This Snap One APAC Pty Ltd Sales Terms Agreement (The “Terms” or “Agreement”) is for the sale of certain Snap One products and services is between Snap One APAC Pty Ltd (“Supplier” or “Snap One”), an Australian company with an ACN of 104 199 439 and owner of the Snap One brands identified below in the Products section and the dealer identified above (the “Dealer”) and incorporates herein by reference the terms set forth below. Supplier and Dealer may be referred to herein individually as a “Party” and collectively as the “Parties”. These Terms are provided in lieu of a definitive agreement between the Parties and shall govern any purchase orders place between the Parties prior to the execution of a definitive Authorized Dealer Agreement (the “Definitive Agreement”). In the event that the parties enter into a Definitive Agreement, the Definitive Agreement between the parties shall supersede the terms of this Agreement.
1.1. Appointment as Authorised Dealer. Supplier appoints Dealer as a non-exclusive Snap One authorised dealer within the channels for the custom integrator sales channel for commercial and residential applications (“Sales Channel”), and only within the Commonweath of Australia (“Territory”). The Supplier is authorized to sell all “Access Networks,” “Araknis,” “Autonomic,” “Binary,” “Clare Controls,” “Dragonfly,” “Episode,” “Luma,” “Nearus,” “OvrC,” “Pakedge,” “Parasol,” “Sense,” “Strong,” “SunBrite,” “Triad” speakers (but not other Triad electronics products), “Visualint,” “WattBox,” and “Wirepath” branded products and services on then-current Snap One Price List sold by Supplier to dealers in the Territory, as well as other brands of products authorized by Snap One in the future (“Products”). For the avoidance of doubt, these Terms do not authorize the Dealer to sell Control4-branded products and services. The foregoing appointment is subject to the terms and conditions set forth herein and in Section 14 incorporated herein by this reference. Upon thirty (30) days written or electronic notice from Supplier to Dealer, the terms and conditions of Section 14 may be modified by Supplier from time to time in connection with changes to its Dealer Program as set forth in Section 14. Any such changes to the Dealer Program shall apply equally to all Supplier authorised Dealers in the applicable program in the Territory. Upon such notice of the change in the terms of Section 14, Dealer may terminate the Agreement immediately, subject to the rights and obligations of Terminated Status in Section 14. If Dealer does not give written or electronic notice of termination within such thirty (30) day period, Dealer agrees to be bound by the terms and conditions of the amended Section 14.
1.2. Sale Locations. Dealer may distribute the Products within the Territory from one or more pre-approved Dealer locations, provided, however, that each location must individually meet the Dealer Obligations listed in Section 14.
1.3. Reserved Rights. Supplier reserves the right to do any of the following, at its sole discretion: (i) authorise other Dealers in the same or other Sales Channels; (ii) change or discontinue the offering of any Products; (iii) change or terminate the level of support offered by Supplier; (iv) add or exclude any product from the list of Products available to be sold by Dealer hereunder; and (v) market, sell and distribute Supplier’s products, including the Products, directly to end users and other customers in the same or other Sales Channels.
1.4. Active Status. Dealer shall use its best commercial efforts to maintain “Active Status” (as defined in Section 14). If Dealer fails to comply with the conditions for Active Status or breaches any term of this Agreement upon notice from Supplier, Dealer may be changed to “Inactive Status” (as defined in Section 14), or may be subject to termination of the Agreement as provided in Section 11.
2.1. Prices. Supplier will sell the Products to Dealer at the prices in effect (on the date of each applicable Dealer Purchase Order as defined below) on Supplier’s then current applicable price list, as it may be changed from time to time with or without notice, or as otherwise agreed between the Parties in writing. Any new or revised price list will automatically supersede all prior inconsistent price lists. Supplier’s prices do not include sales, use, excise, VAT, GST, or similar taxes, or cost of shipping, which shall be the responsibility of Dealer.
2.2. Taxes. The amount of any valid present or future sales, use, excise, VAT, GST, duties or other similar tax that is attributable to Dealer shall be paid by Dealer; or in lieu thereof, Dealer shall provide Supplier with a tax exemption certificate acceptable to the relevant taxing authorities.
2.3 GST. Any words capitalised in this clause have the meaning given to those words in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable; (i) the Recipient must pay the Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this Agreement); and (ii) the Supplier must give the Recipient a Tax Invoice for the Supply. For clarity, the GST payable under this clause is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the Supplier is liable, however caused.
