MARKETING AGREEMENT

DATE The date referred to in Item 1 of Schedule 1
PARTIES The party referred to in Item 2 of Schedule 1 (Latitude)
The party referred to in Item 3 of Schedule 1 (Supplier)



RECITALS
A. Latitude appoints the Supplier under this Agreement to perform the Services and to carry out the Duties in accordance with this Agreement.
B. Latitude agrees to pay the Supplier the Marketing Fee for each Qualifying Sale on the terms of this Agreement.
C. The Supplier accepts the appointment on the terms of this Agreement.
AGREEMENT¬

1. DEFINITIONS AND INTERPRETATION
1.1 The expressions following have the meanings assigned to them in this clause:-
a. “Agreement” means this agreement and any annexure or schedule attached to it or any other agreed variations.
b. "Approved Construction Contract" means a Construction Contract approved by Latitude in writing for execution by an Approved Third Party (and any required guarantor(s)) and the Builder in relation to the construction of a dwelling on Approved Land.
c. "Approved Land" means the lot upon which a dwelling is to be constructed which must have separate registered title or will have separate registered title in less than 3 months from the date approval is sought from Latitude to the Construction Contract.
d. "Approved Third Party" means a Third Party whose lawyer or banker/ financier has provided written confirmation to Latitude (and any other party requested by Latitude) that the Third Party has the unconditional capacity (including financial capacity) or unconditional approved finance sufficient to complete the Construction Contract.
e. "Authority" means any:
(i) government or local government;
(ii) governmental, semi-governmental, statutory or judicial body, department, commission, authority, tribunal, agency, Minister, or entity; and
(iii) government-owned corporation or enterprise.
f. “Builder” means Simonds Corporate Pty Ltd ACN 056 901 127 or such other builder as may be approved in writing by Latitude.
g. “Business Day” means any day that is not a weekend or public holiday.
h. “Buyer” means a buyer introduced by the Supplier who enters into a Contract of Sale.
i. "Confidential Information" means all information relating to the business of Latitude, the Builder and the Supplier that is not generally known to the public including but not limited to:
(i) any client lists, production information, software, advertising techniques or other information regarding the business and affairs of Latitude or the Builder;
(ii) information relating to the financial affairs or business affairs of any business associate, client or customer or any other person related to or connected with the business or financial affairs of Latitude or the Builder;
(iii) any information of any customer, client, distributor or supplier associated with the Builder or Latitude and any sales or promotional material or strategy of the Builder or Latitude which may be disclosed or otherwise discovered or acquired by the Supplier or Latitude either directly or indirectly by or through Latitude or the Supplier.
j. "Construction Contract" means a form of building contract and drawings approved in writing by Latitude proposed to be entered into between the Builder and a Third Party.
k. "Construction Price" means the total price payable under an Approved Construction Contract.
l. “Contract of Sale” means a contract for the sale of a Lot (including any amendment to that Contract of Sale required by Latitude) issued by Latitude to the Supplier from time to time and includes, where the context permits, any Approved Construction Contract in relation to the Lot.
m. “Deposit” means the deposit required to be paid under a Contract of Sale, which may include the Initial Deposit.
n. "Design Materials" means the drawings, designs or other documentation made available by or on behalf of Latitude to the Supplier in relation to dwellings which may be offered for construction to a Third Party under a Construction Contract.
o. “Deposit Holder” means the deposit holder or stakeholder under a Contract of Sale.
p. “Duties” means the duties to be performed by the Supplier as identified under this Agreement, including those set out in clauses 6, 7, and 8.
q. “Initial Deposit” means the initial deposit to be paid under a Contract of Sale.
r. "Intellectual Property Rights" means all intellectual property rights, including but limited to:
(i) patents, copyright, registered designs, trademarks, know-how and any right to have Confidential Information kept confidential;
(ii) any application or right to apply for registration of any of the rights referred to in (i),
but for the avoidance of doubt excludes moral rights and performers' rights.
s. "Law" means:
(i) the principles and rules of the common law and equity; and
(ii) any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:
A. present or future; or
B. State, federal or otherwise.
t. “List Price” means the “list price”, including GST, for a Lot as provided by Latitude to the Supplier from time to time.
