Last Reviewed: December, 2024
All quotations and sales of products and services (the "Products") by Festo Inc. (hereinafter referred to as "Festo") to a Customer anywhere in the world (each a "Customer", and collectively the "Customers") are subject to the following terms and conditions (the "Terms"), which form an integral part of a contract for the sale of Products by Festo. Any modification hereto must be in writing signed by Festo. These Terms are deemed an offer and a rejection of any other terms or conditions contained in any of Customer's documents (which, if construed to be an offer, is hereby rejected). This transaction with Festo is expressly made conditional on Customer's assent to the Terms set forth below, which are binding to the exclusion of any additional or different terms contained in any other document, any course of dealing or performance, and any trade custom or usage. Customer's acceptance of any Product or service will manifest Customer's assent to these Terms. Sales outside of North America may be subject to separate or supplemental terms and conditions of sale.
TERMS OF PAYMENT:
All orders will be invoiced upon shipment. Unless otherwise specified in a written order confirmation, payment shall be made to Festo within 30 days of the date of invoice. Unless otherwise agreed in writing, Festo reserves the right to submit invoices for partial shipments. Amounts remaining unpaid after thirty (30) days shall bear interest at the lower of Prime Rate plus two percent (2%) per annum, or the maximum rate allowable by law, both before and after judgment from the date such amounts become due until receipt of the outstanding payment from Customer by Festo (where "Prime Rate” means the prime commercial lending rate of interest (expressed as an annual rate) which the financial institution with whom Festo is doing business for its operating credit, establishes from time to time as its advertised reference rate of interest for granting operating credit). Customer agrees not to make any deduction or set-off from any payments without Seller’s prior written authorization.
PRICES AND QUOTATIONS:
Price quotations are firm during the thirty (30) day period subsequent to the date at which the quotation is given. Where an Order Confirmation (defined below) for such quotation is not issued during this thirty (30) day period, then subsequent to such period, prices are subject to change without notice, up until the date of such Order Confirmation.
ORDERS:
All Orders are subject to written confirmation by Festo which will fulfill each Order subject to approval of Customer’s credit as further detailed in this paragraph (the “Credit Approval Process”). If your credit is approved by Festo, your Order will be confirmed through an Order Confirmation, which will include a Delivery Date, as defined below (an “Order Confirmation”). Prices set out in an Order Confirmation are final. Invoices for Orders which have received an Order Confirmation are generated on the date that the Order is shipped. After acceptance by Festo, Customer requested order changes, including those affecting the identity, scope, and delivery of the Products, must be documented in writing and are subject to Festo's prior written approval and adjustments in price, scheduling and other affected terms and conditions. Festo reserves the right to reject any change that it deems unsafe, technically inadvisable, or inconsistent with established engineering or quality guidelines and standards, or incompatible with Festo's design or manufacturing capabilities. Festo further reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit and function.
DELIVERIES:
Delivery schedules (even if accepted or agreed to in writing by Festo) are tentative and based upon best information available at the time of quotation or acceptance of an order. All commercially reasonable steps to meet delivery schedules will be taken by Festo. Festo shall not be liable for any delays, loss, or damage in transit. Festo is not responsible for any errors, omissions or misdirected or lost orders, or orders which may be delayed. If Customer causes a delay in the delivery of Products or any part thereof, Festo, at its exclusive option, may extend delivery by a reasonable period and recoup any expenses incurred or damages suffered by Festo as a result of such Customer-caused delays. In addition, if the delay causes Festo substantial inconvenience, Festo has the right to cancel the delivery of the Products whose delivery is delayed.
Products are shipped EXW our warehouse INCOTERMS 2000, 5300 Explorer Drive, Mississauga, Ontario, Canada. Festo will, at Customer’s request, arrange for courier or other pickup at its warehouse. All costs related thereto are for Customer’s account. Each delivery date quoted in an Order Confirmation (each a “Delivery Date”) is based upon best information available at the time of quotation. Festo shall not be held liable for delays in shipping due to causes beyond our control or the control of our suppliers or subcontractors. Delivery Dates may be revised as a result of the Credit Approval Process.
RETURNED GOODS:
Returns for credit are not allowed without Festo’s prior written consent. Only unused standard Products in original packaging and suitable for resale will be considered for credit, provided that such Products are received within 90 days of the original invoice date. Special order Products (including but not limited to "made to order" and "non-stockable" items, specifically designed Products, non-standard length cylinders, special assemblies and special valve manifolds, control systems, and software) are not returnable.
Credit will be based upon prices in effect at the time of return or time of invoicing, whichever price is lower, less deduction for handling, re-inspection, and less any additional expenses incurred in restoring goods to saleable condition, as determined by Festo’s inspection. The restocking charge will be the higher of 20% of the purchase price invoiced for such Products or Festo’s documented costs and expenses in connection with restocking the returned Products. All return shipping charges must be prepaid by the Customer.
