SALES AGREEMENT
THIS SALES AGREEMENT (the ‘Agreement’) dated as above,
BETWEEN:
BETTERFLEX PTY LTD (ACN 662 089 063) (the ‘Seller’)
and
THE PERSON REFERRED TO ITEM ONE OF THE SCHEDULE (the “Buyer”)
IN CONSIDERATION OF THE COVENANTS and agreements contained in this Sales Agreement the parties to this Agreement agree as follows:
Definitions and Interpretation
1. Definitions
In this Agreement:
a) Agreement means this agreement.
b) Buyer means the person referred to in Item One of the Schedule;
c) Days means calendar days;
d) Delivery Date means the date or dates referred to in Item Two of the Schedule;
e) Delivery Address means the address referred to in Item Three of the Schedule
f) Goods means the Sapphire Cotton Module wrap;
g) Griffith Depot means 75 Murray Road Griffith NSW, 2680
h) Moree Deport means 19363 Newell Highway Moree NSW, 2400
i) GST refers to goods and services tax under A New Tax System (Goods and Services) Act 1999 (GST Act) and the terms used have the meanings given in that Act. Each amount payable by the Buyer to the Seller under this Agreement is expressed to be exclusive of GST.
j) Purchase Price means the price referred to in Item Four of the Schedule
k) Schedule means the Schedule to this Agreement;
l) Seller means Betterflex Pty Ltd.
2. Interpretation
In this Agreement:
a) words importing the singular include the plural and vice versa;
b) Words in the masculine mean and include the feminine and vice versa.
c) headings are for convenience only and do not affect interpretation of this Agreement;
d) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
e) Any amount expressed in dollars means Australian Dollars;
f) where any word or phrase is given a definite meaning in this Deed, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
g) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
h) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
i) a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
j) a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally; and
k) a reference to a body, whether statutory or not:
i) which ceases to exist; or
ii) whose powers or functions are transferred to another body;
is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
3. Governing Law
This Agreement shall be governed by the laws of New South Wales.
4. Sale & Delivery of Goods
a) The Seller will sell and the Buyer will buy the Goods in accordance with this Agreement.
b) The Seller will deliver to the Buyer the Goods on or before the Delivery Date.
c) The Seller will, at the Sellers risk but at the Buyers expense, deliver the Goods to the Delivery Address or as directed by the Buyer. Upon delivery of the Goods, all risk and responsibilities of the Goods passes to the Buyer.
d) The Buyer will pay the Seller the cost, plus GST, of the freight from the closest Depot to the Delivery Address or actual place of delivery on or before 14 Days from the date of delivery of the Goods.
e) Title to the Goods does not pass to the Buyer until all invoices are paid. The Buyer grants to the Seller the right to register a PPSR Registration to secure its interest in the Goods until all invoices are paid.
5. Inspection
a) Inspection will be made by the Buyer at the time and place of delivery.
b) Any refund will not include the costs of delivery. Those costs will be borne by the Buyer.
6. Claims or Rejection of Goods
The Buyer shall have 90 days from the Delivery Date in which to serve notice of any claim to the Seller. If the Buyer does not serve notice of any claim to the Seller within 90 days from the Delivery Date the Buyer will be deemed to have acceptance of the Goods and shall have no rights to make any further claims with respect to the Goods.
7. Purchase Price & Order
a) The Buyer shall pay to the Seller the Purchase price as follows:
i) A non-refundable deposit of 30% of the Purchase Price payable at the at time of placing an order for the Goods;
ii) The balance of the Purchase Price on or before the earlier of 14 Days from the date of delivery of the Goods or 30 March of that calendar year.
b) The Seller may deliver the Goods in more than one delivery. The Purchaser will pay the Seller such proportion of the balance of the Purchase Price as relates to the Goods delivered in each delivery.
c) The Seller will provide a valid tax invoice to the Buyer that complies with requirements imposed by the Australian Taxation Office.
d) If the Seller incurs a liability to pay GST in connection with a supply to the Buyer pursuant to this Agreement, the amount that the Buyer must pay to the Seller for that supply is increased by an amount equal to the GST liability that the Buyer incurs in making the supply and that amount is payable at the same time as the consideration is payable in respect of that supply.
8. Interest
a) If a Buyer defaults in its obligations to pay any amount payable as and when it is due in accordance with this Agreement, the Seller may, at its discretion, charge the Buyer interest at the rate of 1% per month of the amount unpaid from the date when the amount was payable up to and including the date on which payment is received. The parties agree that this is a genuine pre-estimate of the loss suffered by the Seller as a result of the Buyer’s default.
b) When applying money received, the Seller can choose what order in which to apply the money received, whether to interest payable and then capital or otherwise.
