Author name: Wong Shen Ming

As a supplier, expanding your business through offline distribution channels can present both opportunities and challenges. Engaging a distributor can open up new markets and increase your reach, but it also comes with potential pitfalls. To navigate this journey successfully and safeguard your interests, a well-structured distributorship agreement becomes paramount. In this article, we will explore common problems that SME suppliers might face in such arrangements and explain how a distributorship agreement can address these concerns. Common Problems in Supplier-Distributor Relationships: Suppliers often encounter payment delays, discrepancies in payment, or in some cases, non-payment, affecting suppliers’ cash flow and profitability. Suppliers brand’s reputation is at stake if distributors mishandle, store, or transport their products improperly. Distributors might cross territorial boundaries, undercutting suppliers’ pricing strategy and causing conflicts between distributors, suppliers, and even end customers. Misaligned expectations concerning sales targets, marketing efforts, and product promotions can lead to dissatisfaction and disputes between suppliers and distributors. Suppliers face challenge in concluding business relationship amicably. These are the core issues that suppliers may encounter in their relationships with distributors. A well-crafted distributorship agreement offers an effective way to mitigate these challenges and establish a mutually beneficial partnership. How a Distributorship Agreement Helps? The distributorship agreement outlines the pricing structure, payment schedule, and consequences for non-payment, which may include financial penalties. The presence of clear payment terms in the distributorship agreement ensures that both the suppliers and the distributors have a mutual understanding of how payments will be managed throughout the business relationship. This shared understanding reduces the likelihood of misunderstandings or disputes related to payment matters. The distributorship agreement can include specific product standards and specifications that the distributors must adhere to. For example, provisions such as product handling, storage, and quality control. For high-value or perishable products, the suppliers can consider imposing an obligation on the distributors to secure insurance coverage to mitigate the risk of financial loss due to damage or loss of products. If suppliers have entrusted certain distributors with the rights to promote and market their products in the designated regions, it is important that all promotional and marketing efforts align with the suppliers’ marketing plan. To maintain this alignment, the distributorship agreement can make it a requirement that any promotional and marketing plan must receive the suppliers’ prior approval. This proactive step ensures a harmonious and consistent brand image across all regions. In addition to the critical aspects of product quality and brand image, it is equally vital to protect all suppliers’ intellectual property rights such as patents, copyrights, and proprietary business and product information. Unauthorised use or alteration of these intellectual properties can cause far-reaching and detrimental consequences to the suppliers’ business. The distributorship agreement should contain provisions specifically designed to safeguard the suppliers’ intellectual property to prevent any misuse or infringements. A precise definition of the distribution territory is an essential component of a distributorship agreement. This critical step serves to avoid conflicts, market overlap, and misunderstandings between the suppliers and the distributors. It is also important to outline both online and offline territories. For instance, if the strategy involves e-commerce for specific areas and distributors managing offline sales, this should be explicitly stated in the agreement. If suppliers plan to reserve specific territories or customer bases for themselves or other designated distributors, it is paramount to incorporate explicit provisions within the agreement. These provisions reinforce the territorial structure and ensures that each party’s responsibilities and limitations are outlined in the agreement to eliminate potential miscommunication. In many distributorship arrangements, minimum order quantities (“MOQ”) are imposed on distributors. MOQ serves to align both suppliers and distributors with specific sales targets and business objectives. To ensure compliance with MOQ, the distributorship agreement can incorporate these requirements. Failure to achieve these requirements may result in penalties and termination of the distributorship arrangement. The effectiveness of the distributor in distributing the products has a direct and substantial impact on the suppliers’ overall business performance. As such, the distributorship agreement can incorporate key performance indicators, yearly sales targets, and sales forecasts. These metrics offer an objective framework for assessing the distributors’ performance. The distributorship agreement plays a pivotal role in providing a structured framework for termination and exit procedures. Termination clauses including the required notice periods and any associated exit terms or penalties will be specified within the agreement, Moreover, the distributorship agreement can address post-termination matters such as whether the suppliers can retain the right to purchase existing stock from the distributors or whether the distributors are granted the ability to sell off the remaining stock. By meticulously defining distribution territories, setting performance metrics, ensuring product quality, structuring payment terms, protecting intellectual property and retaining control over marketing, it lays the groundwork for a thriving distributor-supplier relationship. When these elements are thoughtfully crafted and adhered to, they pave the way for long-term success in a competitive market.

