1. General
1.1 Unless otherwise specified hereinafter, capitalized terms used herein shall bear the same meanings as defined in this Agreement as signed between Festo and the Customer.
1.2 All deliveries and services from Festo, including the sale of software, are subject to the Terms and Conditions hereunder. Any conditions in any Order given by any Customer which are inconsistent with the Terms and Conditions hereunder are expressly revoked. Such conditions in any Order shall not be legally binding for Festo unless they have been agreed to in writing by Festo.
1.3 The use of Festo’s software and customised software is subject to separate software user conditions.
1.4 The placing of an Order or acceptance of goods delivered by Festo shall constitute the Customer‘s agreement to our Terms and Conditions.
1.5 In this Agreement, unless the context otherwise requires:
“Acknowledgement of Order”
means an acknowledgement issued by Festo to the Customer confirming the Order placed by the Customer;
“Affiliate” means, with respect to a subject company,
a) any other company, wherever incorporated, which is its subsidiary or holding company or is a fellow subsidiary of any such holding company or one in the equity capital of which it and/or such other company or companies taken together are directly or indirectly interested so as to exercise or control the exercise of 10% or more of the voting power at general meetings;
b) any other company in the equity capital of which the subject company or such other companies referred to in (a) above are directly or indirectly interested so as to exercise or control the exercise of 10% or more of the voting power at general meetings; and
c) any company which is a subsidiary or holding company of any of the companies referred to in (a) or (b) above or a fellow subsidiary of any such holding company;
“Developed Rights”
shall have the meaning ascribed in Clause 12.7; “Force Majeure” means any event or series of events beyond the control of any of the Parties (including but not limited to any acts of God, government restrictions, wars, industrial disputes, strikes, riots, civil commotion, fire, flood, explosion, terrorist attack, acts of piracy and lockouts) rendering performance of this Agreement by either Party impossible or impracticable; “Hong Kong” means Hong Kong Special Administrative Region of the People’s Republic of China; “Intellectual Property Rights” means and includes without limitation any trademark, patent, copyright, registered design or unregistered design right and any application for any of the foregoing, any rights in respect of confidential information and any other intellectual property right owned by Festo’s or its Affiliates; “Order” means each purchase order placed by the Customer with Festo for purchase of the Products; “Products” means the products to be supplied and / or manufactured by Festo in accordance with each Order from time to time; “Territory”
means Hong Kong.
2. Quotation and delivery
2.1 The goods and services displayed on the Festo Online Shop do not constitute an offer to conclude an agreement, but only represent an invitation to the customer to place a purchase order.
2.2 Unless a quotation carries a time limit, all quotations shall be subject to confirmation. Festo’s written order confirmations shall form the basis of the contract and determines the scope of the delivery. The foregoing also applies where the customer requests a specific tender. Orders placed by the customer are binding on the customer and shall be deemed accepted by Festo upon Festo’s issuance of an order confirmation. This shall be deemed to have been presented in due time in the case of catalogue components if presented together with the issued invoice and the delivery.
2.3 Festo reserves the right to vary the design and make changes to technical data and performance characteristics for the purpose of technical progress insofar as these deviations are in accordance with industry practice, or if the changes are not substantial and it is reasonable for the customer to accept them. The above right shall apply to the selection of materials and specifications.
2.4 Any documentation submitted with the request for tender or an order, such as drawings, specifications, material, samples, tools, models or similar and made available to Festo, shall remain the property of the customer. These are binding for the preparation and issue of the Festo quotation. Any subsequent variations relating to the initial request for tender and the Festo quotation must be specified in writing when ordering.
2.5 Any documentation added by Festo to a quotation in a manner similar to that mentioned above shall remain the property of Festo. The customer undertakes not to use this documentation for the purpose of any other contracts or to reproduce or make it available to third parties.
2.6 Any apparent mistakes, printing, computational, spelling or calculation errors shall not be binding on Festo and shall not give the customer the right to claim for damages.
2.7 Insofar as Festo have documentation (e.g. manuals, etc.) for particular products, this will be available to customers as a free download from the Festo website. If requested by the customers, Festo may provide a printed version of such documentation at an additional cost.
