Festo AG & Co. KG terms and conditions of sale and software use
1. General information
All Festo goods and services – including the right to use software – are supplied subject to the terms of delivery and payment specified below. Customer terms and conditions that differ from the terms and conditions specified here shall not be recognised. Such terms and conditions shall only be bound to by Festo provided Festo has acknowledged them in writing.
In placing the order and accepting the goods delivered by us, the customer shall be deemed to have accepted our terms and conditions.
2. Offers and delivery
Offers made by us are without obligation, unless valid for a specified time. Order confirmation in writing from us shall form the basis of the contract and define the scope of delivery. The same shall apply where the customer has requested a specific quote. Orders placed by the customer shall be binding for the customer and shall be deemed to have been accepted on presentation of an order confirmation by Festo. In the case of catalogue components, order confirmation shall be considered to be in good time if presented simultaneously with the invoice and delivery. For offers that are valid for a specified time and with a specified time limit for acceptance, the offer shall still be valid should order confirmation not be presented in good time. Additional agreements and changes must be confirmed by us in writing.
Right of design changes as well as changes to technical specifications and features due to technical advancements are reserved. Festo shall provide advance notice of any changes of this type or product cancellations in the Pneumatics Catalogue on the Festo homepage (www.festo.com).
Items such as drawings, specifications, materials, samples, tools, models, etc. that are given to Festo with the request for quotation shall remain the property of the customer. This information shall form the legally binding basis for the creation and calculation of the Festo offer. Any subsequent change to the initial request for quotation and the Festo offer must be indicated in writing by the customer when placing orders.
Where Festo includes items similar to those referred to above in our offers, these are and shall remain the property of Festo. The customer may not use, reproduce or otherwise make these items available to third parties for purposes other than those relating to the performance of the contract.
Obvious mistakes, printing, calculation, typing and pricing errors shall not be binding for Festo and shall not constitute entitlement on the part of the customer to claim for damages.
Any documentation required for specific products (e.g. handbooks) shall be provided on our homepage (www.festo.com) for download free of charge. The customer may also order hard copies of the documentation. This service is subject to a charge.
3. Prices and payment
Prices quoted are valid ex Festo delivery plant or ex Festo factory store. Prices are exclusive of VAT at the applicable rate.
Shipping and packaging costs shall be paid by the customer. The packaging used by Festo meets the environmental requirements for proper and non-hazardous disposal or recycling. Insofar as packaging from Festo is accumulated at the premises of the ordering customer, the customer shall confirm upon receipt of the goods that the customer is able to dispose of or recycle it in accordance with packaging regulations and undertakes to dispose of the packaging in compliance with the packaging regulations. In such cases, the ordering customer shall be obliged to dispose of or recycle in accordance with the packaging regulations any packaging of the aforementioned type which is not returned to us, and shall, on request at any time, provide us with information relating to the type and quantity of packaging thus disposed of or recycled and shall also, on request at any time and in writing, confirm compliance with this obligation. Festo may at any time, with prior notice, visit the ordering party's premises to see that this obligation is being complied with.
If the ordering customer does not want to undertake disposal in accordance with the above regulation, the customer must notify Festo of this without delay following receipt of the goods. In such cases, Festo shall provide the ordering customer with the option of returning the packaging to Festo as consistent with the obligations imposed by the packaging regulations. The ordering customer shall however bear the costs of this return transport.
We reserve the right to adjust prices in the event of changes in the cost factors on which the pricing calculations are based.
The invoiced amount shall become due within 10 days of the invoice date with a 2% discount or within 30 days net. The 2% discount shall not be guaranteed where there are overdue accounts.
Should the credit period be exceeded, we shall reserve the right to claim for damages caused by default, to the value of the bank credit taken by us.
Net assembly costs, repair costs and costs for product information shall be payable immediately.
Order volumes which do not amount to a net goods value of €25 shall be subject to a minimum surcharge up to the net value of those goods.
The withholding of payments or the offsetting of payments against possible claims shall only be permitted in the event of customer counterclaims that have been admitted or recognised as legally enforceable.
4. Delivery time
The time period for delivery shall begin on the date of the order confirmation. However, this shall only apply provided all technical and commercial details have been checked at this time. The customer shall be obliged to arrange the provision of all materials required to execute the order on time. The delivery date shall be deemed to have been complied with if the item for delivery has left the Festo factory or the customer has been informed that the goods are ready for shipment by this date.
