BUSINESS SALE AGREEMENT
THIS AGREEMENT ("Agreement") is dated.................................................. ("Agreement Date").
BETWEEN THE VENDOR ("Vendor"):
________ (ACN ________)
Of the following address:
________
AND THE PURCHASER ("Purchaser"):
________ (ACN ________)
Of the following address:
________
BACKGROUND
(A) The Vendor owns and carries on the following business ("the Business"):
________
(B) Subject to the terms of this Agreement, the Vendor wishes to sell, and the Purchaser wishes to buy the Business.
OPERATIVE PROVISIONS
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Vendor and the Purchaser hereby agree as follows:
(1) DEFINITIONS
"Agreement" means this Business Sale Agreement.
"Agreement Date" means the Agreement Date set out at the start of this Agreement.
"Assets" means the assets as described in the "Assets" clause of this Agreement, which may include physical assets as well as non-physical assets, rights and interests.
"Business" means the following business:
________
"Business Day" means a day which is not a Saturday, Sunday or public holiday in New South Wales.
"Completion" means the time when both the Vendor and the Purchaser have performed all of their respective obligations under this Agreement in order to transfer ownership of the Business from the Vendor to the Purchaser, and to provide payment to the Vendor of the Purchase Price.
"Completion Date" means the date that Completion is scheduled to occur, which is ________.
"Employees" means any person or persons employed by or within the Business, whether before or after the Completion Date and whether or not the period of employment ends before the Completion Date.
"Employee Payments" means payments that are required to be made to or on behalf of an Employee or Employees, including but not limited to payments pursuant to any employment contracts, legislation, regulations, enterprise agreements, awards, codes of conduct or orders and including but not limited to payments to Employees as wages, salary, commission, bonuses or other benefits, payments in accordance with superannuation obligations, or payments in relation to workers' compensation, insurance, payroll tax or income tax obligations.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Act.
"GST Act" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).
"Parties" means the Vendor and the Purchaser collectively.
"Party" means, as the context provides, either the Vendor or the Purchaser.
"Purchase Price" means the total purchase price as described in the "Purchase Price" clause of this Agreement.
"Stock" means all marketable stock in trade of the Business which is owned by the Business on the Completion Date, which may include but is not limited to raw materials, perishable items, packing materials, finished products or any other goods bought and/or sold by the Business.
"Stocktake" means the stocktake that is performed in accordance with the "Stocktake" clause of this Agreement.
"Stock Price" means the total price for the Stock that is determined after the Stocktake.
(2) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall 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) Words referring to a person or persons include companies, firms, corporations, organisations and vice versa.
(d) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(3) AGREEMENT TO SELL
(a) In consideration of the matters set out in this Agreement and in reliance on the warranties and representations set out in this Agreement, the Vendor agrees to sell, and the Purchaser agrees to buy, free of all encumbrances and any adverse interests, the Business, including all of the Assets.
(b) The Vendor warrants that the Vendor will, at the Vendor's expense, take all necessary steps and sign all necessary documents in order to provide a full and complete transfer of all Assets to the Purchaser.
(c) This clause will survive the termination of this Agreement.
(4) ASSETS
The assets that will be sold by the Vendor and purchased by the Purchaser under this Agreement ("the Assets") include:
________
(5) PURCHASE PRICE
In consideration of the matters set out in this Agreement, the Parties agree that the Purchase Price for the Business, excluding GST, shall be:
Total Purchase Price: $________ (________)
(6) PAYMENT OF PURCHASE PRICE
The Purchase Price must be paid on Completion to the Vendor by bank cheque, or by such other means as the Vendor directs in writing.
(7) PAYMENT OF STOCK PRICE
In addition to the Purchase Price, the Purchaser will pay to the Vendor at settlement the Stock Price, (which will be determined at the Stocktake).
(8) DUTIES AND OTHER TRANSFER COSTS
Any transfer taxes, fees and duties, including but not limited to stamp duty, other duties, federal taxes, state taxes, registration fees and transfer fees will be paid by the purchaser.
(9) APPORTIONMENT OF OUTGOINGS
Any regular outgoings of the Business, which may include but are not limited to rent, rates, land tax, electricity, internet, water or insurance, will be apportioned between the Parties as at the Completion Date.
(10) DEBTS
(a) The Vendor is entitled to all book debts owing to the Business up to and including the Completion Date.
(b) The Vendor is responsible to pay all debts owed by the Business up to and including the Completion Date.
(c) The Vendor's debts and liabilities up to and including the Completion Date must be promptly paid and satisfied by the Vendor.
(11) ADVANCE PAYMENTS
If, prior to the Completion Date, the Vendor has received any deposits or advance payments for goods or services which the Vendor has not provided by the Completion Date, then such deposits or advance payments shall be provided from the Vendor to the Purchaser.
(12) GOODS AND SERVICES TAX
(a) Except as is otherwise provided in this Agreement, all consideration payable under this Agreement excludes GST.
(b) In the event that GST is payable on any supply made under or in connection with this Agreement ("the Supply"), the Party receiving the Supply will pay to the Party providing the Supply an amount equal to the GST payable on that Supply ("the GST Amount").
(c) The Party receiving the Supply must pay the GST Amount to the Party providing the Supply at the same time and in the same manner as the consideration for the Supply is payable.
(d) Any Party providing the Supply must provide a valid tax invoice to the Party receiving the Supply before the Party receiving the Supply has any obligation to pay the GST Amount.
(e) This clause will survive termination, expiration or Completion of this Agreement.
(13) DISCLOSURE OF INFORMATION
(a) On the reasonable request of the Purchaser, the Vendor will permit the Purchaser or the Purchaser's agents, advisors or representatives to have reasonable access to the Business or the Business Premises or such documentation or information about the Business as the Purchaser reasonably requests, solely for the purpose of enabling the Purchaser to confirm any representations or warranties made by the Vendor in this Agreement and to confirm the financial position of the Business.
(b) Any disclosure requested by the Purchaser under this clause will only be reasonable if it is no more than is required to enable the Purchaser to confirm any representations or warranties made by the Vendor in this Agreement or to confirm the financial position of the Business.
(14) CONDITIONS
(a) It is a condition precedent to the Purchaser's obligation to complete the sale of Business described in this Agreement that:
(I) upon the request of the Purchaser, the Vendor provides the Purchaser with reasonable access to any and all of the Vendor's financial records as reasonably required by the Vendor in order to enable the Vendor to accurately assess the financial position of the Business; and
(II) on or before ________ days from having received access to the financial records of the Business, as described in the preceding sub-clause hereof, the Purchaser is satisfied with the financial position of the Business.
(b) It is a condition precedent to the Vendor's obligation to complete the sale of Business described in this Agreement that on or before the Completion Date, the Purchaser takes all reasonable and necessary steps including executing all forms, applications, transfers, registrations, approvals, declarations or other documents, (whether provided by any private person, organisation or public authority), in order to facilitate the purchase of Business described under this Agreement.
