This Partnership Agreement (the “Agreement”) is made and entered into on the date this Agreement is signed (the “Execution Date”) between the following Parties:
Microdium Distribution Sdn Bhd hereinafter referred to as the “Principal/Distributor”, and the Business Partner hereinafter referred to as the “Partner/Reseller” pursuant to the Business Partner’s execution of the MICRODIUM PARTNER APPLICATION FORM herein.
BACKGROUND
By virtue of this Partnership Agreement, the Principal/Distributor who has the DISTRIBUTION RIGHTS to the product/software of the Independent Software Vendor (ISV) (hereinafter referred to as the “Publisher”) agrees to sell the product/software to the Partner/Reseller who in turn agrees to sell the product/software to the “End-Users”.
Please click the link below for the terms of the end-user license agreement by the Publisher of the product/software:
https://www.microdium.com/EULA
Please take note that the updated end-user license agreement on the Publishers website will always takes precedence.
PURPOSE
The purpose of this agreement will be the following:
1. It is hereby agreed that the Partner/Reseller has expressed interest to promote and market any product(s) listed in the MICRODIUM PARTNER APPLICATION FORM and approved end user price in local currency with partner margin provided to the reseller.
2. The Partner/Reseller agrees that the use of the Publisher’s logo and branding will follow the Publisher/s guideline which is available upon request. The Reseller allows the use of its logo on the Distributor’s / Principal’s website and collateral.
3. The Reseller will ensure that the Publisher’s product is installed and configured by a certified engineer of the Distributor, based on the user guide and best practices. The Distributor will not be responsible for any misconfiguration.
4. The Distributor from time to time will pass leads for Publisher’s product to Reseller. The Reseller to ensure that no competitor product is proposed to such lead which constitutes a breach of agreement and to follow up to close the business diligently.
The Principal/Distributor has agreed to appoint the Partner/Reseller based on the following Terms and Conditions: -
Article 1: Term
The partnership’s existence shall commence on the signed date below and it will be for an initial term of One Year. The agreement after the 1st year will automatically renew until terminated based on Article 12 below.
Article 2: Reseller Discounts
Commission Discounts will be based on Volume sales for the year, It resets every 12 months. It will be offered based on project and Volume of licenses and may vary. As a general guideline the different levels are stated below
Level 1 – One-Off Partner
Reseller Discount: 5% – 8% on sales
Criteria/Requirements: Any amount of sales
Target Sales per Annum: No minimum requirement
Level 2 – Reseller Partner
Reseller Discount: 8% – 10% on sales
Criteria/Requirements: Attend training and be certified by Microdium/Principal
Target Sales per Annum: USD 20,000
Level 3 – Silver Partner
Reseller Discount: 10% – 15% on sales
Criteria/Requirements: Attend training and be certified by Microdium/Principal
Target Sales per Annum: USD 100,000
Level 4 – Gold Partner
Reseller Discount: 15% – 25% on sales
Criteria/Requirements: Attend training and be certified by Microdium/Principal, plus maintain 1 dedicated sales representative and 1 technical staff
Target Sales per Annum: USD 500,000
Level 5 – Platinum Partner
Reseller Discount: 25% – 30% on sales
Criteria/Requirements: Attend training and be certified by Microdium/Principal, plus maintain 2 sales representatives and 2 technical staff
Target Sales per Annum: USD 1 million and above
Article 3: Payment Terms
The partner/ Reseller will ensure that all payments are made based on the distributor quotation. A late payment charge of 2% a month will be charge on late payment.
The Partner/Reseller will, handle the sales process which will include but not limited to the initial presentation, meetings, submission order, if necessary to conduct the Proof Of Concept (POC) (with the help of Principal/Distributor’s Technical Team, upon request) and lastly convert the prospect to a confirmed order, collect and submit the purchase order and collection of final payment from the End-User.
The Partner/Reseller to use the recommended End-User price as provided by the distributor.
Article 4: Confidentiality and Data Protection
4.1. Whereas, discussion and work arrangements between the Principal/Distributor and Partner/Reseller in connection with Principal/Distributor’s business, may require the disclosure of Proprietary Information; and WHEREAS, the Principal/Distributor and the Partner/Reseller desire to protect said Proprietary Information from misappropriation and use by others to the disadvantage of the Principal/Distributor or the Partner/Reseller;
4.2. THEREFORE, in consideration of the disclosure of said Proprietary Information by the Partner/Reseller and the Principal/Distributor and in consideration of the promises, mutual covenants and other legal acts or forbearances between the parties, The Partner/Reseller and the Principal/Distributor covenant and agree as follows:
(i) Shall not disclose each other’s Proprietary Information to third parties or use the other’s Proprietary Information without the prior written consent of the owner of the Proprietary Information.