Introduction: In the world of commerce, understanding the transfer of property and risk is crucial for any business involved in the sale of goods. Whether you are a seasoned trader or new to the field, mastering these legal frameworks will equip you with the tools to navigate the complexities of sales transactions. This article delves into the legal frameworks established by the Sale of Goods Act 1957 (“SOGA”), providing a clear roadmap for seller to ensure that the transfer of title and risk aligns with its strategic goals. When Do Title in Goods Transfer from Seller to Buyer? The transfer of property, or title, in goods is heavily reliant on the intentions of the parties involved. Section 19 of the SOGA provides that the property in the goods is to pass as intended by the parties. The determining factor is the intention of the parties, which must be gleaned from: Sections 20 to 24 of the SOGA provide default guidelines to ascertain the intentions of the parties, but they can be overridden by specific terms in the contract. A brief explanation of each section, along with sample examples, is as follows: Section Explanation   Example Section 20 Specific Goods in a Deliverable State When an unconditional contract is made for specific goods in a deliverable state, property in the goods passes to the buyer at the time of the contract. A furniture store sells a specific dining table displayed in its showroom. The contract does not specify any future actions to be taken by the seller. The title to the dining table passes to the buyer when the contract is made because the table is specific and in a deliverable state.   Section 21   Specific Goods to be Put into a Deliverable State   If the goods require something to be done to make them deliverable by the seller, property in the goods passes when these actions are completed, and the buyer is notified.   A buyer purchases a custom-built computer, which needs to be assembled from parts in stock at the seller’s shop. The title passes only after the computer is fully assembled and the seller notifies the buyer.   Section 22 Specific Goods in a Deliverable State When the Seller has to do Anything Thereto in Order to Ascertain Price   The property in goods only pass when the seller completes any necessary actions to ascertain the price, and the buyer is notified. A seller agrees to sell a bulk quantity of oil that needs to be measured to determine the final price. The title does not pass until the oil is measured and the buyer is informed of the quantity and total price.   Section 23   Sale of Unascertained Goods and Appropriation Unascertained or future goods can be transferred through appropriation, where either the seller with the buyer’s consent or the buyer with the seller’s consent sets aside goods that match the contract description. A retailer orders 100 units of a new smartphone model from a distributor, but the phones are not yet designated. Title passes when the distributor designates 100 specific units from their stock and both parties agree that these units have been set aside for their order.   Section 24  Goods Sent on Approval or “on Sale or Return”   The property in goods passes to the buyers when they signify their approval or acceptance, retain the goods beyond a fixed or reasonable time without rejecting them, or do any act adopting the transaction.   A jewellery store sends several pieces to a customer on approval for one week. Title passes when the customer either explicitly accepts the pieces (e.g., by a phone call or email stating the acceptance) or retains the pieces without rejection past the one-week period.   When Do Risk in Goods Transfer from Seller to Buyer? Under Section 26 of the SOGA, risk typically passes with the goods. This legal principle establishes that unless otherwise agreed by the parties involved, the goods remain at the seller’s risk until the property is transferred to the buyer. Once the property is transferred, the risk immediately shifts to the buyer, irrespective of whether delivery has been made. Knowing exactly when the property is transferred is crucial for the seller, as it clarifies the point at which the seller is no longer liable for the goods. For instance, if property passes to the buyer at the time of shipment, any damage or loss that occurs during transit thereafter becomes the buyer’s responsibility. Retaining Seller’s Rights in Goods? Once the property in the goods has passed to the buyer, the buyer becomes the owner and is generally free to deal with the goods. However, in many business transactions, especially when goods are delivered on credit, the seller may face increased financial risk. This risk arises because the buyer is allowed to pay for the goods during an agreed-upon credit term, which can sometimes lead to non-payment or delayed payment. In such scenarios, retaining the right to dispose of the goods becomes critical to safeguard the seller’s interests. Section 25 of the SOGA recognising the seller’s reservation of the right of disposal. This right ensures the seller can recover possession or potentially resell the goods to another buyer if the original transaction fails. An example of such a clause (sometimes called the Romalpa Clause or retention of title clause) is: “Notwithstanding shipment and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.” This clause stipulates that transfer of title is contingent upon the full payment of the goods, clearly marking the receipt of funds as the point at which this condition is fulfilled. Thus, it safeguards the seller’s rights and financial interests even after the goods have been physically transferred to the buyer. The legality of the Romalpa Clause have been upheld in Malaysian courts.