The delivery times stated in all of our sales and communication materials (such as product catalogues, price catalogues, quotations etc.) and divided into categories, each with a particular standard delivery time (standard delivery time classes) are solely typical estimates based on practical experience. The standard delivery times stated for each category do not represent guaranteed or assured periods of delivery. Non-compliance in individual cases does not automatically mean that we are in default and does not entitle the customer to lodge a complaint or seek compensation for damages of any kind.
Partial and early deliveries by Festo shall be permitted.
The time period for delivery shall be extended as appropriate in the event of impediments that are due to circumstances amounting to force majeure. Such circumstances include actions taken in the context of industrial disputes, in particular strikes and lockouts. The same shall apply when unforeseen impediments and circumstances affect subcontractors.
The customer must fulfil his contractual obligations in order for the time period for delivery to be complied with.
Festo shall not be responsible for the predefined circumstances if they occur during existing cases of default.
Should dispatch be delayed at the request of the customer, we shall be entitled, following a reasonable period of time, to dispose of the delivery item elsewhere, and deliver to the customer within an extended delivery time period and invoice the customer for warehousing costs incurred.
5. Passing of risk
Delivery shall always be at the customer's risk. The risk shall also be passed to the customer on dispatch of partial and early deliveries. This shall also apply should Festo undertake the transportation, including when using our own vehicles, and installation. Should dispatch be delayed due to circumstances for which the customer is responsible, the risk shall be passed to the customer from the day the goods are ready for dispatch.
At the customer's request, Festo shall insure the shipment against theft and breakage, transport, fire and water damage as well as against other insurable risks, the costs of which shall be borne by the customer.
6. Reservation of title
The delivered goods shall remain our property until all current and future accounts receivable arising out of the business relations with the customer have been paid, regardless of legal ground.
Asserting our rights arising from the reservation of title shall not be construed as a cancellation of contract. On the contrary, apart from the claim for the surrender of our property, our rights based on the contract of sale, in particular for damages and loss of profit, shall remain intact.
The customer shall be revocably entitled to resell the supplied goods in the course of the customer's ordinary business operations. The customer hereby transfers all and any claims including subsidiary rights the customer might be entitled to from the resale to the value of the goods subject to reservation of title. The transferred claims shall secure all and any claims under item 1. Upon our request, the customer shall be obliged to disclose to us the transfer to third parties for the purpose of payment and provide all and any information and documentation we may require to assert our rights.
The customer shall be permitted to process, to transform and to combine the goods subject to reservation of title with other items. Processing or transforming shall be done for Festo. We shall be the direct owner of the item produced by means of processing or transforming to the value of the delivery. The processed or transformed item shall be deemed as goods subject to reservation of title.
In case of processing, transforming or combining with other items which are not our property, we shall be entitled to co-ownership on the new items to the value of the ratio of the processed, transformed or combined goods subject to reservation of title to the value of the new product. The part claim transferred to us shall have priority over any other claims.
If the customer combines our goods subject to reservation of title with land or movables, the customer shall transfer his claim and all subsidiary rights, to which the customer is entitled as remuneration for the combination, to us as security without the need for any other declarations.
The aforesaid shall apply accordingly in relation to the amount of the transferred claim.
We shall be obliged to release the securities we are entitled to insofar as their value exceeds the claims they secure and which remain unpaid by more than 20%.
The customer shall not be entitled to dispose of the goods subject to reservation of title in any other way than stipulated above, this shall in particular refer to pledging or transfer of ownership by way of security. In case of levy of execution, seizure or other disposals by third parties, the customer shall be obliged to draw attention to the fact that the goods are Festo's property. The customer shall immediately advise Festo of any infringement of rights relating to items that are our property.
Should the customer act in breach of contract, in particular in case of default in payments, the remainder of the debt shall become due immediately. In the aforesaid cases we shall be entitled to demand surrender of the goods and to collect said goods from the customer's premises. In such a case the customer shall not be entitled to possession of the goods.
7. Software use
Upon payment of a consideration, the customer shall obtain for any type of Festo software including associated documentation a non-exclusive, non-transferable and time-unlimited right of use on a certain hardware product which may be determined in individual cases. Festo shall remain the owner of the copyright as well as of any other industrial property rights. The customer may make copies for back-up purposes only. Any statements of copyright may not be removed.
