DEALERSHIP AGREEMENT
The following
terms and conditions ("Agreement") stipulate your legal rights
and responsibilities as a Dealer (as defined hereunder). By clicking the "I
Agree" button (or any other similar button) below this Agreement, you
shall be deemed as having fully understood and accepted the terms contained
herein and it constitutes a valid, legally binding agreement made between you
and Mliss (M) Sdn.
Bhd. (formerly known as DVZ Mishang (M) Sdn. Bhd.) (Company No.: 201701039230 (1253401-X)), a
company incorporated in Malaysia and having its business address at No. 41,
Jalan Makyong 5A/KU5, Bandar Bukit Raja, 41050 Klang,
Selangor (“Supplier”) (either of which may be referred to individually
as a "Party" or collectively as "Parties").
THIS
AGREEMENT WITNESSETH as follows: -
1.
INTRODUCTION
1.1.
Definitions: In this Agreement, unless the context
otherwise requires, the following words and expressions shall have the following
meanings: -
Words
& Expression |
Meaning |
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“Agreement” |
Means
this Dealership Agreement including any other modifications, variations,
amendments or addition as the Supplier deems fit without obtaining the
Dealer’s prior consent. Such modifications, variations and/or changes shall
be effective and shall bind all Dealers who shall have the responsibility to
review this Agreement regularly after any such changes, whether or not
reviewed by the Dealer, shall constitute his consent and acceptance to such
changes. |
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“Authorised Selling
Platform(s)” |
Means
the e-commerce platforms such as Shopee, Lazada or such other platforms
approved by the Supplier from time to time. |
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“Brand Name” |
means
“Mliss” or any derivatives thereto including the
brand identity, instructions, requirements, methods, specifications and
procedures for the operation of the Business, as authorised
and amended from time to time by the Supplier; |
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“Business” |
Means
the sale of the Product(s) by the Dealer and all matters related. |
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“Dealer” |
Means
the individuals, body corporates or other organisations
that have obtained the Supplier’s authorisation by
agreeing to this Agreement to act as the Supplier’s authorised
dealer to promote and sell the Product(s). |
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“Downline Dealer” |
Means
the Primary Downline Dealer and Secondary Downline Dealer, collectively |
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“Effective Date” |
Means date of this Agreement. |
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“Intellectual Property” |
means the trademarks, confidential information,
trade secrets, know how, the Brand Name, the Guidelines, customer lists,
photographs, images, trade names, symbols, slogans, business identifiers,
social media accounts and other corresponding and proprietary rights, whether
or not registered or capable of registration and all other proprietary rights
whatsoever owned by the Licensor now or in future |
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“Minimum Top Up” |
Means order value of the Product(s)
for every order placed by the Dealer of not less than the following sums according
to the ranking of the Dealer, including any other modifications, variations,
amendments or addition as the Supplier may notify the Dealer in writing from
time to time:-
|
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“Primary Downline Dealer” |
Means a downline dealer who
directly:- (a) procures the Product(s)
from; and (b) remits payments to the Supplier. |
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“Product(s)” |
Means the goods authorised by the Supplier from
time to time for use or sale in association with the Brand Name and in each
case only as approved by the Supplier and subject to change or elimination by
the Supplier. |
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“Secondary Downline Dealer” |
Means a downline dealer who
does not directly:- (a) procure the Product(s)
from; and (b) remit payments to the Supplier but the
Dealer. |
1.2.
Interpretation and Construction: In this Agreement, unless there is something
in the subject or context inconsistent with such construction or unless it is
otherwise expressly provided: -
(a)
words denoting the singular
include the plural and vice versa;
(b)
words denoting persons include
corporations, and vice versa, also include their respective heirs, personal
representatives, successors in title, nominees or permitted assigns, as the
case may be;
(c)
where a word or phrase is given a
defined meaning in this Agreement any other part or speech or other grammatical
form in respect of such word or phrase has a corresponding meaning;
(d)
where a word or phrase indicates an exception to any of the
provisions of this Agreement, and a wider construction is possible, such word
or phrase is not to be construed ejusdem generis with any foregoing words or
phrases and where a word or phrase serves only to illustrate or emphasize any
of the provisions of this Agreement such word or phrase is not to be construed,
or to take effect, as limiting the generality of such provision;
(e)
any reference to a statutory provision includes any modification,
consolidation or reenactment thereof for the time being in force, and all
statutory instruments or orders made pursuant thereof;
(f)
any reference to “writing”, or cognate expressions,
includes any communication effected by electronic mail transmission or other
comparable means;
(g)
any reference to a “day”, “week”, “month” or
“year” is to that day, week, month or year in accordance with the
Gregorian calendar; if any period of time is specified from a given day, or the
day of a given act or event, it is to be calculated exclusive of that day;
(h)
an “agreement” includes a contract, deed or undertaking (in
each case, in written form);
(i)
“law” includes common or customary law and any
constitution, decree, judgement legislation, order, ordinance, regulation,
statute, treaty or other legislative measure in any jurisdiction or any present
or future directive, regulation, request or requirement (in each case, whether
or not having the force of law but, if not having the force of law, the
compliance with which is in accordance with the general practice of persons to
whom the directive, regulation, request or requirement is addressed); and
(j)
the rule of construct shall not apply to the disadvantage of a
party because that party was responsible for the preparation of this Agreement
or any part thereof.
1.3.
Recitals: The Recitals to this
Agreement shall have effect and be construed as an integral part of this
Agreement, but in the event of any conflict or discrepancy between any of the
provisions of this Agreement such conflict or discrepancy shall, for the
purposes of the interpretation and enforcement of this Agreement, be resolved
by giving the provisions contained in the clauses of this Agreement priority
and precedence over the provisions contained in the Recitals to this Agreement.
