1. SCOPE
1.1. In these terms and conditions, a reference to “the company” shall be a reference to Festo (Pty) Ltd and a reference to “the customer” shall include a reference to the applicant or customer referred to on any application or quotation to which these terms and conditions are attached.
1.2. These terms and conditions shall be subject to any quotation being signed by an authorised representative of the company, including any variation recorded in any schedule to these terms and conditions, and in the event of any conflict between the terms contained within any quotation and/or schedule and these terms and conditions, the terms and conditions contained within the quotation shall prevail.
1.3. Subject to 1.2, no variation of these terms and conditions shall apply, either when the customer’s quotation is issued (duly signed) or when an order is accepted or at any time afterwards, unless any variation to these terms and conditions is expressly agreed to in writing between the parties and signed by an authorised representative of the company.
1.4. If the components and/or the system(s) set out in the quotation (“the equipment”) are required by the customer for the purpose of another contract between the customer and anyone else, none of the provisions of that other contract shall apply to or be incorporated in the contract between the company and the customer unless expressly confirmed in writing by an authorised representative of the company.
2. SPECIFICATIONS
2.1. The equipment shall be supplied and/or manufactured and/or installed in accordance with the specifications or dimensions set out in the quotation (if any), and it is the responsibility of the customer to check and ensure that the specifications and/or dimensions are correct; consequently, the company will not be liable for any loss or damage sustained by the customer as a result of any incorrect specification or dimension.
2.2. Should there be any conflict between the description of the equipment, specifications and dimensions or other terminology of a technical nature set out in the quotation and that used by the customer, those set out in the quotation shall prevail.
2.3. The company reserves the right to make alterations and improvements, without notice, in the design or method of manufacturing the equipment. It is the responsibility of the customer to ensure that they are up to date and aware of any improvements and/or alterations made to the equipment.
3. CREDIT FACILITIES AND CREDIT LIMITS
3.1. Granting of Credit
3.1.1. Any credit facility or credit limit granted by Festo to the customer is provided solely at Festo’s discretion and for Festo’s internal credit-control purposes. The granting of a credit facility shall not be construed as an obligation on Festo to continue supplying goods or services on credit.
3.2. Right to Amend Credit Limits
3.2.1. Festo reserves the right, at its sole discretion and at any time, to increase, reduce, suspend, withdraw or amend any credit facility or credit limit granted to the customer, with or without prior notice. Any such amendment shall not constitute a breach of contract and shall not require the customer’s consent unless expressly required by applicable law.
3.3. No Obligation to Supply
3.3.1. The granting, variation, reduction, suspension or withdrawal of a credit facility does not oblige Festo to accept any order, release any goods, provide any services or continue supplying the customer on credit terms. Festo reserves the right to require payment in advance, provision of security or alternative payment arrangements at any time.
3.4. Customer Liability
3.4.1. The customer shall remain fully liable for all goods and services ordered, supplied, delivered, accepted or utilised by the customer, including any amounts that exceed an approved credit limit. The customer’s liability shall not be limited to the value of any credit facility or credit limit granted by Festo.
3.5. Supply in Excess of Credit Limit
3.5.1. Should Festo accept orders, supply goods or render services to the customer in excess of an approved credit limit, such supply shall not constitute a waiver of any rights available to Festo, shall not be interpreted as an amendment to the customer’s credit facility, shall not limit the customer’s obligation to pay for all goods or services supplied, and shall not constitute an assumption of additional credit risk by Festo.
3.6. Authorised Orders
3.6.1. All orders placed by the customer, or by any employee, representative, purchaser, agent or person appearing to act on behalf of the customer, shall be deemed to have been duly authorised by the customer unless Festo has received prior written notification limiting such authority. The customer shall remain liable for all orders processed on its account.
3.7. Reservation of Rights
3.7.1. Nothing contained in any credit approval, credit limit notification, statement of account, quotation, order acknowledgement, invoice, delivery note or other communication shall be interpreted as creating a guaranteed or continuing entitlement to credit facilities or future supply by Festo.
4. SALE OF COMPONENTS
The following provisions shall apply in respect of the sale, supply and/or installation of components and/or goods ("components") by the company:
4.1. Purchase Price:
4.1.1. The purchase price shall be paid by the customer upon presentation of an invoice. Where credit facilities are extended by the company in writing, the purchase price shall be paid within 30 (thirty) calendar days from the date of the company issuing a statement to the customer.
4.1.2. If payment is to be made in instalments, each instalment will be invoiced and paid for separately in accordance with 4.1.1.
4.1.3. All accounts are payable without deduction, set-off, counterclaim or withholding for any reason whatsoever. The customer shall not be entitled to withhold, defer or reduce any payment owing to the company by reason of any dispute, claim, counterclaim, right of set-off or alleged right of retention, whether arising under these terms and conditions or otherwise. In the event that the customer has or asserts any claim or dispute against the company, the customer shall nonetheless pay all amounts owing to the company in full and on due date, and any such claim or dispute shall be pursued separately in accordance with the dispute resolution provisions set out in clause 6.10. The customer’s obligation to pay shall not be suspended, deferred or conditional upon the resolution of any dispute.
4.2. Price Increases:
4.2.1. The purchase price is based on all the company's costs as at the date on which the purchase price is first quoted by the company, of obtaining and/or assembling the components for resale or manufacturing the components for sale to the customer, including (without being limited to), if applicable, the costs of labour and materials, packaging, customs and excise duties, shipping, freight, railage and other transportation costs, landing charges, consular fees and other import charges, and the cost of foreign exchange and all ancillary costs related to the procurement of any components for the customer (“the costs”). All prices exclude Value Added Tax. If no price is quoted, the purchase price shall be the company’s usual price as at the date of delivery.
