Generally, for the purposes of this agreement, Partner / Influencer / Agent is NOT permitted to market, sell or promote any products, plans, services whatsoever, whether similar or otherwise, from or bearing the trade name of any other bird’s nest producer or provider. We will name all parties as “Agent” in this agreement.
(A) GENERAL TERMS AND CONDITIONS OF AGREEMENT
1. Appointment and Scope. Subject to the terms and conditions herein, the Agent is hereby appointed as a Agent of CUBILOXE’s Cubiloxe Products for use on the Cubiloxe Services strictly at the Authorised Area of Operations/ Online Portal as specified provided. For the avoidance of doubt, nothing in this Agreement shall limit or restrict CUBILOXE’s right to appoint any other authorised Agent/reseller to market, promote, offer to sell or sell Cubiloxe Products, either within the Authorised Area of Operations or elsewhere.
2. Duration. Notwithstanding the date of this Agreement, the appointment of the Agent is for the period of one year unless earlier terminated and will be renewed automatically.
3. Obligations of CUBILOXE. Subject to such terms as may be announced by CUBILOXE from time to time, CUBILOXE will during the continuance of this Agreement provide the following: (a) Marketing and Promotions. Provide to the Agent Sales Tools and POSM without charge (at CUBILOXE’s discretion), as well as conduct and coordinate joint or collaborative marketing and promotional activities for Cubiloxe Products and/or the Cubiloxe Services. (c) Training. At CUBILOXE’s discretion and expense (excluding transportation and lodging), to provide periodic training and product/subscription updates for select staff or downlines from Agent. (d) Warranty Support. CUBILOXE will provide support for all device warranty claims made through the Agent and in accordance with the terms of the relevant device’s limited warranty as provided.
4. Obligations of the Agent. The Agent shall, during the Term of the Agreement, at all times observe and perform its obligations as set out below.
4.1 Recommended Retail Price. The Agent shall abide by the RRP as specified in any of the Particulars or any schedule of pricing referenced therein in all sales of Cubiloxe Products. New RRP may be issued by CUBILOXE from time to time for Cubiloxe Products and shall take effect on the date specified by CUBILOXE.
4.2 Brand Protection. The Agent shall take all reasonable steps to ensure that the “Cubiloxe” brand, trade mark, and image are maintained, enhanced and promoted in line with its brand value and proposition, which will be communicated to the Agent from time to time by any method which CUBILOXE deems fit, including refraining from doing anything that may, in CUBILOXE’s opinion, degrade or reduce the worth of the “Cubiloxe” brand and image in the market.
4.3 Roles and Responsibilities. The Agent hereby agrees with CUBILOXE and undertakes that it shall at all times observe and perform the covenants, terms and conditions set out in this Agreement and to carry out its roles and responsibilities as set out or referenced by Cubiloxe.
4.4 Return Policy. CUBILOXE takes no responsibility for any misleading, negligent or fraudulent representation made by the Agent concerning the return policy outlined in website. The Agent shall ensure that neither it, its directors, servants or agents does or omits to do any act that causes voidance of the policy by CUBILOXE for Cubiloxe Products as stipulated in www.Cubiloxe.com. If it does such an act or omission, it shall be the sole responsibility of the Agent to provide the end customer with adequate compensation.
5. Negative Covenants.
5.1 The Agent, for the Term of the Agreement, shall not:
(a) represent or pass-off that they are CUBILOXE employee, subsidiary or a subsidiary or related company of the CUBILOXE Group and/or are authorised to act on CUBILOXE’s behalf except as set out in this Agreement; (b) make any representations or give any warranties other than those contained in the conditions of sale or as approved by CUBILOXE and further shall not incur any liabilities on CUBILOXE’s behalf or in any way pledge or purport to pledge CUBILOXE’s credit; (c) sublicense any of the rights granted to Agent under this Agreement including without limitation the rights to collect monies on CUBILOXE’s behalf to any third party; (d) either gain or attempt to gain access to or tamper with or attempt to tamper with any part of Cubiloxe Products save with CUBILOXE’s authority; (e) advertise and/or sell the Cubiloxe Products below or higher than CUBILOXE’s approved selling price; (f) mislead or deceive or otherwise contravene any laws in the reselling of Cubiloxe Products or in dealing with CUBILOXE’s existing or potential customer and/or in the performance of this Agreement; (g) engage in any form of activity, including aggregating, arbitraging and reselling of Cubiloxe Products in order to extract for itself, the benefits meant for customers; (h) submitting any purposely inaccurate information, committing fraud or falsifying information in connection with the Agent’s submission of data, information or sales report for its account to CUBILOXE; (i) knowingly give false or misleading information in order to collect incentive benefits which the Travel Agent is not entitled to, falsifying information or withholding information (j) aiding or abetting someone in filling a fraudulent claim for warranty remedy of Cubiloxe Products.