1.4.
Headings: The headings and sub-headings
in this Agreement are inserted merely for convenience of reference and shall be
ignored in the interpretation and construction of any of the provision herein
contained.
2.
TERM
Term: Unless otherwise terminated by either Party,
this Agreement shall come into force from the Effective Date and be effective on
a perpetual basis (“Term”).
3.
GRANT AND RESERVATIONS
3.1.
Rights Granted:
Subject to the terms and conditions of this Agreement, the Supplier
hereby appoints and grants and the Dealer hereby agrees to: -
(a)
act as an authorised
dealer for the Product(s), but not hold itself as the Supplier’s agent or as
being entitled to bind the Supplier in any way;
(b)
hold a non-exclusive right, on the terms and conditions contained
in this Agreement, to purchase, promote and sell the Product(s) for commercial
sales on the Authorised
Selling Platform(s) only. For the avoidance of doubt, the Dealer’s
commencement of the Business on each Authorised
Selling Platform(s) is subject to the following:-
(i) provision of details required by the
Supplier in respect of the Authorised Selling
Platform(s); and
(ii) prior
written authorisation from the Supplier (including
the adoption of the Dealer’s names, marks and logos on the Authorised
Selling Platform) (“Supplier’s Authorisation”).
3.2.
Reserved Rights: Without prejudice to the
remaining provisions of this Agreement, the Supplier reserves the rights, in
its sole and absolute discretion to: -
(a)
sell the Product(s) directly to any customers;
(b)
appoint other dealer
and/or agent;
(c)
vary the price of the Product(s);
(d)
to vary the Product(s) including but not
limited to making such changes in the design, variety and/or packaging of the Product(s)
as the Supplier thinks fit;
(e)
demote the rank of the Dealer in the event
the Dealer fails to maintain the Minimum Top Up;
(f)
cease supplying the Product(s) to the
Dealer and to forfeit order payment in the event the Dealer fails to observe
its obligations under this Agreement. The Supplier shall only continue to
supply the Product(s) and refund such forfeited sum to the Dealer provided that
such failure is fully remedied and the outcome of an investigation is favourable to the Dealer (if applicable).
4.
SUPPLIER’S OBLIGATIONS
4.1.
Support: The Supplier shall support the
Dealer in the Business, by: -
(a)
supplying samples of the Product(s);
(b)
supplying packaging of the Product(s);
(c)
supplying manual for the Product(s) in the
language to be determined by the Supplier;
(d)
providing update information in respect of
the Product(s);
(e)
scrutinizing each and every dealer’s performance
and observance of the covenants and obligations; and
(f)
maintain valid insurance coverage with a
licensed insurer of good repute in respect of the Product(s).
4.2.
Product Assurance: Subject to availability of the Product(s),
the Supplier shall be responsible to assure that all Product(s) supplied by the
Supplier: -
(a)
conform to the sample provided by the
Supplier;
(b)
are of merchantable quality;
(c)
are at the prices notified to the Dealer
by the Supplier;
(d)
are delivered with all reasonable courier
or consignment services; and
(e)
are in accordance with the terms of this
Agreement.
4.3.
Delivery: Subsequent to the placement of
order from the Dealer, the Supplier shall within reasonable time deliver or
cause to be delivered the Product(s) to such address requested by the Dealer.
4.4.
After-sale Warranty: Except as may be otherwise
specified or agreed, the Supplier shall, at its own cost and its sole
discretion, replace the Product(s) with a like product or refund the purchase
price for the Product(s) to the Dealer or the Dealer’s customers (as the case
may be) in the event: -
(a)
the Product(s) is of unsatisfactory
quality;
(b)
the delivered Product(s) to the Dealer
and/or the Dealer’s customer is incompatible with its purchase order; or
Provided that (i)
reasonable notification is given to the Supplier, (ii) the Product(s) is returned
intact with its original packaging (if applicable) to the Supplier and (iii)
the default or defective products are caused by the Supplier’s negligence
and/or misconduct.
4.5.
Benefits: The Supplier shall award
benefits, incomes, rewards, points and/or entitlements (Collectively, “Benefits”)
to the Dealer and the Primary Downline Dealer (if applicable) in accordance
with the reward scheme implemented by the Supplier, including amendments as the
Supplier may notify the Dealer in writing from time to time.
5.
DEALER’S OBLIGATIONS AND RIGHTS
5.1.
Positive Obligations: The Dealer shall be responsible
to: -
(a)
pay: -
(i)
a deposit upon the
demand of the Supplier as security for the due performance and observance of
the several covenants and obligations on the part of the Tenant herein
contained. In amplification of the foregoing, the Dealer shall pay a deposit of
RM3,888.00 to the Supplier upon attaining the rank of Director(董事);
(ii)
all sums due to the Supplier in respect of
the supply of the Product(s) by the Supplier to the Dealer upon placement of
order; and
(iii)
any other sum payable by the Dealer to the
Supplier under the terms of this Agreement.
All payment shall be remitted to the
Supplier’s designated bank account, failing which the Supplier bears no
responsibilities and liabilities as a result thereof.