Products not accepted for credit (such as used or damaged Products, or Products with missing accessories or packaging materials) will be returned freight collect to Customer.
Notwithstanding anything to the contrary herein, Festo's Return Policy, as amended by Festo from time to time, shall apply to all returns of Products by Customer including without limitation annual stock rotations.
Products which, after delivery to the Customer, have been in contact with materials, substances or similar which may be classified as hazardous to health must be properly decontaminated by Customer before being returned. Such Products may only be returned after consultation with Festo.
ORDER CANCELLATIONS:
Cancellations of Orders which are the subject of an Order Confirmation are subject to a reasonable cancellation charge. Notwithstanding the foregoing, (a) Orders for special products which are the subject of an Order Confirmation may not be cancelled for any reason, and (b) Price Increase Cancellations will not be subject to a cancellation charge. Any cancellation of a delivered Order will be treated as a request to return the products, as described under “Returned Goods” above.
DESIGNS AND PUBLISHED DATA:
All designs and specifications in respect of the products for sale on the Festo web site are subject to change without notice. Such changes are not to be considered retroactive, and Festo assumes no responsibility for revision of models already in the field. All published data in respect of products sold by Festo, including CAD models and catalogues, is sufficiently accurate for general use, but Festo assumes no responsibility for errors or omissions in respect of same.
WARRANTY:
FESTO WARRANTS THAT ITS PRODUCTS TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF ONE YEAR FROM DATE OF SHIPMENT BY IT TO THE ORIGINAL PURCHASER. THIS WARRANTY IS IN LIEU OF, AND FESTO EXPRESSLY EXCLUDES ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES, OBLIGATIONS, LIABILITIES, REPRESENTATIONS (INNOCENT OR NEGLIGENT) OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, DURABILITY, SUITABILITY, QUALITY OR CONDITION OR ANY CONDITION OR WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR IN EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE; AND NO DEALER, AGENT OR REPRESENTATIVE OF FESTO HAS ANY AUTHORITY TO EXTEND THE SCOPE OF THIS WARRANTY OR TO MAKE ANY OTHER REPRESENTATION, PROMISE, OR GUARANTEE IN CONNECTION WITH THE MANUFACTURE, SALE OR APPLICATION OF ITS PRODUCTS EXCEPT AS MAY BE SPECIFICALLY AUTHORIZED AND AGREED TO IN WRITING BY FESTO.
Liability of Festo for default under these Terms and Conditions, or otherwise in relation to each Order, is limited to this warranty. The remedy for the breach of this warranty is limited to repair or replacement of, or at Festo’s option, credit for refund of the purchase price of any defective product, provided that notice of default is given to us in writing within 30 days of the time the Customer knew or should have known of such defect. The one-year warranty period as provided above shall in no event be extended beyond the original one year period by reason of replacement of, or credit provided for any products for any reason, by Festo. Festo will pay for all warranty-related shipping charges. All defective products not covered by warranty must be returned, shipping charges prepaid by Customer to Festo’s production plant, located at Festo’s Canadian headquarters at 5300 Explorer Drive, Mississauga, Ontario.
This warranty shall not apply to any products which have been subject to misuse, misapplication, negligence, accident, modifications or tampering nor shall it apply to Festo product components used other than in Festo products for which the same were designed.
LIMITATION OF LIABILITY:
Without limiting the limited remedy expressly set out in the warranty above , IN NO EVENT SHALL FESTO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, AND/OR PUNITIVE DAMAGES OF ANY KIND, OR DAMAGES CAUSED BY DELAY IN PERFORMANCE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE OR COST OF SUBSTITUTES, ARISING FROM OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ORDER, WHETHER ARISING OUT OF BREACH OF CONTRACT, INDEMNIFICATION, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FESTO'S MAXIMUM LIABILITY FOR ANY CLAIMS ARISING FROM OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ORDER, WHETHER IN CONTRACT, INDEMNIFICATION, OR TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID TO SELLER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM.
It is agreed and acknowledged that the provisions of these Terms allocate the risks between Festo and the Customer in a fair and equitable manner, Festo's pricing reflects this allocation of risk, and but for this allocation and limitation of liability, Festo would not have agreed to sell the Products to Customer.
In jurisdictions that limit the scope of, or preclude limitations or exclusions of, remedies or damages or of liability such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth herein are intended to apply to the maximum extent permitted by applicable law.
