PRIVACY POLICY AND COLLECTION NOTICE

By providing your details to our representative, you consent to the terms contained in this notice and acknowledge that this notice has been brought to your attention.

Kenterprise Pty Limited (ACN 114 056 905) and its related bodies corporate including Presence Property Management Pty Ltd (ACN 143 274 373), Present and Future Pty Limited (ACN 656 538 411), Presenting Prestige Pty Ltd (ACN 664 238 886), and Nexr Pty Ltd (ACN 646 426 922) which collectively trades as Presence Real Estate, Presence Projects and Nexr located at Level 2, 16 Telford Street, Newcastle East NSW 2300 (we, our, us) provides real estate services including but not limited to:

  • The leasing and management of commercial, retail, industrial, short-term, holiday and residential properties; and
  • The sale of commercial, retail, industrial, short-term, holiday and residential properties; and
  • The acquisition of commercial, retail, industrial, short-term, holiday and residential properties; and
  • Data prospecting services.

This policy applies to Kenterprise Pty Limited (ACN 114 056 905) and its associated entities which trade as Presence Real Estate, Presence Projects, Presence Property Management and Nexr and the URLS presence.realestate (collectively Presence). It sets out the policies of Presence relating to personal information provided to us, or collected by us, including through our websites. Unless you give your express consent otherwise, the following policy governs how we handle your personal information and safeguards your privacy. By providing your personal information to us you agree to this policy.

Note: Third-party internet sites accessible via the above-mentioned websites, including websites that may be independently owned and operated by individual Presence Offices, may have separate privacy and data-collection practices not controlled by Presence. Presence takes no responsibility for those independent policies and will not be liable for any actions of third parties in relation to privacy. It is recommended that you refer to those sites’ own privacy policies to learn how they collect and use your personal information.

The Privacy Act 1988 (Cth)(the Act) allows for ‘personal information’, including ‘sensitive information’ (which are defined in the Act) about you to be collected, used and disclosed provided we have provided you with notice and in certain circumstances also obtained your consent. In this Privacy Policy and, where appropriate, a reference to ‘personal information’ includes ‘sensitive information’.

We reserve the right to review and if necessary, change this Privacy Policy. We may (from time to time) update, revise, amend or replace this Privacy Policy by posting any changes to it on our website or by giving you any other form of notification.

This Privacy Policy is available on our website, at our head office and may also be made available to you when requested.

We are bound by the Act and the Australian Privacy Principles (APP) which regulate the collection, use and disclosure of personal information. This Privacy Policy explains:

  1. The scope of our Privacy Policy;
  2. Why we collect personal information;
  3. What personal information we collect;
  4. How we collect and use your personal information;
  5. How we disclose your personal information;
  6. Your right to access your personal information;
  7. Your right to correct your personal information;
  8. How we protect the integrity of your personal information;
  9. Your right to make a privacy complaint; and
  10. How you can contact us regarding privacy concerns.

What personal information we collect:

We collect personal information that is reasonably necessary for one or more of its functions or activities.

The type of information that we collect, and hold may depend on your relationship with us. For example:

Candidate: if you are a candidate seeking employment with us, we may collect and hold information including your name, address, email address, contact telephone number, gender, age, employment history, references, resume, medical history, emergency contact, taxation details, qualifications,  and payment details.

Customer: if you are a customer of ours, we may may collect and hold information including your name, address, email address, contact telephone number, gender, age, bank details and next of kin.

Supplier: if you are a supplier of ours, we may collect and hold information including your name, address, email address, contact telephone number, business records, billing information, and information about goods and services supplied by you.

Sensitive information: we will only collect sensitive information where you consent to the collection of the information and the information is reasonably necessary for one or more of our functions or activities. Such functions include if you apply for a rental property or enquire to either lease or purchase one of our properties. Sensitive information includes, but is not limited to, information or an opinion about racial or ethnic origin, political opinions, religious beliefs, philosophical beliefs, membership of a trade union, sexual preferences, criminal record, health information or genetic information.

If you feel that the personal information that we are requesting at any point is not information that you wish to provide, please feel free to raise this with us.

How we collect personal information from you

We will collect personal information from you in the following circumstances:

Property Management

  • if you are a prospective or current landlord and you want us to manage your property, then we will collect personal information from you in order to identify you and the property;
  • if you are a prospective or current tenant and/or you inspect any rental property, then we will collect personal information from you when you attend the property inspection;
  • if you are a prospective or current tenant and you want to rent a property, then we will collect personal information from you, usually at the rental application stage from the rental application and supporting documentation that you supply. If you are the successful tenant then we may also collect personal information from you during the continuation of any tenancy or lease agreement with the landlord; and
  • if you are a prospective tenant who has enquired about a property listed by us, then we will collect personal information from you, usually at the enquiry stage whether that be by telephone, email, in person or online enquiry.

Sales

  • if you are a prospective or current vendor and you want us to act as your sales agent, then we will collect personal information from you in order to identify you and the property;
  • if you are a prospective or current purchaser and you inspect any property, then we will collect personal information from you when you attend the inspection;
  • if you are a prospective purchaser who has enquired about a property listed by us, then we will collect personal information from you, usually at the enquiry stage whether that be by telephone, email, in person or online enquiry; and
  • subject to the other provisions of this Privacy Policy, we may also collect personal information from you when you make any other enquiry with us about the property.