u. “Lots” means a Lot described in Item 4 of Schedule 1 (if any) and may include a spec home, unit or form part of a house and land package.
v. "Marketing Fee" has the meaning given to this term in clause 1 of Schedule 2.
w. "New Build" means construction of a new dwelling on land.
x. "Personnel" means employees, agents and any other person employed or engaged by the Supplier to perform the Agreement;
y. "Qualifying Sale" means the procurement by the Supplier of a properly executed (including by any guarantor(s)) Approved Construction Contract, under which the Builder has received in cleared funds the 5% deposit of the Construction Price and where applicable includes the sale of any Lot the subject of an Approved Construction Contract that has been sold by the Supplier.
z. "Relevant Jurisdiction" means the Australian State or Territory within which the Supplier has been engaged to perform the Services/ Duties under this Agreement, and if there is any dispute about which State or Territory is the relevant jurisdiction, the relevant jurisdiction will be the State or Territory stated in a notice from the Latitude to the Supplier from time to time;
aa. "Requirement" means a condition, demand, direction, notice, order, request, requirement or requisition received from or given by any Authority;
bb. "Services" means, unless otherwise agreed in writing by Latitude, all of the following:
(i) to sell Lots;
(ii) to generate a Third Party to enter into Construction Contracts in respect of New Builds;
(iii) to procure Third Parties to enter into Approved Construction Contracts that result in a Qualifying Sale;
(iv) to participate in and contribute to sales and marketing activities as required by Latitude from time to time in a notice from Latitude to the Supplier including without limitation attending and presenting at investment seminars.
cc. “Tax Invoice” means an invoice issued for either some, or all of the Marketing Fee (and in any event, that portion of the Marketing Fee for which the Supplier is seeking payment).
dd. "Third Party" means a person or entity with legal capacity who is registered or entitled to be the registered owner of Lots or land (including as purchaser under a Contract of Sale) upon which a dwelling is intended to be constructed.
ee. "Variation" means a variation to the Services and Duties agreed by the Supplier and Latitude in writing.
ff. "Variation Notice" means notice requesting a variation to the scope of Services or Duties that is stated to be a variation notice for the purposes of this Agreement.
1.2 In this Agreement:
a. headings are for reference only and do not affect the meaning of this Agreement;
b. the singular includes the plural and vice versa and words importing a gender include other genders;
c. other grammatical forms of defined words or expressions have corresponding meanings;
d. “person” includes a firm, a body corporate, an unincorporated association or an authority;
e. an agreement, representation or warranty:
(i) in favour of two or more persons is for the benefit of them jointly and severally;
(ii) on the part of two or more persons binds them jointly and severally;
f. a reference to:
(i) a person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
(ii) a document includes any variation or replacement of it and all schedules, annexures and exhibits to the document;
(iii) a law includes regulations and other instruments under it and amendments or replacements of any of them;
(iv) a thing includes the whole and each part of it;
(v) a group of persons includes all of them collectively, any two or more of them collectively and each of them individually;
(vi) a reference to “$” or “dollars” is a reference to Australian currency.
(vii) a reference to a specific time means the time in Relevant Jurisdiction; and
(viii) “including” when introducing a list of items does not limit the meaning of the words to which the list relates to those items or to items of a similar kind.
2. APPOINTMENT
Latitude appoints the Supplier to perform the Services on a non-exclusive basis in accordance with the terms of this Agreement.
3. COMMENCEMENT OF AGREEMENT
3.1 This Agreement shall commence on the date referred to in Item 5 of Schedule 1.
3.2 This Agreement embodies the entire agreement between the parties and supersedes all agreements and documents between the parties dated prior to this Agreement. The parties agree all other agreements and documents between the parties dated prior to this Agreement shall cease on the date of this Agreement.
4. EXPIRATION OR TERMINATION OF AGREEMENT
4.1 This Agreement shall come to an end on the date referred to in Item 6 of Schedule 1.
4.2 Notwithstanding clause 4.1 if Latitude, in its sole discretion, determines that the Supplier has breached a term of this Agreement, and such term is not remedied after seven (7) days of the Supplier receiving notice of such breach, then Latitude may by giving notice in writing to the Supplier, terminate this Agreement, effective immediately.
4.3 Notwithstanding clause 4.1 the following additional termination rights apply:
a. Latitude may terminate this Agreement immediately upon giving notice in writing to the Supplier in the following circumstances:
(i) Latitude reasonably forms the opinion that the Supplier will be unable to perform its obligations under this Agreement;
(ii) Latitude becomes aware that the Supplier is in breach of its statutory obligations with respect to its employees;
(iii) the Supplier fails to disclose a conflict of interest either with Latitude or the Builder;
(iv) the Supplier suffers or, in the reasonable opinion of Latitude, is in jeopardy of becoming subject to any form of insolvency, administration or bankruptcy;
b. Latitude may terminate this Agreement without cause by giving the Supplier 30 days' notice in which case:
(i) the Supplier shall have no claim against Latitude arising out of or in relation to such termination other than the right to be paid for any Qualifying Sale occurring prior to the effective termination date (subject to the terms of this Agreement); and
(ii) the Supplier must comply with all reasonable directions given by Latitude.
4.4 Notwithstanding clause 4.1, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:-
a. is an individual and:
(i) becomes mentally ill;
(ii) is incapable of managing its own affairs;
(iii) dies; or
(iv) becomes or takes steps to become bankrupt;
b. is a company and:
(i) it goes into liquidation;
(ii) enters into any scheme of arrangement with its creditors; or
(iii) a liquidator, provisional liquidator, trustee, receiver, receiver and management, administrator or similar officials appointed over its assets or undertaking; or
c. breaches any of its obligations under this Agreement.
5. EXTENSION OF AGREEMENT
5.1 Either party may request the other to extend this Agreement on the basis that such request is made in writing.
5.2 If the Supplier requests an extension of this Agreement, then it is in Latitude’s absolute discretion to either grant or deny such request, and if granted, such extension may contain conditions.
6. DUTIES OF THE SUPPLIER
The Supplier shall perform the following Duties:
a. assist Latitude with obtaining and procuring sales of the Lots, Third Parties and Qualifying Sales;
b. act as marketing consultant in respect of the Lots and the procurement of Third Parties and Qualifying Sales for Latitude (either in its own capacity or by using an approved related entity);
c. implement and maintain any marketing and advertising plan as agreed with and approved in writing by Latitude;
d. if requested, provide research and marketing analysis for Lots, New Builds (and associated construction contracts), and the local area of which the Lot forms part;
e. attend to all enquiries relating to any prospective Buyer of a Lot or Third Party in relation to a Construction Contract with a Third Party or New Build;
f. provide weekly (and where reasonably requested daily) feedback regarding any sales, potential sales, enquiry regarding New Builds, new and anticipated requests to Latitude for Approved Construction Contracts, Approved Construction Contracts, and Qualifying Sales in a form as required by Latitude from time to time;
g. issue and follow up the signing of Contracts of Sale;
h. where requested by Latitude issue, coordinate and follow up on signing of Approved Construction Contracts;
i. follow up on Latitude regarding requests by the Supplier for Latitude to give approval to a proposed Construction Contract with a Third Party so that the Construction Contract can become an Approved Construction Contract;
j. follow up on Third Parties under an Approved Construction Contract to ensure that the deposit is paid in accordance with the Approved Construction Contract;
k. provide all necessary information to a Third Party and at all times assist the Third Party in procuring and entering into an Approved Construction Contract in accordance with the requirements of Latitude from time to time;
l. liaise with each Third Party who has entered into an Approved Construction Contract in relation to any condition/s in the Approved Construction Contract which is for the benefit of the Third Party and notify Latitude as to the progress of the Third Party satisfying or waiving such condition/s;
m. do all other things that Latitude may reasonably request to ensure that the Third Party is able to obtain finance to complete and settle an executed Approved Construction Contract.
n. liaise with Buyers who have entered into a Contract of Sale in relation to any condition/s in the Contract of Sale which is for the benefit of the Buyer and notify Latitude as to the progress of the Buyer satisfying or waiving such condition/s;
o. where a sale of a Lot includes a residential property, and when requested, co-ordinate with Latitude at any pre settlement inspections and handover of a Lot;
p. provide adequate and professional training to all the Supplier’s sales staff and affiliates in relation to Latitude’s processes; and
q. comply with any copyright in the brand, design and colour scheme formulated (if any) for the promotional and advertising material for any Lot.


