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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 All quotations unless limited in time are subject to confirmation; our written order confirmations shall form the basis of the contract and the definitive factor for the scope of the delivery. This also applies if the Customer has requested a specific tender. Orders given by the Customer are binding for the Customer and shall be deemed to have been accepted upon presentation of the order confirmation by Festo. 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. In the case of quotations with a time limit and a time stated for acceptance, the quotation shall not be binding, if an order confirmation is not submitted in time. Festo reserves the right to vary the design and make changes to technical data and performance characteristics insofar as these are for the purpose of technical progress. Festo will announce any such changes, and any product discontinuations, with an appropriate period of notice in its pneumatics catalogue on the Festo website (www.festo.com).
2.2 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 by the Customer, shall remain the property of the Customer. The details and terms provided in such documentations 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.
2.3 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 any other purpose or to reproduce or make it available to third parties.
2.4 Any apparent mistakes, printing, computational, spelling or calculation errors shall not be binding for Festo and do not give the Customer the right to claim for damages.
2.5 Insofar as Festo has documentation (e.g. manuals) for particular products, this will be available to Customers as a free-of-charge download from the Festo website (www.festo.com). Printed versions of this documentation can be provided for Customers to separate order and for an additional charge.
3. Prices and payment
3.1 Prices apply based on the Acknowledgement of Order issued by Festo. Tax (if applicable) is not included.
3.2 The despatch, delivery and packaging costs shall be borne by the Customer. Festo reserves the right to implement price changes if the basis for our calculations has been altered.
3.3 The invoice amount consists of the contract price only. The invoice issued by Festo to the Customer shall contain the relevant particulars, including without limitation, the relevant Orders, descriptions of the Products, price and Product item number.
3.4 If the period of payment has been exceeded, Festo reserves the right to claim the damages, losses or surcharges caused by delayed performance.
3.5 Contract price does not include assembly and repair costs and Product information costs.
3.6 In the case of Orders with a net goods value of less than HKD 500, Festo will impose a small-order surcharge at HKD 90.This does not apply to Orders placed via Festo’s online shops.
3.7 Subject to the terms of this Agreement and the Terms and Conditions hereunder, the withholding of payments or offsetting of potential counterclaims is not permissible other than in the case of recognised or legally determined counterclaims.
4. Delivery period
4.1 The date specified in the Acknowledgement of Order is binding only if all the technical and commercial details have been clarified and confirmed by that time. 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 Partial and early deliveries by Festo are permissible.
4.3 In case of Force Majeure events, the delivery will be delayed to different extents, depending on the nature and gravity/impact of the Force Majeure events. The Force Majeure events includes but not limited to actions as part of industrial disputes, in particular strikes and lockouts. It also applies in the event of unforeseen difficulties or circumstances arising with subcontractors. Moreover, Festo will not be responsible for any loss or damages resulting from the above described circumstances under this clause, if these occur during an already existing delay.
4.4 If delivery of the Products is delayed for more than one months at the request of the Customer or caused by the Customer, Festo shall have the absolute discretion to dispose of or otherwise sell the delivery said Products to third parties or to supply the Customer to a correspondingly extended time limit and to charge the Customer storage costs.
5. Passage of risk
5.1 All deliveries shall be effected at the risk of the Customer. The risk in the Products shall pass to the Customer upon delivery when the Products are loaded onto the vehicle/vessel for transporation or upon communication of readiness for transporation, whichever is earlier, whether the vehicle/vessel is owned by Festo or not. Partial and early deliveries shall also be at the risk of the Customer upon despatch or upon communication of readiness for shipment, whichever is earlier. This Clause 5.1 also applies if the consignment is transported by Festo and even if Festo uses its own vehicles and effects the installation.
5.2 At the request of the Customer, Festo shall arrange at the Customer‘s expense insurance of the consignment against theft, breakage, transport, fire and water damage and any other insurable risks.
6. Retention of ownership
6.1 Even if the Products have been delivered to the Customer, all Products shall remain the sole and absolute property of Festo until the relevant purchase price thereof has been fully paid by the Customer to Festo.
6.2 The enforcement of our right to retain ownership should not be regarded as a withdrawal from this Agreement. On the contrary, it ensures our rights under this Agreement including but not limited to our entitlement to the return of our property, in particular to the reimbursement of damages and lost profits.