Generally

  • if you are a candidate seeking employment with us, we may collect and hold personal information from you to assess your suitability for employment with us.
  • if you are a supplier of Ours, we may collect and hold personal information from you to ensure we can adequately identify you and arrange payment as necessary.

How we collect personal information from other sources

We can collect personal information about you from other sources in any manner permitted by the Act.  We will only collect personal information from other sources where it is reasonably necessary for us to do so in relation to, or in connection with, any services we are supplying in connection with our real estate and/or strata agency business.  Examples of such sources of personal information include:

  • from your agents, other owners, insurers and underwriters, contractors, legal, financial and other advisors in relation to or in connection with any tenancy, lease or contract for sale of the property;
  • from public registers including those managed by the NSW Land & Property Information;
  • from publicly available information;
  • from property valuers or related service providers;
  • from our other service providers including any third party that has been authorised to supply us with personal information;
  • by entering competitions, promotions, or requesting information or material from us;
  • completing surveys, providing feedback or complaining to us;
  • publicly available sources of information or any other organisations where you have given your consent; and
  • social media.

When the law authorises or requires collection of personal information

There are laws that may require us to collect and disclose your personal information.  For example, we may be required to collect and disclose your personal information pursuant to the Property and Stock Agents Act 2002 (NSW), including any regulation under that law.

How your personal information may be used

We may collect, use and disclose your personal information for the following purposes including:

Property Management

  • to identify and/or verify the identity of any prospective or actual landlord or tenant for any property we manage or propose to manage;
  • to process and assess any application received in relation to a tenancy or lease of any property;
  • to advertise, market and promote any tenancy or lease of any property;
  • to negotiate and prepare any tenancy agreement, lease or any other document for any property;
  • to liaise and exchange information with the landlord or the tenant as well as their agents, contractors, legal, financial and other advisors in relation to or in connection with any tenancy or lease of the property;
  • to manage any tenancy or lease agreement including the collection of rent and other amounts on behalf of the landlord and the preparation of required statements of account;
  • to ensure the safety and security of landlords and existing occupiers and of each of their property in connection with the inspection of any property by prospective tenants;
  • to provide your insurer with information relating to or connected with any property;
  • to comply with any applicable law in connection with the tenancy agreement or lease;
  • to confirm whether the landlord or tenant is registered for GST purposes;
  • to tell you about any other rental property that we are managing or any other service that we provide, unless you tell us not to (this is referred to as direct marketing);

Sales

  • to identify and/or verify the identity of any prospective or actual vendor for any property;
  • to advertise, market and promote the sale of any property;
  • to negotiate and manage the sale of any property (including to provide non-legal assistance with the exchange of the contracts for the sale of property as well as the preparation of any required statements of account);
  • to liaise and exchange information with the vendor, purchaser (including any prospective purchaser) as well with their respective agents, contractors, legal, financial and other advisors in relation to or in connection with the sale of the property;
  • to ensure the safety and security of vendors and existing occupiers and of each of their property in connection with auctions and the inspection of any property by prospective purchasers;
  • to comply with any applicable law in connection with the sale of the property;
  • to confirm whether the vendor or purchaser is registered for GST purposes;
  • to tell you about any other property that we are selling or any other service that we provide, unless you tell us not to (this is referred to as direct marketing);

Generally

  • to provide statistical and other information to industry bodies and regulators;
  • to allow us to run our business efficiently and to perform administrative and operational tasks;
  • to comply with any dispute resolution or other legal process;
  • to act on behalf of clients in accordance with any agency agreement and to comply with our obligations under that agreement;
  • in order to update our records and your contact details;
  • to operate controlled money accounts;
  • if we enter into or propose to enter into any agreement or arrangement with any party for the purpose of, or in connection with, the acquisition of our business (including any part of our business that includes personal information), then we may provide that party (including its legal, financial and other professional advisers) with personal information in relation to or in connection with those arrangements;
  • in some cases, the organisations and third parties that we may disclose your information to may be based outside Australia; and
  • any other purpose to which you have consented.

You can tell us at any time if you no longer wish to receive direct marketing information or offers from us. We will process your request as soon as reasonably practicable after receipt of the request.

How we share your personal information

Sharing personal information with third parties

We may seek and use personal information about you from, and use or disclose personal information about you to, third parties in relation to or in connection with the potential or actual rental of a property, the sale and purchase of a property or other business or administrative functions for the real estate and/or strata agency. These third parties may include:

  • your representatives, attorneys, lawyers, settlement agents, accountants, brokers;
  • any conjunction, co-listing, buyers’ or other property agents that acts on your behalf in connection with the rental, leasing, sale and purchase of property;
  • auctioneers;
  • your financier including any mortgage brokers that may be assisting you with any existing mortgage loan or application in relation to the sale or purchase of property;
  • valuers, surveyors, insurers, re-insurers, claim assessors and investigators;
  • financial institutions including deposit taking institutions;
  • if you are a tenant, including any prospective tenant, your referees, including your employer or other individuals to confirm your identity and/or other details about you in any rental application that you submit;
  • organisations in and associated with debt collecting;
  • law enforcement agencies;
  • government and/or regulatory bodies including (without limitation) the NSW Land and Property Management Authority, Australian Taxation Office, the NSW Office of State Revenue. In many cases, these organisations may share information with foreign authorities;
  • mailing houses and telemarketing agencies that assist us to communicate with you;
  • if we enter into, or propose to enter into, any agreement or arrangement with any party for the purpose of, or in connection with, the acquisition of our business (including any part of our business that includes personal information), that party (including its legal, financial and other professional advisers) to provide personal information in relation to or in connection with those arrangements; and
  • service providers including IT and data consultants, agents, contractors and advisers that assist us to conduct our business.

