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THIS DISTRIBUTOR AGREEMENT (“Agreement”) is dated
BETWEEN
(1) PUREFOLIO SDN BHD (Company No. 1088035-V), a company incorporated in Malaysia and having its registered office at No. 28, Jalan 12/38B, TSI Business Industrial Park, Batu 6 ½, off Jalan Kepong, 52100 KL, Malaysia (“Company”)
AND
(2) Distributor
Each of the party will be referred to as the “Party” and collective be referred to as the “Parties”.
WHEREAS:-
a) The Company is a private company limited by shares incorporated under the laws of Malaysia and is involved in the carrying on business of creating a family of products that effective at killing bacteria and mould in air spaces on surfaces (“Business”).
b) The Distributor is desirous of being appointed as an ONLINENON-EXCLUSIVE LOCAL DISTRIBUTOR for the products manufactured by the Company as specified in the Schedule (“the said Products“).
c) The parties have agreed to enter into this Agreement upon the terms and conditions hereinafter appearing.
IT IS AGREED as follows:
1. INTERPRETATION
The following rules apply unless the context requires otherwise.
(a) Headings are for convenience only and do not affect interpretation.
(b) The singular includes the plural and vice versa.
(c) A gender includes all genders.
(d) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(e) A reference to a person may include a company, corporation, partnership, unincorporated body or any other entity.
(f) A reference to a Clause is a reference to a clause of this Agreement.
(g) A reference to a Party to this Agreement or another agreement or document includes the Party’s successors and permitted assigns or the Party’s personal representatives (as the case may be).
(h) A reference to an agreement or document is to the agreement or document as amended, novated, supplemented or replaced from time to time, except to the extent prohibited by this Agreement.
(i) A reference to any legislation or statutory provision is to the legislation or provision as amended, substituted or re-enacted from time to time.
2. GRANT OF DISTRIBUTORSHIP
The Company hereby grants to the Distributor the NON-EXCLUSIVE RIGHT during the continuance in force of this Agreement to purchase for distribution and resale throughout online of the said Products subject to the terms and conditions hereinafter appearing.
3. DURATION OF THE DISTRIBUTORSHIP
I) Subject to the provisions in this Agreement, the Company hereby grants to the Distributor a non-exclusive right for a period of 1 years, commencing from the date of this Agreement (“Distributorship Period”).
II) Subject to the provisions in this Agreement, the Distributor may apply for renewal for 1 year subject to 1 month advance written notice by the Distributor before the expiry of the Distributorship Period subject to the Company’s written approval.
4. THE SAID PRODUCTS
The Company may at any time at its absolute discretion vary the range of the said Products by deletion or addition to the existing range of the said Products without notice to the Distributor and shall not be liable in damages or otherwise to the Distributor.
5. PLACING OF ORDERS
5.1 Orders by the Distributor for the said Products shall be made to the Company Two (2) months in advance at the above place of business of the Company or to such other address as may subsequently be notified by the Company and the Company shall sell the products to the distributors in accordance with such orders at such price as may be determined by the Company.
5.2 For avoidance of doubt, the Distributor undertakes and agree to ensure all the payment of each order include but not limited to the orders from Distributor’s clients, representatives and/or assignee shall be transferred, remitted or paid to the Company.
5A. NON-EXCLUSIVE BASIS
5A.1 The Distributor hereby fully agrees and understands that the engagement & appointment of the Distributor for purposes of this Agreement shall be on an “NON-EXCLUSIVE” basis to the Company.
5A.2 Therefore, the Distributor hereby undertakes to the Company that it shall not act as a Distributor or be involved directly or indirectly with any other Company without the prior written consent from the Company.
6. EXCLUSION OF LIABILITY FOR FAILURE TO DELIVER
6.1 Subject to Clause 6 and due compliance by the Distributor of Clause 7 hereof, the Company agrees that at its own cost and expenses to bear the cost of logistic provided that the payment of orders MUST be directly transfer, remit or pay to the Company designated bank account.
6.2 The Company further undertakes to fulfill the orders of the Distributor for the said Products with all reasonable dispatch provided that the fulfillment of such orders would not in any manner adversely affect the interest of the Company as the Company may in its absolute discretion determine provided further that the Company shall not be liable in any way for any loss of trade or profit occurring to the Distributor in the event delivery of the said Products being frustrated or delayed due to any incidents of force majeure as defined in Clause 10 below.