3. Prices and payment
3.1 Prices for goods and service (e.g. repair, assembly, etc.) shall be set forth in Festo’s order confirmation, which are net and exclusive of tax. Applicable VAT shall be included in the invoice.
3.2 If the customer requests urgent production, urgent delivery, special packaging, or if other circumstances arise that result in a change to the basis of the original price, Festo reserves the right to adjust the price accordingly.
3.3 The customer is obligated to make full payment within the agreed period. The withholding of payments or offsetting of potential counterclaims is not permissible other than in the case of recognised or legally determined counterclaims.
3.4 In the event of overdue payment by the customer, all outstanding amounts shall become immediately due and payable, and the customer shall pay Festo liquidated damages for delayed payment. If the payment remains overdue for more than 30 days, Festo shall further have the right to cancel the credit period granted to the customer. All debt shall be fully paid up before subsequent orders. Festo shall also be entitled to suspend all orders or deliveries for the customer and its affiliates until full payment is made.
4. Delivery period
4.1 The date specified in Festo’s order confirmation is binding only if all the technical and commercial details have been clarified by that time. The proper performance by the customer of its obligations or guarantees as agreed is the prerequisite for Festo's compliance with delivery times. The customer undertakes to provide the materials essential for the order to be executed on time. The delivery date is deemed to have been adhered to if the object of delivery has left the Festo works by the said date or if the customer has been advised of its readiness for shipment.
4.2 Festo's performance of its obligations on time is upon its ability to obtain timely and adequate supplies. If the preconditions are not met, Festo shall have the right to terminate the contract or order in whole or in part without being liable for any breach of contract, except where the supply disruption is caused by Festo itself.
4.3 Partial and early deliveries by Festo are permissible.
4.4 If the customer requests delivery postponement or fails to take delivery upon agreed delivery date, Festo shall be entitled to deliver unilaterally or to deliver to the customer after a reasonable period and to charge the customer storage costs; or, after a reasonable period to dispose otherwise the delivery item. Festo shall also be entitled to determine whether the corresponding payment shall become immediately due and payable.
5. Acceptance
5.1 Customer shall inspect the type, quantity, package, surface quality, specification etc. within 2 working days after the goods arrive the place agreed by both parties according to the provisions of the contract and order, and accept the goods. If customer raises no objections or fails to accept the goods within the aforementioned period or to sign for acceptance within the specified time, it shall be deemed that the goods have been accepted.
5.2 Regarding the sale of software, the customer shall confirm within 3 days that the software or service meets the usage requirements and accept it after the completion of the software project deployment and integration. If customer raises no objections within the specified time, it shall be deemed that the software or service has been accepted.
6. Passage of risk and retention of title
6.1 Upon delivery, the risk of loss or damage to the goods shall pass to the customer. In case the customer refuses or fails to take delivery without justifiable reason, all risks related to such goods shall transfer to the customer upon Festo's issuance of the goods readiness notice.
6.2 The goods supplied shall remain the property of Festo until all debts owed by the customer are settled in full including any balances existing from the business relationship with the customer irrespective of statutory source. The enforcement of our right to retain title should not be regarded as a withdrawal from the contract. On the contrary, it ensures our rights from the contract of sale in addition to Festo’s entitlement to the return of Festo’s property, in particular to the reimbursement of damages and lost profits.
6.3 Notwithstanding the provisions of the preceding paragraph, the ownership of the changed and returned goods shall automatically be transferred to Festo from the customer regardless of the cause.
6.4 All relevant intellectual property rights related to the goods shall still be owned by the licensor after the ownership of the goods has been transferred to the customer.
7. Use of software
7.1 In return for remuneration, the customer shall be granted a non-exclusive, non-transferrable and time-limited right to use Festo’s all types of software and any relevant documentation. The customer is licensed to use the aforementioned software solely on the hardware products specific in Festo's order confirmation or other separate documents, while any installation on or use for other hardware product outside the licensed scope is not permitted. The term "use" as referred to herein includes such acts as loading, displaying, running, transferring and storing the software for the purpose of executing the software and processing data. Festo shall retain the copyrights and all other intellectual property rights in the aforementioned software. The customer may not duplicate any part of the software for purposes other than data backup. Copyright notices in the software shall not be removed or altered.