4.2.2. If any of the costs are increased after the date of any quotation, for any reason beyond the company's control or arising in the ordinary course of its business, the purchase price shall be increased, and the quotation shall be adjusted to accommodate the price increase upon reasonable notice to the customer.
4.2.3. If the customer disputes any increase in the purchase price in terms of 4.2.2, the disputed increase shall be referred to the company’s auditors, acting as experts and not as arbitrators, and their decision shall be final and binding on the company and the customer. The customer shall be responsible for the payment of the auditors’ costs for such a referral.
4.3. Surcharge for Minimum Order Values or Quantities
4.3.1. The company reserves the right to establish and maintain a Minimum Order Value (MOV) for purchase orders. Where the net goods value of an order is below the applicable MOV, the company may, at its sole discretion, apply a surcharge to the order. The MOV and any applicable surcharge may be reviewed and amended by the company from time to time without prior notice and shall apply to all future purchase orders.
4.3.2. Certain products are only sold with minimum quantities (MOQ). This includes, but is not limited to, tubing which is sold in boxes and fittings which are sold in packets of varying quantities.
4.4. Software
4.4.1. In the case of contracts for the provision of software and apps (hereinafter referred to collectively as “Software”), Festo shall be responsible for providing the customer with access to the Software offered (licence/licences). Access shall be provided in digital form.
4.4.2. The Software shall be delivered (1) by providing the purchased licences in a suitable form and, unless otherwise agreed, by sending the licence key by email or (2) by means of a download link, which Festo shall send to the customer by email (including a licence key) to an email address provided by the customer. The Software shall be deemed to have been delivered upon provision of the licence key.
4.4.3. The type and scope of use of the purchased Software, system requirements and licence fees can be found in the respective product description, the respective licence certificate and/or the respective sales documents (offers, order confirmations).
4.4.4. Festo shall only be obliged to provide consultancy services if this is expressly and separately agreed in a service level agreement. Adjustments or modifications to the Software and the creation of interfaces to third-party software by Festo shall only be owed if this is expressly and separately agreed.
4.4.5. The manufacturer of the Software sold by Festo is Festo (Pty) Ltd. The rights of use of the purchased Software are granted by Festo (Pty) Ltd. The content and scope of the respective rights of use shall be governed by the End User Licence Terms of Festo (Pty) Ltd (“EULA”), available at https://www.festo.com/de/en/e/legal-information/end-user-licence-agreement-id_45479/.
4.4.6. Insofar as the Software also contains components or modules from other software manufacturers, in particular open-source software components, the applicable licence conditions to which reference is made in the Software and/or Festo’s programme documentation shall also apply.
4.4.7. If the licence certificate and/or the respective sales documents (offers, order confirmations) specify a certain number of natural persons (named users) who may use the Software, the right of use granted shall only extend to those named users. A named user is a specifically named employee of the customer who directly or indirectly accesses the Software provided. Use of the Software by other third parties who are not named users is only permitted in exceptional cases and after consultation with Festo.
4.4.8. The customer shall fulfil all duties and obligations necessary for the performance of the contract. In the absence of other agreements, the customer shall in particular: (a) keep any user and access authorisations assigned to named users secret, protect them from access by third parties and not pass them on to unauthorised users; the customer shall inform Festo immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorised persons; (b) define contact persons and ensure that they are available in the event of updates or works that must be carried out remotely or on site by Festo; (c) grant Festo remote access to the parts of the Software installed locally on the customer’s computer systems and maintain this access permanently; (d) provide the infrastructure and backup strategies required to operate the Software; (e) store all copies of the Software in a protected location; and (f) report defects in the Software to Festo without delay, take into account information from Festo within the scope of what is reasonable for the customer and forward to Festo all information available to the customer which is necessary for the rectification of the defect.
4.4.9. Festo shall be entitled to carry out a licence audit. If a licence audit reveals that the use of the Software by the customer exceeds the contractual agreements, a further contract must be concluded with Festo for additional licences to the extent used to date. In this respect, Festo reserves the right not to grant any agreed discounts in this case. Festo reserves the right to claim damages and interest.
4.4.10. The following shall apply to contracts for the permanent provision of a specific Software version (purchase): (a) Festo shall provide the customer with the Software defined in more detail in the respective product description, the respective licence certificate and/or the respective sales documents (offers, order confirmations) in the defined Software version. Upgrades are not owed. (b) Updates and maintenance services are only owed within the scope of the warranty unless such services have been ordered separately by the customer for a fee.
