Agent Agreement - Template, Sample Form to Fill out Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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DEED OF AGENCY
This Deed of Agency ("Deed") is entered into and made effective as of the date set forth at the end of this document.
BY AND BETWEEN
________ (ABN ________) (ACN ________)
of the following address:
________
(hereinafter "Principal")
AND
________ (ABN ________) (ACN ________)
of the following address:
________
(hereinafter "Agent")
The Principal and the Agent may be referred to individually as a "Party" and collectively as the "Parties".
RECITALS:
A. The Principal carries on the business of the following:
________
B. The Principal wishes to appoint and engage the Agent as its lawful agent and representative to perform the services (the "Services") described in this Deed.
C. The Agent agrees to accept such appointment and to represent the Principal and perform the Services in the territory described in this Deed, on the terms and conditions set out in this Deed.
NOW THIS DEED WITNESSES that, in consideration of the mutual promises and covenants contained in this Deed, and other good and valuable consideration (the receipt and sufficiency of which is acknowledged), the Parties agree as follows:
(1) DEFINITIONS:
"ACL" means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
"Accounts" has the meaning given in the "Accounts and Records" clause of this Deed.
"Agent" means ________.
"Background IP" has the meaning given in the "Intellectual Property" clause of this Deed.
"Business Day" means a day which is not a Saturday, Sunday or public holiday in ________.
"Confidential Information" has the meaning given in the "Confidentiality" clause of this Deed.
"Created IP" has the meaning given in the "Intellectual Property" clause of this Deed.
"Deed" means this agreement, including any schedules and annexures.
"End Date" means ________.
"Fee" means the fee payable by the Principal to the Agent in accordance with the "Fees" clause of this Deed.
"GAAP" means generally accepted accounting principles and applicable Australian Accounting Standards as in force from time to time.
"GST" means goods and services tax imposed on a supply of goods or services in Australia pursuant to GST Law.
"GST Law" has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Party" means a party to this Deed, whether the Principal or the Agent.
"Parties" means more than one Party, collectively.
"Principal" means ________.
"Services" means the services described in the "Appointment" clause of this Deed.
"Start Date" means ________.
"Territory" means the territory described in the "Territory" clause of this Deed.
(2) INTERPRETATION:
In this Deed, unless the context otherwise requires, the following rules of interpretation apply:
(a) words referring to one gender include every other gender;
(b) words referring to a singular number include the plural, and words referring to a plural include the singular;
(c) if a word or phrase is defined in this Deed then any grammatical variation of that word or phrase has a corresponding meaning;
(d) words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa;
(e) any reference to time is a reference to time in ________;
(f) where something must be done under this Deed on or before a particular date, and that date is not a Business Day, then that thing must be done on or before the next Business Day;
(3) APPOINTMENT:
(a) The Principal appoints the Agent as its agent in the Territory described in the "Territory" clause of this Deed.
(b) The Agent will perform the following Services for the Principal in accordance with the terms and conditions of this Deed (the "Services"):
________
(4) SCOPE OF AUTHORITY:
The Agent has specific, limited authority to bind the Principal. The scope of the Agent's authority, and any limitations on it, is as follows:
________
The Agent must not exceed the authority conferred under this clause and must not represent to any third party that it has authority beyond that conferred under this clause.
(5) TERRITORY:
The Agent shall perform the Services for the Principal in the following territory (the "Territory"):
________
(6) TERM:
(a) The Agent shall begin performing the Services for the Principal on the following date: ________ ("Start Date").
(b) The Agent will continue performing the Services for the Principal until the following date: ________ ("End Date").
(c) This Deed will automatically renew for successive terms of the same duration as the first term unless and until terminated by either Party in accordance with the "Termination" clause of this Deed.
(7) FEES:
(a) The Agent will be paid as follows (the "Fee"):
________
(b) The Principal must pay the Fee within ________ days of receipt of a valid tax invoice from the Agent.
(8) GOODS AND SERVICES TAX:
(a) Unless otherwise expressly agreed in writing by the Parties, the Fee payable under this Deed excludes GST.
