exclusive broker referral agreement

Document Sample
exclusive broker referral agreement Powered By Docstoc
					                                REFERRAL AGREEMENT


                          (Registration no. 1998/002776/07)
                                (“Auction Alliance”)

  Having its principal place of business at 2nd Floor, The Block, 51 Wale Street, Cape Town


                     (ID NO. / REG NO. _______________________)
                                    (“the Broker")

Having its principal place of business at: ___________________________________________

                                 (collectively, “the Parties”)
  In this agreement (“Agreement”), unless inconsistent with or otherwise indicated by the context –
  1.1. “Clients” means persons who wish to dispose of assets or who may require certain of the
       Services and that are being introduced or referred to Auction Alliance by the Broker;
  1.2. “Commission Percentage” means ___% (________ percent) or such other percentage
       agreed between the Parties in writing in respect of any specific Referral;
  1.3. “Confidential Information” means the details of this Agreement, the details of all the
       transactions or agreements contemplated in this Agreement, all information relating to the
       business or the operations and affairs of Auction Alliance received by the Broker as a result of
       or in terms of this Agreement, including but not limited to Auction Alliance’s systems,
       processes, buyers information and/or lists, remuneration systems and information;
  1.4. “Finalisation” means, where the Referred Subject comprises –
        1.4.1.     immovable property, the registration of transfer of the immovable property from the
                   seller to the buyer;
        1.4.2.     movable property, the receipt by Auction Alliance of both the full purchase price
                   and commission for such movable property from the buyer;
        1.4.3.     a valuation or an inspection of immovable property, the receipt by Auction Alliance
                   of full payment of its invoice in respect of such valuation or inspection.
  1.5. “Initial Term” means the period of ___ (_________) years reckoned from Signature Date;
  1.6. “Person” means any individual, company, close corporation, trust, partnership or other entity
       whether or not having separate legal personality;
  1.7. “Referral” means a person has been introduced to Auction Alliance by the Broker and Auction
       Alliance have entered into an agreement with such person to provide any of the Services in
       respect of the Referred Subject;
  1.8. “Referral Commission” means an amount equal to the Commission Percentage multiplied by
       the net commission or revenue (as applicable) earned by Auction Alliance in the provision of
       the applicable Service in respect of a Referred Subject (“net commission” being the
       commission or revenue received, less all the direct costs incurred by Auction Alliance in
       rendering the Service);
  1.9. “Referred Subject” means, as applicable, the asset (i.e. movable or immovable property or
       business) or the inspection/valuation opportunity which is the subject of a Referral;
  1.10. “Services” means, collectively, the asset disposal (by means of public auction, sealed bid
        auction and/or private treaty), asset valuation, immovable property inspections/valuations and
        business broking services offered by Auction Alliance and its associated companies; and
        “Service” shall refer to any one of them, as applicable;
  1.11. “Signature Date” means the date of signature of this Agreement by the Party signing it last in

  Auction Alliance is a specialist asset disposal business. The Broker has access to persons who wish
  to dispose of assets or who may require certain of the Services. Auction Alliance and the Broker
  wish to enter into an agreement whereby the Broker shall refer Clients exclusively to Auction
  Alliance and Auction Alliance shall endeavour to favourably realise such assets, or otherwise provide
  the Services. In this Agreement the Parties regulate the foregoing, matters related thereto and other
  This Agreement shall commence on the Signature Date and shall endure for the Initial Term. After
  the expiry of the Initial Term, this Agreement shall automatically renew upon the same terms and
  conditions of this Agreement save that it shall continue to be of force and effect for an indefinite
  period subject to the right of either Party to terminate the Agreement on 30 (thirty) days written
  notice to the other. Neither Party may, however, terminate this Agreement during the Initial Term
  save as contemplated in clause 10 or otherwise in law.
  The Broker shall for the duration of this Agreement, and subject to the remaining provisions of this
  clause 4, refer Clients only and exclusively to Auction Alliance (“Referrals”) and shall generally and
  at its own cost do all things reasonably necessary to promote Auction Alliance’s Services to its
  Clients. Upon receipt of Referrals, Auction Alliance shall be entitled, but not obliged, to pursue such
  Referrals further for the purpose of providing the Services. If Auction Alliance provides the Broker
  with written notice stating that it does not wish to pursue any specific Referral, the Broker shall only
  then be entitled to refer that particular Client to another person that offers services similar to the