7.2 The customer is authorised to make a backup copy of the software and the corresponding documentation on separate data storage devices, which shall be labelled with the original labelling from Festo (including the copyright mark). Use of the backup copy is only permitted in the case of deterioration or destruction of the copy originally acquired by the customer and only for the specific hardware product to which the software is assigned. The customer is also subject to the above provisions with regard to the use of the backup copy. In other respects, the customer shall not be entitled, without Festo's consent, to make further copies of the software and/or documentation or parts thereof, to install them on and/or use them for other hardware outside the scope of the license.
7.3 Without the prior written consent of Festo, the customer shall not be entitled to edit, change or otherwise modify the software, use it in conjunction with devices other than the specific hardware product, reverse engineer (decompile) it in another form of representation, remove, circumvent or modify any copy protection mechanisms, program elements serving digital rights management (DRM), security codes or features serving to identify the software or to remove any information in the software and the associated documentation about the manufacturer's properties, copyrights or other property rights of Festo without the prior written consent of Festo.
7.4 Any transfer of the software to a third party requires Festo’s explicit prior written consent and the relevant third party must agree to comply with these Terms and Conditions. In any case the customer shall be jointly and severally liable to Festo for the losses caused by such third party's breach.
7.5 In the event of a violation of Section 7 of these Terms and Conditions, the purchaser shall pay a contractual penalty amounting to ten times the order value. This contractual penalty shall not be set off against any potential claims for compensation. The software and associated documentation must be returned immediately on request.
7.6 The conditions described above do not apply to exclusive customer-specific software developed on the basis of specifications provided by the customer. This software is developed and customised by Festo as part of a contractually produced complete control system making use of modular software modules (standard software modules) from Festo suitable for a wide range of applications and adapted to the contractual performance requirements.
7.7 Upon full payment by the customer for the customised software, Festo shall transfer the right to use the software as agreed upon, but the customer shall have no rights to the individual basic standard software modules forming the basis of the customised software. Unless otherwise agreed, Festo retains the right to develop and offer similar software solutions for other customers. Festo retains a basic right to use the customised software for internal purposes.
7.8 For customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the Festo’s order confirmation or acceptance letter, documentation or the jointly defined work/procedure descriptions.
7.9 For customised software, the following provisions shall also apply:
7.9.1 Development process
a) Customer shall provide a detailed description of the technical parameters and requirements as a basis for software development.
b) Festo will develop a detailed project plan including a development schedule, implementation plan and resource allocation upon receipt of the customer's requirements document.
c) During development, if the customer requests changes, the customer should inform Festo 7 days in advance, and Festo will issue a statement of change in requirements to the customer.
7.9.2 Change request
a) If the customer needs to make change to the original requirements during the software development, the customer shall submit a written change request to Festo.
b) The change request shall detail what changes are required, the rationale for the changes, and the potential impact on the project schedule and cost.
c) Any additional requirement for software functionality by the customer shall not be treated as a change, but shall initiate a new software development process.
7.9.3 Change assessment
a) Upon receiving a change request from customer, Festo shall assess it within a reasonable period of time and provide feedback to customer on the feasibility, impact and any additional costs that may be incurred.
b) The assessment results should be notified to the customer in writing and include an analysis of the impact on the project schedule.
7.9.4 Confirmation of change
a) If the customer agrees to the change after receiving the assessment results, a written confirmation letter of change must be signed.
b) The confirmation letter of change shall identify the specific content of the change, the adjusted development schedule, and the change in cost.
c) Festo will only start implementing the change after the customer has signed the confirmation letter of change.
7.9.5 Impact of change on project schedule
a) Change in requirements that may cause delay in the project schedule shall not be considered a breach of contract by Festo. Festo shall notify the customer in a timely manner about the impact of the change on the delivery time.
b) After the change has been confirmed, both parties shall jointly agree to adjust the project schedule to ensure the smooth progress of the project.
