1. General
All deliveries and services from Festo India Private Limited, including the sale of software, are subject to the following terms and conditions of sale. Any conditions in any order given by any customer which are inconsistent with these conditions are expressly revoked. Such conditions shall not be legally binding on Festo unless they have been agreed to in writing by Festo.
The use of Festo software and customised software is subject to separate software user conditions.
The placing of an order and acceptance by way of written order confirmation by Festo shall constitute the customer‘s agreement to our conditions.
2. Quotation and delivery
All quotations unless limited in time are subject to confirmation; Festo written order confirmations shall form the basis of the contract and the definitive factor for the scope of the delivery. Until and unless explicitly mentioned, all quotations are valid for a period of 30 days.
This also applies if the customer has requested a specific tender. Orders given by the customer are binding on 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. In the case of quotations with a time limit and a time stated for acceptance, the quotation shall be binding, if an order confirmation is 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).
Any documentation submitted with the request for tender or an order, such as drawings, specifications, material, samples, tools, models or similar things 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.
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.
Any apparent mistakes that are due to printing, arithmetical, computational, spelling or calculation errors shall not give rise to any claim for compensation and shall not create any obligation or binding on Festo and do not give the customer the right to claim for damages.
Insofar as we have 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 to customers and for an additional charge.
3. Mode of Despatch
Unless otherwise specified, despatches shall be executed through surface courier or by courier from Festo authorised service provider. Festo shall despatch the goods through customer specified service provider on request, however, Festo shall bear no responsibility for the quality of such service or for the transit damage and destruction during transit.
Despatches by air can be made on request at extra cost. All despatches are subject to availability of service of carriers. Despatches by Value Payable Post (VPP) are not acceptable.
Customer shall intimate to Festo in writing and supporting documents for any short supplies / wrong supplies within 3 days of goods receipt. Festo shall not entertain claims post this period.
4. Delivery Period
Festo shall endeavour to keep the scheduled delivery dates as mentioned in the order confirmation which is normally between 5 to 10 working days. The delivery period commences with the acknowledgement of the order by Festo. This however applies from that point of time, when all the technical and commercial details of the order have been clarified and agreed. If some clarifications are required, the delivery period commences from the date of such clarifications reaching Festo.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. Partial and early deliveries by Festo are permissible.
Unforeseen events, whether in our Works or in the third party undertakings, on which the manufacture and transportation of the object of supply materially depend and for which we have been seen objectively, are not culpable responsible. These unforeseen events include, but are not limited to, labour disputes, wars and uprisings, strikes, action by public authorities, act of God and traffic bottlenecks, dearth of raw materials and energy as well as major damage sustained through the action of water, fire, which release Festo from the obligation to adhere to the delivery dates. Moreover, Festo will not be responsible in the above described circumstances, if these occur during an already existing delay.
5. Prices
Prices are ex-works Bangalore or ex-Festo India warehouses. The prices do not include packing, taxes, other levies and freight charges which are as follows:
Packing: As per quotation and order confirmation Freight: As per quotation and order confirmation GST : As applicable at the time of delivery / despatch.
Any other new taxes, levies, surcharge, cess, etc. levied on the date of despatch will be applicable and have to be borne by the customer.
Price and terms are subject to change without notice. The price ruling at the time of despatch will apply.
6. Payments
The invoice amount is payable as per the agreed terms of sale.
Unless agreed otherwise in writing by Festo, payment shall be made by way of electronic payment (RTGS/NEFT), Cheque, Demand Draft payable at Bangalore as per agreed payment terms or against Proforma Invoice. Festo shall bear its own bank charges.
For document through bank transaction, the amount invoiced must be paid within 10 days after the documents have been presented by the Bank. Beyond this term interest @ 24% per annum will be charged if the invoice is not paid within 10 days of despatch.
It is not permitted to hold back payments or to make deductions because of possible counter claims. Interest at 24% per annum is payable on overdue payment outstanding. No “Stop Payment” instruction to banks can be made after issue of cheque.
