SALE OF GOODS AGREEMENT
This Sale of Goods Agreement, hereinafter referred to as “Agreement,” is between the following parties:
BETWEEN THE SELLER(S) (hereinafter “Seller”):
Welcome Change Media (ABN 51 854 697 479)
Of the Following address:
14 Edgecumbe Pde Blackwood SA 5051
AND THE BUYER(S) (hereinafter “Buyer”):
WHEREAS, Seller wishes to offer for sale certain Goods, as defined below;
WHEREAS, Buyer wishes to buy such Goods from 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 do hereby agree as follows:
In this Agreement, the following definitions apply:
“ACL” means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth).
“Agreement” means this agreement.
“Business Day” means a day which is not a Saturday, Sunday, public holiday or bank holiday in South Australia.
“Buyer” means the customer
“Goods” means: goods and services provided by Welcome Change Media including but not limited to physical or electonic publications whether written, audio, video or some other medium.
“Goods and Services Tax” 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 (Commonwealth) or any other applicable law.
“Party” means either the Buyer or the Seller.
“Parties” means the Buyer and the Seller collectively.
“Purchase Price” means the price as advertised or otherwise agreed to.
“Seller” means Welcome Change Media (ACN 51 854 697 479)
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 South Australia.
(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.
Seller hereby agrees to sell, and Buyer agrees to buy, the following (the “Goods”):
goods and services provided by Welcome Change Media including but not limited to physical or electonic publications whether written, audio, video or some other medium.
(a) For the sale of the Goods Buyer agrees to pay and Seller agrees to accept the total amount advertised or otherwise agreed to.
(b) The Seller and the Buyer each acknowledge the sufficiency of the Purchase Price as consideration.
(c) The Purchase Price is inclusive of Goods and Services Tax, insurance, freight costs and import charges (such as customs duties or levies) and all other taxes (except for stamp duty).
(a) All products and services must be paid for in full prior to dispatch, unless a deposit is negotiated.
(b) A deposit of 50% of total project cost is required and is due prior to commencement of work on any project as negotiated by Welcome Change Media.
(c) The Deposit is not refundable.
(d) 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:
Electronic funds transfer, Mastercard or Visa
(b) The balance Purchase Price will be due to the Seller within the following time after the date of Seller’s invoice: 7 days.
(c) In the event that payment of the Purchase Price is late, Seller has the option to consider Buyer in breach and terminate this Agreement and charge the following late fee:
Buyer will need to pay an additional 20% of the invoice value if paid late or no payment arrangement has been entered into.
(d) 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.
(a) The initial shipment of Goods will be delivered to the Buyer at a mutually-agreed upon date and time.
(b) The delivery location for the Goods will be as follows:
to the nominated email address of the client, or a location otherwise agreed to upon engagement of our services.
(8) TIME FOR DELIVERY:
Any dates or times agreed upon by the Parties for delivery of shipments of the Goods are estimates only and time shall not be of the essence for delivery. Seller shall not be liable for any losses, expenses, or damages for failure to meet any delivery date or time.
(a) Upon receiving the Goods Buyer will make a full investigation, inspection and/or examination of the Goods.
(b) In the event that Buyer considers that the Goods have been damaged prior to delivery, Buyer must notify Seller of such damage, within the following time period of Buyer having received the Goods (“the Inspection Time”): 7 days.
(c) In the event that the Goods have actually been damaged prior to delivery, and Buyer has notified Seller of such damage (and provided evidence of such damage) within the Inspection Time, then Seller will comply with Seller’s obligations under the ACL, which may require Seller, at Seller’s cost to repair or replace the Goods or provide a refund.
(d) In the event that the Goods have actually been damaged prior to delivery, but Buyer does not notify Seller of such damage within the Inspection Time, then Seller will not be obliged to repair or replace the Goods or provide a refund (unless the ACL provides otherwise).
(10) RISK OF LOSS:
Risk of loss for the Goods will transfer from the Seller to the Buyer when Buyer receives ownership of the Goods through a duly executed bill of sale or when Seller delivers the Goods to the shipping agent.
(a) Title to the Goods will remain with the Seller until the full Purchase Price is received and Buyer is in actual physical possession of the Goods or until Seller delivers a duly executed bill of sale to the Buyer.
(b) On or before the Delivery Date, Seller will provide to Buyer duly executed versions of any and all documents or forms as are required in order to transfer title in the Goods free of any encumbrances or adverse interests whatsoever.
