Terms and Conditions of Sale

Festo Conditions of Sale

Download Festo Pty Ltd Terms & Conditions of Sale

 

1. DEFINITIONS

 

In these terms and conditions, unless the context otherwise requires:-

 

1.1. “Agreement” means any agreement, order, contract, or security agreement entered into for the sale and/or supply of Goods by Festo to the Customer, the terms and conditions of which shall (subject always to these Terms) be contained in:

 

a) these Terms;

 

b) any Quotation provided by Festo and accepted by the Customer;

 

c) any Order Acknowledgment provided by Festo to the Customer;

 

d) any invoice provided by Festo to the Customer;

 

e) any order by the Customer that is accepted by Festo;

 

f) any Credit Application that is accepted by Festo;

 

1.2. “Consequential Liability” means all consequential liability, including for loss of turnover, loss of profits, loss of contract, loss of goodwill, increased cost of workings, or any liability to any party.

 

1.3. "Customer" means any person, company, or business entity, to whom Festo agrees to sell or supply Goods or Services and includes the person or entity named in any relevant Credit Application that is accepted by Festo.

 

1.4. “Festo” means Festo Pty Ltd (ACN 004 674 015) (“Festo Australia”) or Festo Ltd (Company No. 512639) (“Festo New Zealand”) as the case may be.

 

1.5. "GST" means Goods and Services Tax (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) or other tax that is substituted or replaces the GST tax.

 

1.6. "Goods" means goods or products supplied or sold by Festo to the Customer and includes any packaging.

 

1.7. "PPSA" means the Personal Property Securities Act 2009 (Cth) as amended from time to time.

 

1.8. “PPSA NZ” means the Personal Property Securities Act 1999 (New Zealand) as amended from time to time.

 

1.9. “Quotation” means any quotation for the supply of Goods and/or Services by Festo to the Customer.

 

1.10. "Services" means services supplied or sold by Festo to the Customer.

 

1.11. “Terms” mean these Terms and Conditions of Trade.


2. GENERAL

 

2.1. The only contractual terms which are binding on Festo are those set out in these Terms. For the avoidance of any doubt these Terms may only be varied or supplanted (including by any terms and conditions of trade of the Customer) by written agreement.

 

2.2. These Terms shall apply in respect of each and every Agreement between Festo and the Customer.

 

2.3. These Terms include the terms of any document which forms part of the Agreement which are not inconsistent with these Terms.

 

2.4. Unless otherwise agreed by Festo in writing, to the extent of any inconsistency between these Terms and any other document which forms part of the Agreement, these Terms shall apply.

 

2.5. Festo enters into the Agreement when it confirms its acceptance of any offer by the Customer in writing (including by email).

 

2.6. The Customer does not rely on any warranty or representation by Festo unless that warranty or representation is included in these Terms or in any other document that forms part of the Agreement.

 

3. QUOTATIONS

 

3.1. Any Quotation that is provided by Festo to the Customer is:

 

a) valid for thirty (30) days or as otherwise specified;

 

b) an invitation to treat, only; and

 

c) subject to the parties entering into an Agreement.

 

4. PRICE

 

4.1. The prices charged for the Goods and Services are as set out in Festo’s invoice(s) for those Goods or Services. Festo reserves the right to vary any price quoted either orally or in writing.

 

4.2. Prices and charges quoted for the supply of Goods or Services exclude GST and any other taxes or duties imposed on or in relation to the Goods or Services. In addition to the price for the Goods or Services, the Customer must pay any GST and any other taxes, duties, or charges imposed on the Goods or Services.

 

4.3. If the Customer requests any variation to an Agreement, Festo may increase the price to account for the variation.

 

5. TERMS OF PAYMENT

 

5.1. Unless the Customer is approved for sales on credit terms by Festo, the Customer must pay Festo's invoice in full immediately upon receipt of the invoice and, in all circumstances, prior to:

 

a) Festo dispatching the relevant Goods or Services for delivery; or

 

b) collection of the Goods or Services by the Customer,

as the case may be.

 

5.2. Festo reserves the right to grant alternate payment terms to approved Customers at its sole and absolute discretion.

 

5.3. Payment is not deemed to be received by Festo until the proceeds are received by Festo in cleared funds.

 

5.4. Payment terms may be varied by Festo in its absolute discretion by written notice to the Customer at any time.

 

5.5. Festo reserves the right to request the payment of a deposit from the Customer at any time prior to:

 

a) Festo dispatching the relevant Goods or Services for delivery; or

 

b) collection of the Goods or Services by the Customer,

as the case may be.