4.4.11. The following applies to contracts for the temporary provision of Software (rental):
(a) the term is defined in the licence certificate and/or the respective sales documents (offers, order confirmations);
(b) unless otherwise stipulated therein, the term shall be 12 months beginning on the date stated in the invoice (contract year). The term shall be extended by a further 12 months in each case unless the contract is terminated with 30 calendar days’ notice to the end of the respective contract year. The right to terminate the contract for good cause remains unaffected;
(c) unless otherwise agreed, free trial licences are always limited to three months and then end automatically without the need for termination. There is no automatic transfer to a fee-based contract;
(d) the agreed remuneration is to be understood as an annual lump sum starting with the conclusion of the contract. The remuneration is due in advance at the beginning of each contract year for the entire contract year. The agreed remuneration shall be increased by the applicable value added tax;
(e) in the case of fixed terms of more than 12 months, indefinite terms and terms with automatic renewal, Festo shall be entitled, in the absence of any special provisions, to increase the remuneration after the expiry of 12 months with two months’ written notice to the end of the month. The customer shall have the right to terminate the contractual relationship within a period of four weeks after receipt of the notification of the increase; and
(f) if the Software is made available to the customer as part of a service as “Software as a Service” (SaaS), the following shall also apply:
(1) the customer receives access to a service provided by Festo via the internet and uses the web application via the internet;
(2) for certain Software, apps for mobile devices (smartphone and tablet) are made available for download in the app stores for the mobile platforms “iOS” (Apple App Store) and “Android” (Google Play Store). Such apps are linked to the relevant web application;
(3) Festo shall not be responsible for establishing and maintaining the data connection between the customer’s IT systems and the service;
(4) unrestricted availability of the service is not part of the service. System maintenance and other interventions in operations that may lead to non-availability are possible at any time. As far as possible, Festo will inform the customer in advance. However, Festo will endeavour to keep unavailability as low as possible and, in particular, to use times outside normal business hours (Monday to Friday, 8 a.m. to 5 p.m. CAT). Despite a high level of system stability, it is recommended that all data entered is backed up regularly by the customer, at least once a day. If the non-availability for these or other reasons exceeds a time value of 10%, the customer is entitled to a pro rata reduction of the licence fees. Any special agreements in a service level agreement shall always take precedence; and
(5) Festo reserves the right to switch off the Software at some point in the future and to no longer make it available from then on. In this case, the customer shall receive a pro rata refund of the overpayment. Further claims are excluded in such cases. Festo must give at least 6 months’ notice of any shutdown of the Software.
4.5 Supplementary Provisions on Defect Rights for Software
4.5.1 The subject of the delivery is Software which basically corresponds to the information given in the respective product description.
4.5.2. For customised Software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the Festo order confirmation or acceptance letter, documentation or the jointly defined work/procedure descriptions.
4.5.3. A defect exists if the Software does not fulfil the functions and features stated in the product description – in the case of customer-specific Software created in the documents pursuant to 4.5.2, delivers incorrect results, uncontrollably interrupts its running or otherwise does not function properly, so that the use of the Software is prevented or impaired not merely insignificantly.
4.5.4 Festo shall not be liable for errors in the Software: (a) which have been caused by application errors on the part of the customer and which could have been avoided if the programme documentation had been consulted carefully; this also applies to non-existent or insufficient backup measures; (b) due to the actions of a virus or other external influences for which Festo is not responsible, such as fire, accidents or power failure; (c) which are based on the fact that the Software was used in connection with a hardware product other than that specified by Festo or in an operating environment other than that approved by Festo, or are attributable to faults in the hardware, the operating system or computer programmes of other manufacturers which the customer uses in connection with the Software; or (d) which are based on the fact that the Software was changed by the customer or a third party without authorisation.
4.5.5. Furthermore, Festo shall not provide any warranty for components or modules supplied free of charge by other manufacturers (third-party software), in particular open-source software, which can be used in connection with the Software provided by Festo.
4.5.6. In the event of defects within the meaning of 4.5.3 occurring, the customer shall be obliged to provide Festo with all information necessary for error analysis and subsequent performance and to grant Festo or the persons commissioned by Festo unrestricted access to the Software and the system of the customer on which it is installed. An error message shall contain information about the type of error, the application in which the error occurred and the work performed to correct the error. If Festo carries out an error analysis at the customer’s request and it turns out that there is no error which Festo is obliged to remedy, Festo may invoice the customer for the corresponding expenditure on the basis of Festo’s applicable hourly rates.
4.6. Delivery:
4.6.1. Unless otherwise agreed in writing, delivery shall be made to the customer at the company's registered address (“the premises”).
4.6.2. The customer shall be responsible for procuring and arranging for the transportation of the components from the company’s premises to any destination required by the customer.
4.6.3. Delivery shall be completed when the components are handed to the customer or its agent at the company's premises and before loading commences.
4.6.4. After completion of delivery, the company shall not be responsible for the arrival of the components at their destination or for any loss of or damage to the components from any cause whatsoever while in transit or within the possession of the customer. All risk associated with the components upon completion of the delivery shall be transferred to the customer.
4.6.5. Should the company, at the customer's request, agree to engage a carrier to transport the components for the customer, then:
4.6.5.1. the company is authorised to engage a carrier on such terms and conditions as it deems fit;
4.6.5.2. the customer shall indemnify the company, and hold the company harmless, against any demands and/or claims which may be made against it by the carrier so engaged and all liability which the company may incur against the carrier arising out of the loading, transportation and unloading of the components.
4.6.6. Notwithstanding any other provision in the contract to the contrary, the company's obligation to deliver the components shall in all cases be subject to the following conditions precedent:
4.6.6.1. the availability to the company of any materials, software and supplies required for the manufacture of the components;
4.6.6.2. the timeous receipt by the company of any instructions (including all drawings and specifications) required by the company from the customer for the manufacture of the components.
4.6.7. Time shall not be of the essence of the contract.
4.6.8. If the customer fails to take delivery of the components on the due date, or, where no date is specified, upon reasonable notice being provided to the customer, then:
4.6.8.1. Any risk related to the components, including the transportation and insurance, shall immediately pass from the company to the customer;
4.6.8.2. The customer shall refund to the company on demand the reasonable costs (including storage and insurance) of keeping the components during the period of that delay.
4.6.9. If delivery is made in part, the provisions of this clause shall apply to each such part delivery as if it were a separate delivery.