(b) If GST is payable on the Fee or in connection with this Deed, the Principal will pay to the Agent an amount equal to the GST payable on the Fee ("the GST Amount"), calculated by multiplying the Fee by the prevailing GST rate.
(c) The Principal must pay the GST Amount to the Agent at the same time and in the same manner as the Fee is payable.
(d) Any obligation on the Principal to pay the GST Amount under this clause is conditional on the Agent providing the Principal with a valid tax invoice in accordance with GST Law.
(e) This clause will survive the termination, expiration or completion of this Deed.
(9) EXPENSES:
The Agent will be responsible for any and all expenses incurred in the performance of the Services under this Deed, except as otherwise agreed in writing.
(10) TAXES:
The Agent shall be responsible for the payment of any and all taxes incurred by the Agent under this Deed.
(11) ACCOUNTS AND RECORDS:
(a) The Agent shall keep accurate records and accounts in connection with the Services, including records of time spent on Services for the Principal (the "Accounts").
(b) The Agent shall keep the Accounts in accordance with GAAP.
(c) The Agent shall have the Accounts audited by a registered company auditor no less than once per year during the term of this Deed where required by law.
(d) The Accounts shall be subject to inspection by the Principal at any time upon reasonable notice, during reasonable hours, by the Principal or any of the Principal's authorised representatives.
(e) The Agent shall keep the Accounts for at least seven (7) years.
(12) RETENTION OF TITLE:
(a) If the Principal provides any goods, products, equipment or other items which are the Principal's property ("Materials") to the Agent in connection with this Deed, then unless the Principal otherwise specifies in writing, such Materials will remain the sole and absolute property of the Principal as legal and equitable owner.
(b) The Agent acknowledges that where it is in possession of any Materials, it holds those Materials as bailee for the Principal.
(c) The Agent will store the Materials so as to make them readily identifiable as the Principal's property, for example by keeping them separate from the Agent's own property.
(d) The Agent's right to possession of any Materials will cease if:
(I) the Agent does anything (or fails to do anything) which would entitle a receiver, controller or administrator to take possession of any assets, or which would entitle any person to present an application to wind up the Agent; or
(II) this Deed is terminated.
(e) If the Agent sells any Materials, the entire proceeds of sale will be held on trust for the Principal and must at all times be readily identifiable as the Principal's money.
(f) The Principal may, at any reasonable time, enter any premises where the Principal reasonably suspects the Principal's Materials are stored, for the sole purpose of inspecting or retrieving the Principal's Materials.
(g) The Parties acknowledge that this clause may create a security interest for the purposes of the Personal Property Securities Act 2009 (Cth), and the Agent agrees to do all things reasonably necessary to enable the Principal to register and maintain any such security interest.
(13) TERMINATION:
(a) This Deed may be terminated by either Party upon notice in writing:
(I) if the other Party commits a material breach of any term of this Deed that is not capable of being remedied, or which is capable of being remedied but is not remedied within fourteen (14) days after a written request to do so;
(II) if the other Party becomes unable to perform its duties under this Deed, including a duty to pay or a duty to perform;
(III) if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or where either Party considers that a conflict or potential conflict of interest has arisen between the Parties; or
(IV) in the event of the other Party's insolvency, bankruptcy, external administration, death or disability.
(b) The Principal may terminate this Deed in the event of a material change in the management or control of the business of the Agent, unless such material change has occurred with the written consent of the Principal.
(c) The Parties may terminate this Deed upon the expiration of a renewal period, provided that ________ days' written notice is given prior to the expiration of the current period.
(d) The Parties may terminate this Deed prior to a renewal period by providing ________ days' written notice to the other Party.
(e) If this Deed is terminated before the expiration of its term, the Principal agrees to pay for all Services rendered up to the date of termination, and for any expenditure due for payment after the date of termination for commitments reasonably made and incurred by the Agent in relation to the rendering of Services prior to the date of termination.
(f) Any termination of this Deed under this clause shall not affect the accrued rights and liabilities of either Party under this Deed or at law and shall be without prejudice to any rights or remedies to which either Party may be entitled.
(g) Any part of this Deed which is intended to continue after termination, or which is intended to come into force at or after termination, shall not be affected by this clause.
