Delivery, payment and software utilisation conditions of PT. Festo
1 General Remarks
All Festo deliveries and services – which also include the provision of software – are subject solely to the following conditions of sale. Any conditions stipulated by the customer that deviate from these are hereby expressly opposed. Such conditions are only binding on Festo if Festo has acknowledged them in writing. By placing the order and accepting the goods supplied by Festo, the customer confirms its agreement with these conditions.
2 Quotation and Delivery
Festo’s quotations are always non-binding if they do not have a time limit; Festo’s written order confirmations form the contractual basis and are decisive for the scope of the delivery. This also applies if the customer has requested an actual quotation to be submitted. Orders placed by the customer are binding for the latter and are deemed to be accepted upon presentation of the order confirmation by Festo. For catalogue components, this is deemed to be on time if presented together with the invoice and delivery. In the case of quotations with a time limit and a certain acceptance period, the quotation is decisive if no order confirmation is submitted on time. Festo reserves the right to make design changes and other changes to technical data and performance characteristics if they are in the interests of technical progress. Festo will also announce such changes, as well as product discontinuations, in the pneumatics catalogue on the Festo website (www.festo.com) with a reasonable notice period. The documentation attached to the request for quotation or purchase order, such as drawings, specifications, materials, samples, tools, models and the like, which are passed onto Festo, remains the property of the customer. These are binding for the preparation and composition of the quotation by Festo. The customer must point out any subsequent change to the first request for quotation and the quotation by Festo in writing when placing purchase orders. If Festo attaches similar documentation of the type previously mentioned to its quotations, this is and remains the property of Festo. The customer undertakes not to use this documentation for purposes beyond the scope of the contract, reproduce it or otherwise make it accessible to third parties (except to its consultants or auditors but subject to written consent from Festo). Obvious mistakes, print, calculation, typing and costing errors are not binding for Festo and do not entitle the customer to compensation. If Festo provides documents (e.g. manuals) for certain products, these are available to the customer as a free download on Festo’s website www. festo.com. Festo can provide the customer with printed versions of such documents for a charge as a separate order.
2a Conclusion of Contracts in Festo Online Shops
The goods and services offered in Festo’s online shops do not represent an offer to conclude a contract; they are merely an invitation to submit an order. The contract is made in a bilingual version (English and Indonesia) while in the event of inconsistency or controversy between the English and Indonesian version, the English version shall prevail and the relevant Indonesian version shall be deemed to be automatically amended to conform with and to make the relevant Indonesian text consistent with the relevant English. The customer may view the content of his or her order any time, by visiting the order history in his or her account in the Festo online shop. The customer receives an order confirmation after his or her order has been received. This is for informational purposes only; it does not constitute acceptance of the order. The order does not become binding until a written or electronic order confirmation is issued or the goods are dispatched. In cases where software is being purchased via the App World, a contract comes about when the app is provided for the customer’s use. If an order confirmation has been issued but contains obvious spelling errors, calculation errors or other errors, it is not binding for Festo.
3 Prices and Payment
The prices that apply are the incoterms DDP (Incoterms 2010). The prices do not include the statutory rate of value added tax. The packaging used by Festo meets the ecological requirements of correct recycling without harm to the environment. If Festo packaging accumulates at the premises of the customer, by accepting the goods it confirms to Festo that it is able to recycle this packaging in accordance with the Packaging Ordinance and undertakes to dispose of the packaging in accordance with the requirements of the Packaging Ordinance. In this case, the customer shall forward non-returned packaging of the specified kind for recycling in accordance with the Packaging Ordinance, shall on request at any time provide Festo with details of the type and quantity of packaging materials forwarded for recycling in this way and shall confirm to Festo – in writing and at any time when requested – that this recycling obligation has been met. Festo is entitled at any time – subject to advance notice – to visit the customer’s premises to verify that this recycling obligation has been met.
If the customer does not wish to carry out disposal itself in accordance with the above-mentioned regulation, it shall declare this to Festo immediately after acceptance of the goods in a verifiable manner. In this case, Festo gives the customer the opportunity, in accordance with the obligations arising from the Packaging Ordinance, to return this packaging to Festo. Any such return transport shall be at the expense of the customer. If the basis of the calculation changes, Festo reserves the right to make price adjustments. If the period of payment has been exceeded, Festo reserves the right to claim the damages caused by delayed performance to the level of the bank loan used by Festo. In the case of orders with a net goods value of less than IDR 500,000, Festo will add a surcharge amount of IDR 100,000 to the invoice The withholding of payments or offsetting of potential counterclaims is only permissible in the case of recognised or legally established counterclaims on the part of the customer.
