Terms and Conditions of Sale of Festo (China) Ltd.
1.1 All deliveries and services from Festo (China) Ltd., 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 for Festo unless they have been agreed to in writing by Festo.
1.2 The use of Festo software and customised software is subject to separate software user conditions.
1.3 The placing of an order or acceptance of goods delivered by Festo shall constitute the customer‘s agreement to our conditions.
2. Quotation and delivery
2.1 All quotations unless limited in time (e.g. the quotation of CS project) are subject to confirmation; our written order confirmations shall form the basis of the contract and the definitive factor for the scope of the delivery. This also applies if the customer has requested a specific tender. Orders given by the customer are binding for the customer and shall be deemed to have been accepted upon presentation of the order confirmation by Festo. This shall be deemed to have been presented in due time in the case of catalogue components if presented together with the issued invoice and the delivery. In the case of quotations with a time limit and a time stated for acceptance, the quotation shall not be binding, if an order confirmation is not submitted in time. Festo reserves the right to vary the design and make changes to technical data and performance characteristics insofar as these are for the purpose of technical progress. Festo will announce any such changes, and any product discontinuations, with an appropriate period of notice in its pneumatics catalogue on the Festo website (www.festo.com).
2.2 Any documentation submitted with the request for tender or an order, such as drawings, specifications, material, samples, tools, models or similar and made available to Festo, 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.
2.3 Any documentation added by Festo to a quotation in a manner similar to that mentioned above shall remain the property of Festo. The customer undertakes not to use this documentation for the purpose of any other contracts or to reproduce or make it available to third parties.
2.4 Any apparent mistakes, printing, computational, spelling or calculation errors shall not be binding for Festo and do not give the customer the right to claim for damages.
2.5 Insofar as Festo 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 for customers to separate order and for an additional charge.
3. Prices and payment
3.1 Prices apply based on the order confirmation. If the prices on the order do not include VAT, the VAT shall be included in the invoices. .
3.2 The despatch and packaging costs shall be met by the customer. Festo reserves the right to implement price changes if the basis for our calculations has been altered.
3.3 The invoice amount consists of contract price and VAT.
3.4 If the period of payment has been exceeded, Festo reserves the right to claim the damages or surcharges caused by delayed performance. The caculation of the surcharge shall be according to the associated clauses in the Appendix of separate contract.
3.5 Assembly and repair costs and product information costs are payable net.
3.6 In the case of orders with a net goods value of less than RMB 800 yuan, Festo will add a small-order surcharge at RMB 50 yuan.
3.7 The withholding of payments or offsetting of potential counterclaims is not permissible other than in the case of recognised or legally determined counterclaims.
4. Delivery period
4.1 The date specified in the order confirmation is binding only if all the technical and commercial details have been clarified by that time. The customer undertakes to provide the materials essential for the order to be executed on time. The delivery date is deemed to have been adhered to, if the object of delivery has left the Festo works by the said date or if the customer has been advised of its readiness for shipment.
4.2 Partial and early deliveries by Festo are permissible.
4.3 The delivery delay increases proportionately in the event of difficulties attributable to vis major. This includes actions as part of industrial disputes, in particular strikes and lockouts. It also applies in the event of unforeseen difficulties or circumstances arising with subcontractors.
4.4 Moreover, Festo will not be responsible in the above described circumstances, if these occur during an already existing delay.
4.5 If despatch is delayed at the request of the customer, Festo shall after a reasonable period of time be entitled to dispose otherwise of the delivery item or to supply the customer to a correspondingly extended time limit and to charge the customer storage costs.
Customer shall inspect the type, quantity, package, surface quality, specification, etc. within 24 hours after the goods arrive the place agreed by both parties according to the provisions of the contract and order, and accept the goods. If customer doesn’t file a claim or fails to accept the goods within the specified time, it shall be deemed to have accepted the goods.
6. Passage of risk
6.1 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.
6.2 At the request of the customer, Festo shall arrange at the customer’s expense insurance of the consignment against theft, breakage, transport, fire and water damage and any other insurable risks.