(14) RETURN OF PROPERTY:
Upon the termination or expiration of this Deed, each Party will promptly return to the other Party ("the Second Party") any property, documentation, records or confidential information which is the property of the Second Party.
(15) INTELLECTUAL PROPERTY:
(a) In connection with the provision of the Services, the Agent may generate, create, write or produce intellectual property ("Created IP"), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code and artwork required to provide the Services to the Principal.
(b) Unless otherwise agreed between the Parties, all intellectual property rights in any Created IP generated by the Agent in connection with the provision of the Services shall vest in and belong to the Principal upon creation, and the Agent assigns all such rights to the Principal.
(c) The Agent acknowledges and agrees that, unless otherwise agreed between the Parties, all intellectual property rights in any intellectual property provided by the Principal to the Agent to assist in the provision of the Services, including all registered copyrights, trade marks and service marks, and any patent or patent application ("Background IP"), shall be and remain the exclusive property of the Principal, and the Agent shall not acquire or claim any right, title or interest in or to any such intellectual property.
(d) In relation to the Created IP and the Background IP (together, the "Principal's IP"), the Agent must:
(I) not use any of the Principal's IP except in accordance with this Deed;
(II) not do or allow to be done anything which may endanger or damage the Principal's IP;
(III) inform the Principal of any suspected infringement of the Principal's rights in the Principal's IP;
(IV) take any action as reasonably directed by the Principal, at the Principal's cost, to protect the Principal's rights in the Principal's IP;
(V) compensate the Principal for any unauthorised use of the Principal's IP; and
(VI) immediately upon termination of this Deed, stop using the Principal's IP, except with the express written permission of the Principal.
(e) This clause will survive the termination or expiration of this Deed.
(16) DELEGATION:
The Parties acknowledge and agree that the Agent may engage third parties such as the Agent's employees or subcontractors to assist with the provision of the Services under this Deed. The Agent remains responsible for the acts and omissions of any such third party as if they were the acts and omissions of the Agent.
(17) EXCLUSIVITY:
The Agent represents and warrants that, during the term of this Deed, the Agent will act exclusively for the Principal in relation to the Services and will not engage in any competing Services for any other individual or organisation within the Territory without the prior written consent of the Principal.
(18) LIMITATION OF LIABILITY:
(a) The Principal may have certain rights under the Australian Consumer Law ("ACL") or under other similar or related consumer protection laws.
(b) The ACL (or any other similar or related consumer protection laws) may give the Principal certain rights, consumer guarantees and remedies regarding the provision of goods or services by the Agent, which cannot be excluded, modified or restricted ("Statutory Rights").
(c) The Agent's liability to the Principal is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Deed.
(d) To the maximum extent permitted by law, and except in cases of death or personal injury caused by negligence, each Party's liability in contract, tort or otherwise arising out of or in connection with this Deed shall be limited to the total Fees paid by the Principal to the Agent under this Deed.
(e) To the extent permitted by law, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of an indirect or consequential nature, including without limitation any economic loss, data loss, loss of goodwill, or loss of turnover, profits or business.
(f) Where the Statutory Rights apply and where permitted by law, the Agent's liability in respect of any claim is limited, at the Agent's option, to:
(I) the supply of the services again; or
(II) the payment of the cost of having the services supplied again.
(g) This clause will survive the termination or expiration of this Deed.
(19) INDEMNITY:
Each Party (the "Indemnifying Party" as the context requires) indemnifies and keeps indemnified the other Party, and holds the other Party harmless, against any and all demands, claims, losses, costs and expenses which arise out of the Indemnifying Party's negligent or wrongful performance of, or failure to perform, any of its duties under this Deed, except to the extent caused or contributed to by the other Party.
(20) PRINCIPAL'S INSURANCE:
(a) The Principal must maintain an insurance policy to cover its liability for any act or default for which it may become liable to indemnify the Agent under the "Indemnity" clause of this Deed ("Principal's Indemnity Insurance").
(b) The Principal's Indemnity Insurance must provide coverage of not less than $________.
(c) The Principal must provide the Agent with evidence of its current Principal's Indemnity Insurance upon reasonable request.
