Contract for Sale of Goods - Template, Sample Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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SALE OF GOODS AGREEMENT
This Sale of Goods Agreement ("Agreement") is dated ________ ("Agreement Date").
BETWEEN THE SELLER (hereinafter "Seller"):
________ (ABN ________)
Of the following address:
________
AND THE BUYER (hereinafter "Buyer"):
________ (ABN ________)
Of the following address:
________
RECITALS:
WHEREAS, the Seller wishes to offer for sale a certain Good, as defined below;
WHEREAS, the Buyer wishes to buy such Good from the Seller;
NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties agree as follows:
(1) DEFINITIONS:
In this Agreement, the following definitions apply:
"ACL" means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
"Agreement" means this agreement.
"Agreement Date" means the Agreement Date set out at the start of this Agreement.
"Business Day" means a day which is not a Saturday, Sunday, public holiday or bank holiday in ________.
"Buyer" means ________.
"Delivery Date" means ________.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any other applicable law.
"Good" means: ________.
"PPSA" means the Personal Property Securities Act 2009 (Cth).
"Party" means either the Buyer or the Seller.
"Parties" means the Buyer and the Seller collectively.
"Purchase Price" means the following amount: $________ (________).
"Seller" means ________.
(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) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.
(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in ________.
(f) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a Business Day, then that thing must be done on or before the next Business Day.
(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(h) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
(i) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(j) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.
(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.
(m) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.
(3) SALE:
The Seller hereby agrees to sell, and the Buyer agrees to buy, the following (the "Good"):
________
(4) PRICE:
(a) For the sale of the Good, the Buyer agrees to pay and the Seller agrees to accept the following amount: $________ (________) (the "Purchase Price").
(b) The Seller and the Buyer each acknowledge the sufficiency of the Purchase Price as consideration.
(c) The Purchase Price is inclusive of GST, insurance, freight costs and import charges (such as customs duties or levies) and all other taxes (except for stamp duty, which is payable by the Party liable for it at law).
(d) If GST is payable on any supply made under this Agreement, the recipient must pay the amount of GST in addition to and at the same time as the consideration for the supply, subject to the supplier providing a valid tax invoice.
(5) DEPOSIT:
(a) A deposit is payable in the following amount: $________ (________) ("Deposit"). The Deposit will be due on ________.
(b) The Deposit represents a genuine pre-estimate of the Seller's reasonable costs and is non-refundable, except to the extent that retention of the Deposit would constitute a penalty at law or where a refund is required under the ACL.
(c) The balance of the Purchase Price is payable in accordance with the "Invoicing & Payment" clause below.
(6) INVOICING & PAYMENT:
(a) The following method(s) of payment are acceptable for payment of the Purchase Price:
________
(b) The balance of the Purchase Price will be due to the Seller immediately upon delivery of the Good, unless otherwise agreed in writing.
(c) In the event that payment of the Purchase Price is late, the Seller has the option to treat the Buyer as in breach and terminate this Agreement and to charge the following late fee:
________
(d) Any late fee charged must represent a genuine pre-estimate of the loss suffered by the Seller and must not constitute a penalty.
(e) The Seller must provide to the Buyer a valid tax invoice in compliance with any requirements which the Australian Taxation Office may impose from time to time.
(7) DELIVERY:
(a) The Good will be delivered to the Buyer on or before ________.
(b) If the Good is not delivered by ________, the Seller shall be liable to the Buyer for the following late charge:
________
(c) The Good will be delivered to the Buyer's address as listed at the head of this Agreement, unless otherwise agreed in writing.
(8) TIME FOR DELIVERY:
Time shall be of the essence for delivery of the Good and, if delivery is not made as outlined within this Agreement, the Seller shall be in breach of the Agreement.
(9) INSPECTION:
(a) Upon receiving the Good, the Buyer will make a full investigation, inspection and/or examination of the Good.
(b) In the event that the Buyer considers that the Good has been damaged prior to delivery, the Buyer must notify the Seller of such damage within the following time period of having received the Good ("the Inspection Time"): ________
(c) In the event that the Good has actually been damaged prior to delivery, and the Buyer has notified the Seller of such damage (and provided evidence of such damage) within the Inspection Time, and the ACL applies to this Agreement, then the Seller will comply with its obligations under the ACL, which may require the Seller, at its cost, to repair or replace the Good or provide a refund.
