1) USER AGREEMENT
(if you are not a Reseller)
1. The using of the system is at your own risk & responsibility.
2)RESELLER AGREEMENT (If you are a reseller)
THIS RESELLER AGREEMENT (this “Agreement”) is made and entered into as of (agreed button) (“Effective Date”), by and between FASYEERA EMPIRE SDN. BHD. (Company No.: 1188697-U) a private limited company duly incorporated under the Companies Act 2016 and having its business address at No. 17-G, Jalan Nautika A U20/A, Pusat Komersil TSB, 40160 Shah Alam, Selangor (hereinafter referred to as the "Company"), and the reseller entity on whose behalf you are executing this Agreement. (“Reseller”).
WHEREAS, the Company is the provider of certain products embodied in the Products described further herein; and
WHEREAS, Reseller wishes to sell and promote the Products offered by the Company and Company is willing to make such appointment on the terms contained herein;
NOW THIS AGREEMENT WITNESSETH both parties hereby agree to be appointed as the representative of the company, for and in consideration of the mutual covenants in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, as follows:
The following capitalized terms shall have the meanings ascribed to them in this section.
1.1 “Company Marks” means any Charms trademark or logo that the Company may provide to Reseller for use in connection with this Agreement.
1.2 “Documentation” means any user documentation, on any media, provided by Company for use with the product.
1.3 “End User” means a person or entity that purchases a Product or Products solely for its own internal use and not for redistribution.
1.4 “Ju’alah” means a reward given to a person for completing a given or offered task.
1.5 “Marketing Materials” means any marketing collateral relating to the Products that the Company may furnish to Reseller hereunder.
1.6 “Product” means all of the Company’s Products, including the [PRODUCT DESCRIPTION] and any other products that the Company, in its discretion, makes available to Reseller under this Agreement.
1.7 "Merchandise" shall mean all of the Company’s
Merchandise that could be bought and sold and is
passed from hand to hand by purchase and sale.
1.8 “Reseller” shall mean someone who sells the Company’s Product and Merchandise to the end user
for a profit.
1.9 “Support Services” means the standard maintenance and support services for the Products made available by the Company or its authorized support partners, as described in the End User Agreement.
2.1 Authorization and Appointment.
Company also referred to as “Ja’il” hereby authorizes and appoints Reseller and Reseller accepts the appointment, as a non-exclusive reseller to market, sell, or incorporate for resale Company Products to End Users (“Sighah”).
2.2 Revision of Authorization. Company reserves the right to revise the list of Products and End User Services at any time during the term of this Agreement. Company will notify Reseller of such revisions.
2.3 Reseller must be 18 years old and above.
3. SOFTWARE LICENSE GRANT. Company hereby grants Reseller a nontransferable, nonexclusive license to use and distribute Software solely for use by End Users in and in connection with their use of Products.
4. PRICE AND PAYMENT
4.1. Prices to Reseller. The price payable by Reseller for each Product shall be the applicable suggested list price of such Product less the discount
4.2. Revision of Prices. Company may, upon thirty (30) days prior written notice to Reseller, change the discount for any or all Products not yet ordered.
4.3. Payment. All fees payable hereunder shall be paid automatically via online transfer instantaneously based on the date of invoice. Payment shall be made online via interbank transfer to Company's account at a bank designated by Company.
4.4. Taxes. The Company agrees that it is the sole responsibility of the Company to collect, report and remit all taxes to the correct tax authority for all business transactions, sales or revenue stemming from the sales of the Company’s products. The Company further agrees that the Reseller is not obligated to determine whether a sales tax applies and is not responsible to collect report or remit any tax information arising from any transaction involving the images or photos provided.
5.1. Purchase Orders. All orders for the Products submitted by Reseller shall be in the form of software provided by the Company and sent to Company at the address set forth above or as Company otherwise specifies ("Purchase Orders"). Purchase Orders shall contain the following:
(a) each item of Product ordered by model or part number,
(b) quantity requested;
(c) unit Price;
(d) payment arrangements;
(e) delivery date, a date after Company receives
the Purchase Order upon which the order is to be delivered ("Specified Delivery Date").
5.2. Acceptance. Company shall, within one (1) business day of receipt of the Purchase Order from Reseller, communicate in writing (email being an acceptable form of writing) its acceptance or rejection of the said Purchase Order. Any orders not confirmed or rejected within the said one (1) business day period shall be deemed to have been accepted.
5.3. Cancellation. Reseller may, at no charge cancel part or all of a Purchase Order up to three (3) days prior to the requested ship date.
6. SHIPMENT AND DELIVERY
Company shall deliver the Products in accordance to the instructions provided in the Purchase Order.
6.2. Cost of Delivery. Unless instructed otherwise in the Purchase Order, the end user/reseller shall be responsible for all shipping cost upon delivery of Product, including import, export fee, packing, shipping, freight, and insurance charges.