(21) AGENT'S INSURANCE:
(a) The Agent must maintain an insurance policy to cover its liability for any act or default for which it may become liable to indemnify the Principal under the "Indemnity" clause of this Deed ("Agent's Indemnity Insurance").
(b) The Agent's Indemnity Insurance must provide coverage of not less than $________.
(c) The Agent must provide the Principal with evidence of its current Agent's Indemnity Insurance upon reasonable request.
(22) WORK HEALTH AND SAFETY:
(23) RELATIONSHIP:
(a) Nothing in this Deed constitutes an employment relationship between the Principal and the Agent or between the Principal and the Agent's workers (such as the employees, agents or subcontractors of the Agent). No relationship of employer and employee is created by this Deed.
(b) Nothing in this Deed creates a partnership, joint venture or other relationship between the Principal and the Agent except for the agency relationship provided for in this Deed.
(c) The Parties acknowledge and confirm that it is the express intention of all Parties that the Agent acts in relation to the Principal as an agent and not as an employee, partner, joint venture partner or otherwise.
(24) CONFIDENTIALITY AND PRIVACY:
(a) The Agent acknowledges and agrees that, during the term of this Deed, the Agent may have access to information that is confidential and/or commercially valuable to the Principal ("Confidential Information"), which may include but is not limited to:
(I) information of whatever nature relating to the business activities, practices and finances of the Principal;
(II) any evaluation material, design work, technologies, technological ideas or strategies, strategic plans, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by or on behalf of, or used by, the Principal;
(III) any information derived from any other information falling within this definition; and
(IV) any copy of any Confidential Information,
but does not include information which:
(I) was lawfully known to or in the possession of the Agent before it was provided to the Agent by the Principal, and not as a result of any breach of this Deed or any other confidentiality obligation;
(II) is, or becomes, publicly available through no fault of the Agent;
(III) is provided to the Agent without restriction by a third party who did not breach any confidentiality obligation by making the disclosure;
(IV) is provided to the Agent by the Principal and is marked "Non Confidential"; or
(V) is required by law or regulation to be disclosed, but only to the minimum extent necessary and provided that the Principal is first consulted to establish whether and to what extent it is possible to prevent or restrict such disclosure.
(b) The Agent shall keep the Confidential Information confidential and secret.
(c) The Agent shall only use the Confidential Information for the purpose of performing its obligations under this Deed.
(d) If there is any doubt as to whether particular information constitutes Confidential Information, the Agent shall presume it is Confidential Information until it obtains explicit written confirmation from the Principal to the contrary.
(e) Each Party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to any personal information collected, used, held or disclosed in connection with this Deed.
(f) This clause will survive the termination or expiration of this Deed.
(25) AGENT'S GENERAL OBLIGATIONS:
In addition to the Agent's other obligations under this Deed, the Agent must at all times during the term of this Deed:
(a) exercise reasonable care and skill in the provision of the Services;
(b) provide the Services in a professional and businesslike manner;
(c) act in good faith;
(d) act in person;
(e) follow the Principal's lawful and reasonable instructions;
(f) fully disclose any personal interest or conflict of interest;
(g) exercise due care for the Principal's property;
(h) comply with all applicable laws, regulations and by-laws in relation to the Services;
(i) exercise adequate accounting practices and avoid mixing the Agent's money with the Principal's money;
(j) not obtain a secret profit; and
(k) not obtain a secret commission.
(26) NOTICES:
(a) Any notice, demand, request or other correspondence in relation to this Deed which is required or permitted to be given in writing will be deemed validly given to the Agent if delivered by hand, by courier, or by post with a signature on delivery, to the following address:
________
(b) Any notice, demand, request or other correspondence in relation to this Deed which is required or permitted to be given in writing will be deemed validly given to the Principal if delivered by hand, by courier, or by post with a signature on delivery, to the following address:
________
(c) Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. After nomination of the New Address, any notice will be deemed validly given if delivered to the Nominating Party at the New Address.
(d) The relevant email contact information for the Parties is as follows:
Principal: ________
Agent: ________
(e) The relevant telephone contact information for the Parties is as follows:
Principal: ________
Agent: ________
(27) WRITTEN COMMUNICATION:
In relation to any correspondence or notification required under this Deed to be provided in writing from one Party to the other Party:
(a) such notice is properly given if given to the other Party:
(I) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Deed; or
(II) by post to a postal address the other Party has nominated, acknowledged or used in connection with this Deed.