7. SPECIFIC DUTIES
Without limitation to clause 6 (and for clarification of some of those clauses) the Supplier will also ensure that it:
a. will collect the Initial Deposit from any prospective Buyer prior to entering into a Contract of Sale;
b. properly completes and has signed by a prospective Buyer the Contract of Sale and delivers the properly completed and signed Contract of Sale to Latitude for counter signing;
c. immediately upon confirmation of Latitude signing a correctly completed and signed Contract of Sale, transfer or deal with any Initial Deposit, collected in accordance with paragraph 7a, as required under the signed Contract of Sale; and
d. where Latitude has not accepted a Contract of Sale or where a Buyer withdraws the offer prior to Latitude signing the Contract of Sale, refunds to the Buyer, directly or as directed to the Supplier by the Buyer, any Initial Deposit paid.
8. SUPPLIER’S PERFORMANCE OF DUTIES
In the performance of its Duties and the Services, the Supplier shall at all times:
a. exercise all due professional skill, care and attention;
b. ensure all employees are properly licensed (where required) and have the relevant experience and qualifications to undertake the Duties;
c. act in an efficient, timely, honest, professional and reputable manner;
d. co-operate fully with Latitude and with any other agent appointed by Latitude;
e. act in accordance with Latitude’s lawful instructions and other policies, procedures and standard requirements of Latitude that may from time to time be amended;
f. provide to prospective Third Parties sufficient and appropriate material and brochures about New Builds, and housing design products which must be approved by Latitude;
g. act in accordance with the best interests of Latitude, avoid conflict between its own interests and the interests of Latitude and act in good faith;
h. notify Latitude if a conflict or potential conflict of interest is identified between the Supplier and any other agent or Latitude;
i. comply with all laws, acts and ordinances, regulations, by-laws, codes or Australian Standards, rules and the law for any requirements of any public, municipal or other authority in any way affecting or applicable co complying and performing its obligations under this Agreement;
j. comply with the Law and any relevant Requirement; and
k. keep confidential any information given to it or gained in relation to a Lot, Approved Construction Contract (or Construction Contract, including and Design Materials), or Qualifying Sale and must not disclose any such information to a third party without first obtaining the consent of Latitude.
9. MARKETING FEE
9.1 Subject to the terms of this Agreement, in consideration of the Supplier performing the Services and the Duties, Latitude shall pay to the Supplier the Marketing Fee as specified in Schedule 2 in respect of each Qualifying Sale provided that Latitude has first received any payment to which it is entitled from the Builder in respect of the relevant Qualifying Sale.
9.2 It is expressly agreed between the parties that entitlement to any Marketing Fee is subject to Latitude receiving a valid Tax Invoice in respect of the relevant amount of the Marketing Fee payable to the Supplier.
10. SUPPLIER’S ENTITLEMENT TO MARKETING FEE WHEN A CONTRACT OF SALE OR APPROVED CONSTRUCTION CONTRACT IS TERMINATED
10.1 Notwithstanding clause 9, if Latitude has paid to the Supplier a part or full payment of the Marketing Fee and:
a. a Contract of Sale is terminated by the Seller under that Contract of Sale due to the Buyer’s default; or
b. the Supplier was not entitled to receive the part or full payment of a Marketing Fee in respect of a Lot; or
c. the Supplier received an amount that was greater than the amount of the Marketing Fee that the Supplier should have received in respect of a Lot (“Excess Amount”);
d. an executed Approved Construction Contract is terminated for any reason whatsoever,
then Latitude may:
e. request the Supplier, in writing, to repay the part or full payment of the Marketing Fee or the Excess Amount, whichever is applicable, within seven 3 Business Days from the date of the notice and the Supplier must comply with Latitude's notice; or
f. where clause 10.1(c) applies, reduce the amount of the Marketing Fee payable on any future Qualifying Sale to the Supplier under this Agreement by the amount of the part payment or the Excess Amount paid, whichever is applicable.
10.2 Clause 10.1 does not merge on expiration or termination of this Agreement.
11. WHERE A CONTRACT IS TERMINATED BY A BUYER DUE TO MISREPRESENTATION
11.1 If a Contract of Sale or executed Approved Construction Contract is terminated and any money paid by a Buyer/ Third Party is to be refunded to a Buyer/ Third Party because the Supplier (or its employees or other persons associated with or referred to by the Supplier) made misrepresentations, promises, warranties or assurances on behalf of Latitude that were untrue or due to any negligent or fraudulent activity by the Supplier, and a Marketing Fee or part thereof has been paid to the Supplier for the relevant Qualifying Sale, then the Supplier must refund the Marketing Fee or part thereof (“Refund”), to Latitude on demand.
11.2 Latitude is entitled to deduct from any monies owed to the Supplier under this Agreement, the Refund referred to in clause 11.1.
12. GST