6.3. Failure or Delay in Delivery. Company shall make commercially reasonable efforts to meet the estimated delivery date and/or delivery date specified in the Purchase Order, but shall not be liable for failure to deliver or for any delay or effort in delivery of Product. In case Company cannot meet the estimated delivery date and/or delivery date specified in the Purchase Order, Company shall promptly notify Reseller, and discuss in good faith on the appropriate delivery date.
6.4. Shipment. Company shall ship Product directly the End User at reseller/end user's expense and in accordance with shipping instructions provided in the Purchase Order. Unless otherwise specified on the Purchase Order, delivery shall be made to Reseller's address specified on the first page of Agreement, or address mutually agreed between Company and Reseller.
6.5. Risk of Loss. Title, risk of loss, theft, and damage shall pass to the reseller/end user upon delivery of Product to the address described in this section of the Agreement.
6.6. Return Policy. The Company will provide a seven (7) day return policy during which the End User may return an item that is undamaged, unworn, with tags still attached (at their own expense or on expense of the Company). The Company will also provide a return policy for any damaged or defective items as long as any claims are placed within the agreed upon seven (7) days of the item being received. The Company will not provide any policy for any claims placed on an item after seven (7) days of being received.
7. RESELLER RESPONSIBILITY
7.1. Marketing. Reseller shall use its best efforts to market, advertise, and otherwise promote and sell the Products of the Company.
7.2. Cooperation. Reseller agrees to work closely with Company and use its best efforts to meet the sales goal mutually agreed between Reseller and Company.
7.3. Good Name of Company. Reseller shall at all times maintain the good name of the Company.
7.4 Reseller Price. Reseller shall at all times sell the product based on a price that had been determined by the Company.
7.5. End User Information. Reseller agrees to provide the name and address of End User as requested by Company on a necessary basis.
8. SUPPORT. Reseller shall be responsible for all first level of support for the End Users (e.g., initial response, problem identification and problem resolution) and agrees to provide and make available a sufficient number of the Company’s personnel to provide such support for the End Users.
9. WARRANTY AND LIABILITY DISCLAIMERS.
9.1. Warranty. Company warrants solely for the benefit of Reseller that the Products and Related Services will materially conform to the Documentation. This warranty does not apply to any damage resulting from unauthorized use or negligence on the part of End User. Reseller must notify the Company in writing of any substantial non- conformity of the Product and Service with the Documentation. In the event of a breach of warranty under this Section, the Company’s sole obligation and Reseller’s sole and exclusive remedy, is, at the Company’s option, either (i) to use commercially reasonable efforts to correct such reproducible non- conformity in a manner determined by the Company, or (ii) to replace the Product containing the reproducible non-conformity to be utilized for the satisfaction of similar warranty obligations of the Company to End User.
9.2. Disclaimers. EXCEPT AS PROVIDED HEREIN, THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE WITH REGARD TO ANY AND ALL PRODUCTS WHICH MAY BE SOLD, LICENSED OR PROVIDED PURSUANT TO THIS AGREEMENT . COMPANY DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
10. CONFIDENTIAL INFORMATION. Each party shall protect the other's Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third
parties the other's Confidential Information without the prior written consent of the other party. Neither party shall use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.
11. INTELLECTUAL PROPERTY.
11.1 Ownership. As between Reseller and the Company, the Company and its suppliers shall retain exclusive ownership of all worldwide intellectual property rights in and to the Products, the Documentation, the Marketing Materials, and any updates, upgrades, modifications, or enhancements thereto, and any derivative works thereof. There are no implied licenses in this Agreement, and the Company reserves all rights not expressly granted under this Agreement.
11.2 License Grant. Subject to the terms and conditions of this Agreement, the Company grants to Reseller, during the term of this Agreement, a non- exclusive, non-transferable, revocable license, without right of sublicense, to (a) sell Products to End Users; (b) use Products solely for the purposes of demonstrating, marketing, and promoting the Products; and (c) distribute the Marketing Materials and Documentation to End Users and prospective End Users for the purpose of promoting the sale of Products.
11.3 Trademark License. Subject to the terms and conditions of this Agreement, the Company grants to Reseller a nonexclusive, nontransferable, revocable license to reproduce the the Company Marks in Reseller’s marketing and promotional materials solely for the purpose of marketing the Products pursuant to this Agreement, provided that (a) Reseller’s use of the the Companys’ Marks complies with the then current the Company trademark guidelines; and (b) Reseller’s use of the Company Marks is not misleading and does not imply that the Company endorses Reseller or any products or services offered by Reseller other than the Products. Reseller may not reproduce or use the Company Marks (or any other Companys’ trademarks) other than as expressly provided in this section except as expressly approved by the Company in writing (including electronic communication). Reseller acknowledges the Company’s proprietary rights in the Company’s Marks and agrees that any use thereof shall inure to the sole benefit of the Company’s. Reseller shall not incorporate any of the Company’s Marks into Reseller’s trademarks, service marks, company names, Internet addresses, domain names, or any similar designations without the Company’s prior written consent.