Festo only processes customized productions/orders after receipt of a down payment amounting to 30% of the order value, which is due on receipt of the payment request and/or order confirmation. The payment is deemed to have been received once Festo can freely dispose of the whole down payment amount. The remainder falls due within 30 days after invoicing. In case of default of payment, deliveries are only made against advance payment.
The payment conditions may also change depending on a change to customer’s credit limit according to section 3.1 of these delivery, payment and software utilisation conditions.
3.1 Credit Limits
Once a business relationship has successfully started – yet after six months at the earliest – on request, Festo is prepared to grant a supplier credit amounting to 1.5 times the monthly net turnover, based on the average over the last quarter, unless otherwise agreed. The granting of a supplier credit can be revoked/cancelled at any time on Festo’s part. New customers are supplied on account up to max. €500 or IDR equivalent once Festo has received a copy of the current extract from the commercial register. If the purchase order exceeds this value, Festo shall deliver against advance payment. Once the line of credit has been used up and no due receivables are open, further deliveries are made either by paying invoices not yet due or by making a down payment of 30% of the order value, due on receipt of the order confirmation, with the remainder falling due within 30 days.
4 Delivery Time
The delivery period starts with the date of the order confirmation. This only applies, however, if all technical and commercial details have been clarified at this point in time. The customer undertakes to arrange all the provisions necessary 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 plant by the said date or if the customer has been advised of its readiness for despatch. The delivery times documented by means of a classification system of standard delivery times (standard delivery time classes) and quoted in all Festo’s sales and communications media (such as product catalogues, quotations, etc.) are merely empirical values drawn from everyday practice. The standard delivery times quoted for the individual classes are not guaranteed or warranted delivery times.
Non-adherence to these delivery times in individual cases shall not automatically put Festo in default and shall not entitle the customer to raise complaints or claims for damages of any kind. Partial and early deliveries by Festo are permissible. The delivery date is extended proportionately in the event of obstacles attributable to force majeure. This includes actions as part of industrial disputes, in particular strikes and lockouts. It also applies in the event of unforeseen obstacles and circum stances arising with subcontractors. Adherence to the delivery period is conditional on the customer fulfilling its contractual duties. Festo is also not responsible for the aforementioned circumstances if they arise during an already existing delay. If despatch is delayed at the request of the customer, Festo shall, after a reasonable period of time, be entitled to dispose otherwise of the delivery item, to supply the customer with a correspondingly extended time limit and to charge the customer for storage costs incurred.
5 Transfer of Risk
All deliveries shall be effected at the risk of the customer. The risk is also transferred to the customer upon despatch in the event of partial and early deliveries. This also applies if the consignment is transported by Festo, even if Festo uses its own vehicles, and effects the installation. If despatch is delayed by circumstances for which the customer is responsible, then the risk is transferred to the customer from the day the delivery is ready for despatch. 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
The goods supplied shall remain Festo’s property until all existing and future claims arising from the business relationship with the customer are paid in full, irrespective of the legal grounds. The enforcement of Festo’s rights to retain ownership should not be regarded as a withdrawal from contract. On the contrary, it ensures Festo’s 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. The customer is entitled to resell the supplied goods revocably as part of a proper business activity. The customer assigns to Festo at this stage all claims with subsidiary rights to the value of the goods subject to retention of ownership due to it from the resale. The assigned claims are used to secure all claims under paragraph
1. Upon Festo’s request, the customer is obliged to notify Festo of any assignment to a third party for the purpose of payment and to provide Festo with the information and documentation necessary to assert Festo rights. The customer is allowed to process, transform and combine the goods subject to retention of ownership with other items. The processing or transformation is effected for Festo. Festo shall immediately become the owner of any goods made as a result of processing or transformation, namely corresponding to the value of the delivery. The processed or transformed items shall be deemed to be goods subject to retention of ownership. In the event of any processing, transformation or combination with other items not belonging to Festo, Festo has the right to joint ownership of the new item to the value of the share which represents the proportion of the value of the new item resulting from the processed, transformed or combined goods subject to retention of ownership. The share of claims assigned to Festo has priority over any other claims. If Festo’s goods subject to retention of ownership are combined with real estate or movable property by the customer, the customer shall by way of security also assign to Festo the claim due to it as remuneration for the combination, including all subsidiary rights without the need for any further particular explanation. The above paragraph correspondingly applies to the level of the assigned claim. Festo undertakes to release the securities due to Festo insofar as their value exceeds the claims to be secured by more than 20%, and insofar as these have not yet been settled. The customer does not have the right to any other dispositions regarding the goods subject to retention of ownership other than those mentioned above. In the event of pledges, attachments or other dispositions by third parties, the customer undertakes to draw attention to the fact that it is Festo’s property. The customer must inform Festo immediately of any impairment of the rights to items owned by Festo. In the event of the customer not conforming to the contract, in particular in the case of a delay in payment, the total balance due shall become payable immediately. 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 then has no right to possession.