Festo shall provide installation and commissioning instructions in printed form containing appropriate safety information for its software. All other documentation shall be provided in the form of online help. New software releases shall be accompanied by appropriate online documentation.
Any passing on to third parties shall require our consent. Should software be handed over for the purpose of resale, the acknowledgement of aforesaid conditions by the third party must be ensured. No changes to said conditions shall be permitted.
In case of breach of said conditions, the ordering party shall be liable to pay a contract penalty amounting to 10 times the value of the contract for each breach. This contract penalty shall be deducted from any sum claimed as damages, should such a claim be asserted. The software and associated documentation shall be returned immediately.
The aforesaid conditions shall not apply to software exclusively developed and customised based on specifications provided by the customer.
Such software is developed by Festo as part of a contract for a complete control system, using software modules created for a variety of applications (standard software modules), put together and customised as required by the specific contractual specifications (tailor-made application program). The aforesaid conditions shall also not apply to customised learning software.
Upon full payment of the purchase price for the customised application program, Festo shall grant the customer the exclusive right of use, without time or space restrictions, for the software, without granting the customer any right whatsoever on the underlying standard software modules. Regardless of aforesaid stipulations, Festo shall remain entitled to create and offer similar customised software solutions based on the requirements of other customers. In any case, Festo shall retain a simple right of use on the customised solution for internal purposes.
8. Warranty claims
Subject to the provisions in item 10 of the terms and conditions herein and excluding any further claims, Festo shall be liable for defects of quality and legality of title and warrants as follows:
Defects of quality:
All parts found to be defective as a result of circumstances prior to the transfer of risk shall, at Festo's discretion, either be repaired or replaced by delivery of a perfect part. Excluded from this warranty shall be parts subject to wear.
We shall guarantee that Festo software has been duplicated properly. Festo software is designed to run on hardware products specified by Festo. Warranty claims shall be satisfied by means of a replacement. Unless otherwise agreed in writing, we shall not warrant that the software and its data structure are free of defects.
In case of customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the order acknowledgement, documentation or the work/procedure descriptions worked out together between Festo and the customer. Festo shall not warrant that such programs are free of defects in relation to the use of said programs in all applications intended by the customer, in particular not such applications of which Festo was not aware or did not test at the time of development/acceptance.
Obvious defects must be notified in writing immediately, no later than 8 days after receipt of goods. Festo must be immediately notified in writing of latent defects at the time when they become known or fail to become known due to gross negligence, and no later than 8 days after that time.
If the defect complaint is justified, we shall bear the immediate costs – insofar as the complaint proves to be founded – the cost of the replacement part, shipping thereof as well as reasonable costs related to uninstallation and reinstallation, insofar as such procedure does not result in unreasonable demands made on Festo.
The customer shall allow us time and opportunity to effect the repair or replacement delivery, otherwise Festo shall not be held liable for the ensuing consequences. The customer, with Festo's prior consent, shall have the right to rectify defects himself or have them rectified by a third party in such urgent cases where there is a danger to operational safety and to prevent extensive damage, and to claim reimbursement of necessary costs from Festo. This shall also apply in cases where we are causing undue delay in remedying the defect. Festo shall not be held liable for any consequences should the customer or a third party carry out unqualified repairs.
The customer shall be entitled to withdraw from the contract within the scope of the statutory provisions if Festo, taking into account exceptional cases provided in the law, allows to let a reasonable period for repair or replacement delivery concerning quality defects pass without remedying the situation. The aforesaid exceptional cases are for instance if Festo refuses to rectify the delivery, the rectification has failed or rectification is unreasonable for the customer. If the defect is insignificant, the customer shall merely have the right of diminution of the purchase price, provided also that Festo allows to let a reasonable period for repair or replacement delivery in consequence of quality defects pass without remedying the situation. Otherwise, the right of diminution of the purchase price shall be excluded.
Other claims shall be determined as stipulated in item 10 of the terms and conditions herein.
In addition, we shall not be held liable for any damage resulting from the following: Unsuitable or improper use or storage, faulty installation by the customer or a third party, unauthorised repair attempts and modifications, natural wear, erroneous or negligent handling, chemical effects and electrical effects etc. outside our power, as well as in case of non-intended use and non-compliance with our user manuals and catalogue sheets, in particular in relation to the conditions of use of our cylinders (lubrication instructions). In addition, the warranty shall be voided if the customer or third parties modify the control/software without Festo's prior consent and without any other justification (Festo's undue delay in remedying defects), even if the error occurs in an unchanged component.
