides;
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (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 and includes legal costs and whether involving a third party or a Party to this Agreement or otherwise;
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;
Milk Chocolate Terms of Service means the terms of service binding on the Client and located at the following address: https://milkchoc.com.au/standard-terms-purchase
Minor Variation of Scope Fee has the meaning given in the Fee Terms;
Monthly Period means each 30 day period under this Agreement, with the first Monthly Period commencing on the date of entry into this Agreement;
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 or representatives in connection with this Agreement or the provision of the Purchase Services, whether before or after the date of this Agreement;
Onboarding Fee means the fee payable to Milk Chocolate in accordance with the Fee Terms and this Agreement;
Parties means the Client and Milk Chocolate, and Party means either of them;
Personal Information has the meaning as defined in any applicable Privacy Law;
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a Party in the performance of its obligations under this Agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation;
Property has the meaning given in clause 5.9b;
Property Type means a Family Home or an Investment Property;
Prospective Property means from time to time, any real property which is set in a shortlist of real property provided by Milk Chocolate to the Client based on their responses to the Getting to know you Brief, their selected Game Plan™ or instructions from time to time in accordance with this Agreement;
Purchase Service Fees means the fees payable to Milk Chocolate by the Client in consideration of the performance by Milk Chocolate of the Purchase Services hereunder being the amount calculated in accordance with Fee Terms, as adjusted in accordance with this Agreement;
Purchase Services means the services to be delivered by Milk Chocolate as set out in clause 5;
Receiving Party means the party receiving Confidential Information from the Disclosing Party;
Revised Brief Fee has the meaning given in the Fee Terms;
Schedule means each of the schedules attached to the Formal Instrument of Agreement;
Stage means each stage of the Purchase Services set out in clause 5;
Term means nine consecutive Monthly Periods commencing on the date of this Agreement;
Terms and Conditions means these terms and conditions which are so entitled;
Total Fees means the sum of the Purchase Service Fees as set out in Schedule 2 - Fee terms for the Term, less any amount of the Purchase Service Fees already paid (or deemed to be paid) under this Agreement for the Term; and
Website means https://milkchoc.com.au or such other replacement website notified to the Client from time to time.
you mean the Client.
Interpretations
In this Agreement, unless the context otherwise requires:
the headings have been inserted for guidance only and are not to affect the interpretation of any part of this Agreement;
words denoting the singular include the plural and vice versa;
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;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
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;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
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;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
a reference to time is to local time in New South Wales;
a reference to $ or dollars refers to the officially recognised currency of Australia from time to time; and
a reference to the term including or cognate or similar expressions should not be read in limitation.
To the extent of any inconsistencies in interpretation between the Documents, the order of priority in interpreting the Documents is as follows, such that between any two Documents referred below, the Document that is set out above the other shall prevail to the extent of any inconsistency:
Schedules;
Standard Terms;
Formal Instrument of Agreement;
Fee Terms;
Milk Chocolate Terms of Service; and
the terms of any other Document.
Appointment of Milk Chocolate
The Client engages Milk Chocolate to provide the Purchase Services and Milk Chocolate accepts that appointment.
The Purchase Services provided by Milk Chocolate are provided in respect of acquisition of a Property that is of the Property Type set out in clause 2.1 of the Formal Instrument of Agreement.
The Client acknowledges that Milk Chocolate will not be responsible for any Purchase Services unless expressly set out in this Agreement.
The Client acknowledges and agrees that any dates for delivery or for completion notified by Milk Chocolate are estimates only. Milk Chocolate agrees to use reasonable endeavours to provide the Purchase Services within a reasonable time.
Commencement Date
This Agreement commences on the Commencement Date.
Period of Agreement
The Client has engaged Milk Chocolate to provide the Purchase Services on the terms of this Agreement for the Term in exchange for paying the fees set out in the Fee Terms, including the Purchase Service Fee applicable to each Monthly Period in the Term.
At the end of the Term, if the Client has not settled on the acquisition of any Prospective Property, and subject to the Client's rights to cancel the Purchase Services at any time under clause 11.1, Milk Chocolate will automatically provide the Purchase Services for an additional Monthly Period and will charge the Client a Purchase Service Fee for each additional Monthly Period after the Term as set out in the Fee Terms.