2.4. Dealer’s Prices. Dealer is free to determine its own prices for sales to its customers.
2.5. Related Matters. Dealer shall not make deductions of any kind from amounts due to Supplier unless Supplier has issued a credit memo or otherwise consented to such deduction in writing. Any unauthorised deduction shall be grounds for termination of this Agreement at Supplier’s option, without any further liability to Dealer. Dealer hereby grants to Supplier a security interest.
2.6 Retention of title and Personal Property Securities Act. Supplier retains ownership and title in all Products sold by Supplier to Dealer until payment in full for such Products is received by Supplier in accordance with this Agreement. Dealer acknowledges that this Agreement creates a security interest under the Personal Property Securities Act (2009) (Cth) (the ‘PPSA’) in the Products and any other products to be supplied in the future and agrees that Supplier may file such financing statements as Supplier deems necessary to perfect such security interest and register the security interest on the PPSA register. Dealer must not charge the Products in any way or grant or otherwise give any interest in the Products while they remain the property of Supplier, nor will it allow a third party to acquire any interest in the Products. If Dealer fails to comply with any obligation under this Agreement, then, without limiting the remedies available to Supplier, Dealer must, on request from Supplier return the Products on which there are outstanding amounts owing and Dealer authorises Supplier and any person authorised by Supplier to enter premises where the Products may be located to take possession of the Products and Supplier may retain, sell or otherwise dispose of the Products. Dealer agrees that to the extent permitted under the PPSA, Dealer has no right (i) to receive notice of removal of an accession under the PPSA; (ii) under Chapter 4 of the PPSA; or (iii) under the PPSA to receive a copy of any verification statement or financing charge statement under the PPSA. Dealer must unconditionally ratify any actions taken by Control 4 under this clause. In this clause 2.6, words defined in the PPSA have the same meaning when used in this clause.
3.1. Form of Purchase Order. Orders for Supplier’s Products may be initiated by purchase orders in the format designated by Supplier from time to time, which may include electronic purchase orders (each a “Purchase Order”). All electronic Purchase Orders shall be sent to the email address as designated by Supplier in writing from time to time. Supplier shall have the right to accept or reject, in its sole discretion for any or no reason, any Purchase Order. Each Purchase Order submitted by Dealer will be binding upon the Parties only upon written or electronic acceptance by Supplier, or upon shipment (but if accepted by shipment, then only to the extent of the Products actually shipped). The terms and conditions of this Agreement will apply to all Purchase Orders and will supersede all terms or conditions set forth on any Purchase Order submitted by Dealer, notwithstanding Supplier’s acceptance or fulfillment thereof.
3.2. Forecasts. From time to time, Supplier may request that Dealer provide Supplier with a written or electronic forecast of anticipated future orders for a particular calendar quarter within a specific time limit upon written or electronic notice to Dealer. Dealer agrees to use commercially reasonable efforts to provide such forecast to Supplier in a timely manner.
3.3. Cancellation of Purchase Orders. Supplier reserves the right to cancel any pending Purchase Order(s) if Dealer fails to pay any amount owed to Supplier when due, or if Dealer breaches or otherwise fails to comply with this Agreement, or if Dealer fails to meet credit requirements or limitations reasonably established by Supplier from time to time.
3.4. Shipments; Expedited Delivery. Supplier will ship the Products Ex Works (Incoterms 2020), with reasonably appropriate packaging, by reputable carrier, to the address or location designated by Dealer in the Purchase Order. Title to the Products, including risk of loss, will pass to Dealer upon delivery of the Products by Supplier to the carrier at Supplier’s point of shipment. Supplier shall have no responsibility to insure any shipment. Supplier will use commercially reasonable efforts to fulfill any request by Dealer for expedited shipment. Additional charges will apply to account for the increased cost of any such expedited delivery. Shipping terms, including cost, shall be as set forth in the applicable Supplier price list or in the online store hosted by Supplier.
4.1. General Payment Terms. Payment for any Purchase Orders shall be due prior to Product shipment, unless otherwise agreed in writing by Supplier or set forth in a dealer program or promotion in which Dealer is an authorised participant. Interest shall accrue on overdue accounts at the rate of 1.0% per month or, if lower, the maximum rate allowed by law. Supplier will charge a fee of $25.00 for each payment made to Supplier that is returned due to insufficient funds.