11.4 General Restrictions. Reseller acknowledges that the Product embodies valuable trade secrets of the Company and its suppliers. Except as provided herein, Reseller shall not: (a) alter or remove any of the Company’s or its suppliers’ copyright, patent, or other proprietary rights notices or legends appearing on or in the Products; (b) modify, adapt, alter, translate, or create derivative works of the Products; or (c) reverse engineer the Products or reverse-compile, decompile, or attempt to derive the source code of any object code contained in any of the Products.
12. TERM AND TERMINATION
12.1. Term. This Agreement shall commence on the Effective Date and will remain in full force and effect for as long thereafter as it is mutually agreed between the Reseller and the Company.
12.2. Renewal. The Term shall automatically renew for one successive renewal term ("Renewal Term").
12.3. Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party if:
(a) the other party materially breaches any term of this Agreement and fails to cure such breach, which is a curable breach, within thirty (30) days after receipt of the non-breaching party's written notice of such breach;
(b) the other party materially breaches any term of this Agreement which is not capable of cure;
(c) the other party dissolves, becomes insolvent or makes a general assignment for the benefit of its creditors;
(d) a voluntary or involuntary petition or proceeding is commenced by or against the other party under federal, state or foreign bankruptcy laws; or
(e) the other party becomes insolvent, is unable to pay its debts as they become due or ceases to conduct business in the normal course.
Termination of this Agreement under this Section will be without prejudice to any other remedy which may be available to a party under applicable law.
12.4. Effects of Termination. Upon any termination or expiration of this Agreement:
(a) Reseller shall cease to be an authorized reseller of Product and all rights and licenses granted to Reseller hereunder shall cease;
(b) Reseller shall immediately:
(i) cease all distribution of the Product;
(ii) discontinue any use of the Marks; and
(iii) cease to promote, solicit or procure orders for the Product.
12.5. Continuing Obligations. The termination of this Agreement shall not release Reseller from the obligation to pay any sum that Reseller may then owe to Company, or from the obligation to perform any other duty or to discharge any other liability incurred by Reseller prior thereto. The termination of this Agreement shall not release release company from the warranties in this Agreement.
13.1. Indemnity. Reseller shall indemnify and hold Company harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney's fees) which Company incurs as a result of any claim based on any breach of any representation or warranty, covenant or agreement by Reseller under this Agreement or any breach of this Agreement by Reseller.
13.2. Conditions to Indemnity. Reseller's obligations under this Section are contingent upon:
(a) Company promptly gives written notice of any claim to Reseller;
(b) at Reseller's expense, Company provides reasonable assistance which Reseller may reasonably request for the defense of the claim; and
(c) Reseller has the right to control the defense or settlement of the claim, provided, however, that Company shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
14.INTELLECTUAL PROPERTY INFRINGEMENT
14.1. Indemnity. Company agrees to hold Reseller harmless from and indemnify all liability for infringement of any patent, copyright or trademark rights or other intellectual property rights of third parties which result from the sale of Products. Company agrees to defend Reseller in such infringement suit or any Product liability suit resulting from the use or sale of Products, including but not limited to, out of court settlements, court costs, reasonable attorney's fees or any money judgment awarded at the conclusion of such suits subject to the understanding that Company shall have exclusive control over the defense and/or settlement of such suits.
14.2. Conditions to Indemnity. Company's obligations under this Section are contingent upon Reseller:
(a) giving prompt written notice to Company of any such claim;
(b) allowing Company to control the defense and any related settlement of any such claim; and
(c) furnishing Company with reasonable assistance in the defense of any such claim, so long as Company pays Reseller's reasonable out-of-pocket expenses.
14.3. Limitations of Indemnity. Company shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from:
(a) modifications to the Products made other than by Company;
(b) failure of Reseller to use updated or modified Products provided by Company to avoid a claim of infringement or misappropriation;
(c) compliance by Company with designs, plans or specifications furnished by or on behalf of Reseller; or
(d) any opening of or other tampering with a Product by non-Company personnel.
15. LIMITATION OF LIABILITY. COMPANY WILL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT , NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REPUTATIONS), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OFTHIRD PARTY CLAIMS AGAINST THE OTHER PARTY. IN NO EVENT WILL COMPANY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY RESELLER. IN ADDITION,
IN NO EVENT WHATSOEVER SHALL COMPANY'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM RESELLER DURING THE THIRTY-SIX (36) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH COMPANY LIABILITY.
16. GENERAL PROVISION
16.1. Notice. Any notices required or permitted shall be given to the appropriate Party at the address specified above, or at such other address as the Party shall specify in writing, and shall be effective upon actual receipt.
16.2. Assignment. The parties may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise without prior written consent of the party, which shall not be unreasonably withheld.
16.3. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
16.4. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
16.5. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
16.6. Interpretation. In construing or interpreting this Agreement, the word "or" shall not be construed as exclusive, and the word "including" shall not be limiting. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
16.7. Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.
16.8. No Waiver. A party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
16.9. Governing law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Malaysia, without regard to its conflict of laws rules.
16.10. Jurisdiction. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Malaysia.
16.11. Compliance of Law. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.
16.12. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of thirty (30) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.
16.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
16.14. Entire Agreement. This Agreement complies with the Shariah standards of “Ju’alah” and this Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.