6.3 The Customer does not have the right to any other dispositions regarding the Products which have not been fully paid, in particular the Customer does not have the right to pledge, charge, transfer by way of security or in any way dispose the Products. In the event of pledges, charges, transfer by way of security, attachments or any other dispositions by third parties, the Customer undertakes to draw attention to such third parties the fact that the Products are Festo’s property and to inform Festo of the situation immediately.
6.4 In the event of the Customer not conforming to the relevant contract or relevant Order or fails to perform its duties and obligations hereunder, in particular in the case of a delay in any payment, the total balance outstanding shall become payable immediately (whether the outstanding amount is immediately payable or not). In such cases, Festo has the right to recover possession of the goods following a demand for payment and to collect these from the Customer‘s premises. The Customer hereby expressly grants Festo the right to enter the Customer’s premises for the aforesaid purpose. In such an event, the Customer shall not have any right to ownership to the Products.
7. Reselling the Products
Unless Festo has given a prior consent in writing, the Customer is not allowed to resell the Products supplied to the Customer including any part thereof, directly or indirectly, to any other party before its payment in full for the Products to Festo. The Products supplied to the Customer can only be used to manufacture the Customer’s own products.
8. Use of software
8.1 Unless otherwise agreed for a specific Product, the Customer shall, in return for a fee in addition to the prices set out in Clause 3, obtain for any type of Festo software including associated documentation a non-exclusive, non-transferable and time-unlimited right of use to a certain hardware Product respectively one which may be determined in individual cases. This software may be used on one hardware Product or in some cases a specially agreed hardware Product. Festo shall remain the owner of all Intellectual Property Rights of the aforesaid software. No part of this software must be duplicated other than for the purpose of data backup. Copyright notices must not be removed.
8.2 Festo will supply installation and commissioning instructions containing relevant safety instructions for its software in printed form. All other documentation will be supplied only in digital form with on-line help. When new software releases are supplied, these will also be sent in digital form.
8.3 The transfer of software to third parties requires the permission of Festo. If the software is provided for the purpose of resale, the third party must agree to these conditions under Clause 8 and set out in Festo’s End User License Agreement. Modifications are not permissible.
8.4 Without prejudice to Clause 12, the Customer shall indemnify Festo for any damages suffered by Festo as a result of any violation of these conditions under Clause 8.
8.5 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 softward modules) from Festo, suitable for a wide range of applications and adapted to the contractual performance requirements.
8.6 Clause 8.2 of these Terms and Conditions does not apply to customised training software.
8.7 Upon full payment of the purchase price of the customised application program, Festo shall transfer the exclusive, spatially unlimited and perpetual rights of utilisation to the Customer, without the Customer having any lawful entitlement to the individual basic standard software modules forming the basis of the customised version. Festo has the right, irrespective of these conditions under Clause 8.3, to create and offer similar software solutions customised for applications required by other Customers. Festo shall retain basic utilisation rights for internal purposes.
9. Returned Goods
No returns of goods will be allowed without Festo's prior written acceptance. Only unused active items, non-obsolete in current demand will be considered by Festo for return of goods. Only request raised within 30 calendar days from relevant date of delivery of the relevant Product(s) will be considered by Festo for return. Products, installations, systems that were designed and developed according to Customer specifications are not returnable for goods. The amount of returned goods will be based upon prices of Products in effect at time of return or time of invoicing at the discretion of Festo. However, Festo reserves the right to impose a minimum value on the goods intended to be returned, which is subject to handling, re-inspection and any additional expense incurred in restoring goods to saleable condition, as determined by our inspection and including all shipping charges incurred in the return.
10.1 Festo warrants its Products to be free from defects in materials and workmanship, for a period of 12 months from date of delivery/shipment to the Customer. Subject to the provisions in Clause 11 of the Terms and Conditions herein and excluding any further claims, Festo shall be liable to the Customer for defects of quality and legality of title and warrants as follows:
Defects of quality: All parts found to be defective as a result of circumstances prior to the transfer of risk shall, at the discretion of Festo, either be repaired or replaced by delivery of a faultless part. Parts subject to wear and tear are excluded from this warranty.
10.2 Festo shall guarantee that Festo’s software has been duplicated properly. Festo’s 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 does not warrant that the software and its data structure are free of defects. In case of customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the Acknowledgment of Order, 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.
10.3 The defects shall be notified immediately in writing, however, at the latest within  days after receipt of goods.
10.4 If the defect complaint is justified, Festo shall bear the immediate costs – insofar as the complaint proves to be founded – the cost of the replacement part, shipping thereof as well as reasonable costs related to uninstallation and reinstallation, insofar as such procedure does not result in unreasonable demands made on Festo.