(b)
work diligently protect and promote the
interests of the Supplier (including but not limited to placing order the Product(s)
from the Supplier immediately after receipt of order and purchase price of such
order from its customer);
(c)
operate the Business strictly in accordance with the guidelines,
policies and instructions of the Supplier;
(d)
sell the Product(s) at the selling price
fixed by the Supplier (“Fixed Price”);
(e)
ensure that there is sufficient stock to
meet the requirements and demand of the customers;
(f)
notify the Supplier forthwith on becoming
aware of any claim or potential claim or grounds for such a claim in respect of
the Product(s);
(g)
inform the Supplier forthwith of any
trading in Product(s) which comes to the Dealer’s attention and which is
carried on by a person not appointed by the Supplier to be an authorised dealer and to inform the Supplier of any matter
or occurrence relating to Product(s) which comes to the attention of the Dealer
and which would or might reasonably be expected by the Dealer to be detrimental
to the Supplier’s interests;
(h)
keep proper and up-to-date books of
account and records showing all transactions relating to the Dealership including
but not limited to the sales of Product(s) by the Dealer;
(i)
display the Supplier’s Authorisation
at all times on the Authorised Selling Platform(s)
visible to the Dealer’s customers; and
(j)
comply with the terms of any Default
Notice as defined in Clause 8.1(b) specifying a breach of the provisions of
this Agreement and requiring the breach to be remedied so far as it may be but
nothing in this Clause is intended to require the Supplier to serve notice of
any breach before taking action in respect of it.
5.2.
Negative Obligations: The Dealer shall not: -
(a)
sell, attempt to sell and/or cause to be
sold the Product(s) at such other selling prices differ from the Fixed Price,
failing which, the Supplier shall be entitled to claim against you for a sum
equivalent to-
(i)
3 times of the total Fixed Price multiplied by the quantity of the
Products sold at the non-Fixed Price or the quantity of the Products stored by
the Dealer, whichever is higher, upon first discovery of non-observance of this
clause; and
(ii)
20 times of the
total Fixed Price multiplied by the quantity of the Products sold at the
non-Fixed Price or the quantity of the Products stored by the Dealer, whichever
is higher, upon second discovery of non-observance of this clause.
(b)
undertake an advertising or promotion
activity (including but not limited to offering a discount, offering a cashback
promotion, providing free samples, providing free gifts, providing free
delivery and/or providing loyalty program) without prior written approval from
the Supplier;
(c)
sell any Product(s) which is
counterfeited, inaccurately marked or in any manner misrepresented. For
avoidance of doubt, “counterfeit” shall mean, without limitation, any unauthorised copy, imitation, substitute or modified part
or Product(s), which is not a specific genuine part or Product(s) of an
original or authorised manufacturer;
(d)
procure the Product(s) from a third party
other than Supplier;
(e)
engage in cross-group and/or unauthorised buying, selling or supplying of the
Product(s). For avoidance of doubt, cross-group buying, selling or supplying
occurs when the Dealer buys, sells or supplies the Product(s) to another dealer
who is not upline dealer, downline dealer and/or dealer within the same group;
(f)
make any representation or to give any
warranty or guarantee whatever, whether express or implied, in connection with Product(s)
other than as contained in any advertising matter from time to time provided by
the Supplier;
(h)
at any time during or after the Term,
divulge or allow to be divulged to any person any confidential information
relating to the goods business or affairs of the Supplier other than to persons
who have signed a secrecy undertaking in the form approved by the Supplier and
not to permit any person to act or assist in the Business until such person has
signed such undertaking;
(i)
assign charge or otherwise deal with this
Agreement in any way without the consent of the Supplier and in the case of an
intended assignment by the Dealer of which the Supplier has grated such in
writing, the proposed assignee shall agree directly with the Supplier to be
bound by the terms of this Agreement;
(j)
save for the Brand Name, utilise the name, trademark and/or brand of “Mliss”. The Dealer shall do all necessary acts to
distinguish and not to cause any confusion amongst the public in respect of the
Brand Name;
(k)
solicit, whether directly or indirectly,
any person who is a dealer of the Supplier to participate in any employment
and/or dealership of a third party; and
(l)
market, offer to sell, and/or promote any
goods and/or any services, whether directly or indirectly, to any person who is
a dealer of the Supplier.
5.3.
Intellectual Property: The Dealer warrants and
undertakes as follows: -
(a)
Not to cause or permit anything which may
damage or endanger the Intellectual Property or other intellectual property of
the Supplier or the Supplier’s title to it or assist or allow others to do so;
(b)
To notify the Supplier of any suspected
infringement of the Intellectual Property or other intellectual property of the
Supplier;
(c)
To take such reasonable action as the
Supplier may direct at the expense of the Supplier in relation to such
infringement;
(d)
To affix such notices to the Product(s) or
their packaging or advertising associated with the Business as the Supplier may
direct;
(e)
Not to use the Intellectual Property
otherwise than as permitted by this Agreement, failing which, the Dealer shall
compensate the Supplier a reasonable sum such unauthorized usage of the
Intellectual Property;
(f)
To indemnify the Supplier for any
liability incurred to third parties for any use of the Intellectual Property
otherwise than in accordance with this Agreement;
(g)
On the expiry or termination of this
Agreement forthwith to cease to use the Intellectual Property save as expressly
authorised by the Supplier in writing;
(h)
Not to apply for registration of the
Intellectual Property as a trademark but to give the Supplier at the Supplier’s
expense any assistance it may require in connection with the registration of
the Intellectual Property as a trademark in any part of the world and not to
interfere with in any manner nor attempt to prohibit the use or registration of
the Intellectual Property or any similar name or designation by any other
licensee of the Supplier.
(i)
Not to tamper with any markings or name
plates or other indication of the source of origin of the Product(s) which may
be placed by the Supplier on the Product(s);
(j)
Not to use any name or mark similar to or
capable of being confused with the Intellectual Property;
(k)
To hold any additional goodwill generated
by the Dealer for the Intellectual Property of the Business as bare trustee for
the Supplier.
5.4.
