The customer's attention is drawn in particular to the provisions of clause 14.
1. Interpretation
1.1 Definitions:
App World: Online space for the sale of apps, software and services.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.4.
Contract: the contract between Festo and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Festo.
Festo: FESTO LIMITED (registered in England and Wales with company number 00926749).
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Online Order: the Customer’s order for the Goods, placed through Festo’s website at www.festo.co.uk.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or the Customer's written acceptance of Festo's quotation as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and Festo.
1.2 Interpretation:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless either agreed to in writing and signed on behalf of Festo or where exclusion of liability is rendered impossible by virtue of the Unfair Contract Terms Act 1977. In particular, no term or condition in any Order given by the Customer which is inconsistent with these Conditions will apply.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 Where Goods are manufactured by Festo in accordance with the Specification provided by the Customer, the Customer shall accept a quantity which may vary within a tolerance of 5% from the quantity actually ordered and in any event of any such variation Festo may adjust the price accordingly.
2.4 The Customer accepts that a Specification as to performance shall be subject to usual tolerances and rejection limits.
2.5 The Order shall only be deemed to be accepted when Festo issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 Any samples, drawings, descriptive matter, or advertising produced by Festo, and any descriptions or illustrations contained in Festo's catalogues, brochures, manuals and other like material are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. Nothing contained therein nor any representation of whatever kind shall be binding upon Festo unless expressly incorporated in the Contract, and they shall not form part of the Contract nor have any contractual force. Specifications of weight and dimensions in such materials are approximate only, unless expressed to be an essential term of the Contract.
2.8 A quotation for the Goods given by Festo shall not constitute an offer. A quotation shall only be valid for a period of 30 Days from its date of issue, or as stated in the quotation.
3. Orders
3.1 Orders may be either by direct order at the prices stated in Festo’s current price list or, where Festo has given a written quotation, on the basis of such quotation.
3.2 Prices stated in Festo’s current price list are exclusive of the cost of packing, carriage, insurance and VAT.
3.3 All prices and quotations are tendered without commitment and are subject to withdrawal or variation at any time prior to an Order being accepted by Festo.
3.4 Festo reserves the right in the case of imported goods to adjust prices in line with movements in foreign exchange rates in the event of a fluctuation of more than 5% in the relevant exchange rate between the date of the Contract and the date of delivery.
3.5 All quotations are made on the understanding that the whole of the quantity quoted will be ordered; otherwise, Festo reserves the right to revise the quotation.
3.6 In the event that configurable Goods are ordered or Goods that have been produced according to a bespoke Customer specification (customer solution projects) or special stroke lengths, Festo shall not accept any cancellation and/or return of such Goods by the Customer.
3.7 Subject to clause 3.8, in the event that Goods are ordered which have been produced according to Festo standard specification, the Customer may cancel and/or return such Goods provided always that:
(a) the Goods remain unopened in their original packaging; and
(b) Festo will issue to the Customer a handling charge of 25% of the agreed price; and
(c) Goods are returned within 30 days from date of invoice.
3.8 Goods which, after delivery to the Customer, have been in contact with materials, substances or similar which may be classified as hazardous to health must be properly decontaminated by the Customer before being returned. Such Goods may only be returned after consultation with Festo and only after submission of a completed contamination declaration (available at: https://www.festo.com/net/de_corp/SupportPortal/Files/707454/Declaration%20of%20Contamination_EN.pdf).
3.9 In the event that Goods are ordered on terms that they shall be called-off and delivered to the Customer at a future date or dates then all such Goods which shall not have been called-off by the Customer shall be despatched to the Customer on the final date for delivery stated in the Order or (in the absence of such final date for delivery) the expiry of six months following the date of the Order. If the Customer shall wish to cancel the Order in whole or in part before the said date of final delivery, Festo will assess whether the remaining Goods set aside to meet the Order can be accepted into Festo’s main stock: if so, Festo will issue to the Customer a handling charge of 35% of the agreed price; if not, Festo will deliver the Goods in accordance with this clause and the Customer will make payment in full.
3.10 No return of goods will be accepted without a Festo Returns Number being issued by Festo and being referenced on any return packages/goods.
4. Placing an Order online and its acceptance
4.1 A Customer wishing to place an Online Order should follow the onscreen prompts to place the Online Order. Each Online Order is an offer by the Customer to purchase the Goods specified in the Online Order subject to these Conditions.
4.2 Festo’s order process allows the Customer to check and amend any errors before submitting the Online Order to Festo. The Customer should check the Online Order carefully before confirming it. The Customer is responsible for ensuring that the Online Order and any Specification submitted by the Customer is complete and accurate.
