Services Agreement | Impacta Commercial Advocates

Impacta Commercial Advocates Services Agreement

1. Client agreement and services

(a) This agreement commences on the Commencement Date and comprises the following:
- (i) the Special Conditions;
- (ii) the Proposal; and
- (iii) these terms and conditions, and to the extent that there is any inconsistency between the above, the documents shall take precedence in the order set out in this clause.
(b) The Parties acknowledge and agree that each Proposal, including any variations or extensions to it, comprises a separate agreement between the Parties.
(c) The Services to be performed, the time estimates for the provision of the particular Services, and the Fees shall be set out in a Proposal.

2. Exclusive engagement

(a) You acknowledge and agree that Your engagement of Impacta is on an exclusive basis for the term set out in the Proposal and that You will not, during the Term, engage any other advisor or agent to provide services to You that are the same as or similar to the Services provided by Impacta.
(b) You agree that You will not, without the prior written consent of Impacta, communicate with any vendor, purchaser, landlord or tenant (or any representative of those persons) of any property, including communications in relation to any inspections, negotiations or decisions to sell, purchase or lease such property, for a period of 12 months from the date that the relevant property was shown or introduced to You by Impacta. For the purposes of this clause, ‘property’ includes any property presented to You by Impacta at any time (whether verbally or in writing, including, without limitation, properties presented to You in person, or by any electronic means), or properties that You identify (unless agreed otherwise). This provision survives termination or expiration of this agreement.
(c) You warrant that at the time of entering into this agreement, You are not party to or bound by any other agreement that prevents You from entering into this agreement or that relates to the provision of services similar to the Services under this agreement.

3. Fees

(a) In consideration of the provision of the Services, You will pay Impacta the Fees.
(b) Unless agreed otherwise in writing, the Fees remain payable to Impacta in circumstances where You:
- (i) sell, purchase or lease any property, directly or indirectly, with or without the involvement of Impacta, after engaging Impacta to assist with the sale, purchase or lease of a property, or within 12 months after the date that any property is introduced to You by Impacta; or
- (ii) engage another agent or advisor during the term of this agreement.
(c) All invoices issued under this agreement must be paid within 7 days after receiving Impacta’s invoice.
(d) If You fail to make a payment by the due date, Impacta may:
- (i) charge interest on the outstanding amount at the rate of 6% p.a. above the prevailing Reserve Bank of Australia cash rate;
- (ii) require You to pay in advance for any Services;
- (iii) not perform any further Services; or
- (iv) recover any third party fees from You (including legal or collections agency fees) that are incurred by Impacta in the course of recovering any unpaid Fees from You.
(e) If You dispute the whole or any portion of a tax invoice issued by Impacta, You must:
- (i) pay the portion of the amount stated in the invoice which is not in dispute, in accordance with the terms of payment set out in this agreement; and
- (ii) notify Impacta in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.

4. Use of Personnel and subcontractors

(a) Impacta is permitted to use its Personnel to deliver and/or perform some or all of the Services.
(b) Impacta remains responsible for the work of any of Impacta’s Personnel.

5. Engaging third parties

During the term of this agreement, Impacta may recommend or assist with the engagement of third party service providers. You acknowledge and agree that:

(a) any engagement of third party service providers shall be directly between that third party and You;
(b) unless agreed otherwise, Impacta shall not be a party to such agreement between You and the third party service provider; and
(c) Impacta makes no representations about, and takes no responsibility for, the services provided by the third party service provider.

6. Client acknowledgements

You acknowledge and agree that:

(a) You have engaged Impacta to provide the Services only and Impacta is not responsible for making any decisions on your behalf;
(b) You will provide prompt and clear responses and instructions to Impacta to enable Impacta to perform the Services;
(c) Impacta shall not be held responsible for any Loss suffered by You as a result of:
- (i) Your failure to provide clear or timely instructions or responses to Impacta; or
- (ii) any decision by You to sell, purchase or lease any property;
(d) Any information provided to You in connection with this agreement, including any property or market data, is general in nature only and does not constitute financial advice. To the extent that any information is based on third party data, You further acknowledge and agree that Impacta makes no warranties or representations in relation to the accuracy, completeness, suitability or reliability of that information;
(e) You are responsible for reviewing, analysing and validating any information received from Impacta in making any decisions to sell, purchase or lease any property;
(f) Impacta may assist with, but You are solely responsible for, investigating all zoning regulations, planning controls, permitted use and suitability of any property that You wish to purchase or lease; and
(g) Impacta does not hold a financial services licence pursuant to the Corporations Act 2001 (Cth) and is not authorised, nor does it, provide any financial advice to You.

