If any order is placed by the customer on the company and is accepted by the company, the contract will be on the following terms and conditions:
1. SCOPE
1.1 In these terms and conditions, a reference to “the company” shall be a reference to Festo (Pty) Ltd and a reference to “the customer” shall include a reference to the applicant or customer referred to on any application or quotation to which these terms and conditions are attached.
1.2 These terms and conditions shall be conditional upon any quotation being signed by any representative of the company, including any variation recorded in any schedule to these terms and conditions. In the event of any conflict between the terms contained within any quotation and/or schedule, and these terms and conditions, the terms and conditions contained within the quotation shall prevail.
1.3 Subject to 1.2, no variation of these terms and conditions shall apply, either when the customer’s quotation is issued (duly signed) or when an order is accepted or at any time afterwards unless any variation to these terms and conditions are expressly agreed to in writing between the parties and being signed by an authorised representative of the company.
1.4 If the components and/or the system(s) set out in the quotation (“the equipment”) are required by the customer for the purpose of another contract between the customer and anyone else, none of the provisions of that other contract shall apply to or be incorporated as if specifically recorded herein unless expressly confirmed in writing by an authorised representative of the company.
2. SPECIFICATIONS
2.1 The equipment shall be supplied and/or manufactured and/or installed in accordance with the specifications or dimensions set out in the quotation (if any), and it is the responsibility of the customer to check and ensure that the specifications and/or dimensions are correct; consequently, the company will not be liable for damages which may be sustained by the customer as a result of incorrect specifications and/or dimensions being stated.
2.2 Should there be any conflict between the description of the equipment, specifications and/or dimensions, or other terminology of a technical nature set out in the quotation and that used by the customer, those set out in the quotation shall prevail.
2.3 The company reserves the right to make alterations and improvements, without notice, in the design or method of manufacturing the equipment. It is the responsibility of the customer to ensure that they up to date and reasonably aware of any improvements and/or alterations made to the equipment.
3. SALE OF COMPONENTS
The following provisions shall apply in respect of the sale, supply and/or installation of components and/or goods (“components”) by the company:
3.1 Purchase Price:
3.1.1 The purchase price shall be paid by the customer upon presentation of an invoice. Where credit facilities are extended by the company, in writing, the purchase price shall be paid within 30 (thirty) calendar days from the date of the company issuing a statement to the customer.
3.1.2 If payment is to be made in instalments, each instalment will be invoiced and paid for seperatelyin accordance with 3.1.1.
3.1.3 All accounts are payable without deduction or set-off for any reason whatsoever.
3.2 Price Increases:
3.2.1 The purchase price is based on the company’s calculated costs as at the date on which the purchase price is first quoted by the company. This also includes obtaining and/or assembling any components for resale or manufacturing the components for sale to the customer, including (without being limited to), if applicable, the costs of labour and materials, packaging, customs and excise duties, shipping, freight, railing, costs, landing charges, consular fees and other import charges, and the cost of foreign exchange and all ancillary costs related to the procurement of any components for the customer (“the costs”). All prices exclude Value Added Tax. If no price is quoted, the purchase price shall be the company’s determined and quoted price as at the date of delivery.
3.2.2 If any of the costs are increased after the date of any quotation, for any reason beyond the company’s control or arising in the ordinary course of its business, the purchase price shall be increased, and the quotation shall be adjusted to accommodate the price increase upon reasonable notice to the customer.
3.2.3 If the customer disputes any increase in the purchase price in terms of 3.2.2, the disputed increase shall be referred to the company’s auditors, acting as experts and not as mediators or arbitrators, and their decision shall be final and binding on the company and the customer. The customer shall be responsible for the payment the auditors’ costs for such a referral.
3.3 Surcharge for minimum order values or quantities
3.3.1 For purchase orders outside the Festo Online Shop with a net goods value of less than R3000.00 (Three Thousand Rand), Festo shall charge the customer a surcharge of R300.00 (Three Hundred Rand). This is because Festo has a minimum order value of R3000.00 (Three Thousand Rand). This minimum order value does not apply to purchase orders placed via the Festo Online Shop.
3.3.2 Certain products are only sold with minimum quantities, this include but are not limited to tubing which is sold in boxes and fittings which are sold in packets of varying quantity.
