TERMS OF DELIVERY AND SALE
1. Application of Terms
1.1 These Terms apply to every order from a buyer of Bosch’s products or services (Buyer). In the event of any inconsistency between these Terms and an order, these Terms will prevail to the extent of the inconsistency. No other terms and conditions (including any terms or conditions contained in any order or invoice of the Buyer or in any other document prepared or issued by the Buyer) will be binding on Bosch unless made in writing.
1.2 Sales orders, offers and estimates given by Bosch (also referred to as “we”, “us”or “our” herein) may be subject to alteration and are valid for a maximum period of 30 days of the date of quotations, offers or estimates, as the case may be, unless otherwise specified in writing.
1.3 Orders once accepted cannot be cancelled or varied without Bosch’s written consent. Bosch reserves the right to correct any significant errors or omissions of any kind in its offers, sales orders, order confirmations or invoices. Bosch further reserves the right at any time and without notice to impose a limit on the amount of products the Buyer may purchase.
1.4 The supply of the products or services by Bosch does not create any obligations on Bosch to supply the products or services to the Buyer on a continuing basis or at any time in the future.
2. Pricing
2.1 Bosch reserves the right to vary at any time with notice to the Buyer the price of products or services to take account of any change to the costs of supplying the products.
2.2 In the event that tax, duty or the like is applicable, Bosch reserves the right to revise the amounts quoted notwithstanding that Orders have been accepted by Bosch provided that the products have not been delivered or services rendered.
2.3 Each amount quoted by Bosch will be exclusive of any tax, duty or the like chargeable unless otherwise stated. Each amount payable by the Buyer for a taxable supply by Bosch will be inclusive of any tax, duty or the like chargeable.
2.4 Unless otherwise stated in the sales order, prices quoted for export are FOB Malaysia and do not include freight costs, insurance or import taxes in the destination country, or delivery at the destination, which are the sole responsibility of the Buyer.
3. Terms of Payment
3.1 Except as otherwise agreed in writing, payment shall be effected within 30 days of the invoice date without any deductions whatsoever. We may also, however, make delivery conditional upon contemporaneous payment (for instance cash on delivery or bank direct debiting service) or on pre-payment.
3.2 We are entitled to offset payments made against the oldest claim due.
3.3 In case of delayed payment we are entitled to charge default interest amounting to 8 % of the due account. The right to assert a claim on account of further damage is not excluded.
3.4 Payment by bill of exchange is only admissible following prior agreement with us. We only accept bills of exchange and cheques on account of performance and they shall not be deemed to constitute payment until honored.
3.5 If the Buyer is in arrears in payment we shall be entitled to demand immediate cash payment of all claims arising from the business relationship which are due and against which there is no defence. This right shall not be barred by a deferral of payment or by the acceptance of bills of exchange or cheques.
3.6 The Buyer shall only have the right to withhold payments or to offset counter claims insofar as the Buyer’s counter claims are undisputed or ruled with res judicata effect by a court of law.
4. Delivery
4.1 If the Buyer fails or refuses or indicates to Bosch that it will fail or refuse to take or accept delivery, then the products shall be deemed to have been delivered on the date when Bosch sought to deliver the products. The Buyer may not refuse to take delivery on account of minor defects.
4.2 Bosch reserves the right to make partial deliveries of the products to the Buyer.
4.3 If, at the Buyer’s request, delivery of the products is delayed after notification by Bosch that the products are ready for delivery, the Buyer may be charged reasonable storage costs by Bosch.
4.4 Bosch will endeavor to effect delivery within the time stated (if a time is stated in writing) but if Bosch fails to do so by reason of:
(a) inability to obtain supplies of materials or parts from approved sources;
(b) any strike or combination of worker, shortage of labour or lockout;
(c) any fault of the Buyer; or
(d) any other event or circumstance beyond the reasonable control of Bosch, Bosch may at its option cancel any contract to supply ( "Supply Contract”) or any unfulfilled part or extend the time for its performance or completion by the time lost because of the event preventing or delaying delivery. Bosch shall not be liable for delay in delivery of the products or services.
4.5 The Buyer must return to Bosch any packaging, packing materials and pallets used in the delivery of the products. If the Buyer does not return such packaging, packing materials and pallets the Buyer may be charged the cost of such items.
5. Risk
5.1 Unless otherwise agreed by the parties in writing, the products shall be at the Buyer’s risk upon FOB Malaysia delivery or where products are delivered on non-FOB terms, the risk in the products shall pass to the Buyer at the time that the Buyer or its agent or carrier takes physical possession of the products.
5.2 Unless the Buyer proves that any loss or deterioration of or damage to the products occurred prior to risk passing, Bosch shall not be liable for any such loss, deterioration or damage.
6. Property
6.1 We retain title to the products delivered pending full performance of all claims to which we are entitled on the basis of the business relationship now and in future.
6.2 If the Buyer:
(a) defaults in paying any sums due to Bosch; or
(b) is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors or if a mortgagee takes possession of any of the Buyer’s assets; or
(c) is a company and has a provisional liquidator, liquidator, receiver, receiver and manager or official manager, trustee for creditors or in bankruptcy, administrator or analogous person appointed to it or its property, or has a petition for winding up presented against it; or if a mortgagee takes possession of any of the Buyer’s assets; or
(d) is otherwise unable to pay its debts as and when they fall due, the payment shall become immediately due and payable and the Buyer shall not sell or otherwise deal with any products in its possession and the Buyer irrevocably authorizes Bosch to enter any premises where the products are kept and to use the name of the Buyer and to act on its behalf to recover possession of Bosch’s products.
6.3 Subject to clause 6.2, the Buyer is authorized to sell the products, for which property is retained (“Retained Products”), in the ordinary course of business provided that such authority may be revoked by notice from Bosch at any time if Bosch considers the creditworthiness of the Buyer to be unsatisfactory or if the Buyer is in default in the performance of its obligations under a Supply Contract or any other agreement between Bosch or any related body corporate of Bosch (Bosch Related Company), and the Buyer. Such authority shall be deemed automatically revoked if the Buyer satisfies clause 6.2.
6.4 The Buyer shall be obliged to store the Retained Products separately and shall clearly identify such products as the property of Bosch. Bosch shall, upon revoking its authority contained in clause 6.3 or such authority being automatically revoked, have the irrevocable right to enter upon the premises where the products are situated and take possession of and remove the products (or any products into which they become incorporated) without being responsible for any damage thereby caused, and Bosch may resell any or all of the products and apply the proceeds in or towards payment of the price and all other moneys owing to Bosch by the Buyer. The Buyer will remain liable to Bosch for the price of any damaged, used, incomplete, broken or obsolete products that Bosch determines have no commercial value or are unable to be resold. Bosch may also require the Buyer to pay Bosch’s reasonable costs in exercising any of its rights under this clause 6.4 together with any related costs such as repackaging.
6.5 If the Retained Products are incorporated in products owned by the Buyer, the resulting products shall be deemed to be the property of Bosch. If the Retained Products are incorporated in products owned by persons other than the Buyer, the resulting products shall be deemed to be owned in common with that other person, and the Buyer shall procure the other person to acknowledge such. If the Retained Products are to become fixture or fittings of any real property owned by the Buyer or any other person, the Buyer acknowledges, (and where the Buyer does not own the real property to which the products are to be affixed shall procure the owner to acknowledge) and in either case shall procure any mortgagee of such real property to acknowledge that, notwithstanding such incorporation, such products remain the property of Bosch until property in the products passes to the Buyer and that all rights of Bosch set out in these Terms remain.
7. Intellectual Property
7.1 All intellectual property in products or services (including patents, trademarks, industrial designs and copyright) or relating to the development and manufacture of the products or services, and in any associated documents and materials, remains at all times the sole and exclusive property of Bosch or a Bosch Related Company or its licensor at all times. Unless otherwise agreed by Bosch in writing, Bosch maintains the right to bring claims against the Buyer for any breaches of intellectual property.
7.2 The Buyer shall not use any trademark owned or licensed by Bosch (or a Bosch Related Company) or any substantially identical or misleadingly similar words, in a company name, business name, internet domain name or email address.
7.3 The Buyer shall not apply to register a trade name, business name, company name or internet domain name which incorporates any trademark owned or licensed by Bosch (or a Bosch Related Company) or any substantially identical or misleadingly similar words.
7.4 The Buyer shall not use any logo, mark or any other promotional material owned by or licensed to Bosch in any promotional materials without the prior written consent of Bosch.
7.5 The Buyer shall not, and shall ensure that its officers, employees or agents do not:
(a) disparage Bosch or a Bosch Related Company or any of its trademarks or products or services; or
(b) do anything which the Buyer should realise is likely to damage the reputation of Bosch or a Bosch Related Company or any of its/their trademarks or products or services.
7.6 Bosch is not liable for any claims arising from an actual or alleged infringement of a third party’s intellectual property rights if:
(a) the actual or alleged infringement of the intellectual property rights is due to use in conjunction with another product not supplied by Bosch;
(b) the products are used in a way which could not have been foreseen by Bosch, unless (in the case of patents) at least one intellectual property right from the property right family has been published under the European Patent Office or in one of the following countries: Federal Republic of Germany, France, Great Britain, Austria or the USA.
8. Express Warranties
8.1 Bosch warrants that products or services sold by Bosch are free from material faults and defects (except where the defects cannot be discovered due to the state of scientific or technical knowledge) and conform to the specifications specified by Bosch.
8.2 Notwithstanding that any products may have been sold by description or sample, Bosch does not warrant that the products shall conform to that description or sample and products shall be accepted by the Buyer even though alterations in design or construction have been introduced by Bosch between the date of the description or provision of the sample.
8.3 Bosch assumes the warranty of fitness for a particular purpose only:
(i) for Bosch supplied products; and
(ii) if such particular purpose has been expressly stated in writing by the Buyer, and Bosch has expressly accepted warranty of fitness for such purpose.
The duration (and any other details) of the warranty referred to in this clause shall be agreed upon a product specific basis.
8.4 Unless otherwise agreed by Bosch in writing, the warranty in clause 8.1 shall apply for the warranty period stipulated in the warranty conditions supplied with the product, and if no warranty period is so specified, for 6 months, from the date of delivery of the products from the Buyer to the final consumer of the product, subject however to the date of commencement of warranty not being later than 12 months after the date of manufacture of the product.
8.5 Claims under the warranty(s) provided under this clause 8 will be considered only if made in writing to Bosch within 7 days of such claim arising. Repair or replacement shall not extend nor renew the warranty period.
8.6 The express warranty shall not apply in the following cases:
(i) if any defect to the products sold occurs due to repair, alteration or modification carried out by any third party, or where parts are used in replacement or repair which are not manufactured, sold or approved by Bosch, without Bosch’s written consent;
(ii) if parts not manufactured, sold or approved by Bosch are used in combination with the Bosch products without Bosch’s written consent;
(iii) if any defect arises due to failure to comply with storage, handling, operating, maintenance or installation instructions (as the case may be) or otherwise results from lack of care in storage, handling, use or installation, accident or use for a purpose for which the products are not designed or sold;
(iv) if changes occur in the condition or operational qualities of the products due to climate or other environmental influence, foreign material contamination or water entry;
(v) when replacement or repair of parts is part of normal maintenance or service and normal wear and tear or where the damage is only to surface coating, varnish and enamel;
(vi) if the products suffer damage caused by continued use of the products after it is known they are defective; or
(vii) if the fault is attributable to specifications or materials provided by the Buyer to Bosch Diagnostics listed in the operating instructions as “wear and tear parts”, the customer is entitled to a claim only if there is no natural wear and tear.
8.7 The warranties agreed under or in accordance with clause 8, including the details agreed on a product specific basis, are in lieu of all other warranties expressed or implied. The liability of Bosch under these warranties is limited in accordance with clauses 9 and 10.
9. Indemnity and exclusion of liability
9.1 Subject to clause 8:
(a) all warranties, conditions, liabilities, or representations in relation to, inter alia, the quality, condition, merchantability or fitness of products or services sold or provided by Bosch which might otherwise be implied by statute or common law or otherwise are expressly negated and excluded;
(b) insofar as it is legally permissible, and subject to clause 9(c), any civil liability of Bosch to the Buyer in respect of or in any way related to the products or services or information or advice supplied in respect of the products shall be limited, at Bosch’s option, in the case of the products (or parts thereof) to the repair or replacement of the products (or the parts) or the supply of equivalent products (or parts) or the payment of the cost of having the products (or parts) repaired or replaced or having equivalent products (or parts) supplied and, in the case of services, to supplying the services again or paying the cost of having the services supplied again;
(c) insofar as a breach of the express warranty under clause 8.1, Bosch shall also repair or replace any other Bosch product (or part) damaged as a result of the defective product, despite due care having been exercised;
(d) except as otherwise authorised or agreed by Bosch, Bosch shall not be liable for the cost of any consequential repairs, alterations or replacement or for any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses, loss of data or information, Buyer’s internal administrative costs, or costs of investigation, made or incurred by the Buyer under or in connection with the Supply Contract including as a result of the negligence of Bosch, its directors, servants or agents;
(e) the Buyer releases Bosch from, and indemnifies Bosch against, all claims costs and demands arising directly or indirectly from the incorrect or unintended use of operation of the products supplied by Bosch to the Buyer; and
(f) except where otherwise agreed in writing with the Buyer, the remedies provided in these Terms are the Buyer’s exclusive remedies for Bosch’s breach of warranty.
10. Notification of faults
10.1 Unless the products are delivered in accordance with clause 4.2, the Buyer shall notify Bosch of any shortfall in the number of products to be supplied under a Supply Contract within 48 hours after receipt of the products. Failure to so notify Bosch shall result in the loss of any rights the Buyer may have against Bosch for the shortage.
10.2 The Buyer shall within 7 days of each delivery of products give notice in writing to Bosch providing full particulars of any matter or thing not in accordance with the Supply Contract other than because of any shortfall to which clause 10.1 applies. Failing such notice the products shall be deemed to be in all respects in accordance with the Supply Contract and the Buyer shall be bound to accept and pay for the same.
11. Termination
11.1 Bosch may terminate or suspend a Supply Contract (with or without prior notice as it may determine in its sole discretion) if the Buyer is in breach of:
(a) that Supply Contract or any other Supply Contract; or
(b) any other agreement with Bosch or Bosch Related Company; or
(c) in the event a default is triggered under clause 6.2(b) to (d).
11.2 Bosch may, without liability to the Buyer and in addition to its rights pursuant to clause 11.1, immediately terminate or suspend a Supply Contract and any outstanding orders if the Buyer or any of its employees or representatives act dishonestly, fraudulently or illegally.
12. Set Off
12.1 The parties agree that the account between Bosch and the Buyer is a running account.
12.2 Where any amount is payable by Bosch to the Buyer under any agreement between them, including an amount owing by way of rebate, Bosch may set such amount off against any amount owed to Bosch or to a Bosch Related Company by the Buyer, and continue to do so until such time as the amount outstanding from the Buyer has been paid in full.
13. Confidentiality
13.1 All of the business and technical information stemming from us (including characteristics which can be deduced from goods or software delivered and other knowledge or experience) shall be kept secret with respect to third parties if and as long as such information is not proven to be public knowledge or determined by us to be resold by the Buyer and it may only be made available to those persons within the Buyer’s own operation who necessarily have to be included in the use thereof and who are also committed to secrecy; the information shall remain our exclusive property. Without our prior written consent such information may not be duplicated or commercially used. At our request all information stemming from us (including, if applicable, any copies or duplicates prepared) and goods made available on loan must be returned to us immediately in full or destroyed.
13.2 We reserve all rights to the information mentioned in clause 13.1 above (including copyright and the right to file applications for industrial property rights such as patents, utility models, semiconductor protection etc.).
14. General
14.1 These Terms may only be varied by agreement in writing between the Buyer and Bosch. This shall not however fetter Bosch in any way from amending the Terms at any time without notice in relation to future orders placed by the Buyer.
14.2 Any provision of these Terms will be read down to the extent necessary to prevent that provision or these Terms being invalid, voidable or unenforceable in the circumstances.
14.3 The Buyer must not assign or subcontract all or any of its rights or obligations under a Supply Contract in whole or in part without the prior written consent of Bosch.
15. Governing Law and Jurisdiction
15.1 A Supply Contract shall be governed and construed in accordance with the laws of Malaysia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Malaysia.
15.2 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Supply Contract.
16. Headings
The headings of these Terms are for ease of reference only and shall not be incorporated into or taken to limit the interpretation of any of the Terms.