IT IS AGREED THAT:
1. Interpretation and Definition
In this agreement, including Recitals, unless the context otherwise requires and save as specifically defined in this agreement, the following definitions shall apply:
Applicable Base Rate of Interest means the prevailing interest rate in Singapore.
Business Day means a normal business day in Singapore (excluding
Saturday, Sunday, and public holidays).
Confidential Information means all communications and information whether
written, visual or oral and all other material supplied to
or obtained by the Distributor from Supplier in
connection with, prior to or during the Term (whether
or not the information is or was expressly stated to be
confidential or marked as such), whether or not
related to the Product.
Distributor’s Warehouse means any premises used by the Distributor for the
storage of the Product.
Supplier Lafre Global Sdn Bhd (No.201801028863 (1290889-D))
No. 2, Jalan Ekoperniagaan 1/29, Taman Ekoperniagaan,
81100 Johor Bahru.
Term means the period described in Section 3 of Schedule 1 hereto.
Intellectual Property means all proprietary content, trademarks, service,
marks, brand names, logos and other intellectual
properties owned by Supplier.
Territory means states and districts as the case may be within Singapore.
2. DISTRIBUTOR APPOINTMENT
2.1 The Company appoints the Distributor as its non-exclusive agent, promoter and/or distributor to market and distribute the Product in the Territory and the Distributor hereby accepts the appointment thereof but subject to the terms and conditions hereinafter appearing.
2.2 The Distributor shall conduct its business in a manner that reflects favorable at all times on the Product and the good name, goodwill and reputation of Supplier or its affiliates. The Distributor acknowledges and agrees that it has no rights or claims of to the Product, or any aspect thereof, except such rights as are created by this Agreement.
2.3 Notwithstanding the appointment of the Distributor:
(i) The Company shall be at liberty to appoint any other distributor, reseller or agent for the Product; and
(ii)The Company shall be at liberty to supply the Product directly in the Territory whether for use or resale at its sole discretion.
2.4 The Distributor’s contractual obligation in this agreement is to be construed as to buy the Product for its own account for own consumption and/or promotion and/or resale, as the case maybe.
2.5 The Distributor shall purchase the Product only from the Company and shall not during the Term distribute or manufacture any goods which has the similarity, whereby the effect of such as to compete/compromise/disrepute the make and quality of the Product.
2.6 The Distributor hereby agrees with the Company that it/he/she shall not:
(a) Represent itself as the Company and/or an agent of the Company for any purpose whatsoever other than the Product related;
(b) Pledge the Company and/or Supplier’s credit;
(c) Give any condition or warranty on behalf of the Company and/or the Supplier;
(d) Make any representation on behalf of the Company;
(e) Display and/or sale of the Product in retail outlets, service establishments, private properties, offices, eatery, event hall, exhibitions, promotional booths, vehicles and/or any other public places without prior written consent of the Company;
(f) Promote the Product onto any personal websites, any online platforms, any online shopping platforms, any social network websites and/or on any other commercial platforms without prior written consent of the Company;
(g) Advertise the Product using mass communication medias including but not limited to news channels, written articles, radio and television channels, internet, online shopping platform and/or any other public channels without prior written consent of the Company;
(h) Recruit any third party to sell, advertise and market the Product without prior written consent of the Company;
(i) Sell the Product to any customer and/or any third party if to the Distributor’s knowledge that such person intends to resell the Product within and/or outside of the Territory;
(j) Appoint and/or sub-let this agreement to a third party without the prior written consent of the Company;
(k) Manufacture and/or supply similar product;
(l) Enter into an agreement with any other third party to manufacture and/or supply the Product and/or similar to the Product;
(m) Commit the Company to any contracts; and
(n) Otherwise incur any debt, obligation and/or liability for or on behalf of the Company.
2.7 The Distributor shall not, without the Company’s prior written consent, make any promises and/or warranties/representations and/or or guarantees about the Product beyond those contained in the promotional material supplied by the Company.
2.8 The Company shall not be responsible for any representations, warranties and/or promises made by the Distributor to any third party and/or the Customers. The Distributor shall at all time indemnify the Company for any costs, expenses and/or damages being sought by any third party and/or the Customer.
3. TERM
3.1 This agreement is to commence on the Commencement Date hereinabove and unless and until expired in accordance with clause 12 or terminated in accordance with clause 13, will continue to be in-force throughout the tenure of the Term.
3.2 The Distributor shall have an option to renew this agreement for an additional term of twelve (12) calendar months commencing from the expiry of the Term (“Renewal Term”). The exercise of this option is subject to the following conditions: -
(a) The Company receives a notice in writing from the Distributor one (1) month prior to the expiry of the Term, of its intention to renew this agreement;
(b) The Distributor has complied with all its terms, conditions and obligations under this agreement; and
(c) The Distributor has satisfactorily complied with the purchase targets determined by the Company from time to time, as the case may be.
4. DISTRIBUTOR OBLIGATION
The Distributor agrees with the Company that the Distributor will throughout the tenure of the Term: -
4.1 Purchase, Storage and Handling
4.1.1 Purchase the Product from the Company and distribute, make available by way of trade and offer for sale the Product to Customers in and within the Territory from time to time throughout the Term;
4.1.2 Handle and store the Product in such a manner so as to ensure no deterioration in their quality, appearance and packaging, and that if the Distributor fails to comply with this clause 4.1.2 as a result of that failure the Product must be re-packaged as authorized by the Company and all costs and expenses (including insurance and transport costs) associated with that re-packaging or replacement will be borne by the Distributor solely;
For the avoidance of doubt, the packaging of the Product including the sealing, the original prints of the Product and the bar code, shall not be distorted, modified, varied that will compromise the original packing of the Product. Any repackaging of the Product must be with prior written consent of the Company.
4.2 Delivery of Product to Customers
4.2.1 On receipt of an order from a Customer, the Distributor shall ensure that delivery of Product to each Customer is undertaken in the packaging provided by the Company on a timely basis and by the due date agreed with the Customer.
4.2.2 Where a requested Product is not in stock, the Distributor undertakes to process all such orders on a timely basis so as to ensure prompt delivery to each Customer;
4.3 Advertising and Promotion of Product
4.3.1 The Company agrees to furnish, in English and/or in Mandarin, to the Distributor (vie email or any form of electronic communication in PDF format) such descriptive literature advertising materials, manuals and sales promotional materials concerning the Product as the Company may from time to time, have been made available for such purposes. The ownership of all proprietary rights, including, intellectual property rights to the translated versions of the materials shall retain by the Supplier. The Distributor shall, where applicable, translate the advertising materials and provide a copy of the translated version thereof to the Company for approval prior to circulation and/or dissemination. The Distributor shall be responsible for the accuracy of the translations and will provide the Company with a copy of each translated work. The Distributor shall promptly revise, modify, alter, make changes (at the Distributor’s costs) the materials stated herein upon notice from the Company.
4.3.2 Display and promote the Product only in accordance with specifications provided by the Company or its authorized Representative from time to time;
4.3.3 Observe all directions and instructions given to it by the Company and its authorized Representative for promotion and advertisement of the Product;
4.3.4 Not to make any statement, written or otherwise as to the quality, make and/or or manufacture of the Product without the prior written approval from the Company;
4.3.5 Preserve in good faith and preserve all goodwill associated with the Trademark, the Supplier’s image and any brands associated with Trademark or the Supplier;
4.3.6 Not to use any advertising materials or promotional literature to promote the Product without the Company’s written approval. Where Distributor intends to conduct promotional activities otherwise than in accordance with instructions and specifications provided by the Company, the Distributor shall submit to the Company or its authorized Representative (if requested by the Supplier), any marketing or sales materials that the Distributor wishes to issue in relation to the Product, for prior approval by Company, and/or its authorised Representative (if requested by the Company). The Company, and its authorized Representative (if requested by the Company), will advise if it approves or disapproves of any materials submitted by the Distributor within fourteen (14) Business Days from receipt of the material;
4.3.7 The Distributor acknowledges and agrees that failure to comply with this clause herein will constitute disparaging the reputation of the Trademark; and
4.3.8 The Distributor acknowledges and agrees that failure to comply with this clause herein will constitute material breach of this agreement, entitling the Company to terminate this agreement without prejudice to other rights or remedy the Company may have.
4.4 Records and Sales Reports
4.4.1 The Distributor shall keep separate, full, true and accurate, proper and up to date books of accounts, customer sales records and other records of all transactions involving the Product, together with relevant invoices and other papers and to show clearly inventories of Product and details of sales, expenditure and all other transactions. The Distributor shall retain such records for at least one (1) year period following their creation or preparation and shall provide such records to the Company upon the request of the Company.
4.4.2 Upon the Company’s request, the Distributor shall e-mail to Company a rolling three (3) month, non-binding sales forecast of the expected sales of Product in the Territory. In addition, the Distributor shall furnish such other information in a timely manner in response to Company requests for information pertaining to the Distributor’s activities in the Territory. Such requests may include, prospect lists and status of prospect sales activity, information applicable to specific sales activities, data regarding competition in the Territory, product operational data and other information required by Company to effectively coordinate its international sales and marketing efforts.
4.4.3 On receiving three (3) days’ prior written notice from Company, allow Company or its authorized Representative access to the Distributor’s warehouse to examine all books and records and to generally monitor the Distributor’s performance of its obligations under this agreement.
4.5 Inventory Management
4.5.1 Maintain such stocks of the Product as the Distributor reasonably believes is necessary to satisfy market requirements in the Territory;
4.5.2 Manage the inventory of Product on a first-in first-out (FIFO) basis;
4.6 OTHER OBLIGATIONS
4.6.1 Ensure that the Distributor and its staff and management comply with all relevant laws and regulations;
4.6.2 Provide any other information reasonably as requested by Company in relation to this agreement from time to time (such as defective product reports, unit sales and stock levels).
4.6.3 The Distributor shall not sell and/or license the Product through third parties (such as original equipment manufacturers, distributors, value added reseller or other dealers or agents) without the Company’s prior written consent.
4.7 DISTRIBUTOR UNDERTAKING
4.7.1 Use reasonable endeavours to promote and sell the Product in the Territory and to expand the sale of the Product by all reasonable and proper means and not to do anything which may hinder or interfere with such sales;
4.7.2 Not to promote and/or sell the Product at a price exceeding the maximum resale price as may be specified by the Company from time to time in writing;
4.7.3 Submit written reports at regular intervals to the Company, showing details of stock levels and movements, sales, outstanding customer orders and orders placed by the Distributor with the Company that are still outstanding, and any other information relating to the performance of its obligations under this agreement that the Company may reasonably require from time to time;
4.7.4 Not to set up any office in any area other than an area as specified by the Company; and
4.7.5 Not to sell any other brand of other Product similar to the Product during the Term of this Agreement.
4.7.6 Ensure that the Trademark of the Product is not infringed.
4.8 COMPLIANCE WITH THE SUPPLIER’S RULES, STANDARD OPERATING PROCEDURES AND/OR POLICIES
4.8.1 Comply with all the Company’s rules, standard operating procedures, guidelines and/or policies in respect of the offering, marketing, promotion and sale of the Product;
4.8.2 In the event that the Distributor is found by the Company to have breached the Company’s rules, standard operating procedures, guidelines and/or policies, the Company is entitled to:
(a) Demand the Distributor to deliver and return to the Company all Product in the possession of the Distributor;
(b) Demand the Distributor to forthwith stop and/or refrain from offering, marketing, promoting and/or selling the Product directly or indirectly;
(c) At the Distributor’s costs and expenses, confiscate the Product in the possession of the Distributor.
5. TRADEMARK
5.1 The Company grants to the Distributor in the Territory, to use the Trademark in the promotion, advertisement and sale of the Product, subject to, and for the duration of the Term set forth herein. The Distributor acknowledges and agrees that all rights in the Trademark shall remain intact and that the Distributor has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Trademark as expressly provided in this agreement.
5.2 The Distributor shall market and sell the Product only under the Trademark, and not in association with any other Trademark, brand or trade name.
5.3 The Distributor must ensure to use LÁFRE symbol of the Product provided thereof on all display of the Product, containers and advertisements, promotional events and on any related event for the Product.
5.4 The Distributor shall comply with all instructions and rules for the use of the Trademark issued by the Company (including those set out in any Trademarks manual as may be issued by the Company).
5.5 The Distributor shall not: -
(a) alter or make any addition to the labelling or packaging of the Product displaying the Trademark;
(b) make any addition or modifications to the Product or to any advertising and promotional materials supplied by the Company; or
(c) alter, deface or remove any reference to the Trademark, any reference to the Company or any other name attached or affixed to the Product or their packaging or labelling.
5.6 The Distributor shall not be permitted to print, post or otherwise use letterhead, calling cards, literature, signage or other representations in the name of the Company (or any of its affiliates) or to represent itself as the Company (or any of its affiliates) or make commitments on behalf of the Company (or any of its affiliates) without the express prior written permission of the Company.
5.7 The Distributor shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trademark to any other party, except as otherwise expressly permitted under this agreement.
5.8 The Distributor shall not do, or omit to do, anything in its use of the Trademark that could adversely affect their validity or reputation.
5.9 The Distributor shall not and is strictly prohibited, at any time during or within one year after termination of this agreement, in connection with any business similar to that of the Company and/or the manufacturer, adopt, use, obtain, register or try to register a word or symbol or a combination of the two similar to the Trademark.
5.10 The Distributor shall immediately on request enter into any further agreements with the registered owner of the Trademark, in a form satisfactory to the Company and/or the manufacturer, necessary for the recording, registration or safeguarding of the Trademark rights or the marketing of the Product under the Trademark.
5.11 The Distributor shall promptly give notice to the Company in writing if it becomes aware of:
(a) any infringement or suspected infringement of the Trademark or any other intellectual property rights relating to the Product within the Territory; or
(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trademark, infringes the rights of any third party.
5.12 In respect of any matter that falls within clause 5.11(a):
(a) the Company shall in its absolute discretion, decide what action to take in respect of the matter (if any);
(b) the Company shall conduct and have sole control over any consequent action that it deems necessary and the Distributor shall on being so requested by the Company and at the Distributor’s cost assist in taking all steps to defend the rights of the Company including the institution at the Company’s cost of any actions which it may deem necessary to commence for the protection of any of its rights; and
(c) the Company shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
5.13 In respect of any matter that falls within clause 5.12(b),
(a) the Company and the Distributor shall agree:
i. what steps to take to prevent or terminate the infringement; and
ii. the proportions in which they shall share the cost of those steps and any damages and other sums that may be awarded to or against them; and
(b) failing agreement between the parties pursuant to this clause, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.
5.14 The Distributor shall not use the Trademark as part of the name under which the Distributor conducts its business, or any connected business, or under which it sells or services any Product (except the Product), or in any other way, except as expressly permitted under this agreement.
5.15 Upon expiration or termination of this agreement for any reason, the Distributor shall immediately cease using all or any part of the Trademark of the Product and shall immediately take all appropriate and necessary steps to: -
a) Remove and cancel any listings in public records, telephone books, other directories, remove any visual displays or literature at the Distributor’s location, the internet and elsewhere that would indicate or would lead the public to believe that the Distributor is the representative of the Company or the Product or services; and
b) Cancel, abandon or transfer (as requested by the Company) any product licenses, trade name filings, trademark applications or registrations or other filings with the government of the Territory (whether or not such fillings were authorized by the Company) that may incorporate the Trademarks or any marks or names confusingly similar to the Trademark.
Upon the Distributor’s failure to comply with this paragraph, the Company may make application for such removals, cancellations, abandonments or transfer in Distributor’s name. The Distributor shall render assistance to and reimburse Supplier for expenses incurred in enforcing this paragraph.
6. TRADING TERMS
Initial Minimum Commitment and Minimum Order of Product
6.1 Upon execution of this agreement, the Distributor shall purchase Product as specified by the Company which details are specified in Section 5 of Schedule 1 (“Initial Minimum Commitment”).
6.2 Thereafter, any order of the Product by the Distributor must be no less than the percentage (%) of the Initial Minimum Commitment (“Minimum Order of Product”) set by the Company which details are specified in Section 6 of Schedule 1, or any amount as may be specified by the Company from time to time in writing.
Payment
6.3 The Distributor shall make payment to the Company within fourteen (14) days from the date the Distributor receives the Company’s invoice.
6.4 Without prejudice to any other rights the Company may have arising as a consequence of the Distributor’s default, if any monies payable by the Distributor under this clause are not paid when due, the Company may:
(a) Terminate this agreement;
(b) Suspend any deliveries of the Product to the Distributor without notice; and/or
(c) Appoint another Distributor in the Territory to market and sell the Product within the Territory.
Late Payment
6.5 Any overdue payments shall bear a late payment fee of eight percent (8%) per month above the Applicable Base Rate of Interest.
Terms of Sale and Delivery
6.6 The Distributor will not purchase the Product from any other third party other than Company during the Term.
6.7 The sale of all Product by Company to the Distributor is made in accordance with the following terms:
General
6.8 The Company shall not be held responsible for the order placed by telex, cable or telephone unless confirmed in writing. Verbal instructions and promises given by the Company's employees or sales representatives are subjected to written confirmation. For the avoidance of doubt, electronic mails shall also be construed as in writing.
6.9 Quotations made by authorized employees of the Company shall be binding on the Company for a period of one (1) week and thereafter be subject to variation without notice to the Distributor.
6.10 The Company reserves the right to vary its prices from time to time.
6.11 The Distributor may not return the Product to the Company unless the Company explicitly agrees to such return.
Delivery
6.12 The precondition for the commencement of and compliance with delivery dates agreed upon is that the Distributor performs its obligations, in particular, the timely delivery of the documentation, approvals, examinations and clearances to be provided by the Distributor and the compliance with payment terms agreed upon. If these preconditions are not duly met in good time, the delivery dates shall be reasonably extended.
6.13 The Company will, to the best of its ability, deliver the Product within the Delivery Period but it will not be held responsible for its inability to comply with such period. Dates given for delivery are approximate only and the Company shall not be liable for the consequences of any delay. The Company has the discretion to determine the method of shipment of the Product. The Distributor’s request for air freight delivery or such other mode of delivery, other than the Company’s standard operating procedure must be made in writing and are executed at the Distributor’s expense. The delivery of each installment of Product under the order shall be considered as a separate order. Subject to clause 6.14, inability of the Company to deliver any one or more of the said installments of Product shall not entitle the Distributor to treat the whole order as cancelled.
6.14 Delivery of the Product shall be subject to events arising from Force Majeure or to other circumstances beyond the Company's control e.g. war, terrorist attacks, import or export restrictions, industrial disputes, fires, breakdown of machinery or shortage of material or labor, including such circumstances affecting sub-contractors. Any such delay as aforesaid shall not invalidate the order or any part thereof to be fulfilled, the Company shall however be entitled to rescind the agreement wholly or partly without any claims accruing therefrom by the Distributor.
6.15 Delivery under the order shall be sufficient if made by the Company handing to the Distributor a delivery order or written advice on arrival. Delivery must be taken by the Distributor within two (2) days of the issue of such delivery order or written advice on arrival.
6.16 The Distributor may not refuse to take delivery on account of minor defects.
Company’s responsibility
6.17 The Company shall not be held responsible for any damage or loss due to theft, house-breaking of any kind, fires, explosions, floods, strikes, riots or Force Majeure. The Company herewith expressly rejects any responsibility for loss or damage of items in the Distributor’s vehicle(s).
Payment or Passing of Property or Risk
6.18 Payment is to be made in cash unless otherwise agreed by the Company in writing. No counter-claim by the Distributor on the Company may be deducted in settlement. In the case of delay of payment of deterioration of the financial status of the Distributor after the execution of the order, all sums of money owing by the Distributor to the Company including bills and checks not duly met whether notice of dishonor has been given or not, shall become due for immediate cash settlement. Should default be made by the Distributor in paying such sums due, the Company shall have the right either to suspend all further deliveries until the default made good or to cancel the order so far as any part of the Product remain to be delivered hereunder, without prejudice to any claim or right the Company might otherwise make or exercise. The Company shall have the discretion where necessary, to demand for payment in advance or suitable security from the Distributor on placing of an order.
6.19 The title in the Product shall not pass from the Company to the Distributor until the Company has received payment in full in respect thereof. Provided always that from the time of the dispatch of the Product by the Company to the Distributor or the handling to the Customer of a delivery order or written advice on arrival, the risk of any theft, loss or damage to or deterioration of the goods from whatever cause arising shall be borne by the Distributor.
Intellectual property
6.20 All intellectual property in the Product (including patents, marks, Trademark, trade names, industrial designs and copyright) or relating to the development and manufacture of the Product, and in any associated documents and materials, remains at all times the sole and exclusive property of the Supplier or its related company or its licensor at all times. Unless otherwise agreed by the Supplier in writing, the Supplier maintains the right to bring claims against the Distributor for any breaches of intellectual property.
6.21 The Distributor shall not use any trade name, mark, or Trademark owned or licensed by the Supplier (or its related company) or any substantially identical or misleadingly similar words, in a company name, business name, internet domain name or email address.
6.22 The Distributor shall not apply to register a trade name, business name, company name or internet domain name which incorporates any trademark owned or licensed by the Company (or its related company) or any substantially identical or misleadingly similar words.
6.23 The Distributor shall not use any logo, mark or any other promotional material owned by or licensed to the Company in any promotional materials without the prior written consent of the Company.
6.24 The Distributor will cooperate fully with and assist Company in its efforts to protect Supplier’s intellectual property rights within the Territory and shall exercise reasonable diligence to detect and shall immediately advise Company if Distributor has knowledge of any infringement of any patents, trademarks, copyrights or other intellectual property rights owned or used by Supplier.
6.25 The Distributor shall not, and shall ensure that its officers, employees or agents do not:
(a) Disparage the Company or its related company or any of its trademarks or Product or services; or
(b) Do anything which the Distributor should realise is likely to damage the reputation of the Company or its related company or any of its/their trademarks or Product or services.
6.26 The Company is not liable for any claims arising from an actual or alleged infringement of a third party’s intellectual property rights if:
(a) The actual or alleged infringement of the intellectual property rights is due to use in conjunction with another product not supplied by the Company;
(b) The Product is used in a way which could not have been foreseen by the Company.
Advance Forecasts
6.27 Each quarter, at the request from the Company, the Distributor will provide to the Company advance forecasts of its anticipated requirements for the Product by month which will be updated by the Distributor on a rolling monthly basis.
Orders by Distributor
6.28 Purchase Orders shall be placed by the Distributor in writing (email or online order suffices) specifying the number of Product required and the proposed delivery date(s) and shall be subject to acceptance in writing by the Company.
6.29 The prices and terms of payment stated in the Purchase Order apply to solely to the Product.
6.30 Conflicting, inconsistent or additional terms or conditions contained in any order submitted by the Distributor shall not be binding unless the Company specifically accepts such terms and conditions contained in writing
6.31 The Distributor must not cancel and/or suspend an order unless the Company provides its prior written consent. All expenses arising out of the change or cancellation of an order after acceptance by the Company, including the cost of diversion, cancellation or re-consignment of shipments, and any reasonable restocking charge, shall be paid by the Distributor to the Company, on demand.
6.32 The Distributor shall order no less than the Minimum Order of Product per order.
Delivery of Product by Company to Distributor
6.33 The Company shall endeavour to promptly deliver the Product ordered by the Distributor from time to time to the delivery address of the Distributor. This may be changed by agreement in writing.
6.34 The Distributor will be responsible for collection and loading of Product and will from that point be responsible for insurance of the Product.
6.35 In the event the Company has incurred cost for shipping, insurance or handling costs, such cost shall be payable by the Distributor to the Company, within seven (7) days from the date of Distributor’s receipt of the notice.
7. RETURNS
Customer Returns
7.1 The Distributor shall not accept the return of defective Product from Customer without the prior written consent of the Company or except where required by law. All freight and transport costs associated with the return of the Product is the sole responsibility of the Distributor. Such Product must be current and in an undamaged and saleable condition with all packaging intact. The Distributor will, upon request by Company, complete a return request form or other similar documentation provided by Company.
Defective Product
7.2 The Distributor must notify Company in writing within two (2) weeks of receipt of any defective Product as soon as it becomes aware of the defect. In this regard, the Distributor shall be obliged to inspect the Product upon the receipt of the same without delay.
7.3 The Distributor must quarantine any defective Product to Company within seven (7) Business Days of notification of a claim.
7.4 Upon acceptance by the Company of the quarantined defective Product, the Company agrees to apply a replacement for such defective Product.
8. PRODUCT
During the Term the Distributor must:
8.1 Not to reverse engineer, copy, produce, make, modify or manufacture the Product or any part of them for use, sale or any other purpose, or assist any other person to do so;
8.2 Not to re-brand or re-present the Product without the prior written approval of the Company;
8.3 Not without prior written consent by the Company, seek customers, establish a branch or maintain a trading depot for the Product or advertise the Product in any media publication which is principally in a place outside the Territory.
8.4 Not to make any representations or give any warranty relating to or in connection with the Product;
8.5 Not without prior written consent by the Company (such consent not to be unreasonably withheld) sell the Product to any Customer in any place that is:
a) Outside the Territory; or
b) Inside the Territory if, to the Distributor’s knowledge, that Customer intends to resell the Product in a place outside the Territory.
In the event the Distributor receives an order for the Product that does not fall within the Territory, the Distributor is to immediately inform the Company and the Company may at its sole discretion, accept or reject such orders of the Product.
Not to sell, display or trade any fake or counterfeit product that has an effect of damaging and disparaging the Company and the Product.
9. WARRANTIES
The Distributor represents and warrants:
9.1 it has authority to enter into and perform its obligations under this agreement;
9.2 it has the ability to perform its obligations under this agreement; and
9.3 it will not make any false, misleading or deceptive statements with respect to the Company or the Product.
10. DELETION, MODIFICATIONS OR ADDITIONS TO PRODUCT
10.1 Deletions, modifications or additions to the Product (including without limitation, the deletion of Product that are no longer in production or about to be discontinued or the introduction of new Product) may be made by Company from time to time in its sole discretion.
10.2 Company must notify the Distributor of its intention to vary, modify or add to the Product and provide details of the variation, modification or addition (as the case may be).
10.3 The Distributor is not permitted to make any deletions, modifications or additions to the Product at any time without the prior written approval of Company.
11. COVENANT NOT TO SOLICIT
The Distributor shall not, within one (1) year immediately following the termination or determination of this Agreement seek to procure orders, in contravention of the covenant of Confidential Information provided herein, from or do business with any customer who has at any time during the one (1) year immediately preceding such termination or determination been a user of the Product.
12. EXPIRATION
12.1 Upon notice of expiration of the Agreement, the Company or its authorized nominee shall retrieve and/or take over all remaining Product of the Distributor and shall refund the Distributor, monies for the remaining Product and the refund herein shall be based on the price agreed by the Company and the Distributor in writing as reflected in the Purchase Order prior thereto. Such Product must be current and in an undamaged and saleable condition with all packaging intact.
12.2 The Distributor will, upon request by Company, complete a form or other similar documentation provided by Company. The Company shall bear the transportation cost for the retrieving and/or transporting the remaining Product from the Distributor.
12.3 Upon expiration of this Agreement for any reason, the following provisions shall apply:
12.3.1 The Distributor is to immediately notify the Company of the inventory of the Product in possession of the Distributor;
12.3.2 The Company shall have the right at its sole discretion to immediately appoint a distributor to serve the existing customers and continue sales efforts in the Territory;
12.3.3 All amounts owed and/or owing by the Distributor to the Company become immediately due and payable to the Company;
12.3.4 All rights granted to the Distributor under this Agreement shall cease, and be of no further effect, unless otherwise agreed by the Parties herein in writing;
12.3.5 The Distributor shall remove all advertisement, promotional pictures and any other illustration in relation to the Product from all social networking accounts owns and/or operates by the Distributor;
12.3.6 The Company is entitled to deal directly with the Distributor’s Customers and/or agents as the case may be, to and negotiate arrangements of the sale of the Product and/or contracts with them; and
12.3.7 The Distributor must promptly return to the Company all Confidential Information, promotional materials and documentation in its possession relating to the Product, the Supplier and the Distributor’s activities in relation to the Product.
No consideration or indemnity shall be payable to Distributor either for loss of profit, goodwill, customers or other like or unlike items, nor for advertising costs, costs of samples or supplies, termination of employees, employees’ salaries and other like or unlike items. In no event shall Distributor continue to represent itself as a Company’s distributor or representative after termination of this Agreement. Company shall have no liability to Distributor by reason of any termination by Company. Distributor shall indemnify and hold harmless Company from and against any and all liability, loss, damages and costs (including reasonable attorneys’ fees) arising out of any claim by Distributor or any third party standing in the right of Distributor to any right of entitlement contrary to the express terms of this clause.
13. TERMINATION
13.1 The Company may, at its sole and absolute discretion, terminate this agreement with immediate effect by giving thirty (30) days’ notice to the Distributor without assigning any reason thereto. In such event, the Company or its authorized nominee shall retrieve and/or take over all remaining Product of the Distributor and shall refund the Distributor, monies for the remaining Product and the refund herein shall be based on the price agreed by the Company and the Distributor in writing as reflected in the Purchase Order prior thereto. Such Product must be current and in an undamaged and saleable condition with all packaging intact.
13.2 The Distributor will, upon request by Company, complete a form or other similar documentation provided by Company. The Company shall bear the transportation cost for the retrieving and/or transporting the remaining Product from the Distributor.
13.3 In addition to any other rights in this agreement, the Company may, at its sole and absolute discretion, terminate this agreement with immediate effect to the Distributor, without any liability whatsoever resulting from such termination, if:
13.3.1 The Distributor commits a breach of this agreement that is not capable of remedy or persistently commits any breach of this agreement which it is required to remedy pursuant to this agreement;
13.3.2 In the event the Distributor fails to satisfy the Minimum Order of Product for the Term;
13.3.3 The Distributor breaches any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within thirty (30) days after service on it of a notice giving particulars of the breach and requiring it to be remedied;
13.3.4 There is a change in the shareholding, ownership or control of the Distributor that, in the absolute discretion of the Company, affects its legal or commercial interests;
13.3.5 The Distributor engages in any material misrepresentation or misleading and deceptive conduct; or
13.3.6 The Distributor engages in dishonest, illegal or fraudulent conduct or acts in a manner likely to bring the Company into disrepute or which is harmful to the Company’s reputation.
13.4 Either party may terminate this agreement by written notice to the other party effective immediately, without any liability whatsoever resulting from such termination, if:
13.4.1 An event of Force Majeure (as described in this agreement) affecting the other party continues for a period in excess of sixty (60) days from the day of receipt of the notification);
13.4.2 The other party is the subject of insolvency, winding-up, liquidation or similar proceedings (whether voluntary or involuntary), enters into receivership, judicial management or similar proceedings, enters into scheme of arrangement or similar proceedings or enters into any other debt-settlement mechanism;
13.4.3 The other party ceases or threatens to cease to carry on its business or is unable to pay its debts as and when they fall due; or
13.4.4 The other party changes its organisation or business methods in a way that materially or adversely affects its ability to carry out its obligations under this agreement.
13.5 Nothing in this clause 13:
13.5.1 prejudices any other right or remedy of either party in respect of the breach concerned (if any) or any other breach; or
13.5.2 affects any rights or liabilities that have accrued to either party before this agreement is ended.
13.6 Upon notice of termination of this Agreement for any reason, the following provisions shall apply:
13.6.1 The Company shall have the right to immediately appoint a distributor to serve existing customers and continue sales efforts in the Territory;
13.6.2 All amounts owed and/or owing by the Distributor to the Company become immediately due and payable to the Company;
13.6.3 All rights granted to the Distributor under this Agreement shall cease, and where appropriate, revert to the Company;
13.6.4 The Distributor shall remove all advertisement, promotional pictures and any other illustration in relation to the Product from all social networking accounts owns and/or operates by the Distributor;
13.6.5 The Company is entitled to deal directly with the Distributor’s Customers and negotiate contracts with them; and
13.6.6 The Distributor must promptly return to the Company all Confidential Information, promotional materials and documentation in its possession relating to the Product, the Supplier and the Distributor’s activities in relation to the Product.
No consideration or indemnity shall be payable to Distributor either for loss of profit, goodwill, customers or other like or unlike items, nor for advertising costs, costs of samples or supplies, termination of employees, employees’ salaries and other like or unlike items. In no event shall Distributor continue to represent itself as a Company’s distributor or representative after termination of this Agreement. Company shall have no liability to Distributor by reason of any termination by Company. Distributor shall indemnify and hold harmless Company from and against any and all liability, loss, damages and costs (including reasonable attorneys’ fees) arising out of any claim by Distributor or any third party standing in the right of Distributor to any right of entitlement contrary to the express terms of this clause.
14. INDEMNITY
The Distributor indemnifies and agrees to keep indemnified the Company, its directors, officers, employees, shareholders and agents against all claims, actions, liabilities, damages, losses, costs (including legal costs on an indemnity basis and amounts paid in investigation, defence, settlement or financial penalties) and demands made or which may be made against the Company in relation to this agreement, any breach of this agreement or the conduct of the Distributor’s business after the Commencement Date. In the event of any legal proceedings, the Distributor’s indemnity obligations as contained herein shall be on a solicitor-client basis. This clause will survive termination of this Agreement.
15. FINANCIAL INFORMATION
Upon reasonable notice to the Distributor, the Company or its appointed representative may review the financial condition of the Distributor’s business. The Distributor agrees to fully co-operate in such a review and promptly provide copies of or access to financial records and statements, forecasts, business plans, banking contacts and loan documents as requested by the Company. The Company will keep confidential any non-public information provided to the Company pursuant to this clause and only use such information for the purpose of assessing the Distributor’s ongoing ability to comply with this agreement.
16. OWNERSHIP IN PRODUCT
16.1 Risk in the Product, including without limitation the risk of theft, loss, damage, delay or deterioration of the goods, passes to the Distributor on the Distributor or its agent or carrier upon:
a) The dispatch of the Product from the Company to the Distributor;
b) The taking of the physical possession of the Product; or
c) The handling to the Distributor of a delivery order or any other written advice on arrival of the Product.
16.2 Notwithstanding clause 16.1, property in and title to the Product shall pass to the Distributor upon the Company’s receipt of full payment in respect of the Product thereof.
17. TAX
All sums payable under this agreement are exclusive of any goods or services tax (“Tax”) or tax of similar nature as may be imposed by the Government of Singapore. If any Tax is to be paid by the Distributor as required by law, the Distributor must provide the Company with a valid Tax invoice and shall be entitled to levy the Tax on top of the charges payable by the Company.
The Distributor shall be solely responsible for all payment of taxes, levies and such other charges imposed by the authorities and/or government agency/ies of the Territory.
18. NOTICES
18.1 All notices, orders, acceptances, requests, demands, requisitions, approvals, elections, consents or other communications shall be in writing in the English language and shall be deemed to be duly given or served when delivered personally by hand (as evidenced by a stamp or notation of receipt), by prepaid registered mail or courier (as evidenced by a delivery confirmation), by facsimile (as evidenced by a transmission confirmation) or by e-mail (as evidenced by a confirmation of receipt) to the other party at the following addresses (or such other addresses as may be notified by one party to the other party from time to time):
18.2 Any such notice may be given or signed on behalf of the party giving or serving the same by a director, secretary or other duly authorised person, whose authority need not be established.
19. GENERAL
19.1 Whole agreement
This agreement (including all Schedules hereto, which form an integral part of this agreement) constitutes the whole of the agreement between the parties. It supersedes and extinguishes any previous agreement or understanding between the parties about the subject matter of this agreement and any representation or warranty previously given (whether oral or written, express or implied).
The headings or titles preceding the text of the clauses and Sub-clauses are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement. Both parties have participated in the negotiation and drafting of this Agreement. This Agreement is executed in the English language and may be translated into another language for informational purposes only. In the event an ambiguity or question of intent or interpretation arises, the English version of this Agreement shall prevail and this Agreement shall be construed as if drafted by both of the parties and no presumption or burden of proof shall arise favouring or disfavouring either party by virtue of the authorship of any of the provisions of this Agreement.
19.2 Relationship Between the Parties
Nothing in this agreement shall be construed as implying that the relationship between the Distributor and the Company is that of partners, joint ventures or employer and employee. The Distributor acknowledges, agrees and confirms that its position and relationship with the Company is that of an independent contractor and that it has no authority to act for or assume any obligation on behalf of the Company other than in accordance with the authority expressly conferred on it by this agreement.
19.3 Assignment and Delegation
The Distributor must not assign any rights or delegate its obligations this Agreement (whether in whole or in part) without the prior written consent of the Supplier, which consent can be withheld at the Supplier’s sole discretion. Any assignment or delegation attempted without such written consent shall be void and of no legal effect whatsoever.
19.4 Limitation of Liability
The Supplier shall in no event be liable for any indirect, special, exemplary, incidental or consequential loss or damage or any lost profits, lost savings, or loss of revenues suffered by the Distributor arising from or in any way connected with this Agreement or the sale, distribution or use of Supplier Product. The Distributor shall indemnify the Supplier and hold Supplier harmless from any claims, demands, liabilities, suit or expenses or any kind arising out of the sale, sublicense or use of the Supplier’s Product in the Territory or by Distributor’s customers. This clause shall survive the termination and/or the cessation of this Agreement for any reason.
19.5 Force Majeure
Neither party will be liable for a failure to perform or any delay in the performance of its obligations under this agreement caused by circumstances beyond its reasonable control (“Force Majeure”), provided it notifies the other party in writing, as soon as practicable, of the nature, particulars and expected duration of the cause. Such Force Majeure events shall include but are not limited to: protests, riots, civil unrest, acts of terrorism, war, embargoes, infectious diseases, epidemics, strikes, industry-wide material shortages outside Supplier’s reasonable control, an outbreak of a pandemic disease strikes or other labour disputes, government measures or regulations, fire, flood, earthquake, explosion and other Acts of God or catastrophes. The party affected by an event of Force Majeure shall use its best endeavours and take all reasonable measures to promptly resume performance of its obligations under this agreement.
19.6 Severance
If a provision of this agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this agreement. Any such reading down or severance does not affect the validity and enforceability of the remaining provisions of this agreement in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.
19.7 Governing Law and Dispute Resolution
This agreement shall be governed by and construed in accordance with the laws of Singapore. Any person who is not a party to this agreement shall not have any right to enforce any of the terms of this agreement. Any disputes arising out of or in connection with this agreement (including but not limited to any question regarding its existence, validity or termination), which cannot be settled between the parties within one (1) calendar month of notification of the dispute by the dissatisfied party, shall be referred to a mediation process appointing a Mediator to be agreed unanimously by the Parties herein and in the event the mediation process fails, the Parties are at liberty to address the dispute in the Courts of Singapore.
19.8 Taxes duties, excise
Subject to clause 17, the Distributor will bear any and all taxes, excises and duties relating to the sale and trading of the Product in the Territory.
19.9 Confidentiality
The Distributor acknowledges that in the course of performing the Distributor's obligations hereunder, the Distributor will receive information which is confidential and proprietary (“Confidential Information”) to the Supplier.
Confidential Information includes all communications and informations, whether written, electronic or oral, which Distributor knows or reasonably should know is proprietary, confidential or a trade secret of Supplier, including any and all technical or business information, the Software including its source codes and documentation, specifications and design information for the Supplier’s Product, servicing information, customer lists, pricing information, marketing information, policies, procedures and manuals regarding Supplier’s distributors or distribution channels, research and development and other proprietary matter relating to the Supplier Product or business of Supplier. The Distributor will refrain from using the Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. The Distributor will likewise restrict its disclosure of the Confidential Information to those who have a need to know such Confidential Information in order for the Distributor to perform its obligations and enjoy its rights under this Agreement. Such persons will be informed of and will agree to the provisions of this clause and the Distributor will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them. Upon termination of this Agreement (or earlier, upon request by the Supplier), the Distributor shall cease to use all Confidential Information and promptly return to the Supplier (or destroy, upon request by the Supplier) any documents (whether written or electronic) in its possession or under its control that constitutes Confidential Information.
During the term of this Agreement and thereafter, neither the Distributor, nor the Distributor’s employees, independent contractors nor other agents shall:-
a. Reverse engineer, decompile or otherwise disassemble the Supplier Product from the Product themselves or from any other information made available to them; or
b. Use or disclose any of the Confidential Information or Supplier provided training to support, maintain or otherwise service a third party’s Product or services except as may be required in performance of this agreement.
19.10 Data Protection
19.10.1 The Distributors’ personal data shall be collected by the Company and used for the registration, verification of identity and communication purposes only.
19.10.2 Notwithstanding the preceding paragraph, no personal data collected shall be disseminated nor disclosed to any other third parties.
19.10.3 To safeguard personal data from unauthorized access, use, disclosure, copying and modification, disposal or similar risks, appropriate administrative physical and technical measures such as up-to date antivirus protection, encryption and the use of privacy filters to secure all storage and transmission of personal data shall be accorded. Disclosure of personal data internally shall be on a need-to-know basis.
19.10.4 Distributors should be aware, however, that no method of transmission over the internet or method of electronic storage is completely secure. Whilst security cannot be guaranteed, the Company will strive to protect the security of the Distributors’ personal date and will constantly review and enhance information security measures.
19.10.5 Distributor shall have a right of access to a copy of the personal data that the Company or its affiliates hold in order to correct or update any personal date which is being held. Distributors may submit a request in writing or via email to the Data Protection Officer at the contact details provided below:-
Data Protection Officer’s Name: LAFRE SAP Pte Ltd
Contact email: [email protected]
Telephone Number: 87600727
19.10.6 A nominal fee of SGD 0 shall be charged for an access request.
19.10.7 The Company shall respond to your access request as soon as reasonably possible. Should the Company not be able to respond to your access request within fourteen (14) working days after receiving your access request, the Company will inform the Distributor in writing
within fourteen (14) days of the time by which the Company shall be able to respond to the request. If the Company is unable to provide you with any personal data or to make a correction requested by you, the Company shall inform the Distributor on the reasons why the Company is unable to do so (except where the Company is not required to do so under the Personal Data Protection Act).
19.10.8 The Distributor acknowledges that that depending on the request that is being made, the Company will only need to provide access to the personal data contained in the documents requested, and not to the entire documents itself. In these cases, the Company shall provide
with confirmation of the personal data that the Company and its affiliates has on record, if the record of the Distributors’ personal date forms a negligible part of the document.
19.10.9 The Distributor acknowledges that that personal data shall not be transferred to other countries save as for the Company’s server based in Malaysia having its registered address at No.50-01, Jalan Ekoperniagaan 1/3, Taman Ekoperniagaan, 81100 Johor Bahru, Johor, Malaysia.
19.10.10 Should there be a need for the transmission of personal data other than the Supplier, the Company will obtain the Distributors’ consent for the transmission and will take steps to ensure that your personal data continues to receive a standard of protection that is at least comparable to that provided under the PDPA.
19.11 Variation of agreement
This agreement can be amended or varied only by written document executed by the parties or by persons duly authorised to sign on behalf of the parties.
19.12 Inconsistency
The rights and entitlements of the Company under this agreement and its Schedules and any other documents executed with or issued to the Distributor thereunder are entirely cumulative. If there is any clear inconsistency between a term of this agreement and anything contained in a Schedule, the term of this agreement will prevail to the extent of the inconsistency.
19.13 No Waiver
The Distributor acknowledges and agrees that any failure on the part of the Company to enforce at any time or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provisions or of the right of Company thereafter to enforce each and every provision.
19.14 Counterpart
This agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. The Company and the Distributor may enter into this agreement by executing any such counterpart.
19.15 Execution
The Parties hereby agree to use digital signature or signature in writing for the purpose of this Agreement. The Parties hereby agree that using digital signature shall be treated with the same legal force and effect as signature written by hand, and will not be denied legal validity solely due to the fact that the signature is in electronic form.
