Terms and Conditions Governing The Relationship Between Raqtive Resources Sdn Bhd (“Principal”) and The Person Intending To Become a Distributor Of RAQTIVE® Products (“Distributor”)
- INTERPRETATION AND DEFINITIONS
1.1 BY CLICKING ON THE ACCEPTANCE OR AGREEMENT BUTTON, THE DISTRIBUTOR ACKNOWLEDGES THAT THE DISTRIBUTOR HAS FULLY READ AND UNDERSTOOD THE TERMS AND CONDITIONS HEREIN CONTAINED AND AGREES, CONSENTS AND ACCEPTS TO BE BOUND BY THE SAME.
1.2 In this Agreement and the Schedules, unless the context otherwise requires:
“Agreement” means these terms and conditions governing the relationship between the Principal and the Distributor;
“Commencement Date” means the date upon which the Principal accepts the appointment of the Distributor through the fulfilment of the first order made by the Distributor;
“Licensed Marks” means the RAQTIVE® and RAQTIVE trade and service marks (which includes, without limitation, logos, devices, emblems) used by the Principal in relation to the Products that will be licensed by the Principal to the Distributor under Clause 8;
“Parties” means the parties to this Agreement and “Party” means either of them;
“Payment Terms” means the terms for payment by the Distributor of the price payable for the Products which shall be cash before delivery or such other terms as may be specified by the Principal from time to time;
“Products” means the products listed in the Website as may be amended from time to time or such other products that are offered by the Principal or any other product that bears the RAQTIVE® trademark or service mark;
“Product Prices” means the prices of the Products listed in the Website and as may be amended by the Principal in accordance with Clause 5 from time to time;
“Signing Up Commitment” means the commitment required to be performed by the Distributor as may specified by the Principal as a pre-condition to being appointed as a distributor of the Products;
“Specified Margin” means the margin specified by the Principal from time to time;
“Term” means the period commencing from the Commencement Date and ending upon the termination of this Agreement, whichever is sooner;
“Territories” shall mean the countries and territories as may be approved by the Principal and “Territory” shall mean any of them; and
“Website” means the website operated by the Principal with the URL <www.raqtive.com>.
2.1 The Principal hereby appoints the Distributor as its non-exclusive distributor for the distribution of the Products in the Territories and the Distributor hereby agrees to act in that capacity, subject to the terms and conditions of this Agreement.
2.2 The Distributor shall not:
(a) obtain the Products for resale from any person, firm or company other than the Principal;
(b) advertise, promote, sell or distribute the Products in any state or country which is outside the Territories unless the Distributor executes a separate written agreement with the Principal in relation to such other state or country;
(c) sell or provide the Products to any person who intends to re-sell or causes, enables or allows the Products to be resold outside the Territories;
(d) duplicate, or otherwise copy or reproduce any of the Products or sell or distribute other products which, in the Principal’s reasonable opinion compete with the Products or otherwise copies or reproduces or copies the get-up or trademarks of the Products; and/or
(e) sell any products that, in the absolute discretion of the Principal, compete with the Products.
2.3 Unless waived in writing by the Principal, the Distributor shall comply with the Signing Up Commitment requirements as a pre-condition of being appointed as a distributor of the Products.
- DELIVERY OF THE PRODUCTS
3.1 The Principal shall supply the Products to the Distributor in accordance with the Distributor’s written and signed orders (or orders made via the Website) placed with it from time to time during the continuance of this Agreement upon the terms and subject to the conditions of this Agreement.
3.2 Each order shall specify the type, quantity and aggregate price of the Products ordered, the delivery address and the delivery date (if not meant for immediate delivery) thereof.
3.3 No order shall be binding on the Principal until accepted by the Principal in writing (or via the confirmation of order through the Website), and the Principal shall have no liability to the Distributor with respect to orders which are not accepted. Notwithstanding the aforesaid, all orders shall be subject to availability of the ordered Products and the Principal shall be free to reject or accept any such orders.
3.4 No partial shipment of an order shall constitute acceptance of such entire order. The Distributor acknowledges that delivery dates indicated by the Principal are estimates only. Notwithstanding any provision of this Agreement, the Principal reserves the right not to ship any order placed by the Distributor, even if accepted by the Principal, if any amount owing to the Principal is overdue.
