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Exclusive Sale Authority

Principal

Name:

name

Address:

address

email:

email

Phone:

(W):​​ work_phone

(M):​​ mobile

 

Agent

Name:

name

 

Address:

address

 

email:

email

 

Phone:

(W):​​ work_phone

(M):​​ mobile

 

 

Business (including Chattels)

Address:

address

Suburb:

suburb

Principal’s asking price:

$ ____asking_price___​​ or any other price the Principal signs a Contract of Sale to sell the​​ Business.

Terms:

10% deposit, balance in 30/60/90 or other days

Method of Sale:

Auction​​ ​​ Date: date

Private Treaty​​ 

Sale by set Date​​ ​​ Date: date

Stock

Included: ​​ ​​ yes_no

Calculated at Sale: ​​ 

Agents Estimate:

Selling Price

selling_price

Range:

range

Fees:

Commission

commission

Other Commission:

other_commission

Sample calculation:

 

sample_calculation  ​​ ​​​​ *based on estimated Selling Price

Marketing Fees:

tfeesayable:

*The Agent will not be​​ entitled, or is not likely to be entitled to any rebate.

Agency Period:

The Principal acknowledges that the Agent is exclusively engaged to market and endeavour to negotiate the sale of the Business. The Agent Exclusive Authority Period is​​ ____________ days from the date of this Authority or in the case of a sale by Auction __________ days after the date of the Auction.

The Agent will not share in any commission with a person who is not a Licensed Estate Agent or an Agents Representative.

THIS IS AN EXCLUSIVE AUTHORITY

The Principal is obliged to pay the Agents Commission on demand, upon a Contract Of Sale for the Business above becoming an unconditional Contract and the Agent is irrevocably authorised to deduct from any deposits​​ received, all Fees (including commission and the Marketing Fees). ​​ The Principal agrees to pay the agreed Marketing Fees incurred during the period of this Authority, whether or not a Sale takes place. ​​ I/We acknowledge that if the account is overdue, the​​ Agent at its discretion, reserves the right to refer the account to a Mercantile Agency for collection and I/we agree to be responsible to meet all reasonable costs and commissions incurred in employing the said mercantile agent to collect the overdue account. ​​ The Principal acknowledges being informed by the Agent that the Agent’s Fees and Marketing Fees are negotiable, prior to signing this Agreement. ​​ The Principal acknowledges receiving a copy of this Agreement when signing and before signing any binding Contract for the sale of the property.

Making of Complaints:​​ Any complaint relating to commission or outgoings can be made to the Director, Consumer Affairs Victoria (CAV) GPO Box 123, Melbourne VIC ​​ 3001 or by telephoning 1300 737 030. ​​ Unless there are​​ exceptional circumstances CAV cannot deal with any dispute concerning commission or outgoings unless it is given notice of the dispute within 28 days of the client receiving an account for, or notice that the Agent has taken the amount in dispute, whichever is later.

 

Signed by Agent___ ​​ ​​​​ agent_name _______  ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​​​ Date of Authority ​​ ​​ ​​ ​​ ​​ ​​ ​​​​ date

Signed by the Principal/s_____principal_name_________________________________  ​​ ​​​​ Date__​​ ​​ date__

 

Signed by PrGeneral Terms

This document sets​​ out the General Terms that are applicable in the provision of this Exclusive Authority. The signed Authority constitutes an acceptance by the Parties of these General Terms and all other parts of this Agreement.​​ 

 

  • Appointment of the Agent

The Principal engages the Agent, and the Agent accepts the engagement, to market and sell the Business during the Agency Period in accordance with the terms of this Authority.

  • Principal acknowledgements

The Principal acknowledges:

    • being informed by the Agent the​​ commission and Marketing fees are negotiable, before signing this Authority;

    • Marketing fees incurred during the Agency Period must be paid, whether or not the Business is sold;

    • commission is payable in accordance with this Authority, if the Business is sold;

    • that his or her Personal Information will be collected and may be used, as provided in this Authority;

    • being informed that the Agent has procedures for resolving complaints and disputes, before signing this Authority; and

    • having received a copy of this​​ Authority, at the time of signing.