4.7. Guarantee of Products Manufactured:
Subject to the conditions hereinafter contained, the company guarantees all components that have been manufactured by itself for a period of 6 months from the date of delivery or installation, whichever occurs later, against any defect attributable to faulty material or workmanship. This guarantee does not apply to any software and/or any designs provided by the company. Should any defect in any components develop within the period stipulated above, save for where any defect may be caused by or attributable to any actions on the part of the customer as a result of abuse, negligence or mishandling of any components by the customer, the company will repair or (at its option) replace the defective component or the defective part at the company’s factory without charge provided that:
the customer shall have reported any defect to the company immediately upon the defect becoming apparent;
4.7.1. the product was not subjected to abnormal use, or to use under abnormal conditions, or beyond its capacity as rated and recommended by the company;
4.7.2. the defect was not caused or contributed to by exposure to direct weather conditions or by operation in abnormal atmospheric conditions;
4.7.3. no repairs or alterations to the product were carried out by the customer or any third party;
4.7.4 the customer has fulfilled its obligations under the contract, and the onus of showing that the conditions set out above have been complied with shall rest on the customer.
4.7.5. the customer shall at its own expense return the defective product or part to the company's factory and shall meet all other incidental expenses however incurred. The company shall have a reasonable period of time during which to effect the repairs (or at its option make the replacement), and the guarantee period stated above shall be extended by that time;
4.7.6. the working hours of components are not to exceed 8 (eight) hours continuous working during any 24 (twenty-four) hour period.
4.8. Guarantee of Products Not Manufactured:
Without imposing any obligation on the company, the company will use its best endeavours to pass on to the customer the benefit (with the corresponding liabilities) of any guarantee received by the company from the supplier of components not manufactured by the company. Nothing herein contained shall, however, impose upon the company a greater liability than would be imposed by its own guarantee set out above, nor shall the company have any obligation to enforce the guarantee by litigation or other proceedings.
4.9. Ownership:
Notwithstanding delivery of any components or goods to the customer, ownership of all such components and goods shall remain vested in the company and shall not pass to the customer until the company has received payment in full of all amounts owing by the customer to the company, whether under the relevant contract or any other contract or from any cause whatsoever. Pending payment in full, the customer shall hold the components and goods as fiduciary bailee for the company and shall store them separately from its own goods and in a manner that enables them to be readily identified as the company’s property. If the customer sells or otherwise disposes of any components or goods before ownership has passed, the customer shall hold the proceeds of that sale or disposal on trust for the company and shall account to the company for those proceeds immediately on demand. The company shall be entitled, without prejudice to any of its other rights, to enter the customer’s premises to recover, repossess and remove any components or goods in respect of which ownership has not passed, and the customer irrevocably authorises the company and its agents to do so. Nothing in this clause shall create or be construed as creating a pledge or encumbrance over the components or goods in favour of any third party.
4.10. Risk:
Subject to 4.6.8.1, the risk shall pass to the customer when the components leave the company's premises or on delivery to the customer, whichever is sooner.
4.11. Exclusions:
4.11.1. All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advice, and other technical data furnished by the company whether before, during or after the conclusion of the contract, in respect of the components, and whether in writing or not, are furnished only on the basis that they will not form part of the contract or be relied upon by the customer for any purpose, unless and to the extent that they are expressly warranted or guaranteed in writing by the company and are, as such, expressly stated by the company to form part of the contract.
4.11.2. If the components or any part of them are to be supplied in accordance with any specifications, measurements or other instructions furnished by the customer, the customer shall not have any claim of any nature whatsoever against the company:
4.11.2.1. for any loss or damages sustained by the customer as a result of any error, discrepancy or defect in those specifications, measurements or other instructions;
4.11.2.2. if the components in question are not suitable for the purpose for which they are required, whether those purposes are known to the company or not.
4.11.3. The company does not warrant or represent that any components are fit for any particular purpose, whether or not that purpose has been made known to the company. The customer acknowledges that it has satisfied itself as to the suitability of the components for the customer’s intended use and has not relied on any advice, recommendation or representation by the company in that regard.
4.11.4. The company shall be exempted from and shall not be liable under any circumstance whatsoever for:
4.11.4.1. any direct or consequential damages of any nature or any loss of profit or special damages of any nature, and whether in the contemplation of the parties or not which the customer may suffer as a result of any breach by the company of its obligations under the contract, save to the extent that such loss or damage is attributable to the gross negligence or wilful misconduct of the company;
4.11.4.2. any claim for any alleged shortage in delivery or failure of the components to comply with the contract, unless written notice of the claim is received by the company within 7 (seven) days after receipt of the components by the customer or if applicable, after they have been commissioned;
4.11.4.3. any loss or damage of whatsoever nature which the customer may suffer, and which is caused by or arises out of any breach by the company of any of its obligations under the contract or which is caused by or arises out of any gross negligence on the part of the company, its servants, agents or subcontractors.
4.12. Return Policy
Any and all Goods supplied to the customer will only be accepted by the company, and credit shall be provided under the following conditions.
4.12.1. The Goods have not been utilised, mounted and/or tested in any manner or form; the Goods supplied remain unopened in their original packaging.
4.12.2. The Goods supplied are not older than 3 (three) months from the date of delivery to the customer.
4.12.3. Proof of purchase has been provided to the company by the customer to the satisfaction of the company.
4.12.4. The Goods supplied are standard Festo catalogue items and are not configurable Goods ordered and produced according to a customised customer specification.
4.12.5. The Goods supplied are standard Festo catalogue items and are not third-party buy-out items.
4.12.6. The company shall not accept the return of, or issue any credit in respect of, any custom order, bespoke product, specially manufactured item or any product specifically made, configured, assembled or procured for a particular project, application or customer specification, regardless of whether the conditions set out in 4.12.1 to 4.12.5 have been met.
