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
“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.
“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.
“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;
“Business”	Means the sale of the Product(s) by the Dealer and all matters related.
“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).
“Downline Dealer”	Means the Primary Downline Dealer and Secondary Downline Dealer, collectively
“Effective Date”	Means date of this Agreement.
“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
“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:-   Rank Minimum Top UP Director/ 董事 RM6,666.00 Strategic Dealer/ 战略 RM2,888.00 Certified Dealer/ 认证 RM888.00
“Primary Downline Dealer”	Means a downline dealer who directly:- (a) procures the Product(s) from; and (b) remits payments to the Supplier.
“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.
“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;

 

(g)           incur or purport to incur any liability on behalf of the Supplier or in any way pledge or purport to pledge the Supplier’s credit or accept any order to make any contract binding upon the Supplier without the Supplier first approving in writing its terms;

 

(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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