5.2 The above activities are prohibited and constitute express violations of this Agreement. Notwithstanding anything to the contrary in this Agreement, breach of any of these negative covenants shall entitle CUBILOXE to terminate this Agreement immediately without further notice and to claim full indemnity from the Travel Agent for all losses or damages suffered by CUBILOXE resulting therefrom, which shall, until paid in full, be deemed to be a debt due by the Travel Agent to CUBILOXE and may be recovered from the Travel Agent by CUBILOXE in any court of competent jurisdiction.
6. Purchase Order. Purchase of Cubiloxe Products shall be via
i.) The issuance of official purchase orders (“PO”) by Agent in accordance with of the Particulars. Each PO issued shall be subject to a minimum order quantity (“MOQ”) as specified in Item 5(c) of the Particulars and shall state, among others, the quantities and types of the Cubiloxe Products required, delivery date and the delivery/collection address. The purchase price shall be the RRP, or any schedule of pricing referenced therein. CUBILOXE will use commercially reasonable efforts to meet the delivery date as stated in the PO subject to a lead-time of 10 – 20 working days or stated otherewise. Notwithstanding the foregoing, CUBILOXE reserves the right to reject any PO submitted by the Agent. The payment term for all purchases shall be in accordance with Item 8 of the Particulars unless otherwise mutually agreed in writing. CUBILOXE may impose late payment charges in accordance with the rate specified in Item 8 of the Particulars wherever applicable.
ii.) Agent log in through official website www.cubiloxe.com accordingly. Agent has been guided on how to register as Agent and place order through official website. Failing to follow the SOP, all sales might not be captured in the system and it shall impact on the commission payout. Company shall not pay commission for sales that is not recorded in system due to Agent mistake or any relatively.
7. Discounts and Incentive. The Agent will be entitled to such authorised incentive scheme provided the Agent meets the applicable criteria. Any amendments to the discount and/or incentive scheme or any additional incentive scheme that may be introduced by CUBILOXE shall be by way of a written circular, bearing CUBILOXE’s company stamp and signed by CUBILOXE’s Chief Executive Officer.
8. Incentive Payout. The Agent shall be getting the monthly commission payout on the 15th of the following month after verification and checking by finance and provided agent could revert on the queries and resolved before 5th of the month.
9. MOQ. The Agent shall stay active with a min sales volume of RM300 every month to be entitled for the downline’s overwriting incentive scheme. The sales volume shall be revised from time to time with official notice given to Agent should there be any changes on MOQ.
10. Handling of Customers’ Personal Data. The Agent shall ensure that in the course of promoting and carrying out its obligations under this Agreement, it shall observe statutory safeguards and practices in the collection, processing and handling of all personal data including compliance with the Personal Data Protection Act 2010. The Agent shall be under the obligation to protect the customer’s personal data from unauthorised and/or accidental access, unauthorised processing, deletion, alteration, disclosure or destruction of such personal data and shall be responsible to take all and every security measures deemed necessary for execution of this obligation.
11. Title and Risk. Risk of damage and destruction to the Cubiloxe Products shall pass to the Agent upon delivery of the same or upon collection by the Agent. Legal and beneficial title in the Cubiloxe Products passes to the Agent upon receipt of payment by CUBILOXE.
