Agent Terms & Conditions

1.     Definitions and interpretation clauses

1.1      Definitions in this agreement:

Advertising Fee:                    

means the amount calculated pursuant to the following formula:

AF = AR  x  SP

where:

(a) AF means the Advertising Fee, including GST;

(b) AR means the Advertising Rate; and

(c) SP means the lower of:

(i) the sale price in a Third Party Contract; and

(ii) the highest advertised sale price for the relevant property in the Listing when it was submitted to the Platform.

Advertising Rate:      

means 0.0022 (being 0.22%)

Agent Assist:            

means a licensed real estate agent who is assigned as representing a Platform Purchaser on the date that a Third Party Contract is executed.

Agent Assist Fee:

means the amount calculated pursuant to the following formula:

AAF = AAR  x  SP

where:

(a) AAF means the Agent Assist Fee, including GST;

(b) AAR means the Agent Assist Rate; and

(c) SP means the lower of:

(i) the sale price in the Third Party Contract; and

(ii) the highest advertised sale price for the relevant property in the Listing on the Platform from time to time.

Agent Assist Rate:

means 0.00055 (being 0.055%)

Agreement:

means this agreement including any schedules and annexures attached hereto.

Contract:

means a contract for the sale and purchase of real estate.

Default Event:

means any of the events listed in clause 6.1.

Inviting Agent:

means a licensed real estate agent who is listed on the Platform as having acquired a Platform Purchaser of a Third Party Contract to the Platform.

Inviting Agent Assist Fee:

means the amount calculated pursuant to the following formula:

IAAF = IAAR  x  SP

where:

(a) IAAF means the Inviting Agent Assist Fee, including GST;

(b) IAAR means the Inviting Agent Assist Rate; and

(c) SP means the lower of:

(i) the sale price in the Third Party Contract; and

(ii) the highest advertised sale price for the relevant property in the Listing on the Platform from time to time.

Inviting Agent Rate:

means 0.00055 (being 0.055%)

Listing:

means a listing of a real estate property for sale, including without limitation information, statements, text, images, video or other data relating to the sale of that property.

Platform:

means the http://www.listingloop.com.au website and any related systems.

Platform Purchaser:

means a purchaser under a Contract who:

(a) is a registered user of the Platform who unlocked the Listing to view the Listing on the Platform; or

(b) is a Related Party of a registered user of the Platform who unlocked the Listing to view the Listing on the Platform.

Privacy Policy:

means the privacy policy available on the Platform as updated by Listing Loop from time to time.

Related Party:

means:

(a) if the registered user of the Platform is an individual:

(i) any relatives of the registered user;

(ii) any corporate entity of which the registered user is a director or a shareholder;

(iii) any corporate entity or individual acting as trustee for a trust of which the registered user is a beneficiary;

(b) if the registered user of the Platform is a corporate entity:

(i) any individual who is a director or shareholder of the registered user;

(ii) any other corporate entity which is:

(A) a holding company of the registered user;

(B) a subsidiary of the registered user; or

(C) a subsidiary of a holding company of the registered user;

(iii) any corporate entity or individual acting as trustee for a trust of which the registered user, or the directors or shareholders of the registered user, is a beneficiary.

Term:

means the period commencing on the date of this agreement and expiring on the date which is 12 months after the date of this agreement.

Third Party Agency:

means the agency which submitted the Listing on the Platform for the property which is the subject of the Third Party Contract.

Third Party Contract:

means a Contract in respect of real estate which is the subject of a Listing submitted to the Platform by another agency, where the purchaser is a Platform Purchaser.

Unconditional Contract:

means a Contract where:

(a) the vendor and purchaser have executed the Contract; and

(b) any right to terminate by the purchaser under a cooling off period or any other condition in the Contract or at law has expired or been waived by the purchaser.

1.2      Interpretation

In this Agreement, unless the context otherwise requires:

(a) a reference to:

(i) the singular includes the plural and vice versa;

(ii) a gender includes all genders;

(iii) parties means the parties to this Agreement and to a party means a party to this Agreement;

(iv) a person includes that person’s executors, administrators, successors and/or permitted assigns;

(v) a law:

(A) includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by-law, judgment, rule of common law or equity or rule of any applicable stock exchange;

(B) is a reference to that law as amended, consolidated, supplemented or replaced; and

(C) is a reference to any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;

(vi) to time is a reference to Melbourne, Victoria, Australia time;

(b) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;

(c) headings are for convenience only and are ignored in interpreting this Agreement;

(d) the word ‘including’ or ‘includes’ means ‘including but not limited to’ or ‘including without limitation’; and

(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning.


2.     Use of Platform

 2.1     Platform

Listing Loop grants the Agent the right to invite prospective purchasers to use the Platform during the Term, subject to:

(a) the terms and conditions of this Agreement; and

(b) the Agent complying with this Agreement.