4.1 The Distributor shall inspect all Products within 5 days of delivery in order to ascertain whether there are any defects in the Products. In the event that there are defects in the Products, the Distributor shall report to the Principal in writing of such non-compliance or defects within the stipulated period. If no report is received by the Principal within such 5 day period the delivery will be deemed accepted.
4.2 The risk of loss or damage to the Products shall pass to the Distributor on delivery. The title to the Products shall pass to the Distributor at the time the Principal has received payment in full for the Products, therefore any Products received and held by the Distributor prior to payment in full for the Products shall be held by the Distributor for and on behalf of the Principal until further instructions from the Principal. The title to and the risk of loss or damage of any Products which are rejected or returned by the Distributor shall revert to the Principal upon receipt of the returned Products by the Principal.
5.1 The Principal shall sell the Products to the Distributor at the Product Prices less the applicable Specified Margin. The Distributor shall sell the Products to customers in the Territories at the Product Prices which shall be inclusive of and all sales tax, goods and services tax, value-added tax or and any other tax of a similar nature payable in connection thereto.
5.2 Unless otherwise agreed between the Parties in writing, the Distributor shall be responsible for customs clearance of all Products upon arrival in each Territory and shall be responsible for all clearance costs (including any taxes and duties levied by the customs and excise authorities in the Territory for the importation of the Products), handling charges, freight and other costs in relation to the delivery of the Products.
5.3 The Principal may revise the Product Price at any time by displaying the said revised Product Price on the Website. Unless otherwise agreed to by the Parties in writing and/or save in accordance with the terms of this Agreement, the Parties hereby agree that any change to any Product Price shall take effect such that the Specified Margin shall remain unchanged.
5.4 The Principal shall render on the Distributor an invoice for the aggregate price for the Products purchased by the Distributor for each delivery. The Principal’s price for the Products shall include Malaysian Government imposed government sales taxes but shall not include foreign Government taxes (including without limitation sales, service, use, excise, withholding and value added taxes) or duties imposed by any governmental agency that are applicable to the import, licence or purchase of the Products (other than taxes on the income of the Principal), and the Distributor shall bear all such taxes and duties. When the Principal has the legal obligation to collect and/or pay such taxes, the appropriate amount shall be added to the Distributor’s invoice and paid by the Distributor, unless the Distributor provides the Principal with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, the Specified Margin shall be calculated on the basis of the difference between the amount invoiced to the Distributor and the Product Price.
5.5 All payments made under this Agreement to the Principal shall be made in Ringgit to such account of the Principal and with such bank as the Principal may designate from time to time for such purpose, or by such other means as the Parties may hereafter agree. Time for payment is of the essence of this Agreement and interest at the rate of 1.5% per month will be imposed on any late payment by the Distributor.
5.6 All orders made by the Distributor shall be paid in advance and the Principal reserves the right to withhold any deliveries or to not proceed with any such orders unless payment is made and received by the Principal.
6.1 The Distributor shall use its best efforts to create a demand for the Products in the Territories. The Distributor shall vigorously advertise and promote the Products in a commercially reasonable manner and shall transmit Product information and promotional materials to its customers, as reasonably necessary in order to maximize Product sales in the Territories. The Distributor shall remain fully knowledgeable about the market for the Products in the Territories and shall keep the Principal fully informed with respect thereto.
6.2 In connection with the promotion and marketing of the Products, the Distributor shall:
(a) be entitled to describe itself as the Principal’s “Authorised Distributor” or “Authorised Stockist” for the Products, but shall not hold itself out as the Principal’s agent for sales of the Products or as being entitled to bind the Principal in any way;
(b) comply with all laws, regulations and administrative requirements in each Territory applicable with respect to its obligations under this Agreement and shall promptly advise the Principal of any changes in applicable laws and regulations pertaining to the Products;
(c) make only such representations and warranties concerning the Products to customers as are specifically indicated on the labels, package inserts or packaging of the Products or as otherwise agreed between the Principal and the Distributor in writing;
(d) only use, issue or display advertisements or promotional materials that have been provided by or approved by the Principal; and
(e) bear all costs and expenses in respect thereof.
6.3 Unless otherwise agreed in writing, the Distributor shall distribute the Products in the original packaging and presentation that they shall have been supplied in by the Principal. The Distributor shall not re-package or re-label Products supplied to the Distributor by the Principal without the prior written consent of the Principal.