12. Indemnity. The Agent will be responsible for and shall indemnify CUBILOXE against all losses, expenses, claims, actions, proceedings whatsoever for breach of contract or act or omission (negligent or otherwise) by Agent, the death of or personal injury to any person and for any damage to any party’s personal property where it is caused by the Agent, their personnel, sub-contractors or any person under its control arising out of or in connection with this Agreement, and whether or not based on an action or claim in contract or negligence or otherwise. Notwithstanding anything herein, the Agent undertakes to indemnify CUBILOXE against such loss or liability which arises from fraud or wilful misconduct in the performance of the Agent’s obligations and duties herein.
13. Publicity. The parties may, for purposes of publicity or public relations, cite the existence of the other as a commercial or business partner provided that (i) the other party should have the prior right to review and approve any text regarding itself in any publicity statement, public announcement or the like and (ii) that the details of this or any other Agreement or engagement between the parties is not disclosed to any unauthorised party.
14. Confidentiality. The contents of this Agreement and all matters arising from the same shall be classified as strictly confidential and shall not be disclosed, disseminated and/or distributed to any unauthorised parties unless in pursuance to an order of Court or to applicable law or to any competent governmental or statutory authority, any rule, request, order or regulation of any relevant regulatory body binding on the party.
15. Trademarks. CUBILOXE has the right to use and sub-license the “Cubiloxe” trademark (“Trade mark”). CUBILOXE hereby grants to the Agent a non-exclusive approval to use the Trade mark or trade name on or in connection with the distribution, sale and marketing by the Agent of the Cubiloxe Products and the publication of brochures pamphlets and other promotional materials in respect thereof. The Agent agrees to use the Trade mark or trade name only in the form and manner approved in writing by CUBILOXE and further agree to comply with any marking instructions issued by CUBILOXE to ensure the proper protection of CUBILOXE’s proprietary interest in the said Trade mark or trade name under the laws of Malaysia. The Agent further agrees that neither this approval nor the Agent’s use of the licensed Trade mark or trade name shall convey to the Agent any right, title or interest in the Trade mark or affect in any way CUBILOXE’s exclusive ownership thereof.
16. Termination. This Agreement may be terminated forthwith by either party on giving notice in writing to the other party if the other party: (i) shall at any time be in default of this Agreement and shall fail to remedy such default within fourteen (14) days from receipt of notice in writing from a party specifying such default; (ii) shall present a petition or have a petition presented by a creditor for its winding up; (ii) shall enter into any liquidation (other than for the purpose of a bona fide reconstruction or amalgamation); (iii) shall call any meeting of its creditors; (iv) shall have a receiver of all or any of its undertakings or assets appointed; (v) shall be deemed by virtue of the law relating to this Agreement to be unable to pay its debts; (vi) shall cease to carry on business; or (vii) if any event analogous to any of the foregoing under the laws of any foreign jurisdiction shall occur with respect to that party. Notwithstanding the foregoing, CUBILOXE may, for convenience, terminate this Agreement at any time by giving the Agent thirty (30) days’ notice in writing sent to the address stated herein.
17. Effect of Termination. Upon the termination of this Agreement from any cause or at any time after such termination, the Agent shall settle all outstanding amounts owing to CUBILOXE by the Agent under this Agreement. The Agent shall at its own expense within seven (7) days after the effective date of the termination send to CUBILOXE or otherwise dispose of in accordance with the directions of CUBILOXE all samples of Cubiloxe Products and any advertising, promotional or sales material relating to Cubiloxe Products then in the possession of the Agent. The Agent shall immediately cease to promote, market or advertise Cubiloxe Products or to make any use of any Trade mark or trade name of CUBILOXE other than for the purpose of selling stock in respect of which CUBILOXE does not exercise its right of repurchase. For the avoidance of doubt, CUBILOXE shall, upon termination, be entitled to repurchase any of the Agent’s residual inventory of Cubiloxe Products at a price not exceeding the original price upon which such Cubiloxe Products were purchased less depreciation at such rate as may be mutually agreed. Termination of this Agreement by either party pursuant to any of the provisions hereunder shall be without prejudice to any other rights, remedies or claims the parties may have against each other under this Agreement or at law in respect of any antecedent breach by the party of any provision of this Agreement.
