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Terms and Conditions
NOW IT IS HEREBY AGREED as follows:
1. SCOPE OF THE COLLABORATION
1.1. Subject to the terms and conditions of this Agreement, the Parties agree to collaborate with each other on the following matters: -
a) Engagement and acceptance of either both Party’s sales platform functionality on the other Party’s on platform; and
b) The integration of both Party’s online platform core functionalities, including but not limited to the offering and sales of the Products or services, into the other Party’s online platform
(collectively, the “Collaboration”)
1.2. The Parties hereby agree that each Party shall bear its own costs and expenses incurred in respect of facilitating the Collaboration or subject to a cost sharing principle as to be agreed by the Parties in writing from time to time.
2.1. This Agreement shall be for a period of twelve (12) months commencing from the Effective Date (“Initial Term”) unless mutually terminated by the Parties or terminated in accordance with Clause 8 below.
2.2. Upon the expiry of the Initial Term, this Agreement may be extended for a further twelve (12) months by mutual agreement of the Parties in writing.
3. THE PARTIES’ OBLIGATIONS
3.1. Subject to the terms and conditions of this Agreement, the Parties hereby agree and/or undertake to the other Party that it shall do all things necessary to facilitate the Collaboration, including but not limited to : -
a) allowing the Customers to make payments via either Party’s system;
b) not discriminate either Party’s system against other modes of payment or any Customers who seek to make payment via either Party’s system;
c) granting to both Parties a non-exclusive, royalty-free right to publish, promote and sell the Products or services via either Party’s platform and to publish, market and advertise the other Party’s Content and the Collaboration;
d) taking full responsibility in relation to all customer service and support for the Products and Services;
e) addressing and resolving all warranty, refund or return requirements of the Customers;
f) allowing and facilitating any marketing/promotional activities contemplated by either Party which may include but not limited to the use of either Party’s name, branding and logo, announcement and joint promotions;
g) fullfilling the orders from the Customers;
h) attending to any queries diligently and promptly from either Party’s Customers in relation to the Products or Services;
i) making available information/documentation and provide reasonable access to support either Party and its Personnels to enable the Collaboration;
j) ensuring smooth operations and taking responsibility for the other Party’s operation integrated with each other operation;
k) delivering a Monthly Performance Report to either Party in the format mutually agreed by the Parties, which shall include (but not limited to) details of number of Products sold or Services provided and frequency;
l) conducting marketing/promotional activities to promote the Collaboration at its own costs and expenses unless agreed otherwise in agreement;
m) ensuring that its obligations under this Agreement are performed in a timely and efficient manner;
n) ensuring that it obtains, procures and secures any and all permits, permission, licenses, authorities and consent from any and all relevant authorities and/or third parties as may be applicable and/or necessary to ensure the due performance of its obligations hereunder; and
o) observing and complying with all applicable laws, rules, directives and regulations including all amendments and variations which will in any way affect the Collaboration.
4. PAYMENT OF SETTLEMENT
4.1. In consideration of this Collaboration;
a) A Party shall pay to the other Party a Commission as per Schedule 1 of this Agreement. Such Commission shall be paid within Thirty (30) days from the date of invoice from the other Party; and
(for the avoidance of doubt, the Partner shall pay to the Company or vice versa, whenever applicable, a Commission as per Schedule 1 of this Agreement. Such Commission shall be paid within Thirty (30) days from the date of invoice from the Partner or the Company, whenever applicable.)
b) all payments received by a Party from the Customers arising from the Customers’ purchase of the Products shall be remitted to the other Party in accordance with Schedule 1 of this Agreement.
(for the avoidance of doubt, all payments received by the Partner from the Customers arising from their purchase of the Products shall be remitted to the Company in accordance with Schedule 1 of this Agreement; and vice versa, whenever applicable.)
4.2. Payments of Commission shall be based on the Monthly Report and Parties agree that the Monthly Report shall be the only report used for the payment of the Commission.