7.9.6 Conditions of acceptance
a) Customer shall test the initial version of the software upon receipt and provide feedback to Festo on the test results within the specified acceptance period (within 3 days of deployment).
b) Acceptance criteria shall include functional integrity, performance indicators, user interface applicability, and other technical requirements mutually recognized by both parties.
c) If the customer raises no objections within the specified acceptance period, it shall be deemed to have accepted the software.
d) If any non-conformity with prior agreement of the parties is identified, Festo shall fix it within a reasonable time and resubmit the deliverable to the customer for acceptance.
7.9.7 Other provisions
a) The customer may not transfer the source code or related documentation of customised software to a third party, except with the written consent of Festo.
b) Festo retains all intellectual property rights in the customised software. The customer is granted a right to use it only.
c) If major modifications or upgrades to the software are required, a new contract or supplemental agreement shall be signed by both parties.
7.10 In the event of error occurring, the customer shall be obliged to provide Festo with all necessary information 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 report 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 reserves the right to charge the customer based on Festo's applicable hourly rates.
7.11 Festo shall not be liable for any error 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 program documentation had been consulted carefully; this also applies to non-existent or insufficient backup measures;
b) which have been casued by a virus or other external influences beyond Festo’s responsibility, such as fire, accidents, power failure, etc.;
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 programs of other manufacturers which the customer uses in connection with the software;
d) which are based on the fact that the software was changed by the customer or a third party without authorization;
e) which are based on the fact that the software was obtained or upgraded by the customer or a third party through non-official Festo channels.
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 Festo’s software.
7.12 Both parties confirm that payment for the software and services shall strictly adhere to the fee categories and payment processes set forth in these Terms and Conditions, and the sales contract. If the customer wishes to have on-site deployment and training services, the customer is required to separately pay the corresponding deployment service fees in addition to the paid license fees. The specific amount and payment schedule for such deployment service fees shall be determined by the parties through separate negotiations and confirmed in a written agreement. Festo reserves the right to refuse to provide on-site deployment and training services until a written agreement has been successfully signed.
7.13 Software updates and upgrades
a) Updates and upgrades based on license renewals: There are different scenarios for software updates and upgrades. In the case of license renewal, the customer is entitled to receive the corresponding standard software update service without additional charge. This update service covers general iterations of the software such as routine functional optimizations, security enhancement, etc. The specific updates shall be subject to the official instructions or notifications issued by Festo.
b) Updates and upgrades of customised software:For updates and upgrades to customised software based on customer needs, the customer is required to pay a separate fee based on the actual development hours. When the customer puts forward the modification, optimization and upgrading requirements for the customised content, Festo will assess the feasibility, development time, etc., and issue the cost breakdown list to the customer after the assessment is completed. Festo will start the relevant updating and upgrading work only after both parties reach a consensus and signed a written agreement.
8. Returned goods
8.1 No returns for goods will be allowed without Festo's prior written acceptance. Credit will be based upon prices of products in effect at time of return or time of invoicing. In the event of return, Festo reserves the right to impose a minimum charge on returned goods which is subject to shipping, handling, re-inspection and any additional expense incurred in restoring goods to saleable condition, as determined by Festo’s inspection. Unauthorized returns are at the customer's own risk and expense.
8.2 With regard to the sale of software, unless otherwise agreed, no cancellation or refund requests will be accepted for software and service ordered or paid by the customer. Customer shall use the software and services within the specified usage and service period. Festo shall not provide any substitutes or refunds for any unused software.