Welcome to an easy-to-follow Q&A guide, designed to clarify the sometimes confusing world of contracts. Ever been confused about how to sign a contract? You are not alone. We are here to explain the basics and make signing contracts easy to understand for everyone. Q1: Are electronic signatures legally valid? Yes. Electronic signatures are recognised as legally valid under laws such as the Digital Signature Act 1997 and the Electronic Commerce Act 2006. However, electronic signatures cannot be used for certain documents such as Power of Attorney and such documents must be properly executed according to relevant legal requirements. Q2: Must all parties sign on the same copy of a contract? Not at all. Parties can sign the contracts in counterparts, meaning each party can sign a separate copy. When combined, these copies constitute the full, enforceable agreement. Q3: How many copies of a contract need to be signed? The number of copies that need to be signed typically corresponds to the number of parties involved. For instance, in a two-party agreement, each party would sign two copies in a physical setting. In the case of electronic signing, a single copy is adequate. Q4: Is it necessary to sign or initial every page of a contract? No. It is not mandatory to sign every page. Generally, signatures are only needed on the designated signatory sections (it is usually located at the last page of the contract). However, initialling each page can prevent unauthorised alterations to the contract. Q5: Are witness signatures required for all contracts? Business contracts usually do not need a witness. Personal documents like wills, often require witness signatures for added legitimacy and to uphold the document in a legal setting. Q6: Is it necessary to stamp a signed contract? Stamping signifies that any applicable taxes or duties on a document have been paid. Even without stamping, a contract that is properly signed by all parties is still a legally binding document. However, for a contract to be admissible in court as evidence, it needs to be stamped. Contracts should be stamped promptly after signing (within 30 days from its execution) to avoid late penalties. This Q&A is intended to simplify your approach to contract signing. Remember, while we provide a basic outline here, the specifics can differ based on where you are and the details of your situation.

Welcome to an easy-to-follow Q&A guide, designed to clarify the sometimes confusing world of contracts. Wondering why contracts are important in business dealings? You are not alone. We are here to clarify why signing contracts is crucial for any business transaction. Q1: Can a contract provide clarity and reduce misunderstandings? Absolutely. A written contract serves to lay out the roles and responsibilities of each party involved, which significantly reduces the possibility of misunderstandings. It acts as a point of reference for what was agreed upon. If disputes arise, the court will turn to the contract to determine the intentions and agreements of the parties to resolve the disputes. Q2: How does a contract offer legal protection? A contract is a legally binding document that is enforceable in a court of law. This legal enforceability offers a layer of protection for the rights and interests of everyone involved. It ensures that each party’s expectations are met and provides a legal remedy if contract has been breached. Q3: Is there a financial benefit to having a contract? Drafting a contract does involve some costs, but these are generally much lower than the expenses incurred from legal battles due to disputes. Contracts provide a more efficient and cost-effective way to resolve issues, as they lay the groundwork for the resolution process and can often prevent disputes from escalating to the need for court intervention. Q4: Does a contract help in making transactions more professional? Yes, having a contract underscores the professionalism of a business transaction. It demonstrates a commitment to honour the terms and an understanding of business protocols, which can help establish and maintain trust between parties. Q5: Can having a contract prevent disputes? Contracts often prevent disputes before they start. By having clear terms and conditions laid out, there is less room for disagreement. Furthermore, a contract can include mechanisms for dispute resolution, making it easier to handle any disagreements that do arise without resorting to litigation. Q6: What happens if you enter a business deal without a contract? Without a contract, there is no formal record of the terms of your agreement, which may lead to misunderstandings and disagreements that are difficult to resolve. This may result in damaged business relationships, financial loss, and potentially expensive and time-consuming litigation. This Q&A is designed to highlight the importance of contracts in business transaction. By establishing clear terms, contracts offer clarity and safeguard rights. Before engaging in any business activity, it is wise to ensure that a well-drafted contract is in place.