 

5.6. For the avoidance of any doubt, where the Customer is not approved for sales on credit terms, Festo shall not (and shall not be obliged to) dispatch any Goods or Services for delivery and/or make any Goods or Services available for collection by the Customer without first receiving payment of the relevant invoice(s) in full.

 

6. RETENTION OF TITLE TO GOODS AND PPSA

 

6.1. Legal and equitable title in any and all Goods sold or supplied by Festo to the Customer will not pass from Festo to the Customer until Festo has received:

 

a) unconditional payment in full of all amounts owing for those Goods; and

 

b) unconditional payment in full of all other amounts owing or unpaid by the Customer to Festo on any account, including in respect of Goods and Services previously or subsequently supplied to the Customer.

 

6.2. Receipt by Festo of any form of payment other than cash will not be regarded as having been received by Festo unless and until payment is made in cleared funds.

 

6.3. Until such time as title to Goods passes to the Customer under clause 6.1, above:

a) the Customer will hold the Goods as a fiduciary and as bailee for Festo and will be responsible for any loss, damage or conversion of the Goods;

 

b) the Customer must store the Goods in such a manner as to show that they remain the property of Festo;

 

c) Festo may give notice to the Customer to return the Goods (or any of them) to Festo. Upon delivery of such notice, the rights of the Customer to obtain ownership or any other interest in the Goods will cease;

 

d) Festo may enter any premises owned or occupied by the Customer or its agents to inspect the Goods, or inspect the Customer’s books and records regarding the Goods at any time;

 

e) subject to clause 6.1, the Customer may only use the Goods in the ordinary course of the Customer's business, or sell the Goods in the ordinary course of the Customer's business, provided that where the Customer sells Goods, it will do so as principal and the Customer will have no power to commit Festo to any contract or otherwise or to any liability, but as between the Customer and Festo, the Customer will sell as fiduciary agent; and

 

f) The Customer must ensure that the Goods are not and will not be subject to any encumbrance or other security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without Festo's prior written consent. Without limiting Festo's rights, if the Customer becomes aware of a third party's interest in or relating to an encumbrance or other security interest, including a lien, in respect of the Goods, the Customer must notify Festo immediately in writing and provide Festo with all relevant details relating to the encumbrance or other security interest, including the third party's full name and contact details, the nature of the encumbrance or other security interest and the Goods subject to the encumbrance or other security interest.

 

6.4. Despite this clause 6, Festo is entitled to maintain an action against the Customer for (without limitation) payment of the purchase price of Goods.

 

6.5. Where Goods are sold by Festo Australia:

 

a) a word or term that is defined in the PPSA has the same meaning when used in these Terms unless the context requires otherwise;

 

b) the Customer agrees that clause 6.1, above, creates a security interest (including, where applicable, a purchase money security interest, as defined in the PPSA) in Goods (and their proceeds, as defined in section 31 of the PPSA) supplied by Festo to the Customer from time to time;

 

c) the Customer agrees to do all things necessary and execute all documents required by Festo to register each security interest in the Goods, and, further, to ensure that Festo acquires a perfected security interest in the Goods, under the PPSA;

 

d) until title to Goods passes to the Customer under clause 6.1, the Customer waives its rights under sections 95, 118, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the PPSA, to the maximum extent that is permitted by law. Festo may also contract out of any additional provision of the PPSA as determined by Festo from time to time, provided that is also permitted under the PPSA;

 

e) where Festo has rights in addition to those under Part 4 of the PPSA, those rights continue to apply;

 

f) the Customer agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Customer to Festo as is equivalent to Festo's estimation of the net realisable value of the Goods, or their cost price (whichever is the lower) as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Customer has in the Goods.

 

g) until title to Goods passes to the Customer under clause 6.1, the Customer must not give to Festo a written demand or allow any other person to give to Festo a written demand, requiring Festo to register a financing change statement under the PPSA in respect of or affecting any Goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of or covering the Goods.

 

h) the Customer will be responsible for payment of any fees (and any other costs) that Festo incurs in relation to investigating, perfecting or registering Festo's security interest in the Goods, and those fees and costs may be added as a charge on invoices issued by Festo to the Customer.

 

i) the Customer may not assign or factor the Customer's right and interest in any debt owed by a customer of the Customer to the Customer on account of the proceeds of sale of any of Festo's Goods by the Customer on credit or deferred payment terms without Festo's prior written consent.