7. Licensing

Where a licence or registration is required to provide the Services in any particular state or territory, Impacta will ensure that it, or its Personnel, as appropriate, holds such licence or registration required to provide the Services.

8. Seeking independent advice

You warrant that you have, or will prior to making any decision, obtain independent legal, financial, taxation or other advice required to make such decisions and that Impacta is not responsible for providing or procuring such advice.

9. Confidentiality

(a) Each party (the Recipient) must keep confidential any Confidential Information unless an exception applies.
(b) The obligations of confidentiality under this agreement do not extend to information that is (whether before or after this agreement is signed):
- (i) rightfully known to the Recipient at the time of disclosure and there is no obligation of confidentiality on the Recipient;
- (ii) generally and publicly available (otherwise than as a result of a breach of this agreement);
- (iii) required to be disclosed to a third party by law or court order;
- (iv) strictly and necessarily required in connection with any legal proceedings relating to this agreement; or
- (v) required to be disclosed to the Recipient’s professional advisors, but only on a confidential basis.
(c) If the party to whom the information relates has consented in writing before the disclosure of that information, then that disclosure does not contravene this clause.

10. Privacy

(a) You are responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by You to Impacta in connection with this agreement so as to ensure that Impacta’s dealings with that information pursuant to this agreement comply with Impacta’s obligations under any Privacy Laws.
(b) You indemnify Impacta against, and must pay Impacta on demand the amount of, all Losses, liabilities, costs and expenses arising out of Your failure to comply with clause 10(a).
(c) You must:
- (i) immediately notify Impacta if You become aware of any unauthorised access to, use of or unauthorised disclosure of, Personal Information under Your control by virtue of this agreement;
- (ii) comply with any directive from Impacta as to which Party will discharge any statutory reporting obligation arising from the incident;
- (iii) conduct, or assist Impacta in conducting, a reasonable and expeditious assessment of the breach or suspected breach; and
- (iv) ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.

11. Warranties and liability

11.1 Warranties

(a) Impacta warrants that it will use reasonable care, skill and diligence in performing the Services.
(b) If Impacta performs the Services (or any part of the Services) negligently or materially in breach of this agreement, then, if requested by You, Impacta will, where possible, re-perform the relevant part of the Services, subject to clauses 11.1(a) and 11.1(c) below.
(c) A request made pursuant to clause 11.1(b) must be made within 14 days of the date that Impacta performs each separate part of the Services.

11.2 No warranties in relation to outcomes

Unless agreed otherwise in writing, Impacta makes no representation or warranty that any result, outcome or objective can or will be achieved or attained by You as a result of the delivery or performance of the Services, including, without limitation, return on investment, purchase or rental pricing or any other metric.

11.3 Limitation on liability

(a) The liability of one Party to the other under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the initial engagement fee paid or payable by You to Impacta, or if there is no engagement fee, then the liability of one party to the other is capped at $5,500 plus GST. The provisions of this clause will not apply in relation to breaches of 9 and 10 of this agreement.
(b) Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. For the purposes of this sub-clause, “consequential loss or damage” includes any Loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this agreement.
(c) Impacta’s liability to You for failure to comply with a Consumer Guarantee (as set out in part 3-2, division 1 of the Australian Consumer Law) is limited to the supply of the Services again or the payment of the reasonable cost to You of having the Services supplied again.

11.4 No reliance

Each Party acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

11.5 Survival of obligations

The obligations accepted by Impacta and You under this clause 11 survive termination or expiry of this agreement.