Contracts serve as the cornerstone of business transactions and establish the rights and responsibilities of all parties involved. Once contracts are signed, they become legally binding documents on the parties and cannot be changed or amended at the parties’ discretion. However, there are situations where amending a signed contract becomes a necessity to accommodate changes in plans and circumstances. In this article, we will explore the process of amending a signed contract, offering insights and guidance to you. Review the Existing Clause in the Contract: In most contracts, you will find an amendment or variation clause within the contracts that outlines the conditions of making changes. These clauses are usually located at the end of the contract, often in the final few boilerplate clauses. The standard amendment or variation clause usually require prior written consent of all parties involved before any changes to the contracts can be made. For example, a common phrasing might state, “No variation of any provisions of this Contract shall be binding unless made in writing and signed by all parties.” If your contract lacks such a clause, the usual method is to make changes in writing. This can include email correspondence or other written communication. However, be cautious with handwritten notes in pencil or the absence of the other party’s signature in the amended copy, as these may not be recognised by the court as valid amendment, as confirmed by the Court of Appeal in Kee Wah Soong v Yap Boon Hwa and Another Appeal [2018] 1 LNS 1284. Amend the Contract in Writing While email or handwritten communication is more convenient, it is generally advisable to record amendments through a proper legal document known as an “Addendum.” An Addendum is a legally binding document that outlines the changes to the original contract, the changes may include adding a new clause, deleting an existing one, or modifying a clause. For example, common language used in an Addendum might include wordings like “The terms of Clause 1.1 of the Tenancy Agreement shall be amended to read as follows”. Once the intended changes are clearly defined in the Addendum, the parties involved in the original contract will sign the Addendum and date it to signify their consent to the amendments. In the event of disputes, the courts will consider the original contracts as well as the addendum to determine an issue. For example, in the case of Hewlett-Packard (M) Sdn Bhd & Anor v Agih Tinta Sdn Bhd [2022] 9 CLJ, the Court of Appeal referred to the addendum and determined that the respondent, who was initially not a partner of HP, later became an affiliate through an addendum with Sunlight, a partner of HP. Making oral changes to a contract is not recommended. This is because oral communication frequently results in more disputes and can prolong the process of ascertaining the parties’ intentions. In court, oral evidence is typically more difficult to admit as evidence when there is a written document available. Who Can Amend the Contract? In most scenarios, a contract can only be amended if all parties who originally signed it unanimously agree to the proposed changes. This ensures that the fundamental spirit and intent of the contract are preserved, and no party can unilaterally impose changes without the others’ consent. However, in certain contracts, such as bank facility agreements, one party, often the bank, may be granted the authority to make changes without requiring the consent of the other party. This unilateral amendment power will be specified in the contract terms. When dealing with such contracts, it is important to carefully review the agreement to understand which party holds the authority to make alterations. Practical Steps to Amend a Contract: We will now outline a series of important steps you can take to effectively amend the contract: Review the original contract to identify the section or clause that needs modification. Communicate openly with the other party involved. Discuss the proposed changes, explain your reasons, and listen to their perspective. Sometimes, parties can come to a mutual agreement without making any changes to the contract. If all parties agree to the proposed changes, the next step is to document these changes in writing. As discussed above, an Addendum may be used to formally record the changes. Maintain records of all correspondence and documents related to the changes. These records may serve as evidence in the event of future disputes and offer clarity of the agreed-upon modifications. Be careful when making material changes to a contract. These are changes that substantially alter the original terms. In some cases, creating an entirely new contract may be wiser than amending the existing one. Contracts are designed to protect the legal interests of the contracting parties. When it comes to amending a signed contract, it requires careful consideration, open communication, and documentation. By following the steps outlined in this article, you can effectively navigate contract changes, ensuring the continued legal protection of your interest in commercial transactions.