4.12.7 The company shall charge a handling fee equal to 15% (fifteen percent) of the purchase price of the Goods accepted for return, provided that such handling fee shall not be less than R300.00 (Three Hundred Rand). Accordingly, where 15% of the purchase price amounts to less than R300.00 (Three Hundred Rand), a minimum handling fee of R300.00 (Three Hundred Rand) shall apply. Should any of the prescribed return conditions not be complied with, the company reserves the right, at its sole and absolute discretion, to reject the return or to accept the return subject to a handling fee of not less than 70% (seventy percent) of the purchase price of the Goods.
4.13. Security
4.13.1. As continuing security for the due and punctual payment and performance by the customer of all obligations owing to the company from any cause whatsoever, the customer hereby cedes to the company, in securitatem debiti, all of its right, title and interest in and to all book debts and other amounts owing or which may in the future become owing to the customer by any person from any cause whatsoever.
4.13.2. To the extent that the customer has previously ceded any of its book debts to any third party (including any bank, financial institution or other creditor), the customer hereby cedes to the company, in securitatem debiti, all of its reversionary right, title and interest in and to such book debts, being the right to receive back such book debts or any surplus remaining after the prior cessionary has been paid in full.
4.13.3. Notwithstanding the cessions referred to in 4.13.1 and 4.13.2, the customer shall be entitled to collect the ceded book debts in the ordinary course of business until the company gives written notice to the contrary. Upon receipt of such notice, the customer shall cease to collect the ceded book debts and shall procure that all amounts owing to the customer are paid directly to the company or as the company may direct.
4.13.4. The customer shall not, without the prior written consent of the company, further cede, pledge, encumber, factor or otherwise dispose of any of the book debts ceded to the company in terms of this clause. The customer shall, upon demand by the company, furnish the company with a schedule of all book debts then owing to the customer and such further information as the company may reasonably require.
5. SYSTEMS:
The following provisions shall apply in respect of the repair, alteration and/or enhancement of any goods and/or system(s) and/or the design and/or installation of any goods and/or system(s) ("the work") specified in the quotation/schedule, by the company:
5.1. Contract Price:
Unless otherwise agreed in writing, the contract price shall be determined at the company's standard rates and charges ruling at the time the installation is carried out.
5.2. Price Increases:
5.2.1. If the company agrees to carry out the work at a fixed contract price, then should the company’s costs for the work, adjusted on the basis of SEIFSA index of actual labour costs of hourly paid employees at the date of this agreement and any increase of the same index prevailing from time to time, that increase being expressed as a percentage of the former index, or any parts or components to be supplied in connection with the work, be increased thereafter for any reason beyond its control or arising in the ordinary course of its business, the company shall be entitled to adjust that fixed contract price:
5.2.1.1. by an amount equal to the increase in its costs; or
5.2.1.2. if that increase in its costs cannot be calculated exactly, by a reasonable amount to cover it.
5.2.2. If the customer disputes any increase in the contract price in terms of 5.2.1, the company’s then auditors (acting as experts, not as arbitrators) shall determine the increase, and their decision shall be final and binding on the company and the customer. The auditors’ charges for determining such increase shall be paid by the customer.
5.3. Payments:
5.3.1. The contract price shall be payable on presentation of invoice. Where credit facilities are extended by the company in writing, the contract price shall be payable within 30 (thirty) days from the date of the company's statement.
5.3.2. If the work is to be performed in instalments then each instalment will be invoiced separately but otherwise in accordance with 5.3.1;
5.3.3. If the components are to be installed and commissioned by the company, 90% (ninety percent) of the price of the components shall be payable upon delivery and the remaining 10% (ten percent), plus the company's installation and commissioning charges, shall be payable on completion.
5.3.4. If Festo offers payment by credit card for orders via the Festo online shop and the customer chooses this payment method, the customer will transmit their credit card data to the third-party payment service provider that Festo uses. The transmission of the credit card data is made via a secure connection. The credit card will be charged as follows:
(a) if the order is made via “Express Checkout” without registration, the credit card will be charged as soon as the order has been placed and the credit card data has been transmitted. The products will be shipped only after payment has been made; (b) if the order is made after registration as a registered user:
(i) if advance payment has been specified for the customer by Festo, the credit card will be charged as soon as the order has been placed and the credit card data has been transmitted; Festo reserves the right to charge shipping costs to the credit card separately when the products are shipped to the customer;
(ii) if payment in advance has not been specified for the customer, the credit card will be charged when the products are shipped to the customer. Online payment transactions are subject to validation checks, and Festo is not responsible if the customer’s card issuer declines to authorise payment for any reason. For this reason, delivery may be delayed until the verification process is completed. It is possible that the customer’s card issuer charges the customer an online handling fee or processing fee. Such fees must be borne by the customer.
5.4 Delivery (Continued):
5.4.1. If the work is to be carried out at the company's premises, then the customer shall, at the customer's cost:
5.4.1.1. deliver the components to be repaired or on which the installation work is to be carried out, to the company at the latter's premises; and
5.4.1.2. on the completion of the work, collect such components from the company's premises, unless otherwise agreed to in writing by an authorised representative of the company.
5.4.2. If the work is to be carried out at any place other than the company's premises, then the customer shall:
5.4.2.1. ensure that the components to be repaired or on which the installation work is to be carried out are available to the company at the proper time and during normal working hours;
5.4.2.2. provide all such facilities at that place as the company may reasonably require to carry out the work.
5.4.3. Time shall not be of the essence of the contract.
5.4.4. The Company shall not be strictly bound by any dates agreed upon in the contract for completion of the work but shall make reasonable efforts to complete the work by such date(s).