3.4. Software
3.4.1 In the case of contracts for the provision of software and apps (hereinafter referred to collectively as "Software"), Festo shall be responsible for providing the Customer with access to the Software offered (license). Access shall be provided in digital form.
3.4.2 The Software shall be delivered (1) by providing the purchased licenses in a suitable form and, unless otherwise agreed, by sending the license key by e-mail or (2) by means of a download link, which Festo shall send to the Customer by e-mail (including a license key) to an e-mail address provided by the Customer. The Software shall be deemed to have been delivered upon provision of the license key.
3.4.3 The type and scope of use of the purchased Software, system requirements and license fees can be found in the respective product description, the respective license certificate and/or the respective sales documents (offers, order confirmations).
3.4.4 Festo shall only be obliged to provide consultancy services if this is expressly and separately agreed in a service level agreement. Adjustments or modifications to the Software and the creation of interfaces to third-party software by Festo shall only be owed if this is expressly and separately agreed.
3.4.5 The manufacturer of the software sold by Festo is Festo (Pty) Ltd. The rights of use of the purchased Software are granted by Festo (Pty) Ltd. The content and scope of the respective rights of use shall be governed by the End User License Terms of Festo (Pty) Ltd ("EULA"), available at: https://www.festo.com/de/en/e/legal-information/end-user-licence-agreement-id_45479/
3.4.6 Insofar as the Software (also) contains components or modules from other software manufacturers, in particular open-source software components, the applicable license conditions to which reference is made in the Software and/or Festo's program documentation shall also apply.
3.4.7 If the license certificate and/or the respective sales documents (offers, order confirmations) specify a certain number of natural persons (named users) who may use the Software, the right of use granted shall only extend to these named users. A named user is a specifically named employee of the customer who directly or indirectly accesses the Software provided. Use of the Software by other third parties who are not named users is only permitted in exceptional cases and after consultation with Festo.
3.4.8 The Customer shall fulfil all duties and obligations necessary for the performance of the contract. In the absence of other agreements, the customer shall in particular
a) keep any user and access authorisations assigned to named users secret, protect them from access by third parties and not pass them on to unauthorised users; the Customer shall inform Festo immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorised persons,
b) define contact persons and ensure that they are available in the event of updates or works that must be carried out remotely or on site by Festo,
c) to grant Festo remote access to the parts of the Software installed locally on the Customer's computer systems and to maintain this access permanently,
d) provide the infrastructure and backup strategies required to operate the Software,
e) to store all copies of the Software in a protected location,
f) to report defects in the Software to Festo without delay and to take into account information from Festo within the scope of what is reasonable for the Customer and to forward to Festo all information available to the Customer which is necessary for the rectification of the defect.
3.4.9 Festo shall be entitled to carry out a license audit. If a license audit reveals that the use of the Software by the Customer exceeds the contractual agreements, a further contract must be concluded with Festo for additional licenses to the extent used to date. In this respect, Festo reserves the right not to grant any agreed discounts in this case. Festo reserves the right to claim damages and interest.
3.4.10 The following shall apply to contracts for the permanent provision of a specific software version (purchase):
a) Festo shall provide the Customer with the Software defined in more detail in the respective product description, the respective license certificate and/or the respective sales documents (offers, order confirmations) in the defined software version. Upgrades are not owed.
b) Updates and maintenance services are only owed within the scope of the warranty unless such services have been ordered separately by the customer for a fee.
3.4.11 The following applies to contracts for the temporary provision of software (rental):
a) The term is defined in the license certificate and/or the respective sales documents (offers, order confirmations).
b) Unless otherwise stipulated therein, the term shall be 12 months beginning on the date stated in the invoice (contract year). The term shall be extended by a further 12 months in each case unless the contract is terminated with 30 calendar days' notice to the end of the respective contract year. The right to terminate the contract for good cause remains unaffected.
c) Unless otherwise agreed, free trial licenses are always limited to three months and then end automatically without the need for termination. There is no automatic transfer to a fee-based contract.
d) The agreed remuneration is to be understood as an annual lump sum starting with the conclusion of the contract. The remuneration is due in advance at the beginning of each contract year for the entire contract year. The agreed remuneration shall be increased by the applicable value added tax.
e) In the case of fixed terms of more than 12 months, indefinite terms, and terms with automatic renewal, Festo shall be entitled, in the absence of any special provisions, to increase the remuneration after the expiry of 12 months with two months' written notice to the end of the month. The Customer shall have the right to terminate the contractual relationship within a period of four weeks after receipt of the notification of the increase.
f) If the Software is made available to the Customer as part of a service as "Software as a Service" (SaaS), the following shall also apply:
(1) The Customer receives access to a service provided by Festo via the internet and uses the web application via the internet.