7 Use of Software
Unless otherwise agreed for a specific product, the customer shall, in return for a fee, 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 a particular or individually determined hardware product. Festo shall remain the owner of the copyright and all other industrial patent rights. The right to make copies is only provided for the purpose of data backup. Copyright marks must not be removed. Festo shall supply installation and commissioning instructions containing relevant safety instructions for its software in printed form. All other documentation shall be supplied only in digital form with online help. When new software releases are supplied, the corresponding online documentation shall also be sent. The transfer of software to third parties requires Festo’s consent in any case. If the software is provided for the purpose of resale, the third party must agree to these conditions.
Modifications are not permissible. In the event of a violation of these conditions, for each violation the customer shall pay a contractual penalty amounting to ten times the order value. This contractual penalty shall be set off against any claims for compensation. The software and associated documentation must be returned immediately on request. 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 control system making use of modular software modules (standard software modules) put together by Festo that are suitable for a wide range of applications and adapted to the contractual performance requirements. The above conditions shall also not apply to customised training software. 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 remains entitled, irrespective of these conditions, to use the basis of this development to create and offer similar software solutions customised for applications required by other customers. Festo shall retain basic utilisation rights to the customised solution for internal purposes.
8 Warranty Claims
Festo warrants its products to be free from defects of Quality, for a period of one year from date of delivery to the customer. Subject to the regulations in section 10 of these conditions and excluding any further claims, Festo shall be liable for defects of quality and 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. Wearing parts are excluded from this.
Festo shall warrant that Festo software has been duplicated properly. Festo software is designed to run on hardware products specified by Festo. Warranty claims shall be satisfied by means of a replacement. Unless otherwise agreed in writing, Festo shall not warrant that the software and its data structure are free of defects. For customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the order confirmation, documentation or the jointly defined work/procedure descriptions. Festo shall not warrant that such programs are free of defects when they are used 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. Evident defects shall be notified to Festo immediately in writing, however, at the latest within eight days after receipt of goods. Hidden defects which are not evident must be notified to Festo in writing as soon as they become known or, in case of ignorance due to gross negligence, at the latest within eight days of this time. If the complaint is justified, Festo shall bear the immediate costs – insofar as the complaint proves to be founded – the costs of the replacement part, the costs of despatch as well as reasonable costs related to removal and installation, insofar as this does not result in unreasonable demands made on Festo.
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 only in 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 causes undue delay by remedying the defect. Should the customer or a third party carry out unqualified repairs, Festo shall not be held liable for the resulting consequences.
The customer shall be entitled to withdraw from the contract within the scope of the statutory provisions if Festo, taking into account exceptional cases provided in the law, i.e. if Festo refuses to rectify the delivery, the rectification has failed or rectification is unreasonable for the customer, and it allows to let pass a reasonable period for repair or replacement delivery as a result of quality defects without remedying the situation. If the defect is insignificant, the customer shall merely have the right to a reduction of the purchase price, provided also that Festo allows to let pass a reasonable period for repair or replacement delivery due to quality defects without remedying the situation. Otherwise, the right to a reduction of the purchase price shall be excluded. Other claims shall be determined according to section 10 of these conditions.
In addition, Festo shall not be held liable for any damage arising from 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, faulty or negligent handling, chemical effects and electrical effects etc. over which Festo has no influence, as well as in case of improper use and non-observance of the instructions and information in Festo’s documentation (e.g. operating instructions and catalogue sheets), regardless of how they are published, particularly in relation to the operating conditions of Festo’s products (e.g. oiling instructions, quality of the compressed air or other operating media and ambient conditions). In addition, the warranty shall be voided if the customer or third parties modify the control system/software without prior consent from Festo and without any other justification (Festo’s undue delay in remedying defects), even if the error occurs in an unchanged component.