(c) It is a condition precedent to the Purchaser's obligation to complete the sale of Business described in this Agreement that on or before the Completion Date:
(I) The Vendor takes all reasonable and necessary steps including executing all forms, applications, transfers, registrations, approvals, declarations or other documents, (whether provided by any private person, organisation or public authority), in order to facilitate the sale of Business described under this Agreement.
(II) The warranties made by the Vendor in this Agreement are complete, accurate and true as at the Completion Date.
(III) The Vendor has provided to the Purchaser all information relevant to the operation of the Business, in order to enable the Purchaser to carry on operating the Business.
(IV) Between the Agreement Date and the Completion Date, no harm or damage has been caused to the Business or the Assets which has caused or can reasonably be expected to cause a material adverse change in the value or profitability of the Business or the Assets.
(V) Any third parties that are required to provide consents or acknowledgements to any transfers or assignments of any agreements, licences, leases, permits or other documentation in relation to the Business (such as a consent from the licensing authority in relation to a transfer of liquor licence), provide such consents or acknowledgements, authorising the transfer or assignment of those agreements, licences, leases, permits or other documentation to the Purchaser (or the Purchaser's nominee).
(VI) The Vendor provides to the Purchaser such executed bills of sale in relation to the Assets, in favour of the Purchaser, as are reasonably required by the Purchaser.
(d) It is a condition precedent to the Purchaser's obligation to complete the purchase of Business described in this Agreement that on or before ________:
(I) a lender of the Purchaser's choice makes a loan available to the Purchaser ("the Loan").
(II) the Loan is for an amount which provides the Purchaser with sufficient funds to complete the transaction described under this Agreement.
(e) A Party that benefits from a particular condition ("Particular Condition") must take all reasonable steps and must make all reasonable efforts to satisfy that Particular Condition.
(f) A Party that is required to provide any assistance or cooperation in relation to a Particular Condition, must take all reasonable steps and must make all reasonable efforts to provide that assistance or cooperation.
(g) Each Party must immediately notify the other Party if and when it satisfies a condition, and if required by the other Party, must provide evidence, to the other Party's reasonable satisfaction, to confirm that the condition has been satisfied.
(h) If a Party that benefits from a particular condition under this Agreement ("Benefiting Party") fails to satisfy or waive that condition (after having taken all reasonable steps and after having made all reasonable efforts to satisfy that condition) on or before the date set out in that condition, or if no date is set out in that condition then on or before the Completion Date, then the Benefiting Party may terminate this Agreement by providing written notice to the other Party.
(15) COMPLETION
(a) Completion will occur on ________, or such other date as is agreed between the Parties.
(b) Completion will occur at a location to be agreed between the Parties.
(c) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser possession of and all right, title and interest in the Assets, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(d) In relation to any physical assets which form part of the Assets ("the Physical Assets"), on Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must deliver possession of the Physical Assets in the same condition as the Physical Assets were in on the Agreement Date, and free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(e) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all Stock, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(f) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser, in relation to each Employee that is being transferred with the Business, the following information:
(I) date of commencement of employment;
(II) a copy of any employment contract;
(III) rate of remuneration as at Completion Date;
(IV) accrued leave and other entitlements;
(V) details of any disciplinary matters;
(VI) details of any workplace health and safety matters.
(g) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser any and all relevant records of the Business including but not limited to customer lists and preferred supplier lists.
(h) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must assign to the Purchaser, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing) all its right, title and interest in any contracts, licences, leases, agreements or other arrangements that form part of the Business or the Assets or are used in connection with the Business.
(i) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all forms, assignments, transfers, bills of sale, consents, assurances or other relevant documents, fully executed by all relevant parties as required, in order to transfer to the Purchaser all of the Vendor's right, title and interest in any contracts, licences, leases, agreements or other arrangements that form part of the Business or the Assets or are used in connection with the Business or the Assets, or must provide evidence to the Purchaser's reasonable satisfaction of such transfers to the Purchaser.
(j) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all forms, assignments, transfers, bills of sale, consents, assurances or other relevant documents, fully executed by all relevant parties as required, in order to transfer the Assets to the Purchaser or to give effect to this Agreement, or must provide evidence to the Purchaser's reasonable satisfaction of the transfer of Assets to the Purchaser.
(k) The Vendor must take all necessary steps and must execute all necessary documents as reasonably required by the Purchaser, in order to complete the transfer to the Purchaser of all Assets or to give effect to this Agreement, including any registration or filing of any applications, transfers, releases of charges, encumbrances or other securities, or registration or filing of any other documents.
(16) 55525 888 8555
(________) 552 522525 88 22282825 22 828222 525 2522828 22 252 85882288 25825 22 525 828855822 252 8222822822 8522.
(________) 552 255855825 88 22282825 22 828222 525 2522828 22 252 85882288 52225 8222822822 558 28855525, 82552822 2522 252 552 52225 252 8222822822 8522.
(________) 8882 82 252 888228, 2288288822 22 252 888228, 58282 22 252 888228 525 252 8222282 22 522 22258888 258828 22 252 255855825 52 8222822822.
(________) 552 255855825 88 22282825 22 2588 2525222222 525 8222528 22 252 85882288 52 525 2522 8222822822.
(17) STOCKTAKE
(a) The Parties hereby agree to undertake a physical stocktake of the Stock ("the Stocktake") on the following day: ________
(b) During the Stocktake, the Parties must classify all items of Stock as either:
(I) of good and merchantable quality; or
(II) not of merchantable quality.
(c) During the Stocktake, the Parties must determine a Stock Price on the following basis:
(I) any Stock which is classified as being of good and merchantable quality will be priced at the cost price to the Vendor, including GST (according to invoices which the Vendor provides); and
(II) any Stock which is classified as being not of a merchantable quality will be priced by agreement between the Parties.
(d) In the event that Parties cannot reach agreement about one or more matters in relation to the Stocktake, the matter(s) may be determined by an independent assessor nominated by the Parties, or failing that, an independent assessor nominated by the Law Society in New South Wales.
(18) LIABILITIES AND INDEMNITIES
(a) The Parties hereby agree and confirm that the Purchaser shall not assume any of the Vendor's liabilities or obligations which have arisen out of or in connection with the Vendor's operation of or ownership of the Business during the period prior to and including the Completion Date.
(b) The Vendor hereby indemnifies, keeps indemnified and holds harmless the Purchaser and any representatives, agents, directors, partners, employees or affiliates of the Purchaser, in relation to any claims, liabilities, losses or obligations (including reasonable legal costs in defending any such claims), that arise from or in connection with the operation of the Business during the period prior to and including the Completion Date.
(c) In relation to any contracts, deeds, leases, licences or other agreements that are connected to or related to the Business (each hereinafter referred to as an "Arrangement"), as and from the Completion Date (or such other date when the respective Arrangement is assigned to the Purchaser) the Vendor hereby indemnifies, keeps indemnified and holds harmless the Purchaser in relation to all liabilities and obligations under the respective Arrangement relating to matters prior to the Completion Date (or such other date when the Arrangement is assigned to the Purchaser).