(2) For certain Software, an app for mobile devices (smartphone and tablet) is made available for download in the app stores for the mobile platforms "iOS" (Apple App Store) and "Android" (Google PlayStore). Such app is linked to the web application.
(3) Festo shall not be responsible for establishing and maintaining the data connection between the Customer's IT systems and the service.
(4) Unrestricted availability of the service is not part of the service. System maintenance and other interventions in operations that may lead to non-availability are possible at any time. As far as possible, Festo will inform the Customer in advance. However, Festo tries to keep unavailability as low as possible and, in particular, to use times outside normal business hours (Mon-Fri 8 a.m. - 5 p.m. CAT). Despite a high level of system stability, it is recommended that all data entered is backed up regularly by the Customer, at least once a day. If the non-availability for these or other reasons exceeds a time value of 10%, the Customer is entitled to a pro rata reduction of the license fees. Any special agreements in a service level agreement shall always take precedence.
(5) Festo reserves the right to switch off the Software at some point in the future and to no longer make it available from then on. In this case, the Customer shall receive a pro rata refund of the overpayment. Further claims are excluded in such cases. Festo must give at least 6 months' notice of any shutdown of the Software.
3.5 Supplementary provisions on defect rights for software
3.5.1 The subject of the delivery is software which basically corresponds to the information given in the respective product description.
3.5.2 For customised software, Festo shall warrant compliance with the functions and features stipulated in the specifications, the Festo order confirmation or acceptance letter, documentation or the jointly defined work/procedure descriptions.
3.5.3 A defect exists if the software does not fulfil the functions and features stated in the product description – in the case of Customer-specific software created in the documents pursuant to Section 3.5.2, delivers incorrect results, uncontrollably interrupts its running or otherwise does not function properly, so that the use of the software is prevented or impaired not merely insignificantly.
3.5.4 Festo shall not be liable for errors in the software,
· 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;
· due to the actions of a virus or other external influences for which Festo is not responsible, such as fire, accidents, power failure, etc.;
· 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;
· which are based on the fact that the software was changed by the Customer or a third party without authorization.
3.5.5 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 the software provided by Festo
3.5.6 In the event of defects within the meaning of Section 3.5.3 occurring, the Customer shall be obliged to provide Festo with all information necessary 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 message 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 can invoice the Customer for the corresponding expenditure on the basis of Festo's applicable hourly rates.
3.6 Delivery:
3.6.1 Unless otherwise agreed in writing, delivery shall be made to the customer at the company’s registered address (“the premises”).
3.6.2 The customer shall be responsible for procuring and arranging the transportation of the components from the company’s premises to any destination required by the customer.
3.6.3 Delivery shall be completed when the components are handed to the customer or its agent at the company’s premises and before loading commences.
3.6.4 After completion of delivery, the company shall not be responsible for the arrival of the components at their destination or any loss of or damage to the components from any cause whatsoever while in transit or within the possession of the customer. All risk associated with the components upon completion of the delivery shall be transferred to the customer.
3.6.5 Should the company at the customer’s request agree to engage a carrier to transport the components for the customer, then:
3.6.5.1 the company is authorised to engage a carrier on such terms and conditions as it deems fit.
3.6.5.2 the customer shall indemnify the company, and hold the company harmless, against any demands and/or claims which may be made against it by the carrier so engaged and all liability which the company may incur against the carrier arising out of the loading, transportation and unloading of the components.
3.6.6 Notwithstanding any other provision in the contract to the contrary, the company’s obligation to deliver the components shall in all cases be subject to the following conditions precedent:
3.6.6.1 the availability to the company of any materials, software and supplies required for the manufacture of the components.
3.3.6.2 The company’s timeous receipt of any instructions (including all drawings and specifications) required by the company from the customer for the manufacture of the components.