Defects of Title:
If the use of the delivery item infringes domestic industrial property rights or copyrights, Festo shall, at its cost, obtain the right to principally enable the customer to continue to use the delivery item or to modify the delivery item in a manner acceptable to the customer so that the copyright infringement no longer exists. Should this not be achievable in an economically reasonable manner or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Given the stipulated conditions, Festo shall also have the right to withdraw from the contract. Over and above this, Festo shall indemnify the customer in relation to any non-disputed claims or legally established claims raised by the relevant copyright owners. Subject to the regulations in section 10 of these conditions, the above-stated obligations of Festo shall be final in relation to cases of infringement of property rights or copyrights. These obligations shall be applicable only if the customer informs Festo immediately of any property or copyright infringement claims raised, the customer reasonably supports Festo in the defence of such claims or enables Festo to carry out modifications, Festo has at its disposal all defence actions including out-of-court settlements, the defect of title is not based on an instruction issued by the customer and the infringement is not caused by non-authorised modifications of the delivery item by the customer or non-authorised use of the delivery item by the customer.
The customer may withdraw from the contract should overall performance become impossible for Festo before the transfer of risk. The customer shall also be entitled to withdraw from the contract should, in the case of an order for similar goods, execution of part of the delivery become impossible and the customer has a legitimate interest in refusal of a partial delivery. Should this not be the case, the customer may reduce the consideration accordingly. In the event of a performance default by Festo as defined in section 4, line 1, and the customer grants Festo a reasonable extension, the customer shall be entitled to withdraw from the contract, within the scope of the statutory provisions, should the extension not be complied with. Should there be an acceptance default through the fault of the customer, the customer shall remain obliged to pay consideration. Should the customer incur damage caused by a delay for which Festo is responsible, then the customer shall be entitled to claim compensation for default. This compensation shall amount, for each full week of the delay, to 0.5% and no more than 5% of the value of the part of the total delivery that cannot be used in good time or according to the contract due to the delay. Other claims arising from late delivery shall be determined according to section 10 of these conditions.
Should the delivery item not be fit to be used by the customer as stipulated in the contract due to the fault of Festo following omitted or defective execution of proposals and discussions prior to and after the conclusion of the contract or as a result of violation of other contractual obligations, in particular the instructions for operation and maintenance of the delivery item, then the provisions in sections 8 and 10 of these conditions shall apply accordingly excluding any other claims. 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 disclosed by Festo 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. In case of culpable violation of essential contractual obligations, Festo shall be liable also in case of gross negligence of non-executive personnel and cases of ordinary negligence; in the latter case liability shall be limited to reasonably foreseeable damage that is typical for the contract. Any further claims are excluded.
11 Statute of Limitation
All claims by customers – for whatever legal reason – shall become time-barred after five years from the time of delivery, in the case of damage not originating with the contractual object, from the time of the event causing the damage and the knowledge, or grossly negligent lack of knowledge, of the customer.
Eeach of the customer and Festo is obliged to treat all of each other’s information, knowledge 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 each other’s information, documents, documentation, drawings, sketches or other papers to third parties without the express permission of the other party.
13 Dispute Settlement
Festo and the customer agree to use the best effort to resolve any dispute in relation to these conditions by deliberation to achieve consensus in thirty (30) calendar days. If such dispute is not settled amicably within thirty (30) calendar days, the Festo and the customer agree that such dispute shall be referred to and finally resolved by the arbitration in Indonesia under the auspices of Indonesia National Board of Arbitration (“Badan Arbitrase Nasional Indonesia/BANI”).
14 Applicable Law
The law of the Republic of Indonesia shall apply to the contractual relationship between Festo and the customer to the exclusion of all bilateral and/or multilateral agreements concerning the purchase of movables (if any).
The customer assures that it has taken notice of the content of the Festo value management (code of conduct) and has instructed its managers and employees to comply with it (https://www.festo.com/net/SupportPortal/Files/164901/CodeofConduct_English_2019_V4.pdf). To ensure this good conduct, the customer undertakes to take all necessary measures to prevent unlawful practices, especially to the detriment of Festo. In this respect the customer shall take those organisational precautions at its company to be able to monitor compliance with the code of conduct by its employees, particularly those that are necessary to prevent corruption and other criminal offences.