18. Miscellaneous. This Agreement, including any schedules, appendices or exhibits referred to herein and attached hereto, embodies the entire agreement between the CUBILOXE and the Agent relating to the subject matter hereof and supersedes all prior agreements and arrangements between the parties and there are no promises, terms, conditions, or obligations, oral or written expressed or implied other than those contained herein and therein. No amendments to this Agreement shall be effective unless evidenced in writing and signed by the parties. Any delay or failure of a party to insist in any one or more instances upon the performance of any provisions in this Agreement shall not be construed as waiver or relinquishment of that party’s right to performance of such provision and the other party’s obligation in respect of such performance shall continue in full force and effect. If one or more of the provisions contained in this Agreement is held to be unenforceable, illegal or otherwise invalid in any respect under any applicable law, such unenforceability, illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall then be construed as if such unenforceable, illegal or invalid provisions had never been contained herein. Any notices to be given shall be in writing and shall be addressed to the address as provided above and if so addressed shall be considered as validly served if sent by personal delivery, upon delivery at the address of the relevant Party; if sent by registered mail, three (3) working days (excluding Saturday, Sunday and public holidays) after despatch; or if sent by facsimile, at the time of despatch of the facsimile provided that the sender’s transmission report shows that the entire transmission has been received by the recipient without error, provided that any facsimile sent and received after the close of business (i.e. 1700 hours), shall be considered as validly served only on the immediate following working day. The parties shall be independent contractors in their performance under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venture partners or partners for any purpose. Each party shall bear its own solicitors’ costs and other costs incidental to the Agreement and the Agent shall bear the stamp duty on this Agreement. This Agreement may not be assigned by the Agent in any manner whatsoever to any third party without the prior written consent of CUBILOXE. CUBILOXE reserves the right to novate, assign, charge or dispose of its rights hereunder or sub-contract or otherwise delegate any of its obligations hereunder without the prior consent of the Agent. This Agreement shall be governed by the laws of Malaysia and the parties submit to the jurisdiction of the Malaysian Courts.
TRAVEL AGENT’S ROLES & RESPONSIBILITIES
In the performance of its roles and responsibilities, the Travel Agent agrees and undertakes that it shall:
1. promote CUBILOXE online and/ or offline to CUBILOXE’s reasonable satisfaction in each of the Agent’s online platforms and/ or sales outlet in the Authorised Area of Operations (“Agent’s Outlets”) at no cost to CUBILOXE;
2. upkeep and maintain the appearance of the Agent’s Outlets, the retail space and the POSM in good and presentable condition and not alter the appearance of the Agent’s Outlets or the POSM under any circumstances unless instructed by CUBILOXE;
3. conduct sales activities which include the promotion, distribution, marketing and support of the Cubiloxe Products including giving all reasonable cooperation to such of CUBILOXE’s marketing activities as may be required by CUBILOXE;
4. procure its own IT equipment including but not limited to computer, printers, point of sale system and other facilities and/or items necessary for the performance of its sales activities and registration of Cubiloxe Products, where applicable;
5. take all reasonable and necessary acts to extend and improve sales of Cubiloxe Products including maintenance, improvement and enhancement of CUBILOXE brand and image;
6. within seven (7) days from the date of written request of CUBILOXE, supply to CUBILOXE reports and other information relating to the Agentship as well as a list of salespersons and purchasers for the Cubiloxe Products;
7. within ten (10) days from CUBILOXE’s request, provide to CUBILOXE a rolling forecast of the quantities of Cubiloxe Products that the Agent will purchase and/and the proposed delivery schedule or dates of the same, in the format as may be determined by CUBILOXE, provided always that the total aggregate value of purchase by the Travel Agent for each calendar month shall not be less than the Monthly Purchase Commitment stipulated in Item 6(b) of the Particulars;
8. provide CUBILOXE with a valid and active WhatsApp and e-mail address for communications and dissemination of information between CUBILOXE and the Agent. The Agent shall be responsible to access and check for information from CUBILOXE on a daily basis;
9. mandatorily send its staff/downlines to attend training conducted by CUBILOXE from time to time as and when required;
10. notify CUBILOXE of any change in its address, online platforms and/or ownership within seven (7) business days from the date of change;
11. obtain all the necessary business licenses, permits and approvals including but not limited to signage license and permits from the relevant authorities before the commencement of the Travel Agentship herein;
12. be required to develop programs and processes in order to control churn at its best endeavors. This may be in the form of controlling fraud through the verification of valid documents, to provide timely registration reports together with supporting documents. Evidence of committing fraud against CUBILOXE or CUBILOXE customers is subject to termination of Agentship without prior notice and the Agent agrees to fully reimburse CUBILOXE for any loss whatsoever suffered herein;
13. be responsible and accountable for its salespersons/downlines in the form of training, motivating and ensuring its salespersons conform to CUBILOXE’s Standard Operating Processes and Procedures (which will be furnished and/or disclosed during the relevant training sessions);
14. ensure its salespersons/downlines possess good interpersonal skills;
15. ensure that its salespersons/downlines are knowledgeable on the terms and conditions of Cubiloxe Products and advise customers accordingly including the terms relating to the policy of Cubiloxe Products;
16. ensure that its salespersons/downlines/customer register and log in to key in each purchase of Cubiloxe Products online at the Cubiloxe website;
17. be responsible and accountable for the confidentiality of customer’s personal data.
