8.3 Without limiting any other Clause of this Agreement, Dulux Avista will be entitled to terminate this agreement by notice in writing to the Applicator at any time after the happening of any of the following events:
(a) In Dulux Avista’s opinion, the Applicator is in breach of any obligations of this Agreement;
(b) the Applicator engages in any fraudulent conduct or wilful misstatement in its business;
(c) the Applicator is in breach of any of the obligations of this agreement such that, in Dulux Avista’s opinion, the reputation of the Trade Mark, Dulux Avista or any business of Dulux Avista or DuluxGroup is or is likely to be damaged;
(d) the Applicator is convicted of a serious offence or an offence that is substantially related to the Applicator’s business which is punishable by a term of imprisonment;
(e) the Applicator operates the business in a way that endangers public health or safety; or
(f) the Applicator dies, ceases to be of full legal capacity; or
(g) the Applicator ceases to maintain a solvent Dulux Avista trading account; or
(h) the Applicator:
(i) stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(ii) is insolvent within the meaning of section 95A of the Corporations Law;
(iii) must be presumed by a court to be insolvent by reason of section 459C(2) of the Corporations Law;
(iv) fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Law);
(v) has an administrator appointed over all or any of its assets or undertaking or any step preliminary to the appointment of an administrator is taken;
(vi) has a controller within the meaning of section 9 of the Corporations Law or similar officer appointed to all or any of its assets or undertaking; or
(vii) has an application or order made, proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them.
8.4 Any termination of this agreement will be without prejudice to the rights and obligations of the parties accrued at the time of termination.
8.5 Upon the expiration or termination of this agreement for any reason whatsoever, the Applicator:
(a) must immediately cease to use the Trade Mark and any Dulux Avista Accredited representations in any manner whatsoever and remove any reference to the Trade Mark and any Dulux Avista Accredited representations which may exist on the Applicator’s premises, vehicles, stationery, invoices, labels, clothing, websites or other promotional or display materials; and
(b) Must immediately cancel all references to the Trade Mark and any Dulux Avista Accredited representations on boardings or other advertisements or in directories or other books of reference on a reprinting which are related to or connected to the Applicator;
(c) must immediately return to Dulux Avista all catalogues, brochures and other promotional or support material bearing the Trade Mark and any Dulux Avista Accredited representations which have been provided by Dulux Avista;
(d) must, if requested by Dulux Avista, provide Dulux Avista with a statutory declaration confirming compliance with Clauses 8.5(a), (b) and (c); and
(e) other than termination under Clause 2.3, will not be entitled to a refund of the Accreditation Fee.
9.1 This Agreement and any conditions or warranties implied by law that are not capable of being excluded or modified constitute the entire agreement between the parties with respect to its subject matter. This Agreement, unless otherwise specifically provided, supersedes all prior agreements and understandings between the parties in connection with it.
9.2 No amendment or variation of this Agreement is valid or binding on a party unless made in writing executed by both parties.
9.3 The rights and obligations of the Applicator under this Agreement are personal and not proprietary. The Applicator may not assign, transfer, encumber or otherwise deal with any of its rights or obligations under this Agreement without the prior consent of Dulux Avista. Dulux Avista may assign any of its rights under this agreement without Applicator’s consent to a Related Body Corporate.
9.4 Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability and does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
9.5 If any provisions of this Agreement are incompatible with any applicable laws or regulations, including applicable competition and trade practices legislation and regulations, then the parties agree to negotiate in good faith any amendments to the Agreement that may be necessary to ensure compliance with those laws and regulations.
9.6 This Agreement is governed by the laws of Victoria. Each party submits to the nonexclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
9.7 Any notice, request or demand given or made under this Agreement must be in writing and signed by a person duly authorised by the sender and shall be properly served if posted, faxed or otherwise delivered to the address or fax number of either party as set out on Page 1 of this Agreement, or any other address nominated by Dulux Avista or Applicator as its address for service from time to time.
10. DISPUTE RESOLUTION
The Applicator agrees that it will abide by the Dulux Avista Accredited dispute resolution policy set out in Schedule 3
11. PRIVACY NOTICE AND CONSENT
Your privacy is important to us: In the course of applying to be part of the Dulux Avista Accredited Applicator program, you may provide us with ‘personal information’ within the meaning of the Privacy Act. We may use this information to disclose it to third parties in order to administer and promote Dulux Avista products, the Dulux Avista Accredited Applicator Program and relevant business services. Dulux Avista (and its marketing and communications agencies on its behalf) may also use your name and contact details to send you information for this purpose. Dulux Avista may also disclose the information to contractors, market research organisations, marketing and communications agencies and related bodies for this purpose. If you do not provide the personal information requested, we will not be able to fulfil your request. We may also exchange your personal information with other related companies and our service providers, such as delivery companies and technology providers.
Dulux Avista will from time to time make recordings in various formats. These recordings include photographic or movie film, videotape, audiotape, computer files and printed matter, for the purpose of marketing and promoting DuluxGroup and its Dulux Avista Accredited Applicator Program, in any format or media now known or later created, including on websites. Please read Schedule 4 – Dulux Avista Accredited Applicator Talent Release Form for full details. Acceptance of the member terms and conditions includes acceptance of the Talent Release conditions.