Purchase Services
The Purchase Services means each of the services set out below. Each Stage may be repeated and run concurrently or before any other Stage with respect to each Prospective Property until the a Property is unconditionally purchased by the Client or this Agreement ceases in accordance with its terms:
Registration and onboarding
As part of registration and onboarding, you will provide us with important details about yourself, including sharing information on your financial situation and any existing properties you may own. You will agree to Terms and Conditions and the terms of the other Documents and pay the first instalment of the Purchase Service Fees.
Choose your Game Plan™
Based on the information you provide us as part of registration and onboarding, we will create Game Plan™ scenarios for you to review. We work together with you to refine your Game Plan™ and you will select your preferred Game Plan™.
Explore your suburbs
Based on the information you have provided us and your selected Game Plan™, we present the market and suburbs to suit the brief you have given us. We may also provide some data and insights to assist you.
Track the search progress
You will be able to track the progress of our team as we review every property in the selected markets, either rejecting unsuitable properties or shortlisting the properties that match the criteria and information you have given us. We will provide a summary of the rationales for why the property has been rejected or has been shortlisted.
Review the top result
From the shortlisted Prospective Properties, we will put forward the potential property that best matches your criteria and share our initial research with you. Depending on the state and the type of offer we would be making, we will either:
with your approval, make a conditional offer for that option pursuant to clause 5.9 (Negotiate and/or bid at auction); or
proceed to carry out research for you pursuant to clause 5.6.
Due diligence
For the chosen property, we undertake some initial research and will share a summary of our results with you. If you approve us to proceed, we then carry out detailed due diligence and prepare a purchase plan for you to approve. In providing a shortlist of Prospective Properties to the Client, Milk Chocolate will undertake a reasonable assessment of the key indicators based on the Game Plan™ approved by the Client, including (if applicable) access to public transport and infrastructure, comparable property analysis and full property feasibility studies, but excluding the reports referred to in clause 5.10 which are the Client's responsibility to procure (subject to the terms of clause 5.10) and such reports are excluded from Milk Chocolate's research as part of this Stage.
View Prospective Properties
Unless you object to us in writing beforehand to Milk Chocolate, Milk Chocolate will inspect the shortlisted Prospective Properties for you and provide a summary of its inspection results in Milk Chocolate's preferred form of reporting including through the Client Account.
Client viewing (if required)
Upon receiving reasonable prior written notice from the Client, Milk Chocolate will take reasonable steps to arrange for the Client's inspection of Prospective Properties.
Where the Client is situated interstate, overseas or otherwise unable to attend the property inspection, the Client may nominate a person to attend inspections of the Prospective Properties on their behalf.
If Milk Chocolate has not received reasonable prior written notice from the Client or the Client has notified Milk Chocolate in writing not to arrange for an inspection, Milk Chocolate will not be required to arrange an inspection of a Prospective Property for the client.
Negotiate and/or bid at auction
You'll use the tools in your Client Account to upload your signed contract and approved due diligence reports to allow us to negotiate or bid at auction on the property on your behalf in accordance with this clause 5.9, all tracked through the tools in your Client Account
If the Client selects a Prospective Property for purchase (the "Property"), the Client may reasonably request and if so requested in writing, Milk Chocolate will use its reasonable endeavours to negotiate the purchase price on behalf of the Client with the vendor or the vendor's agent based on an appraisal of the market value of the Property and any reasonable prior written criteria provided by the Client to Milk Chocolate that has been received by Milk Chocolate in advance of commencing negotiations with the vendor or the vendor's agent, whatever the case may be
If the Client amends or revokes any prior criteria or instructions provided by the Client to Milk Chocolate or provides new criteria or instructions to Milk Chocolate it must reasonably notify Milk Chocolate in writing, and Milk Chocolate will only be bound to comply with such amended or revoked prior criteria or new criteria or instructions (as the case may be) on and from the date that it has received such reasonable notice from the Client.