3.6.7 Time shall not be of the essence of the contract.
3.6.8 If the customer fails to take delivery of the components on the due date, or, where no date is specified – where no date is specified, upon reasonable notice being provided to the customer, then:
3.6.8.1 Any risk related to the components, including the transportation and insurance shall immediately pass from the company to the customer.
3.6.8.2 The customer shall refund to the company on demand the reasonable costs (including storage and insurance) of keeping the components during the period of that delay.
3.6.9 If delivery is made in part and is not wholly completed , then the company may levy a surcharge aligned with clause 3.3 to each instalment.
3.7 Guarantee of Products Manufactured:
Subject to the conditions hereinafter contained, the company guarantees all components manufactured by them for a period of six months from the date of delivery or installation, whichever occurs later, against any defect attributable to faulty material or craftmanship. This guarantee does not apply to any software and/or any designs provided by the company. Should any defect in any components develop within the period stipulated above, save for where any defect may be caused by or attributable to any actions on the part of the customer as a result of abuse, negligence or mishandling of any components by the customer, the company will repair or (at its option) replace the defective component or the defective part at the company’s factory without charge provided that:
3.7.1 The customer shall have reported any defect to the company immediately when the defect exists.
3.7.2 The product was not subjected to abnormal use, or to use under abnormal conditions, or beyond its capacity as rated and recommended by the company.
3.7.3 The defect was not caused or contributed to by exposure to direct weather conditions or by operation in abnormal atmospheric conditions.
3.7.4 No repairs or alterations to the product were carried out by the customer or any third party.
3.7.5 the customer has fulfilled its obligations under the contract, and the onus of showing that the conditions set out above have been complied with shall rest on the customer.
3.7.6 The customer shall, at its own expense, return the defective product or part to the company’s factory and shall meet all other incidental expenses however incurred. The company shall have a reasonable period of time during which to effect the repairs (or at its option make the replacement), and the guarantee period stated above shall be extended by that time.
3.7.7 the working hours of components are not to exceed 8 (eight) hours continuous working during any 24 (twenty-four) hour period.
3.8 Guarantee of Products Not Manufactured:
Without imposing any obligation, the company will use its best endeavours to pass on to the customer the benefits (with the corresponding liabilities) of any company’s guarantee from the supplier of components not manufactured by the company. However, nothing herein contained shall impose upon the company a greater liability than would be imposed by its own guarantee set out above, nor shall the company have any obligation to enforce the guarantee by litigation or other proceedings.
3.9 Ownership:
Notwithstanding the delivery of any components to the customer, ownership thereof shall not pass until the company has received payment of the full contract price.
3.10 Risk:
Subject to 3.6.8.1, the risk shall pass to the customer when the components leave the company’s premises or on delivery to the customer, whichever is sooner.
3.11 Exclusions:
3.11.1 All specifications, illustrations, drawings, diagrams, price lists, dimensions, performance figures, advice, and other technical data furnished by the company whether before, during or after the conclusion of the contract, in respect of the components, and whether in writing or not, are furnished only on the basis that they will not form part of the contract or be relied upon by the customer for any purpose, unless and to the extent that they are expressly warranted or guaranteed in writing by the company and are, as such, expressly stated by the company to form part of the contract.
3.11.2 If the components or any part of them are to be supplied in accordance with any specifications, measurements or other instructions furnished by the customer shall not have any claim of any nature whatsoever against the company:
3.11.2.1 For any loss or damages sustained by the customer as a result of any error, discrepancy or defect in those specifications, measurements or other instructions.
3.11.2.2 If the components in question are not suitable for the purpose for which they are required, whether those purposes are known to the company or not.
3.11.3 The company shall be exempted from and shall not be liable under any circumstance whatsoever for:
3.11.3.1 Any direct or consequential damages of any nature, loss of profit or special damages of any nature, and whether in the contemplation of the parties or not which the customer may suffer as a result of any breach by the company of its obligations under the contract.
3.11.3.2 Any claim for any alleged shortage in delivery or failure of the components to comply with the contract, unless the company receives written notice of the claim within 7 (seven) days after receipt of the components by the customer or, if applicable after they have been commissioned.
3.11.3.3 Loss or damage of any nature which the customer may suffer and which is caused by or arises out of any breach by the company of any of its obligations under the contract or which is caused by or arises out of any wanton negligence on the part of the company, its servants, agents or subcontractors.