(b) such notice is taken to be received:
(I) if sent by email, at the time the email becomes capable of being retrieved by the recipient at the relevant email address, unless the sender receives an automated message that the email has not been delivered;
(II) if sent by prepaid post within Australia, five (5) Business Days after the date of posting; and
(III) if sent by prepaid post to or from an address outside Australia, twenty (20) Business Days after the date of posting.
(28) DISPUTE RESOLUTION:
(a) If a dispute arises between the Parties in connection with this Deed ("Dispute"), the Parties agree to follow the dispute resolution procedure set out in this clause before commencing any court proceedings, except where a Party seeks urgent injunctive or interlocutory relief.
(b) A Party claiming that a Dispute has arisen must notify the other Party in writing, setting out the nature of the Dispute ("Dispute Notice").
(c) Upon receipt of the Dispute Notice, the Parties must, within ten (10) Business Days, meet and use their reasonable endeavours, acting in good faith, to resolve the Dispute by negotiation.
(d) If the Parties are unable to resolve the Dispute by negotiation within twenty (20) Business Days of the date of the Dispute Notice, the Parties agree to refer the Dispute to mediation, administered by a mediator agreed upon by the Parties or, failing agreement, appointed by the President of the Law Society of ________ or their nominee.
(e) The costs of the mediation, including the mediator's fees, shall be borne equally by the Parties unless otherwise agreed in writing. Each Party shall bear its own costs of participating in the mediation.
(f) If the Dispute is not resolved within thirty (30) Business Days of the referral to mediation, or such other period as the Parties may agree in writing, either Party may commence court proceedings in relation to the Dispute.
(g) Notwithstanding the existence of a Dispute, each Party must continue to perform its obligations under this Deed to the extent that those obligations are not the subject of the Dispute. This clause will survive the termination or expiration of this Deed.
(29) GENERAL PROVISIONS:
(a) GOVERNING LAW: This Deed shall be governed by the laws of ________ and the applicable laws of the Commonwealth of Australia. Each Party irrevocably submits to the exclusive jurisdiction of the courts of ________ and the federal courts of Australia, and courts of appeal from them.
(b) LANGUAGE: All communications made or notices given pursuant to this Deed shall be in the English language.
(c) ASSIGNMENT: This Deed, or the rights granted under it, may not be assigned, sold, leased or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.
(d) AMENDMENTS: This Deed may only be amended in writing signed by both Parties.
(e) NO WAIVER: No term of this Deed shall be deemed waived by any act or acquiescence of either Party. A waiver is only effective if made in writing. No waiver of any term shall constitute a waiver of any other term or of the same term on a future occasion. Failure of either Party to enforce any term shall not constitute a waiver of that term or any other term.
(f) SEVERABILITY: If any provision of this Deed is held to be unenforceable, this Deed will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Deed, valid and enforceable. If a court declines to amend this Deed as provided, the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the remaining terms, which shall be enforced as if the offending provision had not been included.
(g) PUBLIC ANNOUNCEMENT: Neither Party will make any public announcement or disclosure about the existence of this Deed or any of its terms without the prior written approval of the other Party, except as required by law.
(h) ENTIRE AGREEMENT: This Deed constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
(i) COUNTERPARTS: This Deed may be executed in counterparts, all of which together constitute a single agreement.
(j) FORCE MAJEURE: No Party is liable for any failure to perform due to causes beyond its reasonable control, including but not limited to acts of God, acts of civil or military authorities, riots, embargoes, epidemics, pandemics, natural disasters, and other acts due to unforeseen circumstances.
EXECUTED AS A DEED on ________
Signed, sealed and delivered by ________ in accordance with section 127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director: ________
___________________________________
Signature of director/company secretary
____________________________________
Name of director/company secretary: ________
Signed, sealed and delivered by ________ in accordance with section 127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director: ________
___________________________________
Signature of director/company secretary
____________________________________
Name of director/company secretary: ________
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