Sharing personal information with related companies

We may share personal information about you with our related companies for any of the purposes described above.

Sharing personal information outside of Australia

We may store information about you in cloud or other types of networked or electronic storage.  As electronic or networked storage can be accessed from various countries through an internet connection it is not always practical to know in which country personal information about you may be held. In some cases, the organisations and third parties that we may disclose your information to may be based outside Australia. For example, we may share your information with our third parties in:

  • the Philippines;
  • United States of America;
  • New Zealand;
  • India;
  • China;
  • Indonesia;
  • Malaysia;
  • Singapore;
  • Papua New Guinea; and
  • The Middle East.

We take reasonable steps to make sure the overseas recipients of your personal information do not breach the privacy obligations relating to it.

We will always take reasonable steps to ensure that any overseas organisation that receives your personal information will comply with the Act.

If you do not provide personal information

If you do not provide your personal information to us, it may not be possible to provide you with the service that you have requested or applied for, for example:

  • if personal information is not disclosed in a rental application by a prospective tenant, then we may be unable to process the application and/or submit it to the landlord for their consideration or approval. If you enter into a rental or lease agreement, you will need to be identified and your personal information will be included in the rental or lease agreement;
  • if personal information is not disclosed by a vendor in connection with the sale of their property, we will not be able to verify that they are the owner of the property and/or to advertise and market the property;
  • if personal information is not disclosed by a prospective purchaser at an open inspection, then we may not be able to admit them into the inspection;
  • if personal information is not disclosed by a prospective purchaser at an auction, then we will not be able to register them as a bidder;
  • if personal information is not disclosed by an owner in connection with the management of their strata scheme or their property, then we will not be able to verify that they are the owner of the property and manage the strata scheme; and
  • to let you know about other services we provide that might be suitable for your needs (unless you opt out of this by telling us that you do not wish to receive such information).

Personal information about other people

If you give us personal information about any other person in relation to, or in connection with, the rental/lease or sale of any property:

  • we are entitled to assume that you have sought their consent to the disclosure of such personal information to us;
  • we have collected their personal information for the purposes set out in this Privacy Policy;
  • we may exchange their personal information with other organisations for the purposes set out in this Privacy Policy;
  • we will handle their personal information in the same way as set out in this Privacy Policy and they can:
    • access or request a copy of this Privacy Policy; or
    • access the personal information we hold about them.

Anonymity and pseudonymity

We are not always able to deal with people who do not wish to identify themselves. This will be particularly the case when we are proposing to, or we do, act for a vendor or a landlord in relation to either the sale or rental/lease of any property.  This will also apply where we are also dealing with actual or prospective tenants for any rental property that we manage.

Further, we are not able to allow people through any property inspections who do not wish to identify themselves as this can create security and other concerns for the property owner (among other considerations).

However, where possible, we can provide information of a general nature such as, for example, we can respond to general telephone and related enquiries about a rental/lease or sale property to unidentified individuals. Of course, if an individual makes an enquiry by email or other electronic or written methods then there is every possibility that the mode of communication may identify you.

Security

We take reasonable steps to protect all information which we hold (including any personal or sensitive information) from misuse, loss, unauthorised access, modification or disclosure.

As our website is linked to the interest, and the internet is inherently insecure, we cannot provide any assurance regarding the security of transmission of information you communicate to us online. We also cannot guarantee that the information you supply will not be intercepted while being transmitted over the internet. Accordingly, any personal information or other information which you transmit to us online is transmitted at your own risk.

Links

Our website may contain links to other websites operated by third parties. We make no representations or warranties in relation to the privacy practices of any third party website and we are not responsible for the privacy policies or the contents of any third party website. Third party websites are responsible for informing you about their own privacy practices.

Marketing and opt-out

We may also use the information, including personal information (excluding sensitive information), provided by you for marketing and research purposes, to analyse and improve products, services and benefits and to inform you of products, services and benefits provided by us, our related entities, suppliers or sponsors which we consider may be of value or interest to you, unless you tell us, or have previously told us not to. We will not use your sensitive information for these purposes without your consent.

Cookies

When you access our website, we may send a “cookie” (which is a small file containing a unique ID number) to your computer or device. This enables us to recognise your computer or device. It also enables us to keep track of your activity on our website for a period of time. We also use cookies to measure traffic patterns, to determine which areas of our website have been visited and to measure transaction patterns in the aggregate. We use this to research our users’ habits so that we can improve our online products and services. Our cookies do not collect personal information. If you do not wish to receive cookies, you can set your browser so that your computer does not accept them.

We may log IP addresses (that is, the electronic addresses of computers and devices connected to the internet) to analyse trends, administer the website and track users movements.

Accessing your Personal Information

Unless we are entitled to withhold access to your personal information (and there are various reasons why this may be the case), you have the right to request access to any personal information held by us which relates to you.  We may charge a reasonable fee where access to personal information is provided.  Any requests for access to your personal information should be made in writing to the Privacy Officer (details specified below).  You also have the right to request the correction of any personal information which relates to you that is inaccurate, incomplete, irrelevant, misleading or out-of-date.

