Terms of delivery, payment and software useFESTO Gesellschaft m.b.H. (FN 38435 y), Linzer Straße 227, 1140 Vienna, Austria
All deliveries and services provided by Festo - including the provision of software - are subject exclusively to the following terms and conditions of delivery and payment. Any deviating terms and conditions of the customer are hereby expressly rejected. Festo shall only be bound by such conditions if Festo has accepted them in writing.
2. Offer and delivery
Our written order confirmations form the basis of the contract and determine the scope of delivery. Orders placed by the customer are binding for the customer and are deemed to have been accepted when Festo submits the order confirmation. In the case of catalogue components, this shall be deemed to have been issued in good time if it is issued at the same time as invoicing and delivery. In the case of quotations with a time limit and a specific acceptance period, the quotation shall be authoritative if no timely order confirmation is received. Subsidiary agreements and amendments shall only lead to a change in the contract if they are confirmed by us in writing. We reserve the right to make design changes as well as other changes to technical data and performance characteristics, insofar as they serve technical progress and lead to at least an equivalent result. The documents enclosed with the request for quotation or the order, such as drawings, specifications, materials, samples, tools, models and the like, are the binding basis for the preparation and elaboration of the Festo quotation. The customer must notify Festo in writing of any subsequent changes. Insofar as Festo encloses similar documents of the type and nature mentioned above with its offers, these are and remain the property of Festo.
2a. Conclusion of contract in the Festo online shops
The goods and services offered in our online shops do not constitute an offer to conclude a contract, but merely an invitation to place an order. By placing an order, the customer makes us an offer to conclude a purchase contract. We only accept orders for deliveries to Germany via our online shops. Orders to be delivered to another country must be addressed to the respective national sales company. The contract language is German. The customer can view the content of his order at any time via the order history in his customer account of the Festo online shop. The complete text of the contract is stored by Festo but is not accessible to the customer. The customer receives an order confirmation after receipt of his order. This does not constitute acceptance of the order, but is merely for information purposes. The order only becomes binding when a written or electronic order confirmation is issued or when the goods are dispatched. In the case of the purchase of software via App World, a contract is concluded by making the app available for use by the customer. Insofar as an order confirmation is issued and this contains obvious errors, spelling mistakes or miscalculations, it is not binding for Festo.
3. Prices and payment
The prices apply ex Festo delivery works or the Festo works warehouse. The prices do not include the respective legally valid value added tax. Orders with a value of less than € 25 will be charged at the minimum order value of € 25 plus VAT. This does not apply to orders placed via the Festo online shops. The customer shall bear the costs of shipping and packaging. Insofar as we are obliged under the packaging regulations to take back packaging used for transport and/or sale, the customer shall bear the costs for the return transport of the packaging used and the reasonable costs of its recycling or - insofar as this is possible and deemed expedient by us - the reasonable costs additionally incurred for reusing the packaging. By placing his order, the customer undertakes and confirms vis-à-vis us to recycle packaging of the aforementioned type which has not been returned in accordance with the packaging regulations, to provide us at any time with information on the type and quantity of packaging thus recycled and to confirm compliance with this obligation in writing at any time upon request. We shall be entitled at any time - after prior notification - to satisfy ourselves of compliance with this obligation on the Purchaser's premises. We reserve the right to adjust prices if the basis of the calculation changes. The customer then has the option to withdraw from the contract within a ten-day period or to conclude the contract at the changed conditions. The invoice amount is due within 30 days of the invoice date without further deductions. Assembly costs, repair costs and costs for product information are payable immediately. Withholding of payments or offsetting due to any counterclaims is only permitted with counterclaims of the customer that have been acknowledged in writing or have been legally established.
4. delivery period
The delivery period begins on the date of the order confirmation and after clarification of all technical and commercial details. The customer is obliged to arrange for all provisions required for the timely execution of the order. The delivery date is deemed to have been met if the delivery item has left the Festo factory by that time or the customer has been notified that it is ready for dispatch. Festo is also entitled to deliver earlier if due notice is given. The delivery period shall be extended appropriately in the event of obstacles due to force majeure such as measures within the scope of industrial disputes, in particular strikes and lockouts. This also applies if unforeseen obstacles and circumstances have occurred at sub-suppliers. Compliance with the delivery period shall be subject to the customer's fulfilment of its contractual obligations. If dispatch is delayed at the customer's request, we are entitled to dispose of the delivery item otherwise after a reasonable period of time or to supply the customer with a correspondingly extended period of time and to charge any storage costs incurred.