Any negotiations conducted, offers made, or any acts or omissions taken by Milk Chocolate on behalf of the Client in accordance with this Stage will be binding on the Client (including, for the avoidance of doubt, any prior instructions or criteria which the Client may have successfully or unsuccessfully sought to amend, revoke or replace).
The Client may reasonably request in writing for Milk Chocolate to attend an auction or make offers for the Property and upon receipt of such request, Milk Chocolate will do so on the Client's behalf.
The Client authorises Milk Chocolate to do so only within the scope of the Client's reasonable written instructions, received in advance of the auction or formal offer (as the case may be).
The Client may only amend or revoke any prior request or instructions provided by the Client to Milk Chocolate with prior reasonable written notice, and Milk Chocolate will only be bound to comply with such amended or revoked request or instructions (as the case may be) on and from the date and time that it has received such reasonable notice from the Client. Such notice is provided without prejudice to any offer or bid provided by Milk Chocolate prior to the date of such reasonable notice, and the Client acknowledges that given the speed and nature of auctions, it may not be feasible for Milk Chocolate to convey the Client's subsequent instructions.
Any offer or bid at an auction made by Milk Chocolate on behalf of the Client in accordance with this Stage will be binding on the Client (including, for the avoidance of doubt, any offer or bid which the Client may have successfully or unsuccessfully sought to amend, revoke or replace).
Reports
Subject to clause 5.6, the Client acknowledges that Milk Chocolate is not responsible for and does not undertake to acquire the following reports:
an invasive plumbing assessment;
an electrical safety assessment;
a structural engineer's report;
strata reports;
a pest report;
a building report; or
any other reports that are necessary for the Client to undertake due diligence on the Property.
The Client may reasonably request Milk Chocolate to acquire any of the above reports and if so requested in writing, Milk Chocolate may procure these reports on behalf of the Client and the Client authorises Milk Chocolate to do so, provided that the Client acknowledges that:
the Client's approves the costs and the identity of any such third-party service provider of a report;
any legally binding relationship or agreement with any third party service provider is between the Client and such third party service provider and not Milk Chocolate;
the Client is solely responsible for making prompt payment for the reports to the relevant third-party service providers, upon receipt of invoices from the third-party service providers or at or about the time that Milk Chocolate orders the reports (whichever is earlier); and
Milk Chocolate will not be responsible for any Liability arising in respect of any such third party, the acts or omissions of such third party service provider, any information provided or not provided by a third party, the content of any report, or paying any invoices, costs or payments to third party service providers, and Milk Chocolate will bear no responsibility for procuring any applicable reports if payment of any amounts due to a third party service provider is unpaid.
Exchange
After your offer is approved, track the contract signing process and pay deposits to unconditionally exchange.
The Client must engage its own solicitor or conveyancer (as the case may be) with respect to all legal advisory services in respect of the exchange of Contracts for an approved Property and settlement.
The Client acknowledges that the contractual and legal relationship between the Client and its solicitor or conveyancer (as the case may be) is between the Client and such solicitor or conveyancer (as the case may be) only.
The Client authorises Milk Chocolate to liaise with a solicitor or conveyancer (as the case may be) engaged by the Client to complete the exchange of contracts for the purchase of an approved Property in accordance with the Client's reasonable prior written instructions or otherwise at Milk Chocolate's discretion.
Any solicitor's or conveyancer's fees (or expenses) are not included in the Purchase Service Fee and the Client is liable to pay all such fees or expenses separate to this Agreement.
Settlement
Through your Client Account, you will have access to a tracker so you are aware of each step along the way to settlement. This helps you coordinate the other parties and your other service providers (like lawyers and conveyancers) to assist you manage all your obligations for settlement process
The Client authorises Milk Chocolate to:
attend the pre-settlement inspection of the Property, and provided that Milk Chocolate has been provided with reasonable notice in writing to do so, Milk Chocolate may agree to attend the pre-settlement inspection of the Property
where Milk Chocolate attends the pre-settlement inspection of the Property it must provide a written statement of its inspection of the Property to the Client and is authorised to provide a copy to the Client's solicitors or conveyancers (as the case may be).
Track your portfolio
At any point, you can track your properties and portfolio, ensuring you are fully aware of your financials, maintenance obligations, and where you are along your journey.