4.2. Credit Terms. At Supplier’s option, Supplier may extend certain credit terms to Dealer, and shipments may be sent pursuant to such credit terms. Such terms may be set forth in the written materials of a dealer program or promotion in which Dealer is an authorised participant, or, if not, will be established in writing according to Supplier’s standard credit application and agreement. If Dealer defaults in its obligations respecting any such credit terms, Supplier may declare all amounts immediately due and owing, as well as any other remedies pursuant to the credit agreement or at law or equity. Moreover, Supplier reserves the right to limit, with respect to any Purchase Order or shipment, the amount and extent of credit available to Dealer.
4.3. Taxes. Dealer shall pay when due all taxes, fees, levies, duties and other payments required in connection with the importation, distribution and sale of Products, including without limitation any income tax liability arising therefrom.
4.4. Rights. Supplier may suspend or discontinue performance, or suspend, withhold or discontinue any benefit or discount arising under this Agreement, in Supplier’s sole discretion, if Dealer fails to pay any sum when due, or if Dealer fails to perform its obligations under this Agreement and has not cured such failure within ten (10) days of receiving written notice thereof from Supplier. In addition, Supplier may, in its sole discretion, remove, redistribute or re-assign any current or future sales opportunities or leads during any period that Dealer is in breach of this Agreement.
5.1. General Terms. Supplier extends a limited, express product warranty to end-users of the Products. The warranty for the Products is set forth at www.snapone.com/legal/. If a Product is returned to the Dealer from an end-user within the warranty period, Dealer agrees to work with Supplier to process the return and otherwise assist Customers with the limited repair or replacement services as set forth in the product warranty. Dealer shall also have the right to return, subject to terms hereof, for a full credit or refund, any Product that: (i) is shipped in error or was not ordered pursuant to Dealer’s Purchase Order; or (ii) is damaged or defective (but not including damage incurred during shipment). In any of the foregoing events, in order to qualify for a return, credit or refund as to such Product, Dealer shall notify Supplier, including a reasonable explanation of the reason for return and supporting evidence for such explanation, within five (5) days of the receipt of the subject Products, or in the case of non-conformity with the limited warranty, within five (5) days of discovering the non-conformity. Supplier reserves the right to deny any return for which notice is not given within the applicable notification period, or in the case of subsection (ii) above, if the damage is caused by the negligence or willful misconduct of the shipper, Dealer or its representative or agents.
5.2. Return Merchandise Authorization. If Dealer is eligible to return the Products, Supplier will provide Dealer with a Return Merchandise Authorization (“RMA”) number and related return instructions; failure to obtain an RMA number and to comply with the return instructions may result in denial of the return, or a reduction of the credit or refund amount. In addition, Dealer must mail the defective Product to Supplier (i) within sixty (60) days from the date the RMA was issued (RMA numbers are cancelled if the Product is not received within the sixty (60) day period), (ii) with the RMA number clearly marked on the outside of each box being sent to Supplier. Any shipment that does not meet all of the valid claim requirements will be refused by Supplier or assessed a restocking fee at Supplier’s sole discretion. Supplier is not responsible for any refused shipments or any damage caused due to shipping, whether or not it was a valid claim. If upon examination, Supplier determines that any returned Products were improperly returned or were not eligible for return, then Supplier will send the Products back to Dealer and the cost for sending the Products back to Dealer shall be paid to Supplier by Dealer. Upon written or electronic notice to Dealer by Supplier, the foregoing return policy is subject to change or modification from time to time in Supplier’s sole discretion, provided that such change or modification applies equally to Supplier’s other Dealers in the Sales Channel. For purposes of this Section 5.2, the term “defective” shall mean any Product that is visually or operationally not performing in accordance with the limited end-user warranty associated with such Product upon inspection by Dealer. Compliance with these requirements is a condition to coverage and Supplier’s acceptance of any returns.
5.3. No Unauthorised Returns. Dealer shall not return any Product except as expressly permitted under Sections 5.1 and 5.2, and Supplier shall have no obligation to accept any other returns. All returns not in compliance with Sections 5.1 and 5.2 may be accepted or rejected at Supplier’s sole option and shall, at Supplier’s option and in addition to the right of return and other remedies set forth in Sections 5.1 and 5.2, be subject to a handling charge due to Supplier from Dealer of fifteen percent (15%) of the price for unopened Product and thirty percent (30%) of the price for opened Product for the returned Product(s) on the Purchase Order, plus any freight, insurance or similar charges previously paid or incurred by Supplier in connection with the original shipment of such Product(s) to Dealer, and any restocking or other fees Supplier may choose to assess, which shall be paid by Dealer to Supplier within five (5) days upon written or electronic notice of such payment to Dealer from Supplier.