2.2      Agent Obligations

In using the Platform, the Agent:

(a) must comply with the reasonable directions of Listing Loop;

(b) must not make any false or misleading statement or misrepresentation concerning any Listing;

(c) must not engage in any inappropriate or illegal conduct, or any conduct which would place Listing Loop at risk of prosecution under the Competition and Consumer Act 2010 (Cth) or expose Listing Loop to claims on the grounds of misrepresentation, duress, unconscionable conduct or misleading and deceptive conduct, whether under statute or at common law;

(d) must comply with all statutory requirements relevant to its activities under this Agreement, including the Competition and Consumer Act 2010 (Cth);

(e) must comply with all statutory requirements relevant to its activities under this Agreement in Australia and in any country other than Australia where the Agent undertakes activities under or in relation to this Agreement;

(f) must ensure that if the Agent provides any personal information of an individual to Listing Loop, that individual has been informed that their personal information will be used and disclosed by Listing Loop in accordance with the Privacy Policy;

(g) must comply with the Privacy Policy and the Advertising Agreement, as amended from time to time; and

(h) must undertake to only collect, store, disclose and use personal information obtained through the Platform for the sole purpose of contacting agents about Listings or contacting persons invited to the Platform by the Agent.

2.3      Agent Warranties

The Agent represents and warrants to Listing Loop that, at all times during the Term:

(a) it holds all licences and accreditations required to act as a buyer’s agent, including without limitation a real estate agent’s licence in the relevant State or Territory; and

(b) it will comply with its obligations under clause 2.2

2.4      Agent Acknowledgments

The Agency acknowledges and agrees that, at all times during the Term:

(a) Listing Loop cannot guarantee that the Platform will operate continuously or without faults; and

(b) Listing Loop may contact the Agent using any contact details provided to Listing Loop from time to time.

 2.5      Release

The Agent releases Listing Loop in respect of any cost, claim, loss, damage, expense or other liability which the Agent may suffer as a result of any failure of the Platform to operate continuously, malfunction or to provide accurate information.


 3.     Fees

3.1      Inviting Agent Assist Fee

(a) If the Agent is assigned on the Platform as the Inviting Agent in relation to any Platform Purchaser under a Third Party Contract which becomes an Unconditional Contract, Listing Loop must pay the Inviting Agent Assist Fee to the Agency within 14 days of receiving payment of the Inviting Agent Assist Fee from the Third Party Agency.

(b) If Listing Loop does not receive the Inviting Agent Assist Fee from the Third Party Agency by the earlier of the date which is:

(i) 7 days after the settlement of a Third Party Contract; and

(ii) 90 days after a Third Party Contract is executed by the vendor and purchaser,

Listing Loop must use reasonable endeavours to recover the Inviting Agent Assist Fee from the Third Party Agency.

(c) If clause 3.1(b) applies and Listing Loop recovers all or part of the Inviting Agent Assist Fee from the Third Party Agency, the Inviting Agent Assist Fee is calculated as the agreed percentage of the actual amount recovered from the Third Party Agency, less all expenses incurred by Listing Loop in recovering those amounts (including without limitation legal expenses on a full indemnity basis), payable to the Agency within 14 days of receiving those amounts.

(d) If the Agent is assigned on the Platform as the Inviting Agent for any Platform Purchasers registered on the Platform and the Agent ceases to be a member of the Platform, those Platform Purchasers will cease to have an Inviting Agent on and from the date that the Agent ceases to be member of the Platform.

3.2     Agent Assist Fee

(a) If an Employee Agent is assigned on the Platform as the Agent Assist in relation to any Platform Purchaser under a Third Party Contract which becomes an Unconditional Contract, Listing Loop must pay the Agent Assist Fee to the Agency within 14 days of receiving payment of that Agent Assist Fee from the Third Party Agency.

(b) If Listing Loop does not receive the Agent Assist Fee from the Third Party Agency by the later of the date which is:

(i) 7 days after the settlement of a Third Party Contract; and

(ii) 90 days after a Third Party Contract is executed by the vendor and purchaser,

Listing Loop must use reasonable endeavours to recover the Agent Assist Fee from the Third Party Agency.

(c) If 3.2(b) applies and Listing Loop recovers all or part of the Agent Assist Fee from the Third Party Agency, the Agent Assist Fee is calculated as the agreed percentage of the actual amount recovered from the Third Party Agency, less all expenses incurred by Listing Loop in recovering those amounts (including without limitation legal expenses on a full indemnity basis), payable to the Agent within 14 days of receiving those amounts.

(d) If the Agent is assigned on the Platform as the Agent Assist for any Platform Purchasers registered on the Platform and the Agent ceases to be a member of the Platform, the Agent will be removed as the Agent Assist for those Platform Purchasers on and from the date that the Agent ceases to be a member of the Platform.


4.     Assignment

The Agency may not assign any right or obligation under this Agreement without the prior written consent of Listing Loop, which may be withheld in Listing Loop’s absolute discretion.


