1) Definition
a) "Company" means TESTO SMI SDN BHD (1165879-H).
b) "Order" means an order placed with the company for the supply of goods and services.
c) "Customer" means the person, firm, or company from whom an Order is received.
d) "Goods" means the articles, items, or services or any of them described in an Order.
e) "Contract" means the contract constituted by any Order and its acceptance.
2) Orders, Acceptance, and Contracts
a) All Order, Acceptances and Contracts are subject to these conditions, and nothing is to vary or over-ride them unless agreed to in writing signed on the Company's behalf. All other conditions and warranties whether expressed or implied by law or trade user are excluded. By placing the order and accepting the Goods, the Customer confirms its agreement with the Company’s Conditions.
b) In particular no terms or condition in any order given by any Customer which is inconsistent with these Conditions will apply.
c) All brochures, catalogues, manuals, and other like material are issued by way of general description only and nothing contained therein, nor any representation of whatever kind shall be binding upon the Company.
3) Sales Prices
a) Orders may be either by direct order at the prices stated in the Company's current price list or based on a quotation given by the Company.
b) The prices for the products and services offered are in Malaysian Ringgit excluding GST and excluding shipping costs, taxes, or other charges, unless otherwise stated or agreed in writing.
c) All orders are made subject to these Conditions of Sale.
d) All prices and Quotations are tendered without commitment and are subject to withdrawal or variation at any time prior to an Order being accepted by the Company. The Company reserves the right to change the prices valid at the date of dispatch. The Company’s written order confirmations form the contractual basis and are decisive for the scope of the delivery. The Company reserves the right to make design changes and other changes to technical data and performance characteristics if they are in the interests of technical progress.
e) All quotations are made on the understanding that the whole of the quantity quoted for will be ordered; otherwise, the Company reserves the right to revise the quotation.
4) Terms of Payment
The Customer agrees to pay all amounts due in clear funds within Company’s agreed timeframe but in any event, no later than 30 days from the date of invoice (“due date”).
a) If the Customer fails to make any payment on the due date, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
b) stop any Goods in transit, suspend further deliveries to the Customer, suspend performance of Services without any liability to the Customer
c) appropriate any payment made by the Customer to such of the Goods and/or the Services (or the goods or services supplied under any other contract between the Customer and the Company), as the Company may think fit (notwithstanding any purported appropriation by the Customer)
d) charge the Customer late payment interest on the amount unpaid, at the rate of one per cent (1%) per month, calculated from the date payment is due until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and/or
e) terminate the Contract
f) In the event where this agreement has been entered into by more than one party each party shall be jointly and severely liable for any amounts overdue.
g) The Company reserves the right to change such payment terms at any time when, in the opinion of the Company the financial status of the Customer so warrants.
5) Delivery date
a) The delivery times made known to the Customer are estimates only and the Company is not liable for late delivery or non-delivery.
b) The Company shall make every effort to meet quoted delivery dates but shall not be liable for any failure in this regard. Such failure shall not be ground for cancellation.
c) The Company is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Goods or Services.
d) Unless delivery in one consignment is specifically requested, the Goods will be dispatched as they become available, and each part delivery will be treated as separate contract and invoiced separately.
6) Title and Risk
The Goods shall be at the risk of the Customer from the time of delivery. However, the Company shall remain the owners of the Goods forming the subject of each delivery until such time as all payments referring to that delivery have been completed. The Customer shall neither sell, pledge, assign nor in any way part with possession of the Goods forming the subject of any delivery until such time as the Company has received payment thereof.
7) Warranty
a) Testo SE & Co. KGaA issues a worldwide warranty with a time limit on all its products in accordance with the following listed warranty conditions.
b) Testo issues the warranty from the date of the first purchase. The warranty covers all material and manufacturer faults.
c) Faults occurring during the warranty time will be rectified by Testo SE & Co. KGaA, its authorized sales subsidiaries or authorized dealers in accordance with the following conditions and without charge for labour and material costs.
d) Either the defective components will be replaced with new spare parts, or the entire product will be replaced according to Testo’s estimation.
e) The following are excluded from the manufactures warranty:
i. wear parts (e.g. rechargeable batteries/ batteries, measuring cells, printing mechanisms) and consumables (e.g. printer paper);
ii. damage caused by:
- use contrary to the intended purpose or failure to observe the instruction manual and/or the safety instructions.
- lack of care, accidents, or normal wear.