3.12 RETURN POLICY
Any and all Goods supplied to the customer will only be accepted by the company, and credit shall be provided under the following conditions.
3.12.1 The Goods have not been utilised, mounted and/or tested in any manner or form; the Goods supplied remain unopened in their original packaging.
3.12.2 The Goods supplied are not older than 3 (three) months from the date of delivery to the customer.
3.12.3 Proof of purchase has been provided to the company by the customer to the satisfaction of the company.
3.12.4 The Goods supplied are standard Festo catalogue items and are not configurable Goods ordered and produced according to a customised Customer specification.
3.12.5 The Goods supplied are standard Festo catalogue items and are not third-party buy-out items.
3.12.6 It is specifically recorded that the company shall charge a minimum of R300.00 (Three Hundred Rand) or 15% (Fifteen Percent) of the purchase price on the goods accepted for return, as a handling fee, provided that the conditions have been complied with. The acceptance of the returns shall be done at the company’s sole and absolute discretion. Should any of the conditions not be complied with, the company reserves the right to charge a handling fee of not less than 70% (Seventy Percent) on the purchase price of the Goods.
4. SYSTEMS:
The following provisions shall apply in respect of the repair, alteration and/or enhancement of any goods and/or system(s) and/or the design and/or installation of any goods and/or system(s) (“the work”) specified in the quotation/schedule, by the company:
4.1 Contract Price:
Unless otherwise agreed in writing, the contract price shall be determined at the company’s standard rates and charges ruling when the installation is carried out.
4.2 Price Increases:
4.2.1 If the company agrees to carry out the work at a fixed contract price, then should the company’s costs for the work, adjusted on the basis of SEIFSA index of actual labour costs of hourly paid employees at the date of this agreement and any increase of the same index prevailing from time to time, that increase is expressed as a percentage of the former index, or any parts or components to be supplied in connection with the work, be increased thereafter for any reason beyond its control or arising in the ordinary course of its business, the company shall be entitled to adjust that fixed contract price:
4.2.1.1 By an amount equal to the increase in its costs.
4.2.1.2 If that increase in its costs cannot be calculated exactly, by a reasonable amount to cover it.
4.2.2 If the customer disputes any increase in the contract price in terms of 4.2.1, the company’s then auditors (acting as experts, not as arbitrators) shall determine the increase, and their decision shall be final and binding on the company and the customer. The auditor’s charges for determining such an increase shall be paid by the customer.
4.3 Payments:
4.3.1 The contract price shall be payable once the invoice has been received. Where the company in writing extends credit facilities, the contract price shall be payable within 30 (thirty) days from the date of the company’s statement.
4.3.2 If the work is to be performed in instalments, each instalment will be invoiced separately but otherwise in accordance with 4.3.1.
4.3.3 If the components are to be installed and commissioned by the company, 90% (ninety per cent) of the price of the components shall be payable upon delivery and the remaining 10% (ten per cent), plus the company’s installation and commissioning charges, shall be payable on completion.
4.4.3 If Festo offers payment by credit card for orders via the Festo online shop and the Customer chooses this payment method, the Customer will transmit his credit card data to the third-party payment service provider that Festo uses. The transmission of the credit card data is made via secure connection. The credit card will be charged as follows:
· If the order is made via "Express Checkout" without registration, the credit card will be charged as soon as the order has been placed and the credit card data has been transmitted. The products will be shipped only after payment has been made.
· If the order is made after registration as a registered user, the credit card will be charged as follows: (1) if advanced payment has been specified for the Customer by Festo, the credit card will be charged as soon as the order has been placed and the credit card data has been transmitted; Festo reserves the right to charge shipping costs to the credit card separately when the products are shipped to the Customer. (2) If payment in advance has not been specified for the Customer, the credit card will be charged when the products are shipped to the Customer. Online payment transactions are subject to validation checks and Festo is not responsible if the Customer’s card issuer declines to authorise payment for any reason. It is possible that the Customer’s card issuer charges the Customer an online handling fee or processing fee. Such fees must be borne by the Customer.
4.4 Delivery (Continued):
4.4.1 If the work is to be carried out at the company’s premises then the customer shall at the customer’s cost:
4.4.1.1 deliver the components to be repaired or on which the installation work is to be carried out, to the company at the latter’s premises.