Downline: The Dealer is entitled to
appoint a third party to be its:-
(a)
Primary Downline Dealer subject to the
execution of the dealership agreement between such Primary Downline Dealer and
the Supplier;
(b)
Secondary Downline Dealer subject to the approval
of the Supplier.
The Supplier reserved its right to cause
the Downline Dealer to replace the Dealer with another upline dealer in the
event the Dealer fails to observe its obligations and to provide reasonable
support to its Downline Dealer.
5.5.
Dealer’s Ranking and Retail Margin: Subject to Clause 3.2(e), in the
event the Dealer attains the following order value, the Dealer shall be ranked
as follows:-
Ranking |
Order Value |
Director/ 董事 |
RM55,000.00 |
Strategic Dealer/ 战略 |
RM18,000.00 |
Certified Dealer/ 认证 |
RM2,200.00 |
The Dealer, upon promotion, shall be
entitled to a higher retail margin as determined by the Supplier at the
Supplier sole discretion. For the avoidance of doubt:-
(a)
Director (董事) shall rank
senior than Strategic Dealer (战略) and Certified Dealer (认证); and
(b)
Strategic Dealer (战略)shall rank
senior than Certified Dealer (认证).
5.6.
Partner’s Covenant: The Dealer who is ranked as Director
(董事)or above shall be responsible to exclusively
promote or sell our Product(s) and shall not promote or sell, directly or
indirectly, any other products of whatsoever kind or nature.
5.7.
Non-Direct Dealers’ Credits and Balances: Notwithstanding anything
contrary to this Agreement, all credits, rewards, balances and/or other forms
of funds (collectively referred to as “Account Entitlements”) generated
through the Supplier’s system by Dealers who have not placed orders directly
with the Supplier (i.e. non-direct Dealers, including Secondary Downline Dealers),
shall be fully managed and held by their immediate upline dealer. The Supplier
shall bear no responsibility for the safekeeping, settlement and/ or redemption
of such Account Entitlements of non-direct Dealers. Any distribution of
entitlements or disputes between non-direct Dealers and their upline dealers
shall be resolved solely between the parties involved, and no claims or demands
for compensation may be made against the Supplier.
6.
UNDERSTANDING OF THE PARTIES
6.1.
Prices: All prices in respect of the Product(s)
shall be quoted and/or approved by the Supplier.
6.2.
Trade Names: All trade names to be adopted by
the Dealer are subject to the Supplier’s approval in writing.
6.3.
Limitation of Supplier’s Liabilities: Under no circumstances shall the
Supplier be responsible and/or liable for:-
(a)
defective Product(s) due to incorrect or
negligent storing or use of the Product(s);
(b)
any indirect, economic or consequential
loss (including, without limitation, loss of anticipated profit and/or revenue)
however arising, which may be suffered by the Dealer in relation to the operation
of this Agreement; and
(c)
the Benefits and/or arrears of Benefits
payable by the Dealer to the Secondary Downline Dealer.
6.4.
Dealer’s Default: Notwithstanding anything contrary in
this Agreement, in the event the Dealer fails to perform its roles and
responsibilities or breach of any covenants contemplated under this Agreement, the
Supplier shall be entitled to forfeit the deposit sum paid by the Dealer and/or
forfeit the Dealer’s entitlement of any
benefits in whatsoever nature.
7.
REPRESANTATION AND WARRANTIES
7.1.
Representation and Warranties: The Dealer hereby represents and warrants that the following
representations and warranties are true and correct in all respects as at Effective
Date and shall be true and correct throughout the subsistence of this
Agreement: -
(a)
If the Dealer is a corporation, the Dealer
is duly incorporated and existing under, and by virtue
of, the laws of Malaysia and: -
(i)
it has not been placed under receivership
and there are no steps being commenced and/or institute by any person to place
it under receivership; and
(ii)
it has not been wound-up and is a going
concern and there are no winding-up proceedings being commenced and/or
instituted by any person against it.
(b)
If
the Dealer is an individual, no bankruptcy proceeding or any of such equivalent
proceeding is initiated or threatened
against the Dealer.
(c)
The facts in relation to the Dealer as set
out in this Agreement are true and correct.
(d)
The Dealer has the full power to enter
into and carry out the provisions of this Agreement.
(e)
This Agreement constitutes the valid and
binding obligation of the Parties enforceable in accordance with its terms.
7.2.
Indemnity: The Dealer shall save harmless, indemnify and keep the Supplier
indemnified against all claims, liabilities, actions, proceedings, direct and
not consequential losses, penalties, damages and fines which may be imposed on,
incurred or suffered by the Supplier as a result or in connection with:-
(a)
the Dealer’s failure to company with or
contravention of any laws, applicable present and future authorisations,
registrations, duties of care, codes of conduct, regulations, notices, permits,
consents, approvals and licenses issued, imposed or directed by any relevant
body, including without limitation any matter relating to the protection of
environment, damage or use of any property or harm to human health;
(b)
any neglect or default of the Dealer, the
Dealer’s employees, the sub-dealer to comply with any provisions of this
Agreement or directions of the Supplier;
(c)
any deliberate or negligent act, error or
omission by the Dealer, the Dealer’s employees, the sub-dealer;
(d)
any breach by the Dealer of its
obligations, warranties, representations and undertakings under this Agreement.
This indemnity shall survive and continue in full force and effect
subsequent to and notwithstanding the termination of this Agreement for any
reason whatsoever.
7.3.
Non-Representation: Unless with the Party’s written consent, the other Party shall not make,
give or indicate any other representation, warranty, information, statement or
otherwise for or on the other Party’s behalf, or otherwise howsoever do or omit
to be done anything that would jeopardise the
Parties’ name, business or reputation.