 

j) subject to section 275(7) of the PPSA and any provision of any other agreement between Festo and the Customer permitting Festo to disclose information, Festo and the Customer agree that neither of them will disclose, or authorise the disclosure of, information of the kind described in section 275(1) of the PPSA in relation to these terms and conditions, any contract or any transaction contemplated by or effected under these terms and conditions or any contract.

 

6.6. Where Goods sold by Festo New Zealand are supplied to the Customer on credit, then:

a) a word or term that is defined in the PPSA NZ has the same meaning when used in these Terms unless the context requires otherwise;

 

b) the Customer grants to Festo a purchase money security interest in the relevant Goods in accordance with, and to the extent prescribed by, the PPSA NZ, for the purpose of securing to Festo payment of any and all money due now or in the future by the Customer to Festo under the relevant Agreement, including all applicable interest and costs;

 

c) the Customer agrees that sections 114(1)(a), 133, and 134 of the PPSA NZ shall not apply to the Agreement or the security interest under the Agreement and the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA NZ;

 

d) the Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement in respect of the security interest created by these Terms;

 

e) if:

i. a security interest (including a purchase money security interest) in Goods or any other personal property is granted under this Clause 6.6; or

 

ii. these Terms or any other document which forms part of the Agreement is or contains a security interest for the purposes of the PPSA NZ, then the Customer agrees to do everything which Festo reasonably requires to be done (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) for the purposes of:

 

iii. ensuring that the security interest is enforceable, perfected, and otherwise effective in accordance with its terms;

 

iv. enabling Festo to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required or conferred by these Terms or any Agreement; and

 

v. enabling Festo to exercise its rights lawfully in connection with the security interest.

 

f) if the Customer at any time holds any security interests for the purposes of the PPSA NZ and if failure by the Customer to perfect such security interests would, in Festo’s opinion, materially adversely affect its business, the Customer agrees to implement, maintain, and comply in all material respects with procedures for the perfection of those security interests. These procedures must include procedures designed to ensure that the Customer takes all steps under the PPSA NZ to continuously perfect any such security interest, including all steps necessary:

 

i. for the Customer to obtain the highest ranking priority possible in respect of the security interest (such as perfecting a purchase money security interest or perfecting a security interest by control); and

 

ii. to reduce as far as possible the risk of a third party acquiring an interest, free of the security interest (such as including the serial number in a financing statement for personal property that must be described by a serial number).

 

6.7. The Customer must notify Festo in writing of any change in the Customer's ownership or in the ownership of the Customer's business, or in the directors or address of the Customer. Notwithstanding any change in the Customer's ownership/trading structure or any notice by the Customer to Festo of such change, the Customer will remain personally liable for the payment for any Goods and/or Services supplied to, or ordered by, the Customer from Festo until the Customer has received written confirmation from Festo that the Customer's account has been closed and full payment has been received by Festo.

 

7. DEFAULT

 

7.1. If:

a) the Customer is in default of any obligation under these Terms or any Agreement (other than the payment of money) and that breach (if it is capable of being remedied) is not remedied within seven (7) days of Festo giving the Customer notice of that default;

 

b) any cheque tendered by the Customer or on its behalf to Festo is dishonoured for payment;

 

c) the Customer fails to comply with any lawful demand from Festo;

 

d) the Customer fails or refuses to make payment by the due date of any amount payable to Festo under these Terms or any Agreement;

 

e) in Festo’s reasonable opinion, the Customer is, or will be unable to, meet its payment obligations to Festo as they fall due;

 

f) any of the following occurs to the Customer, if it is, or to the extent it includes, a company:

i. a receiver, manager, administrator, liquidator, or controller is appointed in respect of the Customer;

 

ii. any proceedings are instituted for the Customer's winding up or dissolution; or

 

iii. the Customer enters into a deed of company arrangement or any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of creditors generally;

 

g) the Customer (if it is, or to the extent it includes, an individual):

 

i. commits an act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth);

 

ii. becomes bankrupt; or

 

iii. enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally;

 

h) a change occurs in the ownership of the Customer, or in the ownership of the Customer's business, or in its directors, then, without prejudice to Festo's other remedies under these Terms or otherwise at law:

 

i) all amounts owing to Festo by the Customer will, whether or not due for payment, become immediately payable by the Customer without the requirement of any notice to the Customer;