6.3 PRODUCT LIABILITY
The Company hereby agrees to indemnify, defend, and hold the Distributor harmless from any and all costs, expenses, damages and liabilities incurred by the Distributor as a result of any sue claims arising from the defects of the said Products PROVIDED ALWAYS that any defect(s) of the said Products is not due to negligence and ommission of the Distributor and PROVIDED ALWAYS that the defect(s) is the negligence or ommission of the Company.
7. PAYMENT FOR THE SAID PRODUCTS
1. The Distributor agrees to pay or require its buyer to pay for the said Products of the Company ordered directly to the Company’s designated bank account in accordance with the terms and conditions imposed by the Company.
2. It is hereby agreed the Company may at its absolute discretion decline to accept the orders of the Distributor for the said Products in the event of non-compliance by the Distributor in respect of sub-clause (1) above.
8. COVENANTS BY THE DISTRIBUTOR
1. The Distributor hereby undertakes and agrees with the Company that it shall at all times during the continuance in force of this Agreement observe and perform the terms and conditions set out in this Agreement and in particular:-
a) shall use at all times its best endeavors to promote and extend sales of the said Products throughout online to all potential purchasers thereof and work diligently to obtain orders therefor;
(b) shall not be concerned or interested either directly or indirectly in the manufacture production importation or sale of any goods which are like or similar to or which might otherwise compete or interfere with the sale of the said Products;
c) shall not either directly or through any agent:-
i) sell the said Products to any person throughout online knowing or having reason to believe that the said person is a customer of another duly appointed distributor of the Company in respect of the said Products; or
(ii) otherwise engage in any manner of competition with other duly appointed distributor(s) of the Company in the course of promotion, sale or marketing of the said Products throughout online;
d) shall immediately pass to the Company details of any complaints received from the customers or others relating to the said Products;
e) shall promptly bring to the notice of the Company any information received by it which is likely to be of interest use or benefit to the Company in relation to the marketing of the said Products throughout online or otherwise, in particular any information relating to the affairs or business or method of carrying on business of the competitors of the Company and with regards to the said Products;
f) shall in the event of any dispute arising between the Distributor and any third parties including the consumers in relation to the sale of the said Products shall forthwith inform the Company of the dispute and shall not without the Company’s consent in writing take any step or proceedings in respect of or compromise the dispute;
(g) shall not assign transfer charge or in any manner make over or purport to assign transfer charge or make over this Agreement or rights thereunder or any part thereof without the prior written consent of the Company;
(h) shall not appoint sub-agents or sub-distributors thereunder without the written consent of the Company;
(i) shall ensure that the label and packaging of all the said Products are intact and not alter remove or tamper with and shall sell the same in the same packages in which the said Products are supplied to the Distributor;
(j) shall in purchasing the said Products be bound by the Company’s terms and conditions of sale contained in the Sales Order and other documents of the Company as from time to time in force and any modification thereto made by the Company either generally or in respect of any particular purchase and in selling shall contract on like terms to those conditions as from time to time in force together with any general or particular modifications as respects any particular sale and will not make any promises representations warranties or guarantees with reference to the said Products except such as are consistent with those conditions or as are expressly authorised by the Company in writing;
(k) shall not in selling the said Products make any representation or give any warranties other than those contained in the Company’s conditions of sale;
(l) shall comply with all circulars, directives, marketing plans, policies, rules and regulation and fulfill the sales target (if any) for any specified period issued by the Company from time to time;
(m) shall defray all expenses of and incidental to the business of the Distributor;
(n) shall carry on the sales of the said Products to the highest standards of service and not to do anything which may bring the sales of the said Products into disrepute or may have a detrimental effect on the business of the Company;
(o) shall comply with all statutes, bye-laws, rules, regulations and other applicable legal requirements relating to the exportation, importation, sale and distribution of the said Products and obtain (and maintain) all licences, consents and approvals that may be required from time to time by any competent authorities, particularly throughout online;
(p) not make use other than exclusively for the purpose of the sale of the said Products any information relating to the business of the Company or any other confidential information supplied by or on behalf of the Company and ensure that none of the Distributor’s employees makes use of such information other than for such purpose;
(q) shall not incur any liability on behalf of the Company or in any way pledge or purport to pledge the Company’s credit;
(r) shall obtain the Distributor’s supplies of the said Products from the Company only;
(s) shall follow and abide the Company’s direction, promotion, marketing strategy, pricing and every rules and regulations which set by the Company.