Game Plan™ review
Your Game Plan™ will determine your next steps. Depending on the Game Plan™:
we may assist you with looking for and acquiring your investment property or family home purchase;
we may undertake a project to renovate or manage your new property by finding and managing the lease and tenants; or
wait until the time is right to begin your next investment property or family home purchase.
At any point, you can track your properties and portfolio, ensuring you are aware of your financials, maintenance obligations and where you are along your journey.
Fees
Payment of Fees
In consideration of the provision of the Purchase Services in accordance with this Agreement, the Client must pay the Purchase Service Fees to Milk Chocolate in accordance with the Fee Terms. Any such fees are in addition to any other fees referred to in the Fee Terms and this agreement (including this clause 6).
The Client acknowledges and agrees that the Purchase Service Fees are as set out in the Fee Terms and payable in accordance with this clause 6.
All amounts are stated in Australian dollars and are inclusive of GST (unless otherwise stated).
Payment
Payment of Purchase Service Fees must be made by the Client to Milk Chocolate in advance for each Monthly Period on the first day of such Monthly Period.
Payment of any other fees set out in the Fee Terms or this Agreement must be as paid on the date set out in the Fee Terms or this Agreement (as the case may be) or upon demand by Milk Chocolate.
Additional Amounts Payable
The Client acknowledges that additional fees may apply, including:
If:
this Agreement is terminated by Milk Chocolate under clauses 11.2 or 11.3; or
the Agreement is terminated or cancelled by any party under clause 11, and the Client or an entity through which the Client retains a beneficial interest (in either case, jointly or as tenants in common) successfully settles on the purchase of a Prospective Property sourced by Milk Chocolate within 12 months of signing this Agreement,
the Client is liable for, and must immediately pay to Milk Chocolate, the full amount of the remaining Total Fees in respect of the Property.
the Client requires any of the reports outlined in clause 5.10;
if Milk Chocolate is engaged to project manage the construction of, or any renovations to, the Property in accordance with the terms of any project management agreement to be entered between the Client and Milk Chocolate (or any related entity of Milk Chocolate);
if Milk Chocolate is engaged for property management of the Property in accordance with the terms of any property management agreement to be entered between the Client and Milk Chocolate (or any related entity of Milk Chocolate); or
if Milk Chocolate is engaged to project manage maintenance of the Property in accordance with the terms of any maintenance management agreement to be entered between the Client and Milk Chocolate (or any related entity of Milk Chocolate).
Variation of Fees
If the Client provides Milk Chocolate with any adjustments to its responses to the Getting to know you Brief, additional criteria, instructions or any request after delivery of its initial responses in the Getting to know you Brief (including with respect to a change of the Client's Budget), Milk Chocolate may:
charge a Minor Variation of Scope Fee as set out in the Fee Terms; and
if Milk Chocolate determines that any such adjustment, additional criteria, additional instructions or other request from the Client is so material to be a new Getting to know you Brief, Milk Chocolate may charge a Revised Brief Fee as set out in the Fee Terms.
Milk Chocolate will notify the Client that it will charge any fee applicable under this Clause 6.4a, and any such fee must be paid by the Client within three Business Days of the earlier of receipt of the adjustments to the Getting to know you Brief or additional criteria, instruction or request (as determined by Milk Chocolate acting reasonably).
If the Client has designated that the Property Type for the Purchase Services is an Investment Property or a Family Home (as the case may be) but, Milk Chocolate determines (in its sole discretion) that the Client is actually acquiring a Property for a different Property Type, Milk Chocolate reserves the right to:
on and from the date of Milk Chocolate's determination, revise the Purchase Service Fee in accordance with the Fee Terms to accurately reflect the Client is actually acquiring a Family Home or Investment Property (as the case may be); and
on the date of determination, charge the Client a Change of Property Type Fee as set out in the Fee Terms,
and the Client acknowledges and agrees to such fee revisions in paragraph (i) and Change of Property Type Fee in paragraph (ii), and must immediately pay such amounts on request.