For Online orders: If Festo is unable to supply the customer with the goods for any reason, Festo will inform the customer of this by email and will not process the customer’s order. If the customer has already paid for the goods, Festo will refund to the customer the full amount (including any delivery costs charged) as soon as reasonably practicable. We will initiate a refund to the original method of payment. Customer will receive the credit within a certain number of days, depending on the card issuer's policies.
7. Insurance
Insurance to be arranged by the customer. The material will be despatched at the customer’s risk.
8. Order cancellation
Festo shall not entertain any order cancellation post order acknowledgement/confirmation. Order cancellation should be mutually agreed and damages will be chargeable by Festo in case of acceptance.
9. Passage of risk
All deliveries shall be effected at the risk of the customer. Partial and early deliveries shall also be at the risk of the customer upon despatch or upon communication of readiness for shipment. This also applies if the consignment is transported by Festo and even if Festo uses its own vehicles and effects the installation.
10. Use of software
In return for remuneration, the customer shall receive non-exclusive, non-transferrable and perpetual utilisation rights for Festo software relating to the goods and any associated documentation. This software may be used on one hardware product or in some cases a specially agreed hardware product. Festo shall remain the owner of copyrights and all other industrial property rights. No part of this software must be duplicated other than for the purpose of data backup. Copyright notices must not be removed.
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.
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. Modifications are not permissible.
In the event of a violation of these conditions, the customer 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.
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. Clause 2 of these conditions does 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 has the right, irrespective of these conditions, to create and offer similar software solutions customised for applications required by other customers. Festo shall retain basic utilisation rights for internal purposes.
11. Warranty claims
Subject to the provisions in Section 13 of the terms and conditions herein and excluding any further claims, Festo shall be liable for defects of quality and legality of title and provides a standard 6 months warranty from the date of invoice as follows:
Defects of quality:
1. 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.
2. Festo shall guarantee 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.
3. 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.
4. The defects shall be notified immediately in writing, however, at the latest within 8 days after receipt of goods. 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.
5. 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. Should the customer or a third party carry out unqualified repairs, Festo shall not be held liable for any consequences thereof.
6. Other claims shall be determined as stipulated in Section 13 of the terms and conditions herein.
7. All components are put right by Festo or are re-supplied free of charge, which become unusable or the utility of which is significantly impaired, within six months of transfer of risks, faulty design, bad materials or inadequate workmanship.
8. The warranty period for the rectified object or the replaced part is 3 months. However, it runs at least to the expiry of the original warranty period. The period of liability for the object supplied is extended by the duration of the interruption of operations caused by the work of putting the equipment right.
In addition, Festo shall not be held liable for any damage on 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, electrical effects, etc. outside Festo’s power, as well as in case of non-intended use and non-compliance with Festo information and details out of Festo 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 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 (Festo’s undue delay in remedying defects), even if the error occurs in an unchanged component.
9. Festo data regarding the equipment supplied and its purpose of application, e.g., regarding dimensions, weights, hardness, values of utilisation, temperature, etc. represent solely descriptive material or techincal data, but characteristics which Festo guarantees. They are non-committing guidance data and can be considered as assured, only in as much as they correspond to Festo trial samples tested by a customer for the specific intended application and released for the latter. Minor deviations do not entitle to any warranty rights.
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 Section13 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.
12. Impossibility of performance, default
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.
In the event of a delay of performance by Festo as defined in Section 4, 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. The customer shall be obliged to pay reasonable compensation and damages for the period of delay.
13. Liability
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, the provisions in Sectio 11 and Clause 2 and 3 of Section 13 of the terms and conditions herein shall apply accordingly excluding any other claims.
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, 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 contract-typical, reasonably foreseeable damage.
Under no circumstances Festo can accept penalties of any nature in case of delayed supply. Festo also shall not be liable for damages measured by loss or profit or product or consequential damages of any nature, resulting wholly or partly from Festo India delay, negligence, mistake, misrepresentation.
Any further claims shall be excluded. In any case, the liability is limited to the value of goods supplied under the purchase order.
