1. scope of application
These are the General Terms and Conditions (GTC) of Festo AG(CHE-105.786.934), Gass 10, 5242 Lupfig, (Festo).
These GTC apply to all products and (services) provided by Festo, and all contracts concluded by Festo with customers are governed exclusively by these GTC, which take precedence over customers' terms and conditions. Festo is only bound by deviating general terms and conditions if Festo has expressly agreed to these general terms and conditions in writing. This consent must be obtained by the customer from Festo for each individual case.
These GTC are deemed to have been accepted by the customer and are binding at the latest on receipt of the products or (services).
Festo is entitled to amend, adapt or supplement these GTC at any time; the current GTC as published on Festo's website or otherwise made available shall apply.
2.a Conclusion of contract
Unless expressly stated otherwise, offers made by Festo, whether solicited or unsolicited, are subject to confirmation (Art. 7(1) CO).
A contract is only concluded with the written order confirmation by Festo, with regard to the products and / or (services) specified in the order confirmation and at the conditions specified therein. If the order confirmation and these GTC contradict each other, the provisions of the order confirmation shall take precedence.
Amendments and ancillary agreements must in any case be made in writing. Means of electronic communication shall only be deemed to be in writing if so agreed by the parties.
2.b Conclusion of contract in the Festo online shop
The goods and services offered in our online shop 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 within Switzerland 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. If an order confirmation is issued and it contains obvious errors, spelling mistakes or miscalculations, it is not binding on Festo. 3.
3. brochures and technical documents
Brochures and catalogues are not binding unless otherwise agreed in writing. Similarly, information in technical documents is only binding insofar as it is expressly guaranteed.
Each party reserves all rights to plans and technical documents which it has handed over or otherwise made accessible to the other party. The receiving party acknowledges these rights and shall not make the plans and technical documents available to third parties, in whole or in part, or use them for purposes other than those for which they were handed over to it without the prior written consent of the other party.
4. Prices and terms of payment
All prices are net, excluding VAT and other charges, ex works, excluding packaging, postage, customs duties and other charges, insurance, assembly and the like, and excluding any deductions (any deductions shall be reimbursed by the customer). Offsetting against claims of the customer is excluded.Costs for packaging, transport, insurance as well as assembly and the like shall be borne by the customer or shall be invoiced additionally to the customer. The conditions and cost items specified in the invoice in this respect shall apply. The invoice shall be sent to the customer together with the delivery of the products or the completion of the service provision.
The payment period for customers with their registered office and delivery address in Switzerland is 30 (thirty) calendar days net from the invoice date. In the event of late payment, Festo is entitled to the rights set out in section 8 paragraph 3 (retention of deliveries etc.); in addition, Festo is entitled to charge interest on arrears at the rate of six percent (6%) p.a. on the outstanding invoice amount.
For orders with a net goods value of less than CHF 50, we charge a minimum quantity surcharge up to this net goods value. This does not apply to orders placed via the Festo online shop.
5. Place of performance
The place of performance for all services provided by Festo and the customer is Festo's registered office. 6.
6. benefit and risk
The benefit and risk of the products shall pass to the customer upon handover ex works to the carrier. If handover to the carrier is delayed for reasons for which the customer is responsible, the benefit and risk shall pass to the customer at the moment Festo has notified the customer that the products are ready for delivery.
The customer is responsible for insuring the products for transport and for the costs of any downstream assembly and commissioning.
7. Software use
Unless otherwise agreed for a specific product, the customer is granted 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 determined in individual cases. Festo remains the owner of the copyright and all other industrial property rights. The right to make copies is only granted for the purpose of data backup. Copy-right notices may not be removed.Festo supplies installation and commissioning instructions with corresponding safety instructions for its software in printed form. All other documentation is only supplied in the form of software data with online help. The corresponding online documentation is also sent with the subsequent delivery of new software releases. In any case, the transfer to third parties requires the consent of Festo.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 of 10 times the order value for each breach. This contractual penalty shall be offset against any claim for damages. The software and the associated documentation shall be returned without delay.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 (standard software modules) created by Festo for a variety of applications and adapted to the contractual performance requirements (customer-specific application program). The above conditions also do not apply to customised learning software. 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 space and time, 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 customer-specific software solutions based on this development that result from other tasks of other customers. In any case, Festo retains a simple right of use to the customer-specific solution for internal purposes.
8. (Part) Delivery
Delivery shall be made in the form agreed with the customer.