Complaints

If you believe that your privacy has been breached, please contact us using the contact information below and provide details of the incident so that we can investigate it. We will deal with the complaint in accordance with our then current complaints handling procedure.

If you require any further information about our management of personal information or have any queries or complaints, you should contact:

The Privacy Officer
Presence Real Estate
PO Box 1089
02 4926 0600
[email protected]

Disclosure of potential rebates, discounts, commissions and beneficial relationships

In accordance with our duties of disclosure pursuant to section 47 of the Property and Stock Agents Act 2002 (NSW) we hereby disclose the following relationships we have with other persons or entities that we may expect to derive consideration in circumstances that we may refer you for professional services associated with your sale to the following persons or entities:

Commonwealth Bank of Australia (CBA) ABN 48123 123 124

The Agent is part of a corporate partnership program with Commonwealth Bank of Australia (CBA). If the Agent refers a prospective buyer to CBA that results in a settled loan, then CBA will provide a corporate referral fee to the Agent of 0.3% plus GST of the funded loan amount or refinance amount. This does not cost the CBA customer any more on their loan. Eg loan amount $250,000 equates to a referral fee of $750.

Loan Market

The Agent is part of a corporate partnership program with Loan Market. If the Agent refers a prospective buyer to Loan Market that results in a settled loan, then Loan Market will provide an introducer fee to the Agent of 33% of the Loan Market upfront commission. This does not cost the Loan Market customer any more on their loan. Eg loan amount $250,000 X 0.6% loan market commission X 0.33 equates to a referral fee of $495.

Shore Financial

The Agent is part of a corporate partnership program with Shore Financial. If the Agent refers a prospective buyer to Shore Financial that results in a settled loan, then Shore Financial will provide an introducer fee to the Agent of 25% of the Shore Financial upfront commission. This does not cost the Shore Financial customer any more on their loan. Eg loan amount $250,000 X 0.6% Shore Financial commission X 0.25 equates to a referral fee of $375.

Future Property Co Pty Ltd T/As Henderson Advocacy

Mark Kentwell is a director and shareholder of Kenterprise Pty Ltd (trading as Presence Newcastle, Lake Macquarie, Central Coast & Hunter). Mr Kentwell is the director and shareholder of the corporate trustee BA Expansion Pty Ltd which holds shares in Henderson Metro NSW Pty Ltd. Mr Kentwell is not a beneficiary of the associated trust. Henderson Metro NSW Pty Ltd is the sole owner of Future Property Co Pty Ltd which trades as Henderson Advocacy (a buyers agency). Mr Jack Henderson is the director and licensee of Henderson Advocacy and by virtue of other various business ventures unrelated to this transaction, Mr Kentwell and Mr Henderson have business relationships. Presence Newcastle, Lake Macquarie, Central Coast & Hunter and Henderson Advocacy may, on occasion, transact on the same transaction. When that occurs, you will be required to agree to a separate section 47 disclosure document to outline the benefit received from either party.

Movinghub Pty Ltd (Movinghub) ABN: 64 637 137 154

Movinghub is a Connection Service Provider which has a corporate referral program with Presence Property Management Newcastle Region. If the vendor’s agent refers a client to the Presence Property Management Newcastle Region connection service, Movinghub, Presence Property Management Newcastle Region may receive a commission for successful connections. The amount is dependent on the supplier- Electricity $30-$65, Internet $40-$50, Natural Gas $10-$50, Pay TV $40

Realestate.com.au

Online advertising portal to which we receive benefits due to ongoing business relationships. The vendor’s agent may take advantage of funds from Realestate.com.au 2 programs to real estate agencies. The first one is Advantage Community Grants. The community grants are chosen on application to a chosen sporting group, fundraiser or school. These amounts are up to $1,500 twice per year. The second one is Advantage. This can be used for staff training, social events, office equipment etc. This amount could be up to $15,000 per year based on the office’s application and the availability of the funds.

Fairfax Pty Ltd (Newcastle Herald)

Local print and online media that we utilise for advertising purposes. If the vendor selects a marketing campaign that includes the Newcastle Herald, the agent may receive rebates, volume discounts, or special offers from time to time. This may include complimentary tickets to local events or training.

NexR Pty Ltd and other licensed real estate agencies/agents.

NexR is another licensed entity providing business and agency support by way of referral leads. NexR is solely owned by Mark Kentwell, the director and an owner of Kenterprise Pty Ltd. Relationships with prominent agents around Newcastle that provide seller or purchaser leads. If the vendor’s agent refers a selling lead or purchaser lead to another external real estate agent within Australia and that referred potential client lists & sells with that agent, the referring agent may receive a referral fee of up to 20% of the referred agent’s commission. Kenterprise will also pay NexR a referral fee for a successful lead. Eg if the fee is  $15,000+GST, the referral fee would be $3,000 +GST.

Presence Property Management Newcastle Region

Related real estate entity providing property management services under the Presence brand. If the vendor’s agent refers a purchaser investor or vendor investor to Presence Property Management Newcastle Region, a referral fee of 30% of first week’s rent may be paid to the agent.