If Milk Chocolate considers that an instruction or direction from the Client constitutes a material change or variation to the Purchase Services that cannot be appropriate priced in accordance with the Fee Terms or would result in Milk Chocolate suffering or incurring any material additional cost or delay, then Milk Chocolate will not be obliged to comply with such instruction or direction unless agreed.
Failure to pay
If the Client does not make a payment by invoice due date or as otherwise provided for in the Agreement or the Fee Terms, Milk Chocolate may do any or all of the following:
charge interest on the outstanding amount at the rate of 1% per annum above the standard variable rate of the Commonwealth Bank of Australia, accruing daily. For the avoidance of doubt, the interest payable is only applicable on the outstanding amount;
not perform any further Purchase Services;
terminate the Agreement in accordance with clause 11; and
recover, as a debt due and immediately payable from you, our additional costs of doing so.
Disputed invoices
If the Client disputes the whole or any portion of the amount claimed in an invoice submitted by Milk Chocolate, the Client must:
pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in clause 6.2; and
notify Milk Chocolate in writing (within five days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.
Milk Chocolate's Obligations and Rights
Milk Chocolate must perform the Purchase Services in consideration for the Purchase Service Fees in a professional manner using due skill, care and diligence, and will act in accordance with the Clients' lawful and reasonable instructions delivered in accordance with the terms of the Documents;
During performance of the Purchase Services, 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;
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; and
notify the Client if, at any time, a material conflict of interest arises, and Milk Chocolate will take any reasonably necessary steps to resolve the conflict.
Client's Obligations and Rights
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 Purchase Service.
The Client acknowledges and agrees that except as provided for in this Agreement or Milk Chocolate otherwise agrees in writing, all third party service provider costs are for the expense of the Client, and while Milk Chocolate is authorised to act on the Client's behalf, unless otherwise agreed by Milk Chocolate, the Client is solely responsible for the payment of all third party costs payable in the course of the provision of the Purchase Services, or arising from, or in connection with, the Client's purchase of the Property (including the Client's solicitor's or conveyancer's fees or expenses and any other Liabilities that may arise from time to time).
The Client agrees that 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).
The Client represents, warrants and agrees that it:
has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement;
this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
will maintain realistic expectations as to the type and quality of real property that can be purchased, within the price range stated in the Getting to know you Brief;
is ready, willing and able to enter into a contract of sale for the Property and to settle on the purchase of the Property;
that the Client (and to the extent applicable, its personnel) will provide Milk Chocolate with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Purchase Services;
it has not relied on any representations or warranties made by Milk Chocolate in relation to the Purchase Services (including as to whether the Purchase Services are or will be fit or suitable for the Client's particular purposes) or this Agreement;
that the information and documentation (including any responses to the Getting to know you Brief) the Client has provide to or on behalf of Milk Chocolate is true, correct and complete and not misleading; and
the Client will not infringe any third party rights in working with Milk Chocolate, entering into this Agreement or receiving the Purchase Services.
The Client must not engage in any behaviour that may be considered bullying or harassment toward any member of Milk Chocolate's staff, personnel or representatives. This includes, but is not limited to, using abusive language, making threats, or engaging in any physical or verbal conduct that is designed to intimidate or humiliate Milk Chocolate or any of its staff, personnel or representatives. This is a material term of this Agreement.
The Client must take such reasonable steps to allow Milk Chocolate to perform its obligations under this Agreement, and must promptly respond to any request for information, instructions or approvals from Milk Chocolate and no later than 72 hours after such request, instruction or approval is sought with reasonable detail.
Information
The Client acknowledges that all information provided by Milk Chocolate is general in nature and subject to the inherent volatility of the real estate market.
The Client acknowledges that any information provided by Milk Chocolate (including financial or investment information) is provided as general information only whose preparation does not take into account the individual circumstances, objectives, financial situation or needs of the Client. It is not intended as advice and must not be relied upon as such. Milk Chocolate's advice does not form legal advice, town planning, building, renovation, architectural or other professional advice. The Client is advised to consult with their own independent financial and/or investment advisor.