7. Retention of ownership
7.1 The goods supplied shall remain the property of Festo until all debts owed by the customer are settled in full including any balances existing from the business relationship with the customer irrespective of statutory source. The enforcement of our right to retain ownership should not be regarded as a withdrawal from contract. On the contrary, it ensures our rights from the contract of sale in addition to Festo’s entitlement to the return of Festo’s property, in particular to the reimbursement of damages and lost profits.
7.2 Notwithstanding the provisions of the preceding paragraph, the ownership of the changed and returned goods shall automatically be transferred to Festo from customer regardless of the cause.
7.3 All relevant Intellectual Property rights related to the goods shall still be owned by the licensor after the ownership of the goods has been transferred to the customer.
7.4 In the event of the customer not conforming to the contract, in particular in the case of a delay in payment, the total balance due shall become payable immediately. In such cases, Festo has the right to recover possession of the goods following a demand for payment and to collect these from the customer’s premises. In such an event, the customer shall not have any right to ownership.
8. Use of software
8.1 In return for remuneration, the customer shall receive non-exclusive, non-transferrable and perpetual utilisation rights for Festo software of all kinds 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.
8.2 Festo will supply installation and commissioning instructions containing relevant safety instructions for its software in printed form. All other documentation will be supplied only in digital form with on-line help. When new software releases are supplied, these will also be sent in digital form.
8.3 The transfer of software to third parties requires the permission of Festo. If the software is provided for the purpose of resale, the third party must agree to these conditions. Modifications are not permissible.
8.4 In the event of a violation of these conditions, the purchaser 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.
8.5 The conditions described above do not apply to exclusive customer-specific software developed on the basis of specifications provided by the customer. This software is developed and customised by Festo as part of a contractually produced complete control system making use of modular software modules (standard softward modules) from Festo suitable for a wide range of applications and adapted to the contractual performance requirements. 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.
9. Returned goods
No returns for goods will be allowed without Festo's prior written acceptance. Only unused active items, non obsolete in current demand will be considered by Festo for return for goods. Only request raise within 30 calendar days from shipment date will be considered by Festo for return for goods. Products, installations, systems that were designed and developed according to customer specifications are not returnable for goods. Credit will be based upon prices of products in effect at time of return or time of invoicing. However, the company reserves the right to impose a minimum value on returned goods which is subject to handling, re-inspection and any additional expense incurred in restoring goods to saleable condition, as determined by our inspection and including all shipping charges incurred in the return.
10. Warranty claims
Festo warrants its products to be free from defects in materials and workmanship, for a period of 12 months from date of delivery to the customer. Subject to the provisions in Article 14 herein and excluding any further claims, Festo shall be liable for defects of quality and legality of title and warrants as follows:
10.1 Defects of quality:
a) 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.
b) 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.
c) 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.
d) The defects shall be notified immediately in writing, however, at the latest within 8 days after receipt of goods.
e) If the defect complaint is justified, Festo shall bear of the immediate costs – insofar as the complaint proves to be founded – the cost of the replacement part, shipping thereof as well as reasonable costs related to uninstallation and reinstallation, insofar as such procedure does not result in unreasonable demands made on Festo.
f) The customer shall allow Festo time and opportunity to effect the repair or replacement delivery, otherwise Festo shall not be held liable for the ensuing consequences. The customer, with Festo’s prior consent, shall have the right to rectify defects itself or have them rectified by a third party in such urgent cases where there is a danger to operational safety and to prevent extensive damage, and to claim reimbursement of necessary costs from Festo. This shall also apply in the cases where Festo is causing undue delay in remedying the defect. Should the customer or a third party carry out unqualified repairs, Festo shall not be held liable for any consequences thereof.
g) Other claims shall be determined as stipulated in Article 14 herein.
h) In addition, Festo shall not be held liable for any damage on foot of the following grounds: unsuitable or improper use or storage, faulty installation by the customer or a third party, unauthorised repair attempts and modifications, natural wear, erroneous or negligent handling, chemical effects and electrical effects etc. outside our power, as well as in case of non-intended use and non-compliance with our information and details out of our documentation (e.g. user manuals, catalogue sheets), irrespective of the method of such information, in particular in relation to the conditions of use of our 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.