INDEMNIFICATION:
Customer as lndemnifier. Subject to the limitations set forth in these Terms, Customer agrees to diligently defend, hold harmless, and indemnify Festo and its directors, officers, employees, shareholders, affiliates, agents and representatives from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including, without limitation, attorney's fees and costs, expert's fees and costs, and court costs, (the "Losses") arising from any third party claim (i) due to any use of the Products of any nature, except to the extent such Losses have been incurred as a direct result of a breach of Festo's warranty, Festo's willful and knowing infringement of the intellectual property rights of any third party, or Festo's gross negligence or willful misconduct, or (ii) arising out of any breach of any of Customer's representations or covenants or other obligations contained in these Terms or any contract in which these Terms are incorporated or to which these Terms are attached or made part of, or (iii) arising out of the improper use, storage, handling, transportation, maintenance, modification or alteration of Products by or on behalf of Customer or any third party; or (iv) arising out of a design or specification which is the property of or provided by or on behalf of Customer.
Festo as lndemnifier. Subject to the limitations set forth in these Terms, Festo agrees to diligently defend, and hold harmless and indemnify, Customer and its directors, officers, employees, shareholders, affiliates, agents and representatives from and against any and all Losses to the extent directly arising out of from third party claims asserting (i) Festo's strict liability, negligence or willful misconduct with respect to any product liability claims, or (ii)that the design or construction of the Products sold or licensed hereunder by Festo infringes any patent, copyright or trademark granted or registered in the United States or the European Union. Festo's obligations under this paragraph will be fulfilled if Festo, at its option and expense: (i) procures for Customer the right to continue using such Products, (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products, (iii) modifies the Products to make them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practicable, refunds to Customer the purchase price of the affected Products in exchange for their return. Festo will have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Customer and which is incorporated into or constitutes the Products, [b] the use of the Products in a process or application specified, requested or controlled by Customer or any third parties, or [c] the use of the Products in combination with other equipment, software or materials not supplied by Festo.
Indemnification Process. Each indemnitee shall notify the indemnitor in writing within 10 days of the receipt of any notice, claim, suit or proceeding, including any incidents involving personal injury or damage to property. The indemnitee shall cooperate with the indemnitor with regard to the defense of any suit or threatened suit. In the event of a claim involving an accident or safety issue, the indemnitee shall make available all statements, reports and tests concerning the incident. The indemnitor may assume control of the defense of any such claim, proceeding or suit and shall have the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment which may be entered, except that the indemnitor shall obtain the indemnitee's prior written consent to any settlement, which consent will not be unreasonably withheld.
FORCE MAJEURE:
Festo shall not be liable for delays in performing contractual obligations due, in whole or in part, to any contingency beyond its reasonable control, including acts of God, acts or omissions of Customer, acts of civil or military authority, fires, accidents, strikes, labor disputes, supply chain disruptions, epidemics, quarantine restrictions, floods, wars, terrorism, riots, acts of terrorism, sabotage, delays in transportation, or transportation embargoes or governmental laws, ordinances, rules or regulations or any other events, occurrences or conditions beyond Festo's control.
If Customer fails to accept delivery of any Products due to reasons beyond Festo's control, Customer shall nonetheless pay the purchase price for the Products to Festo.
FOR PROTOTYPE PRODUCTION:
The customer is a pilot customer with regard to the aforementioned product(s). These products are pre-series products/prototypes which have not yet been released by Festo for series production and are intended exclusively for testing in applications/sample applications by the customer. Festo expressly draws attention to the fact that the Pre-Series Products may Schedule functional impairments or other features which will not be found in the subsequent series products. Accordingly, data and details of operating conditions, areas of application and individual features which have been communicated in relation to series products shall not be regarded as specified characteristics for the purposes of this Agreement. The Customer acknowledges that the functionality, characteristics and quality of the Pre-Series Products may deviate from the product specifications, depending on the degree of maturity of the Pre-Series Products.
Accordingly, the only characteristics which shall be considered to have been agreed shall be those which are identified by Festo as tested in the pre-series product documentation to be submitted in each case.
The Pre-Series Products are sold AS IS. FESTO MAKES NO REPRESENTATION WHATSOEVER WITH RESPECT TO ANY PRE-SERIES PRODUCTS, WHETHER EXPRESS OR IMPLIED WARRANTIES AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
No agent, distributor or employee of Festo has authority to make any warranty, representation or promise with respect to the Pre-Series Products. In no event shall Festo or any of its affiliates be liable for any damages of any kind arising out of the use, sale, lease, testing or operation of the Pre-Series Products, including without limitation damages resulting from defective software or firmware.
Customer understands and agrees that, while Festo will use reasonable efforts to rectify defects and errors [in software and firmware versions of] in the Pre-Series Products, Festo Inc. cannot guarantee that such defects or errors can be fixed in whole or in part. The use of Pre-Series Products shall be solely at the risk and the sole responsibility of the Customer.