2. PROVIDED THAT any act or omission which if it were an act or omission of the Distributor would be a breach of this Agreement on its part shall be deemed to be an act or omission for which the Distributor is responsible if done or omitted by :-
(a) any person who controls or is controlled by the Distributor and for this purpose the word “control” shall include any manner of control whether direct or indirect; and/or
(b) any firm of which the Distributor shall for the time being be a partner or member.
3. In addition and not in derogation of any of the rights and remedies of the Company provided herein, the Distributor shall be liable for and shall indemnify the Company whether during the validity of this Agreement or after the termination hereof against any damage, expense, liability, loss, claim, demand, suit, proceedings or any other form of liabilities criminal or otherwise (including legal fees on a solicitors-client basis) suffered, incurred or brought against or threatened against the Company arising from the act and/or omission on the part of the Distributor or the agents or employees of the Distributor on all matters pertaining to, arising from or incidental to this Agreement. The Distributor shall also be liable for solicitors and client costs in respect of any claim or legal proceedings instituted by the Company against the Distributor in enforcement of or arising out of any provision of this Agreement.
9. RIGHTS AND PRIVILEGES OF THE COMPANY
The Company reserves to itself notwithstanding anything to the contrary herein contained the following rights and privileges: –
(a) to send representative(s) to visit purchasers and potential purchasers of the said Products whether or not accompanied by the Distributor and/or its servant and/or agent;
(b) to vary the range of the said Products in its absolute discretion without notice either by the withdrawal therefrom any class/description/ mode/model/type of products or by the addition thereto of a further class/description/ mode/model/type of the said Products without being liable in damages or otherwise to the Agent;
(c) to vary any or both the Schedules hereto as the Company may in its absolute discretion think fit;
(d) to continue to sell and supply the said Products to the customers throughout online whether by itself or through agents, distributors, stokists or otherwise and no right to commission shall accrue to the Distributor in respect of such sale.
10. TERMINATION OF AGREEMENT
(1) The Company shall have the right at any time by giving notice in writing to the Distributor to terminate this Agreement forthwith in any of the following events:
(a) If the Distributor commits a breach of any of terms or conditions of this Agreement; or
(b) If the Distributor enters into liquidation whether compulsorily or voluntarily otherwise than for the purposes of amalgamation or reconstruction or compound with its creditors or have a receiver appointed of all or any part of assets or take or suffer any similar action in consequence of debt or in the case of natural persons or a partnership if the Distributor or any of the members of the firm become insane bankrupt or insolvent or enter into any arrangement with the Distributor’s creditors or take or suffer any similar action in consequence of debt.
2. Subject to the preceding provision, each party shall have the right to determine this Agreement by giving thirty (30) days’ notice in writing to the other party.
(3) Provided always that the termination of this Agreement shall not affect :-
(a) any of its provisions which are expressed to operate or have effect afterwards; or
(b) any right of action already accrued to the Company in respect of any breach by the Distributor.
(4) The Distributor shall on the termination of this Agreement have no right to any compensation for goodwill customers expenses or any other payment of any nature from the Company.
(5) In the event of termination of this Agreement by whatsoever reasons the Company shall not be bound to purchase back the stock of the said Products from the Distributor. For avoidance of doubt, both parties understand and agree that orders by the Distributor for the said Products prior termination of this Agreement shall not be canceled, rejected and refunded by either party.
11. FORCE MAJEURE
(1) The Company shall not be in breach of its obligations under this Agreement if it is unable to perform any of its obligations hereunder as a result of the occurrence of an event of force majeure.