10.5 The Customer should allow Festo reasonable 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 written 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. This shall also apply in the cases where Festo is causing undue delay in remedying the defect. Should the Customer or a third party carry out unqualified repairs or repairs without Festo’s prior written consent, Festo shall not be held liable for any consequences thereof.
10.6 Other claims shall be determined as stipulated in Clause 11 of the Terms and Conditions herein.
10.7 In addition, Festo shall not be held liable for any damage caused by the following reasons: unsuitable or improper use or storage, faulty installation by the Customer or a third party, unauthorised repair attempts and modifications, natural wear and tear, erroneous or negligent handling, chemical effects and electrical effects etc. outside of Festo’s power and control, as well as in case of non-intended use and non-compliance with Festo’s information and details out of Festo’s documentation (e.g. user manuals, catalogue sheets), irrespective of the method of such information, in particular in relation to the conditions of use of Festo’s Products (e.g. lubrication instructions, quality of pressurised air/of other operational requirements, environmental conditions).
10.8 In addition, the warranty shall be voided if the Customer or third parties modify or alter the structure or composition of the control/software without Festo’s prior consent and without any other justification (Festo’s undue delay in remedying defects), even if the error occurs in an unchanged component.
10.9 Defects of title: If the use of the delivery item infringes domestic industrial property rights or copyrights, Festo shall, at its cost, obtain the right to principally enable the Customer to continue to use the delivery item or to modify the delivery item in a manner acceptable to the Customer so that the copyright infringement no longer exists. Should this not be achievable in an economically reasonable manner or within a reasonable period of time, the Customer shall be entitled to withdraw from the contract. Given the stipulated conditions, Festo also shall have the right to withdraw from the contract.
In addition, Festo shall indemnify the Customer in relation to any non-disputed claim or legally asserted claim raised by the relevant copyright owners.
Subject to the provisions of Clause 13 of the Terms and Conditions herein, the above stated obligations of Festo shall be final in relation to cases of infringement of property rights or copyrights. The aforesaid obligations shall be applicable only if the Customer 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.
11. Impossibility of performance, default
The Customer may withdraw from this Agreement should performance by Festo become impossible before the risk is passed. The Customer shall also be entitled to withdraw from this 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.
In the event of a delay of performance by Festo as defined by Clause 4, where the Customer guarantees us a reasonable extension, the Customer shall be entitled to withdraw from this 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.
Should the Customer incur damage caused by a delay for which we are 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.
12. Intellectual Property Rights
12.1 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.
12.2 The Customer shall not use, authorize or permit the use of the Intellectual Property Rights without the express prior written consent of Festo.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 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.
13.1 In any event, whatever the cause of action and to the fullest extent permitted by the Laws of Hong Kong, Festo’s maximum total liability to the Customer pursuant to and in connection with this Agreement – including the obligation to pay damages, liquidated damages and regardless of cause, degree of fault, negligence, breach of contract or otherwise – shall be limited to 1/3 of the contract price of the individual Order in respect of which the cause of Festo’s liability has arisen.
13.2 In no event shall 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 business interruption, loss of contracts or business opportunities, loss of goodwill, loss or corruption of data, loss of investment and opportunity cost, claims of third parties and all associated and incidental costs and expenses etc.
13.3 Festo shall 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 maliciously or their absence guaranteed by Festo. In case of delivery items, Festo shall only be liable for 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.
14. Statute of limitation
The statute of limitation for any and all claims, no matter what legal reason, shall be consistent with the relevant provisions of the law of Hong Kong.
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’s documentation in confidence.
16. Force Majeure
16.1 If any Party is affected by Force Majeure, it shall forthwith notify the other Party in writing of the nature and extent thereof.
16.2 None of the Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other Party, by reason of any delay in performance or non-performance of any of its obligation hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly.
16.3 If the Force Majeure in question prevails for a continuous period in excess of 3 months, the Parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable in the circumstances.
17. Place of jurisdiction
In any event of any dispute or controversy arising from the terms hereunder, the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong.
18. Applicable law
This Agreement shall be construed and interpreted in all respects in accordance with the laws of Hong Kong.
The Customer warrants that he or she has been informed of the Festo Code of Conduct for Business Partners, which can be downloaded from https://www.festo.com/group/de/repo/assets/pdf/corporate/Festo-Code-of-Conduct-Business-Partners_EN.pdf, 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.