12.1 Unless otherwise stated in this Agreement (including by referencing that a supply is inclusive of GST) Latitude is obligated to pay any Goods and Services Tax upon any taxable supply from the Supplier to Latitude under this Agreement pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth), and the additional amount must be paid by Latitude to the Supplier at the time and in the same manner as the relevant payment for the supply in exchange for a properly prepared GST Invoice approved by Latitude.
13. FOREIGN INVESTMENT REVIEW BOARD APPROVAL
13.1 The Supplier shall not request Latitude nor shall Latitude be obligated to make any application to the Treasurer of the Commonwealth of Australia for a sale of a Lot to a foreign interest.
13.2 The Supplier must ensure that a Buyer who is a foreign interest, makes an application to the Treasurer of the Commonwealth of Australia for approval for that foreign interest to purchase a Lot prior to the Buyer entering into a Contract of Sale. Further, the Supplier must ensure that any necessary special condition in this regard has been inserted into the Contract of Sale and Latitude has been given notice that such Buyer is a foreign interest.
14. WARRANTY
14.1 The Supplier hereby warrants in favour of Latitude:
a. that it will comply with the description of the Services and Duties required by this Agreement;
b. the Services and Duties will be:
(i) provided with due care and skill;
(ii) provided in a timely and efficient manner;
(iii) provided in accordance with the best practices current in the Supplier's industry;
(iv) supplied without infringing any person's Intellectual Property Rights;
(v) performed by the Supplier or the Supplier's employees;
(vi) supplied in the most cost-effective manner consistent with the required level of quality and performance;
(vii) performed or carried out in accordance with all Laws and any relevant Requirements.
c. that it holds, and will at all times hold, any licence, permit or approval required by Law (or any relevant Requirement) for it to legally provide any service comprising the Services or undertake the Duties or to do anything else under or in relation to this Agreement, including but not limited to a real estate agent licence;
d. that it does not participate, will not participate and is not involved in two-tier marketing schemes;
e. that it, nor its agents, employees or servants, will misrepresent or mislead Buyers or prospective Buyers in any way regarding a Lot or a development of which the Lot may form part of;
f. that it will not make any comments on any social media site or to the media regarding Latitude or a Lot or a development of which the Lot may form part of without first obtaining the consent of Latitude;
g. that it will not advertise Latitude or use/ reproduce any branding of Latitude without the prior written consent of Latitude;
h. that it will disclose to all Buyers and all Third Parties any fees, commissions, payments or other amounts paid or payable to the Supplier by Latitude under this Agreement in connection with any transaction involving the Buyer or Third Party in accordance with all Laws and Requirements;
i. that it will not advertise the Builder or use/ reproduce any branding of the Builder without the prior written consent of Latitude and the Builder;
j. it will not contact or communicate with the Builder (or any employee, agent, or representative of the Builder) without first obtaining the approval in writing of Latitude (which may be given or withheld in Latitude's absolute discretion);
k. it will not solicit services to the Builder (or any employee, agent, or representative of the Builder) without first obtaining the approval in writing of Latitude (which may be given or withheld in Latitude's absolute discretion);
l. shall maintain the insurances under and in accordance with clause 15;
m. that it will comply with the requirements of all relevant legislation including disclosing to any Buyers all matters it is required to disclose by law;
n. that it will comply with Latitude’s policies and procedures issued to it by Latitude from time to time;
o. comply with any notice given by Latitude to the Supplier requiring the Supplier to remove or replace Personnel from performing the Services and Duties under this Agreement;
p. that it will only use Latitude's computer systems with the specific authorisation of Latitude and only in the manner directed by Latitude from time to time;
q. that it must, upon receipt of a Variation Notice from Latitude, negotiate in good faith with Latitude to agree any change to the Marketing Fee to reflect the Variation, and upon agreement being reached with Latitude to any Variation, the Supplier must perform the Services and Duties as varied by the Variation;
r. that it will not provide financial advice to any Buyers or prospective Buyers unless it is properly licensed to do so, which such licences being issued from Federal or State authority;
s. that it, will ensure its staff, employees and associates are aware of the consequences of misrepresentation, untrue and misleading statements under legislation; and
t. that it will not use any marketing or promotional material in connection with a Lot, unless such material has been approved by Latitude.
14.2 Despite any other clause in this Agreement, the Supplier indemnifies and keeps Latitude indemnified against all claims, suits and proceedings commenced against Latitude and all loss, costs, expenses and damages incurred or suffered by Latitude as a consequence of the Supplier breaching this clause.
14.3 This clause 14 will not merge on termination or expiration of this Agreement.
15. INSURANCE AND INDEMNITY
15.1 The Supplier must effect and maintain professional indemnity insurance for not less than $5,000,000 and must be held until the expiry of 1 year after the expiration or termination of this Agreement. This clause will not merge on termination or expiration of this Agreement.