6.1. Supplier IP Rights. The license granted herein shall not be deemed to constitute a transfer, sale or conveyance of any ownership interest in any of Supplier’s intellectual property or other proprietary rights, including, without limitation, any patents, copyrights, trade secrets, or other rights (collectively the “Supplier IP”), all of which are owned by Supplier. Any rights not subject to the license herein are expressly reserved by Supplier. Dealer shall promptly advise Supplier of any improvements, developments or inventions relating to the Products, the Supplier IP or Supplier’s business made by Dealer. All such improvements, developments and/or inventions are the property of Supplier. Dealer assigns all intellectual property or other proprietary rights (including future rights) in any improvements, developments or inventions to Supplier on their creation and waives all moral rights in such. Dealer must do any act, matter or thing necessary to give effect to the assignment including the procurement of any assignments or waivers by any employee or third party contractor. Dealer agrees to execute any and all documentation requested by Supplier and otherwise assist Supplier to perfect Supplier’s rights and interests in such improvements, developments or inventions.
6.2. Restrictions on Use. Except as provided by this Agreement, Dealer shall not use, copy, modify, have modified, license, sublicense, distribute, rent, sell, decompile or reverse engineer any of the Supplier IP, nor shall Dealer create or develop, or attempt to create or develop, any derivative work based in whole or in part on the Supplier IP, or facilitate or assist any third party in doing so. Dealer acknowledges that any license of Supplier IP does not include any license to reverse engineer any Supplier IP or to design or develop or to assist in designing or developing any other product either for itself or for any third party. Dealer shall use commercially reasonable efforts to prevent any unauthorised copying or distribution of the Supplier IP by Dealer, any third party, or their agents.
6.3. Enforcement. Dealer shall promptly notify Supplier if Dealer becomes aware of any person or entity that may be infringing or using unlawfully any Supplier IP. Dealer shall fully cooperate with all efforts of Supplier to protect Supplier IP. Supplier has the sole right to determine whether to take action with respect to any infringement of Supplier IP.
6.4. Trademark Use. Supplier hereby grants Dealer a limited license to use, exhibit and display, reproduce and publish Supplier’s trade names, trademarks and service marks associated with the Products within the Sales Channel, in order to promote and sell the Products within such Sales Channel. Dealer shall comply with Supplier’s trademark usage guidelines as provided from time to time to dealer. Dealer shall not use Supplier’s names, trademarks or service marks, including without limitation the Supplier Marks (as defined in Section 6.5 below) in Dealer’s company name (or in the company name of any subsidiary or affiliate of Dealer), or in any telephone number, Internet domain name or URL. If notwithstanding the foregoing, Dealer has used or does use any of Supplier’s names, trademarks or service marks, including without limitation the Supplier Marks, in Dealer’s company name (or in the company name of Dealer’s subsidiary or affiliate), or in a telephone number, Internet domain name or URL, then upon written or electronic notice by Supplier, Dealer shall promptly do the following: (i) if the use is in Dealer’s company name (or in the company name of a subsidiary or affiliate of Dealer), then Dealer shall cause such company name to be changed so as to remove and discontinue any such use and/or reference; and (ii) if the use is in a telephone number, an Internet domain name or URL owned or controlled by Dealer, or Dealer’s subsidiary or affiliate, then Dealer shall cause such telephone number, Internet domain or URL to be either, at Supplier’s option, transferred to Supplier or otherwise discontinued or modified so as to remove and discontinue any such use and/or reference. If Dealer fails to comply with any of the foregoing requirements within thirty (30) days of written or electronic notice by Supplier, Supplier may terminate this Agreement immediately upon written or electronic notice to Dealer (and without further opportunity to cure as otherwise set forth in Section 11.2 hereof).
6.5. Trademark Ownership. Supplier has and shall retain exclusive ownership of all trademarks, trade names and Product names relating to Supplier or the Products, whether listed in catalog or marketing materials or otherwise (the “Supplier Marks”). Dealer shall not directly or indirectly contest or challenge, or do anything inconsistent with, Supplier’s exclusive ownership of the Supplier Marks. Dealer shall not alter, deface, remove, cover, mutilate or add to the Supplier Marks, except that Dealer may attach labels in the local language, and/or inserts or information in Product containers, as required by relevant regulations, if any.