5. Transfer of risk
Delivery shall be made at the customer's risk. This also applies if Festo has undertaken the delivery, even if it uses its own vehicles, and the installation. If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day the goods are ready for shipment. At the customer's request, Festo will take out insurance for the shipment against theft, breakage, transport, fire and water damage as well as against other insurable risks at the customer's expense.
6. Retention of title
The delivered goods remain our property until full payment of our claims arising from the business relationship with the customer. The assertion of our rights of retention of title is not to be regarded as a withdrawal from the contract. Rather, in addition to the claim to surrender of our property, we retain our rights under the purchase contract, in particular to compensation for damage and lost profit. The customer is revocably entitled to resell the delivered goods in the ordinary course of business. The customer hereby assigns to us all claims to which he is entitled from the resale, including ancillary rights, in the amount of the value of the goods subject to retention of title. The assigned claims serve as security for all claims according to paragraph 1. At our request, the customer is obliged to disclose the assignment to third parties for the purpose of payment to us and to provide us with the information and hand over the documents necessary to assert our rights. The share of the claim assigned to us has priority over the other claims. If our goods subject to retention of title are combined by the customer with real estate or movable property, the customer shall also assign to us by way of security its claim to which it is entitled as remuneration for the combination, together with all ancillary rights, without any further special declarations being required. The preceding paragraph shall apply accordingly to the amount of the assigned claim. We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%. The customer is not authorised to dispose of the goods subject to retention of title other than the aforementioned, in particular to pledge or assign them as security. In the event of seizure, confiscation or other dispositions by third parties, the customer is obliged to point out Festo's ownership and to inform Festo immediately. If the customer acts in breach of contract, in particular in the event of default of payment, the entire remaining debt shall become due immediately. In these cases, we are entitled at any time to demand the return of the goods and to collect them from the customer. The customer shall then have no right of possession and may only demand the return of the goods upon full payment.
7. Software use
Unless otherwise agreed for a specific product, the customer receives a non-exclusive, non-transferable right of use for Festo software of any type and the associated documentation on a specific hardware product or on a hardware product to be defined in the individual case, in return for payment. Festo remains the owner of the copyright and all other industrial property rights. The right to make copies is only given for the purpose of data backup. Copyright notices may not be removed. The transfer to third parties requires our written consent. If software is transferred for the purpose of resale, the acceptance of these conditions by the third party must be ensured. Modifications are not permitted. In the event of a breach of these conditions, the customer shall pay a contractual penalty amounting to 10 times the order value. The customer hereby waives his right to make use of the judicial right of moderation. This contractual penalty shall not be offset against any claim for damages. The software and the associated documentation shall be surrendered immediately upon request. The above provisions shall not apply to software developed exclusively on a customer-specific basis on the basis of specifications provided by the customer. This software, developed within the framework of the complete control system created in accordance with the contract, has been assembled by Festo on a customer-specific basis using modular software modules created by Festo for a large number of applications (standard software modules) and adapted to the contractual performance requirements (customer-specific application program). Upon full payment of the purchase price for the customer-specific application program, Festo transfers to the customer the exclusive right of use, unlimited in terms of time and space, without the customer being entitled to any rights whatsoever to the individual standard software modules on which the customer-specific adaptation is based. Notwithstanding these provisions, Festo remains entitled to create and offer similar customer-specific software solutions resulting from other customer tasks. In any case, Festo retains a simple right of use to the customer-specific solution for internal purposes.