- external influences (e.g. damage during transport, damage caused by vibration, excess heat, water, moisture or acids);
- use of unsuitable accessories.
f) This warranty expires if:
i. The type or serial number of the product is changed, deleted, removed or made illegible.
ii. Repairs or modifications are undertaken by third parties or unauthorized persons.
g) The warranty covers none of the following items:
i. Regular maintenance and repairs or the replacement of parts due to normal wear.
ii. The costs of packaging and transport.
iii. The costs of repairs, adjustments or similar measures taken beyond the extent of this warranty.
h) In the case of a warranty claim, the Customer needs to consult its dealer or the sales subsidiary responsible for its country. The addresses can be seen at www.testo.com
i) The Customer should enclose a brief description of the fault and the purchase receipt, indicating the delivery and purchase dates, together with the product. They should also provide their contact details for any inquiries.
j) Warranty repairs do not extend the period of warranty.
k) Further claims of any kind against Testo such as commercial transformation, price reduction or compensation will not be processed.
l) The following time limits apply to instruments and accessories:
i. Instrument – a period of 24 months beginning the date on which risk passes to the Customer
ii. Probes - a period of 12 months beginning the date on which risk passes to the Customer
iii. Accessories - a period of 6 months beginning the date on which risk passes to the Customer
8) Liability
a) The Company’s liability under or in connection with the agreement to sell and supply the Goods and/or Services shall be subject to the limitations set out in this Clause.
b) The Company shall be under no liability whatsoever where this arises from a reason beyond its reasonable control or from an act or default of the Customer.
c) The sole and exclusive remedy of the Customer under these Terms and Conditions shall be the Company’s obligation, if any, to repair, replace or refund as set out in these Terms and Conditions.
d) Without prejudice to anything herein contained in these Terms and Conditions, the Company’s maximum and cumulative total liability (including any liability for acts and omissions of its employees agents and sub-contractors) in respect of any and all claims for defective performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance under the Contract, shall not exceed the total price of the Goods or the fee for the Services, as the case may be.
e) If several events give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these Terms and Conditions.
9) Confidentiality
a) Except as provided by Clauses 9.b and 9.c, the Customer shall always during the continuance of the Contract and after its termination or fulfilment of the Contract:
i. use its best endeavours to keep all Confidential Information confidential and accordingly not to disclose any Confidential Information to any other person; and
ii. not use any Confidential Information for any purpose other than those set out in these Terms and Conditions.
b) Any Confidential Information may be disclosed by the Customer to:
i. any governmental or other authority or regulatory body; or
ii. any duly authorized employees of the Customer
to such extent only as is necessary for the purposes contemplated by these Terms and Conditions, or as is required by law and subject in each case to the Customer using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
c) Any Confidential Information may be used by the Customer for any purpose or disclosed by the Customer to any other person to the extent only that:
i. it is at the date hereof, or hereafter becomes, public knowledge through no fault of the Customer (provided that in doing so the Customer shall not disclose any Confidential Information which is not public knowledge); or
ii. it can be shown by the Customer, to the reasonable satisfaction of the Company, to have been known to it prior to its being disclosed by the Company to the Customer.
10) Termination
a) In the event that the Customer breaches any provision of these Terms and Conditions, the Company, without prejudice to any other rights or remedies that the Company may have against the Customer, will be entitled to immediately:
i. stop any Goods in transit, suspend further deliveries to the Customer, suspend performance of Services without any liability to the Customer; and/or
ii. terminate the Contract in the event the Customer remains in breach of any such provision after receiving not less than seven (7) days’ notice in Writing from the Company identifying the breach and requesting its remedy and if the Goods have been delivered or the Services have been performed but not paid for the price or the fee shall become immediately due and payable notwithstanding any previous agreement of arrangement and the Company shall be entitled to recover all loss and expense occasioned by the Customer’s breach for which the Customer shall be fully liable.
b) In any of the following events:
i. the Customer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Customer’s winding up or dissolution;
ii. the making of an administration order in relation to the Customer or the appointment of a receiver, receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person over or an encumbrancer taking possession of or selling any of the Customer’s property or assets;
iii. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
iv. the Customer ceases to be able to pay its debts as they become due;
v. the Customer ceases, or threatens to cease, to carry on business; or
vi. the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;
the Company shall, without prejudice to any other right or remedy available to the Company, be entitled to terminate the Contract immediately or suspend any further deliveries or performance under the Contract without any liability to the Customer, and if the Goods have been delivered or the Services have been performed but not paid for the price or the fee shall become immediately due and payable notwithstanding any previous agreement of arrangement to the contrary and the Company shall be entitled to recover all loss and expense occasioned by the Customer’s breach for which the Customer shall be fully liable.
11) Notices
a) All notices and other communications hereunder shall be in legible Writing and may be delivered to or sent by prepaid registered post, facsimile transmission or electronic mail to the party to whom the notice is given at the address shown herein or such other address as that party shall have previously notified to the sender or sent by electronic mail at the electronic mail address registered with the Company.
b) Every notice shall be deemed to have been received and given three (3) days after the actual date of the posting or if delivered, the date of delivery or if sent by facsimile transmission, upon proof of successful transmission or if sent by electronic mail, the sending date.
12) General
a) The Company will not be responsible for any failure to fulfil any term of this Contract it fulfilment has been delayed, hindered or prevented by any circumstances whatsoever which is not within its control including strikes, lockouts, fire, explosion, any curtailment, failure or cessation of public utilities or services or of supply of the products from any of the Company's existing suppliers of any national, local port, transportation or other authority or anybody or person purporting to be or act for such authority. The Customer after notifying the Company shall be free to purchase from other suppliers any deficiency caused by the operation of this Condition.
b) All contracts entered into by the Company shall be governed by Malaysian Law and the Customer and the Company hereby submit to the exclusive jurisdiction of the appropriate courts in Malaysia.