5.5. Dismantling and quoting:
If it becomes necessary to strip or dismantle any equipment in order to prepare a quotation for repairs, the following conditions shall apply:
5.5.1. the company shall be entitled to dismantle the equipment to such extent as it deems necessary in order to prepare the quotation;
5.5.2. the customer shall be liable for all costs incurred by the company in dismantling the equipment and which shall be charged at the company's current rates, whether the quotation referred to in 5.5.3 below is accepted or not;
5.5.3. in the event of the customer not accepting the company's quotation, the customer shall accept and remove the equipment in its stripped down condition.
5.6. Sub-Contractors:
All or any part of the work to be carried out by the company may be carried out by it or, on its behalf, by any sub-contractor appointed by it.
5.7. Exclusions:
5.7.1. The company shall be exempt from and shall not be liable under any circumstances for:
5.7.1.1. any indirect or consequential damages of any nature or any loss of profit or other special damages of any nature which the customer may suffer as a result of any breach by the company of any of its obligations under the contract, save to the extent that such loss or damage is attributable to the gross negligence or wilful misconduct of the company;
5.7.1.2. any loss or damage of whatsoever nature which the customer may suffer and which is caused by or arises out of any breach by the company of any of its obligations under the contract or which is caused by or arises out of any negligence on the part of the company, its servants, agents or sub-contractors.
5.7.2. Insofar as any of the work to be carried out by the company in terms of the contract is carried out by any of its servants, agents or sub-contractors, the provisions of 5.7.1 are stipulated for their benefit as well as that of the company, and they shall each be exempted accordingly.
Subject to any express warranty or guarantee given by the company in writing and which is intended by the company to form part of the contract, the company does not:
5.7.2.1. give any warranty or guarantee or make any representations whatsoever in respect of any work carried out by it or any parts or components supplied by it in connection with the work;
5.7.2.2. accept any liability for any latent or other defect in any parts or components referred to in 5.7.3.1.
6. GENERAL
The following provisions shall apply generally to every contract with the company:
6.1. Payments:
6.1.1. All payments shall be made to the company:
6.1.1.1. in South African currency (or USD and Euro where agreed), free of bank and other charges at such address
in the Republic of South Africa as the company may require from time to time;
6.1.1.2. together with VAT thereon, at the applicable rate, unless the purchase price is expressed by the company to be inclusive of VAT;
6.1.1.3. without any deduction, set-off, counterclaim or withholding for any reason whatsoever, and notwithstanding any dispute between the company and the customer.
6.1.1.4. Any payments in a foreign currency shall only be made upon express, written agreement with the company and at the exchange rate which the company specifies.
6.1.2. Any amount not paid by the customer on the due date may, at the election of the company, bear interest at the rate of 2.5% (two and a half per cent) above the prevailing prime overdraft rate of the company’s bankers, from time to time, from the date on which it falls due until it is paid. Notwithstanding the foregoing, where the National Credit Act 34 of 2005 applies to the agreement between the company and the customer, any interest, default administration charges, collection costs or other charges shall be limited to the amounts permitted by that Act.
6.2. Discounts:
6.2.1. All prices are strictly net and not subject to any discount unless otherwise agreed in writing.
6.2.2. If any discount is agreed to in writing, then the discount shall only be allowed on the net price shown in the monthly statements and then only if payment is received by the company on the due date.
6.3. Vis Major:
The customer shall not have any claim of any nature whatsoever against the company for any failure to carry out its obligations under the contract as a result of vis major, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by a sub-contractor or supplier of the company, riot, political or civil disturbances, the elements, any act of any state or government or any other authority, or any other cause whatsoever beyond the company's control.
6.4. Permits:
If any perm it or other consent or approval is required by the company under any law (including any statute, ordinance, by-law, proclamation, regulation or other enactment) for the performance of the contract or any part of it, then the contract shall not take effect until the company obtains that permit, consent or approval.
6.5. Suspension of Work:
Should the manufacture, repair, alteration or enhancement of any components, the installation of any components, the design, repair, alteration or enhancement of any system, or the installation or implementation of any system, be suspended on instructions from the customer, or as a result of the failure by the customer to give the company any or adequate information or instructions which the company may require for that purpose, or as a result of any other delays excluding delays caused by vis major, occasioned through no fault of the company, any additional costs incurred by the company in consequence of that suspension or delay, including where applicable, all the additional costs incurred by the company in keeping its employees at the customer's premises or site either during or after completion of commissioning, shall be added to the contract price and paid for accordingly by the customer.
6.6. Suspension of Company’s Obligations:
If any amount owed by the customer to the company from any cause whatsoever, whether under a contact or not, is not paid on the due date, without prejudice to any other right which it may have, the company may:
6.6.1. require that all amounts then owed to it by the customer, from any cause whatsoever (and whether under a contract or not), shall immediately become due and payable;
6.6.2. retain in its possession any components of the customer until all those amounts have been paid;
6.6.3. suspend, until payment is made, the carrying out of any of its then uncompleted obligations from any cause whatsoever and whether under the contract or not;
6.6.4. terminate any credit facilities granted to the customer whether under the contract or not.
6.7. Compliance with laws:
The customer shall comply with all laws, including all statutes, ordinances, by-laws, proclamations, regulations and other enactments, which are required to be complied with by the customer or the company for the purpose of the contract, and the customer indemnifies the company against loss, damage, costs, or other liability incurred by the company as a result of the customer failing to comply with any such law.