6.6. Supplier Content. Supplier may provide to Dealer, without limitation, Product advertising and promotional materials, as well as specifications, images, and other textual, graphical and/or multimedia content regarding the Products within the applicable Sales Channel for use in preparing advertising and promotional material (“Supplier Content”). Subject to any limitations which Supplier places on the use of Supplier Content by written or electronic notification to Dealer, Supplier hereby grants Dealer a licence to use, exhibit and display, reproduce and publish (but not to modify, alter or amend) such Supplier Content for the sole purpose of advertising and promoting the Products in the Territory.
Any information marked or identified by Supplier or Dealer as confidential, or regardless of form or marking, is of the nature that a reasonable person would understand its owner would not want it disclosed to the public, will be considered to be “Confidential Information.” Confidential Information shall also include (a) this Agreement and its terms; (b) technical matters concerning Supplier’s trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results, (c) Supplier’s pricing, policies, markets and sales strategies, (d) matters relating to Supplier’s project initiatives and designs, and (e) other information of a similar nature not generally disclosed to the public. Each Party agrees not to disclose the Confidential Information of the other Party except to its own employees or agents who are bound by confidentiality obligations that are no less protective than this Section 7, who have a need to know such Confidential Information in order to perform their responsibilities. Each Party agrees to take at least the same precautions to protect the other Party’s Confidential Information as such Party would utilise to ensure the protection, confidentiality and security of its own confidential information. Confidential Information shall not include any information which (a) is or becomes generally known or available through no act or failure to act by the receiving Party; (b) is already known by the receiving Party at the time of disclosure as evidenced by its written records; (c) is rightfully furnished to the receiving Party by a third party without restriction on disclosure; or (d) is disclosed in response to a valid order by a court or other governmental body, or pursuant to the rules and regulations of any stock exchange or stock association in which the securities of the receiving Party may be traded from time to time, provided that (i) the receiving Party provides the disclosing Party with prior written notice of such disclosure as soon as reasonably possible in order to permit the disclosing Party to seek confidential treatment of such information; and (ii) the disclosure is only made to the extent necessary to comply with the order, law or rules and regulations of the relevant stock exchange or stock association. A Party may, in writing, request either the prompt return or destruction, and a written certification of such destruction, of any Confidential Information provided to the other Party. Each Party further agrees that monetary damages may not alone be a sufficient remedy for unauthorised disclosure of Confidential Information and that the non-disclosing Party shall be entitled to seek all remedies and damages available in law and equity, including but not limited to such injunctive relief as may be deemed proper by a court of competent jurisdiction.
8.1. Product Materials. In its sole discretion, Supplier may provide to Dealer, at no charge, a reasonable number of copies (or links to electronic versions) of any marketing and technical information prepared by Supplier relating to the Products, service manuals, Product specifications, end-user warranties and other Product data and materials within the applicable Sales Channel(s) (collectively the “Product Materials”). Supplier shall provide such Product Materials in English, and may provide them in other languages, in its sole discretion. If Supplier does not produce the Product Materials, or any part of them, in a language required by Dealer, then Dealer may, at its own expense and in good faith consultation with Supplier, translate or obtain the translation of such Product Materials into such other language; provided that Dealer shall be required: (a) to obtain Supplier’s approval, which shall not be unreasonably withheld, of any translation and adaptation of the Product Materials prior to distribution; and (b) to provide Supplier with a worldwide, fully paid up license (with right of sublicense) to each such translation. Dealer shall indemnify and hold harmless Supplier from and against any and all damages, claims, losses or other expenses resulting from any mistake or omission in any translation or adaptation prepared by or on behalf of Dealer.
8.2. Training. Subject to reservation scheduling to ensure space availability, Dealer will be eligible to attend training programs at Supplier’s training facilities at Supplier’s then-current prices. Dealer agrees to make available a reasonable number of its personnel for such training, and agrees that travel and related costs (if any) are Dealer’s responsibility.