Festo is entitled to make partial deliveries.
Default in payment from previous deliveries as well as changes in the customer's circumstances that jeopardise payment for the products or (services) entitle Festo to withhold deliveries or demand advance payment or to withdraw from the contract; Festo reserves the right to claim damages.
9. Delivery time and delay
All legal relationships with customers are subject to Festo's correct, complete and timely delivery to itself and to unforeseen events such as force majeure, transport delays, operational disruptions, etc.; this also applies to the supply of raw materials and auxiliary materials required for the manufacture of the products or the provision of the (service). If Festo is in default with a delivery obligation and Festo is at fault for the delay, the customer is entitled, after the fruitless expiry of a reasonable grace period of at least four (4) weeks, to demand reimbursement of his damages caused by the delay in the amount of no more than five percent (5%) of the price of the products or (service) performance with whose delivery Festo is in default, provided that he is able to prove damages incurred as a result. The customer may only withdraw from the contract in the event of serious defects which mean that the products and services cannot be used or can only be used to a significantly reduced extent in accordance with their purpose. Any further claims (of whatever kind) of the customer, namely consequential damages, are excluded.
If delivery periods are agreed, the period begins, unless otherwise agreed, with the transmission of the order confirmation or the signing of the contract by Festo. The delivery period shall be extended, in addition to the aforementioned reasons, if
- Festo does not receive the specifications for performance in good time or they are subsequently changed by the customer,
- the customer or a third party is in arrears with the work to be carried out by them or is in default with the fulfilment of their contractual obligations,
- as well as in all other cases for which Festo is not responsible.
In these cases, too, any legal consequences shall only come into effect after the customer has sent a written reminder.
10. Retention of title
The products remain the property of Festo until the purchase price has been paid in full and all related claims of Festo have been settled. Festo is entitled and authorised by the customer to have the retention of title entered in the relevant registers at the customer's expense. The customer must take the measures necessary to protect Festo's property at his own expense
Warranted characteristics are only those characteristics which are expressly mentioned and warranted in the corresponding product specification or service description. No warranty is given for other or additional properties.
The warranty period is twelve (12) months from handover of the product to the carrier or provision of the (service).
The customer must inspect the delivered products or the provided (service) immediately and notify any defects in writing without delay. Products and(services) shall be deemed to have been approved if the customer does not give notice of any defects within eight (8) days of delivery or performance.
Festo shall, at its own discretion, provide a warranty for defects duly notified in good time either by reducing the agreed price or, as the case may be, by supplying faultless replacement products or rectifying the defect. Other remedies are excluded. Festo only provides a warranty for the replacement products or rectification to the same extent as for the original products or (services). For replaced or repaired products or rectified (services), the warranty period shall start anew and last for six (6) months from the date of replacement/repair/rectification, but not longer than 18 (eighteen) months from the date of handover of the product to the carrier or provision of the (service).
If the defect or the lack of a warranted characteristic is due to the delivery or service of a sub-supplier, Festo's liability is limited to the assignment of the claims to which Festo is entitled against the sub-supplier(s).
Any warranty shall lapse in cases in which the customer makes changes or repairs to the products or does not use them in accordance with their intended purpose (operating instructions) or maintains them inadequately. Likewise, any warranty shall lapse if the customer, in the event that a defect has occurred, does not immediately take all appropriate measures to minimise the damage and inform Festo of the defect and give Festo the opportunity to rectify the defect.
If products or (service) performances are created or provided according to the customer's specifications, Festo only guarantees the careful implementation of the customer's specifications; Festo has no further obligations.
Any liability on the part of Festo for products and (services) beyond the scope of section 11 is hereby excluded to the extent permitted by law.
Likewise, any liability for consequential damage (due to defects), loss of profit, other indirect damage and the like is excluded.
If Festo also undertakes assembly or supervision of assembly, the General Terms and Conditions of Assembly of the Swiss Association of Machinery Manufacturers (VSM) apply.
The customer warrants that they have been informed of the contents of Festo's value management (available under the following link), and have instructed their managers and employees, as well as any subcontractors, to comply with it.
15. Applicable law
These General Terms and Conditions as well as all order confirmations and contracts of Festo shall be governed by Swiss law, to the exclusion of the provisions of international private law as well as international sales law in accordance with the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.
16. Place of juris
The ordinary courts of the Canton of Aargau, place of jurisdiction Aarau, shall have exclusive jurisdiction over all disputes arising from these GTC, the order confirmations and contracts