Daikin Distributor Agreement

1. Agreement

1. 1.1 This Agreement sets out the terms on which DAMA will allow you access and use of the e-Distributors System.


2. 1.2 The purposes and functions of the e-Distributors System are as set out in web site hereto and such other functions as shall be added or varied by DAMA from time to time.


3. 1.3 You shall be entitled to access and use the e-Distributors System at all times 24 hours a day 7 days a week unless due to breakdown/ malfunction of the e-Distributors System, maintenance work done thereon or any electricity or telecommunications failure.

2. In subscribing to the e-Distributors System

1. 2.1 All orders made by you shall be subject always to availability of the Products and to our review and acceptance thereof. We shall be entitled to refuse to accept any orders or Instructions from you and/or allow access or use by should you breach or if we have reasonable grounds to suspect that you have breached or will breach any of the terms herein.


2. 2.2 This e-Distributors System serves to facilitate and complement the sale and purchase of the Products and is not intended to replace, abrogate, derogate or supersede any existing terms and conditions, or the rights and liabilities of the parties, that may have been entered into or agreed by the parties hereto in respect of the Products under any Purchase Order terms or standard terms and conditions or Distribution Agreements or any other contract of whatsoever nature between the parties hereto.

3. Your Responsibilities

1. 3.1 General Responsibility


2. You agree:
   
   
   • a. to comply with and procure that all your Authorized User using the e-Distributors System and/or who have access to the e-Distributors System via your hardware, software and systems will comply with all terms of this Agreement (including any rules, regulations and procedures referred to in the User Guides applicable from time to time);
   
   
   • b. that by accessing, using, entering your Instructions and transacting via the e-Distributors System, you authorize us to rely and act on the Instructions, purchase orders, details and information given or purported to be given by you, without any liability on our part; and
   
   
   • c. that all information, communication, orders and requests supplied by you or your Authorized User may be accepted by us as correct, accurate and duly authorized by you.
   
   
3. 3.2 Confidentiality and Security


4. You hereby:
   
   
   • a. agree to keep all information, details, data, materials and attachments whatsoever (including any reports sent to you by DAMA), relating to or stored in or channeled via the e-Distributors System secure and confidential and not allow any person to have access to or use them in any manner and for any purpose other than by your Authorised User who require such access to operate the e-Distributors System and only for the purposes and functions as set out herein;
   
   
   • b. agree to adhere to the Security Procedures and take all relevant measures to prevent unauthorized access to and/or use of the e-Distributors System;
   
   
   • c. agree that the ownership, title, interest and/or right to any copyright, designs, logos, trade names, trademarks, service marks and all other proprietory/ intellectual property in the e-Distributors System shall at all times remain vested in DAMA; or if the terms of any contract that we have with any licensor otherwise specify, in such licensor, and that you will take all relevant steps to protect such intellectual property from any violation or infringement or threat thereof whether by your self or any of your Authorised User; and
   
   
   • d. acknowledge that you do not own any intellectual/ proprietory right in respect of or arising from the e-Distributors System (including all information, details, data, materials and attachments therein) and in respect of the Products and that nothing in this Agreement shall confer any right, title or interest to the abovesaid intellectual property in your favour or anyone claiming under you; and
   
   
   • e. agree that you will not tamper with nor do anything that will violate or infringe our rights to the said intellectual property. Further, you shall indemnify DAMA in full for all cost, expenses, loss and damage which DAMA may suffer as a result of any breach of your undertaking under this clause.
   
   

4. Liability

1. 4.1 DAMA will not be responsible or liable in any way to you or any other third party (and you hereby agree that no claim therefor shall be made against DAMA) for any costs, expenses, losses or damages which may be suffered by you or any third party in any way arising out of or in connection with the access and use of the e-Distributors System or any inability to access and use the e-Distributors System.


2. 4.2 Notwithstanding anything herein contained, you hereby agree that in no event whatsoever, shall any claim be made against DAMA for any lost profits, lost savings or other consequential, special or indirect damages which may be suffered by you or any other third party for any reason whatsoever.


3. 4.3 All terms, conditions and warranties express or implied by law or in equity including that in respect of the quality or fitness for purpose of the e-Distributors System are excluded to the fullest extent permitted by applicable law.

5. Your Instructions

1. 5.1 With regard to Instructions which DAMA receives from you:


2. • a. Provided all Security Procedures appear to be complied with and there is at that time there has been no breach or reasonably suspected breach on your part, DAMA will be entitled to act on the Instructions and all information given by you even where they are inconsistent with former Instructions or information. Once you have issued an Instruction, it is irrevocable.
   
   
   • b. If you inform DAMA that you wish to recall, cancel or amend an Instruction, DAMA shall use our best endeavour to do so provided that the Products shall not have been delivered out of the DAMA factory. In any event, DAMA is not obliged to comply with your request to recall, cancel or amend and will have no liability for any failure by DAMA to do so. All costs and expenses incurred by us in complying with your request shall be shall be borne by and recoverable from you.
   
   
   • c. DAMA's computer records of the Instructions, all orders, confirmation of orders, instructions and/or requests issued by you or DAMA and any on-line communication between ourselves or any messages sent electronically to or from you shall be deemed as conclusive in the absence of manifest error.
   