9. Warranty claims
Festo warrants its products to be free from defects in materials and workmanship, for a period of 12 months from the date of delivery to the customer. No further warranty with regard to (objectively) expected products (e.g. durability, functionality, compatibility) or fitness for a particular purpose, shall be granted unless otherwise agreed. The customer is responsible for checking whether the purchased products are suitable for the intended use. Subject to the provisions in Section14 herein and excluding any further claims, Festo shall be liable for defects of quality and legality of title and warrants as follows:
9.1 Defects of quality:
a) All parts found to be defective as a result of circumstances prior to the transfer of risk shall, at the discretion of Festo, either be repaired or replaced by delivery of a faultless part. Excluded from this warranty shall be parts subject to wear.
b) Festo software is designed to run on hardware products specified by Festo. Warranty claims shall be satisfied by means of a replacement. Unless otherwise agreed in writing, Festo shall not warrant that the software and its data structure are free of defects.
c) In case of customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the order acknowledgement, documentation or the work/procedure descriptions worked out together between Festo and the customer. Festo shall not warrant that such programs are free of defects in relation to the use of said programs in all applications intended by the customer, in particular not such applications of which Festo was not aware or did not test at the time of development/acceptance.
d) The defects shall be notified immediately in writing, however, at the latest within 8 days after receipt of goods.
e) If the defect complaint is justified, Festo shall bear of the immediate costs – insofar as the complaint proves to be founded – the cost of the replacement part, shipping thereof as well as reasonable costs related to uninstallation and reinstallation, insofar as such procedure does not result in unreasonable demands made on Festo.
f) The customer shall allow Festo time and opportunity to effect the repair or replacement delivery, otherwise Festo shall not be held liable for the ensuing consequences. The customer, with Festo’s prior consent, shall have the right to rectify defects itself or have them rectified by a third party in such urgent cases where there is a danger to operational safety and to prevent extensive damage, and to claim reimbursement of necessary costs from Festo. Should the customer or a third party carry out unqualified repairs, Festo shall not be held liable for any consequences thereof.
g) Other claims shall be determined as stipulated in Section14 herein.
h) In addition, Festo shall not be held liable for any damage on foot of the following grounds: unsuitable or improper use or storage, faulty installation by the customer or a third party, unauthorised repair attempts and modifications, natural wear, erroneous or negligent handling, chemical effects and electrical effects etc. outside our power, as well as in case of non-intended use and non-compliance with our information and details out of our documentation (e.g. user manuals, catalogue sheets), irrespective of the method of such information, in particular in relation to the conditions of use of our products (e.g. lubrication instructions, quality of pressurised air/of other operational requirements, environmental conditions). In addition, the warranty shall be voided if the customer or third parties modify the control/software without Festo’s prior consent and without any other justification, even if the error occurs in an unchanged component.
9.2 Defects of title:
a) If the use of the delivery item infringes other’s industrial property rights or copyrights, Festo shall, at its cost, obtain the right to principally enable the customer to continue to use the delivery item or to modify the delivery item in a manner acceptable to the customer so that the copyright infringement no longer exists.
b) Should this not be achievable in an economically reasonable manner or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Given the stipulated conditions, Festo also shall have the right to withdraw from the contract.
c) In addition, Festo shall indemnify the customer in relation to any non-disputed claim or legally asserted claim raised by the relevant copyright owners.
d) Subject to Section 14 herein, the above stated obligations of Festo shall be final in relation to cases of infringement of property rights or copyrights. The aforesaid obligations shall be applicable only if the customer advises any property or copyright infringement claims raised immediately to Festo, the customer reasonably supports Festo in the defence of such claims or enables Festo to carry out modifications, Festo has at its disposal all defence actions including out-of-court settlements, the defect of title is not based on an instruction issued by the customer and the infringement is not caused by non-authorised modifications of the delivery item by the customer or non-authorised use of the delivery item by the customer.
10. Resell
Unless Festo has given a prior consent in writing, the supplied goods can only be used to manufacture customer’s own products, and the customer is not allowed to resell the supplied goods, directly or indirectly, to any third party, including resell the component(s) removed from the goods. If customer violates this term or Festo has reasonable grounds for doubt of customer’s violating this term, Festo has the right to refuse to accept customer’s orders and cancel all or any part of the order placed by the customer and its affiliates without liability, Under such circumstances, customer shall compensate for all losses incurred to Festo. The customer shall remain liable for make payment for goods delivered unless expressly permitted by Festo in writing.