14. Export Control Clause
14.1 - Any deliveries of products (hardware and/or software and/or technology and the respective documents, irrespective of the manner in which they are made available) as well as work and services including technical support of all kinds by Festo to the customer (collectively called “Festo Performance”) shall be subject to the precondition that such Festo Performance is not prohibited according to national or international export control regulations, in particular embargos or other sanctions. The customer undertakes to provide all information and documentation which is required for export and shipment. Delays due to export examinations or approval procedures render deadlines and delivery dates inapplicable. If necessary approvals are not granted or if the delivery and service are not capable of being approved, the [contract] shall be considered not concluded with respect to the parts affected.
14.2 Festo shall be entitled to terminate any contract regarding Festo Performance without notice if such termination is necessary for Festo in order to comply with national or international legal provisions.
14.3 In the event of termination pursuant to section 14.2, the customer is excluded from raising a claim for any damage or other rights on account of the termination.
14.4 When passing on any of the Festo Performance to third parties in Germany and abroad, the customer must comply with the respectively applicable provisions of national and international (re-) export control law. In particular the customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any of the Festo Performance that fall under the scope of the Council Regulation (EU) No 833/2014. Any (re)sale and/or (re-)export of the goods and technology supplied by us, directly or indirectly, to Belarus and/or through third parties for use in Belarus is prohibited under EU Reg. 765/2006, article 8g and the associated amending regulations. Any violation of this section 14.4 by customer shall constitute a material breach of an essential element of this [contract] and Festo shall be entitled to seek appropriate remedies. In addition, section 14.2 and 14.3 shall apply respectively. The customer shall immediately inform Festo about any problems in applying this section 14.4 including any relevant activities by third parties that could frustrate the purpose of section 14.4. The customer shall make available to Festo information concerning compliance with the obligations under section 14.4 immediately upon request by Festo.
15. Statute of limitation
Any and all claims, no matter what legal reason, come under statute of limitation after 6 months commencing from time of delivery and concerning damages, not accrued at the product itself, commencing from the time of the relevant injuring action and the knowledge of it or the non-knowledge by gross-negligence of the customer. This does not apply in cases of statutory stipulations as well as in case of damages caused to intent, wilful act or gross negligence.
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. Modifications
No modification, waiver or amendment of any term, condition of these terms shall be effective unless and until it shall be reduced to writing and signed by both the parties hereto or their representatives.
18. Severability
If any provision of these terms are found by any body of competent jurisdiction to be wholly or partly illegal, invalid, unenforceable or unreasonable, it shall to the extent of such illegality, invalidity, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the terms and the remainder of such provisions shall continue in full force and effect.
19. Waiver
Failure by either party at any time to require performance by the other party or to claim a breach of any term of these terms shall not be construed as a waiver of any right under these terms shall not affect any subsequent breach, shall not affect the effectiveness of these terms or any part thereof, and shall not prejudice either party as regards any subsequent action.
20. Disputes and Arbitration
In respect of all matters / disputes arising out of, in connection with or in relation to the contractual relationship as far as possible be mutually settled between the parties. If this fails, dispute shall be resolved by the Sole Arbitrator appointed by mutual consent of both the parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996, and the Rules made thereunder, as amended from time to time. The venue of such Arbitration shall be Bangalore and shall be conducted in English. The Award of the Arbitrator / Arbitral Tribunal shall be final and binding on both the parties hereto.
21. Place of jurisdiction
The contractual obligations are governed by laws in India. The place of fulfilment of obligations shall be Bangalore. The place of jurisdictions for all disputes shall be Bangalore and all suits by or against Festo shall be filed in the Courts situated at Bangalore only.
22. Compliance
Customer hereby represents, confirms and certifies that it and all of its directors, officers and employees has concluded with the Code of Conduct of Festo. Securing compliance with the Code of Conduct of Festo, customer commits to take any necessary step to avoid any illegal actions, especially to avoid illegal actions which are able to incriminate Festo.
Therefore, within its company and/or group, customer shall take any necessary actions and launch any system needed to monitor compliance with the Code of Conduct of Festo of its directors, officers and employees, especially such actions which are essential to avoid corruption or any other criminal acts.
- Rev 04/2024