4.3. All payments to be made pursuant to this Agreement shall be in Malaysian Ringgit.
4.4. The Parties agrees that in respect of taxes applicable to this Agreement:
a) Corporate Income Tax
Both Parties agree that the Partner and the Company shall be responsible for their respective obligations and other administrative requirements in relation to corporate income tax arising from this Agreement. The Parties shall be responsible for and pay their respective corporate income taxes on time in accordance with the prevailing tax regulations.
b) Sales Service Tax (“SST”) or tax of similar nature
Where any service tax is applicable on any goods or services supplied under this Agreement imposed by the relevant Malaysia authorities, the Parties shall pay for the appropriate service tax under each invoice provided.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. All Intellectual Property Rights provided by a Party to the other Party shall remain vested in and be the absolute property of the first-mentioned Party.
5.2. Neither Party has the right to cause or allow the software codes of the other Party’s system to be edited, copied, distributed, modified, reverse engineered, introduce malicious code, compromise or used for any other purpose other than the purpose contemplated in this Agreement.
5.3. Unless otherwise stated in this Agreement, a Party shall only utlilise the other Party’s Intellectual Property Rights upon owning the Party’s written consent and solely for the activities contemplated in this Agreement only.
5.4. The Parties shall grant each other, the non-exclusive and royalty free right to use, market and modify the other Party’s Content and use the other Party’s logo, branding and icons for the purposes of fulfilling the obligations of this Agreement only.
5.5. Each Party shall fully indemnify the other against any direct and court validated loss, cost, expenses or other liability, arising out a claim or demand by a third party alleging that a Party’s Content provided to the claiming Party infringes any such Intellectual Property Right. The potentially infringing Party shall be allowed time to address and resolve any such claims arising at its own costs, with the help of the other Party, where required.
6.1. Each Party hereby undertakes, reperesents and warrants to the other Party that:-
a) It has the power and authority to enter into and perform its obligations under this Agreement
b) It has full power and authority to execute and deliver this Agreement and to perform its obligations and that this Agreement hereby constitute its valid and legally binding obligations, enforceable against it in accordance with its terms and the execution and delivery of, and the performance by it of its obligations under this Agreement shall not :
i. Result in a breach of its constitutive documents and do not infringe, or constitute a default under, any instrument, contract, document or agreement to which it is a party or by which or its assets ar bound; and/or
ii. Result in a breach of any law, rule, regulation, ordinance, order, judgment or decree of or undertaking to any court, government body, statuotry authority or regulatory, administrative or supervisory body to which it is subject to or by which it or its assets are bound;
c) All information and documents, including but not limited to the Party’s Content and Platform provided to the other Party is accurate, complete and up-to-date, and that it does not violate any law or regulation; and
d) It has all the right necessary to perform its obligations under this Agreement and that no third party has or is entitled to claim any Intellectual Property right or interest in any Party’s Content or any deliverables, documents or materials arising form the Party’s performance of its obligations.
7.1. The Parties agree to mutual indemnification of Other Party and its subsidiaries (collectively “Indemnified Persons”) against court verified and directed, direct, justifable costs, claims, demands, loss, damage, liabilities and expenses howsoever incurred, suffered, paid or payable by the Indemnified Persons (including legal costs on a solicitor client basis) in respect of:
a) the other Party’s negligent or willful act or omission or misconduct or those of its Personnel during the performance of its obligations under this Agreement;
b) any infringemen of third party Intellectual Property Rights arising from anything provided pursuant to this Agreement; and
c) any material breach of this Agreement.
8.1. Either Party may terminate this Agreement for any reasons by giving notice of termination within seven (7) days to the other party provided no outstanding
8.2. This Agreement may be terminated immediately by giving written notice by any Party, if the other Party: -
a) Breaches any provision of this Agreement, provided that the Party has given the defaulting written notice to rectify such breach within fourteen (14) days and the defaulting Party fails to do so within the said period; or
b) become insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditors, permits the appointment of a receiver and manager for its business or assets, or becomes subject to any legal proceedings relating to insolvency, reorganisation or the protection of creditors’ right or otherwise ceases to conduct business in the normal course.