7.4.
Compliance with Laws: Both Parties shall comply with all prevailing laws, regulations, by-laws
and rules applicable thereto including procuring and maintaining all necessary
license, permit and/or approval for the implementation of this Agreement.
7.5.
Level of Care: Both Parties shall exercise a reasonable
degree of care, skill and due diligence in carrying out their roles and
responsibilities under this Agreement.
8.
TERMINATION
8.1.
Events of Termination: Except as otherwise provided herein, this Agreement shall continue to be
in full force and effect without limit in point of time until the earlier of
the following events: -
(a)
if either Party serves a, three (3) months
or such other period at the absolute discretion of the Supplier, termination
notice to the other Party;
(b)
any of the Parties fails to comply with
any of the terms and conditions of this Agreement and such failure, if capable
of remedy, is not remedied within fourteen (14) days of receipt of a written
notice (or such other period designated by the Supplier) of such failure from
the other Party ("the Default
Notice");
(c)
if any of the Parties becomes insolvent,
has a receiver appointed or is wound up;
(d)
if any material change occurs in the
management or control of the Dealer and in particular any change of partners,
directors or shareholders of the Dealer save in accordance with the provisions
of this Agreement; or
(e)
if the Dealer engages in any conduct
prejudicial to the Business or the marketing of the Product(s) generally.
8.2.
Effect of Termination: Upon termination of this
Agreement,
(a)
the Dealer shall: -
(i)
immediately pay to the Supplier all monies
due together with any interest (if any) up until the termination date of this
Agreement, without any deduction, set-off, withholding or counter-claim;
(ii)
dispose of all Product(s) in hand and
tools of the trade used in the Business in accordance with the Supplier’s
directions;
(iii)
destroy all stationeries used in the
Business;
(iv)
return to the Supplier all samples and
publicity material used in the Business;
(v)
forthwith cease to use the Intellectual
Property and to sign such confirmation of cessation of use of the Intellectual
Property as required by the Supplier;
(vi)
return to the Supplier all originals and
copies of all documents and information in any form containing or covering in
any way any part of the Intellectual Property;
(vii)
forthwith cease carrying on the Business;
and
(viii)
cease to be entitled to any benefits in
whatsoever nature and to participate in any activities organised
by the Supplier.
(b)
The Supplier shall:-
(i)
be entitled to the forfeiture of the
deposits, all other monies whatsoever paid to the Supplier and all other
benefits, rewards, points and/or entitlements whatsoever of the Dealer, in the
event the Dealer is the defaulting party; or
(ii)
refund the deposit to the Dealer within
thirty (30) days from the date of termination, in the event the Supplier is the
defaulting party or the Dealer is the terminating party pursuant to Clause
8.1(a).
8.3.
Continuing Liability: Termination of this Agreement
for any reason shall not release any Party from any liability or obligation
which has already accrued as of the enforcement date of such termination, and
shall not constitute a waiver or release of, or otherwise be deemed to
prejudice or adversely affect, any rights, remedies or claims, whether for
damages or otherwise, which a Party may have hereunder, at law, equity or
otherwise or which may arise out of or in connection with such termination.
8.4.
Right of Repossession: In respect of any Product(s)
supplied by the Supplier the price of which has not been paid in accordance
with the terms of this Agreement the Supplier may exercise the right of
repossession and thereupon shall cancel any sums outstanding in respect of
them.
8.5.
Specific Performance: Either Party shall be entitled
to take action for specific performance of this Agreement and all costs and
expenses incurred by the non-defaulting Party in connection therewith
(including the solicitors costs on a solicitor and client basis) and any other
damages that may be granted by a court of law shall be borne and paid by the
defaulting Party.
9.
CONFIDENTIALITY
9.1.
Confidentiality:
Each Party shall at all times keep confidential the contents of this
Agreement and any other confidential information which they may acquire in
relation or pursuant to any of the provisions of this Agreement and shall not
use or disclose any such information except with the written consent of the
Parties or if it is required to be disclosed by the law or any regulatory
authorities.
10.
NOTICES
10.1.
Notices: Notices, demands or other
communications required or permitted to be given or made hereunder shall: -
(a)
be in writing, either in English or Chinese, and delivered
personally or sent by prepaid registered post with recorded delivery, or by
instantaneous electronic media to the intended recipient;
(b)
unless the contrary is proven, be deemed to have been duly served:
-
(i)
if delivered by hand, at the time of delivery;
(ii)
if given or made by prepaid recorded delivery, three (3) business
days after posting;
(iii)
if given or made by prepaid registered mail, five (5) business
days after posting; and
(iv)
if delivered by instantaneous electronic media, at the time of
transmission in legible form;
11.
MISCELLANEOUS
11.1.
Good Faith:
Each Parties shall co-operate with the other and execute and deliver to
the other such other instruments and documents and take such other actions as
may be reasonably requested from time to time in order to carry out, evidence
and confirm their rights and the intended purpose of this Agreement. In
entering into this Agreement, the Parties recognise that it is impracticable to
make provision for every contingency that may arise in the course of the
performance. Accordingly, the Parties hereby declare it to be their intention
that this Agreement shall operate between them with fairness and without
detriment to the interests of any of them and if, in the course of the
performance of this Agreement, unfairness to any Parties is disclosed or
anticipated, then the Parties shall use their best endeavors
to agree upon such action as may be necessary and equitable to remove the cause
of the same.
11.2.
Dispute
Resolution: The Parties will use their
best efforts promptly and adequately to resolve any dispute or difference
arising out of or in connection with this Agreement in the first instance
through friendly consultation, amicable negotiation or other agreed upon means
failing which, the matter shall be referred to an arbitrator appointed by
mutual consent whose decision will be final and binding on both Parties. The
Parties hereby agree that the breaching Parties shall bear and pay for all the
solicitors’ costs of both Parties in relation thereto.