6.8. Representations:
6.8.1. This document together with any quotation which may be issued by the company in relation to any particular contract constitutes the sole record of the agreement between the company and the customer.
6.8.2. Any verbal arrangements, advice, representations or promises, which are not recorded herein, shall not bind the company.
6.8.3. Nothing contained within these terms and conditions shall be construed as a variation and/or waiver of any applicable prescription periods determined in terms of the Prescription Act 68 of 1969.
6.9. Cancellation:
6.9.1. The company may, upon written notice to the customer, cancel a contract, or any uncompleted part of it, if the customer:
6.9.1.1. commits a breach of any of the terms or conditions of the contract; or
6.9.1.2. being an individual, dies or is provisionally or finally sequestrated or surrenders his estate; or
6.9.1.3. being a partnership, the partnership is terminated; or
6.9.1.4. being a company, enters business rescue proceedings in terms of Chapter 6 of the Companies Act 71 of 2008, has any insolvency proceedings instituted against it or is placed under a provisional or final order of liquidation; or
6.9.1.5. compromises or attempts to compromise generally with the customer's creditors.
6.9.2. The company's rights in terms of 6.9.1 shall not be exhaustive and shall be in addition to its other rights under this document or otherwise.
6.9.3. No relaxation which the company may permit on any one or more occasion in regard to any of the customer’s obligations shall prejudice or be regarded as a waiver of the company’s rights to enforce those obligations on any subsequent occasion.
6.9.4. Upon the cancellation/termination of a contract for any reason whatsoever:
6.9.4.1 all amounts then owed by the customer to the company whether under the contract or otherwise shall become due and payable forthwith;
6.9.4.2. the company may retake possession of any components sold where ownership has not passed.
6.10. Dispute Resolution:
6.10.1. In the event of any controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, termination, validity or any breach thereof (“Dispute”), arising between the Parties, such Dispute will in the first instance be referred to duly authorised senior representatives of each of the Parties for resolution.
6.10.2. Save for the above provision regarding a Dispute, and save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, any dispute which arises between the Parties in connection with:-
6.10.2.1. the formation or existence of; 6.10.2.2 the implementation of; 6.10.2.3 the interpretation or application of the provisions of; 6.10.2.4 the Parties’ respective rights and obligations in terms of or arising out of, or the breach or termination of; 6.10.2.5 the validity, enforceability, rectification, termination or cancellation, whether in whole or in part of; and/or 6.10.2.6 any documents furnished by the parties pursuant to the provisions of this Agreement or which relate in any way to any matter affecting the interests of the Parties in terms of this Agreement, that dispute shall be referred to and be determined by arbitration in terms of the Rules of the Arbitration Foundation of Southern Africa or any successor thereto (“AFSA”).
6.10.3. Save for the clause being complied with first, any Party to this Agreement may then demand that a Dispute be determined in terms of this clause by written notice given to the other Party.
6.10.4. This clause shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
6.10.5. The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA (“Rules”) should any Party by written notice given to the other Parties require the arbitration to be held on an urgent basis. In such event the Parties agree to apply jointly to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
6.10.6. The arbitrator shall be, if the matter in dispute is principally: -
6.10.6.1. a legal matter, a senior counsel advocate of at least 15 (fifteen) years standing;
6.10.6.2. an accounting matter, a chartered accountant of at least 15 (fifteen) years standing;
6.10.6.3. any other matter, a senior counsel advocate practising at the Johannesburg Bar of at least 15 (fifteen) years standing.
6.10.7. Should the Parties to the dispute fail to agree in writing whether the dispute is principally a legal, accounting or other matter within 7 (seven) days after the arbitration was demanded, the matter shall be deemed to be a legal matter.
6.10.8. Should the Parties fail to agree in writing on an arbitrator within 14 (fourteen) days after the giving of notice in terms of this, the arbitrator shall be appointed at the written request of any of the Parties to the dispute in terms of the Rules of AFSA.
6.10.9. The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court at the instance of any of the Parties to the dispute.
6.10.10. The Parties agree to keep the arbitration, including the subject-matter of the arbitration and the evidence heard during the arbitration, confidential and not to disclose it to anyone except for purposes of an order to be made in terms of the above provisions.
6.10.11. Unless otherwise agreed in writing by all the Parties, such arbitration shall be held with only the Parties to the arbitration and their representatives present thereat, in English and in Johannesburg, within the Republic of South Africa.
6.10.12. The provisions of this clause:-
6.10.12.1. constitute an irrevocable consent by the Parties to any proceedings in terms hereof, and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and 6.10.12.2 are severable from the rest of this Agreement and shall remain in effect despite invalidity for any reason of this Agreement. 6.11 Governing law:
The validity of a contract or this document, its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of its performance or expiration or earlier termination for any reason, shall be determined in accordance with the laws of the Republic of South Africa.
6.12. Jurisdiction and litigation:
6.12.1. If the customer is a resident of or carries on business in the Republic of South Africa, then the company shall be entitled to institute proceedings against the customer in any Magistrates’ Court having jurisdiction over the customer.
6.12.2. If the customer is not a resident of and does not carry on business in the Republic of South Africa, then the customer consents and submits to the jurisdiction of the South Gauteng High Court.
6.12.3. A certificate signed by any director or manager of the company in respect of any indebtedness of the customer to the company or in respect of any other fact, matter or thing, including, without limitation, that goods were delivered or services rendered, shall be prima facie evidence of the customer’s indebtedness to the company and prima facie evidence of the delivery of such goods or the rendering of such services.
6.12.4. In the event of the company taking legal action against the customer because of a breach by the customer of its obligations to the company including, without limitation, its failure to pay any account, the customer shall pay for all legal costs incurred by the company on the scale as between attorney and client including, without limitation, collection fees, tracing agents’ fees and fees of counsel as on brief.