   
3. 5.2 In giving any instructions, you represent and warrant that you have the power and authority to enter into this Agreement and perform all obligations hereunder and that the same shall be valid, binding and enforceable against you.

6. Indemnity

1. You hereby agree to indemnify DAMA in full against all losses, damages, proceedings, liabilities, costs (including all legal costs on a full indemnity basis) and expenses ("Losses") incurred or sustained by DAMA arising out of or in connection with your access and use of e-Distributors System including, without limitation, any Losses which DAMA or any third party may suffer as a result of any act, breach or negligence by you of any of the terms and conditions contained herein or by reason of DAMA acting or purporting to act on your Instructions.

7. Notices

1. 7.1 Any notice or other communication to be given under the Agreement, unless expressly otherwise specified, shall be in writing or sent electronically and deemed to have been served:


2. • a. if personally delivered or posted, addressed if to you, to the address on our records from time to time and if to us, to the address notified to you or at such other address as DAMA may notify to you from time to time; or
   
   
   • b. if transmitted electronically or by facsimile, at the time of transmission, an electronic or facsimile transmission report that electronic message or facsimile has been transmitted to the addressee shall be proof of service.
   
   

8. Termination and Variation

1. 8.1 Right of Termination / Variation


2. Without prejudice to clause 8.2 (Immediate Termination) below, DAMA is entitled to terminate access or use of the e-Distributors System or any part thereof or improve, vary, replace or withdraw all or any part of the same at any time at the absolute discretion of DAMA by giving 30 days prior written notice to you.


3. 8.2 Immediate Termination


4. DAMA reserves the right to terminate this Agreement forthwith without notice upon:
   
   
   • a. any breach of any terms of this Agreement by you or your failure to pay or observe any terms in accordance with the terms of the sale or supply of the Products to you;
   
   
   • b. any representation or warranty made or deemed to be by you are incorrect in any material respect at the time the same is made or deemed made;
   
   
   • c. you become or are declared insolvent or a trustee receiver or liquidator is appointed in respect of any part of your business or assets;
   
   
   • d. any proceedings have been instituted against you for bankruptcy or winding-up (as the case may be).
   
   
   • e. cessation or threat of cessation of your business;
   
   
   • f. it becoming unlawful for any reason for us to operate the e-Distributors System or receive Instruction through the e-Distributors System.
   
   
   • g. our becoming subject to any duty or tax in relation to the operation of the e-Distributors System or as a result of receiving Instructions through the e-Distributors system.
   
   
5. 8.3 Preservation of Rights


6. Any termination or variation of this Agreement shall be without prejudice to DAMA's and your respective accrued rights and liabilities (unless expressly otherwise stated).

9. Miscellaneous

1. 9.1 Incorporation of Terms


2. The User Guides form an integral and inseparable part of this Agreement.


3. 9.2 Severability


4. If at any time any provision or any part of the Agreement becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.


5. 9.3 Joint and Several Liability


6. Your liability shall be joint and several in the event that the term "you" or "Customer" comprises more than one individual.


7. 9.4 Modification and Amendment


8. DAMA may at its absolute discretion amend, delete or substitute any of the terms of this Agreement or add new terms to this Agreement by sending you a notice in writing setting out such amendment, deletion, substitution or addition which will be deemed to be incorporated in the Agreement unless objected by you in writing within seven (7) days from the date of such notice.


9. 9.5 Governing Law


10. The laws of Malaysia shall be the governing law of this Agreement.


11. 9.6 Assignment


12. You shall not assign any of your rights and benefits under this Agreement to any other party except with our prior written consent. Notwithstanding any permitted assignment, you shall be liable for the acts, default, omission or negligence on the part of your such permitted assignee(s).


13. 9.7 Successors bound


14. This Agreement shall be binding upon the personal representatives, successors-in-title and permitted assigns of the parties hereto.

10. Definitions

1. When the following words and phrases appear in the Agreement they have, unless the context otherwise requires, the following meanings:


2. • "Agreement" Means this agreement governing the access to and usage of the e-Distributors System and the terms and conditions of sale and/or supply of the Products to you;
   
   
   • "Authorized User" Means such persons designated and authorized by you as stated in the Sign-Up Form to access, use and operate the e-Distributors System for and on your behalf and deemed so;
   
   
   • "e-Distributors System" Means the electronic web-site/ system owned and operated by DAMA
   
   
   • "DAMA" Means Daikin Malaysia Sdn Bhd and references to "we" or "our" shall have the corresponding meaning;
   
   
   • "Products" Means the range of HVAC products available offered for sale by DAMA via the e-Distributors System which may be ordered and purchased by you;
   
   
   • Security Means the security measures and
   
   
   • Procedure Procedures set out in the User Guides. And any other instructions which DAMA make concerning security of access and use of the system.
   
   
   • Instructions Means all requests, orders, confirmations entering of transactions given by you in and made in e-Distributors System menu.
   
   
   • User Guides Means the operating and procedural Guides or manual (paper or electronic) provided to you in connection with the access, use and operation of the e-Distributors System Services including any updates of the same from time to time.
   
   
   • "you" or "Customer Means the party who has signed the Sign-up Form and any other form. And any person who has acceded to this Agreement by way of an accession agreement in form and substance satisfactory to DAMA and Where appropriate, includes any person authorized to give instructions on behalf of any such party to DAMA and "you" shall be construed accordingly.