4.4.1.2 On the completion of the work, collect such components from the company’s premises unless otherwise agreed to in writing by an authorised representative of the company.
4.4.2 If the work is to be carried out at any place other than the company’s premises then the customer shall:
4.4.2.1 Ensure that the components to be repaired or on which the installation work is to be carried out are available to the company at the proper time and during normal working hours.
4.4.2.2 Provide all such facilities at that place as the company may reasonably require to carry out the work.
4.4.3 Time shall not be of the essence of the contract.
4.4.4 The company shall not be strictly bound by any dates agreed upon in the contract for completion of the work but shall make reasonable efforts to complete the work by such date(s).
4.5 Dismantling and quoting:
If it becomes necessary to strip or dismantle any equipment in order to prepare a quotation for repairs, the following conditions shall apply:
4.5.1 the company shall be entitled to dismantle the equipment to such extent as it deems necessary in order to prepare the quotation.
4.5.2 the customer shall be liable for all costs incurred by the company in dismantling the equipment and which shall be charged at the company’s current rates, whether the quotation referred to in 4.5.3 below is accepted or not. 4.5.3 in the event of the customer not accepting the company’s quotation, the customer shall accept and remove the equipment in its stripped-down condition.
4.6 Sub-Contractors:
All or any part of the work to be carried out by the company may be carried out by it or, on its behalf, by any sub-contractor appointed by it.
4.7 Exclusions:
4.7.1 The company shall be exempt from and shall not be liable under any circumstances for:
4.7.1.1 Any indirect or consequential damages of any nature, loss of profit or other special damages of any nature which the customer may suffer as a result of any breach by the company of any of its obligations under the contract.
4.7.1.2 Any loss or damage of whatsoever nature which the customer may suffer, and which is caused by or arises out of any breach by the company of any of its obligations under the contract or which is caused by or arises out of any negligence on the part of the company, its servants, agents or sub-contractors.
4.7.2 Insofar as any of the work to be carried out by the company in terms of the contract is carried out by any of its servants, agents or sub-contractors.
The provisions of 4.7.1 are stipulated for their benefit as well as that of the company, and they shall each be exempted accordingly.
4.7.3 Subject to any express warranty or guarantee given by the company in writing and which is intended by the company to form part of the contract, the company does not:
4.7.3.1 give any warranty or guarantee or make any representations whatsoever in respect of any work carried out by it or any parts or components supplied by it in connection with the work.
4.7.3.2 accept any liability for any latent or other defects in any parts or components referred to in
5. GENERAL
The following provisions shall generally apply to every contract with the company:
5.1 Payments:
5.1.1 All payments shall be made to the company:
5.1.1.1 In South African currency, free of bank and other charges at such address in the Republic of South Africa as the company may require from time to time.
5.1.1.2 Together with VAT thereon, at the applicable rate, unless the company expresses the purchase price to be inclusive of VAT.
5.1.1.3 Without any deduction or set-off.
5.1.2 Any amount not paid by the customer on the due date may, at the election of the company, bear interest at the rate of 2.5% (two and a half per cent) above the prevailing prime overdraft rate of the company’s bankers, from time to time, from the date on which it falls due until it is paid.
5.2 Discounts:
5.2.1 All prices are strictly net and not subject to any discount unless otherwise agreed in writing.
5.2.2 If any discount is agreed to in writing, then the discount shall only be allowed on the net price shown in the monthly statements and then only if the company receives payment on the due date.
5.3 Vis Major:
The customer shall not have any claim of any nature whatsoever against the company for any failure to carry out its obligations under the contract as a result of vis major, including but without being limited to, any strike, lock-out, shortage of labour or materials, delays in transport, accidents of any kind, any default or delay by a sub-contractor or supplier of the company, riot, political or civil disturbances, the elements, any act of any state or government or any other authority, or any other cause whatsoever beyond the company’s control.
5.4 Permits:
If any permit or other consent or approval is required by the company under any law (including any statute, ordinance, by-law, proclamation, regulation or other enactments) for the performance of the contract or any part of it, then the contract shall not take effect until the company obtains that permit, consent or approval.