  • Marketing Strategy and Plan

    • The Principal and Agent agree that the advertising and marketing of the Business shall be conducted in accordance with the Marketing Strategy and Plan. The Agent must not, without the prior written consent of the Principal:

      • advertise or market or otherwise promote the Business except in accordance with the Marketing Strategy and Plan; or

      • incur any expenditure except as allowed in the budget forming part of the Marketing Strategy and Plan.

    • The​​ Principal agrees to pay the marketing fees detailed in the Fees Item of the Authority as and when indicted in that Item.

    • The Principal agrees and acknowledges that the Agent will not be entitled to any rebates in relation to any Marketing Fees.

  • Duties and​​ Obligations

    • The Agent shall:

      • use the Agent’s best endeavours to promote the Business and effect a Sale at the highest achievable price and in any event not less than the Principal’s asking price as notified to the Agent and varied in accordance with this Authority including:

        • provide to the Principal a selling program for the Principal’s approval;

        • arrange inspections as appropriate of the Business;

        • provide such marketing support, information and marketing materials as are required pursuant to the​​ Marketing Strategy and Plan;

        • make all reasonable enquiries as to the financial capacity of each Purchaser to comply strictly with its obligation under the relevant Contract and satisfy itself that the relevant Purchaser did at the day of sale of the relevant Sale have the financial capacity to comply with its obligations under the relevant Contract; and

        • immediately disclose to the Principal any act, matter, circumstance, thing or event that is reasonably likely to detrimentally affect the reputation of the​​ Principal, the Business or the Agent or which may limit the ability of the Agent to comply with its obligations under this Authority,

      • ensure that the persons employed by the Agent in the conduct of all work required pursuant to this Authority and the level​​ of staffing, as identified in the Marketing Strategy and Plan, will not be changed without the written consent of the Principal.

    • The Agent shall:

      • carry out its responsibilities diligently and at all times protect and promote the interests of the Principal;

      • not make any profit or commission out of the sale and marketing of the Business other than commissions payable under this Authority;

      • in all matters act lawfully and faithfully and in the best interests of the Principal including without limitation in accordance with the Estate Agents Act 1980 (Vic);

      • obey all of the Principal’s directions as to the conduct of the sale and marketing activities and, in the absence of any such directions, act in accordance with the Marketing Strategy and Plan but if the Marketing Strategy​​ and Plan does not cover any particular circumstance, act in such manner as the Agent reasonably considers to be most beneficial to the Principal;

      • conduct the sale and marketing activities of the Business in an orderly and businesslike manner;

      • not engage in any conduct which is or may be prejudicial to the interests of the Principal;

      • develop and maintain a customer database containing details of the range of persons to be approached in respect of the Business and a register of each person specifically introduced to the Principal or to a Business;

      • comply in the sale and marketing of the Business with the requirements ​​ of all statutory obligations and provisions;

      • not disclose any Confidential Information except as expressly​​ provided by this​​ Authority or as required by law; and

      • not present a prospective Purchaser to the Principal who is a director or employee of or contractor to the Agent or any relative of any such person.

    • The Agent acknowledges and agrees that it is not authorised to enter into any Contract or sign any document on behalf of the Principal.

    • The Agent represents and warrants to the Principal that:

      • it has made full disclosure to the Principal of all material circumstances and of everything known to the Agent in respect of the subject matter of this Authority which would be likely to influence the decision of the Principal to engage the Agent;

      • without limiting any other provision of this Authority, it will not engage in any conduct that is unconscionable, false, misleading or deceptive or likely to mislead or deceive or in breach of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 2012 (Vic);

      • it has all appropriate licences, permits and authorities to carry out all of the duties and obligations on its part in this​​ Authority; and

      • the persons named in clause​​ 4.1.2​​ will be available to devote their time and commitment to the marketing of the Business and sale of the Business, as contemplated by this Authority, throughout the Agency Period.