Presence Newcastle, Lake Macquarie, Central Coast & Hunter – Terms & Conditions of Trade

1. Definitions

1.1 “Agency” means Kenterprise Pty Ltd T/A Presence Newcastle, Lake Macquarie, Central Coast & Hunter its successors and assigns or any person acting on behalf of and with the authority of Kenterprise Pty Ltd T/A Presence Newcastle, Lake Macquarie, Central Coast & Hunter.

1.2 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including, but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Vendor does not wish to allow Cookies to operate in the background when using the Agency’s website, then the Vendor shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.6 “Incidental Items” means any goods, documents, designs, drawings, or materials supplied, consumed, created, or deposited incidentally by the Agency in the course of it conducting, or supplying to the Vendor, any Services.

1.7 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between the Agency and the Vendor in accordance with clause 6 of this Contract.

1.8 “Services” mean all Services supplied by the Agency to the Vendor at the Vendor’s request from time to time.

1.9 “Vendor” means the person/s, entities or any person acting on behalf of and with the authority of the Vendor requesting the Agency to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:

  • (a) if there is more than one Vendor, is a reference to each Vendor jointly and severally; and
  • (b) if the Vendor is a partnership, it shall bind each partner jointly and severally; and
  • (c) if the Vendor is a part of a Trust, shall be bound in their capacity as a trustee; and
  • (d) includes the Vendor’s executors, administrators, successors and permitted assigns.

2. Acceptance

2.1 The parties acknowledge and agree that:

  • (a) they have read and understood the terms and conditions contained in this Contract; and
  • (b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Vendor places an order for or accepts delivery of the Services provided by the Agency.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.3 Notwithstanding clause 2.2, the Vendor accepts and acknowledges any additional requests made by the Vendor after the signed acceptance of the Agent’s quotation must be confirmed in writing by email or fax, the Vendor shall be liable for any additional costs incurred by the Agent for such changes and these shall be invoiced in accordance with clause 6.2.

2.4 All advertising costs shown may include a placement, proofing, or composition charge by the Agency which is subject to vary from item to item payable once the property has been set live to the internet and/or photography is taken.

2.5 The Vendor acknowledges and agrees where an Auctioneer’s services are engaged, such cost is non-refundable once booked, regardless if the property is withdrawn from sale or sold prior to auction.  Any un-booked advertising will be refunded to the Vendor if not used at either the settlement of sale or in the case of withdrawal once all accounts are finalised.

2.6 These terms and conditions are meant to be read in conjunction with the Agency’s “Property Marketing Package.”

2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act. The Vendor acknowledges that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and/or may contain viruses. The Agency is not responsible to the Vendor for any loss suffered in connection with the use of e-mail as a form of communication with the Vendor.

3. Errors and Omissions

3.1 The Vendor acknowledges and accepts that the Agency shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

  • (a) resulting from an inadvertent mistake made by the Agency in the formation and/or administration of this Contract; and/or
  • (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Agency in respect of the Services.

3.2 In circumstances where the Vendor is required to place an order for the Services, in writing, or otherwise as permitted by these terms and conditions, the Vendor is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for the Services (whether they are made to order Incidental Items or not) (“Vendor Error”). The Vendor must pay for all Services it orders from the Agency notwithstanding that such Services suffer from a Vendor Error and notwithstanding that the Vendor has not taken or refuses to take delivery of such Services.  The Agency is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Vendor Errors.

4. Authorised Representatives

4.1 Unless otherwise limited as per clause 4.2, the Vendor agrees that should the Vendor introduce any third-party to the Agency as the Vendor’s duly authorised representative, that once introduced that person shall have the full authority of the Vendor to order any materials or Services on the Vendor’s behalf and/or to request any variation to the Services on the Vendor’s behalf (such authority to continue until all requested Services have been completed or the Vendor otherwise notifies the Agency in writing that said person is no longer the Vendor’s duly authorised representative).

4.2 In the event that the Vendor’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Vendor’s behalf then the Vendor must specifically and clearly advise the Agency in writing of the parameters of the limited authority granted to their representative.

4.3 The Vendor specifically acknowledges and accepts that they will be solely liable to the Agency for all additional costs incurred by the Agency (including, the Agency’s profit margin) in providing any materials, Services or variation/s requested by the Vendor’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

5. Change in Control

5.1 The Vendor shall give the Agency not less than fourteen (14) days prior written notice of any proposed change of ownership of the Vendor and/or any other change in the Vendor’s details (including, but not limited to, changes in the Vendor’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Vendor shall be liable for any loss incurred by the Agency as a result of the Vendor’s failure to comply with this clause.

6. Price and Payment

6.1 At the Agency’s sole discretion, the Price shall be either:

  • (a) as indicated on any invoice provided by the Agency to the Vendor upon placement of an order for the Services; or
  • (b) the Agency’s quoted Price (subject to clause 6.2 and 7) which will be valid for the period stated in the quotation or at the time agreed in writing by both parties.

