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 subject to any quotation signed by an authorized representative of the company, including any variation recorded in the schedule, and in the event of any conflict between the provisions of the quotation and these terms and conditions, the provisions of the quotation shall prevail.
1.3 Subject to 1.2, no variation of these terms and conditions shall apply, either at the time the customer's order is accepted or at any time afterwards, unless the variation in question is expressly agreed to in writing and signed by an authorized 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 in the contract between the company and the customer unless expressly confirmed in writing by an authorized 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 those are correct; consequently, the company will not be liable should the specifications or dimensions not be correctly stated.
2.2 Should there be any conflict between the description of the equipment, specifications and 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.
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 on presentation of invoice. Where credit facilities are extended by the company, in writing, the purchase price shall be paid within 30 (thirty) days from the date of the company's statement.
3.1.2 If the delivery is to be made by installments, then each installment will be invoiced and paid for separately but otherwise in accordance with 3.1.1
3.1.3 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 all the company's costs, ruling or applying at the date on which the purchase price is first quoted by the company, of obtaining and/or assembling the components for resale or manufacturing the components for sale to the customer, including (without being limited to), if applicable, the costs of labor and materials, packaging, customs and excise duties, shipping, freight, railage and other transportation costs, landing charges, consular fees and other import charges, and the cost of foreign exchange. All prices exclude Value Added Tax. If no price is quoted on, the purchase price shall be the company’s usual price as at the date of delivery.
3.2.2 If any of these costs are afterwards increased, for any reason beyond the company's control or arising in the ordinary course of its business, then the purchase price shall be increased by the excess or if the excess cannot be determined exactly, by a reasonable allowance for it.
3.2.3 If the customer disputes any increase in the purchase price in terms of 3.2.2, the increase shall be determined by the company’s then auditors, acting as experts and not as arbitrators and their decision shall be final and binding on the company and the customer. The auditors' charges for determining such increase shall be paid by the customer.
3.3 Delivery:
3.3.1 Unless otherwise agreed in writing, delivery shall be made to the customer at the company's premises.
3.3.2 The customer shall be responsible for procuring and arranging for the transportation of the components from the company’s premises to any destination required by the customer.
3.3.3 Delivery shall be completed when the components are handed to the customer or its agent at the company's premises and before loading commences.
3.3.4 After completion of delivery the company shall not be responsible for the arrival of the components at their destination or for any loss of or damage to the components from any cause whatsoever, while in transit.
3.3.5 Should the company at the customer's request agree to engage a carrier to transport the components for the customer then:
3.3.5.1 the company is authorized to engage a carrier on such terms and conditions as it deems fit;
3.3.5.2 the customer shall indemnify the company against all demands and claims which may be made against it by the carrier so engaged and all liability which the company may incur to the carrier arising out of the loading, transportation and unloading of the components.
3.3.6 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:
3.3.6.1 the availability to the company of any materials, software and supplies required for the manufacture of the components;
3.3.6.2 the timeous receipt by the company of any instructions (including all drawings and specifications) required by the company from the customer for the manufacture of the components.
3.3.7 Time shall not be of the essence of the contract.
3.3.8 If the customer fails to take delivery of the components on due date, or, where no date is specified, on demand, then:
3.3.8.1 the risk shall immediately pass from the company to the customer;
3.3.8.2 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.
3.3.9 If delivery is made in installments then the provisions of this clause 3.3 shall apply to each installment.
3.4 Guarantee of Products Manufactured:
Subject to the conditions hereinafter contained, the company guarantees all components that have been manufactured by itself for a period of 6 months from the date of delivery or installation, whichever occurs later, against any defect attributable to faulty material or workmanship. 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, 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:
3.4.1 the customer shall have reported any defect to the company immediately the defect manifests itself;
3.4.2 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;
3.4.3 the defect was not caused or contributed to by exposure to direct weather conditions or by operation in abnormal atmospheric conditions;
3.4.4 no repairs or alterations to the product were carried out by the customer or any third party;
3.4.5 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.
3.4.6 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;
3.4.7 the working hours of components are not to exceed 8 (eight) hours continuous working during any 24 (twenty-four) hour period.
3.5 Guarantee of Products Not Manufactured:
Without imposing any obligation on the company, the company will use its best endeavors to pass on to the customer the benefit (with the corresponding liabilities) of any guarantee received by the company from the supplier of components not manufactured by the company. Nothing herein contained shall, however, 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.
3.6 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.
3.7 Risk:
Subject to 3.3.8.1, the risk shall pass to the customer when the components leave the company's premises or on delivery to the customer whichever is sooner.
3.8 Exclusions:
3.8.1 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.
3.8.2 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 the customer shall not have any claim of any nature whatsoever against the company:
3.8.2.1 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;
3.8.2.2 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.
3.8.3 The company shall be exempted from and shall not be liable under any circumstance whatsoever for:
3.8.3.1 any direct/indirect and/or consequential damages of any nature or any 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;
3.8.3.2 any claim for any alleged shortage in delivery or failure of the components to comply with the contract, unless written notice of the claim is received by the company within 7 (seven) days after receipt of the components by the customer or if applicable, after they have been commissioned;
3.8.3.3 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 subcontractors.