  • Deposit Monies

The Agent undertakes to the Principal that all deposit monies, bank guarantee, or security bond that it received from or on behalf of an actual or prospective Purchaser must be deposited into a trust account.

  • Agent’s Remuneration

    • In​​ consideration of the services provided by the Agent under this Authority the Principal shall pay to the Agent the commission calculated in accordance with the Fees Item of the Authority.

    • Commission payable to the Agent on the sale of a Business shall be paid as follows:

      • on the date upon which the Contract for the sale of that Business has been executed and exchanged with the relevant Purchaser and a deposit of at least 10% of the purchase price on terms that are acceptable to the Principal in its absolute discretion for the Business has been paid by the purchaser, the Agent shall be entitled to invoice the Principal for payment of 50% of the commission; and

      • on the Settlement Date, the Agent shall be entitled to invoice the Principal for payment of the balance of the commission.

  • Principal’s Warranties and Obligations

    • The Principal warrants to the Agent that:

      • it has authority to enter into this Authority;​​ 

      • it had reasonable grounds to believe all information given to the Agent for the sale of the Business was accurate in every material particular as at the date of that information being provided;​​ 

      • no material information given to the Agent for use in the sale of the Business will be misleading or deceptive; and

      • it has not made and will not make any statement, representation or promise to the Agent that is materially false, misleading or deceptive.

    • Subject to clauses​​ 7.3​​ and​​ 7.4, the Principal shall indemnify and keep indemnified the Agent from and against any damages, costs or expenses (including on a solicitor and client basis) which that Agent incurs as a consequence of any breach of the warranties on the part of the Principal in clause​​ 7.1.

    • Immediately upon becoming aware of any circumstance likely to give rise to any claim by the Agent in respect of the indemnity given by the Principal under clause​​ 7.2, the Agent shall notify the Principal and provide all information, materials and documents to the Principal to enable the Principal to make an​​ informed decision on the handling of the claim or action.

    • The indemnity given by the Principal under clause​​ 7.2​​ shall not apply:

      • where there was any negligence, unauthorised or unlawful act, default or omission on the part of the Agent;

      • unless, on the request of the Principal, the Agent allows the Principal to take over the entire conduct of such claim or action in court or other tribunal including the right to settle such claim or action; or

      • whether damages, costs or expenses arise out of the release, dissemination or publication of any marketing materials unless the release, dissemination or publication of the particular marketing materials has been authorised in writing by the Principal prior to such release, dissemination or publication.

    • The Principal acknowledges that, unless otherwise agreed in writing by the Principal and the Agent, the Agent will not be required by the Principal to perform any other services in connection with the sale of the Business beyond that contemplated by this Authority.

  • Termination

    • If the Agent shall default in observing any obligation on its part under this Authority and the default continues for a period of 14 days after the Principal has given written notice to the Agent​​ requiring it to remedy that default, the Principal may at any time thereafter terminate this Authority by giving further written notice to the Agent to that effect.

    • If the Principal shall default in observing any obligation on its part under this Authority​​ and the default continue for a period of 14 days after the Agent has given written notice to the Principal requiring it to remedy that default, that Agent may at any time thereafter terminate this Authority by giving further written notice to the Principal to that effect.

    • On termination of this Authority:

      • the rights granted under this Authority in favour of the Agent shall cease as at the date of the effective termination; and

      • neither Party shall have any further liability under this Authority save in respect of any breach of warranty by the Agent under Clause​​ 4.4​​ or breach of warranty by the Principal under clause​​ 7.1​​ or in respect of any liability accrued to the date of termination.

  • Confidentiality

    • The Principal and the Agent acknowledge and agree that the terms of this Authority are to remain confidential as between them and, subject to clause​​ 9.4, neither Party shall divulge the terms of this Authority to any person.