      5.1   The Broker shall be entitled to receive a Referral Commission in respect of Referrals, subject
            to the remaining provisions of this Agreement. The Referral Commission shall be paid by
            Auction Alliance to the Broker forthwith after Finalisation.
      5.2   No Referral Commission shall, however, be payable by Auction Alliance to the Broker unless–
            5.2.1      the Broker has, in writing, provided Auction Alliance with the location, description
                       and/or nature (as applicable) of the Referred Subject (which, in respect of
                       immovable property, shall include its full description in the applicable Deeds Office
                       and its physical address), the full name of the current and legal owner of the
                       Referred Subject and a valid mandate (including any applicable accompanying
                       required documentation such as, but not necessarily limited to, a duly signed
                       resolution or power of attorney) between the Client (or his/her duly authorised
                       representative) and the Broker in respect of the Referred Subject and, where the
                       Referred Subject comprises immovable property or a business, the Fidelity Fund
                       Certificate contemplated in clause 6 (if so requested by Auction Alliance); and
            5.2.2      the Client (or his/her duly authorised representative) has, as applicable in Auction
                       Alliance’s discretion, either signed Auction Alliance’s sole and exclusive mandate
                       (“Mandate”) or issued the appropriate written instruction to Auction Alliance in
                       respect of the Services and the Referred Subject.
      5.3   Auction Alliance shall be mandated to sell the Referred Subject from the date that clause
            5.2.2 has been complied with. The Broker shall from the date of a Referral and for the
            duration of the Mandate discontinue marketing the Referred Subject itself and undertakes that
            it shall not do anything which might in any way prevent or hinder Auction Alliance from
            performing the Services in respect of a Referred Subject.
      5.4   Notwithstanding any Referral, the Broker acknowledges and accepts that in certain
            instances the Referred Subject may already have been referred to Auction Alliance or
            may emanate from an existing Auction Alliance client. In such instances, the Broker shall
            have no claim for a Referral Commission in respect of that Referred Subject unless the Broker
            can prove to the satisfaction of Auction Alliance that without the Broker’s involvement, the
            provision of the Service by Auction Alliance in respect of that Referred Subject would not have
      The Broker warrants to and in favour of Auction Alliance that it holds, and shall present on
      demand by Auction Alliance, a valid Fidelity Fund Certificate in terms of the Estate Agency
      Affairs Act 112 of 1976, that the terms and conditions of its mandate with its Client’s shall not
      conflict with the terms and conditions of this Agreement and/or the Mandate and that, to the
      best of its knowledge and belief, it is not aware of the existence of any fact or circumstance
      that may impair its ability to comply with all its obligations in terms of this Agreement. The
      Broker hereby indemnifies Auction Alliance against all losses and expenses incurred by Auction
      Alliance as a result of any breach by the Broker of the warranties set out in clause 6.

     Auction Alliance shall where the Referred Subject comprises immovable and movable property –
     7.1   market the Referred Subject before the auction date or sealed auction bid date and will for the
           duration of a Mandate continue to market and provide an after sales (no sale) service in
           respect of the Referred Subject in the event of the unsuccessful sale thereof; and
     7.2   without obligation or warranty as to price, use all its reasonable resources and professional
           services in obtaining the highest possible price for the Referred Subject on auction; and
     7.3   administer the Broker’s Referrals in an ethical, honest and transparent fashion and will
           endeavour to maintain, foster and promote the Broker’s good name in all its dealings.
     No agency, employment, partnership, distributorship or joint venture relationship shall exist, nor be
     deemed to exist, between the Parties. The business operated by each is separate and apart from
     that operated by the other and neither Party shall have the authority to act for or bind the other. For
     the avoidance of doubt, and without prejudice or limitation to the remaining provisions of this
     Agreement, the Parties record that in respect of the Broker’s undertakings of exclusivity in terms of
     this Agreement, neither the Broker nor any of its shareholders, directors, partners, associates,
     employees or subsidiary companies will during the currency of this Agreement refer Clients to any
     person besides Auction Alliance (except as permitted in terms of clause 4).
     In order to protect the proprietary interests of Auction Alliance in the Confidential Information, the
     Broker shall keep the Confidential Information confidential and shall neither disclose any part thereof
     to any person nor use or exploit the Confidential Information without the prior written consent of
     Auction Alliance. Any documentation relating to or arising from a Referral or the Services to be
     provided in respect of a Referred Subject which comes into the possession of the Broker shall be
     deemed to form part of the Confidential Information and shall not be copied, reproduced, published
     or circulated by the Broker unless agreed to in writing by Auction Alliance. The Confidential
     Documentation shall remain the property of Auction Alliance and shall be returned to Auction
     Alliance on demand. The Broker furthermore undertakes to and in favour of Auction Alliance that the
     Broker’s employees, directors, shareholders and representatives are aware of and shall similarly
     comply with the confidentiality obligations in terms of this Agreement in respect of the Confidential
     Information and Confidential Documentation.
     Notwithstanding the provisions of clause 3, if a Party commits a breach of any of the provisions of
     this Agreement (“the Defaulting Party”) and fails to remedy such breach within 7 (seven) days of
     receipt of written notice from the other Party (“the Non-defaulting Party”) calling upon it to do so,
     then the Non-defaulting Party shall be entitled, without prejudice to any other rights which it may
     have in terms of this Agreement and/or at law, to cancel this Agreement with or without claiming
     damages or obtain an order against the Defaulting Party for specific performance, with or without
     claiming damages. Any such cancellation of the Agreement shall not, unless the Parties agree
     otherwise in writing, affect the completion of transactions already initiated between the Parties in
     terms of this Agreement.

     The clause headings and the description of the Broker as “Broker” in this Agreement have been
     inserted and used for convenience only and shall not be taken into account in its interpretation. The
     rule of construction that this Agreement shall be interpreted against the Party responsible for the
     drafting of this Agreement, shall not apply. No variation, consensual cancellation or novation of this
     Agreement and no waiver of any right arising from this Agreement or its breach or termination shall
     be of any force or effect unless reduced to writing and signed by all the Parties or their duly
     authorised representatives. The persons signing this Agreement in a representative capacity warrant
     their authority to do so. This Agreement is binding on the Parties successors-in-title and assigns
     allowed at law. Auction Alliance shall in its sole discretion be entitled to assign, cede or otherwise
     transfer all of its rights and obligations under this Agreement to Alliance Group Limited, or to any
     other entity within the Alliance Group Limited group of companies, on 30 (thirty) days prior written
     notice to the Broker.

     For: The Broker                                Date                      Place

     Signatory name in block letters


     For: AUCTION ALLIANCE (PTY) LTD                Date                      Place

     Signatory name in block letters



Shared By: