Distribution and Marketing Agreement - sample

AN AGREEMENT made on the day of

Between …., a Company incorporated in Malaysia and having its

registered address at ……..

(hereinafter called "the First Party" which expression shall where the

context so allows include the assigns of the First Party) of the one part

And ……., a Company incorporated in Malaysia and having its

registered address at ………

(hereinafter called "the Second Party") which expression shall where

the context so allows include the permitted assigns of the Second

Party) of the other part.

NOW THIS AGREEMENT WITNESSETH as follows:-

APPOINTMENT

1. The First Party hereby appoints the Second Party to be:-

(i)its non exclusive distributor and the Second Party agrees to act

as such to establish promote market and extend the sale of all the

range of concrete products of the First Party (hereinafter called "the

products") in Malaysia (hereinafter called "the Territory").

(ii) The relationship of the Second Party to the First

Party shall be that of an independent contractor purchasing the

Products for resale and being rewarded by its profit on such resale

and the Second Party shall not (except as herein expressly

provided) be entitled to any remuneration or reimbursement of

expenses from the First Party and nothing herein shall constitute any

contract of Agency or partnership between the First Party and the

Second Party. Nothing herein shall confer any right or interest in the

Second Party in any trade mark or brand name of the First Party.

DUTIES OF THE SECOND PARTY

2. The Second Party shall:-

(a)diligently promote the interest of the First Party and shall use its

best endeavours to sell the Products within the Territory and

maintain the reputation of the Products associated with the First

Party;

(b)not do anything which may prevent or hinder the development or

cause injury to the reputation of the First Party's trade in the

Territory;
(c)at all times maintain a comprehensive stock of Products at a level

adequate for the requirements of the Territory;

(d)not in any way modify the Products without the First Party's

written consent and in particular shall not carry out any,

(i)repacking of the Products;

(ii)make any marking on the Products sold.

(e)be in no way the legal representative of the First Party and have no

right or authority to assume any obligations or make any representation

of any kind which are or might be binding upon the First Party,

and this Agreement shall not permit or empower the Second Party to

undertake financial, or other responsibility, or to contract debts, or

incur liabilities of any kind in the name of, or as distributor for or on

behalf of, the First Party, or to pledge the credit of the First Party in

any way.

(f)not assign, transfer or in any manner make over this Agreement

or any right or obligation hereunder to any person or persons or

organization whatsoever without the consent in writing of the First

Party;
(g)report on Market Opportunities and Competitor activity on a such

intervals as the First Party may reasonably require;

(h)keep confidential any information provided by the First Party

(including prices of the Products, plans for product development, etc),

acquired in the course of this Agreement and shall not

disclose or make known any of such information to any individual

firm or corporation except when authorised in writing to do so by the

First Party;

(i)upon termination of this Agreement, for whatever reason, return to

the First Party, without delay, such confidential documents (including

price list or such other documents) as the First Party requires;

(j)after termination of this Agreement not to use the name of the First

Party or refer to itself as being in any way associated with the First

Party.

DUTIES OF THE FIRST PARTY

3. The First Party shall during the continuance of this Agreement:-

(a)sell the Products to the Distributor at the First Party's prices

applicable at the time;

(b)provide the Distributor with up to date price lists and discount

schedules and notify the Distributor at the earliest opportunity of

any price changes;

(c)at the First Party's own expense supply the Second Party with such

amount of sample of the Products pamphlets catalogues and

advertising material in any language as it considers in its discretion

to be reasonably sufficient with a view to promoting sales of the

Products within the Territory;

(d)whenever the First Party considers it necessary send at its own cost

a representative to visit the Second Party for the purpose of promoting

sales of the Products;

(e)shall give to the Second Party any information and advice reasonably

requested by the Second Party in connection with the marketing

advertising, packaging and Product content in respect of the Products

and any reasonable guidance requested by the Second Party regarding

marketing.

PERIOD

4. This Agreement shall commence on the day of and

shall continue for a period of .... years unless terminated by ......

(..) months notice in writing given by either party hereto to the other

for breach of any of the terms hereof.

If the second Party has observed and performed the terms and

obligations of this Agreement the Second Party shall have an option

to be exercised in writing ... (..) months prior termination by

effluxion of time of this Agreement to continue with the

distributorship for the Territory for another .... (..) years subject to

mutual agreement on the price of the Products but all other terms and

conditions shall remain the same.

RESTRICTION ON DEALING IN OTHER PRODUCTS

5. The First Party agrees that the Second Party may engage in the

selling manufacturing or otherwise being concerned in the sale and

manufacture of products similar with or in the same class of

merchandise as the products of the First Party.

NO RESTRICTION ON FIRST PARTY SELLING WITHIN TERRITORY

6. The Second Party agrees that the First Party shall be entitled to

sell the Products to any other person, company or firm in the Territory

or to any person, company or firm outside the Territory.

SUPPLY OF PRODUCTS AND ORDERS

7. The First Party undertakes to supply to the Second Party such

reasonable and adequate supply of the Products as shall be ordered by

the Second Party. The Products shall be properly packed and secured

in such a manner as to reach the destination in good condition under

normal condition of transport and shall be delivered by the First Party

to the place or places and in the manner specified in the order or as

subsequently agreed.

PRICE/PAYMENT TERMS/OTHER CONDITIONS OF SALE

8.(i)The First Party shall sell the Products to the Second Party during

the duration of this Agreement at the price as contained in the Schedule

hereto.

(ii)The Second Party agrees covenants and undertake to pay the First

Party for the Products supplied within sixty (60) days of delivery by

the First Party.

(iii)Upon execution of this Agreement, the Second Party shall provide

a Banker's Guarantee to the First Party in the sum of Ringgit

Malaysia .. (RM..) as security for the performance of the Second

Party's obligation herein. The terms and conditions of the Banker's

Guarantee is subject to the First Party's approval.

 (iv)The Second Party acknowledges that it owes the First Party a

sum of Ringgit Malaysia

(hereinafter called "the said debt") as of 31st December 1995. The

Second Party covenants agrees and undertake that commencing from

the date of this Agreement, it will pay the First Party a sum of Ringgit

Malaysia … (RM..) each month until the said debt and all interest (if

any) has been fully paid to the First Party. For the avoidance of doubt,

it is expressly agreed and understood that any payment of the said

debt is separate and independent from the Second Party's obligations

to comply with Clause 8 (ii) herein.

APPOINTMENT OF AUTHORISED DEALERS

9. The Second Party shall have the right to appoint retail

traders for the sale of the Products in the Territory.

FORCE MAJEURE

10.1No party shall be liable for failure to fulfill any obligation under this

Agreement to the extent that such failure is due to unforeseen

circumstances beyond the reasonable control of the party

concerned including but not limited to inclement weather, acts of god,

strikes, war, governmental action or policy and any other cause or

causes whether similar or dissimilar to those herein specified.

10.2In the event of the occurence of any of the above circumstances

set out in Clause 10.1 above, the party prevented from fulfilling its

obligations shall give written notice and full particulars thereof as

soon as practical to the other party.

10.3If as a result of legislation or governmental action including but

not limited to termination of the relevant licences of any party for any

reason whatsoever and the said party is precluded from receiving any

benefit to which it is entitled, the said party shall use their best efforts

to restore itself to the same relative position as previously enjoyed by

them hereunder and in the event of failing to achieve the same, this

Agreement shall be terminated without prejudice to either party

herein claiming against the other for any antecedent breach.

WARRANTY

11. (a)The First Party shall ensure that all Products are in accordance

with the general description and packaging under which they are

ordered and warrants that the Products shall be in good and

merchantable condition in conformity in all respects with the

specifications agreed by the parties hereto;

(b)The First Party will indemnify the Second Party against all
claims and demands arising out of any breach by the First Party of the

provisions of the preceding Clause and against all costs reasonably

incurred by the Second Party incidental to or consequent on any

such claims and the Second Party shall immediately inform the First

Party of any threat or matter likely to lead to a claim under this

Clause.

REPLACEMENT OF PRODUCTS

12. If any of the Products shall have to be withdrawn or cannot be

sold by the Second Party due to complaints and/or defects save for

wrongful storage or defects caused by the Second Party's and or its

servants or agents own omission or negligence, the First Party agrees

to replace free of charge the products so withdrawn within thirty (30)

days of notification being received from the Second Party.

TERMINATION

13.1 (i)In the event of any breach of any term and/or conditions of

this Agreement and/or if either party becoming insolvent or going into

liquidation (other than for the purposes of amalgamation or

reconstruction), or making any arrangement with its creditors, or

having a receiver, administrator or manager appointed or undergoing a

major change of control or management or being guilty of any breach

of the terms or conditions of this Agreement the other party shall

be at liberty to terminate this Agreement forthwith by notice in

writing.

(ii)Upon termination of this Agreement:-

(a)the First Party shall have the option to purchase from the Second

Party at the total landed cost to the Second Party all or any saleable

Products then in the Second Party's possession;

(b)neither party shall have a claim against the other arising from such

termination apart from:-

(i)claims by the First Party for amounts due for Products supplied to

the Second Party; and

(ii)claims by the Second Party in respect of Products repurchased by the

First Party under paragraph (a) above.

13.2 Any termination of this Agreement (whether under this section or

otherwise) shall not relieve either party of any obligation under this

Agreement which is expressed to continue after termination and

failure by either party in any one or more instances to terminate this

Agreement on account of any default or breach by the other shall not

be taken to constitute a condonation or waiver of the same or of any

other default or breach by the other.

13.3 Failure by either party in any one or more instances to terminate

this Agreement on account of any default or breach by the other shall

not be taken to constitute a condonation or waiver of the same or of

any other default or breach by the other.

SEPARABILITY OF TERMS

14. The invalidity or unenforceability for any reason of any part of

this Agreement shall not prejudice or affect the validity or

unenforceability of the remainder of this Agreement.

NOTICES

15. Any notice required or permitted to be given under this Agreement

shall be deemed duly served if sent by registered mail personal

delivery or other means whereby receipt is recorded or fascimiled,

telexed or cabled to the following addresses:-

All notices hereunder shall be effective when received at the respective

addresses as aforesaid.

AMENDMENT
16. This Agreement may be varied by the written consent of the

parties hereof.

LANGUAGES

17. The language of this Agreement and all correspondences between

the parties hereto shall be in the English Language.

GOOD FAITH

18. In entering this Agreement the parties hereto recognize that it is

impracticable to make provision for every contingency that may

arise in the course of the performance thereof. Accordingly the parties

hereto hereby declare it to be their intention that this Agreement

shall operate between them with fairness and without detriment to

the interest of either of them and if in the course of

performance of this Agreement unfairness to any party is disclosed

or anticipated then the parties hereto shall use their best and zealous

endeavours to agree upon such action as may be necessary and

equitable to remove the cause or causes of the same and the parties

shall at all times during the continuance of this Agreement conducts

themselves in a manner which reflects the spirit of this Agreement.

ASSIGNMENT

19. Neither party hereto shall assign or transfer their rights,

benefits, obligations herein without the other party's prior written

consent.

ARBITRATION

20. All disputes, if any, in connection with this Agreement shall be

settled amicably through friendly negotiations. Where no settlement

can be reached the dispute/s shall be submitted for arbitration. The

arbitration shall take place in Kuala Lumpur and conducted by the

Arbitration Committee. The decision of the Arbitration Committee shall

be accepted as final and binding upon both parties. Arbitration

expenses shall be borne by the losing party.

COSTS AND EXPENSES

21. Each party shall bear their own costs (including

Solicitors fees) incidental to the preparation of this Agreement.

IN WITNESS WHEREOF the parties hereto have hereunto

set their hands the day and year first above written.

Signed by )

for and on behalf of )

in the presence of:- )

Signed by )

for and on behalf of )

in the presence of:- )