15.2 The Supplier unconditionally and irrevocably indemnifies Latitude against all claims, proceedings, suits, demands, liabilities, costs, losses, damages or expenses suffered or incurred by Latitude or any of its ‘related bodies corporate’ (as that term is defined in the Corporations Act 2001 (Cth) arising from or in connection with the following:
a. a breach by the Supplier of this Agreement (including any warranty given under this Agreement);
b. the promotion of a Lot through no fault of Latitude (its agents, employees or servants);
c. the Supplier failing to promote a Lot strictly in accordance with the directions, materials or information provided to the Supplier by Latitude;
d. the promotion of a New Build or Construction Contract through no fault of Latitude (its agents, employees or servants);
e. the Supplier failing to promote a New Build or Construction Contract in accordance with the directions, materials or information provided to the Supplier by Latitude.
16. REQUIREMENTS OF SUPPLIER FOR POSSIBLE LITIGATION
16.1 During the term of this Agreement, or within 6 years following expiration of this Agreement, if the Supplier becomes aware of any matter that may cause legal proceedings being threatened or commenced in connection with the provisions of the Services or the Duties undertaken by the Supplier under this Agreement, then the Supplier must immediately notify Latitude of the possibility of those legal proceedings and provide full details of those possible legal proceedings.
16.2 If requested by Latitude, the Supplier must provide Latitude with its full assistance in any legal proceedings.
16.3 This clause will not merge at termination or expiry of this Agreement.
17. WAIVER
17.1 If either party fails or delays an exercise of a power or right, this does not operate as a waiver of that power or right.
17.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or rights.
17.3 Any waiver must be made in writing.
17.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
18. NOTICES
18.1 A notice or other communication (“Notice”) in connection with this Agreement has no legal effect unless such Notice is given and received in writing and may be served by:
a. Hand delivery at the address of the addressee set out in this Agreement or subsequently notified;
b. Posting or faxing it to the address or fax number shown in this Agreement; or
c. Posting, faxing or emailing it the addressee’s Solicitor as may be notified in writing.
18.2 Any Notice given by post is deemed to have been given on the 2nd Business Day after it was posted.
18.3 Any Notice given by fax is deemed to have been given on production of a transmission report by the machine from which the fax was sent, indicating that the fax was successfully sent in its entirety. However, if a fax is sent on a day which is not a Business Day or after 5.00pm on a Business Day, it is deemed to have been sent on the next Business Day.
18.4 A Notice may be given by or to a solicitor acting on behalf of the relevant party.
19. CONFIDENTIALITY
19.1 Subject to this clause 19, the Supplier must not disclose any Confidential Information except as genuinely and necessarily required for the purpose of this Agreement.
19.2 The Supplier may disclose Confidential Information:
a. to an employee, agent or adviser of the Supplier, on a 'need to know' and confidential basis;
b. as required by law or a court order;
c. in accordance with any Parliamentary or constitutional convention;
d. to the Australian Competition and Consumer Commission (ACCC) if the Supplier reasonably suspects, or is notified by the ACCC that it reasonably suspects, that there is Cartel Conduct or unlawful collusion in connection with the supply of goods or services under this Agreement; or
e. for the purposes of prosecuting or defencing proceedings.
19.3 Latitude may agree in writing to disclose certain Confidential Information to the Supplier.
19.4 This clause 19 will not merge on termination or expiration of this Agreement.
20. OPERATION OF INDEMNITIES
20.1 Each of the indemnities in this Agreement are separate and independent obligations and survive, and remain in full force and effect after, any termination or expiry of this Agreement.
20.2 A party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.
21. AMENDMENT
No change, modification, amendment or variation of this Agreement shall be of effect unless that change, modification, amendment or variation is in writing and is signed by all parties relating to this Agreement.
22. ASSIGNMENT
This Agreement is personal to Latitude and the Supplier and may not be assigned by the Supplier without the consent of Latitude.
23. FURTHER ASSURANCES
Each party must take all steps, execute all documents and do everything reasonably required by the other party to give effect to any of the transactions contemplated by this Agreement.
24. SEVERABILITY
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
25. GOVERNING LAW
25.1 The law of Victoria governs this Agreement.
25.2 Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, and any court that may hear appeals from any of those courts, for any proceedings in connection with this agreement, and waives any right it might have to claim that those courts are an inconvenient forum.
26. COUNTERPARTS
26.1 This Agreement and any documents connected to this Agreement may consist of counterparts, each signed by a part to the document. If so, the signed copies are treated as making up the one document.
