Business Sale Agreement

This Business Sale Agreement is for use when the owner of a business sells the business to a new owner. The Agreement addresses a variety of matters that may be relevant to a business sale, including:

• assets to be transferred with the business
• transfer of employees
• a stocktake, if required
• conditions precedent (such as a 'subject to finance' clause which can be used if the purchaser needs to be approved for a loan in order to make the purchase)
• restraint of trade preventing the vendor of the business from opening competing businesses - although the parties may need to consider how this relates to Australia's competition law and laws in relation to cartel conduct
• leases for business premises, if applicable
• confidentiality - so that the outgoing owner can provide sensitive information to the purchaser if required, and that information can be kept confidential
• a transfer of any business name
• intellectual property (such as logos and designs)
• vendor warranties
• indemnities from each party - so that the purchaser has some protection from liability for events that happened when the vendor owned the business, and vice versa
• Goods and Service Tax (GST)
• whether the vendor is required to assist the purchaser with a business handover, after completion

Once completed and signed by all parties, this Business Sale Agreement constitutes a binding agreement between the parties, enabling them to start making arrangements for the business to be handed over.

If any conditions are included in the agreement, then those conditions will also need to be met in order for the transaction to go ahead. If they are not, then one party or the other (or in some cases, both parties) may have the right to pull out of the agreement.

Businesses can vary drastically in nature, meaning the requirements for business sale agreements also vary significantly. This Business Sale Agreement contains many different options and outlines the key rights and obligations of both parties to enable a smooth hand over of the business. However, it is important that the person preparing this document checks it carefully to make sure it reflects their needs.

There are many moving parts in a business sale, so if the parties have any doubts, uncertainties or concerns, then they should seek legal advice.

Please note that this Business Sale Agreement only contains a basic confidentiality clause. If the parties wish to deal with confidentiality more comprehensively, or if they wish to exchange confidential information before they actually sign this Business Sale Agreement, then they should consider using a separate Confidentiality Agreement.

How to use this document

Once the Agreement has been completed, it should be signed by both parties. If a party is signing as an individual or partnership (rather than as a company), then their signature will also need to be witnessed by an independent adult witness (the other party cannot act as a witness).

The Agreement should be dated, on the date that the parties signed the Agreement. Or, if the parties signed on different days, it should be dated on the day that the second party signs it. Once all of the signatures are on the Agreement, it is legally binding.

Both parties should keep a copy of the Agreement. The parties should also pay close attention to any relevant timeframes which are set out in the Agreement, and should make sure they understand what they each need to do, and when they need to do it.

In some cases, if a party fails to do something that they are required to do, within the relevant timeframe, the other party may have the right to pull out of the Agreement.

Some restraint of trade clauses may breach Australian competition law

Under Australian competition law (discussed below)if several businesses that operate in the same market come to some kind of agreement about how they will do business, there is a risk that this agreement could constitute conduct which is considered "anti competitive" or "cartel conduct".

If the parties have any concerns at all about whether or not they are going to be affected by these laws, they should strongly consider obtaining legal advice.

This Agreement is only designed for use among parties which are not engaging in cartel conduct or other acts in violation of competition law.

Further information is available on the website of the Australian Competition and Consumer Commission.

Applicable law

General principles of contract law, as provided by the common law, will apply to this Agreement.

Depending on the industry within which the business operates, other bodies of law, specific to that industry, may also apply.

If employees are being transferred with the business, then elements of employment law may apply. For example, the Fair Work Act 2009 (Commonwealth) deals with matters such as accrued annual leave and long service leave when a business is sold.

If intellectual property is being transferred with the business then elements of intellectual property law can apply, such as the Trade Marks Act 1995 (Commonwealth), or the Copyright Act 1968 (Commonwealth).

The parties may also need to consider the cartel provisions of the Competition and Consumer Act 2010 (Commonwealth), which deal with anti-competitive or cartel conduct.

If in doubt, seek legal advice.

How to modify the template

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