1. Introduction
    1. AVATION distributes SAVANT audio, video, automation and control products, parts and equipment as set out in the Price List (Products).
    2. Dealer wishes to conduct sales of the Products.
    3. AVATION agrees to supply Products to the Dealer, and Dealer agrees to market and sell the Products, pursuant to the terms and conditions of this agreement.
  2. Agreement
    1. The Dealer possesses the facilities, equipment and technical knowledge and ability to, and will use all reasonable commercial efforts in, marketing and selling the Products, including without limitation the demonstration and installation of the Products.
    2. Subject to the terms and conditions set forth in this agreement, AVATION hereby appoints Dealer as an authorized dealer for AVATION of the Products in Australia (Territory). The Dealer hereby accepts such appointment.
    3. The Dealer acknowledges that its appointment is non-exclusive and AVATION may appoint other persons as dealer for AVATION of the Products in the Territory.
    4. The Dealer must not market, promote or sell the Products by mail order or online sales.
    5. AVATION shall have the sole and exclusive right to, from time to time, to add or delete any of the Products from the Price List.
    6. Dealer shall transmit to AVATION all enquires or orders:
      1. for sale, delivery or use of the Products outside the Territory; or
      2. which the Dealer ought reasonably be aware are for sale, delivery or use of the Products outside the Territory.
    7. All title, copyright and other proprietary rights in and to the SAVANT Software and any copies of the SAVANT Software are owned by SAVANT or its suppliers and licensors.
    8. All Extensible Markup Language (XML) profiles relating to the Products provided by SAVANT or AVATION to the Dealer shall remain the sole and absolute property of SAVANT or AVATION as the case may be.
    9. Unless otherwise agreed in writing between the Dealer and AVATION, any XML profile developed by the Dealer relating to the Products shall remain the sole and absolute property of the Dealer. If the Dealer agrees, however, in writing to provide access to AVATION to any XML profile developed by the Dealer, the Dealer irrevocably and unconditionally grants to AVATION a non-exclusive, perpetual, royalty-free licence to copy, modify, adapt, publish, make available and otherwise use in any manner it sees fit (and to sub-license others to so copy, modify, adapt, publish, make available and otherwise use) the XML profile in respect of the Products.
    10. The Dealer acknowledges the validity of all trade mark registrations of, and ownership of all trademarks and names used relating to, any of the Products by SAVANT, AVATION or such other company or companies that have permitted SAVANT or AVATION to use any of such trademarks or names in Australia (Trademarks)
    11. The Dealer shall at no time adopt or use, without AVATION’s prior written consent any word, symbol, design, mark or other commercial signifier that is like or likely to be confused with any of the Trade Marks or the name AVATION.
    12. The Dealer specifically covenants with AVATION that, at the Dealer’s sole cost and expense where applicable, the Dealer shall:
      1. provide AVATION with a written non-binding forecast, before the beginning of each calendar quarter, of the likely product purchases by the Dealer from AVATION during the next two calendar quarters;
      2. comply and cooperate with all marketing or promotional policies or programs instituted by AVATION in connection with the display, demonstration or promotion of the Products;
      3. upon signing this agreement, the purchase of the Savant Dealer Kit is required to gain access to the Savant community for training purposes. The Savant dealer kit must be used for demonstration purposes only for a minimum of 6 months and then can be sold.
      4. it is a prerequisite, as a Savant dealer, that you attend, Savant Fundamentals and the Savant trouble shooting certification on the Savant university. The two prerequisite courses must be completed, and your certificates emailed to your local Avation representative within one month of becoming a Savant dealer
      5. maintain an accurate record of each installation of Products that shall contain, at a minimum, the model and serial numbers of the Products, and the name and address of each purchaser of Products, and any such other information as AVATION or the Dealer may be required by law or regulation to maintain.
    13. The Dealer shall not bid for, or otherwise purchase, any URLs or paid search terms on any Internet search engine that contain:
      1. the term SAVANT or AVATION;
      2. the brand name of any SAVANT Product or any Trade Marks; or
      3. any other trade mark or copyright owned by SAVANT, AVATION or an affiliate of either of them.
    14. Without limiting any other rights and remedies under this agreement or at law, if there is any deterioration in the financial condition of the Dealer at any time, may require full payment in advance of delivery of any Products (including, without limitation, any Products subject to orders already accepted by AVATION).
    15. The Dealer must promptly notify AVATION of:
      1. any contemplated or actual change in control of the Dealer or any of the assets essential to the performance of this agreement; or
      2. any change in the executive management of the Dealer (including, without limitation, due to death or ill health).
    16. All the Dealer’s orders for Products are subject to acceptance by AVATION.
    17. AVATION shall use commercially reasonable efforts to fulfil all accepted orders as promptly as practicable provided they are reasonably consistent with forecasts provided by the Dealer pursuant to this agreement.