6.2 The Agency reserves the right to change the Price in the event of a variation to the Agency’s quotation (including clause 7).  Any variation from the scheduled plan for the provision of Incidental Items or increases to the Agency in the cost of providing the agreed Incidental Items (beyond the reasonable control of the Agency) will be charged for on the basis of the Agency’s quotation and will be shown as variations on the invoice.   The Vendor shall be required to respond to any variation submitted by the Agency within ten (10) working days. Failure to do so will entitle the Agency to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.3 Time for payment for the Services being of the essence, the Price will be payable by the Vendor on the date/s determined by the Agency, which may be:

  • (a) by way of instalments/progress payments or CampaignAgent payment system, in accordance with the Agency’s payment schedule;
  • (b) on completion of the Services at:
    • (i) the time of settlement;
    • (ii) the withdrawal of property; or
    • (iii) termination or one hundred and eighty (180) Days; whichever occurs first, unless otherwise agreed in writing by the Agency to extend.
  • (c) the date specified on any invoice or other form as being the date for payment; or
  • (d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Vendor by the Agency.

6.4 Payment may be made by cheque, bank cheque, electronic/on-line banking, CampaignAgent payment system, or by any other method as agreed to between the Vendor and the Agency.

6.5 The Agency may in its discretion allocate any payment received from the Vendor towards any invoice that the Agency determines and may do so at the time of receipt or at any time afterwards. On any default by the Vendor the Agency may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Agency, payment will be deemed to be allocated in such manner as preserves the maximum value of the Agency’s Purchase Money Security Interest (as defined in the PPSA) in the Services.

6.6 The Vendor shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Vendor by the Agency nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Vendor must notify the Agency in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Agency investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Agency placing the Vendor’s account into default and subject to default interest in accordance with clause 18.1.

6.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Vendor must pay to the Agency an amount equal to any GST the Agency must pay for any supply by the Agency under this or any other Contract for providing the Agency’s Services. The Vendor must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Vendor pays the Price. In addition, the Vendor must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7. Variations

7.1 In order to change or amend any Incidental Items, the Vendor must give notice in writing of any change or amendment request. This must be received by the Agency no less than forty-eight (48) hours before the next release of the applicable Incidental Items. Any lesser notice shall not be accepted, and the Vendor shall remain liable for full payment of the cost of the provision of Services and use of the Incidental Items, which shall then proceed using the most recent version approved by the Vendor, unless the Agency agrees otherwise in writing.

7.2 Any changes to the “Property Marketing Package” must be approved by the Vendor or Vendor’s Representative and must be received in writing either via SMS, email, letter, messenger, app, or programme before proceeding with marketing upgrades (including, but not limited to, newspapers, advertising, signboards, floor plan, video, internet placement).

7.3 A photography session is included as part thereof the quotation.  It is the Vendor’s responsibility to have the property ready for the photo-shoot and if specific angles are required, the Vendor must be present at the photo shoot or alternatively must request in writing three (3) days prior to shoot. A cancellation fee applies if photo-shoot is cancelled less than 12 hours before the scheduled time. Any bookings for a reshoot will incur a subsidized reshoot fee of $80 call out fee plus $50 per image or $150 for 5 images, unless otherwise agreed by the photographer.

8. Vendor Responsibilities

8.1 Whilst every care is taken by the Agency to carry out the instructions of the Vendor, it is the Vendors responsibility to undertake a final proof reading of all Incidental Items that are being provided. The Agency shall be under no liability whatsoever for any errors in Incidental Items which has not been brought to the Agency’s attention immediately following the final proof reading.

9. Indemnity

9.1 Where the Agency is liable to the Vendor, then unless otherwise agreed in writing between the Vendor and the Agency, the maximum liability of the Agency to the Vendor howsoever arising shall not exceed the lesser of:

  • (a) the Contract Price, or
  • (b) the actual cost to the Agency for Services which are the subject of the claim, or
  • (c) the Agency’s Professional Indemnity Insurance.

9.2 The Vendor agrees to indemnify the Agency, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 9.1 in respect of any activity arising from, or connected with this Contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by the Agent.

10. Provision of the Services

10.1 Any time specified by the Agency for delivery of the Services is an estimate only and the Agency will not be liable for any loss or damage incurred by the Vendor as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Agency is unable to supply the Services as agreed solely due to any action or inaction of the Vendor then the Agency shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

11. Risk

11.1 Irrespective of whether the Agency retains ownership of any Incidental Items all risk for such items shall pass to the Vendor as soon as such items are delivered to the Vendor and shall remain with the Vendor until such time as the Agency may repossess the Incidental Items in accordance with clause 13.3(c). The Vendor must insure all Incidental Items on or before delivery.

11.2 The Agency reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Vendor’s failure to insure in accordance with clause 11.1.

12. Compliance with Laws

12.1 The Vendor and the Agency shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services (including, but not limited to, the Property and Stock Agents Act 2002).

13. Title

13.1 The Vendor acknowledges and agrees that the Vendor’s Obligations to the Agency for the provision of the Services shall not cease, and ownership of the Incidental Items shall not pass until:

  • (a) the Vendor has paid the Agency all amounts owing for the Services; and
  • (b) the Vendor has met all other obligations due by the Vendor to the Agency in respect of all Contracts between the Agency and the Vendor.

13.2 Receipt by the Agency of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised and until then the Agency’s ownership in the Incidental Items or rights in respect of the Services shall continue.