10.2 Defects of title:
a) If the use of the delivery item infringes other’s 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.
b) 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.
c) In addition, Festo shall indemnify the customer in relation to any non-disputed claim or legally asserted claim raised by the relevant copyright owners.
d) Subject to Article 14 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.
Unless Festo has given a prior consent in writing, the supplied goods can only be used to manufacture customer’s own products, and the customer is not allowed to resell the supplied goods, directly or indirectly, to any third party, including resell the component(s) removed from the goods. If customer voilates this term or Festo has reasonable grounds for doubt of customer’s voilating this term, Festo has the right to refuse to accept customer’s orders, and customer shall compensate for all losses incurred to Festo.
12. Export control
12.1 The parties agree that the goods shall be delivered subject to all applicable export controls or restrictions imposed on technology and products by any country or organisation or nation, including the China, United Nations, European Union and United States, which are enforceable in the jurisdiction of Festo. The cusotmer acknowledges that the goods and all related technical information, documents and materials may not be imported or exported, re-exported, transhipped, traded, diverted or transferred, directly or indirectly, contrary to such controls or restrictions.
12.2 On Festo’s request, the customer shall furnish Festo with all relevant certificates relating to export control laws, regulations and restrictions, such as, but not limited to, end-user certificates, in form and content specified by Festo.
13. Impossibility of performance, default
13.1 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.
13.2 In the event of a delay of performance by Festo as defined by Article 4, where the customer guarantees us 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.
13.3 Should the customer incur damage caused by a delay for which Festo is responsible, the customer shall be entitled to claim liquidated damages for default. This liquidated damages shall amount to, for each full week of the delay and to the exclusion of further claims, 0.5 % and aggregately no more than 3 % of the value of the delayed part of the delivery.
13.4 Further claims as a result of late delivery shall be expressly excluded.
13.5 Customer hereby agrees to fully compensate Festo and hold Festo harmless from any losses, damages, costs, expenses, liabilities or claims arising out of customer’s voilation of this Terms and Conditions of Sale of Festo (China) Ltd.
14.1 In any event, and whatever the cause of action, Festo’s maximum total liability to the Customer pursuant to and in connection with this Agreement – including the obligation to pay penalties, liquidated damages and regardless of cause, degree of fault, negligence, breach of contract or otherwise – shall be limited to one third (1/3) of the individual order value in respect of which the cause of Festo’s liability has arisen.
14.2 In no event shall any pursuant to this Agreement Festo be liable to any party for any indirect or other consequential damages including but not limited to, any loss of revenue, loss of profits, loss of anticipated benefits and savings, loss of business interruption, loss of contracts or business opportunities, loss of goodwill, loss or corruption of data, loss of investment and opportunity cost, claims of third parties and all associated and incidental costs and expenses etc.
14.3 Festo shall not be liable for defects other than to the delivery item, for whatever legal reasons, only in case of intent, gross negligence of bodies or executives, culpable violation of life, body, health, defects whose presence was not disclosed by Festo or its managerial personnels 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.
14.4 Any further claims shall be expressly excluded.
15. Statute of limitation
The statute of limitation for any and all claims, no matter what legal reason, shall be consistent with the relevant provisions of the law of PR. China.
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.
Neither of the parties may assign its rights or obligations hereunder, in whole or in part, to a third party without the other party’s prior written consent.
18. Place of jurisdiction
The Pudong People’s Court in Shanghai, China, shall be the competent court of jurisdiction for all disputes arising from the contractual relationship.
19. Applicable law
The law of the People’s Republic of China shall apply to the contractual relationship between Festo and the customer to the exclusion of all bi and/or multilateral agreements concerning the purchase of movables, in particular to the exclusion of the UN agreement relating to contracts regarding the international purchase of goods of 11.04.1980 (CISG).
20.1 Customer hereby represents and confirms that it and all of its directors, officers and employees has agreed with the Code of Conduct of Festo.
20.2 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.
20.3 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.