The Client acknowledges that it should rely upon and has been given the opportunity to make its own inquiries and take independent advice tailored to its specific circumstances prior to making any decisions including but not limited to legal and financial advice, inquiries of any statutory authorities (including council, sewerage, water, environmental) and external reports in respect of the Property to establish the quality or suitability of the Property for their purposes.
Milk Chocolate does not make any representation or warranty that any advice will be reliable, accurate or complete, nor does Milk Chocolate accept any responsibility arising in any way from errors or omissions.
Milk Chocolate does not make any representation or warranty regarding the accuracy of information supplied to the Client from third party property portals and data providers.
Communication
Milk Chocolate will communicate with the Client using the services as set out in Item 2 of Schedule 1.
The Parties acknowledge and agree that communication between the Parties is vital to the performance of the Purchase Services.
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 and any applicable contact details set out in Item 2 of Schedule 1.
Any notice given under this Agreement must be in writing addressed and will be deemed to be received by a receiving party as follows, depending on the communication:
by email: at the time of transmission provided that the sender does not receive an automated error message generated by the recipient’s server notifying them of a failure to receive the message; and
by instant messaging: upon receipt of the sender’s message by the authorised recipient’s server.
Cancellation and Termination
The Client may cancel the Purchase Services by giving Milk Chocolate written notice. Upon cancellation under this clause 11.1, the Client will retain access to the Purchase Services for the remaining days in the Monthly Period in respect of which it has already paid its fee, and at the conclusion of such Monthly Period, this Agreement will terminate and the Client will not be obliged to pay any further Purchase Service Fees, except as provided in clause 6.3a. Any Purchase Service Fee paid for the Monthly Period prior to receipt of the cancellation notice provided by the Client under this clause 11.1 is not refundable.
Either Party may terminate this Agreement by notice in writing to the other Party if such other Party:
breaches any material term of this Agreement; and
to the extent the breach is capable of remedy, that other Party fails to rectify this breach, to the satisfaction of the notifying Party, following the expirations of 5 Business Days’ notice of the breach being given to such other Party and if the breach is not remediable, immediately.
Milk Chocolate may terminate this Agreement by notice in writing to the Client:
if the Client fails to make any payment to Milk Chocolate as and when it falls due, by providing 2 Business Days’ written notice to the Client;
immediately upon the bankruptcy or insolvency of the Client, the creditors of the Client file a petition against the Client, or a receiver or receiver and manager is appointed to any of the Client’s assets; or
at any time, by giving the Client no less than 5 Business Days’ written notice.
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.
Upon the termination of this Agreement:
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;
each Party shall pay to the other Party any amounts due and payable under the Agreement as at the date of termination (including, if applicable, clause 6.3a); and
Milk Chocolate will immediately cease providing the Purchase Services and recover, as a debt due and immediately payable from you, our additional costs of doing so.
Clauses 10, 11, 12, 13, 14, 16, 17, 18.4 and 18.9 shall survive the expiry or termination of this Agreement.
Intellectual Property Rights
As between the Parties:
Milk Chocolate owns all Intellectual Property Rights in Milk Chocolate’s Materials; and
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.
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.
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 Services, as contemplated by this Agreement.
The Client grants to Milk Chocolate a non-exclusive, irrevocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use Intellectual Property provided to Milk Chocolate solely for the performance of our obligations under this Agreement.
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.
The Client agrees not to infringe any of Milk Chocolate’s or a third party’s Intellectual Property Rights. Where the Client reasonably suspects that such a breach may have occurred, the Client must notify Milk Chocolate immediately.
Australian Consumer Law
Certain legislation, including the Australian Consumer Law (ACL), as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time and similar consumer protection laws and regulations, may confer the Client with rights, warranties, guarantees and remedies relating to the provision of the Purchase Services by Milk Chocolate to the Client which cannot be excluded, restricted or modified (Statutory Rights).
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 Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
Subject to the Client’s Statutory Rights, Milk Chocolate excludes all express and implied warranties, and all material, work and services (including the Purchase 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.
Subject to the Client’s Statutory Rights, all amounts paid by you under this Agreement are non-refundable.