(d) In the event that the Good has actually been damaged prior to delivery, but the Buyer does not notify the Seller of such damage within the Inspection Time, then the Seller will not be obliged to repair or replace the Good or provide a refund (unless the ACL provides otherwise).
(10) RISK OF LOSS:
Risk of loss for the Good will transfer from the Seller to the Buyer when the Buyer receives ownership of the Good through a duly executed bill of sale or when the Buyer takes physical possession of the Good, whichever occurs first.
(11) TITLE AND RETENTION OF TITLE:
(a) Title to the Good will pass from the Seller to the Buyer when the Buyer has paid the Purchase Price in full and has received ownership of the Good through a duly executed bill of sale or has taken physical possession of the Good, whichever occurs last.
(b) Until title in the Good passes to the Buyer in accordance with this clause, the Seller retains full legal and beneficial ownership of the Good, and the Buyer must take all reasonable steps to keep the Good safe, identifiable and free from any encumbrances.
(c) The Parties acknowledge that this clause may create a security interest for the purposes of the PPSA. The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to do all things reasonably necessary to enable the Seller to perfect that security interest.
(d) To the extent permitted by law, the Parties contract out of the provisions of the PPSA referred to in section 115 of the PPSA, and the Buyer waives its right to receive any notice or statement that may otherwise be required under the PPSA.
(12) WARRANTIES:
(a) The Seller hereby warrants to the Buyer:
(b) This clause will survive the termination or expiration of this Agreement.
(13) LIMITATION OF LIABILITY:
(a) For some sales, the ACL or other similar or related consumer protection laws might apply, which would give the Buyer certain rights which cannot be denied by the Seller.
(b) The Buyer may have certain rights under the ACL, or under other similar or related consumer protection laws.
(c) The ACL may give the Buyer certain rights, consumer guarantees and remedies regarding the provision of goods or services by the Seller, which cannot be excluded, modified or restricted by the Seller ("Statutory Rights").
(d) If the ACL applies to this Agreement, then the Buyer should take note of the following mandatory consumer guarantees text:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(e) The Seller's liability to the Buyer is governed by the ACL and by this Agreement. To the maximum extent permitted by law, and except as otherwise expressly provided in this Agreement or required by the Buyer's Statutory Rights, the Seller excludes all conditions, warranties and guarantees implied by custom, law or statute.
(f) The Buyer hereby agrees that, except where the Buyer's Statutory Rights apply, the Buyer is solely responsible for evaluating the Good and for determining whether the Good is fit for the Buyer's purpose.
(g) To the maximum extent permitted by law and except in respect of the Buyer's Statutory Rights, the Seller is not liable for any direct, indirect, consequential or incidental loss or damage which may result from the Buyer's use of the Good, including any loss of revenue, profits, interruption of business, or loss of data, even if the possibility of such loss was made known to the Seller.
(h) Where the Buyer's Statutory Rights apply and the Good is not of a kind ordinarily acquired for personal, domestic or household use or consumption, then to the maximum extent permitted under section 64A of the ACL, the Seller's liability for a failure to comply with a consumer guarantee is limited, at the Seller's option, to:
(I) a repair of the Good;
(II) a replacement of the Good or supply of an equivalent good; or
(III) a refund of the Purchase Price paid by the Buyer.
(i) The Seller's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
(j) This clause will survive the termination or expiration of this Agreement.
(14) BREACH OF WARRANTY:
(a) In the event that the Good provided under this Agreement breaches a warranty under this Agreement ("Warranty Breach"):
(I) the Seller will:
________
(II) in order to be entitled to make a claim under the Warranty Breach, the Buyer must:
________
(III) in order to claim under the Warranty Breach, the Buyer must:
________
(IV) the Buyer is responsible for any expenses associated with the Warranty Breach claim, but may claim back any expenses incurred in the following manner:
________
(V) any benefits provided to the Buyer in relation to the Warranty Breach are in addition to other rights and remedies available to the Buyer under the law, including the Buyer's Statutory Rights.
(b) Except as otherwise required by law (including the ACL), the Buyer's rights in relation to the Warranty Breach will expire the following period after the Buyer receives the Good: ________
(15) CONFIDENTIALITY AND INTELLECTUAL PROPERTY:
(a) For the purpose of this clause, "Intellectual Property" may include but is not limited to:
any and all inventions, patents, utility models, design rights, copyright, know-how, trade secrets, trade marks, trade names, confidential information, service marks and goodwill subsisting in, resulting from or relating to the Good, or any documents, drawings, specifications and/or patterns relating thereto either:
(I) supplied by the Seller to the Buyer in connection with the Good; or
(II) supplied by the Seller to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of this Agreement; or
(III) resulting from the Good, unless otherwise expressly agreed by the Seller in writing.