4.3 After placing an Online Order, the Customer will receive an email from Festo acknowledging receipt of it and, subject only to clause 4.4, the Customer should note that this means that the Customer’s Online Order has been accepted and the Contract has come into existence. The Customer may, in addition, request if necessary, an electronic confirmation order which Festo shall provide as soon as possible following such request. This will only occur if the customer’s account is not blocked or on hold.
4.4 In respect of an Online Order for software purchased via the App World, the Contract will come into existence at the point at which the app is made available for download and use by the Customer.
4.5 If Festo is unable to supply the Customer with the Goods for any reason, Festo will inform the Customer of this by email and will not process the Customer’s order. If the Customer has already paid for the Goods, Festo will refund to the Customer the full amount including any delivery costs charged as soon as reasonably practicable.
4.6 Online Orders for Goods cannot be delivered to addresses outside the United Kingdom. An Online Order for Goods can be placed from outside the United Kingdom, but must be for delivery to an address within the United Kingdom. A Customer wishing to order Goods online for delivery outside the United Kingdom should refer to the local sales company in the relevant country.
5. Goods
5.1 The Goods are described in Festo's catalogue as modified by any applicable Specification.
5.2 The Customer shall indemnify Festo against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) (“Losses”) suffered or incurred by Festo in connection with any claim made against Festo for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Festo's use of the Specification. This clause 5.2 shall survive termination of the Contract.
5.3 Festo reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
6. Delivery and carriage charges
6.1 Festo shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows any relevant Customer and Festo reference numbers, and the type and quantity of the Goods (including the code number of the Goods, where applicable); and
(b) if Festo requires the Customer to return any packaging materials to Festo, that fact is clearly communicated to the Customer. The Customer shall make any such packaging materials available for collection at such times as Festo shall reasonably request. Returns of packaging materials shall be at Festo's expense.
6.2 Festo shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) at any time after Festo notifies the Customer that the Goods are ready.
6.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
6.4 Festo does not give any warranty as to the date or time of delivery and no mention of a date or time of delivery in any Order, quotation or acceptance is binding on Festo. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Festo shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Festo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.5 If Festo fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Festo shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Festo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.6 If the Customer fails to accept delivery of the Goods within five Business Days of Festo notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Festo's failure to comply with its obligations under the Contract, Festo reserves the right to rely on the following clauses:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which Festo notified the Customer that the Goods were ready; and
(b) Festo shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
6.7 If six Business Days after the day on which Festo notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Festo may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6.8 If Festo delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of written notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
6.9 Unless delivery in one consignment is specifically requested and recorded in the Contract, Festo may deliver the Goods by instalments as they become available, and each part delivery shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.10 Festo will not accept responsibility for loss from a package, damage, wrong delivery, discrepancies or short shipments unless a written complaint is made to Festo within five Business Days of delivery of the consignment and unless Festo is given an opportunity of inspection.
6.11 Festo will not accept responsibility for loss of a whole consignment or any separate package forming part of a consignment unless a complaint is made to Festo within 10 Business Days after the date of the invoice relating to such consignment.
7. Quality
7.1 Every effort is made to ensure sound materials and good workmanship but Festo gives no warranty, express or implied, of materials, workmanship, or fitness of Goods for any particular purpose whether such purpose be known to Festo or not.
7.2 Where materials or workmanship are proved defective to the satisfaction of Festo and the Goods were manufactured by Festo, the Goods will be repaired or replaced free of charge provided that Festo shall have been notified in writing of the defects within the following time limits:
(a) Where the Goods are used in single-shift operations, within twelve calendar months of the date of the delivery;
(b) Where the Goods are used in multi-shift operations, within six calendar months of delivery,
and in the event of any such repair or replacement being carried out, the said periods of warranty shall not be extended beyond the warranty period of the original Goods.
7.3 Festo shall not be liable for defects when the Customer fails to provide Festo with sufficient time and the opportunity to carry out repairs and/or to deliver alternative Goods. In urgent or exceptional cases, Festo may authorise the Customer to repair the goods themselves or have them repaired by a third party and to claim reimbursement of the expenses involved therein. Such authorisation will only be effective if given in writing.
7.4 The provisions of this clause 7 where applicable shall apply to any software programme supplied with Goods notwithstanding that such software shall not form part of the sale.