6.4 The Distributor agrees and understands that it shall not be allowed to sub-contract or otherwise arrange for another person to perform any part of its obligations under this Agreement or to discharge any of its obligations under any part of this Agreement without the prior written consent of the Principal, If consent to the Distributor’s request to sub-contract above is granted, the Distributor agrees and understands that it shall not, at any time whatsoever, be relieved of any of its liabilities or obligations under this Agreement and further, it shall, at all times, be liable to the Principal for any and all of the acts, defaults, omissions, failures or neglect of its sub-contractor(s) or their directors, officers, employees, servants, agents, sub-contractors or any other person duly authorised by them as if they were the acts, defaults, omissions, failures or neglect of the Distributor.
6.5 Further to the above, the Distributor shall at all times be responsible for ensuring the suitability of all its sub-contractors and for ensuring that the work performed by its sub-contractors meets the requirements of this Agreement. The Distributor shall also ensure that each of its sub-contractors is aware of all the terms of this Agreement relevant to the respective sub-contractor’s part in the performance of this Agreement.
6.6 Notwithstanding the provisions of this Agreement, the costs of any free goods or special promotional prices, discounts and/or rebates given by the Distributor in accordance with trading terms approved in writing by the Principal will be absorbed solely by the Distributor.
6.7 The Distributor shall sell the Products directly to direct customers only. The Distributor shall not sell to wholesalers, retailers, other stockists and/or appoint its agent.
6.8 The Distributor shall present the Products fairly to potential customers, not disparage the Products and the Licensed Marks or the Principal in any way and do all things reasonable to promote the reputation of the Products and the value of any Licensed Marks.
7.1 The Distributor will provide the Principal with periodic reports on the sales and inventory transactions relating to the Products. The reports may be electronic and shall be in such format and contain such detail as the Parties may mutually agree.
7.2 The Distributor shall maintain all records of transaction related to the Products in accordance with the laws of the Territory.
8.1 The Principal hereby authorises the Distributor to use the Licensed Marks in the Territories in relation to the Products for the purpose only of exercising its rights and performing its obligations under this Agreement. The Distributor agrees that immediately upon termination or expiration of this Agreement it will discontinue forthwith all use of the Licensed Marks and any other trademarks or tradenames owned or used by the Principal and/or its affiliates and shall not thereafter directly or indirectly sell or distribute any Product bearing trademarks, names or designs confusingly similar to such trademarks or tradenames or otherwise use trademarks, tradenames or designs confusingly similar to the Licensed Marks.
8.2 The Distributor shall not:
(a) alter, remove or tamper with any of the Licensed Marks, numbers, or other means of identification used on or in relation to the Products;
(b) use any of the Licensed Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Principal therein;
(c) dispute the validity of the Licensed Marks;
(d) represent that it is the owner of, or have any rights to, the Licensed Marks or tradenames owned by the Principal and/or its affiliates, whether or not such Licensed Marks or tradenames are registered;
(e) at any time register, or cause to be registered, in any name, any of the Licensed Marks or any trademark confusingly similar thereto including using the Licensed Marks as part of a domain name
8.3 The Distributor hereby acknowledges that, except as expressly provided in this Agreement, the Distributor shall not acquire any rights in respect of the Licensed Marks from the distribution and sales of the Products and the use of the Licensed Marks pursuant to this Agreement.
8.4 The Distributor agrees to enter into any registered user agreement as may be directed by the Principal pursuant to trademark law requirements in the Territory in relation to the use of the Licensed Marks.
9.1 The Distributor hereby agrees and acknowledges to, at all times, release and indemnify the Principal and/or the Principal’s directors, officers, employees, servants, agents, sub-contractors and/or any other person duly authorised by the Principal against all claims, actions and/or demands (including the costs of defending or settling any claim, action and/or demand) which may be instituted against the Principal and arising out of a breach of this Agreement by the Distributor and/or as a result of any action, inaction and/or negligence of the Distributor and/or the Distributor’s directors, officers, employees, servants, agents, sub-contractors and/or any other person duly authorised by the Distributor, if any, and/or of any other person for whose acts and/or omissions, the Distributor is vicariously liable.