11.3.
Remedies: Save as is otherwise
provided herein, 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 any of the Parties shall not
constitute a waiver by such Party of the right to pursue any other available
remedy.
11.4.
Severance: If any provision of this
Agreement herein contained or part thereof or any document incorporated is
rendered void, illegal or unenforceable for whatever reason in any respect
under any law, it is hereby declared that such clause or document so affected
shall not in any way affect or impair the validity, legality or enforceability
of the other terms or provisions herein contained which shall remain in full
force and effect provided that such invalidity or unenforceability shall not
substantially nullify the underlying intent of this Agreement and shall be
deemed to be an independent provision and the Parties shall be at liberty to
have such provision severed from the rest of this Agreement.
11.5.
Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause
shall not release a Party from any liability which at the time of termination
has already accrued to the other Party or which thereafter may accrue in
respect of any act or omission prior to such termination.
11.6.
Entire Agreement:
This Agreement constitutes the entire agreement between the Parties and
save as otherwise expressly provided no modification, amendment or waiver of
any of the provisions of this Agreement shall be effective unless made in
writing specifically referring to this Agreement and duly signed by the
Parties.
11.7.
Assignment: Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the Parties to any unrelated individual and/or corporation (whether by
operation of law or otherwise) without the prior written consent of the other
Party.
11.8.
Binding Effect: This Agreement shall be binding
upon the executors, administrators, successor-in-title, permitted lawful
assigned, as the case may be, of the Parties.
11.9.
Superseding Provisions: This Agreement (together with any documents
referred to herein) constitutes the whole agreement between the Parties herein
and supersedes any prior agreement or understanding, written or otherwise, in
respect of the subject matter herein and is expressly declared that no
variations hereof shall be effective unless made in writing by the Parties
hereto.
11.10.
Time: Time is of the essence in this Agreement.
11.11.
Applicable Law: This Agreement shall be governed
by, and construed in accordance with, the laws of Malaysia and the Parties
irrevocably submit to the non-exclusive jurisdictions of the Courts of
Malaysia.
11.12.
Non-Waiver:
No failure or delay on the part of any Parties hereto is exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of such right or power preclude any other or further
exercise thereof or the exercise of any right or power herein.
11.13.
Costs of Agreement: Each Party shall bear its own costs and
expenses incurred by it in connection with this Agreement. The stamp duty of
this Agreement shall be borne by the Dealer.
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VVIP CUSTOMER AGREEMENT
The following terms and conditions ("Agreement") stipulate your legal rights and obligations as a VVIP Customer (as defined hereunder). By clicking the "I Agree" button (or any other similar button) below this Agreement, you shall be deemed as having fully understood and accepted the terms contained herein and it constitutes a valid, legally binding agreement made between you and Mliss (M) Sdn. Bhd. (formerly known as DVZ Mishang (M) Sdn. Bhd.) (Company No.: 201701039230 (1253401-X)), a company incorporated in Malaysia and having its business address at No. 41, Jalan Makyong 5A/KU5, Bandar Bukit Raja, 41050 Klang, Selangor (“Company”) (either of which may be referred to individually as a "Party" or collectively as "Parties").
THIS AGREEMENT WITNESSETH as follows: -
1. INTRODUCTION
1.1. Definitions: In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings: -
Words & Expression |
Meaning |
“Agreement” |
Means this VVIP Customer Agreement including any other modifications, variations, amendments or addition as the Company deems fit without obtaining the VVIP Customer’s prior consent. Such modifications, variations and/or changes shall be effective and shall bind all VVIP Customers who shall have the responsibility to review this Agreement regularly after any such changes, whether or not reviewed by the VVIP Customer, shall constitute his consent and acceptance to such changes.
|
“Brand Name” |
means “Mliss” or any derivatives thereto including the brand identity, instructions, requirements, methods, specifications and procedures for the operation of the Business, as authorised and amended from time to time by the Company;
|
“VVIP Customer”
|
Means the individuals, body corporates or other organisations that have obtained the Company’s authorisation to enjoy the benefit and adhere with the obligations in accordance with this Agreement
|
“Effective Date” |
Means the date you fulfill your obligations under Clause 3.1 and enrolled as our VVIP Customer.
|
“Product(s)” |
Means the goods authorised by the Company from time to time for use or sale in association with the Brand Name and in each case only as approved by the Company and subject to change or elimination by the Company. |
1.2. Interpretation and Construction: In this Agreement, unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided: -
(a) words denoting the singular include the plural and vice versa;
(b) words denoting persons include corporations, and vice versa, also include their respective heirs, personal representatives, successors in title, nominees or permitted assigns, as the case may be;
(c) where a word or phrase is given a defined meaning in this Agreement any other part or speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
(d) where a word or phrase indicates an exception to any of the provisions of this Agreement, and a wider construction is possible, such word or phrase is not to be construed ejusdem generis with any foregoing words or phrases and where a word or phrase serves only to illustrate or emphasize any of the provisions of this Agreement such word or phrase is not to be construed, or to take effect, as limiting the generality of such provision;
(e) any reference to a statutory provision includes any modification, consolidation or reenactment thereof for the time being in force, and all statutory instruments or orders made pursuant thereof;
(f) any reference to “writing”, or cognate expressions, includes any communication effected by electronic mail transmission or other comparable means;
(g) any reference to a “day”, “week”, “month” or “year” is to that day, week, month or year in accordance with the Gregorian calendar; if any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day;
(h) an “agreement” includes a contract, deed or undertaking (in each case, in written form);
(i) “law” includes common or customary law and any constitution, decree, judgement legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction or any present or future directive, regulation, request or requirement (in each case, whether or not having the force of law but, if not having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive, regulation, request or requirement is addressed); and
(j) the rule of construct shall not apply to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part thereof.