(d) The Parties hereby agree and confirm that the Vendor shall not assume any liability for any matters which arise out of or in connection with the Purchaser's operation of or ownership of the Business, commencing on the day after the Completion Date.
(e) To the maximum extent permitted by law, the Purchaser agrees that it will not make the Vendor liable for any matters which arise out of or in connection with the Purchaser's operation of or ownership of the Business.
(f) The Purchaser hereby indemnifies, keeps indemnified and holds harmless the Vendor and any representatives, agents, directors, partners, employees or affiliates of the Vendor, in relation to any claims, liabilities, losses or obligations (including reasonable legal costs in defending any such claims), that arise from or in connection with the Purchaser's operation of the Business, commencing on the day after the Completion Date.
(g) In relation to each Arrangement, as and from the Completion Date (or such other date when the respective Arrangement is assigned to the Purchaser) the Purchaser hereby indemnifies, keeps indemnified and holds harmless the Vendor in relation to all liabilities and obligations under the respective Arrangement relating to matters from the Completion Date (or such other date when the Arrangement is assigned to the Purchaser) for the balance term including any extension, renewal or further term of the Arrangement.
(h) This clause will survive termination, expiration or Completion of this Agreement.
(19) CONFIDENTIALITY
(a) The Purchaser hereby acknowledges and agrees that in connection with this Agreement, the Purchaser may have access to information that is confidential and/or commercially valuable to the Vendor ("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 Vendor or the Business;
(II) any other evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by the Vendor or on its behalf, or used by the Vendor, whether relating specifically to the Business or otherwise;
(III) any information derived from any other information which falls within this definition of Confidential Information; and
(IV) any copy of any Confidential Information.
but does not include information which:
(I) was known or in the possession of the Purchaser before it was provided to the Purchaser by the Vendor, provided that it was known or in the possession of the Purchaser through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the Purchaser was a party to such other agreement or obligation);
(II) is, or becomes, publicly available, through no fault of the Purchaser;
(III) is provided to the Purchaser without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
(IV) is provided to the Purchaser by the Vendor and is marked "Non Confidential"; or
(V) is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Vendor is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
(b) The Purchaser shall keep the Confidential Information confidential and secret.
(c) The Purchaser shall only use the Confidential Information for the purpose of performing the Purchaser's obligations or satisfying the Purchaser's rights under this Agreement.
(d) If there is any doubt as to whether any particular information constitutes Confidential Information, the Purchaser should presume it is Confidential Information, until the Purchaser obtains explicit confirmation from the Vendor that it is not Confidential Information.
(e) This clause will survive termination, expiration or Completion of this Agreement.
(20) NO COMPETITION
(a) The Vendor agrees that, for the period of time as set out in this clause ("the Time Period") after the Completion Date, the Vendor will not, either directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
(I) engaging in a business which is the same as, similar to or in competition with the Business; or
(II) soliciting, hiring, or attempting to hire any of the employees or staff of the Business;
(III) soliciting any of the customers or clients of the Business.
(b) For the purposes of this clause, "the Time Period" means, from the Completion Date:
one month
(c) This clause will survive termination, expiration or Completion of this Agreement.
(21) EMPLOYEES
(a) The Vendor warrants that the Vendor has maintained full and accurate records for all Employees, including but not limited to information relating to dates of employment; leave entitlements; employment issues such as disciplinary, wellbeing, or health and safety issues; and payments made to the Employee or on the Employee's behalf including salary, superannuation, government contributions (whether income tax, medicare levy or otherwise), leave (whether sick leave, annual leave, long service leave, bereavement leave or otherwise).
(b) The Vendor warrants that except as has been expressly disclosed to the Purchaser, the Business has no other payment or compensation obligations towards any Employee or Employees, whether monetary compensation, pension plan, employee share scheme, employee discounts, non-monetary benefits or otherwise.
(c) The Vendor warrants that except as has been expressly disclosed to the Purchaser, the Business has no other obligations towards any Employee or Employees whether by way of an enterprise agreement or otherwise.
(d) The Vendor is responsible for all Employee Payments up to and including the Completion Date.
(e) The Purchaser is responsible for all Employee Payments, starting from the day after the Completion Date.
(f) The Vendor warrants that as at the Completion Date, the Vendor will have made all Employee Payments for the period up to and including the Completion Date.
(g) The Vendor hereby indemnifies the Purchaser against any and all claims relating to the employment of any Employee or Employees during the period up to and including the Completion Date.
(h) The Purchaser hereby indemnifies the Vendor against any and all claims relating to the employment of any Employee or Employees for the period starting from the day after the Completion Date.
(i) The Vendor warrants that the Vendor and the Business will not, without the Purchaser's prior written consent, terminate the employment of any Employee or Employees who are employed in the Business at the Agreement Date.
(j) The Vendor warrants that the Vendor and the Business will not, without the Purchaser's prior written consent, implement any significant changes in relation to any Employees, including unscheduled increases in wages, salary, or benefits; changing the roles of any Employees; or changing the terms of employment for any Employee or Employees.
(k) For the purposes of this clause in relation to Employees, Employee Payments includes but is not limited to any payments for salary, wages, benefits, bonuses, superannuation contributions, government contributions (whether income tax, medicare levy or otherwise), accrued leave (whether sick leave, annual leave, long service leave, bereavement leave or otherwise), and any other compensation whatsoever which is payable to or on behalf of an Employee or Employees.
(l) The Vendor hereby warrants that to the best of the Vendor's knowledge, except as has been expressly disclosed to the Purchaser, there are no pending or anticipated matters, claims or disputes involving any Employee or Employees which might reasonably be expected to have a negative impact on the profitability or productivity of the Business. This includes but is not limited to workplace disputes, industrial disputes, worker's compensation claims, unfair dismissal claims or any other employment related disputes whatsoever.
(m) This clause will survive termination, expiration or Completion of this Agreement.
(22) VENDOR WARRANTIES
(a) The Vendor hereby warrants and represents that:
(I) The Vendor is the legal and beneficial owner of the Business and the Assets and is entitled to sell and/or transfer the Business and the Assets to the Purchaser.
(II) At or prior to Completion, the Vendor will be capable of transferring the Assets to the Purchaser, free of any securities, encumbrances, liens, charges or third party rights whatsoever.
(III) The Vendor has the full legal capacity to enter into this Agreement and to perform all of the Vendor's obligations under this Agreement.
(IV) There are no outstanding claims, liabilities, debts or obligations to any third parties, relating to or in connection with the operation of the Business during the period prior to and including the Completion Date.
(V) There are no unsatisfied orders or judgments against the Vendor, the Business or the Assets.
(VI) As at the Completion Date, the Business will have made all payments to any authorities (whether tax authorities, licensing authorities or otherwise) as required up to and including the Completion Date.