 

j) Festo may charge the Customer interest (calculated daily) on any sum due at the rate of fifteen percent (15%) per annum from the due date(s) for payment until the date on which payment is received in full;

 

k) Festo may, at its sole and absolute discretion, cancel or suspend its performance of any Agreement, including in respect of the further supply of Goods or Services;

l) Festo may, by notice or action, terminate any Agreement so far as it is unperformed by Festo;

 

m) Festo may, by notice or action, accept the Customer’s repudiation of these Terms and/or any Agreement;

 

n) the Customer's right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Customer under clause 6.1 will cease;

 

o) Festo will be entitled to enter any premises where the Goods in respect of which title has not passed to the Customer under clause 6.1 are kept, and remove, repossess and re-sell all or any such Goods. Festo is not liable to the Customer if it takes any such action; and

 

p) Festo may enforce the security interests granted under clause 6.5 or 6.6, above, as the case may be.

 

7.2. The Customer indemnifies (and must keep indemnified) Festo in respect of any claims or actions against, and costs, expenses, losses, damages, and any other liabilities incurred by Festo in relation to:

 

a) the removal, repossession, transportation, storage and sale of Goods pursuant to these terms and conditions, including without limitation, any claims brought by third parties; and

 

b) any of the matters set out in clauses 7.1, above; and

 

c) any action taken by Festo to enforce a right, power, discretion, and/or remedy that is available to it, whether under these Terms, any Agreement, or otherwise.

 

7.3. The Customer releases Festo from any and all liability whatsoever (including, but not limited to Consequential Liability) incurred by the Customer as a result of any action taken by Festo in accordance with this clause 7.

 

7.4. If the arrangements provided under or in connection with these Terms or any Agreement constitute a credit contract as defined in the National Credit Code, the time for payment of any overdue account is limited to a total period of not more than 62 days from the date of Festo’s invoice. Nothing in this clause 7.4 imposes an obligation on Festo to extend its payment terms to the Customer for any period at all.

 

8. QUALITY OR DESCRIPTION OF GOODS AND SERVICES

 

8.1. The Customer shall inspect the Goods or Services immediately on delivery and, within fourteen (14) days of delivery, give notice to Festo of any defect or allegation that the Goods or Services are otherwise not in accordance with the Agreement. If the Customer fails to give such notice within that time, the Goods and Services shall (to the maximum extent permitted by law) be deemed to have been received by the Customer in accordance with the Agreement and, further, the Customer shall be bound to accept and pay for the same, in accordance with the Agreement.

 

8.2. Notwithstanding that any sample of the Goods or Services has been exhibited to and inspected by the Customer, it is agreed that such sample was so exhibited and inspected solely to enable the Customer to judge the quality of the Goods or Services and not so as to constitute a sale by sample under the Agreement. The Customer shall take the Goods or Services at his own risk as to their corresponding with the sample, or as to their quality, condition or sufficiency for any purpose.

 

8.3. The Customer is responsible for providing Festo with its specific requirements in relation to Goods or Services ordered or purchased.

 

8.4. The Customer agrees and acknowledges that:

 

a) Festo relies upon the accuracy and completeness of any specific requirements and/or specifications for Goods or Services that are received from the Customer; and

 

b) to the maximum extent permitted by law, the Customer releases Festo from any and all liability, loss, damage, cost or expense that is incurred by the Customer as a direct or indirect result of providing Festo with inaccurate and/or incomplete specific requirements and/or specifications for Goods or Services.

 

9. DELIVERY & RISK

 

9.1. Goods and Services shall be delivered to the Customer's address herein, or as otherwise notified to Festo at the time of order.

 

9.2. Risk in the Goods and Services and all insurance responsibility for theft, damage, or otherwise in respect of same will pass to the Customer immediately on the Goods or Services being delivered or otherwise entering into the possession or control of the Customer. For the avoidance of doubt, where any Goods are collected from Festo by or on behalf of the Customer, risk and insurance responsibility for the Goods shall pass to the Customer immediately upon collection.

 

9.3. Any delivery date given or advised by Festo to the Customer is an estimate only.

 

9.4. To the maximum extent permitted by law, the Customer releases Festo from any and all liability (including any Consequential Liability) which the Customer may sustain or incur where Festo fails or is unable to supply or deliver Goods or Services in accordance with any estimated delivery date.

 

9.5. The Customer warrants and represents that it holds all necessary licences or permits under all relevant laws and regulations in relation to the Goods and Services that are the subject of any Agreement. The Customer further acknowledges that Festo relies upon the said warranty and representation when entering into any Agreement.