6.12.5. In the event that these conditions are annexed or attached to, or incorporated by reference, in a document in which the customer’s physical address or addresses are reflected, then the customer agrees to accept delivery of any notice or service of any court process or other documentation, including notifications in terms of the National Credit Act, at such address or any of such addresses.
6.13. Negotiable Instruments:
Any promissory note, bill of exchange, or other negotiable instrument received by the company from the customer shall not be a novation of the debt for which it is given and the customer waives presentment, notice of dishonour and protest where applicable.
6.14. Credit Facilities:
6.14.1. The company is under no obligation to extend credit facilities to the customer, and no such facilities shall be extended unless done so specifically by the company, in writing.
6.14.2. The nature and extent of such facilities shall at all times be at the company’s sole discretion, and the company reserves the right to amend, vary, suspend or withdraw such facilities at any time.
6.15. Credit Information:
6.15.1. The customer agrees that the information provided by it to the company may be utilised by the company to conduct a credit assessment or affordability assessment
in respect of the customer.
6.15.2. The company has the customer’s consent to request and to obtain from any third party including, without limitation, any registered credit bureau, or any credit provider, information relevant to the conduct of a credit assessment or affordability assessment in respect of the customer or to the tracing of the customer.
6.15.3. The company has the customer’s consent to furnish consumer credit information concerning the customer, to any third party including, without limitation, any credit bureau or credit provider.
6.16. Interpretation
The headings in these conditions are for convenience only and are not to be taken into account for the purpose of interpreting the contract.
6.17. Preservation of Existing Security 6.17.1 Any security arrangement contained in, or arising under, these terms and conditions (including, without limitation, any reservation of ownership, cession of book debts, cession of reversionary rights, or other security contemplated herein) shall be in addition to, and shall not supersede, replace, release or prejudice, any suretyship, guarantee, indemnity, cession (whether in securitatem debiti or otherwise), pledge, lien, notarial bond, reservation of ownership or other security of whatsoever nature previously given to or held by the company by or on behalf of the customer or any third party under any prior terms and conditions of trade or otherwise. 6.17.2 These terms and conditions shall, to the extent applicable, be read in conjunction with any prior terms and conditions of trade between the company and the customer. To the extent of any conflict or inconsistency between these terms and conditions and any such prior terms and conditions, these terms and conditions shall prevail, provided that such prevalence shall not operate to vary, novate, waive, release, abandon, impair, prejudice, compromise or in any way affect any security referred to in 6.17.1 or any rights which the company may have against any surety, guarantor, co-principal debtor or other party in respect of any obligations of the customer. 6.17.3 All security provisions contained in these terms and conditions, and all security given or to be given by or on behalf of the customer, are supplementary and cumulative and are in addition to, and not in substitution for, any other security from time to time held by the company. No security shall be discharged, impaired or affected by any time, indulgence, waiver or concession which the company may grant to the customer in respect of the customer’s obligations. 6.17.4 Any security previously given to or held by the company (including any suretyship, guarantee, indemnity, cession, pledge, lien, notarial bond, reservation of ownership or other security) under any prior terms and conditions of trade or otherwise shall, unless the terms of such security expressly provide to the contrary, extend to and secure all obligations of the customer arising under or in connection with these terms and conditions as if these terms and conditions had been in force at the time such security was given. 6.18 Exclusion Industries
Nuclear Energy – Safety-relevant applications of nuclear energy: Festo products are prohibited in nuclear energy applications
7. EXPORT CONTROL
Festo is committed to complying with all applicable export control laws and regulations. Festo’s products and services may be subject to export controls, including but not limited to the laws and regulations of the United States, the European Union, the African Union and any other applicable jurisdiction. The customer shall comply with all applicable export control and sanctions laws and regulations and shall not engage in any unauthorised export, re-export or transfer of Festo’s products or services to prohibited individuals, entities or countries.
7.1. 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 (collectively, “Festo Performance”), by Festo to the customer shall be subject to the precondition that such Festo Performance is not prohibited by national or international export control regulations, in particular embargoes or other sanctions. The customer undertakes to provide all information and documentation required for export and shipment and to obtain and maintain any licence, permit or approval required by the International Trade Administration Commission of South Africa (ITAC) or any other applicable authority before exporting or re-exporting the Festo Performance. Delays due to export examinations or approval procedures render deadlines and delivery dates inapplicable. If necessary approvals are not granted or the delivery or service is not capable of being approved, the affected sale agreement shall be considered not concluded with respect to the affected parts.
7.2. Festo shall be entitled to terminate any contract regarding Festo Performance without notice if such termination is necessary for Festo to comply with national or international legal provisions, including export control or sanctions laws.
7.3. In the event of termination pursuant to 7.2, the customer shall have no claim against Festo for any damage or other rights arising from or in connection with the termination.
7.4. When passing on any of the Festo Performance to third parties in South Africa or abroad, the customer must comply with the applicable provisions of national and international (re-)export control law. In particular, the customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any Festo Performance that falls under the scope of Council Regulation (EU) No 833/2014. Any violation of this clause by the customer shall constitute a material breach of an essential element of any affected sale agreement and these terms and conditions, and Festo shall be entitled to seek appropriate remedies. In addition, 7.2 and 7.3 shall apply. The customer shall immediately inform Festo about any problems in applying this clause, including any relevant activities by third parties that could frustrate its purpose.
7.5. The customer shall make available to Festo information concerning compliance with the obligations under this clause immediately upon request by Festo.