8.3. Upon termination or expiry of this Agreement: -
a) Each Party shall forthwith return to the other Party all equipment, originals and any copy of any software, books, documents, records, papers and materials that are in its possession; and
b) The Parties shall, in a prompt and orderly manner, discontinue from making commitments and shall proceed to terminate all obligations under this Agreement promptly as is practicable; and
c) Subject to Clause 4, both Parties shall, as soon as practicable and no longer than two (2) months form the date of termination, release any undisputed outstanding payments to the other Party designated Bank Account.
9. LIMITATION OF LIABILITY
9.1. Neither Company nor the Partner makes no warranties that each other online platform will be free from errors or defects.
9.2. Both Parties disclaim all express and implied warranties, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement on the rights of the third parties in relation to the promotion, advertising and sale of the Products on both Party’s online platform.
10. FORCE MAJEURE
No delay or failure of performance by either Party of its obligations hereunder (except the obligation to pay money) shall be deemed to be a breach of or default under this Agreement nor give rise to any claim by the other Party hereto if and so long as such delay or failure is occasioned by or in consequence of any Acts of God; strikes, lockouts, or other labour disputes; utility outrages or interruptions, system transmission failure, severe failure, the order or direction of any court or other authorities having jurisdiction; and any other cause of circumstances whether of the kind herein enumerated or otherwise which is not within the reasonable control of the Party invoking this clause, and not the result of its negligence or lack of due diligence.
11. RELATIONSHIP OF PARTIES
The Parties shall perform all of their duties under this Agreement as independent contractors. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, fanchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking.
All rights and obligations hereunder are personal to the Parties and each Party shall not assign any such rights and obligation to any third party without the prior consent in writing of the other. Where such consent is given, the Party which is the assignor shall procure that such third party covenants with the other Parties to be bound by the terms of this Agreement as if it had been a Party hereto in place of the assignor.
13. NO WAIVER
No failure by any Party hereto to exercise and no delay by any Party hereto in exercising any right, power or remedy under this Agreement operate as a waiver. Nor will any single or partial exercise by any Party hereto of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy by such Party. The rights and remedies herein are in addition to any rights or remedies provided by the law.
Any one or more clauses, stipulation or provisions in this Agreement, or any part thereof, which is declared or adjudicated to be illlegal, invalid, prohibited or unenforceable under any applicable law in any jurisdiction shall be ineffective to the extent of such illegality, invalidity, prohibition or unenfoceability without invalidating, vitiating or rendering unefoceable the remaining clauses, stipulations or provisions of this Agreement, and any such illegality invalidity, prohibition or unenforceability in any jurisdiction shall not invalidate, vitlate or render unenforceable any such clauses, stipulations or provisions in any other jurisdiction.
Any notice required to be given under this Agreement from either Party to the other Party shall be given in writing directed to the respective addressee set forth below at the respective address or such other address as either Party may inform the other Party of in writing. Such notice shall be given either by personal delivery, courier, facsimile, electronic mail or registered post.
16. GOVERNING LAW
16.1. This Agreement shall be governed by and construed in accordance with the laws of Malaysia and each Party hereby agrees to submit to the exclusive jurisdiction of the Courts of Malaysia.
17. SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS
Termination of this Agreement for any cause shall release a Party from any liability which at the time of termination has already accrued to other parties or which thereafter may accrue in respect of any act or omission prior to such termination.
18. COST AND EXPENSES
Each Party shall bear its own solicitors costs, and expenses incurred out of and in connection with this Agreement. The stamp duty for this Agreement shall be borne by the Partner.
Terms of Payment
1. In relation to the Products sold or Services provided through each Party’s online and offline platform:-
a) Subject to the terms and conditions of this Agreement, the Partner shall pay to the Company a Commission of 5% per Product and services sold pursuant to the Collaboration.
The Partners will make a payment of Commission from the monthly total transaction to the Company within 14 (Fourteen) working days after 1st of successive month to the Company designated Bank Account
The company will reimburse the settlement received from the customers within 14 (fourteen) working days after successive week to the Partner’s designated Bank Account (after deducting commision and relevant cost including bank charges and tax)
b) Similarly, The Company shall pay to the Partner a Commission of 2% per Product and Services sold pursuant to the Collaboration.
The Company will make a payment of Commission to the partner from the monthly total transaction within 14 (fourteen) working days after 1st of successive month to The Partner designated Bank Account.