Festo is liable for defects in our deliveries and services, including the absence of warranted characteristics, as follows: All parts or services shall be repaired or provided again if they become unusable or their usability is significantly restricted within 18 months of the transfer of risk as a result of a circumstance occurring before the transfer of risk, in particular due to faulty design, poor materials or defective workmanship. Wear parts are excluded from this. For Festo software, we assume the warranty for proper duplication. Festo software can only run on hardware products specified by Festo and may not be used for any other purpose. In cases of defective software, Festo shall only be liable for defects that demonstrably impair the use of the software. In the case of customer-specific software, Festo warrants compliance with the functional and performance features stipulated in the functional specification, the order confirmation, the documentation or the jointly agreed work/process descriptions. Festo does not guarantee that the programs will be free of errors when used in all applications intended by the customer, in particular those that were not known to Festo or tested at the time of creation/acceptance. The warranty period for customer-specific software is 6 months and begins with acceptance, but no later than the completion of the test phase. The warranty includes fault diagnosis as well as fault and malfunction rectification, if necessary on site. The warranty period for the repaired item or the replacement item or the newly provided service is 3 months. However, it shall run at least until the expiry of the original warranty period. The period of liability for the delivery item shall be extended by the duration of the interruption of operations caused by the rectification work.The discovery of defects must be reported to us in writing without delay, but no later than 8 days after receipt of the goods. If the complaint is justified, we shall bear of the direct costs - insofar as the complaint proves to be justified - the costs of the replacement part, the dispatch and the reasonable costs of dismantling and installation, at most to the extent that these arise or would have arisen at the place of the customer's residential or commercial headquarters in the Republic of Austria, but again at most up to the value of the part complained about. Otherwise, the customer shall bear the costs. The customer must give us the time and opportunity necessary for the rectification or replacement delivery. Only in urgent cases of danger to operational safety and the prevention of major damage does the customer have the right, with Festo's prior consent, to rectify the defect himself or have it rectified by a third party and to demand reimbursement of the necessary costs from us. This also applies in the event that we are in default with the rectification of the defect. Further claims of the customer, in particular a claim for compensation for damage that has not occurred to the delivery item itself, are excluded, unless personal injury is involved. This exclusion of liability does not apply in the case of intent and gross negligence, as well as in cases in which the Product Liability Act provides for mandatory liability. For third-party products, our warranty is limited to the assignment of the corresponding claims to which we are entitled against the supplier of the third-party product, as long as and insofar as warranty claims against our supplier still exist. We do not assume any warranty for damage caused by the following reasons: unsuitable and improper use or storage, faulty assembly by the customer or third parties, unauthorised repair attempts and modifications, natural wear and tear, faulty or negligent handling, chemical influences, electrical influences, etc., over which we have no control, as well as in the case of improper use and non-observance of our operating instructions and catalogue sheets, in particular with regard to the operating conditions of our cylinders (oiling instructions). In addition, the warranty is invalidated if the customer or a third party has made changes to the control/software without the prior written consent of Festo and without other authorisation (delay on the part of Festo in rectifying the fault), even if the fault occurs in a part that has not been changed. Our information on the delivery item and the intended use, e.g. on weight, hardness, service values, temperatures, etc., are merely descriptions or parameters and do not constitute guaranteed properties. They are non-binding guide values and are only deemed to be warranted insofar as they correspond to our samples tested by the customer for the specific purpose and approved for this purpose. Insignificant deviations do not justify any warranty rights. The above limitations of liability shall apply mutatis mutandis to advice or suggestions as well as any claims of the customer arising from the breach of ancillary contractual obligations. The legal presumption of defectiveness is expressly excluded.
9. Liability, impossibility
Claims for damages against us are excluded unless we have acted intentionally or with simple gross negligence or in the case of personal injury. Insofar as we are liable on the merits, the claim for damages shall in any case be limited to the amount of the order value. In any case, compensation for indirect and consequential damages, including loss of profit, is excluded. For third-party products, our liability is limited to the assignment of the claims to which we are entitled against the supplier of the third-party product, insofar as no further-reaching liability arises under the Product Liability Act from the point of view of manufacturer's liability. In the case of designs or manufacture according to mandatory specifications of the customer, the customer shall indemnify us against any claims of third parties arising from patent rights or the like. In the event of unforeseen events within the meaning of clause 4, insofar as they change the economic significance or the content of the performance or have an effect on our operations and in the event that it subsequently becomes apparent that performance is impossible, the contract shall be adjusted accordingly. Insofar as this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part.
All claims of the customer - for whatever legal reason - shall become statute-barred 12 months after delivery or acceptance, in the case of damage that has not occurred to the subject matter of the contract, from the time of the damaging act and the knowledge or grossly negligent lack of knowledge of the customer. Mandatory statutory limitation periods and damages due to intentional or grossly negligent causation are excluded from this.
The customer is obliged to treat all information, know-how and other business secrets in connection with the execution of the respective order as strictly confidential and not to copy, pass on to third parties or otherwise make accessible any information, documents, documentation, drawings, sketches or other records without Festo's express written consent. Festo shall also treat the customer's documents confidentially. These confidentiality obligations shall remain in force even after termination of the contract.
12. Place of jurisdiction
The Commercial Court of Vienna shall have jurisdiction for all disputes arising from the contractual relationship, unless the customer is a consumer. However, we shall also be entitled to bring an action at the customer's/buyer's principal place of business.
13. Applicable law
The contractual relationship between us and the Customer/Orderer shall be governed by the law of the Republic of Austria to the exclusion of all bilateral and/or multilateral agreements concerning the purchase of movable goods, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
The customer warrants that it has taken note of the content of Festo's Code of Conduct and has instructed its managers and employees to comply with it. In order to ensure this good conduct, the customer undertakes to take all necessary measures to avoid illegal actions, in particular to the detriment of Festo. In doing so, the customer shall take those organisational precautions in its company to be able to monitor compliance with value-oriented codes of conduct by its employees, in particular those necessary to avoid corruption and other criminal acts.