DISTRIBUTION AND MARKETING AGREEMENT
AN AGREEMENT made on the day of …
Between
…., a Company incorporated in Malaysia and having its registered address at
(hereinafter called “the First Party” which expression shall where the context so allows include the assigns of the First Party) of the one part
And
……., a Company incorporated in Malaysia and having its registered address at
(hereinafter called “the Second Party”) which expression shall where the context so allows include the permitted assigns of the Second Party) of the other part.
NOW THIS AGREEMENT WITNESSETH as follows:-
APPOINTMENT
1. The First Party hereby appoints the Second Party to be:-
(i)its non exclusive distributor and the Second Party agrees to act as such to establish promote market and extend the sale of all the range of concrete products of the First Party (hereinafter called “the products”) in Malaysia (hereinafter called “the Territory”).
(ii) The relationship of the Second Party to the First
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Party shall be that of an independent contractor purchasing the Products for resale and being rewarded by its profit on such resale and the Second Party shall not (except as herein expressly provided) be entitled to any remuneration or reimbursement of expenses from the First Party and nothing herein shall constitute any contract of Agency or partnership between the First Party and the Second Party. Nothing herein shall confer any right or interest in the Second Party in any trade mark or brand name of the First Party.
DUTIES OF THE SECOND PARTY
2. The Second Party shall:-
(a)diligently promote the interest of the First Party and shall use its best endeavours to sell the Products within the Territory and maintain the reputation of the Products associated with the First Party;
(b)not do anything which may prevent or hinder the development or cause injury to the reputation of the First Party’s trade in the Territory;
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(c)at all times maintain a comprehensive stock of Products at a level adequate for the requirements of the Territory;
(d)not in any way modify the Products without the First Party’s written consent and in particular shall not carry out any,
(i)repacking of the Products;
(ii)make any marking on the Products sold.
(e)be in no way the legal representative of the First Party and have no right or authority to assume any obligations or make any representation of any kind which are or might be binding upon the First Party, and this Agreement shall not permit or empower the Second Party to undertake financial, or other responsibility, or to contract debts, or incur liabilities of any kind in the name of, or as distributor for or on behalf of, the First Party, or to pledge the credit of the First Party in any way.
(f)not assign, transfer or in any manner make over this Agreement or any right or obligation hereunder to any person or persons or organisation
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whatsoever without the consent in writing of the First Party;
(g)report on Market Opportunities and Competitor activity on a such intervals as the First Party may reasonably require;
(h)keep confidential any information provided by the First Party (including prices of the Products, plans for product development, etc), acquired in the course of this Agreement and shall not disclose or make known any of such information to any individual firm or corporation except when authorised in writing to do so by the First Party;
(i)upon termination of this Agreement, for whatever reason, return to the First Party, without delay, such confidential documents (including price list or such other documents) as the First Party requires;
(j)after termination of this Agreement not to use the name of the First Party or refer to itself as being in any way associated with the First Party.
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DUTIES OF THE FIRST PARTY
3. The First Party shall during the continuance of this Agreement:-
(a)sell the Products to the Distributor at the First Party’s prices applicable at the time;
(b)provide the Distributor with up to date price lists and discount schedules and notify the Distributor at the earliest opportunity of any price changes;
(c)at the First Party’s own expense supply the Second Party with such amount of sample of the Products pamphlets catalogues and advertising material in any language as it considers in its discretion to be reasonably sufficient with a view to promoting sales of the Products within the Territory;
(d)whenever the First Party considers it necessary send at its own cost a representative to visit the Second Party for the purpose of promoting sales of the Products;
(e)shall give to the Second Party any information and advice reasonably requested by the Second Party in connection with the marketing advertising,
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packaging and Product content in respect of the Products and any reasonable guidance requested by the Second Party regarding marketing.
PERIOD
4. This Agreement shall commence on the day of
200… and shall continue for a period of …. years unless terminated by …… (..) months notice in writing given by either party hereto to the other for breach of any of the terms hereof.