 

10. LIABILITY OF SUPPLIER

 

10.1. To the maximum extent permitted by law, no warranty, condition, description or representation on the part of Festo is given or implied or has been given or is to be implied from anything said or written in the negotiations between the parties or their representatives, and any statutory or other warranty, condition, description or representation, express or implied as to the state, quality or fitness of the Goods is hereby expressly excluded. Nothing herein shall derogate from or exclude any warranties or conditions necessarily implied by any statute or other applicable law.

 

10.2. Where Festo’s performance of these Terms or any Agreement constitute a supply of goods or services to a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law), as amended, or any relevant similar State or Territory legislation ("the Acts"), then:

 

a) nothing contained in these Terms shall exclude, restrict, or modify any condition, warranty or other obligation in relation to any Agreement and/or the Goods and Services which, pursuant to the Acts, or any of them, is applicable or is conferred on the Customer where to do so is unlawful; and

 

b) to the maximum extent permitted by law, Festo’s sole liability for breach of any such condition, warranty or other obligation (including any Consequential Loss which the customer may sustain or incur) shall be limited (except to the extent specifically set forth herein) to:-

 

i) the replacement of the Goods or Services; or

 

ii) the supply of equivalent goods or services; or

 

iii) payment of the cost of replacing the Goods or Services or acquiring equivalent goods; or

 

iv) the repair of the Goods or payment of the cost of having the Goods repaired,

 

as Festo may select in its sole and absolute discretion.

 

10.3. To the maximum extent permitted by law, the Customer releases Festo from any and all liability (including any Consequential Liability) which the Customer may sustain or incur where Festo fails or is unable to supply or deliver Goods or Services in accordance with any Agreement as a result of any matter that is beyond the control of Festo (including, but not limited to as a consequence of fire, embargo, strike, inability to secure materials or labour, flood, act of government, riot, epidemic, or pandemic).

 

10.4. To the maximum extent permitted by law, the Customer releases Festo from liability for any and all loss, damage, injury, cost, expense, or liability suffered by the Customer or any third party of any kind whatsoever, and whether actual or contingent, present or future, fixed or unascertained, and whether based in contract, tort, or otherwise arising at law, and howsoever arising out of or in connection with any Agreement, these Terms or the sale or supply of Goods or Services to the Customer, including but not limited to indirect loss or Consequential Loss, except to the extent that any such liability is due to the negligence of Festo or any of its employees or agents.

 

11. WARRANTY

 

11.1. Notwithstanding anything herein, Festo agrees to provide the following Warranties to the Customer:- TWELVE (12) MONTH WARRANTY to repair or replace the Goods or Services for faulty workmanship, design, or materials.

 

11.2. Warranties given exclude claims for damage resulting from inclement weather, fire, explosion, act of God or other like cause, unauthorised alterations, additions or tampering, loose plugs or leads not hardwired, other events beyond control of Festo and use beyond specification or design.

 

11.3. Any warranty claim by the Customer is (to the maximum extent permitted by law) subject to:

 

a) the Customer’s compliance with these Terms;

 

b) correct storage and maintenance of the Goods in accordance with any instructions; and

 

c) the Customer using the Goods solely for their intended purpose.

 

11.4. The Customer warrants to use the Goods in accordance with:

 

a) any instructions or directions provided by Festo from time to time;

 

b) all government and local laws and regulations, including, but not limited to, such laws and regulations governing the storage, use, handling, and maintenance of the Goods.

 

12. RETURNS

 

12.1. To the maximum extent permitted by law:

 

a) returns for credit will only be accepted within 7 days from date of invoice. Credit for Goods returned after this period is at Festo's discretion and, if accepted, may incur a restocking fee; and

 

b) returned Goods will only be accepted for credit if the goods are in a resalable condition as well as in original packing and with all product documentation included. Goods must be returned at the Customers expense and prior to return a "Return Authorisation" number must be obtained from Customer Service and this number should be clearly marked on the package.

 

c) unless otherwise agreed to in writing, all Goods specifically manufactured or ordered for the Customer will not be returnable except due to defect

 

13. PRIVACY

 

By entering into any Agreement with Festo, the Customer accepts and agrees to be bound by Festo’s Privacy Policy, a copy of which can be found at https://www.festo.com/cms/en-au_au/9468_19717.htm#id_27805.