13.3 It is further agreed that, until ownership of the Incidental Items passes to the Vendor in accordance with clause 13.1:

  • (a) the Vendor is only a bailee of the Incidental Items and must return the Incidental Items to the Agency immediately upon request by the Agency;
  • (b) the Vendor must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Vendor sells, disposes, or parts with possession of the Incidental Items then the Vendor must hold the proceeds of sale of the Incidental Items on trust for the Agency and must pay or deliver the proceeds to the Agency on demand; and
  • (c) the Vendor irrevocably authorises the Agency to enter any premises where the Agency believes the Incidental Items are kept and recover possession of the Incidental Items.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

14.2 Upon assenting to these terms and conditions in writing the Vendor acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:

  • (a) all Incidental Items previously supplied by the Agency to the Vendor;
  • (b) all Incidental Items will be supplied in the future by the Agency to the Vendor and the proceeds from such Incidental Items; and
  • (c) all the Vendor’s present and after acquired property being a charge, including anything in respect of which the Vendor has at any time a sufficient right, interest, or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Vendor to the Agency for Services – that have previously been provided and that will be provided in the future by the Agency to the Vendor.

14.3 The Vendor undertakes to:

  • (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Agency may reasonably require to;
    • (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    • (ii) register any other document required to be registered by the PPSA; or
    • (iii) correct a defect in a statement referred to in clause 14.3(a)(i)  or 14.3(a)(ii) .
  • (b) indemnify, and upon demand reimburse, the Agency for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
  • (c) not register a financing change statement in respect of a security interest without the prior written consent of the Agency; and
  • (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items or the proceeds of such Incidental Items in favour of a third-party without the prior written consent of the Agency.

14.4 The Agency and the Vendor agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5 The Vendor waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d)  and 132(4) of the PPSA.

14.6 The Vendor waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7 Unless otherwise agreed to in writing by the Agency, the Vendor waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8 The Vendor must unconditionally ratify any actions taken by the Agency under clauses 14.3 to 14.5.

14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1 In consideration of the Agency agreeing to provide its Services, the Vendor grants the Agency a security interest by way of a floating charge (registerable by the Agency pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Vendor or owned by the Vendor in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Services under this Contract and/or permit the Agency to appoint a receiver to the Vendor in accordance with the Corporations Act 2001 (Cth).

15.2 The Vendor indemnifies the Agency from and against all the Agency’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agency’s rights under this clause.

15.3 In the event that the Vendor defaults or breaches any term of this Contract and as a result, the security provided in clauses 13.1, 14.2 and 15.1 as applicable, is deemed insufficient by the Agency to secure the repayment of monies owed by the Vendor to the Agency, the Vendor hereby grants the Agency a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Vendor now, or owned by the Vendor in the future, to secure the performance of the Vendor of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

16. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)

16.1 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

16.3 If the Vendor is a consumer within the meaning of the CCA, the Agency’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.4 If the Agency is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Agency may refund any money the Vendor has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Vendor which were not defective.

17. Intellectual Property

17.1 The Vendor agrees that the Agency may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which the Agency has created for the Vendor.

18. Default and Consequences of Default

18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Agency’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Vendor owes the Agency any money, the Vendor shall indemnify the Agency from and against all costs and disbursements:

  • (a) incurred; and/or
  • (b) which would be incurred and/or
  • (c) for which by the Vendor would be liable;

in regard to legal costs on a solicitor and own client basis incurred in exercising the Agency’s rights under these terms and conditions, internal administration fees of ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00), the Agency’s Contract fees owing for breach of these terms and conditions, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

18.3 Further to any other rights or remedies the Agency may have under this Contract, if a Vendor has made payment to the Agency, and the transaction is subsequently reversed, the Vendor shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Agency under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Vendor’s obligations under this Contract.

18.4 Without prejudice to the Agency’s other remedies at law the Agency shall be entitled to cancel all or any part of any order of the Vendor which remains unfulfilled and all amounts owing to the Agency shall, whether or not due for payment, become immediately payable if:

  • (a) any money payable to the Agency becomes overdue, or in the Agency’s opinion the Vendor will be unable to make a payment when it falls due;
  • (b) the Vendor has exceeded any applicable credit limit provided by the Agency;
  • (c) the Vendor becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Vendor or any asset of the Vendor.

19. Cancellation

19.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply of Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.

19.2 If the Agency, due to reasons beyond the Agency’s reasonable control, is unable to deliver any Services to the Vendor, the Agency may cancel any Contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Vendor. On giving such notice the Agency shall repay to the Vendor any money paid by the Vendor for the Services. The Agency shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3 The administration levy is due and payable once photography has been booked for the property.  If a listing is withdrawn or postponed prior to marketing and/or prior to the photography being booked but after the Contract of sale has been ordered by the Agency, a reduced administration levy of two hundred and fifty five dollars ($255.00) shall then be due and payable for all labour and costs incurred to date.

20. Vendor Confidentiality  

20.1 Both the Vendor and the Agency agree to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third-party, without the other party’s written consent. The parties will not copy any such information supplied and will either return it or destroy it (together with any copies thereof) on request of the other party.

20.2 Exceptions to clause 20.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.

21. Privacy Policy

21.1 All emails, documents, images, or other recorded information held or used by the Agency is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. The Agency acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Agency acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Vendor’s Personal Information, held by the Agency that may result in serious harm to the Vendor, the Agency will notify the Vendor in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Vendor by written consent, unless subject to an operation of law.