  3. Prices
    a. The prices for the Products are as the listed Price List.
    b. A current copy of the Price List is annexed to this agreement in Annexure A.
    c. The Dealer acknowledges that AVATION may amend the Price List at any time and from time to time by posting such amendments on AVATION’s Dealer Portal.
    d. All prices are expressed, and all payments must be made, in Australian dollars.
    e. All prices are exclusive of GST, or similar taxes now in force or enacted in the future, all of which shall be paid by Dealer. AVATION will invoice Dealer for any such taxes and remit any payments made on such invoice directly to the appropriate taxing authorities.

    1. If the Dealer applies for credit with AVATION, the Dealer will be notified in writing of the credit terms if the Dealer is approved. AVATION may change credit terms at any time and from time to time at its sole and absolute discretion. If, at any time, payment is overdue in respect of any orders, AVATION may require all orders (including, without limitation, any orders already accepted but not delivered) to be on a “cash on delivery” basis or to discontinue sales to the Dealer until all overdue amounts are paid in full.
    2. Title to the Product shall not pass to the Dealer until payment in full of all amounts due and payable by the Dealer to AVATION for the supply by AVATION to the Dealer of any Products. AVATION reserves the right to take possession and dispose of Products as it sees fit at any time until full payment, and to that end the Dealer grants AVATION and its agent’s permission to enter any property where the Dealer keeps the Product. The Dealer consents to AVATION effecting a registration on the Personal Property Securities Register (in any manner AVATION considers appropriate) in relation to any security interest contemplated by this agreement and the Dealer agrees to provide all assistance reasonably required to facilitate this.
    3. AVATION will not assume any liability in connection with shipment for any loss or damage caused by delay in shipping the Products nor constitute any carrier as its agent.
    4. AVATION shall pass on the benefit of the relevant manufacturer’s warranty in respect of any Products which are hardware (Equipment) (Manufacturer’s Warranty), a current copy of which is set out in Annexure B.
  4. Warranty claims
    a. Upon receiving written notice of any claim for a defect in Equipment covered by the relevant Manufacturer’s Warranty or at law (RMA Product), AVATION will issue to the Dealer a Return Material Authorization (RMA) number.
    b. The Dealer is responsible for shipping any RMA Product, prepaid, to AVATION’s repair facility. Original packaging or similar packaging must be utilized to prevent damage. Repaired material shall be shipped by AVATION to the Dealer at the cost of AVATION.
    c. Upon receipt of the RMA Product, AVATION shall inspect and test it. If AVATION, in its reasonable judgment, determines that the hardware is defective and covered by the Manufacturer’s Warranty or required to be repaired at law, AVATION shall procure the repair or replacement of the Product in accordance with the Manufacturer’s Warranty or the law as the case may be.

    1. Fully permitted by law, AVATION’s liability under any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, under any legislation or implied into this agreement by any legislation (Statutory Warranties) is hereby excluded.
    2. Where AVATION is liable under any Statutory Warranties, and any legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such Statutory Warranties, AVATION’s liability for any breach of such Statutory Warranties shall be limited, at AVATION’s option, to one or more of the following:
    3. if the breach relates to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the cost of replacing the goods or of acquiring equivalent goods; or the cost of having the goods repaired; and
    4. if the breach relates to services: the supplying of the services again or the cost of having the services supplied again, and AVATION shall have no other liability for any loss or damage of any kind (including, without limitation, any direct, indirect, consequential, special or exemplary loss or damage) howsoever arising (whether in contract, tort or otherwise) arising from or in connection with the Products, the use of the Products or any defects in its Products. The Dealer acknowledge and agree that reliance by AVATION on this limitation of liability is fair and reasonable in all the circumstances.
    5. To the maximum extent permitted by law, the total aggregate liability of AVATION arising under or relating to this agreement in respect of any Product is limited to an amount equal to the amount paid by the Dealer for that Product. Neither party shall be liable to the other party for any indirect, consequential, special or exemplary loss or damage.
  5. Confidentiality obligations
    1. Confidential Information means, in the case of AVATION:
      1. information of a confidential nature concerning the Products including, without limitation the technical design, features and specifications of the Products;
      2. data concerning customers and sales of Products in the Territory (whether provided by AVATION or the Dealer);
      3. industry information, marketing plans, trade secrets, commercially sensitive information and confidential know-how relating to the Products; and
      4. financial and business information of AVATION.
    2. Confidential Information means, in the case of the Dealer, the financial and business information of the Dealer.
    3. Each Party agrees to ensure that the Confidential Information of the other party (Disclosing Party) is kept confidential.