9. Risk of Loss
a) Risk in respect of damage to the Goods shall remain with the Seller and shall not pass to the Buyer until the Goods are delivered to the Buyer at the Delivery Address or as directed by the Buyer. The risk in respect of damage to the Goods shall pass to the Buyer upon delivery.
b) Following delivery of the Goods, the Buyer will, at the Buyer’s expense, insure the Goods, noting the Seller’s interest in the Goods until payment is made in full to the Seller. The Buyer shall, upon demand by the Seller, provide to the Seller evidence of such insurance.
10. Warranties
a) THE GOODS ARE SOLD ‘AS IS’ AND THE SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MARCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
b) The Buyer has been given the opportunity to inspect the Goods or to have it inspected and the Buyer has accepted the Goods in its existing condition. Further, the Seller disclaims any warranty as to the condition of the Goods.
c) The Seller does not assume or authorise any other person to assume on the behalf of the Seller, any liability in connection with the sale of the Goods. The Seller’s above disclaimer of warranties does not, in any way, affect the terms of any applicable warranties from the manufacturer of the Goods.
d) The terms and conditions of this Agreement that exclude or limit the Seller’s liability only apply to the extent permitted by law. Provisions of Australian Consumer Law and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. This Agreement must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the Seller is entitled to do so, its liability under those statutory provisions will be limited at its option to:
i) the replacement of the Goods or the supply of equivalent goods;
ii) the payment of the cost of replacing the Goods or of purchasing equivalent goods;
11. Excuse for Delay or Failure to Perform
a) The Seller will not be liable in any way for any delay, non-delivery or default in shipment due to labour disputes, transportation shortage, delays in receipt of material, priorities, fires, accidents and other causes beyond the control of the Seller or its suppliers. If the Seller, in its sole judgment, will be prevented directly or indirectly, on account of any cause beyond its control, from delivering the Goods ant the time specified or within one month after the date of this Agreement, then the Seller will have the right to terminate this Agreement by notice in writing to the Buyer, which notice will be accompanied by full refund of all sums paid by the Buyer pursuant to this Agreement.
b) In all other cases, if the Seller fails to deliver the Goods to the Buyer within the time and manner specified in this Agreement, the Buyer may provide written notice of the default to the Seller. If within seven (7) days of the notice being received, or within such other time period as agreed to by the parties, the default is not corrected, the Buyer may immediately terminate this Agreement.
12. Remedies
a) The Buyer’s sole remedy and the Seller’s limit of liability for any and all losses or damages resulting from defective Goods or from any other cause will be for the Purchase Price of the particular delivery with respect to which losses or damages are claimed, plus any transportation charges actually paid by the Buyer.
13. Termination
a) The Seller reserves the right to cancel this agreement:
i) If the Buyer fails to pay for any shipment when due:
ii) In the event of the Buyer’s insolvency or bankruptcy; or
iii) If the Seller deems that the Buyer’s prospect of payment is impaired.
b) On the termination of this Agreement for whatever reason, the Buyer must immediately pay all monies due but unpaid.
c) Termination of the Agreement does not affect a parties rights in respect of a prior breach of this Agreement.
14. Notices
a) Any notice to be given or document to be delivered to either the Seller or Buyer pursuant to this Agreement will be sufficient if delivered personally or sent by prepaid registered post to the address for service referred to in Item Five of the Schedule.
b) Any written notice or delivery of documents will have been given, made and received on the day of delivery if delivered personally, or on the third (3rd) consecutive business day next following the date of posting if sent by prepaid registered post.
15. General Provisions
a) The Buyer may not assign its right or delegate its performance under this Agreement without the prior written consent of the Seller, and any attempted assignment or delegation without such consent will be void. An assignment would change the duty imposed by this Agreement, would increase the burden or risk involved and would impair the chance of obtaining performance or payment.
b) This Agreement cannot be modified in any way except in writing signed by all the parties to this Agreement.
c) If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
d) This Agreement may be executed in counterparts. Facsimile signatures are binding and are considered to be original signatures.
e) Time of the essence in this Agreement.
f) This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise. The Buyer acknowledges that it has not relied upon any representations of the Seller as to prospective performance of the Goods but has relied upon its own inspection and investigation of the subject matter.
g) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise, or the exercise of any other power or right.
16. Special Conditions
Any special conditions appearing in Item Six of the Schedule form part of this Agreement. In the event of any inconsistency between the preceding clauses and any special conditions, the special conditions shall prevail to the extent of any inconsistency.