7.5 Festo shall assume no liability for losses or damages in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because the Customer failed to follow Festo's oral or written instructions as to the storage, commissioning, assembly, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Festo following any drawing, design or Specification supplied by the Customer;
(d) the defect arises as a result of any technical advice given by Festo other than in writing;
(e) the Customer alters, modifies or repairs such Goods without the prior written consent of Festo pursuant to clause 7.3;
(f) the defect arises because of construction work carried out by unqualified staff;
(g) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(h) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(i) the defect arises because of natural wear and tear, incorrect or careless treatment, or unsuitable operation techniques;
(j) the defect arises because of goods or components which were not manufactured by Festo;
(k) the defect arises because of radio interference, or penetration of dust or moisture to the Goods; and
(l) the defect arises as a result of factors beyond Festo’s control.
7.6 Except as provided in this clause 7, Festo shall have no liability to the Customer in respect of the Goods' failure to comply with the Contract.
7.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.8 These Conditions shall apply to any repaired or replacement Goods supplied by Festo.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) Festo receives payment in full for the Goods and any other Goods that Festo has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 8.4.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Festo's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Festo immediately if it becomes subject to any of the events listed in clause 13.1; and
(e) give Festo such information relating to the Goods as Festo may require from time to time.
8.4 Subject to clause 8.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Festo receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Festo’s agent; and
(b) title to the Goods shall pass from Festo to the Customer immediately before the time at which resale by the Customer occurs.
8.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1, then, without limiting any other right or remedy Festo may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Festo may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Price and payment
9.1 The price of the Goods shall be the price set out in the Order, once accepted or adjusted by Festo in accordance with these Conditions (including Condition 9.2) or, if no price is quoted, the price set out in Festo’s published price list in force as at the date of delivery.
9.2 Festo may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Festo's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Festo adequate or accurate information or instructions.
9.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Festo at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, or any installation or commissioning costs of the Goods (as referred to in clause 12.2) (“Additional Costs”) which shall be invoiced to the Customer on an as and when basis.
9.4 Festo will invoice the Customer for the Goods or any consignment of them on the date of despatch.
9.5 The Customer shall pay any invoice received from Festo (whether relating to the price of the Goods or Additional Costs) and in cleared funds within 30 days of date of invoice. Payment shall be made to the bank account nominated in writing by Festo. Time for payment is of the essence.
9.6 If the Customer fails to make any payment due to Festo under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.7 Festo shall be entitled to full reimbursement of all legal fees and costs incurred in the collection of moneys owing in the event that the Customer fails to make payment in accordance with clause 9.5 provided that such legal fees and costs have been reasonably incurred and are reasonable in amount.
9.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Festo may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Festo to the Customer.
9.9 If the Customer commits an act of bankruptcy or, being a company, goes into liquidation (otherwise than a voluntary liquidation for the purposes of reconstruction or amalgamation) or has a receiver appointed, Festo may (without prejudice to the terms of this clause 9) suspend deliveries and/or determine the Contract.
9.10 In the event of the determination of the Contract for any reason the Customer will be liable to pay forthwith for all work done and materials supplied and may also be liable for damages as for a wrongful repudiation.
9.11 If any Goods are returned through no fault of Festo, Festo will apply a handling charge in accordance with clause 3.7.
10. Copyright, Patents, etc.
10.1 Festo retains all copyrights, patents and the right of legal protection on registered designs in its drawing, diagrams, software, documents and equipment. Drawings, specifications, documents, etc. appended to quotations or forwarded to the Customer are for the Customer’s personal use only. They may be neither copied in whole or in part, nor made accessible to third parties without Festo’s written consent.
10.2 In respect of any Festo software and associated documentation, the Customer may purchase by separate agreement from Festo a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Customer’s lawful use of the software, for the purpose of receiving and using the software in its business. For the avoidance of doubt, the said licence shall not entitle the Customer to copy or modify the licenced software and associated documentation, save that the Customer shall be entitled to make copies for the purpose of data backup only. The Customer shall not sub-license, assign or otherwise transfer any rights granted to it in accordance with this clause 10.2.
11. Health and Safety at Work
The Customer will ensure that the Goods are properly and safely installed and used in accordance with any instructions that shall have been supplied by Festo in writing and with good trade practice and that they will be safe and without risk to health or safety when used.
12. Installation and Commissioning
12.1 These Conditions shall apply where appropriate to the installation and commissioning of any Goods and/or equipment by Festo.
12.2 The cost of installation and commissioning shall in each case be charged for in addition to the cost of any Goods supplied. Unless otherwise agreed in writing by Festo such work shall be charged at the hourly rate applicable to personnel engaged by Festo to carry out such installation and commissioning works (“Festo Personnel”). The Customer shall reimburse Festo at cost for all material and expenses. Such charges may be levied in all cases where through no fault of Festo it shall prove impossible to carry out the work on time or in accordance with the agreed standards or Specification or the work required exceeds that anticipated by the parties.