(VII) As at the Completion Date, the Business will have filed all up-to-date documents with all authorities as required for the continued operation of the Business, including but not limited to tax returns, registrations, permits and licence renewals.
(VIII) To the best of the Vendor's knowledge, there are no pending or anticipated claims against the Business or against any of the Assets or that may in any way affect the Purchaser's ability to operate the Business.
(IX) There are no outstanding contracts or obligations that could lead to a claim against the Business or against the Assets at any time (whether at the Agreement Date or at any date in the future).
(X) There are no outstanding notices or orders from any person, body or authority affecting the Business or the Assets.
(XI) The Vendor is not aware of any matters or circumstances which might give rise to a notice or order being served by any person, body or authority in relation to the Business or the Assets.
(XII) Except for any contracts or obligations which the Vendor has expressly disclosed to the Purchaser, the Business does not have and the Vendor has not entered any contracts or obligations (whether in writing or otherwise), with any third party or which may in any way affect the Purchaser's ability to operate the Business or the profitability of the Business.
(XIII) After the Agreement Date and before the Completion Date, the Vendor will not incur any debts, liabilities or obligations and will not enter any contracts which may in any way materially affect the Purchaser's ability to operate the Business or the profitability of the Business, except with the prior written approval of the Purchaser.
(XIV) The Vendor has taken all reasonable steps to maintain the Assets in accordance with standard practices within the industry of the Business, and/or as required by law.
(XV) As at the Completion Date, any physical assets which form part of the Assets will be in at least as good condition (fair wear and tear excepted) as at the date that the Assets were inspected by the Purchaser or by an agent or representative of the Purchaser.
(XVI) Up until Completion, the Business will have in place all appropriate insurance policies, providing coverage of the Business and the Assets, to an adequate value, as are required by law or as are in accordance with prudent business practice in the industry of the Business ("the Insurance Policies"). If required by the Purchaser, the Purchaser will be noted on the Insurance Policies as an interested party.
(XVII) As at the Completion Date, the Business will not be in breach of any of the Insurance Policies.
(XVIII) The Business operates in compliance with all applicable laws, regulations, licences, permits and rules in any and all jurisdictions in which the Business operates.
(XIX) The Business has all appropriate and up-to-date licences, registrations, permits and authorisations whatsoever as are required by any authorities or under the laws or regulations of any and all jurisdictions in which the Business operates. The Business has not breached any such licences, registrations, permits or authorisations and such licences, registrations, permits or authorisations are not at risk of termination.
(XX) The Business has all appropriate and up-to-date private licences, registrations and permits (including but not limited to subscriptions, software licences, distribution licences, licences to use intellectual property or any other licences whatsoever) for all products, services, intellectual property and Assets that are used by the Business. The Business has not breached any such licences, registrations or permits and such licences, registrations, permits or authorisations are not at risk of termination.
(XXI) The information about the Business and the Assets which the Vendor has provided to the Purchaser prior to the signing of this Agreement (including but not limited to financial information and accounting records of the Business) ("the Information") is complete, accurate and true in all material respects.
(XXII) The Vendor is not aware of any circumstances whatsoever which may cause any rights, powers, authorisations, benefits, permissions or arrangements relating to the Business to fail to effectively be passed to the Purchaser in accordance with this Agreement at or prior to Completion.
(XXIII) The Stock will be sold free and clear of all encumbrances
(b) In relation to any Employees, the Vendor makes the warranties described under the "Employees" clause of this Agreement.
(c) Any warranties provided by the Vendor in this Agreement are subject to any express disclosures which the Vendor has provided to the Purchaser prior to the Completion Date. The Purchaser may not claim that any warranty in this Agreement has been breached as a result of facts that have been expressly disclosed by the Vendor prior to the Completion Date.
(d) The warranties provided by the Vendor to the Purchaser will expire after the following time period from the Completion Date ("the Warranty Period"): ________
(e) In order to make a claim against the Vendor under one or more warranties, the Purchaser must provide written notice to the Vendor providing details of the breach of warranty and of the claim that the Purchaser is making, within the Warranty Period.
(f) Each of the warranties contained in this Agreement shall be construed as a separate and independent warranty and representation. Except where this Agreement provides otherwise, no warranty shall be limited or restricted in its scope by reference to, or inference from, any other term of another warranty or any other term of this Agreement.
(g) This clause will survive termination, expiration or Completion of this Agreement.
(23) WARRANTIES REGARDING LEGAL ADVICE
(a) Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
(I) That the Warranting Party fully understands the terms of this Agreement.
(II) That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
(A) taken such independent legal advice; or
(B) elected not to take such independent legal advice.
(III) That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
(b) This clause will survive termination, expiration or Completion of this Agreement.
(24) CONTINUING BUSINESS
The Vendor must continue to operate the Business in good faith and must take all reasonable steps to preserve, protect and enhance the goodwill of the Business up until the Completion Date.
(25) ENTIRE AGREEMENT
(a) The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
(b) The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
(c) The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.
(d) No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.
(26) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Vendor if delivered to the following address:
________
(b) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Purchaser if delivered to the following address:
________
(c) Either Party ("the Nominating Party") may nominate another address or email address ("the New Address") by notifying the other Party in writing of the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.
(27) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
(B) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(C) by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
(B) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
(C) if sent by prepaid post within Australia, five (5) days after the date of posting.
(D) if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.
(28) COSTS
The Parties each respectively agree to pay their own costs of and incidental to this Agreement, including any costs that are incurred as a result of acts that a Party is required to undertake in order to comply with a term or terms of this Agreement.
(29) COUNTERPARTS
This Agreement may be executed by way of counterparts, and in the event that such counterparts are used, this will have the same effect as if the signatures that appear on any counterparts were all on a single copy of the Agreement.
(30) ASSIGNMENT
Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.
(31) WAIVER
(a) The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
(b) The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
(c) Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.
(32) FORCE MAJEURE
(a) In the event that circumstances arise which:
(I) are outside of the reasonable control of a Party; and
(II) materially affect that Party's performance of its obligations under this Agreement; and
(III) could not have been reasonably foreseen or avoided;
(hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.
(b) In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
(c) Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.
(33) APPLICABLE LAW
This Agreement is subject to the laws of New South Wales and each Party submits to the jurisdiction of the courts of New South Wales.
(34) SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.
(35) SURVIVAL OF OBLIGATIONS
At the termination or expiration or Completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination, expiration or Completion shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination, expiration or Completion.
EXECUTED AS AN AGREEMENT ON THE AGREEMENT DATE.
Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Commonwealth) by being signed by ________ and ________, two of its directors:
..................................................
________, Director
..................................................
________, Director
Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Commonwealth) by being signed by ________ and ________ two of its directors:
..................................................
________, Director
..................................................
________, Director
BUSINESS SALE AGREEMENT
THIS AGREEMENT ("Agreement") is dated.................................................. ("Agreement Date").