5.5 Suspension of Work:
Should the manufacture, repair, alteration or enhancement of any components or system be suspended on instructions from the customer or as a result of the failure by the customer to give the company adequate information or instructions which the company may require for that purpose, other delays excluding delays caused by vis major, occasioned through no fault of the company, any additional costs incurred by the company in consequence of that suspension or delay, including where applicable, all the additional costs incurred by the company in keeping its employees at the customer’s premises or site either during or after completion of commissioning, shall be added to the contract price and paid for accordingly by the customer.
5.6 Suspension of company’s Obligations:
If any amount owed by the customer to the company from any cause whatsoever, whether under a contract or not, is not paid on the due date, without prejudice to any other right which it may have, the company may:
5.6.1 Require that all amounts then owed to it by the customer, from any cause whatsoever (and whether under a contract or not), shall immediately become due and payable.
5.6.2 Retain in its possession any components of the customer until all those amounts have been paid.
5.6.3 Suspend, until payment is made, the carrying out of any of its then uncompleted obligations from any cause whatsoever and whether under the contract or not.
5.6.4 terminate any credit facilities granted to the customer, whether under the contract or not.
5.7 Compliance with laws:
The customer shall comply with all laws, including all statutes, ordinances, by-laws, proclamations, regulations and other enactments, which are required to be complied with by the customer or the company for the contract, and the customer indemnifies the company against loss, damage, costs, or other liability incurred by the customer as a result of the customer failing to comply with any such law.
5.8 Representations:
5.8.1 This document, together with any quotation which the company may issue in relation to any particular contract, constitutes the sole record of the agreement between the company and the customer.
5.8.2 Any verbal arrangements, advice, representations or promises, which are not recorded herein, shall not bind the company.
5.8.3 Nothing containiend within these terms and conditions shall be construed as a variation and/or waiver of any applicable prescription periods determined in terms of the Prescription Act 68 1969.
5.9 Cancellation:
5.9.1 The company, may, upon written notice to the customer, cancel a contract or any uncompleted part of it, if the customer:
5.9.1.1 commits a breach of any of the terms or conditions of the contract.
5.9.1.2 being an individual, dies or is provisionally or finally sequestrated or surrenders his estate or,
5.9.1.3 being a partnership, the partnership is terminated.
5.9.1.4 being a company, enters business rescue; or
5.9.1.5 being a company, has any insolvency proceedings instituted against it; or
5.9.1.6 being a company, is placed under provisional or final order of liquidation or judicial management; or
5.9.1.7 compromises or attempts to compromise generally with the customer's creditors.
5.9.2 The company’s rights in terms of 5.9.1 shall not be exhaustive and shall be in addition to its other rights under this document or otherwise.
5.9.3 No relaxation that the company may permit on any one or more occasion regarding any of the customer’s obligations shall prejudice or be regarded as a waiver of the company’s rights to enforce those obligations on any subsequent occasion.
5.9.4 Upon the cancellation/termination of a contract for any reason whatsoever:
5.9.4.1 All amounts then owed by the customer to the company, whether under the contract or otherwise, shall become due and payable forthwith.
5.9.4.2 The company may retake possession of any components sold where ownership has not passed.
5.10 Proper law:
The validity of a contract or this document, its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of its performance or expiration or earlier termination for any reason shall be determined in accordance with the laws of the Republic of South Africa.
5.11 Jurisdiction and litigation:
5.11.1 If the customer is a resident of or carries on business in the Republic of South Africa, then the company shall be entitled to institute proceedings against the customer in any Magistrate’s Court having jurisdiction over the customer even if the cause of action in question otherwise exceeds the jurisdiction of the Court.
5.11.2 If the customer is not a resident of and does not carry-on business in the Republic of South, then the customer consents and submits to the jurisdiction of the South Gauteng High Court, and all Courts of Appeal therefrom for all purposes.
5.11.3 A certificate under the hand of any director or manager of the company in respect of any indebtedness of the customer to the company or in respect of any other fact, matter or thing, including, without limitation, that goods were delivered, or services rendered, shall be prima facie evidence of the customer’s indebtedness to the company and prima facie evidence of the delivery of such goods or the rendering of such services.
5.11.4 In the event of the company taking legal action against the customer because of a breach by the customer of its obligations to the company, including, without limitation, its failure to pay any account, the customer shall pay for all legal costs incurred by the company on the scale as between attorney and client including, without limitation, collection fees, tracing agent’s fees and fees of counsel as on brief.