9.2 Notwithstanding the generality of Clause 9.1 above, the Distributor further agrees, acknowledges and undertakes, at all times, to indemnify and keep indemnified (on a full indemnity basis) the Principal and/or the Principal’s directors, officers, employees, servants, agents, sub-contractors and/or any other person duly authorised by the Principal from and against all damage, loss and/or liability incurred or suffered as a result or arising from any actions, proceedings, costs, claims, demands, liabilities and/or expenses whatsoever (including all legal and other fees as well as disbursements) sustained, incurred and/or paid by the Principal, whether criminal and/or civil and whether arising directly and/or indirectly in respect of the following:-
- any breach by the Distributor of any of the provisions of this Agreement or of any legislation, law and/or regulation relating, among others, to the distribution of the Products; or
- any wilful, unlawful and/or negligent act or omission of the Distributor.
9.3 The obligations contained in Clauses 9.1 and 9.2 shall survive the termination of the Term.
9.4 THE PRINCIPAL’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION THEREFORE, AND/OR SALE OF THE PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY THE DISTRIBUTOR FOR THE PRODUCT. IN NO EVENT SHALL THE PRINCIPAL BE LIABLE TO THE DISTRIBUTOR OR ANY OTHER ENTITY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR ANY OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT THE PRINCIPAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN OR IN THE WARRANTY FOUND IN THE PRODUCTS. THESE LIMITATIONS SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY THE LAWS OF THE APPLICABLE TERRITORY.
10.1 Any Proprietary Information supplied by one Party to the other shall be maintained and kept confidential at all times (whether during or after the termination of the Term) by the recipient unless and to the extent that disclosure is required by any government or regulatory authority or stock exchange having jurisdiction over such Party in order to comply with any official directive or guideline, whether or not having the force of law.
10.2 For the purposes of this Clause 10, the term “Proprietary Information” shall mean information developed independently by either Party which by its nature is intended to be exclusively for the knowledge of the recipient alone and/or which is of a proprietary and sensitive nature, but shall not include:
(a) information which is already in the public domain;
(b) information which subsequently becomes public other than through the recipient’s own breach of its obligations hereunder.
10.3 Notwithstanding the foregoing, the Principal shall have the right to use and disclose data provided by the Distributor relating to the Products and customer lists and other customer data provided by the Distributor. The Distributor shall ensure that it obtains appropriate consents from its customers for the disclosure and use of such data to or by the Principal.
11.1 This Agreement shall be valid commencing from the Commencement Date until suhc time that it is terminated by the Principal.
11.2 The Principal shall be entitled to forthwith terminate the Agreement:
(a) if the Distributor commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
(b) if the Distributor makes any voluntary arrangement with its creditors or becomes subject to an administration order; or
(c) if the Distributor ceases, or threatens to cease, to carry on business or becomes insolvent; or
(d) if there shall be a change of ownership, control or management in the Distributor.
11.3 Notwithstanding Clause 11.2 above, the Distributor shall also be entitled to terminate this Agreement without cause by serving thirty (3) days written notice to the Distributor.
11.4 Any waiver by either Party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
11.5 Notwithstanding any other remedies and rights which may be available at law or in equity, the specific remedies set out in this Agreement in respect of any breach or default by either Party of any of the provisions of this Agreement or the termination of the Term are exclusive of all other remedies and rights available in respect thereof and save as provided herein to the contrary, neither Party shall have any claim against the other Party for any loss of profit, revenue or consequential loss suffered or incurred by the first mentioned Party.
12.1 Upon termination of the Term for any reason:
(a) the Distributor shall cease to promote, market or advertise the Products or make use of any of the Licensed Marks other than for the purpose of selling the Products to customers whose orders were accepted by the Principal prior to the date of termination;
(b) the Distributor may sell stocks of the Products for which it has accepted orders from customers prior to the date of termination, and neither Party shall be relieved from its obligations under the provisions of Clauses 3, 4, 5, 6, 7, 8, 9, 10 and 11 to the extent that such obligations are required to be performed for the purpose of selling the Products to customers whose orders were accepted prior to the date of termination;
(c) the Payment Terms shall continue to apply to all outstanding unpaid invoices rendered by the Principal in respect of the Products and all invoices to be rendered by the Principal in respect of Products ordered prior to termination but for which the Principal had not rendered an invoice;
(d) subject as otherwise provided herein and to any rights or obligations which have accrued prior to termination, neither Party shall have any further obligation to the other under this Agreement nor shall either Party be liable to the other for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitment in connection with the business or goodwill of the Principal or the Distributor.;
(e) within ten (10) days after the effective date of termination of this Agreement, the Distributor shall provide the Principal a complete inventory of the Products whether in the Distributor’s possession or in transit. Upon any expiration or termination of this Agreement, the Principal may inspect the Distributor’s inventory of Products and audit the Distributor’s records.