BETWEEN THE VENDOR ("Vendor"):
________ (ACN ________)
Of the following address:
________
AND THE PURCHASER ("Purchaser"):
________ (ACN ________)
Of the following address:
________
BACKGROUND
(A) The Vendor owns and carries on the following business ("the Business"):
________
(B) Subject to the terms of this Agreement, the Vendor wishes to sell, and the Purchaser wishes to buy the Business.
OPERATIVE PROVISIONS
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Vendor and the Purchaser hereby agree as follows:
(1) DEFINITIONS
"Agreement" means this Business Sale Agreement.
"Agreement Date" means the Agreement Date set out at the start of this Agreement.
"Assets" means the assets as described in the "Assets" clause of this Agreement, which may include physical assets as well as non-physical assets, rights and interests.
"Business" means the following business:
________
"Business Day" means a day which is not a Saturday, Sunday or public holiday in New South Wales.
"Completion" means the time when both the Vendor and the Purchaser have performed all of their respective obligations under this Agreement in order to transfer ownership of the Business from the Vendor to the Purchaser, and to provide payment to the Vendor of the Purchase Price.
"Completion Date" means the date that Completion is scheduled to occur, which is ________.
"Employees" means any person or persons employed by or within the Business, whether before or after the Completion Date and whether or not the period of employment ends before the Completion Date.
"Employee Payments" means payments that are required to be made to or on behalf of an Employee or Employees, including but not limited to payments pursuant to any employment contracts, legislation, regulations, enterprise agreements, awards, codes of conduct or orders and including but not limited to payments to Employees as wages, salary, commission, bonuses or other benefits, payments in accordance with superannuation obligations, or payments in relation to workers' compensation, insurance, payroll tax or income tax obligations.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Act.
"GST Act" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).
"Parties" means the Vendor and the Purchaser collectively.
"Party" means, as the context provides, either the Vendor or the Purchaser.
"Purchase Price" means the total purchase price as described in the "Purchase Price" clause of this Agreement.
"Stock" means all marketable stock in trade of the Business which is owned by the Business on the Completion Date, which may include but is not limited to raw materials, perishable items, packing materials, finished products or any other goods bought and/or sold by the Business.
"Stocktake" means the stocktake that is performed in accordance with the "Stocktake" clause of this Agreement.
"Stock Price" means the total price for the Stock that is determined after the Stocktake.
(2) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall 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) Words referring to a person or persons include companies, firms, corporations, organisations and vice versa.
(d) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(3) AGREEMENT TO SELL
(a) In consideration of the matters set out in this Agreement and in reliance on the warranties and representations set out in this Agreement, the Vendor agrees to sell, and the Purchaser agrees to buy, free of all encumbrances and any adverse interests, the Business, including all of the Assets.
(b) The Vendor warrants that the Vendor will, at the Vendor's expense, take all necessary steps and sign all necessary documents in order to provide a full and complete transfer of all Assets to the Purchaser.
(c) This clause will survive the termination of this Agreement.
(4) ASSETS
The assets that will be sold by the Vendor and purchased by the Purchaser under this Agreement ("the Assets") include:
________
(5) PURCHASE PRICE
In consideration of the matters set out in this Agreement, the Parties agree that the Purchase Price for the Business, excluding GST, shall be:
Total Purchase Price: $________ (________)
(6) PAYMENT OF PURCHASE PRICE
The Purchase Price must be paid on Completion to the Vendor by bank cheque, or by such other means as the Vendor directs in writing.
(7) PAYMENT OF STOCK PRICE
In addition to the Purchase Price, the Purchaser will pay to the Vendor at settlement the Stock Price, (which will be determined at the Stocktake).
(8) DUTIES AND OTHER TRANSFER COSTS
Any transfer taxes, fees and duties, including but not limited to stamp duty, other duties, federal taxes, state taxes, registration fees and transfer fees will be paid by the purchaser.
(9) APPORTIONMENT OF OUTGOINGS
Any regular outgoings of the Business, which may include but are not limited to rent, rates, land tax, electricity, internet, water or insurance, will be apportioned between the Parties as at the Completion Date.
(10) DEBTS
(a) The Vendor is entitled to all book debts owing to the Business up to and including the Completion Date.
(b) The Vendor is responsible to pay all debts owed by the Business up to and including the Completion Date.
(c) The Vendor's debts and liabilities up to and including the Completion Date must be promptly paid and satisfied by the Vendor.
(11) ADVANCE PAYMENTS
If, prior to the Completion Date, the Vendor has received any deposits or advance payments for goods or services which the Vendor has not provided by the Completion Date, then such deposits or advance payments shall be provided from the Vendor to the Purchaser.
(12) GOODS AND SERVICES TAX
(a) Except as is otherwise provided in this Agreement, all consideration payable under this Agreement excludes GST.
(b) In the event that GST is payable on any supply made under or in connection with this Agreement ("the Supply"), the Party receiving the Supply will pay to the Party providing the Supply an amount equal to the GST payable on that Supply ("the GST Amount").
(c) The Party receiving the Supply must pay the GST Amount to the Party providing the Supply at the same time and in the same manner as the consideration for the Supply is payable.
(d) Any Party providing the Supply must provide a valid tax invoice to the Party receiving the Supply before the Party receiving the Supply has any obligation to pay the GST Amount.
(e) This clause will survive termination, expiration or Completion of this Agreement.
(13) DISCLOSURE OF INFORMATION
(a) On the reasonable request of the Purchaser, the Vendor will permit the Purchaser or the Purchaser's agents, advisors or representatives to have reasonable access to the Business or the Business Premises or such documentation or information about the Business as the Purchaser reasonably requests, solely for the purpose of enabling the Purchaser to confirm any representations or warranties made by the Vendor in this Agreement and to confirm the financial position of the Business.
(b) Any disclosure requested by the Purchaser under this clause will only be reasonable if it is no more than is required to enable the Purchaser to confirm any representations or warranties made by the Vendor in this Agreement or to confirm the financial position of the Business.
(14) CONDITIONS
(a) It is a condition precedent to the Purchaser's obligation to complete the sale of Business described in this Agreement that:
(I) upon the request of the Purchaser, the Vendor provides the Purchaser with reasonable access to any and all of the Vendor's financial records as reasonably required by the Vendor in order to enable the Vendor to accurately assess the financial position of the Business; and
(II) on or before ________ days from having received access to the financial records of the Business, as described in the preceding sub-clause hereof, the Purchaser is satisfied with the financial position of the Business.
(b) It is a condition precedent to the Vendor's obligation to complete the sale of Business described in this Agreement that on or before the Completion Date, the Purchaser takes all reasonable and necessary steps including executing all forms, applications, transfers, registrations, approvals, declarations or other documents, (whether provided by any private person, organisation or public authority), in order to facilitate the purchase of Business described under this Agreement.
(c) It is a condition precedent to the Purchaser's obligation to complete the sale of Business described in this Agreement that on or before the Completion Date:
(I) The Vendor takes all reasonable and necessary steps including executing all forms, applications, transfers, registrations, approvals, declarations or other documents, (whether provided by any private person, organisation or public authority), in order to facilitate the sale of Business described under this Agreement.