9.1. Dealer’s Representations and Warranties. Dealer represents and warrants to Supplier that: (i) Dealer has the authority to enter into this Agreement, and that the persons signing this Agreement on behalf of Dealer are authorised to sign; (ii) Dealer will comply with all applicable federal, state, and local laws at all times, including, obtaining and maintaining all certifications, credentials, authorizations, licenses, permits, safety testing and all regulatory compliance markings at Dealer’s own expense, necessary to perform its obligations under this Agreement; (iii) Dealer will not export or ship any Products outside of the Territory except in strict compliance with any export-related laws and regulations and upon prior written approval of Supplier; (iv) Dealer will exert commercially reasonable efforts to promote and sell the Products within the applicable Sales Channel(s) consistent with Dealer’s sales, marketing and merchandising plans; (v) Dealer will not make false or misleading representations, or otherwise make any disparaging statement, about Supplier or any Product and shall make no representation with respect to the specifications or features of the Products except for those representations that were previously approved in writing or published by Supplier; (vi) Dealer will promptly advise Supplier concerning any information that may come to Dealer’s attention as to charges, complaints, or claims about Supplier or the Products by customers of other persons (vii) Dealer shall abide by the credit policies and credit standards established by Supplier from time to time in Supplier’s sole discretion. (viii) Dealer is in a good and substantial financial condition and is able to pay all its bills when due, and agrees to furnish to Supplier from time to time, as Supplier may reasonably request, financial statements of Dealer and other financial information relevant to the creditworthiness of Dealer; and (ix) Dealer will comply with the Dealer Obligations then in effect (a copy of the Dealer Obligations in effect as of the Effective Date is appended as Section 14 and may be amended according to Section 1.1).
9.2. Insurance. Dealer shall obtain and maintain at all times during this Agreement, and shall deliver to Supplier certificates serving as evidence of, adequate commercial general liability insurance, commercial property insurance, and employer’s liability insurance in amounts specified by Supplier that name Supplier as an additional insured and provide at least thirty (30) days written notice to Supplier prior to any cancellation.
Neither Party makes any representations or warranties, express or implied, regarding the business results that the other Party may obtain as a consequence of this Agreement or the transactions contemplated hereby. Except as set forth in, and only to the extent of, the end user limited warranty, pursuant to which Supplier extends certain limited warranty protection to the end user, the Products are being sold “AS IS,” and Supplier makes no warranty to Dealer, express or implied, including any warranty of merchantability or fitness for a particular purpose. Except with regard to the provisions of this Agreement relating to Confidential Information and indemnification, in no event shall either Party be liable under this Agreement to the other Party for lost profits or lost savings, incidental, indirect, consequential, special, exemplary or punitive damages, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise. Moreover, Supplier’s liability to Dealer shall not exceed in the aggregate the amount paid or owed to Supplier during the prior twelve (12) months from the date such liability arose.
11.1. Term. Unless terminated as provided herein, this Agreement will be effective from the date of the Dealer’s first purchase order with Supplier and shall continue for one year. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive periods of one (1) calendar year (each, a “Renewal Term”) unless terminated at the end of the Initial Term or any Renewal Term by either Party by delivering written or electronic notice of the intent to terminate not less than (or a minimum of) thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable.
11.2. Termination. Either Party may terminate this Agreement at any time without cause upon thirty (30) days written or electronic notice to the other Party. In the event a Party is in material breach of this Agreement, this Agreement may be terminated immediately by the non-breaching Party, provided that notice describing the breach has been provided to the breaching Party and the breaching Party has failed to cure such breach within ten (10) days of its receipt thereof. In the event the Parties enter into a Definitive Agreement, the Definitive Agreement shall apply to future orders, but these terms shall not terminate unless terminated pursuant to this Section 11.
11.3. Accrued Obligations. Termination of this Agreement shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is intended to survive termination pursuant to the terms of this Agreement.
11.4. Effect of Termination. Upon termination of the Agreement, with or without cause, Dealer shall be subject to the rights and obligations of Terminated Status as set forth in Section 14.
Dealer will indemnify, defend and hold Supplier, its parent, affiliates, agents and employees harmless from and against any and all Claims arising from Dealer’s negligence or willful misconduct, and from Dealer’s breach of this Agreement, including, but not limited to, making any false or misleading statements about Supplier’s Product or uses not intended or approved of by Supplier which may or may not result in a claim of infringement. Supplier agrees to give Dealer prompt written notice of any such Claims, to tender the defense to Dealer, to cooperate fully with any investigative or other requests and to grant Dealer the right to control settlement and resolution. Dealer agrees to pay all costs finally awarded by a court of competent jurisdiction or agreed in a settlement of any such Claim, including reasonable attorney fees and costs.