12. Termination

(a) You may request for the Services to be paused or placed on hold for up to 6 months, by notice in writing to Impacta. If You do not instruct Impacta to recommence the Services following this period, this agreement shall terminate and the Services will be deemed to be completed.
(b) Unless agreed otherwise, either Party may terminate this agreement immediately by notice in writing to the other if the Party notified:
- (i) fails to observe any term of this agreement; and
- (ii) fails to rectify this breach, to the reasonable satisfaction of the notifying Party, following the expiration of 7 days’ notice of the breach being given in writing by the notifying Party to the other Party.
(c) Upon termination of this agreement any Fees, expenses or reimbursements payable by You to Impacta in respect of any period up to the Termination Date must be paid by You within seven (7) days after the Termination Date.

13. Vendor advocacy terms

Where You engage Impacta to provide Vendor Advocacy services, You acknowledge and agree that:

(a) Impacta provides strategic guidance, agent selection advice, marketing input, campaign monitoring, and other services as agreed with You. Impacta does not provide legal, financial, valuation, tax, building or compliance advice;
(b) in relation to any remuneration payable to Impacta:
- (i) any fee payable to Impacta arises through a commission share arrangement with the appointed selling agent;
- (ii) the appointed agent must first provide You with a commission sharing notice in the approved form required under the Estate Agents Act 1980 (Vic) (or other relevant legislation) before any estate agency authority is signed; and
- (iii) Your signature on that authority acknowledges the commission and the share paid to Impacta.
(c) commission and expenses charged by the appointed agent are negotiable and must be stated in the agent’s authority in dollar terms as required by law;
(d) You may terminate this advocacy engagement in writing at any time. Termination does not affect Impacta’s right to its share of any commission from a transaction completed with a party introduced or materially advanced during the engagement, subject to the terms of the appointed agent’s authority.

14. General

14.1 Force Majeure

(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) If such circumstances continue for a continuous period of more than three (3) months, either Party may terminate this agreement by written notice to the other Party.

14.2 Amendment

This agreement may only be amended in writing signed by duly authorised representatives of the Parties.

14.3 Assignment

(a) You must not assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of Impacta, which consent must not be unreasonably withheld.
(b) Impacta may assign or otherwise transfer any or all of its rights and obligations under this agreement, provided that notice of such assignment or transfer is provided in writing to You.

14.4 Entire agreement

This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.

14.5 Waiver

(a) No failure or delay by Impacta in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

14.6 Agency, partnership, etc

(a) This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

14.7 Severance

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

14.8 Notices

A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by email to the email address of the addressee.

14.9 Law and jurisdiction

This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.

15. Definitions and interpretation

15.1 Definitions

In this agreement, unless the context indicates otherwise, the following words have the following meanings:

Commencement Date means the date on which Impacta is to start performing the Services, as set out in a Proposal.
Confidential Information includes any information marked as confidential and any information received or developed by a Party during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the other Party in the course of the disclosing Party’s business, including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Fees means fees disclosed in a Proposal.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor (except to the extent that act or omission is caused by a Force Majeure Event).
Impacta means Impacta Commercial Advocates Pty Ltd atf True North Group Trust ABN 52 201 743 275.
Loss or Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means Impacta and You, and Party has a corresponding meaning.
Personal Information has the meaning as defined in the Privacy Act.
Personnel means any person or persons, including subcontractors, that Impacta designates to perform the Services on Impacta’s behalf.
Privacy Act means Privacy Act 1988 (Cth).
Privacy Law means the Privacy Act and any other legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Proposal means any engagement authority, proposal for services, statement of work, order form, specifications or other document that:
- (a) discloses the Services, Fees and other terms applicable to the engagement; and
- (b) is attached to this agreement or stated to be made pursuant to this agreement.
Services means the Services to be provided by Impacta under this agreement, as set out in a Proposal, which may include:
- (c) buying advocacy;
- (d) vendor advocacy; and
- (e) tenant advocacy.
Termination Date means the earlier of:
- (a) the date of termination of this agreement by You or Impacta; and
- (b) the date of expiry of this agreement, as set out in a Proposal.
You means the Party named as the client in the Proposal.

15.2 Interpretations

In this agreement unless the context otherwise requires:

(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
(e) reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(i) the word “including” (and related forms including “includes”) means “including without limitation”.