26.2 Where there is any inconsistency between this Agreement and the Act, then this Agreement shall prevail any inconsistency to the maximum that it can as permitted by law.
27. AUTHORITY NOT TO BIND LATITUDE
27.1 The Supplier acknowledges that it is an independent contractor and is not authorized to execute any documentation binding Latitude nor is the Supplier authorized to incur any debt or liability on behalf of Latitude. This Agreement does not constitute a partnership, joint venture or an employment relationship between the Supplier and Latitude and this Agreement is not exclusive.
27.2 Latitude is authorized and entitled to appoint other suppliers/ contractors on terms similar to this Agreement.
28. CONFLICT OF INTEREST
The Supplier must disclose in writing to Latitude all actual and potential conflicts of interest with Latitude or the Builder that exist, arise or may arise (either for Supplier or the Supplier's personnel) in the course of performing its obligations under this Agreement as soon as practical after it becomes aware of that conflict.
29. SUBCONTRACTING
The Supplier must not engage any subcontractor to perform the Services or Duties of the Supplier under this Agreement without the prior written approval of Latitude.
30. INTELLECTUAL PROPERTY
30.1 Nothing in this Agreement affects ownership of Intellectual Property Rights created before the date of commencement of this Agreement.
30.2 The Supplier grants to Latitude and the Builder a perpetual, irrevocable, royalty free, fee free licence to use, copy, modify and adapt any Intellectual Property Rights in any marketing materials, reports, manuals or other documents or materials required to be supplied under this Agreement.
30.3 This clause 30 will not merge on termination or expiration of this Agreement.
31. DO NOT CALL REGISTER
The Supplier must comply with, and take all reasonable steps to ensure that the Supplier and their respective employees and associates comply with the Do Not Call Register Act 2006 (Cth) and Part 6 of the Telecommunications Act 1997 (Cth) in relation to and in connection with any activities contemplated by this Agreement.
32. ELECTRONIC EXECUTION AND CONSENT
32.1 Each party consents to this Agreement and any other notice or document required by Law (Relevant Documents) being signed by another party in accordance with an electronic communication method that is approved by Latitude.
32.2 Latitude and the Supplier give their consent to one another for information and documentation being given, signed or produced by electronic communication in accordance with sections 8, 9, and 10 of the Electronic Transactions (Victoria) Act 2000 (Vic).
32.3 The parties acknowledge and agree that:
a. the Relevant Documents are in writing if received electronically;
b. electronic signatures will constitute a signature and have the same quality of integrity as a written signature including if the signature is:
(i) computer or mechanically generated;
(ii) by computer pen;
(iii) by a typed mark or name;
(iv) by computer or mechanically generated mark or signature that is affixed or pasted to an electronic document;
(v) physically signed on paper and scanned electronically;
c. a link emailed to the Supplier or the Supplier's solicitor that at any time provides access to an electronic copy of the executed Agreement will constitute communication by Latitude of its acceptance of the Supplier's offer under the terms of this Agreement;
d. any notice, statement or other document required to be given to the Supplier by Law is deemed to have been given to the Supplier if any of the following apply:
(i) a paper copy is given to the Supplier;
(ii) a PDF copy is emailed to the Supplier whether in one or more parts;
(iii) a PDF copy is given to the Supplier on a USB;
(iv) a link to the copy (which may include other documents) is emailed to the Supplier;
(v) a copy is given by any other method permitted under this Agreement or at Law.
32.4 Latitude may receive an electronic receipt that Supplier has received a link or email with the electronically signed Agreement and opened this Agreement on the Supplier's electronic device and Latitude may rely on that electronic receipt as evidence of exchange and a binding contract between Latitude and the Supplier.
32.5 The Supplier acknowledges and warrants that:
a. the requirements of section 9(1) of the Electronic Transactions (Victoria) Act 2000 (Vic) have been met in respect of the person(s) signing the Relevant Documents for the Supplier (Supplier Signatory);
b. any signature of the Latitude or Latitude's attorney complies with the requirements of section 9 of the Electronic Transactions (Victoria) Act 2000 (Vic); and
c. the Supplier Signatory has given consent under section 9(1)(c) of the Electronic Transactions (Victoria) Act 2000 (Vic).
32.6 The parties to this Agreement agree that, despite any other term or condition of this Agreement and despite custom, practise or code otherwise followed in respect of similar agreements, this Agreement:
a. is made on its execution by all parties to it (including electronic signature);
b. need not be executed and exchanged in counterparts; and
c. constitutes an original document in an electronic format.
32.7 Each Supplier Signatory warrants to Latitude the following:
a. the Supplier Signatory has been duly authorised by the Supplier, in accordance with the Supplier's constitution, to sign this Contract on behalf of the Supplier;
b. the Supplier Signatory is a current director, secretary, or validly appointed attorney of the Supplier;
c. following execution of this Agreement by Latitude, this Agreement will be binding on and enforceable against the Supplier.