12.2 All Licensed Marks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, samples, literature and sales and promotional aids of every kind shall remain the property of the Principal and/or its affiliates. Within thirty (3) days after the effective date of termination of this Agreement, the Distributor shall destroy all tangible items bearing, containing, or contained in, any of the foregoing, in its possession or control and provide written certification of such destruction, or prepare such tangible item for shipment to the Principal as the Principal may direct, at the Principal’s expense. The Distributor shall not make or retain copies of any confidential items or information, which may have been entrusted to it. Effective upon termination of this Agreement, the Distributor shall cease to use all Licensed marks, trademarks and trade names of the Principal and/or its affiliates. During the term of this Agreement and after any termination or expiration of this Agreement, the Principal shall have the right to continue to use and disclose for any purpose customer lists, customer data and other customer information and any other data relating to the Products and provided by the Distributor to the Principal during the term of this Agreement.
12.3 Acceptance of any order form, or sale or licence of, any Product to the Distributor after the effective date of this Agreement shall not be construed as a renewal or extension hereof, or as a waiver of termination of this Agreement.
13.1 Each Party shall bear its own legal and other costs and expenses incurred by it in connection with the negotiation, preparation and execution of this Agreement.
14.1 At all times during the term of this Agreement, the Distributor shall act as an independent contractor and neither the making of this Agreement nor the performance of any of the provisions hereof shall be construed to constitute the Distributor an agent or legal representative of the Principal for any purpose and the Distributor shall have no authority or capacity to bind the Principal or its affiliates, nor shall this Agreement be deemed to establish a joint venture or partnership. The Distributor shall not hold itself out to third parties as the Principal’s agent or legal representative. Each purchase of the Products by the Distributor from the Principal pursuant to this Agreement, each sale of the Products made by the Distributor, to any person, firm or corporation with respect thereto shall be made by the Distributor for its own account as principal at its own expense. The Distributor shall not give warranties, assume or create any obligations, enter into contracts or otherwise incur liabilities in the Principal’s name.
14.2 This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, supersedes all previous agreements and understandings between the Parties with respect thereto, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties. All headings are inserted for convenience only.
14.3 No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies.
14.4 If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of this Agreement. The invalidity, illegality or unenforceability of any provision in this Agreement under the laws of any one jurisdiction shall not in itself affect the validity, legality and enforceability of such provisions under the laws of any other jurisdiction.
14.5 The Distributor shall not assign or transfer this Agreement or any of its rights, interest or obligations under this Agreement without the prior written consent of the Principal.
14.6 This Agreement shall be binding on the heirs, personal representatives, permitted assigns or successors in title of the Distributor as the case may be and the successors in title and assignees of the Principal.
15.1 All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and may be delivered personally or sent by prepaid registered post (by air‑mail if to or from an address outside the recipient’s country) with recorded delivery, or by facsimile transmission or by e-mail addressed to the intended recipient thereof at its address or at its facsimile number or at its e-mail address specified in this Agreement (or to such other address or facsimile number or e-mail address as a Party may from time to time duly notify the other in writing). Any such notice, demand or communication shall be deemed to have been duly served (if delivered personally or given or made by facsimile or e-mail) immediately or (if given or made by letter) 48 hours after posting or (if made or given to or from an address outside the recipient’s country) 10 days after posting and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing the same was duly addressed, stamped and posted or that the facsimile transmission was properly addressed and despatched or that the e-mail was sent (without receipt of any message indicating that the e-mail was not received by the recipient). The addresses and facsimile numbers and e-mail addresses of the Parties for the purpose of this Agreement are specified below:‑
The Principal : Raqtive Resources Sdn Bhd
No.12H Jalan Tandang, Seksyen 51, Petaling Jaya, Selangor, Malaysia
Attention : CEO / General Manager
Facsimile No. : +603 7783 2235
E-Mail : [email protected]
The Distributor : As per the details set out in the form submitted by the Distributor herein.
16.1 This Agreement shall be governed by, and construed in accordance with Malaysian law.
16.2 The Courts of Malaysia shall have non-exclusive jurisdiction with respect to any dispute or action arising out o or in connection with this Agreement and the Distributor agrees to submit to such jurisdiction.
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