(ii) The Proprietary Information constitutes the valuable trade secret property of the Partner/Reseller or the Principal/Distributor, as described below. Disclosure of the Proprietary Information pursuant to this agreement shall not be construed as a grant of license or any other right to the information except as specifically agreed to in writing and signed by both parties.
(iii) Shall comply with the Data Privacy Regulations/law applicable in the respective country.
(iv) The confidentiality requirements contained in this agreement shall not apply to information which:
a) was in possession or was known to the Partner/Reseller or the Principal/Distributor prior to being received from the owner of the Proprietary Information.
b) is or becomes public knowledge.
c) is or becomes available to the Partner/Reseller or the Principal/Distributor from a source other than the owner of the Proprietary Information.
d) is required by law or a regulatory body or pursuant to a judicial order or rules of a relevant stock exchange to be disclosed.
(iv) Disclosure of Proprietary Information in violation of this agreement will subject the disclosing party to an action at law or equity for damages, which result from such disclosure. The owner of the Proprietary Information shall be entitled to injunctive relief in addition to any other relief.
4.3. Proprietary Information includes, but is not restricted to:
a) The names of customers and the nature of the relationship with such customers;
b) Computer systems, including computer hardware, computer software and unique methods used by either party in applying the same;
c) Developments, improvements, and inventions that are produced in the course of the relationship between The Partner/Reseller and the Principal/Distributor;
d) New products, inventions, improvements and modification to existent programs by the Principal/Distributor or the Partner/Reseller;
e) Source code, including API’s and file formats, that the Partner/Reseller seeks to review for the purposes of determining if the functionality available through these calls is sufficient to meet the Partner/Reseller’s or the Principal/Distributor’s programming needs.
4.4. If any legal action is brought by either party against the other regarding the subject matter of this agreement, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorney’s fees and expenses.
Article 5: Misrepresentation of product/software
The Partner/Reseller shall be held wholly responsible for any misrepresentation of the product to any person or entity. In no event shall the Principal/Distributor, its corporate parents or affiliates, successors or assigns or the publisher be held liable for any misrepresentation of the material facts of the product/software to the End-Users.
Article 6: After-Sale Support
In the event the Partner/Reseller refuses and /or fails to provide after-sales support or the end user has requested direct sale or technical support to the End-Users, the Principal/Distributor shall have the right to direct access to the End-User for the purposes of providing after-sales support services.
Article 7: Right to Manage & Ownership of End-User
It is agreed that all End-Users that are closed or referred by Partner/Reseller and have purchased the Principal/Distributor’s products listed in the Quotation, shall belong to and remain with the Principal/Distributor. The right to communicate professionally with the End-User without any interference from Partner/Reseller hereby lies with Principal/Distributor.
Article 8: Non-Payment Policy
In the event of non-payment of part and /or balance of the payment due to the Principal/Distributor for the sale of the product/software to the Partner/Reseller, then the Principal/Distributor reserves the right to claim the unpaid sum directly from the End-User.
Article 9: Details of User (Purchase Order)
For the purposes of Article 5, 6 and 7 above, the Partner/Reseller shall furnish details of the End-User, that is: name, business address, e-mail address, telephone number(s) when placing the purchase orders. The DISTRIBUTER has the RIGHT to reject the purchase orders.
Article 10: Indemnities and Limitation of Liability
10.1 Indemnity
Each party (the "Indemnifying Party") agrees to protect and compensate the other party (the "Indemnified Party"), including its employees, directors, and contractors, against any losses, damages, or expenses (including legal fees) that result from the following:
• Negligence or Misconduct: Any injury or property damage caused by the Indemnifying Party's negligence, misconduct, or default.
• Intellectual Property (IP) Infringement: Any claims that the Indemnifying Party has infringed on another party's intellectual property rights, including the use of logos or names.
• Breach of Agreement: Any claims arising from a breach of any provision, warranty, or representation in this agreement.
10.2 Supplier/Reseller Indemnity
The Principal/Distributor must fully protect and compensate Reseller from any third-party claims related to the Products/Software. This includes claims about:
• Intellectual Property: Any actual or alleged infringement of intellectual property rights.
• Product Defects: Any defects, failures, or non-conformities in the supplied Products/Software.
This protection does not apply if the claim is caused by the customer's misuse, unauthorized modification, or use that goes against the Publisher's guidelines.
The Partner/Reseller will also protect the Principal/Distributor from any claims that arise from the unauthorized use of intellectual property.