 

14. CODE OF CONDUCT FOR BUSINESS PARTNERS

 

14.1. By entering into any Agreement with Festo, the Customer accepts and agrees to be bound by Festo’s Code of Conduct for Business Partners, a copy of which can be downloaded from https://www.festo.com/rep/en-au_au/assets/pdf/Festo-Code-of-Conduct-Business-Partners_EN.pdf

 

14.2. The Customer warrants that it has:

 

a) reviewed Festo’s Code of Conduct for Business Partners; and

 

b) instructed its managers and employees to comply with Festo’s Code of Conduct for Business Partners.

 

14.3. To ensure compliance with Festo’s Code of Conduct for Business Partners, the Customer agrees that it shall do all things necessary to avoid any illegal actions (in particular illegal actions which would adversely affect Festo), including such actions as are necessary to monitor compliance with Festo’s Code of Conduct for Business Partners by its employees and agents, especially such actions which are essential to avoid corruption or any other criminal acts.

 

15. TRUSTS

 

15.1. This Clause 15 applies if the Customer is the trustee of a trust, whether or not Festo has notice of the trust.

 

15.2. Where the Customer comprises 2 or more persons and any of those persons is a trustee, this Clause 15 applies to such trustee.

 

15.3. The Customer agrees that even though it enters into these Terms and/or any Agreement as trustee of a trust, the Customer will also be liable personally for the performance and observance of every obligation to be observed and performed by the Customer, whether express or implied, in these Terms or under any Agreement.

 

15.4. The Customer warrants that it has a right of indemnity against the property of the trust and that right has not been, and in the future will not be, excluded, modified, released, lost, or diminished (whether by agreement, breach of trust, or otherwise).

 

15.5. The Customer must not, without Festo’s prior written consent:

a) resign or be removed as trustee of the trust;

 

b) appoint or allow the appointment of a new or additional trustee of the trust;

 

c) amend or revoke ay of the terms of the trust;

 

d) permit a beneficiary to have the use, occupation, employment or possession of the property of the trust;

 

e) do or permit or omit to do an act or thing in breach of the terms of the trust, or which would permit the trustee to be removed as trustee of the trust;

 

f) exercise or permit or allow to be exercised a power to change the vesting date of the trust or provide for an early determination of the trust.

 

g) Lend any money, give any guarantee, or incur any debt other than in the ordinary course of business of the trust; or

 

h) Pay any of the income of the trust to any beneficiary of the trust if such payment will prejudice or affect the Customer’s ability to pay all amounts due to Festo.

 

16. MISCELLANEOUS

 

16.1. For all matters concerning Festo Australia, the laws of Victoria, Australia (such as they are from time to time) govern the Terms and any Agreement and the parties submit to the non-exclusive jurisdiction of the courts and tribunals of that State, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.

 

16.2. For all matters concerning Festo New Zealand only, the laws of New Zealand (such as they are from time to time) govern the Terms and any Agreement and the parties submit to the non-exclusive jurisdiction of the courts and tribunals of that jurisdiction, and of courts entitled to hear appeals from those courts.

 

16.3. Failure or delay by Festo to enforce any right, power, discretion, and/or remedy (whether pursuant to these Terms or otherwise) shall not amount to (nor be construed as) a waiver of such right, power, discretion, or remedy.

 

16.4. If any of the Terms are unenforceable, that provision(s) shall be read down so as to be enforceable, or, if it cannot be so read down, that provision(s) shall be severed from these Terms without affecting the enforceability of the remainder of the Terms.

 

16.5. A notice must be in writing and handed personally or sent by email or prepaid post to the nominated or last known address of the addressee. Further:

 

a) notices sent by pre-paid post are deemed to be received the next day after posting (other than a Saturday, Sunday, or a public holiday in the relevant jurisdiction);

 

b) production by a party of a copy of an email message bearing the time and date of sending shall be conclusive evidence that the transmission or message was sent on that date and at the time shown.

 

16.6. The Customer may not assign, sub-contract, or licence any rights, benefits, or obligations under these Terms or any Agreement without the prior consent of Festo, which consent may be withheld at Festo’s sole and absolute discretion.

 

16.7. Where the Customer is made up of more than one person, company, or other entity, these Terms and any Agreement bind them jointly and each of them severally.

 

16.8. These Terms are binding upon the parties and their heirs, successors, legal and personal representatives, and permitted assigns.

 

17. COMMENCEMENT

 

These Terms are effective from 7 March 2022.