In an era where personal information is constantly exchanged and privacy concerns are escalating, businesses must prioritise data protection to address privacy concern. One effective way to demonstrate this commitment is through a well-written privacy notice. According to the Personal Data Protection Act 2010 (“PDPA”), all businesses, regardless of type and size, that process personal data in commercial transactions are required to prepare a privacy notice. Understanding the Privacy Notice: A privacy notice, also referred to as a privacy policy or personal data protection notice, is a document that explains how businesses collect, use, and process customers’ personal data. It covers important details such as the types of data collected, purposes of data processing, retention periods, rights of individuals, and contact information for inquiries or complaints. Non-compliance with the PDPA can lead to severe consequences for businesses, including fines up to RM300,000 and imprisonment not exceeding 2 years or both. Tips For an Effective Privacy Notice: To create a reader-friendly privacy notice, businesses can consider the following tips: communicate in a way that is easily understandable and avoid using long sentence. The notice should be prepared in both English and Bahasa Malaysia languages. clearly explain the types of personal data you collect, how it will be used, and any third parties with whom it may be shared. assure your customers that you have implemented security measures to protect their personal data. inform your customers about their rights and choices regarding their personal information, including how to opt out of marketing communications or correct their personal data. Practical Examples of Privacy Notice Implementation: Implementing a privacy notice is more than just ticking a box; it’s about effectively communicating your data protection practices to your customers. Here are some practical examples of how businesses can display privacy notices: Website Privacy Notice: place a prominently visible privacy notice on your website’s homepage or include a link in the footer for customers to access the full privacy notice. Mobile Applications: present users with a privacy notice during the app installation process or within the app itself. Ensure it is easily accessible in the settings, allowing users to review it at their convenience. Email Communications: include a link to your privacy notice in the email footer if you collect personal information through email sign-ups or subscription forms. Resource for Businesses: The Personal Data Protection Department of Malaysia issues a guideline on preparing a privacy notice along with a sample privacy notice. This resource serves as valuable reference for businesses. By following the guideline, businesses can ensure their privacy notices align with best practices and comply with legal requirements. (You can access the resource at: https://www.pdp.gov.my/jpdpv2/assets/2022/01/Panduan-Penyediaan-Notis-PDP-2022-compressed.pdf). A well-crafted and customised privacy notice not only fulfills legal obligations but also sends a strong message to customers that their privacy is your top priority. This fosters trust and loyalty in business-customer relationships, and ultimately building customer confidence. ***** About the author: This article was written by Wong Shen Ming, Corporate Associate – law firm in Kuala Lumpur, Malaysia.   The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.