10.3 Limitation of Liability
If a claim is made under this agreement, the total liability of the Principal/Distributor will not exceed the lower of either:
• The value of the specific order, or
• RM5,000.
This limit on liability does not apply if the claim is due to the Principal/Distributor's negligence or wilful misconduct.
Article 11 : Territory and Exclusivity
The Principal/Distributor appoints the Reseller as a non-exclusive reseller authorized to market, promote, and resell the products to customers in the countries listed on the Partnership Form.
Article 12: Non-Solicitation
Both parties agree that during the tenure of this Agreement and within 24 months after termination of this Agreement, either party, without the written consent from the other, shall not directly or indirectly and /or through 3rd parties attempt to induce or seek to induce or solicit the other party’s employees, whether or not such employee would thereby commit a breach of his contract of service. The Partner/Reseller and its employees shall not have any engagement with the User or its officers after this Agreement is terminated without the written consent of the Principal/Distributor.
Article 13: Taxation and Tariffs imposed by Law
From time to time, Governments enact laws and levy taxes and tariffs affecting internet electronic commerce, in which instance, the Partner/Reseller agrees to be solely responsible for complying with such laws, taxes and tariffs, and will hold harmless, protect and defect the Principal/Distributor from any claim, suit, penalty, tax or tariff arising from the Reseller’s exercise of internet electronic commerce.
Article 14: Termination
14.1 This agreement supersedes any other formal / informal agreement(s) that was(were) agreed to or signed between both parties.
14.2. This Agreement may be terminated earlier by either party hereto at any time upon thirty (30) days prior written notice to the other party.
14.3 This agreement will be terminated if any breach is found and incapable of remedy by the breached party within an agreed span to time or either party becomes a bankrupt.
14.4 Notwithstanding any such termination, the Partner/Reseller’s obligations with respect to Confidential Information shall survive the termination of this Agreement as provided herein and shall be binding upon the Reseller’s heirs, successors and assigns. The Partner/Reseller’s confidentiality obligations hereunder shall survive and continue in full force and effect with respect to non-technical sales, marketing, and financial Confidential Information for two (2) years from the date of disclosure of such Confidential Information, unless earlier terminated. The Partner/Reseller’s obligations with respect to all technical Confidential Information shall survive and continue in full force and effect for five (5) years from the date of disclosure of such Confidential Information, unless earlier terminated.
14.5 After any termination of the working relationship between the Partner/Reseller and the Principal/Distributor, upon written request, the party requested shall return all originals and copies thereof of any requested Confidential Information originally disclosed by the other party that has been fixed in any tangible means of expression within ten days.
Article 15: Independent Contractors
The parties acknowledge that their relationship under this Agreement is that of independent contractors, and nothing contained herein shall be construed to create a partnership, joint venture, or employment relationship between the parties.
Article 16: Governing Law
16.1 This Agreement supersedes any other formal/informal agreement that were agreed to or signed between the parties
16.2 This Agreement shall be governed by and construed in accordance with the laws of Malaysia or Singapore.
16.3 Any disputes arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the courts of Malaysia or Singapore.
Article 17: Amendments
No amendment, modification, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by both parties.
Article 18: Notices
Any notice required or permitted under this Agreement shall be in writing and shall be deemed to have been given when delivered in person, or by registered post, or by email with acknowledgment of receipt to the respective addresses of the parties set forth above.
Article 19: Successors and Assigns
19.1. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, legal representatives, successors, and permitted assigns.
19.2. Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party, except in the event of a merger, acquisition, or sale of all or substantially all of the assigning party's assets, in which case this Agreement shall automatically transfer to the successor entity.
Article 20: Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and communications between the parties, whether written or oral.
Article 21: Dispute Resolution
21.1 The parties will attempt to resolve any dispute arising out of or relating to the Partnership or this Agreement through friendly negotiations in good faith. If negotiations fails after 30 days, the parties will resolve the dispute through mediation by submitting the dispute to the Asian International Arbitration Centre (AIAC) in Kuala Lumpur.
21.2 If the dispute cannot be resolved through negotiation and mediation, it shall be referred to arbitration in accordance with the rules of Kuala Lumpur Regional Centre for Arbitration in Malaysia. The Arbitration award is considered final and binding on both parties.
21.3 If the above dispute resolution processes fail to resolve the dispute, the parties can resort to litigation and submit to the exclusive jurisdiction of the Courts of Malaysia.
IN WITNESS WHEREOF, this Agreement has been executed and delivered in the manner prescribed by law as of the Effective Date first written above.