    • Subject to clause​​ 9.4, the Agent shall not disclose any Confidential Information to any other person and shall not use or attempt to use any Confidential Information in any manner which may injure or cause loss either directly​​ or indirectly to the Principal or its business or may be likely to do so.

    • The Agent must take or cause to be taken all precautions reasonably necessary to maintain the secrecy and confidentiality of the Confidential Information.

    • The exceptions to the obligations under clauses​​ 9.1​​ and​​ 9.2​​ are:

      • disclosure of confidential information with the prior written consent of the other Party;

      • disclosure by a Party to its financiers or professional consultants to the extent reasonably necessary or prudent for the performance of the Party’s obligations under this Authority; or

      • in respect of a specific Business, disclosure of the particulars of the Contract to the solicitors acting on behalf of a party to that Contract.

    • The provisions of this clause​​ 9​​ shall continue to apply after termination of this​​ Authority​​ without limit in point of time.

  • Privacy

    • Each Party must comply with all Relevant Laws in relation to Personal Information, whether or not it is an​​ organisation bound by the Relevant Laws.

    • The Agent must inform the Purchasers at the time their Personal Information is collected that:

      • Personal Information they provide will be stored in a customer database; and

      • that Personal Information will be provided​​ to the Principal for use:

        • in administering the Business, including disclosure where necessary to the Principal’s professional advisers;

        • in marketing the Business;

        • in marketing other projects by the Principal; and

        • they may gain access to the information held by the Principal by contacting the Principal.

    • The Agent undertakes that it will:

      • use Personal Information only for purposes directly related with its duties under this Authority; and

      • not disclose Personal Information to persons other than the​​ Principal and the Principal’s professional advisers without the written consent of the Principal.

  • General

    • Interpretation

The following rules apply unless the context requires otherwise:

      • Capitalised terms have the meanings provided in the Glossary;

      • words denoting the singular include the plural and vice versa;

      • words denoting natural persons include corporations and vice versa;

      • words denoting any gender include all genders;

      • headings are for convenience only and do not affect interpretation;

      • reference​​ to any Party to this Authority or any other relevant agreement or document includes that Party’s successors and permitted assigns;

      • reference to any document or agreement is deemed to include​​ references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;

      • references to any legislation or to any provision of any legislation include any modification or re-enactment of such legislation or any legislative provisions substituted for, and all legislation and statutory instruments issued under, such legislation; and

    • Assignment:​​ A Party must not assign, sub-contract, or transfer any of its rights or obligations under this Authority to any person without the prior written consent of the other Parties. ​​ Such consent must not be unreasonably withheld.

    • Severability:​​ If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. ​​​​ If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Authority, but the rest of this Authority is not affected and all other provisions will remain in full force and effect.

    • Governing Law:​​ This Authority shall be governed by the laws of Victoria, Australia. ​​ Each Party submits to the non-exclusive jurisdiction of the courts of that place.

    • GST:​​ If under GST Law any supply under this Authority is taxable, the supplier will be entitled to recover from the recipient an amount equal to the GST payable by the supplier. If GST is payable, the supplier will provide the recipient with a tax invoice or other document adequate to claim an input tax credit.

    • Several Obligations:​​ Each Party’s obligations and liabilities under this Authority are several and not joint or joint and several.

    • No Waiver:​​ Any failure by a Party to compel performance by the other Party of any of the terms and conditions of this Authority will not constitute a waiver of​​ those terms or conditions or diminish the rights arising from their breach.

    • Counterparts:​​ This Authority may be executed in any number of counterparts, each counterpart is an original but the counterparts together are one and the same agreement. ​​ This​​ Authority is binding on the Parties on the exchange of counterparts. ​​ A copy of a counterpart sent by electronic transmission –

      • must be treated as an original counterpart;​​ 

      • is sufficient evidence of the execution of the original; and​​ 

      • may be produced in evidence for all purposes in place of the original.​​ 

    • Signatories:​​ The signatories to this Authority warrant that they have the authority to enter into this agreement on behalf of the party they are stated to represent.