If the second Party has observed and performed the terms and obligations of this Agreement the Second Party shall have an option to be exercised in writing … (..) months prior termination by effluxion of time of this Agreement to continue with the distributorship for the Territory for another …. (..) years subject to mutual agreement on the price of the Products but all other terms and conditions shall remain the same.
RESTRICTION ON DEALING IN OTHER PRODUCTS
5. The First Party agrees that the Second Party may engage in the selling manufacturing or otherwise being concerned in the sale and manufacture of products similar with or in the same class of merchandise as the products of the First Party.
NO RESTRICTION ON FIRST PARTY SELLING WITHIN TERRITORY
6. The Second Party agrees that the First Party shall be entitled to sell the Products to any other person, company or firm in the Territory or to any person, company or firm outside the Territory.
SUPPLY OF PRODUCTS AND ORDERS
7. The First Party undertakes to supply to the Second Party such reasonable and adequate supply of the Products as shall be ordered by the Second Party. The Products shall be properly packed and secured in such a manner as to reach the destination in good condition under normal condition of transport and shall be delivered by the First Party to the place or places and in the manner specified in the order or as subsequently agreed.
PRICE/PAYMENT TERMS/OTHER CONDITIONS OF SALE
8.(i)The First Party shall sell the Products to the Second Party during the duration of this Agreement at the price as contained in the Schedule hereto.
(ii)The Second Party agrees covenants and undertake to pay the First Party for the Products supplied within sixty (60) days of delivery by the First Party.
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(iii)Upon execution of this Agreement, the Second Party shall provide a Banker’s Guarantee to the First Party in the sum of Ringgit Malaysia … (RM…..) as security for the performance of the Second Party’s obligation herein. The terms and conditions of the Banker’s Guarantee is subject to the First Party’s approval.
(iv)The Second Party acknowledges that it owes the First Party a sum of Ringgit Malaysia
(hereinafter called “the said debt”) as of …. The Second Party covenants agrees and undertake that commencing from the date of this Agreement, it will pay the First Party a sum of Ringgit Malaysia … (RM…) each month until the said debt and all interest (if any) has been fully paid to the First Party. For the avoidance of doubt, it is expressly agreed and understood that any payment of the said debt is separate and independent from the Second Party’s obligations to comply with Clause 8 (ii) herein.
APPOINTMENT OF AUTHORISED DEALERS
9. The Second Party shall have the right to appoint retail
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traders for the sale of the Products in the Territory.
FORCE MAJEURE
10.1No party shall be liable for failure to fulfil any obligation under this Agreement to the extent that such failure is due to unforeseen circumstances beyond the reasonable control of the party concerned inlcuding but not limited to inclement weather, acts of god, strikes, war, governmental action or policy and any other cause or causes whether similar or dissimilar to those herein specified.
10.2In the event of the occurence of any of the above circumstances set out in Clause 10.1 above, the party prevented from fulfilling its obligations shall give written notice and full particulars thereof as soon as practical to the other party.
10.3If as a result of legislation or governmental action including but not limited to termination of the relevant licences of any party for any reason whatsoever and the said party is precluded from receiving any benefit to which it is entitled, the said party shall use their best efforts to restore itself to the same relative position as previously
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enjoyed by them hereunder and in the event of failing to achieve the same, this Agreement shall be terminated without prejudice to either party herein claiming against the other for any antecedent breach.
WARRANTY
11. (a)The First Party shall ensure that all Products are in accordance with the general description and packaging under which they are ordered and warrants that the Products shall be in good and merchantable condition in conformity in all respects with the specifications agreed by the parties hereto;
(b)The First Party will indemnify the Second Party against all claims and demands arising out of any breach by the First Party of the provisions of the preceding Clause and against all costs reasonably incurred by the Second Party incidental to or consequent on any such claims and the Second Party shall immediately inform the First Party of any threat or matter likely to lead to a claim under this Clause.