(b) The Buyer shall not, under any circumstances, acquire any right in or to any Intellectual Property.
(c) The Seller shall have the right to apply any trade marks, trade names and/or service marks to the Good. The Buyer acknowledges that no rights are granted to it by its use of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied by the Seller on or in relation to the Good.
(d) If the Buyer shall in any way acquire any rights in any Intellectual Property, then the Buyer shall immediately inform the Seller and shall forthwith take such steps as may be required by the Seller to assign such rights or vest such title in the Seller.
(e) The Parties each acknowledge and agree that, unless otherwise expressly agreed between the Parties, the terms of this Agreement, and the fact that this Agreement exists, are confidential.
(f) The Buyer shall keep confidential and not use, without the prior written consent of the Seller, all or any information including, without limit, information supplied by the Seller to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of this Agreement, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any governmental or other regulatory body.
(g) Each Party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of any personal information collected, used or disclosed in connection with this Agreement.
(h) This clause will survive the termination or expiration of this Agreement.
(16) DISPUTE RESOLUTION:
(a) In the event that any dispute arises between the Parties in connection with this Agreement, the Parties agree to attempt to resolve the dispute by negotiation in good faith before commencing any legal proceedings.
(b) The Party claiming that a dispute has arisen must give written notice to the other Party setting out the nature of the dispute.
(c) If the Parties are unable to resolve the dispute within twenty-one (21) days of the date of the notice, the Parties agree to attempt to resolve the dispute through mediation administered by ________ before commencing any legal proceedings, with the costs of mediation to be borne equally by the Parties.
(d) Nothing in this clause prevents a Party from seeking urgent injunctive or interlocutory relief from a court.
(17) 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 Seller 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 Buyer if delivered to the following address:
________
(c) Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. 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.
(18) WRITTEN COMMUNICATION:
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:
(a) such notice is properly given if given to the other Party:
(I) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement;
(II) by post to a postal address the other Party has nominated, acknowledged or used in connection with this Agreement; or
(III) by hand delivery to the relevant address.
(b) such notice is taken to be received:
(I) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address, in accordance with the Electronic Transactions Act applicable in the relevant jurisdiction;
(II) if delivered by hand, on the day of delivery;
(III) if sent by prepaid post within Australia, five (5) Business Days after the date of posting;
(IV) if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.
(19) 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 the termination or expiration of this Agreement.
(20) GENERAL PROVISIONS:
(a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of ________ and any applicable Commonwealth law. Both Parties submit to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from those courts.
(b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
(c) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party except with the other Party's prior written consent.
(d) AMENDMENTS: This Agreement may only be amended in writing signed by both Parties.
(e) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone or otherwise limit any right, remedy or power which that Party may have.
(f) SURVIVAL OF OBLIGATIONS: At the termination or expiration of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive termination and/or expiration.
(g) NO WAIVER: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
(h) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
(i) ENTIRE AGREEMENT: In relation to the subject matter of this Agreement, this Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
(j) COUNTERPARTS: This Agreement may be executed in counterparts, including by electronic signature in accordance with the applicable Electronic Transactions Act, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the Agreement, which may be the later date.
(k) FURTHER ACTS: Each Party must, and must ensure that its employees, agents and representatives do, all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.
EXECUTED AS AN AGREEMENT ON THE AGREEMENT DATE.
Executed by ________ (ABN ________) in accordance with s127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director
____________________________________
Signature of director / company secretary
____________________________________
Name of director / company secretary
Date: ________
(If the Seller is an individual or sole trader, signed by the Seller in the presence of a witness:)
____________________________________
Signature of Seller
____________________________________
Signature of witness
Name of witness: ________
Executed by ________ (ABN ________) in accordance with s127 of the Corporations Act 2001 (Cth) by:
___________________________________
Signature of director
____________________________________
Name of director
____________________________________
Signature of director / company secretary
____________________________________
Name of director / company secretary
Date: ________
(If the Buyer is an individual or sole trader, signed by the Buyer in the presence of a witness:)
____________________________________
Signature of Buyer
____________________________________
Signature of witness
Name of witness: ________
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