5.     Renewal of Term

On the date after the Expiry Date of the Term, this Agreement will automatically renew for a further term of 12 months unless either party provides written notice to the other before the expiry of the Term.


6.     Default

6.1      Default Event

A Default Event will occur if:

(a) the Agency fails to remedy within 14 days after receiving written notice to do so from Listing Loop a breach of this Agreement, specified in the notice, that is capable of remedy;

(b) the Agency commits a breach of this Agreement which is not capable of remedy; or

(c) the Agent is bankrupt or is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party to this agreement.

6.2      Immediate termination

Listing Loop may terminate this Agreement with immediate effect by giving written notice to the Agent if:

(a) the Agent is convicted of any breach under any law which could result in cancellation or suspension of licence held by the Agent;

(b) the Agent commits an offence under any legislation governing real estate agency; or

(c) the Agent is involved in any fraudulent activity which (in the absolute discretion of Listing Loop) would result in the Agent being unsuitable to continue to use the Platform or bring the Platform into disrepute.

6.3      Default rights

If a Default Event occurs, Listing Loop may:

(a) terminate the Agreement by notice in writing to the Agent;

(b) recover from the Agent as a liquidated debt payable on demand any costs incurred by Listing Loop as a result of the Default Event;

(c) immediately remove the Agent’s access to the Platform;

(d) reallocate any Inviting Agent or Agent Assist designations from the Agent to any third party agency, agent or to Listing Loop at Listing Loop’s sole discretion; and

(e) set-off any money owing from Listing Loop to the Agent against the amounts listed in clause 6.3(b). 


7.     Goods and Services Tax (GST)

7.1   Preliminary

Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 (GST Act) have the same meaning given to them in that Act.

7.2GST exclusive

Unless otherwise stated, any amount specified in this Agreement as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.

7.3      Liability to pay GST

If a party makes a taxable supply under this Agreement (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.

7.4      Tax invoice

Notwithstanding the foregoing, the Recipient is not obliged under this Agreement to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.

7.5      Adjustment event

If an adjustment event arises in relation to a taxable supply made by a Supplier under this Agreement, the amount paid or payable by the Recipient pursuant to clause 7.3 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.

7.6      Reimbursement of expenses

If a third party makes a taxable supply and this Agreement requires a party to this Agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

7.7      Non merger

This clause does not merge on completion and will continue to apply after expiration or termination of this Agreement.


8.     Notices

8.1      Giving Notice

Subject to clause 8.4, any notice (which includes, without limitation, a demand, request, consent, approval and any other communication made, required or authorized under this Agreement) given under this Agreement must be:

(a) in writing;

(b) directed to the recipient’s address or email address specified below, as varied by any notice; and

(c) hand delivered or sent by prepaid post to that address or sent by email to that email address.

Listing Loop

Address:          GPO Box 1393, Melbourne, Victoria 3001

Tel:                   1300 695 667

Email:               compliance@listingloop.com.au

Agency

Address:          The address provided by the Agent from time to time.

Email:               Any email address provided by the Agent from time to time.

8.2      Receipt of Notice

A notice given in accordance with clause 8.1 is taken to be received by the recipient:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, within Australia to an Australian address, two business days after the date of posting;

(c) if sent by facsimile transmission, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice unless, within eight business hours after that transmission, the recipient informs the sender that it has not received the entire notice; or

(d) if sent by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.

In all cases, a notice received after 5.00 pm in the place of receipt or on a day that is not a business day is taken to be received by the recipient at 9.00 am on the next business day.

8.3      Signing of Notice

A notice given under this Agreement is sufficiently signed if:

(a) in the case of a body corporate, it is signed by a director, secretary or other officer of, or a legal practitioner acting for, the body corporate; or

(b) in the case of an individual, it is signed by the individual

8.4      Other modes of service permitted

The provisions of this clause are in addition to any other mode of service permitted by law.


9.     General

9.1      Amendment

No variation or waiver of, or any consent to any departure by a party from, a provision of this Agreement is of any force or effect unless it is confirmed in writing signed by the parties and then that variation, waiver or consent is effective only to the extent for which it is made or given.

9.2      Waiver

The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of or the exercise of any other power or right under this Agreement.

9.3     Severance

If any provision of this Agreement is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement with regard to the invalid provision are and continue to be valid and enforceable in accordance with their terms.

9.4      Counterparts

This Agreement may be executed by any number of counterparts and all of those counterparts taken together constitute one and the same instrument.

9.5      Further assurances

Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, sign, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.

9.6      Governing law and jurisdiction

This Agreement is governed by, and is to be construed in accordance with, the law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of the State of Victoria and any court hearing appeals from those Courts.

9.7      Exercise of rights

(a) Unless expressly required by the terms of this Agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this Agreement.

(b) A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this Agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.

9.8      Remedies cumulative

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.