Return Merchandise Authorisation (RMA) process for electrical item
A. Approved RMA Process for handling of Defective Cubiloxe Electrical Product/s
1. When customer requests for replacement of a defective Cubiloxe Electrical Product, Agent may direct customer to the nearest Cubiloxe stores which are listed in https://cubiloxe.com/store-locator.
2. Alternatively, Agent may do the following:
2.1 Conduct an initial assessment on the Cubiloxe Electrical Product upon receipt from the customer, as the case may be (which shall be furnished to the Travel Agent after its appointment herein).
2.2 If the Cubiloxe Electrical Product is found to be defective or faulty (which fault or defect is not attributable to abuse, misuse, use or conditions for which the device has not been designed) and it is still within the warranty period, the Agent shall:
a) at its own cost and within twenty four (24) hours from receiving the defective Cubiloxe Electrical Product deliver personally, send, courier and/or dispatch the defective Cubiloxe Electrical Product to any Cubiloxe store; and
b) whichever mode of delivery is employed by the Agent, it must also ensure that the Cubiloxe Product is sent together with its full packaging, including the cables, including the proof of purchase attached
c) once the defective Cubiloxe Electrical Product has been repaired and/or replaced, to collect the same from the relevant Cubiloxe store and arrange for its return to the relevant customer.
3. The Agent shall be responsible for ensuring that the entire process described in Clause 2 above (i.e. from the collection of the defective Cubiloxe Electrical Product to its eventual return to customer) shall not exceed a total of five (5) business days. Agent will indemnify CUBILOXE against any claims or damages in the event this period is exceeded through any fault, delay, negligence, conduct or omission on the part of the Agent, its employees or downlines or any other party over which the Agent has control.
4. A Cubiloxe Electrical Product that is returned for replacement aforementioned will be verified by CUBILOXE. If the Cubiloxe Electrical Product is found to be suffering from a manufacturer’s defect or is faulty (which fault or defect is not attributable to abuse, misuse, use or conditions for which the device has not been designed) and it is still within the warranty period, CUBILOXE will provide the Agent with a replacement Cubiloxe Electrical Product. If however, the Cubiloxe Electrical Product is found to be in working order i.e. “No Fault Found” (“NFF”), no replacement unit will be provided. The NFF Cubiloxe Product will be returned to the Agent for onward transmission to the relevant customer. For the avoidance of doubt, this NFF process shall be subject to an equivalent turnaround time of five (5) business days.
B. RMA for Cubiloxe Product which is dead on arrival (“DOA”)
Agent shall claim replacement units for DOA Cubiloxe Electrical Products within 3 working days upon receiving it.
C. Breach of this RMA Process
Unless specifically waived or agreed otherwise in writing, a breach of these provisions or any one of them shall be deemed to be a material breach of this Agreement
Other Special Conditions
For Alliance Store Agent (ASA) shall maintain sufficient Cubiloxe Products at all times to conduct sales activities at the Authorised Area of Operations by ensuring that the total value of the Cubiloxe Products kept on hand by ASA will not fall below seventy per cent (70%) of the value set and in this respect the ASA shall purchase Cubiloxe Products accordingly whenever necessary to ensure it abides by this condition.