(2) Force majeure shall mean:-
(a) any event or circumstance or combination of events and circumstances which is unforeseeable and/or beyond the control of the Company and which causes or results in default or delay in the performance by the Company of any of its obligations hereunder when the event, circumstance, default or delay could not have been prevented, overcome or remedied by the exercise of a reasonable standard of care;
(b) fire, lightning, explosion, flood, earthquake, storm, hurricane, riots, civil commotions, malicious damage, natural disaster (including but not limited to earthquake, flood and exceptionally inclement weather and subterranean spontaneous combustion), sabotage, act of public enemy, act of God, war (declared or undeclared), revolution, invasion, armed conflict, act of foreign enemy, riot, insurrection, act of terrorism, sabotage or criminal damage, radioactive contamination, chemical contamination or ionising radiation, toxic or dangerous chemical contamination or force of nature;
(c) action or inaction by a court, government or authority (including denial, refusal, failure to grant or revocation of any permit, authorisation, licence, approval or acknowledgement);
(d) strike, lockouts, industrial disputes, labour disputes, industrial difficulties, labour difficulties, work bans, blockages or picketing;
e)unforeseen circumstances, that means circumstances which could not have been reasonably foreseen and which are outside the control of the Company and that may:-
(i) materially alter the costs to the Company in producing and manufacturing the said Products;
(ii) materially alter the environment in which the Company carry out its obligation; or
(iii) cause material hardship to the Company.
(3) If an event of force majeure occurs by reason of which the Company is unable to perform any of its obligations hereunder, the Company shall inform the Distributor as soon as practicable of the occurrence of that event of force majeure.
12. CONFIDENTIALITY
The Distributor undertakes that it shall not at any time during the continuance of this Agreement divulge any information in relation to the Company’s affairs or business or method of carrying on business.
13. NO PARTNERSHIP OR AGENCY CREATED
It is understood and agreed between the parties hereto that this Agreement shall not be construed as constituting the Distributor as agent or partner of the Company for any purpose whatsoever and nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute the Distributor as agent of the Company for any purpose whatsoever and the Distributor shall have no authority or power to bind the Company or to contract in the name of and create a liability against the Company in any way or for any purpose.
14. NO WAIVER
No failure or delay on the part of the Company in exercising any power or right hereunder shall operate as waiver thereof, nor shall single or partial exercise of such right and power preclude any other right or power herein.
15. VARIATION ETC
(1) No variation or modification of any of the terms of this Agreement shall be valid unless in writing and signed by or on behalf of the parties hereto.
(2) If any clause or paragraph of this Agreement is held invalid or is otherwise unenforceable the remainder of this Agreement shall not thereby be invalidated.
16. NOTICES
All notices herein shall be in writing and shall be made by facsimile with registered mail confirmation, or by registered mail and addressed to the party at its address first written above or at such other last known address and shall be deemed to have sufficiently served or given for all purposes herein:-
a) on the date of transmission if given by facsimile transmission with registered mail confirmation; and
(b) on the fifth (5th) day after being mailed if delivered by registered mail.
17. RESTRICTION OF TRADING
The Distributor, specifically those who has conducted this Business for more than five (5) years shall not during the period of one (1) year after the determination of this Agreement for any reason whatsoever be associated whether as principal distributor agent or employee in the manufacture sale or distribution in the said Territory of any products of a like or similar kind to or designed to perform functions like or similar to the said Products of the Company of which the Distributor is at any time distributor under this Agreement without the prior consent in writing of the Company.
18. SUCCESSORS BOUND
This Agreement is binding upon the permitted assigns and successors-in-title of the parties hereto.
19. GOVERNING LAW
It is agreed between the parties that the execution, construction, performance, dispute settlement and any matter arising from or relating to this Agreement shall be governed by the laws of Malaysia.
20. DISPUTE SETTLEMENT
Any dispute or differences arising from or relating to this Agreement shall be referred to the court having competent jurisdiction over the same in Malaysia and for this purpose, the Distributor hereby declares that it unconditionally and irrevocably submits to the exclusive jurisdiction of the courts in Malaysia and that the laws of Malaysia shall be applicable in the determination and resolution of any such dispute arising herefrom and the award and decision of the courts in Malaysia shall be final and binding on the Distributor.
21. DEFINITIONS AND INTERPRETATIONS
In this Agreement unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided:-
(a) the expression “the Company” and “the Distributor” shall include the respective successors personal representatives and assigns of the Company and the Distributor and where the Distributor is a partnership or two or more persons are included in the expression “the Distributor” this Agreement binds such partners persons jointly and severally;
(b) words importing the masculine gender include the feminine and neuter gender;
(c) words importing and singular number include the plural and vice versa;
(d) words applicable to human beings include any body of persons corporate or unincorporate; and
(e) The headings of the clauses are inserted for convenience only and do not affect the construction of this Agreement