5.11.5 If these conditions are annexed or attached to, or incorporated by reference, in a document in which the customer’s physical address or addresses are reflected, then the customer agrees to accept delivery of any notice or service of any court process or other documentation, including notifications in terms of the National Credit Act, at such address or any of such addresses.
5.12 Negotiable Instruments:
Any promissory note, bill of exchange, or other negotiable instrument received by the company from the customer shall not be a novation of the debt for which it is given, and the customer waives presentment, a notice of dishonour and protest where applicable.
5.13 Credit Facilities:
5.13.1 The company is under no obligation to extend credit facilities to the customer, and no such facilities shall be extended unless done so specifically by the company in writing.
5.13.2 The nature and extent of such facilities shall at all times be in the company’s sole discretion, and the company reserves the right to amend, vary, suspend or withdraw such facilities at any time.
5.14 Credit Information:
5.14.1 The customer agrees that the information provided by it to the company may be utilised by the company to conduct a credit assessment or affordability assessment in respect of the customer.
5.14.2 The company has the customer’s consent to request and to obtain from any third party including, without limitation, any registered credit bureau, or any credit provider, information relevant to the conduct of a credit assessment or affordability assessment in respect of the customer or to the tracing of the customer.
5.14.3 The company has the customer’s consent to furnish consumer credit information concerning the customer to any third party, including, without limitation, any credit bureau or a credit provider.
5.15 Interpretation:
The headings in these conditions are for convenience only and are not to be taken into account for the purpose of interpreting the contract.
5.16 Exclusion Industries
Festo will not engage with companies falling into the ambit of the following industries
• Weaponry
• Atomic power industry, including usage of products in nuclear power stations.
Additionally, the provisions of our Code of Conduct considering thereabout specified human and ethical principles as well as respectively national and international legal provisions, including respectively current applicable national and international embargo-regulations do apply.
The following regulations are valid:
5.16.1. Without exceptions for deliveries to the next/direct customer to which a Festo Company delivers.
5.16.2. For deliveries (within customer-specific projects) of which Festo knows or based on reliable information has to assume that Festo-products shall be delivered to an end-user (direct or indirect recipient of our customer) who is active in the above-mentioned branches, and the Festo-products will be implemented and used directly in applications which are intended to generate a direct threat to life or physical damage, to health and/or lead to death or does have those exposures as an immediate result or could be used for applications in the weaponry.
Exceptions:
With respect to the education business of Festo Didactic within the military area. The business of Festo Didactic will remain unaffected from the aforementioned provisions insofar as it is a matter of official/national and under international law approved military organisations/institutions, including national approved and assigned weapon producers, and additional deliveries are solely intended for technological training material and the conduct of seminars/workshops with the goal to train exercise and usage of our products in such organisations/institutions for educational purpose, unless such kind of business (deliveries and performance) are forbidden by national and/or international embargo-regulations.
6. Export control
We are committed to complying with all applicable export control laws and regulations. Our products and services may be subject to export controls, including but not limited to the laws and regulations of the United States, European Union, African Union and any other applicable laws and regulations. We require all customers to comply with these laws and regulations and to not engage in any unauthorised export, re-export, or transfer of our products or services to prohibited individuals, entities, or countries. Customers are responsible for obtaining any necessary licenses or approvals before exporting or re-exporting our products or services. Failure to comply with these export control laws and regulations may result in legal consequences, including the revocation of export privileges, fines, and imprisonment. By using our products or services, customers agree to comply with all applicable export control laws and regulations.
6.1 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 (collectively called “Festo Performance”) by Festo to the customer 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 affected sale agreement shall be considered not concluded with respect to the parts affected.
6.2 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.
6.3 In the event of termination pursuant to section 6.2, the customer is excluded from raising a claim for any damage or other rights on account of the termination.
6.4 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 violation of this section 6.4 by the customer shall constitute a material breach of an essential element of any affected sale agreement and this Agreement and Festo shall be entitled to seek appropriate remedies. In addition, section 6.2 and 6.3 shall apply respectively. The customer shall immediately inform Festo about any problems in applying this section 6.4 including any relevant activities by third parties that could frustrate the purpose of section 6.4. The customer shall make available to Festo information concerning compliance with the obligations under section 6.4 immediately upon request by Festo.