1.3. Recitals: The Recitals to this Agreement shall have effect and be construed as an integral part of this Agreement, but in the event of any conflict or discrepancy between any of the provisions of this Agreement such conflict or discrepancy shall, for the purposes of the interpretation and enforcement of this Agreement, be resolved by giving the provisions contained in the clauses of this Agreement priority and precedence over the provisions contained in the Recitals to this Agreement.
1.4. Headings: The headings and sub-headings in this Agreement are inserted merely for convenience of reference and shall be ignored in the interpretation and construction of any of the provision herein contained.
2. TERM
Term: Unless otherwise terminated by either Party, this Agreement shall come into force from the Effective Date and be effective on a perpetual basis.
3. GRANT AND RESERVATIONS
3.1. Rights Granted: Subject to the terms and conditions of this Agreement and you purchasing the Company’s product worth RM350.00 or such other sum determined by the Company from time to time, the Company hereby grants and the VVIP Customer hereby agrees to enroll as the Company’s VVIP Customer.
3.2. Reserved Rights: Without prejudice to the remaining provisions of this Agreement, the Company reserves the rights, in its sole and absolute discretion to: -
(a) vary the price of the Product(s);
(b) to vary the Product(s) including but not limited to making such changes in the design, variety and/or packaging of the Product(s) as the Company thinks fit;
(c) cease supplying the Product(s) to the VVIP Customer, to forfeit order payment and/or commence any legal proceedings against the VVIP Customer as the Company deems fit in the event the VVIP Customer fails to observe its obligations under this Agreement. The Company shall only continue to supply the Product(s) and refund such forfeited sum to the VVIP Customer provided that such failure is fully remedied and the outcome of an investigation is favourable to the VVIP Customer (if applicable).
4. BENEFITS
4.1. Benefits: By enrolling as a VVIP Customer, the VVIP Customer shall be entitled to:-
(a) purchase the Products at a discounted rate specified by the Company from time to time;
(b) award, benefits, rewards, points and/or entitlements in accordance with the reward scheme implemented by the Company (if any), including amendments as the Company may notify the VVIP Customer in writing from time to time.
(Collectively, “Benefits”)
5. VVIP CUSTOMER’S OBLIGATIONS
5.1. Positive Obligations: The VVIP Customer shall be responsible to pay: -
(a) all sums due to the Company in respect of the supply of the Product(s) by the Company to the VVIP Customer upon placement of order; and
(b) any other sum payable by the VVIP Customer to the Company under the terms of this Agreement.
All payment shall be remitted to the Company’s designated bank account, failing which the Company bears no responsibilities and liabilities as a result thereof.
5.2. Negative Obligations: The VVIP Customer shall not: -
(a) sell, attempt to sell and/or cause to be sold the Product(s), failing which, the Company shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or other benefits that the VVIP Customer and/or its representative has realised and/or may realise as a result of or in connection with any such breach.
(b) undertake any advertising or promotion activity for the Products;
(c) sell any Product(s) which is counterfeited, inaccurately marked or in any manner misrepresented. For avoidance of doubt, “counterfeit” shall mean, without limitation, any unauthorised copy, imitation, substitute or modified part or Product(s), which is not a specific genuine part or Product(s) of an original or authorised manufacturer;
(d) procure the Product(s) from a third party other than Company; and
(e) make, give or indicate any other representation, warranty, information, statement or otherwise for or on the Company’s behalf, or otherwise howsoever do or omit to be done anything that would jeopardise the Company’ name, business or reputation.
6. UNDERSTANDING OF THE PARTIES
6.1. Limitation of Company’s Liabilities: Under no circumstances shall the Company be responsible and/or liable for:-
(a) defective Product(s) due to incorrect or negligent storing or use of the Product(s); and
(b) any indirect, economic or consequential loss (including, without limitation, loss of anticipated profit and/or revenue) however arising, which may be suffered by the VVIP Customer in relation to the operation of this Agreement.
6.2. VVIP Customer’s Default: Notwithstanding anything contrary in this Agreement, in the event the VVIP Customer breaches of any covenants contemplated under this Agreement, the Company shall be entitled revoke the VVIP Customer’s entitlement of any benefits in whatsoever nature.
7. REPRESANTATION AND WARRANTIES
7.1. Representation and Warranties: The VVIP Customer hereby represents and warrants that the following representations and warranties are true and correct in all respects as at Effective Date and shall be true and correct throughout the subsistence of this Agreement: -
(a) The facts in relation to the VVIP Customer as set out in this Agreement are true and correct.
(b) The VVIP Customer has the full power to enter into and carry out the provisions of this Agreement.
(c) This Agreement constitutes the valid and binding obligation of the Parties enforceable in accordance with its terms.
7.2. Indemnity: The VVIP Customer shall save harmless, indemnify and keep the Company indemnified against all claims, liabilities, actions, proceedings, direct and not consequential losses, penalties, damages and fines which may be imposed on, incurred or suffered by the Company as a result or in connection with:-
(a) any neglect or default of the VVIP Customer or the VVIP Customer’s employees to comply with any provisions of this Agreement or directions of the Company;
(b) any deliberate or negligent act, error or omission by the VVIP Customer or the VVIP Customer’s employees;
(c) any breach by the VVIP Customer of its obligations, warranties, representations and undertakings under this Agreement.