    4. A party who receives the Disclosing Party’s Confidential Information (Receiving Party) must not:
      1. directly or indirectly divulge or communicate or otherwise disclose the Confidential Information of the Disclosing Party, in whole or part, to any third party; or
      2. use of any of the Confidential Information of the Disclosing Party for any purpose other than exercising its rights or fulfilling its obligations under this agreement, without the express prior written consent of the Disclosing Party.
    5. A Receiving Party must:
      1. take all precautions that are reasonably necessary to prevent any unauthorised disclosure of the Disclosing Party’s Confidential Information to third parties or unauthorised use of such Confidential Information; and
      2. inform the Disclosing Party of any suspected or actual unauthorized disclosure or use of such Confidential Information.
    6. A Receiving Party will not be in breach of its obligations with respect to disclosure of the Disclosing Party’s Confidential Information if it discloses information that:
      1. is, or subsequently enters, the public domain, other than through a breach by it of its obligations under this clause 22.
      2. it is required to disclose by statute, court order or a person acting under the authority of statute or such order;
      3. was developed independently by it, without the use of any of the Disclosing Party’s Confidential Information; or
      4. was provided to it by a third party who was not subject to any obligation or duty of confidentiality at the time it was provided to the Receiving Party.
  6. Documentation
    1. All Documentation with respect to the Products, including operating or maintenance manuals and drawings, are, as between the Dealer and AVATION, Confidential Information of AVATION solely for Dealer’s internal use and for supply to Customers.
    2. The Dealer may make copies of such Documentation only to satisfy its internal requirements and the needs of Customers, provided that all such copies include copyright and proprietary information notices. No other copies or use of such Documentation, or any part of it, shall be made without the prior written consent of AVATION.
  7. Termination
    1. This agreement shall commence for the date of execution and shall continue for a term of one (1) year unless earlier terminated in accordance with this agreement.
    2. This agreement shall automatically renew for further terms of one (1) year each upon expiration of the then current term, unless either party has given written notice to the other party, not less than 30 days period to the end of the then current term and not more than 90 days prior to the end of the then current term, of its intention not to renew this agreement.
    3. Either party may terminate this agreement immediately by giving written notice to the other party if:
      1. the other party is, or becomes, Insolvent; or
      2. the other party breaches the agreement and does not rectify the breach within 15 business days of being notified of it.
    4. Any termination or expiration of this agreement will be without prejudice to the rights of each party against any other in respect of anything done or omitted under this agreement prior to such termination or expiration.
    5. Upon termination or expiration of this agreement, the Dealer shall discontinue its use of any of the Trademarks or names associated with any of the Products, and thereafter shall not:
      1. use any word, symbol, design, mark or other commercial signifier that is similar to or likely to be confused with any of the Trade Marks or the name AVATION; and
      2. any business or trading name which contains any of the Trade Marks or the name AVATION.
    6. In this clause, Insolvent means, in relation to a party:
      1. that party being unable to pay its debts as and when they fall due;
      2. a receiver, receiver and manager, administrator or liquidator being appointed over that party’s assets or undertakings or any of them;
      3. an application for winding up or other process seeking orders which, if granted, would render that party an externally-administered body corporate (as defined in the Corporations Act) being filed and not being withdrawn within 20 Business Days;
      4. that party being or becoming the subject or an order, or a resolution being passed, for its winding up or dissolution; or
      5. either:
        1. that party entering into, or resolving to enter into a deed of company arrangement or an arrangement, composition or compromise with, or assignment for the benefit, of its creditors generally or any class of creditors;
        2. proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
  8. The Dealer is a contractor independent of AVATION. The parties are not, and nothing in this agreement shall read or be construed as constituting the parties as, principal and agent, partners, joint ventures’, trustee and beneficiary, or employer and employee.
  9. Except as otherwise expressly provided, the Dealer must not assign or subcontract this agreement or any right or obligation under this agreement.
  10. Dealer agrees to routinely check for all information posted by AVATION on the Dealer Portal or by SAVANT on the SAVANT Dealer Portal, and items posted on the Dealer Portal by AVATION or by SAVANT on the SAVANT Dealer Portal, such as changes to the Price List, shall be effective within twenty (20) Business Days of posting.
  11. This agreement may only be amended in writing signed by the parties.
  12. A party may only waive a breach of this agreement in writing signed by that party or its authorised representative. A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches).
  13. This document records the entire agreement between the parties about the Engagement. The parties exclude all terms implied by law, to the maximum extent permitted by law.
  14. If any provision of this agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation it must be severed so that the validity and enforceability of the remaining provisions are not affected.
  15. This agreement may be executed in any number of counterparts. Together all counterparts make up one document. The agreement takes effect when each party has received the counterpart executed by each other party, or would be deemed to have received it if a notice.
  16. This agreement is to be governed by and construed in accordance with all applicable laws in force in, Australia from time to time and the parties submit to the non-exclusive jurisdiction of the courts of, Australia.