    • Variation:​​ This Authority may only be​​ varied in writing, signed by all Parties.

    • Contra Proferentem:​​ This Authority or any part of this Authority is not to be construed against a Party merely because that Party was responsible for preparing it.

    • Entire Agreement:​​ This​​ Authority​​ -

      • is the entire agreement and understanding between the Parties on everything connected with the subject matter of this Authority; and

      • supersedes any prior agreement or understanding on anything connected with that subject matter.

    • Execution:​​ This Authority is null and void​​ unless it executed by all parties.

  • Notices

Any notice given under this Authority:

    • must be in writing and signed by a person authorised by the sender;

    • must be delivered to the intended recipient by post or by hand or fax or email to the address or fax​​ number or email address set out in the Schedule;

    • will be taken to be duly given or made:

      • in the case of delivery in person, when delivered;

      • in the case of delivery by post, five Business Days after the date of posting unless it has been received earlier;​​ 

      • in the case of fax, on receipt by the sender of a transmission control report from the dispatching machine; and

      • if transmitted electronically, upon actual receipt by the addressee provided that the sender does not receive notification of invalid email delivery address or other transmission error. ​​ In the case where the sender receives a transmission error report,​​ the sender must re-send the notice by one of the other means by hand, post or fax;

but if the result is that a notice would be taken to be given or made on a day which is not a Business Day, or is later than 4.00pm (local time), it will be taken to have been duly given or made on the next Business Day.

 

 ​​ 

 

 

 

 

Glossary

Agency Period

means the period commencing on the date of this Authority and​​ ending on the date referred to in the Agency Period Item of the Authority, or if no date is specified:

(a)the date being 3 months after the date of this Authority (in the case of a private treaty sale); or

(b)the date being 30 days after the date of the​​ auction, in the case of a sale by auction; or

(c)​​  the date upon which the engagement is terminated in accordance with its terms.

Authority

means this agreement granting the Agent an exclusive authority to sell the Business on behalf of the​​ Principal (either by way of Auction, Private Treaty or Sale by Set Date) including this Glossary, the Authority, the General Terms, all Annexures to this agreement, and any amendment to it in writing.

Annexure

means an annexure to this Authority.

Business Day

means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.

Confidential Information

includes:

(a)particulars of any Sale​​ including any name or identity of the purchaser, the sale price and the terms of Sale;

(b)any documents supplied to the Agent marked “Confidential”;

(c)any documents or information not publicly available which relate to the Principal’s business interests​​ or to the Business.

Contract

means a contract for the sale of a Business.

Fees

means the commission payable to the Agent referred to in the Fees Item of the Authority.

Item

means an item in the first page of this Authority.

Marketing Strategy and​​ Plan

means the plan and strategy for the marketing of the Business as prepared by the Principal in consultation with the Agent from the date of this Authority and which is acceptable to the Principal

Parties

means the Parties to this Agreement and their respective successors and permitted assigns, and​​ “Party”​​ means any one of them.

Personal Information​​ 

means:

(a)information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent,​​ or can reasonably be ascertained, from the information or opinion; or

(b)information or a document that relates to the affairs or personal particulars of another person (such as a company or a business),

which is received or learnt by a party from any source for or in connection with this Authority.

Business

means each property notified by the Principal to the Agent in writing after the date of this Authority as available for sale from time to time.

Purchaser

means as a purchaser of a Business who is​​ introduced by the Agent or became introduced to the Business during the Agency Period.

Relevant Laws

mean the​​ Privacy Act 1988​​ (Cth) (including the Australian Privacy Principles).

Sale

in relation to a Business, means the execution of a Contract​​ between the Principal and a Purchaser for the sale of that Business

Schedule

means a schedule to this Authority.

Settlement Date

means the date upon which settlement of a Contract is effected.

 

 

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