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REPLACEMENT OF PRODUCTS
12. If any of the Products shall have to be withdrawn or cannot be sold by the Second Party due to complaints and/or defects save for wrongful storage or defects caused by the Second Party’s and or its servants or agents own omission or negligence, the First Party agrees to replace free of charge the products so withdrawn within thirty (30) days of notification being received from the Second Party.
TERMINATION
13.1 (i)In the event of any breach of any term and/or conditions of this Agreement and/or if either party becoming insolvent or going into liquidation (other than for the purposes of amalgamation or reconstruction), or making any arrangement with its creditors, or having a receiver, administrator or manager appointed or undergoing a major change of control or management or being guilty of any breach of the terms or conditions of this Agreement the other party shall be at liberty to terminate this Agreement forthwith by notice in writing.
(ii)Upon termination of this Agreement:-
(a)the First Party shall have the option to
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purchase from the Second Party at the total landed cost to the Second Party all or any saleable Products then in the Second Party’s possession;
(b)neither party shall have a claim against the other arising from such termination apart from:-
(i)claims by the First Party for amounts due for Products supplied to the Second Party; and
(ii)claims by the Second Party in respect of Products repurchased by the First Party
under paragraph (a) above.
13.2 Any termination of this Agreement (whether under this section or otherwise) shall not relieve either party of any obligation under this Agreement which is expressed to continue after termination and failure by either party in any one or more instances to terminate this Agreement on account of any default or breach by the other shall not be taken to constitute a condonation or waiver of the same or of any other default or breach by the other.
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13.3 Failure by either party in any one or more instances to terminate this Agreement on account of any default or breach by the other shall not be taken to constitute a condonation or waiver of the same or of any other default or breach by the other.
SEPARABILITY OF TERMS
14. The invalidity or unenforceability for any reason of any part of this Agreement shall not prejudice or affect the validity or unenforceability of the remainder of this Agreement.
NOTICES
15. Any notice required or permitted to be given under this Agreement shall be deemed duly served if sent by registered mail personal delivery or other means whereby receipt is recorded or fascimiled, telexed or cabled to the following addresses:-
(i)………… (M) Sdn Bhd
(ii) ………… (M) Sdn Bhd
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All notices hereunder shall be effective when received at the respective addresses as aforesaid.
AMENDMENT
16. This Agreement may be varied by the written consent of the parties hereof.
LANGUAGES
17. The language of this Agreement and all correspondences between the parties hereto shall be in the English Language.
GOOD FAITH
18. In entering this Agreement the parties hereto recognize that it is impracticable to make provision for every contingency that may arise in the course of the performance thereof. Accordingly the parties hereto hereby declare it to be their intention that this Agreement shall operate between them with fairness and without detriment to the interest of either of them and if in the course of performance of this Agreement unfairness to any party is disclosed or anticipated then the parties hereto shall use their best and zealous endeavours to agree upon such action as may be necessary and equitable to remove the cause or causes of the same and the parties shall at all times during the continuance of this Agreement conducts themselves in a manner which reflects the spirit of this Agreement.
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ASSIGNMENT
19. Neither party hereto shall assign or transfer their rights, benefits, obligations herein without the other party’s prior written consent.
ARBITRATION
20. All disputes, if any, in connection with this Agreement shall be settled amicably through friendly negotiations. Where no settlement can be reached the dispute/s shall be submitted for arbitration. The arbitration shall take place in Kuala Lumpur and conducted by the Arbitration Committee. The decision of the Arbitration Committee shall be accepted as final and binding upon both parties. Arbitration expenses shall be borne by the losing party.
COSTS AND EXPENSES
21. Each party shall bear their own costs (including Solicitors fees) incidental to the preparation of this Agreement.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands the day and year first abovewritten.
Signed by )
for and on behalf of )
)
SDN BHD in the presence of:- )
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Signed by )
for and on behalf of )
)
in the presence of:- )