13.1. Assignment. This Agreement and any rights or obligations hereunder may not be assigned by either Party without first obtaining the other Party’s express written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Supplier may assign this Agreement, without obtaining Dealer’s express written consent: (i) to a successor corporation resulting from a merger or consolidation or to a purchaser of all or substantially all of Supplier’s assets or a majority, or controlling interest in Supplier’s voting stock; and (ii) to a present or future subsidiary or affiliate. Any attempted assignment in violation of this Agreement shall be null and void.
13.2. Force Majeure. Neither Party shall be in breach of this Agreement solely due to causes beyond the control and without the fault or negligence of such Party. Such causes may include, but are not restricted to, acts of God or of a public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, earthquakes, quarantine restrictions, strikes, freight embargoes, power failure, failure of subcontracted manufacturer to deliver or, failure of the customary delivery systems, but in every case, the failure to perform must be beyond the control and without fault or negligence of the Party failing to perform. Each Party must inform the other of any Force Majeure event within five (5) business days after such Party became aware, or reasonably should have become aware, of its occurrence.
13.3. Notices. Unless otherwise specified, all notices and other communications which are required or permitted under this Agreement shall be in writing or electronic forms and shall be deemed to have been duly given if hand-delivered or mailed by either registered or certified mail, return receipt requested or by a nationally recognized overnight courier service, receipt confirmed. In the case of notices via first-class mail or courier service, notices shall be deemed effective upon the date of receipt. All written notices shall be addressed to the Parties as set forth on the signature page of this Agreement, unless either Party notifies the other of a change of address in accordance with this Section 13, in which case the latest noticed address shall be used. All electronic notices to Dealer from Supplier shall be sent to the email address as set forth on the signature page of this Agreement. All electronic notices to Supplier from Dealer shall be sent to the email address as designated by Supplier in writing from time to time.
13.4. Relationship of the Parties. The relationship between the Parties shall be that of independent contractors. Nothing herein shall be construed as creating or constituting any agency or employment relationship, partnership, or joint venture between the Parties.
13.5. Governing Law; Jurisdiction. This Agreement, and all claims or causes of action that may be based upon, arise out of, or relate to this Agreement (and any transaction or relation contemplated therein) shall be governed and interpreted under the laws of Utah, United States without regard to its conflict of laws principles. Furthermore, Supplier and Dealer expressly submit themselves to the exclusive jurisdiction of the state and federal courts in Salt Lake City, Utah, United States to resolve any dispute based upon, arising out of, or relating to this Agreement (and any transaction and relation contemplated therein). The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement and to transactions processed under this Agreement. The Parties acknowledge and agree that this Agreement expressly excludes the provisions of the Contracts (Rights of Third Parties) Act 1999 and any amendment thereto.
13.6. Enforceability. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, such provision shall be more narrowly and equitably construed so that it becomes legal and enforceable, or if such construction is not possible, then the provision shall be deemed removed, and, in either case, the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect.
13.7. Compliance with Law. Dealer agrees to comply with all applicable federal, state and local laws at all times, including, without limitation, all applicable import and export regulations of the United States and any other countries as applicable, including obtaining and maintaining all certifications, credentials, authorizations, licenses, permits, safety testing, and all regulatory compliance markings, at Dealer’s own expense, for any export or import requirements resulting from Dealer’s marketing, sale or use of the Products and all applicable data security and privacy laws and regulations related to the sale of the Products by Dealer and the safeguarding, use, or storage of any personal information.
13.8. FCPA and Export Control. Without limiting the obligations of Section 13.7 above: (i) Dealer shall comply with Supplier’s Code of Business Conduct & Ethics, which will be distributed to dealers in digital form periodically, and promptly report to Supplier any request or demand that, if complied with, would amount to a breach of either this Agreement or Supplier’s Partner Code of Conduct available at www.snapone.com/legal/, and (ii) Dealer shall not (a) act in any fashion or take any action that will violate the U.S. Foreign Corrupt Practice Act (“FCPA”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality to assist Dealer or Supplier in obtaining or retaining business or in carrying out Dealer’s duties and activities under this Agreement, and not engage in any activity, practice or conduct that would constitute an offense under the FCPA if such activity, practice or conduct had been carried out in the United States; (b) act in any fashion or take any action that will violate the Australian Criminal Code and the Anti-Money Laundering and Counter-Terrorism Financing Act (Cth.); (c) export, re-export or disclose (directly or indirectly) any of the Supplier’s Products, any product or technical information provided by Supplier, or any portion thereof, to entities on the current U.S. export exclusion lists, to any embargoed countries as specified in the U.S. export laws or in violation of any other applicable law, regulation or government order, regardless of any disclosure made by Dealer to Supplier of an ultimate destination of the Supplier’s Products or any product or technical information; and (d) use deliverables for prohibited nuclear, missile or chemical biological weaponry end-uses. Supplier’s Products may contain encryption technology subject to U.S. and/or other countries’ laws and regulations including the U.S. Department of Commerce Encryption Regulations. Intra-country restrictions may also be applicable regarding use of software containing encryption technology.