(a) Seller hereby warrants to the Buyer:
(I) that there are no legal restrictions preventing Seller from entering this Agreement;
(II) that Seller is the sole legal and beneficial owner of the Goods.
(III) that Seller is duly authorised to enter into this Agreement.
(IV) that the Goods are free of any encumbrances or adverse interests whatsoever (whether legal, equitable or otherwise).
(V) that on or before the Delivery Date, Seller will provide to Buyer duly executed versions of any and all documents or forms as are required in order to transfer title in the Goods free of any encumbrances or adverse interests whatsoever.
(b) This clause will survive the termination or expiration of this Agreement.
(13) LIMITATION OF LIABILITY:
(a) Notice to the Buyer:
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.
(b) The Buyer may have certain rights under the Australian Consumer Law (“ACL”), or under other similar or related consumer protection laws.
(c) The ACL may give the Buyer certain rights, warranties, 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) The Seller’s liability to the Buyer is governed solely by the ACL and by this Agreement. To the maximum extent permitted by law, and except as otherwise expressly provided in this Agreement, the Seller excludes all conditions and warranties implied by custom, law or statute, except for the Buyer’s Statutory Rights, and the Seller expressly disclaims all warranties of any kind including but not limited to implied warranties that the Goods are fit for a particular purpose.
(e) The Buyer hereby agrees that the Buyer is solely responsible for evaluating the Goods and for determining whether the Goods are fit for the Buyer’s purpose.
(f) The Buyer hereby agrees that 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 Goods. For the sake of clarity, in no event will the Seller be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits, interruption of business, or loss of data, even if the possibility of such loss was made known to the Seller.
(g) When the Buyer’s Statutory Rights apply, to the maximum extent possible, the Seller’s liability in respect of any claim is limited to, at the Seller’s option:
(I) A repair of the Goods; or
(II) A replacement of the Goods; or
(III) A refund of the total amount paid by Buyer to Seller for the totality of all shipments.
(h) 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.
(i) This clause will survive the termination or expiration of this Agreement.
(14) BREACH OF WARRANTY:
(a) In the event that the Goods provided under this Agreement breach a warranty under this Agreement (“Warranty Breach”):
(I) the Seller will:
deliver the product as promised
(II) in order to be entitled to make a claim under the Warranty Breach, the Buyer must:
Notify Welcome Change Media within seven days of product failure
(III) in order to claim under the Warranty Breach, the Buyer must:
Email hello@welcomechangemedia with details of the warranty claim
(IV) the Seller is responsible for any expenses associated with a successful Warranty Breach claim.
(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.
(b) Except as otherwise required by law, the Buyer’s rights in relation to the Warranty Breach will expire the following period after the Buyer receives the Goods: 7 days
(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 Goods, or any documents, drawings, specifications and/or patterns relating thereto either:
(I) supplied by the Seller to the Buyer in connection with the Goods, 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 Goods, 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 Goods. The Buyer acknowledges that no rights are granted to the Buyer by the use by the Buyer 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 Goods.
(d) If the Buyer shall in any way acquire any such 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 respectively 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, that 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 other governmental or other regulatory body.
(g) This clause will survive the termination or expiration of this Agreement.
In addition to any other rights that are set out in this Agreement, if either Party defaults in its obligations under this Agreement (“Defaulting Party”), the other Party can terminate this Agreement by providing written notice to the Defaulting Party.
(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:
14 Edgecumbe Pde Blackwood SA 5051
(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:
14 Edgecumbe Pde Blackwood SA 5051
(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.
(d) The relevant email contact information for Seller is as follows:
(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 the Services or this Agreement.
(II) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(III) by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(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.
(II) if sent by facsimile, at the time shown of correct and complete transmission to the recipient’s facsimile number by the sending machine.
(III) if sent by prepaid post within Australia, five (5) 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 South Australia and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within South Australia.
(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, 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.
(l) FORCE MAJEURE/EXCUSE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances. Seller is not liable for any delivery delay or non-performance caused by labor or transportation disputes or shortage, material delays, or delays or non-performance caused by any of Seller’s suppliers. If Seller is unable to perform for any reason within 30 (thirty) days after the expected date of delivery, Seller may terminate this Agreement in full and provide a complete and total refund to Buyer of any fees paid.