Liability
Despite anything to the contrary, to the maximum extent permitted by law, Milk Chocolate and each of its related body corporates (and the directors and employees of all such entities) (Released Parties) will have no liability for any Liability, and the Client waives and releases the Released Parties from any such Liability, caused or contributed to by, arising from or in connection with:
any use or application of, or reliance on, the Purchase Services by a person or entity other than the Client, or other than as reasonably contemplated by this Agreement;
any works, services, goods, materials or items which do not form part of the Purchase Services (as expressed in this Agreement), or which have not been provided by the Released Parties;
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 Services may be contingent on, or impacted by;
any delays in information or inability to access information from third party information providers;
the Purchase Services being unavailable, or any delay in a Released Party performing the Purchase Services to the Client, for whatever reason; and/or
any event outside of a Released Party’s reasonable control include Force Majeure.
Despite anything to the contrary, to the maximum extent permitted by law:
each Party’s (including a Released 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;
no Party (nor any Released Party) will be liable to the other Party for any Consequential Loss; and
the Released Parties’ aggregate liability for any Liability arising from or in connection with this Agreement shall be limited to in Milk Chocolate’s discretion:
Milk Chocolate reperforming the Purchase Services the subject of the Liability to the Client; or
in Milk Chocolate’s sole discretion, Milk Chocolate repaying the Client the amount of the Purchase Services Fees paid by the Client to Milk Chocolate in respect of the relevant Purchase Service to which the Liability relates.
Force Majeure
If either Party is prevented from or delayed in performing their respective obligations under this Agreement cause by or contributed to by a Force Majeure Event, and the Party takes reasonable steps to mitigate or removed the Force Majeure Event and its effects (where possible), the Parties respective obligations (other than an obligation to pay money) is suspended during, but for no longer than, the period that the Force Majeure Event continues and any further period that is reasonable in the circumstances
The Party affected by the Force Majeure Event must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
Confidentiality
A Party which receives Confidential Information (Receiving Party) from the other Party (Disclosing Party) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
Each Receiving Party agrees:
not to disclose the Confidential Information of the Disclosing Party to any third party;
to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
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.
The obligations in clauses 16.1 and 16.2 do not apply to Confidential Information that:
is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
is authorised to be disclosed by the Disclosing Party;
is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement;
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 16.1; or
must be disclosed by Law or court order.
The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 16 by the Recipient.
The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 16 and that the Disclosing Party may obtain injunctive relief against the Recipient for any breach of this clause 16.
The obligations accepted by the Recipient under this clause 16 survive termination or expiry of this Agreement.
Privacy
Milk Chocolate will ensure that its dealings with Personal Information acquired from the Client in connection with this Agreement conform with its statutory obligations under the Privacy Laws.
Milk Chocolate is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided in connection with this Agreement.
Milk Chocolate must:
immediately notify the Client if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this Agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
conduct a reasonable and expeditious assessment of the breach or suspected breach; and
ensure compliance with all mandatory data breach reporting obligations arising out if the breach or suspected breach.
General
Amendment
This Agreement may only be amended by written instrument executed (including by electronic execution) by and as agreed by the Parties.
Assignment
Neither Party may assign nor 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 other Party, such consent not to be unreasonably withheld.
Advertisement
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 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.
Disputes
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 notifying in writing the other Party of the Dispute as to the nature of the Dispute and 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.
Entire Agreement
This Agreement is the entire Agreement between the Parties. The Parties acknowledge that no representations, warranties or statements have been made other than those expressly recorded in this Agreement and that, in respect of this Agreement or any part of it including the transaction contemplated pursuant to this Agreement, no party has relied or will rely upon any representation or information, whether oral or written, previously provided to or discovered by it.
Execution
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.
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.
This Agreement may be executed in any number of counterparts that together will form one instrument.
Law and jurisdiction
This Agreement takes effect, is governed by, and construed and interpreted in accordance with the laws of New South Wales, Australia. The Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales.
No partnership, joint venture or employment
This Agreement is not intended to create a partnership, joint venture or employment relationship between the Parties.
Severability
If any one or more of the provisions contained in this agreement must, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability must not affect any other provisions of this agreement, but this agreement must be construed as if such invalid, illegal or unenforceable provisions had never been contained in this agreement, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated in this agreement to be unreasonable.