11. Import & export control
11.1The parties agree that the goods shall be delivered subject to all applicable import and export controls or restrictions imposed on technology and products by any country or organisation or nation, including China, United Nations, European Union and the United States, which are enforceable in the jurisdiction of Festo. The cusotmer acknowledges that the goods and all related technical information, documents and materials may not be imported or exported, re-exported, transhipped, traded, diverted or transferred, directly or indirectly, contrary to such controls or restrictions.
11.2On Festo’s request, the customer shall furnish Festo with all relevant certificates relating to import and export control laws, regulations and restrictions, such as, but not limited to, end-user certificates, in form and content specified by Festo.
12. Data and personal information protection
Both Festo and the customer shall comply with all applicable laws, regulations, and national standards concerning cybersecurity, data security, personal information, and privacy protection that are in effect from time to time and apply to these Terms and Conditions. If the customer provides any data to Festo, particularly personal information data, the customer warrants that it has obtained all necessary consents and authorizations prior to providing such data to Festo. Festo confirms that it will only use or process the provided data for purposes reasonably required under these Terms and Conditions. The way Festo collects, processes, and stores data and personal information provided by the customer is detailed in the "Festo Data Protection Statement" available on Festo website.
13. Intellectual Property Rights
13.1 The Customer shall indemnify Festo against any infringement of Festo’s and its Affiliates’ Intellectual Property Rights by the Customer or any agents and Affiliates of the Customer.
13.2 The Customer shall not use, authorize or permit the use of the Intellectual Property Rights without the express prior written consent of Festo.
13.3 The Customer shall not, without prior written approval of Festo: -
a) make any modifications to the Products;
b) alter, remove or tamper with any trademarks, numbers, or other means of identification used on or in relation to the Products;
c) use any of the Intellectual Property Rights in any way which might prejudice their distinctiveness or validity or the goodwill of Festo therein;
d) use in relation to the Products any trademarks other than the trademarks of Festo or its Affiliates; or
(e) use in the Territory any trademarks or trade names so resembling any of the trademarks of Festo or its Affiliates as to be likely to cause confusion or deception.
13.4 Except as provided in Clause 12.1, the Customer shall have no rights in respect of any Intellectual Property Rights used by Festo in relation to the Products or of the goodwill associated therewith, and the Customer hereby acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested in Festo and/or its Affiliates.
13.5 The Customer shall at the request of Festo execute such registered user agreements or licences in respect of the use of the Intellectual Property Rights in the Territory and/or other territory(ies) on the terms as Festo may require.
13.6 The Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
13.7 The Customer agrees and acknowledges that any copyrights, patent rights, brand rights, trademarks, intellectual property rights or database invented, created or developed by the Customer in relation to the Products under this Agreement (collectively “Developed Rights”) shall belong to and inure to the benefit of Festo. The Customer undertakes, at the expense of Festo to execute all agreements, contracts and such necessary documents for the effective transfer and assignment of all the Developed Rights to Festo.
14. Impossibility of performance, default
14.1 The customer may withdraw from the agreement should performance by Festo become impossible before the risk is passed. The customer shall also be entitled to withdraw from the agreement should, in the case of an order for similar goods, execution of part of the delivery become impossible and the customer has a legitimate interest in refusal of a partial delivery. Should this not be the case, the customer may reduce the consideration accordingly.
14.2 In the event of a delay of performance attributable solely to Festo, where the customer guarantees Festo a reasonable extension, the customer shall be entitled to withdraw from the agreement, within the scope of the statutory provisions, should the extension not be complied with. Should there be a delay of acceptance through the fault of the customer, the customer shall remain obliged to render a return service.
14.3 Should the customer incur damage caused by a delay for which Festo is responsible, the customer shall be entitled to claim liquidated damages for default. This liquidated damages shall amount to, for each full week of the delay and to the exclusion of further claims, 0.5 % and aggregately no more than 3 % of the value of the delayed part of the delivery.
14.4 Further claims as a result of late delivery shall be expressly excluded.
14.5 The customer hereby agrees to fully compensate Festo and hold Festo harmless from any losses, damages, costs, expenses, liabilities or claims arising out of customer’s violation of these Terms and Conditions.
15. Liability
15.1 The customer shall not modify or remove existing warnings about dangers arising from improper use of the products. If the customer modifies the product or uses the product for purposes other than those for which it was intended, this shall be at the customer's own risk.