 
Executed as an Agreement
Sealed for an on behalf of Latitude Invest Pty Ltd )
Ltd A.C.N. 605 601 536 by an authorised )
Director/ authorised representative )

Witness Director/Authorised Representative

Name (Please print)


SUPPLIER
Sealed for an on behalf of
xxxxxxx Pty Ltd
ACN xxx xxx xxx
by an authorised Director/authorised )
representative )

Witness Director/Authorised Representative

Name (Please print)

OR ALTERNATIVE
Sealed by _______________________________________________________ )
_______________________________________________________________ )
in accordance with its constitution )

Director Director/Secretary

Name (Please print) Name (Please print)















Schedule 1

Item 1 Date of Agreement The ____21_____ day of __________September ____________________ 2020
Item 2 Name and Address of
Latitude Invest Pty Ltd Latitude Invest Pty Ltd
L5/570 St Kilda Road, Melbourne VIC 3004
M +61 404 467 725
Contact Person:
Mark Shearer
Email address:
mark@latitudeinvest.com.au
Solicitors details:
Click here to enter text.

Item 3 Name and Address of Supplier XXXXX Pty Ltd
ACN – xxx xxx xxx
Address
Contact Person :

Name
Email
Mobile


Item 4 Lots Those Lots as notified and described to the Supplier by Latitude, from time to time
Item 5 Date of Commencement of Agreement The ___21__ day of ___September_________ 2020

or _______ (insert no. of days) from the Date of Agreement
(if nothing is stated, the Agreement commences on the date referred to in Item 1.)
Item 6 Date of Expiration of Termination of Agreement The _____ day of ____________ 20

or _______ (no. of days) from the Date of Agreement
(if nothing stated, then either party may by giving fourteen (14) days Notice to the other party terminate this Agreement.)





Schedule 2
MARKETING FEE
1 Provided that Latitude has first received any payment to which it is entitled from the Builder in respect of the relevant Qualifying Sale under any agreement between Latitude and the Builder, Latitude will pay to the Supplier the amount of $ 38,500 (inc GST) from those fees received by Latitude form the Builder (Marketing Fee), in accordance with this Schedule 2.
2. The amount of $19,250.00 or 50% of the Marketing Fee (inc GST) within 30 days of the later of the following:
(a) the date of execution of the Approved Construction Contract the subject of the Qualifying Sale;
(b) the date the Builder has paid Latitude any fees to which Latitude is entitled in relation to the Qualifying Sale under any agreement between Latitude and the Builder;
(c) the date the Supplier has given Latitude a valid tax invoice for the Marketing Fee satisfactory to Latitude.
3 The amount of $19,250.00 (incl GST) or the remaining 50% of the Marketing Fee (inc GST) the within twenty one (21) days of the later of the following:
(a) the completion of Frame Stage under the executed Approved Construction Contract (the subject of the Qualifying Sale);
(b) the Builder paying Latitude any fees to which Latitude is entitled in relation to the Qualifying Sale (under any agreement between Latitude and the Builder); and
(c) Latitude receiving a valid tax invoice for the Marketing Fee satisfactory to Latitude.
4 Notwithstanding any other term or condition of this Agreement, if an Approved Construction Contract the subject of a Qualifying Sale is terminated for any reason whatsoever then the Supplier must immediately refund to Latitude any portion of the Marketing Fee paid by Latitude to the Supplier in relation to that executed Approved Construction Contract. The Supplier acknowledges and agrees that Latitude has the right to set off any money owing under this clause against any other money that is outstanding to the Supplier or any money payable to the Supplier for any future fees payable to the Supplier with respect to any development project.
5 Clause 4 above does not merge on the expiration or termination of this Agreement.