(II) The warranties made by the Vendor in this Agreement are complete, accurate and true as at the Completion Date.
(III) The Vendor has provided to the Purchaser all information relevant to the operation of the Business, in order to enable the Purchaser to carry on operating the Business.
(IV) Between the Agreement Date and the Completion Date, no harm or damage has been caused to the Business or the Assets which has caused or can reasonably be expected to cause a material adverse change in the value or profitability of the Business or the Assets.
(V) Any third parties that are required to provide consents or acknowledgements to any transfers or assignments of any agreements, licences, leases, permits or other documentation in relation to the Business (such as a consent from the licensing authority in relation to a transfer of liquor licence), provide such consents or acknowledgements, authorising the transfer or assignment of those agreements, licences, leases, permits or other documentation to the Purchaser (or the Purchaser's nominee).
(VI) The Vendor provides to the Purchaser such executed bills of sale in relation to the Assets, in favour of the Purchaser, as are reasonably required by the Purchaser.
(d) It is a condition precedent to the Purchaser's obligation to complete the purchase of Business described in this Agreement that on or before ________:
(I) a lender of the Purchaser's choice makes a loan available to the Purchaser ("the Loan").
(II) the Loan is for an amount which provides the Purchaser with sufficient funds to complete the transaction described under this Agreement.
(e) A Party that benefits from a particular condition ("Particular Condition") must take all reasonable steps and must make all reasonable efforts to satisfy that Particular Condition.
(f) A Party that is required to provide any assistance or cooperation in relation to a Particular Condition, must take all reasonable steps and must make all reasonable efforts to provide that assistance or cooperation.
(g) Each Party must immediately notify the other Party if and when it satisfies a condition, and if required by the other Party, must provide evidence, to the other Party's reasonable satisfaction, to confirm that the condition has been satisfied.
(h) If a Party that benefits from a particular condition under this Agreement ("Benefiting Party") fails to satisfy or waive that condition (after having taken all reasonable steps and after having made all reasonable efforts to satisfy that condition) on or before the date set out in that condition, or if no date is set out in that condition then on or before the Completion Date, then the Benefiting Party may terminate this Agreement by providing written notice to the other Party.
(15) COMPLETION
(a) Completion will occur on ________, or such other date as is agreed between the Parties.
(b) Completion will occur at a location to be agreed between the Parties.
(c) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser possession of and all right, title and interest in the Assets, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(d) In relation to any physical assets which form part of the Assets ("the Physical Assets"), on Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must deliver possession of the Physical Assets in the same condition as the Physical Assets were in on the Agreement Date, and free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(e) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all Stock, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing).
(f) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser, in relation to each Employee that is being transferred with the Business, the following information:
(I) date of commencement of employment;
(II) a copy of any employment contract;
(III) rate of remuneration as at Completion Date;
(IV) accrued leave and other entitlements;
(V) details of any disciplinary matters;
(VI) details of any workplace health and safety matters.
(g) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser any and all relevant records of the Business including but not limited to customer lists and preferred supplier lists.
(h) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must assign to the Purchaser, free of any encumbrances, liens, charges, or third party rights (except for any encumbrances, liens, charges, or third party rights which have been expressly accepted by the Purchaser in writing) all its right, title and interest in any contracts, licences, leases, agreements or other arrangements that form part of the Business or the Assets or are used in connection with the Business.
(i) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all forms, assignments, transfers, bills of sale, consents, assurances or other relevant documents, fully executed by all relevant parties as required, in order to transfer to the Purchaser all of the Vendor's right, title and interest in any contracts, licences, leases, agreements or other arrangements that form part of the Business or the Assets or are used in connection with the Business or the Assets, or must provide evidence to the Purchaser's reasonable satisfaction of such transfers to the Purchaser.
(j) On Completion, and upon receipt by the Vendor of the Purchase Price, the Vendor must provide to the Purchaser all forms, assignments, transfers, bills of sale, consents, assurances or other relevant documents, fully executed by all relevant parties as required, in order to transfer the Assets to the Purchaser or to give effect to this Agreement, or must provide evidence to the Purchaser's reasonable satisfaction of the transfer of Assets to the Purchaser.
(k) The Vendor must take all necessary steps and must execute all necessary documents as reasonably required by the Purchaser, in order to complete the transfer to the Purchaser of all Assets or to give effect to this Agreement, including any registration or filing of any applications, transfers, releases of charges, encumbrances or other securities, or registration or filing of any other documents.
(16) 55525 888 8555
(________) 552 522525 88 22282825 22 828222 525 2522828 22 252 85882288 25825 22 525 828855822 252 8222822822 8522.
(________) 552 255855825 88 22282825 22 828222 525 2522828 22 252 85882288 52225 8222822822 558 28855525, 82552822 2522 252 552 52225 252 8222822822 8522.
(________) 8882 82 252 888228, 2288288822 22 252 888228, 58282 22 252 888228 525 252 8222282 22 522 22258888 258828 22 252 255855825 52 8222822822.
(________) 552 255855825 88 22282825 22 2588 2525222222 525 8222528 22 252 85882288 52 525 2522 8222822822.
(17) STOCKTAKE
(a) The Parties hereby agree to undertake a physical stocktake of the Stock ("the Stocktake") on the following day: ________
(b) During the Stocktake, the Parties must classify all items of Stock as either:
(I) of good and merchantable quality; or
(II) not of merchantable quality.
(c) During the Stocktake, the Parties must determine a Stock Price on the following basis:
(I) any Stock which is classified as being of good and merchantable quality will be priced at the cost price to the Vendor, including GST (according to invoices which the Vendor provides); and
(II) any Stock which is classified as being not of a merchantable quality will be priced by agreement between the Parties.
(d) In the event that Parties cannot reach agreement about one or more matters in relation to the Stocktake, the matter(s) may be determined by an independent assessor nominated by the Parties, or failing that, an independent assessor nominated by the Law Society in New South Wales.
(18) LIABILITIES AND INDEMNITIES
(a) The Parties hereby agree and confirm that the Purchaser shall not assume any of the Vendor's liabilities or obligations which have arisen out of or in connection with the Vendor's operation of or ownership of the Business during the period prior to and including the Completion Date.
(b) The Vendor hereby indemnifies, keeps indemnified and holds harmless the Purchaser and any representatives, agents, directors, partners, employees or affiliates of the Purchaser, in relation to any claims, liabilities, losses or obligations (including reasonable legal costs in defending any such claims), that arise from or in connection with the operation of the Business during the period prior to and including the Completion Date.
(c) In relation to any contracts, deeds, leases, licences or other agreements that are connected to or related to the Business (each hereinafter referred to as an "Arrangement"), as and from the Completion Date (or such other date when the respective Arrangement is assigned to the Purchaser) the Vendor hereby indemnifies, keeps indemnified and holds harmless the Purchaser in relation to all liabilities and obligations under the respective Arrangement relating to matters prior to the Completion Date (or such other date when the Arrangement is assigned to the Purchaser).