On 15 August 2022, the Ministry of Human Resources issued and gazetted the Employment (Amendment of First Schedule) Order 2022 (“Order”) which will come into effect on 1st September 2022. Please note that this Order is only applicable to the Peninsular Malaysia. This Order removes the salary cap of those who are entitled to the benefits and protections under the current Employment Act 1955 (the “EA”). For more details regarding the series of amendments made to the EA, you may refer to our previous articles here:  The New Employment Law Amendments: Empowering Employees The New Employment Law Amendments: What Have Been Missed Out? [Part 1] The New Employment Law Amendments: What Have Been Missed Out? [Part 2] Previously, the common rights and benefits provided in the EA such as the overtime payment, extra payment for working on public holidays, minimum notice period of termination, annual leave, sick leave, hospitalization leave, maternity and paternity leave, public holiday, etc only applied to employees earning a monthly salary of RM 2,000.00 and below. For employees earning more than RM 2,000.00 per month, their rights and benefits will be governed by their employment contracts. If the rights and benefits stipulated under the employment contracts are less favourable than the EA, the employees would still be bound by the terms of the employment contract. With the removal of the salary cap of RM 2,000.00 from Schedule 1 of the EA, the EA will now apply to ALL EMPLOYEES. This means that employees will now be entitled to the same rights, protections and benefits under the EA regardless of their monthly salaries, industries and nature of work. In other words, if the employment contract has provisions that are less favourable than the EA, the EA will prevail over the employment contract. Having said the above, certain exceptions apply. The Order states that employees earning RM 4,000.00 and above are not entitled to the following rights and benefits (the “Inapplicable Provisions”): Section 60(3) Payment for work done on a rest day Section 60A(3) Overtime payment Section 60C(2A) Allowance during shift work Section 60D(3), (4) Payment for work done during public holiday Section 60J Termination, lay-off and retirement benefits For illustration, an employee earning RM 3,000 per month will now be entitled to overtime payment calculated in accordance with the EA if the employee is required to work beyond 45 hours per week. On the other hand, an employee who is required to work beyond 45 hours per week but is earning RM 5,000 per month will not be entitled to overtime payment since Section 60A(3) is inapplicable to him. Both employees, however, will have the right to apply to the employers for a flexible working arrangement under Section 60P since it falls out of the Inapplicable Provisions.  With the introduction of this Order and less than a month from its effective date, we believe it is a critical moment for employers to relook and modify their employment contracts to ensure the contracts are in conformity with the latest employment law. If your business may be impacted by the above changes, we highly encourage you to conduct a review of the terms of employment for ALL your employees as soon as possible to ensure that the terms are consistent with the provisions of the EA. ADDITIONAL NOTES: Section Description Quantum s. 60A(3) Overtime payment on a normal day 1.5x HRP for overtime after 8 hours of work s. 60(3) Payment and Overtime payment on a rest day [for employee being employed on a monthly or weekly rate of pay] 0.5x ORP for the first 4 hours of work 1.0x ORP for the subsequent 4 hours of work 2.0x HRP for overtime after 8 hours of work s. 60D(3) and (4) Payment and Overtime payment on a public holiday 2.0x ORP for normal 8 hours of work 3.0x HRP for overtime after 8 hours of work s. 60C(2A) Entitlement of allowance during shift day To be decided by employer based on regulations made by the Minister s. 60J Termination, lay-off and retirement benefits   10, 15 or 20 days for each year of completed service based on the employee’s year of service Note: ORP (ordinary rate of pay) = wages/26 days HRP (hourly rate of pay) = ORP/normal working hour *The above is inapplicable to employees earning more than RM 4,000.00 per month   For calculation of overtime for employees being employed on a monthly rate of pay Ordinary Rate of Pay – Monthly Rate of Pay Ordinary Rate of Pay                Monthly Rate of Pay Per Day                            =      __________________                                                               26 For calculation of overtime for employees being employed on a weekly rate of pay Ordinary Rate of Pay – Weekly Rate of Pay Ordinary Rate of Pay               Weekly Rate of Pay Per Day                           =   __________________                                                              6   ***** About the author: This article was written by Edwin Lee Yong Cieh, Partner, Neoh Jia Shern, Corporate Associate and Wong Shen Ming, Trainee Lawyer – law firm in Kuala Lumpur, Malaysia.   The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.