21.2 Notwithstanding clause 21.1, privacy limitations will extend to the Agency in respect of Cookies where the Vendor utilises the Agency’s website to make enquiries. The Agency agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Vendor’s:

  • (a) IP address, browser, email client type and other similar details;
  • (b) tracking website usage and traffic; and
  • (c) reports are available to the Agency when the Agency sends an email to the Vendor, so the Agency may collect and review that information (“collectively Personal Information”)

If the Vendor consents to the Agency’s use of Cookies on the Agency’s website and later wishes to withdraw that consent, the Vendor may manage and control the Agency’s privacy controls via the Vendor’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.

21.3 The Vendor agrees for the Agency to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Vendor in relation to credit provided by the Agency.

21.4 The Vendor agrees that the Agency may exchange information about the Vendor with those credit providers and with related body corporates for the following purposes:

  • (a) to assess an application by the Vendor;
  • (b) to notify other credit providers of a default by the Vendor;
  • (c) to exchange information with other credit providers as to the status of this credit account, where the Vendor is in default with other credit providers; and/or
  • (d) to assess the creditworthiness of the Vendor including the Vendor’s repayment history in the preceding two (2) years.

21.5 The Vendor consents to the Agency being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

21.6 The Vendor agrees that personal credit information provided may be used and retained by the Agency for the following purposes (and for other agreed purposes or required by):

  • (a) the provision of Services; and/or
  • (b) analysing, verifying and/or checking the Vendor’s credit, payment and/or status in relation to the provision of Services; and/or
  • (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Vendor; and/or
  • (d) enabling the collection of amounts outstanding in relation to the Services.

21.7 The Agency may give information about the Vendor to a CRB for the following purposes:

  • (a) to obtain a consumer credit report; or
  • (b) allow the CRB to create or maintain a credit information file about the Vendor including credit history.

21.8 The information given to the CRB may include:

  • (a) Personal Information as outlined in 21.3 above;
  • (b) name of the credit provider and that the Agency is a current credit provider to the Vendor;
  • (c) whether the credit provider is a licensee;
  • (d) type of consumer credit;
  • (e) details concerning the Vendor’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
  • (f) advice of consumer credit defaults (provided the Agency is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Vendor no longer has any overdue accounts and the Agency has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
  • (g) information that, in the opinion of the Agency, the Vendor has committed a serious credit infringement; and/or
  • (h) advice that the amount of the Vendor’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

21.9 The Vendor shall have the right to request (by e-mail) from the Agency:

  • (a) a copy of the Personal Information about the Vendor retained by the Agency and the right to request that the Agency correct any incorrect Personal Information; and
  • (b) that the Agency does not disclose any Personal Information about the Vendor for the purpose of direct marketing.

21.10 The Agency will destroy Personal Information upon the Vendor’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

21.11 The Vendor can make a privacy complaint by contacting the Agency via e-mail. The Agency will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Vendor is not satisfied with the resolution provided, the Vendor can make a complaint to the Information Commissioner at www.oaic.gov.au.

22. Unpaid Seller’s Rights

22.1 Where the Vendor has left any item with the Agency for repair, modification, exchange or for the Agency to perform any other service in relation to the item and the Agency has not received or been tendered the whole of any monies owing to it by the Vendor, the Agency shall have, until all monies owing to the Agency are paid:

  • (a) a lien on the item; and
  • (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

22.2 The lien of the Agency shall continue despite the commencement of proceedings, or judgment for any monies owing to the Agency having been obtained against the Vendor.

23. Service of Notices

23.1 Any written notice given under this Contract shall be deemed to have been given and received:

  • (a) by handing the notice to the other party, in person;
  • (b) by leaving it at the address of the other party as stated in this Contract;
  • (c) by sending it by registered post to the address of the other party as stated in this Contract;
  • (d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
  • (e) if sent by email to the other party’s last known email address.

23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

24. Trusts

24.1 If the Vendor at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Agency may have notice of the Trust, the Vendor covenants with the Agency as follows:

  • (a) the Contract extends to all rights of indemnity which the Vendor now or subsequently may have against the Trust, the trustees and the trust fund;
  • (b) the Vendor has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Vendor against the Trust, the trustees and the trust fund. The Vendor will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; and
  • (c) the Vendor will not during the term of the Contract without consent in writing of the Agency (the Agency will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    • (i) the removal, replacement or retirement of the Vendor as trustee of the Trust;
    • (ii) any alteration to or variation of the terms of the Trust;
    • (iii) any advancement or distribution of capital of the Trust; or
    • (iv) any resettlement of the trust fund or trust property.

25. General

25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including, arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

25.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.

25.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales, the state in which the Agency has its principal place of business and are subject to the jurisdiction of the Newcastle Courts in New South Wales.

25.4 The Agency may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Vendor’s consent provided the assignment does not cause detriment to the Vendor.

25.5 The Vendor cannot licence or assign without the written approval of the Agency.

25.6 The Agency may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Vendor agrees and understands that they have no authority to give any instruction to any of the Agency’s sub-contractors without the authority of the Agency.

25.7 The Vendor agrees that the Agency may amend their general terms and conditions for subsequent future Contracts with the Vendor by disclosing such to the Vendor in writing. These changes shall be deemed to take effect from the date on which the Vendor accepts such changes, or otherwise at such time as the Vendor makes a further request for the Agency to provide Services to the Vendor.

25.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments, including but not limited to, any Government imposed border lockdowns, etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Vendor to make a payment to the Agency.

25.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

25.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.

25.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.