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 at the time 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 being 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; or
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 auditors’ charges for determining such increase shall be paid by the customer.
4.3 Payments:
4.3.1 The contract price shall be payable on presentation of invoice. Where credit facilities are extended by the company in writing, 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 installments then each installment 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 percent) of the price of the components shall be payable upon delivery and the remaining 10% (ten percent), plus the company's installation and commissioning charges, shall be payable on completion.
4.4 Delivery:
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; and
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 authorized 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/indirect and/or consequential damages of any nature or any 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 defect in any parts or components referred to in 4.7.3.1.
5. GENERAL
The following provisions shall apply generally 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 purchase price is expressed by the company 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 due date may, at the election of the company, bear interest at the rate of 2% (two percent) per month according to section 103 of the National Credit Act.
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 payment is received by the company on 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 perm it or other consent or approval is required by the company under any law (including any statute, ordinance, by-law, proclamation, regulation or other enactment) 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, the installation of any components, the design, repair, alteration or enhancement of any system, or the installation or implementation of any system, be suspended on instructions from the customer, or as a result of the failure by the customer to give the company any or adequate information or instructions which the company may require for that purpose, or as a result of any 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 contact or not, is not paid on 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 purpose of the contract, and the customer indemnifies the company against loss, damage, costs, or other liability incurred by the company 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 may be issued by the company 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 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; or
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; or
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 which the company may permit on any one or more occasion in regard to 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 Dispute Resolution:
5.10.1 In the event of any controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, termination, validity or any breach thereof (“Dispute”), arising between the Parties, such Dispute will in the first instance be referred to duly authorised senior representatives of each of the Parties for resolution.
5.10.2 Save for the above provision regarding a Dispute, and save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, any dispute which arises between the Parties in connection with:
5.10.2.1 the formation or existence of;
5.10.2.2 the implementation of;
5.10.2.3 the interpretation or application of the provisions of;
5.10.2.4 the Parties’ respective rights and obligations in terms of or arising out of, or the breach or termination of;
5.10.2.5 the validity, enforceability, rectification, termination or cancellation, whether in whole or in part of; and/or
5.10.2.6 any documents furnished by the parties pursuant to the provisions of, this Agreement or which relates in any way to any matter affecting the interests of the Parties in terms of this Agreement, that dispute shall be referred to and be determined by arbitration in terms of the Rules of the Arbitration Foundation of Southern Africa or any successor thereto (“AFSA”).
5.10.3 Save for clause being complied with first, any Party to this Agreement may then demand that a Dispute be determined in terms of this clause by written notice given to the other Party.
5.10.4 This clause shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
5.10.5 The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA (“Rules”) should any Party by written notice given to the other Parties require the arbitration to be held on an urgent basis. In such event the Parties agree to apply jointly to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
5.10.6 The arbitrator shall be, if the matter in dispute is principally:
5.10.6.1 a legal matter, a senior counsel advocate of at least 15 (fifteen) years standing;
5.10.6.2 an accounting matter, a chartered accountant of at least 15 (fifteen) years standing;
5.10.6.3 any other matter, a senior counsel advocate practicing at the Johannesburg Bar of at least 15 (fifteen) years standing.
5.10.3 Should the Parties to the dispute fail to agree in writing whether the dispute is principally a legal, accounting or other matter within 7 (seven) days after the arbitration was demanded, the matter shall be deemed to be a legal matter.
5.10.4 Should the Parties fail to agree in writing on an arbitrator within 14 (fourteen) days after the giving of notice in terms of this, the arbitrator shall be appointed at the written request of any of the Parties to the dispute in terms of the Rules of AFSA.
5.10.5 The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court at the instance of any of the Parties to the dispute.
5.10.6 The Parties agree to keep the arbitration including the subject-matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of an order to be made in terms of the above provisions.
5.10.7 Unless otherwise agreed in writing by all the Parties, such arbitration shall be held with only the Parties to the arbitration and their representatives present thereat, in English and in Johannesburg, within the Republic of South Africa.
5.10.8 The provisions of this clause:
5.10.8.1 constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and
5.10.8.2 are severable from the rest of this Agreement and shall remain in effect despite invalidity for any reason of this Agreement.
5.11 Governing 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.
5.12 Jurisdiction and litigation:
5.12.3 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 Magistrates’ Court having jurisdiction over the customer.
5.12.4 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.
5.12.5 A certificate signed by 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 rendering of such services.
5.12.6 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 agents’ fees and fees of counsel as on brief.
5.12.7 In the event that 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.
5.13 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, notice of dishonor and protest where applicable.
5.14 Credit Facilities:
5.14.3 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.
5.14.4 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.
5.15 Credit Information:
5.15.3 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.
5.15.4 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.
5.15.5 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 credit provider.
5.16 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.
5.17 Exclusion Industries
Festo will not engage with companies falling into the ambit of the following industries:
• Weaponry
• Pyrotechny
• 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.
These regulations are valid
5.16.1. without exceptions for deliveries to the next/direct customer to which a Festo Company delivers, as well as
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 immediate result, or could be used for applications in the weaponry.
Exceptions:
With respect to the education business of Festo Didactic within military area. 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 additionaly 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-regulation.