This indemnity shall survive and continue in full force and effect subsequent to and notwithstanding the termination of this Agreement for any reason whatsoever.
7.3. Compliance with Laws: Both Parties shall comply with all prevailing laws, regulations, by-laws and rules applicable thereto including procuring and maintaining all necessary license, permit and/or approval for the implementation of this Agreement.
7.4. Level of Care: Both Parties shall exercise a reasonable degree of care, skill and due diligence in carrying out their roles and responsibilities under this Agreement.
8. TERMINATION
8.1. Events of Termination: Except as otherwise provided herein, this Agreement shall continue to be in full force and effect without limit in point of time until the earlier of the following events: -
(a) if either Party serves a, three (3) months or such other period at the absolute discretion of the Company, termination notice to the other Party; or
(b) the VVIP Customer fails to comply with any of the terms and conditions of this Agreement.
8.2. Effect of Termination: Upon termination of this Agreement,
(a) the VVIP Customer shall: -
(i) immediately pay to the Company all monies due together with any interest (if any) up until the termination date of this Agreement, without any deduction, set-off, withholding or counter-claim;
(ii) cease to be entitled to any benefits in whatsoever nature and to participate in any activities organised by the Company.
(b) The Company shall be entitled to the forfeiture of all monies whatsoever paid to the Company and all other benefits, rewards, points and/or entitlements whatsoever of the VVIP Customer, in the event the VVIP Customer is the defaulting party.
8.3. Continuing Liability: Termination of this Agreement for any reason shall not release any Party from any liability or obligation which has already accrued as of the enforcement date of such termination, and shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, which a Party may have hereunder, at law, equity or otherwise or which may arise out of or in connection with such termination.
8.4. Right of Repossession: In respect of any Product(s) supplied by the Company the price of which has not been paid in accordance with the terms of this Agreement the Company may exercise the right of repossession and thereupon shall cancel any sums outstanding in respect of them.
8.5. Specific Performance: The Company shall be entitled to take action for specific performance of this Agreement and all costs and expenses incurred by the non-defaulting Party in connection therewith (including the solicitors costs on a solicitor and client basis) and any other damages that may be granted by a court of law shall be borne and paid by the defaulting Party.
9. CONFIDENTIALITY
9.1. Confidentiality: Each Party shall at all times keep confidential the contents of this Agreement and any other confidential information which they may acquire in relation or pursuant to any of the provisions of this Agreement and shall not use or disclose any such information except with the written consent of the Parties or if it is required to be disclosed by the law or any regulatory authorities.
10. NOTICES
10.1. Notices: Notices, demands or other communications required or permitted to be given or made hereunder shall: -
(a) be in writing, either in English or Chinese, and delivered personally or sent by prepaid registered post with recorded delivery, or by instantaneous electronic media to the intended recipient;
(b) unless the contrary is proven, be deemed to have been duly served: -
(i) if delivered by hand, at the time of delivery;
(ii) if given or made by prepaid recorded delivery, three (3) business days after posting;
(iii) if given or made by prepaid registered mail, five (5) business days after posting; and
(iv) if delivered by instantaneous electronic media, at the time of transmission in legible form;
11. MISCELLANEOUS
11.1. Dispute Resolution: The Parties will use their best efforts promptly and adequately to resolve any dispute or difference arising out of or in connection with this Agreement in the first instance through friendly consultation, amicable negotiation or other agreed upon means failing which, the matter shall be referred to an arbitrator appointed by mutual consent whose decision will be final and binding on both Parties. The Parties hereby agree that the breaching Parties shall bear and pay for all the solicitors’ costs of both Parties in relation thereto.
11.2. Remedies: Save as is otherwise provided herein, 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 any of the Parties shall not constitute a waiver by such Party of the right to pursue any other available remedy.
11.3. Severance: If any provision of this Agreement herein contained or part thereof or any document incorporated is rendered void, illegal or unenforceable for whatever reason in any respect under any law, it is hereby declared that such clause or document so affected shall not in any way affect or impair the validity, legality or enforceability of the other terms or provisions herein contained which shall remain in full force and effect provided that such invalidity or unenforceability shall not substantially nullify the underlying intent of this Agreement and shall be deemed to be an independent provision and the Parties shall be at liberty to have such provision severed from the rest of this Agreement.
11.4. Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause shall not release a Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission prior to such termination.
11.5. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and save as otherwise expressly provided no modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless made in writing specifically referring to this Agreement and duly signed by the Parties.
11.6. Assignment: Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties to any unrelated individual and/or corporation (whether by operation of law or otherwise) without the prior written consent of the other Party.
11.7. Binding Effect: This Agreement shall be binding upon the executors, administrators, successor-in-title, permitted lawful assigned, as the case may be, of the Parties.
11.8. Superseding Provisions: This Agreement (together with any documents referred to herein) constitutes the whole agreement between the Parties herein and supersedes any prior agreement or understanding, written or otherwise, in respect of the subject matter herein and is expressly declared that no variations hereof shall be effective unless made in writing by the Parties hereto.
11.9. Time: Time is of the essence in this Agreement.
11.10. Applicable Law: This Agreement shall be governed by, and construed in accordance with, the laws of Malaysia and the Parties irrevocably submit to the non-exclusive jurisdictions of the Courts of Malaysia.
11.11. Non-Waiver: No failure or delay on the part of any Parties hereto is exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right or power preclude any other or further exercise thereof or the exercise of any right or power herein.
11.12. Costs of Agreement: Each Party shall bear its own costs and expenses incurred by it in connection with this Agreement. The stamp duty of this Agreement (if any) shall be borne by the VVIP Customer.
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