12.3 The hours engaged in such installation and commissioning work shall be recorded by Festo’s personnel and verified by the Customer at intervals of no more than one week. If the Customer shall fail to verify the records then Festo shall submit an invoice on the basis of the records as drawn.
12.4 The Customer shall ensure that adequate accommodation and facilities are available for such installation and commissioning work and that all equipment being provided by the Customer to assist in the installation and commissioning of the Goods is ready and available and in a fit state and condition. If the Customer shall fail to comply with these requirements, it shall indemnify Festo against all Losses incurred by Festo arising from such failure to comply.
13. Termination
13.1 Without limiting its other rights or remedies, Festo may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, bankruptcy, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates to such an extent that in Festo's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without limiting its other rights or remedies, Festo may suspend provision of the Goods under the Contract or any other contract between the Customer and Festo if the Customer becomes subject to any of the events listed in clause 13.1(a) to clause 13.1(d), or Festo reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Festo may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
13.4 On termination of the Contract for any reason the Customer shall immediately pay to Festo all of Festo's outstanding unpaid invoices and interest.
13.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
13.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
14. Limitation of liability
14.1 Nothing in these Conditions shall limit or exclude Festo's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) any matter in respect of which it would be unlawful for Festo to exclude or restrict liability.
14.2 Subject to clause 14.1:
(a) Festo shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Festo's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
15. Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for eight weeks, the party not affected may terminate this Contract by giving four weeks written notice to the affected party.
16. General
16.1 Assignment and other dealings.
(a) Festo may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Festo.
16.2 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 16.2(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 16.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
16.3 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
16.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.7 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.8 Data Protection. Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, (ii) the retained EU law version of General Data Protection Regulation (EU) 2016/679) (UK GDPR), and (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
16.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
16.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
16.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
17.0 Export Control clause
17.1 Any Orders or deliveries of Goods or products (including hardware and/or software and/or technology and the respective documents, irrespective of the manner in which they are made available) as well as work and services including technical support of all kinds by Festo to the Customer (collectively called “Festo Performance”) shall be subject to the precondition that such Festo Performance is not prohibited according to national or international export control regulations, including any laws or regulations relating to economic or financial ,trade, shipping or other sanctions, export controls, trade embargoes or restrictive measures from time to time imposed, administered or enforced by any relevant sanctions authority (“Sanctions”). The Customer undertakes to provide all information and documentation to Festo which is required for export and shipment. Delays due to export examinations or approval procedures relating to Sanctions render deadlines and delivery dates without legal effect. If necessary approvals are not granted or if the delivery and service are not capable of being approved within a reasonable timeframe (not exceeding 20 Business Days), the Contract shall be considered suspended with respect to the parts affected.
17.2 Festo shall be entitled to terminate any contract regarding Festo Performance without notice if such termination is necessary for Festo in order to comply with national or international legal provisions, including Sanctions. In particular, a Force Majeure Event will be treated as arising under clause 15 of this Contract in the event of an imposition of Sanctions, or breaking off of diplomatic relations with a country to which the Customer is resident or connected, or in the event that any law or any action is taken by a government or public authority, including without limitation, imposing aby Sanctions or there is a failure to obtain a necessary licence or consent relation to any Orders or deliveries.
17.3 In the event of termination pursuant to section 17.2 the Customer is excluded from raising a claim for any damage or other rights on account of the termination as a result of Sanctions and / or a Force Majeure Event.
17.4 When passing on any of the Festo Performance to third parties in Germany and abroad, the Customer must comply with the respectively applicable provisions of national and international (re-) export control law, including Sanctions.
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 of the Festo Performance that fall under the scope of the Council Regulation (EU) No 833/2014 and subsequent updating EU Council Regulations, together with UK imposed Sanctions relating to the Russian Federation. Any violation of this section 17.4 by Customer shall constitute a material breach of an essential element of this Contract and Festo shall be entitled to seek appropriate remedies, including damages, against the Customer. In addition, section 17.2 and 17.3 shall apply respectively. The Customer shall immediately inform Festo about any problems in applying this section 17.4 including any relevant activities by third parties that could frustrate the purpose of section 17.4. The Customer shall make available to Festo information concerning compliance with the obligations under section x.4 immediately upon request by Festo.
17.5 The Customer warrants to Festo that it is not contravening, and has not contravened, any Sanctions. The Customer has implanted, maintains, and enforces adequate policies, procedures, training programmes, systems and controls designed to ensure compliance with Sanctions by the Customer and its directors, officers, employees, or agents.
Rev 07/2024.