15.2 In the event of a breach of the obligation according to Section 14.1 sentence 1 and if the customer modifies the product or uses the product for purposes other than those for which it was intended according to Section 14.1 sentence 2, the customer shall indemnify Festo internally against all resulting claims by third parties, irrespective of the legal grounds, unless the customer has acted without fault.
15.3 Festo is prompted to recall or warn of a product due to a product defect in the products, or if Festo deems a product recall to be indicated for safety reasons, the customer shall cooperate to the best of his or her ability in the measures which Festo considers necessary and expedient and which support Festo in this, in particular in determining the necessary customer data.
15.4 The customer shall immediately inform Festo in writing of any risks that become known to him or her when using the products and of possible product defects.
15.5 In any event, and whatever the cause of action, Festo’s maximum total liability to the customer pursuant to and in connection with this Agreement – including the obligation to pay penalties, liquidated damages and regardless of cause, degree of fault, negligence, breach of contract or otherwise – shall be limited to one third (1/3) of the individual order value in respect of which the cause of Festo’s liability has arisen.
15.6 In no event shall any pursuant to this Agreement Festo be liable to any party for any indirect or other consequential damages including but not limited to, any loss of revenue, loss of profits, loss of anticipated benefits and savings, loss of production or operation interruption or shutdowns, loss of contracts or business opportunities, loss of goodwill, loss or corruption of data, losses arising from the use of software-generated data, loss of investment and opportunity cost, claims of third parties and all associated and incidental costs and expenses etc.
15.7 Festo shall not be liable for defects other than to the delivery item, for whatever legal reasons, only in case of intent, gross negligence of bodies or executives, culpable violation of life, body, health, defects whose presence was not disclosed by Festo or its managerial personnels maliciously or their absence guaranteed by Festo, as well as in case of delivery item defects to the extent as liability is provided under the product liability law for personal injury and property damage in relation to privately used items.
15.8 Any further claims shall be expressly excluded.
16. Confidentiality
The customer undertakes to treat all information, know-how and other industrial secrets in connection with the execution of the respective order in strict confidence and not to pass on or make available any information, documents, documentation, drawings, sketches or other papers to third parties without the express permission of Festo. Festo shall also treat all customer documentation in confidence.
17. Force majeure
17.1 Festo shall not be liable for any partial or total non-performance of its obligations if such non-performance is due in whole or in part to circumstances which could not have been foreseen at the time of the conclusion of the purchase contract and which cannot be remedied by Festo by reasonable means ("Force Majeure"). In any case, the following events shall be considered as Force Majeure: strikes, riots and civil commotions, war (declared or undeclared), piracy, terrorist threats, acts of sabotage, fires, floods, earthquakes and natural disasters, epidemics and pandemics, acts of government or if the above circumstances affect subcontractors of the Festo.
17.2 In the event of a Force Majeure Event, the obligations of Festo under the relevant purchase contract shall be suspended for as long as the effect of the Force Majeure event lasts plus a reasonable restart period thereafter. If the Force Majeure event last for a period longer than 90 days, Festo is entitled to withdraw from the contract.
18. Governing law and dispute settlement
The validity, interpretation, performance and dispute resolution of these Terms and Conditions shall be governed by the laws of Hong Kong. Any dispute arising from or in connection with these Terms and Conditions shall first be settled through friendly negotiations between both parties. If such negotiations fail to settle the dispute, either party shall have the right to submit the dispute to the jurisdiction of the courts of Hong Kong.
19. Compliance
The customer warrants that he or she has been informed of the Festo Code of Conduct for Business Partners, which can be downloaded from Festo website, and has instructed his or her managers and employees to comply with it.To secure this good conduct the customer shall undertake any necessary step to avoid any illegal actions, especially to avoid illegal actions which would adversely affect Festo.Therefore within his or her company and/or group the customer shall take any necessary actions needed to monitor compliance with the Festo Code of Conduct for Business Partners by his or her managers and employees, especially such actions which are essential to avoid corruption or any other criminal acts.