Defects of title:
If the use of the delivery item infringes domestic industrial property rights or copyrights, Festo shall, at its cost, obtain the right to principally enable the customer to continue to use the delivery item or to modify the delivery item in a manner acceptable to the customer so that the copyright infringement no longer exists. Should this not be achievable in an economically reasonable manner or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Given the stipulated conditions, Festo shall also have the right to withdraw from the contract.
In addition, Festo shall indemnify the customer in relation to any non-disputed claim or legally asserted claim raised by the relevant copyright owners.
Subject to the provisions of item 10 of the terms and conditions herein, the above stated obligations of Festo shall be final in relation to cases of infringement of property rights or copyrights. The aforesaid obligations shall be applicable only if the customer immediately advises Festo of any property or copyright infringement claims raised, the customer reasonably supports Festo in the defence of such claims or enables Festo to carry out modifications, Festo has at its disposal all defence actions including out-of-court settlements, the defect of title is not based on an instruction issued by the customer and the infringement is not caused by non-authorised modifications of the delivery item by the customer or non-authorised use of the delivery item by the customer.
9. Impossibility of performance, default
The customer may withdraw from the contract should performance by us become impossible before the risk is passed. The customer shall also be entitled to withdraw from the contract should, in the case of an order for similar goods, execution of part of the delivery become impossible and the customer has a legitimate interest in refusal of a partial delivery. Should this not be the case, the customer may reduce the consideration accordingly.
In the event of default in performance by us as defined by item 4 and where the customer has guaranteed us a reasonable extension, the customer shall be entitled to withdraw from the contract, within the scope of the statutory provisions, should the extension not be complied with. Should there be a delay of acceptance through the fault of the customer, the customer shall remain obliged to render a return service.
Should the customer incur damage caused by a delay for which we are responsible, the customer shall be entitled to claim compensation for default.
This compensation shall amount to, for each full week of the delay and to the exclusion of further claims, 0.5% and no more than 5% of the value of the part of the total delivery that cannot be used in good time or as agreed upon due to the delay.
Further claims as a result of late delivery shall be determined exclusively as stipulated in item 10 of the terms and conditions herein.
Should the delivery item not be fit to be used by the customer as stipulated in the contract due to Festo's fault following omitted or defective execution of proposals and discussions prior to and after the conclusion of the contract or as a result of violation of other incidental conditions, in particular the instructions for operation and maintenance of the delivery item, the provisions in items 8 and 10, sections 2 and 3 of the terms and conditions herein shall apply accordingly excluding any other claims.
Festo shall be liable for damage other than that to the delivery item itself, for whatever legal reasons, only in case of intent, gross negligence of bodies or executives, culpable violation of life, body, health, defects whose presence was maliciously not disclosed by Festo or whose absence was guaranteed by Festo, as well as in case of delivery item defects to the extent as liability is provided under the product liability law for personal injury and property damage in relation to privately used items.
In case of culpable violation of essential contractual obligations, Festo shall also be liable in case of gross negligence of non-executive personnel and cases of ordinary negligence; in the latter case liability shall be limited to contract-typical, reasonably foreseeable damage.
Any further claims are hereby excluded.
11. Limitation of action
All claims of the customer, regardless of legal ground, are barred after 12 months from the time of delivery or acceptance, or in the case of damage other than that to the delivery item itself, from the time of the action causing the damage and the time when it became known to the customer or failed to become known due to gross negligence. Mandatory statutory terms of limitation and damage wilfully caused are excepted from the foregoing.
The customer shall be obliged to treat all information, know-how and other business secrets connected with execution of the order in question as strictly confidential, and may not disclose or otherwise grant access to information, documents, drawings, sketches or other items to third parties without the express consent of Festo. Festo shall also treat items belonging to the customer as confidential.
For all disputes arising out of the contractual relationship, if the customer is a registered merchant, a legal person under public law or a special asset under public law, or if the customer's place of residence or business headquarters are outside Germany, the court of our business headquarters in 73734 Esslingen shall have jurisdiction. However, we shall also be entitled to take legal action at the place where the business headquarters of the customer are located.
14. Applicable law
The contractual relationship between us and the customer shall be governed by German law to the exclusion of all bilateral and/or multilateral agreements concerning the purchase of moveable property, in particular to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).