13.9. No Waiver. Any of the provisions of this Agreement may be waived by the Party entitled to the benefit thereof. Neither Party will be deemed, by any act or omission, to have waived any of its right or remedies hereunder unless such waiver is in writing and signed by the waiving Party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any other right or remedy, or as to a subsequent event.
13.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original instrument and all of which together shall constitute a single instrument. Execution and delivery of this Agreement by electronic exchange bearing the copies of a party’s signature shall constitute a valid and binding execution and delivery of this Agreement by such party. Such electronic copies shall constitute enforceable original documents.
13.11. Entire Terms; Amendments. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements, negotiations and oral understandings, if any. This Agreement may not be amended, supplemented or modified in any way, except by an amendment in writing and signed by authorised representatives of the Parties. No amendment shall be effected by the acknowledgement or acceptance of a purchase order, invoice, or other forms stipulating additional or different terms. This Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective successors, assigns, heirs, executors, administrators, and trustees.
13.12. Equitable Relief. The Parties agree that a breach of Section 7 (Confidentiality) of this Agreement, or of any provision affecting the ownership of the Supplier IP or Supplier’s intellectual property, shall result in immediate and irreparable harm for which ordinary damages may not be a sufficient remedy. Therefore, the Parties agree that in the event of any such breach, the non-breaching Party may seek equitable relief, including without limitation an injunction or other restraint, in any court of competent jurisdiction, without the necessity of posting any bond, in addition to any other relief to which such non-breaching Party may be entitled at law or in equity.
13.13. Headings. Section headings used in this Agreement are for the purposes of convenience only and shall not affect the legal interpretation of this Agreement. Any typos, spelling errors, incorrect or missing words or the like in the Agreement do not limit or alter the intent of the agreement in any way and upon identification by either Party, both Parties agree to amend or correct the Agreement in writing to represent the original intent.
13.14. Survival. The expiration or termination of this Agreement shall not terminate vested rights of either Party from any liabilities or obligations incurred under this Agreement prior to or which by their nature are intended to survive expiration or termination, including but not limited to provisions relating to confidentiality, indemnification, warranties, and proprietary rights.
Section 14. Dealer Program Obligations
A. To maintain “Active Status”, Dealer must meet the following requirements on an on-going basis:
B. Upon failure to meet any requirement(s) for Active Status and on receipt of written or electronic notice from Supplier and in Supplier’s sole discretion, a Dealer may be placed on “Inactive Status” or this Agreement may be terminated. Upon regaining full compliance with the requirements for Active Status, a dealer may return to Active Status upon written or electronic request to and written or electronic approval from Supplier. While on Inactive Status Dealer:
C. Upon termination of the Agreement (“Terminated Status”), Dealer:
D. In performance under the Agreement, Dealer shall:
Dealer acknowledges and agrees that any data or information related to the end users’ registration of the Products, or the use of the Products will be considered Supplier’s Confidential Information hereunder. Such information may only be used by Dealer for the sole purpose of selling or servicing the Products as set forth hereunder, and Dealer will abide by any applicable laws or regulations related to the transfer, processing or use of any personal information it provides to Supplier or receives from Supplier, and will assist Supplier in its compliance with any such applicable laws or regulations.
Without in any manner prejudicing the right of Supplier to claim that any other breach or default of this Agreement on the part of Dealer constitutes a material breach or default, it is understood and agreed that the failure of Dealer to comply with the provisions of the foregoing subdivisions of this Section 14 shall constitute a material breach and default of this Agreement on the part of Dealer. Upon at least fifteen (15) days prior notice, Supplier may conduct (or have conducted) an audit of Dealer’s compliance with this Agreement. Such audits will not generally occur more than once in any annual period and the right to conduct such audits shall continue for one (1) year following termination of this Agreement.
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