(d) The Parties hereby agree and confirm that the Vendor shall not assume any liability for any matters which arise out of or in connection with the Purchaser's operation of or ownership of the Business, commencing on the day after the Completion Date.
(e) To the maximum extent permitted by law, the Purchaser agrees that it will not make the Vendor liable for any matters which arise out of or in connection with the Purchaser's operation of or ownership of the Business.
(f) The Purchaser hereby indemnifies, keeps indemnified and holds harmless the Vendor and any representatives, agents, directors, partners, employees or affiliates of the Vendor, in relation to any claims, liabilities, losses or obligations (including reasonable legal costs in defending any such claims), that arise from or in connection with the Purchaser's operation of the Business, commencing on the day after the Completion Date.
(g) In relation to each Arrangement, as and from the Completion Date (or such other date when the respective Arrangement is assigned to the Purchaser) the Purchaser hereby indemnifies, keeps indemnified and holds harmless the Vendor in relation to all liabilities and obligations under the respective Arrangement relating to matters from the Completion Date (or such other date when the Arrangement is assigned to the Purchaser) for the balance term including any extension, renewal or further term of the Arrangement.
(h) This clause will survive termination, expiration or Completion of this Agreement.
(19) CONFIDENTIALITY
(a) The Purchaser hereby acknowledges and agrees that in connection with this Agreement, the Purchaser may have access to information that is confidential and/or commercially valuable to the Vendor ("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 Vendor or the Business;
(II) any other evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, marketing strategies, innovations, creative plans, concepts and any other plans or ideas developed by the Vendor or on its behalf, or used by the Vendor, whether relating specifically to the Business or otherwise;
(III) any information derived from any other information which falls within this definition of Confidential Information; and
(IV) any copy of any Confidential Information.
but does not include information which:
(I) was known or in the possession of the Purchaser before it was provided to the Purchaser by the Vendor, provided that it was known or in the possession of the Purchaser through legal means, and not as a result of any breach of this Agreement or any other agreement or obligation relating to confidentiality (whether or not the Purchaser was a party to such other agreement or obligation);
(II) is, or becomes, publicly available, through no fault of the Purchaser;
(III) is provided to the Purchaser without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
(IV) is provided to the Purchaser by the Vendor and is marked "Non Confidential"; or
(V) is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Vendor is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
(b) The Purchaser shall keep the Confidential Information confidential and secret.
(c) The Purchaser shall only use the Confidential Information for the purpose of performing the Purchaser's obligations or satisfying the Purchaser's rights under this Agreement.
(d) If there is any doubt as to whether any particular information constitutes Confidential Information, the Purchaser should presume it is Confidential Information, until the Purchaser obtains explicit confirmation from the Vendor that it is not Confidential Information.
(e) This clause will survive termination, expiration or Completion of this Agreement.
(20) NO COMPETITION
(a) The Vendor agrees that, for the period of time as set out in this clause ("the Time Period") after the Completion Date, the Vendor will not, either directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:
(I) engaging in a business which is the same as, similar to or in competition with the Business; or
(II) soliciting, hiring, or attempting to hire any of the employees or staff of the Business;
(III) soliciting any of the customers or clients of the Business.
(b) For the purposes of this clause, "the Time Period" means, from the Completion Date:
one month
(c) This clause will survive termination, expiration or Completion of this Agreement.
(21) EMPLOYEES
(a) The Vendor warrants that the Vendor has maintained full and accurate records for all Employees, including but not limited to information relating to dates of employment; leave entitlements; employment issues such as disciplinary, wellbeing, or health and safety issues; and payments made to the Employee or on the Employee's behalf including salary, superannuation, government contributions (whether income tax, medicare levy or otherwise), leave (whether sick leave, annual leave, long service leave, bereavement leave or otherwise).
(b) The Vendor warrants that except as has been expressly disclosed to the Purchaser, the Business has no other payment or compensation obligations towards any Employee or Employees, whether monetary compensation, pension plan, employee share scheme, employee discounts, non-monetary benefits or otherwise.
(c) The Vendor warrants that except as has been expressly disclosed to the Purchaser, the Business has no other obligations towards any Employee or Employees whether by way of an enterprise agreement or otherwise.
(d) The Vendor is responsible for all Employee Payments up to and including the Completion Date.
(e) The Purchaser is responsible for all Employee Payments, starting from the day after the Completion Date.
(f) The Vendor warrants that as at the Completion Date, the Vendor will have made all Employee Payments for the period up to and including the Completion Date.
(g) The Vendor hereby indemnifies the Purchaser against any and all claims relating to the employment of any Employee or Employees during the period up to and including the Completion Date.
(h) The Purchaser hereby indemnifies the Vendor against any and all claims relating to the employment of any Employee or Employees for the period starting from the day after the Completion Date.
(i) The Vendor warrants that the Vendor and the Business will not, without the Purchaser's prior written consent, terminate the employment of any Employee or Employees who are employed in the Business at the Agreement Date.
(j) The Vendor warrants that the Vendor and the Business will not, without the Purchaser's prior written consent, implement any significant changes in relation to any Employees, including unscheduled increases in wages, salary, or benefits; changing the roles of any Employees; or changing the terms of employment for any Employee or Employees.
(k) For the purposes of this clause in relation to Employees, Employee Payments includes but is not limited to any payments for salary, wages, benefits, bonuses, superannuation contributions, government contributions (whether income tax, medicare levy or otherwise), accrued leave (whether sick leave, annual leave, long service leave, bereavement leave or otherwise), and any other compensation whatsoever which is payable to or on behalf of an Employee or Employees.
(l) The Vendor hereby warrants that to the best of the Vendor's knowledge, except as has been expressly disclosed to the Purchaser, there are no pending or anticipated matters, claims or disputes involving any Employee or Employees which might reasonably be expected to have a negative impact on the profitability or productivity of the Business. This includes but is not limited to workplace disputes, industrial disputes, worker's compensation claims, unfair dismissal claims or any other employment related disputes whatsoever.
(m) This clause will survive termination, expiration or Completion of this Agreement.
(22) VENDOR WARRANTIES
(a) The Vendor hereby warrants and represents that:
(I) The Vendor is the legal and beneficial owner of the Business and the Assets and is entitled to sell and/or transfer the Business and the Assets to the Purchaser.
(II) At or prior to Completion, the Vendor will be capable of transferring the Assets to the Purchaser, free of any securities, encumbrances, liens, charges or third party rights whatsoever.
(III) The Vendor has the full legal capacity to enter into this Agreement and to perform all of the Vendor's obligations under this Agreement.
(IV) There are no outstanding claims, liabilities, debts or obligations to any third parties, relating to or in connection with the operation of the Business during the period prior to and including the Completion Date.
(V) There are no unsatisfied orders or judgments against the Vendor, the Business or the Assets.