The use of pre-series products shall be exclusively at the risk and on the responsibility of the customer. The customer shall indemnify Festo with regard to the use/testing of the pre-series products against all claims by third parties, no matter on what legal basis, insofar as the customer is responsible for these claims.
CONFIDENTIALITY:
All inventions (whether patented or not), methods, processes, know-how, layouts, models, designs, sketches, drawings, blueprints, patterns, trade secrets, copyrights, mask works, trade names, registered and unregistered trademarks and service marks, proprietary materials or other intellectual property and all improvements or modifications relating to any of the foregoing, incorporated into or in any manner associated with or attached to the Products or otherwise provided to Customer (the "Festo Intellectual Property") are and shall at all times remain the sole property of Festo or its licensors.
Customer agrees not to (a) modify, translate, decompile, reverse engineer, copy or duplicate the Festo Intellectual Property, nor to remanufacture or have remanufactured any Products which incorporate the Festo Intellectual Property, (b) to use any of Festo's trademarks, service marks or trade names in any manner without the prior written permission of Festo, or (c) to infringe, or permit a third party to infringe, any such Festo Intellectual Property or to adapt the Products in any way or to create a derivative work of any of the Festo Intellectual Property, except as may be authorized in writing by Festo. Any act or omission of Customer contrary to the provisions of this Section 12 shall be a material breach of these Terms.
In the event of a violation or threatened violation of Festo's proprietary rights, Festo shall have the right, in addition to such other remedies as may be available pursuant to law or these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Festo would suffer irreparable harm.
EXPORT CONTROL:
a. Generally. Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Festo will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Customer or any other party. Festo will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Festo's discretion.
b. "No Russia" Clause
b.1. Any deliveries of Products (hardware and/or software and/or technology and the respective documents, irrespective of the manner in which they are made available) as well as work and services including technical support of all kinds by Festo to Customer (collectively called "Festo Performance") shall be subject to the precondition that such Festo Performance is not prohibited according to national or international export control regulations, in particular embargos or other sanctions. Customer undertakes to provide all information and documentation which is required for export and shipment. Delays due to export examinations or approval procedures render deadlines and delivery dates inapplicable. If necessary approvals are not granted or if the delivery and service are not capable of being approved, the purchase order and/or contract shall be considered null and void with respect to the parts affected.
b.2. Festo shall be entitled to terminate any contract regarding Festo Performance without notice if such termination is necessary for Festo in order to comply with national or international legal provisions.
b.3. In the event of termination pursuant to section b.2, Customer is excluded from raising a claim for any damage or other rights on account of the termination.
b.4. When passing on all or any portion of the Festo Performance to third parties, whether in Germany or elsewhere, Customer must comply with the respectively applicable provisions of national and international (re-) export control law. In particular Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any of the Festo Performance that fall under the scope of the Council Regulation (EU) No 833/2014. Any violation of this section b.4 by Customer shall constitute a material breach of an essential element of a purchase order or contract and Festo shall be entitled to seek appropriate remedies. In addition, section b.2 and b.3 shall apply respectively. Customer shall immediately inform Festo about any problems in applying this section b.4 including any relevant activities by third parties that could frustrate the purpose of section b.4. Customer shall make available to Festo information concerning compliance with the obligations under section b.4 immediately upon request by Festo.
NO ASSIGNMENT:
Customer may not assign its orders or any contract in which these Terms are incorporated or to which these Terms are attached or made part of, or any right or interest herein or therein, or any other obligation arising hereunder or thereunder without the prior written consent of Festo.
APPLICABLE LAW AND JURISDICTION:
These Terms and Conditions shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to the conflicts of laws principles thereof. The application of the United Nations Convention on the International Sale of Goods is hereby excluded.
Each party hereby irrevocably submits to the exclusive jurisdiction of the provincial and federal courts for Ontario, Canada, for the adjudication of any dispute hereunder or in connection with any transaction contemplated or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
COMPLIANCE:
Customer shall comply with Festo's "Code of Conduct for Business Partners" (available at
https://www.festo.com/ca/en/e/about-festo/sustainability-and-responsibility/compliance-id_3757).
Application of government contract regulations and clauses to the Products or the agreement evidenced by these terms and conditions are subject to the separate review and consent by an authorized representative at Festo's headquarters. Products sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.
The waiver by Festo of any breach or violation of these Terms by Customer shall not be construed as a waiver of any other existing or future breach or breaches by Customer.
The parties hereto are independent contractors and nothing in these Terms will be construed as creating a joint venture, partnership, employment or agency relationship between the parties.
These Terms shall apply to all sales of Products to Customer and shall survive the termination or cancellation of any other agreements, including but not limited to development agreements, service agreements or supply agreements, between Festo and Customer.