(VI) As at the Completion Date, the Business will have made all payments to any authorities (whether tax authorities, licensing authorities or otherwise) as required up to and including the Completion Date.
(VII) As at the Completion Date, the Business will have filed all up-to-date documents with all authorities as required for the continued operation of the Business, including but not limited to tax returns, registrations, permits and licence renewals.
(VIII) To the best of the Vendor's knowledge, there are no pending or anticipated claims against the Business or against any of the Assets or that may in any way affect the Purchaser's ability to operate the Business.
(IX) There are no outstanding contracts or obligations that could lead to a claim against the Business or against the Assets at any time (whether at the Agreement Date or at any date in the future).
(X) There are no outstanding notices or orders from any person, body or authority affecting the Business or the Assets.
(XI) The Vendor is not aware of any matters or circumstances which might give rise to a notice or order being served by any person, body or authority in relation to the Business or the Assets.
(XII) Except for any contracts or obligations which the Vendor has expressly disclosed to the Purchaser, the Business does not have and the Vendor has not entered any contracts or obligations (whether in writing or otherwise), with any third party or which may in any way affect the Purchaser's ability to operate the Business or the profitability of the Business.
(XIII) After the Agreement Date and before the Completion Date, the Vendor will not incur any debts, liabilities or obligations and will not enter any contracts which may in any way materially affect the Purchaser's ability to operate the Business or the profitability of the Business, except with the prior written approval of the Purchaser.
(XIV) The Vendor has taken all reasonable steps to maintain the Assets in accordance with standard practices within the industry of the Business, and/or as required by law.
(XV) As at the Completion Date, any physical assets which form part of the Assets will be in at least as good condition (fair wear and tear excepted) as at the date that the Assets were inspected by the Purchaser or by an agent or representative of the Purchaser.
(XVI) Up until Completion, the Business will have in place all appropriate insurance policies, providing coverage of the Business and the Assets, to an adequate value, as are required by law or as are in accordance with prudent business practice in the industry of the Business ("the Insurance Policies"). If required by the Purchaser, the Purchaser will be noted on the Insurance Policies as an interested party.
(XVII) As at the Completion Date, the Business will not be in breach of any of the Insurance Policies.
(XVIII) The Business operates in compliance with all applicable laws, regulations, licences, permits and rules in any and all jurisdictions in which the Business operates.
(XIX) The Business has all appropriate and up-to-date licences, registrations, permits and authorisations whatsoever as are required by any authorities or under the laws or regulations of any and all jurisdictions in which the Business operates. The Business has not breached any such licences, registrations, permits or authorisations and such licences, registrations, permits or authorisations are not at risk of termination.
(XX) The Business has all appropriate and up-to-date private licences, registrations and permits (including but not limited to subscriptions, software licences, distribution licences, licences to use intellectual property or any other licences whatsoever) for all products, services, intellectual property and Assets that are used by the Business. The Business has not breached any such licences, registrations or permits and such licences, registrations, permits or authorisations are not at risk of termination.
(XXI) The information about the Business and the Assets which the Vendor has provided to the Purchaser prior to the signing of this Agreement (including but not limited to financial information and accounting records of the Business) ("the Information") is complete, accurate and true in all material respects.
(XXII) The Vendor is not aware of any circumstances whatsoever which may cause any rights, powers, authorisations, benefits, permissions or arrangements relating to the Business to fail to effectively be passed to the Purchaser in accordance with this Agreement at or prior to Completion.
(XXIII) The Stock will be sold free and clear of all encumbrances
(b) In relation to any Employees, the Vendor makes the warranties described under the "Employees" clause of this Agreement.
(c) Any warranties provided by the Vendor in this Agreement are subject to any express disclosures which the Vendor has provided to the Purchaser prior to the Completion Date. The Purchaser may not claim that any warranty in this Agreement has been breached as a result of facts that have been expressly disclosed by the Vendor prior to the Completion Date.
(d) The warranties provided by the Vendor to the Purchaser will expire after the following time period from the Completion Date ("the Warranty Period"): ________
(e) In order to make a claim against the Vendor under one or more warranties, the Purchaser must provide written notice to the Vendor providing details of the breach of warranty and of the claim that the Purchaser is making, within the Warranty Period.
(f) Each of the warranties contained in this Agreement shall be construed as a separate and independent warranty and representation. Except where this Agreement provides otherwise, no warranty shall be limited or restricted in its scope by reference to, or inference from, any other term of another warranty or any other term of this Agreement.
(g) This clause will survive termination, expiration or Completion of this Agreement.
(23) WARRANTIES REGARDING LEGAL ADVICE
(a) Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
(I) That the Warranting Party fully understands the terms of this Agreement.
(II) That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
(A) taken such independent legal advice; or
(B) elected not to take such independent legal advice.
(III) That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
(b) This clause will survive termination, expiration or Completion of this Agreement.
(24) CONTINUING BUSINESS
The Vendor must continue to operate the Business in good faith and must take all reasonable steps to preserve, protect and enhance the goodwill of the Business up until the Completion Date.
(25) ENTIRE AGREEMENT
(a) The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
(b) The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
(c) The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.
(d) No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.
(26) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Vendor if delivered to the following address:
________
(b) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Purchaser if delivered to the following address:
________
(c) Either Party ("the Nominating Party") may nominate another address or email address ("the New Address") by notifying the other Party in writing of the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.
(27) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
(B) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(C) by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
(B) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
(C) if sent by prepaid post within Australia, five (5) days after the date of posting.
(D) if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.
(28) COSTS
The Parties each respectively agree to pay their own costs of and incidental to this Agreement, including any costs that are incurred as a result of acts that a Party is required to undertake in order to comply with a term or terms of this Agreement.
(29) COUNTERPARTS
This Agreement may be executed by way of counterparts, and in the event that such counterparts are used, this will have the same effect as if the signatures that appear on any counterparts were all on a single copy of the Agreement.
(30) ASSIGNMENT
Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.
(31) WAIVER
(a) The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
(b) The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
(c) Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.
(32) FORCE MAJEURE
(a) In the event that circumstances arise which:
(I) are outside of the reasonable control of a Party; and
(II) materially affect that Party's performance of its obligations under this Agreement; and
(III) could not have been reasonably foreseen or avoided;
(hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.
(b) In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
(c) Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.
(33) APPLICABLE LAW
This Agreement is subject to the laws of New South Wales and each Party submits to the jurisdiction of the courts of New South Wales.
(34) SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.
(35) SURVIVAL OF OBLIGATIONS
At the termination or expiration or Completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination, expiration or Completion shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination, expiration or Completion.
EXECUTED AS AN AGREEMENT ON THE AGREEMENT DATE.
Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Commonwealth) by being signed by ________ and ________, two of its directors:
..................................................
________, Director
..................................................
________, Director
Signed for and on behalf of ________ (ACN ________) in accordance with section 127(1) of the Corporations Act 2001 (Commonwealth) by being signed by ________ and ________ two of its directors:
..................................................
________, Director
..................................................
________, Director
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