General Terms and Conditions of Purchase

1. In General
1. 1.1 Orders of KUBOTA Baumaschinen GmbH (in the following: „KUBOTA“) in relation to enterprises, artificial persons in private and public law will exclusively take place on the basis of the following Terms and Conditions of Purchase. This also applies, if in the case of a current business relation, there is no explicit reference to these terms.
2. 1.2 These general Terms and Conditions of Purchase apply exclusively. Terms and conditions that deviate from these Terms and Conditions of Purchase or from legal regulations are not acknowledged by KUBOTA, insofar not agreed upon in writing. Opposing conditions of Supplier do not apply, also if KUBOTA did not expressly contradicted them or unreservedly accepted deliveries and services (in the following „Deliveries“). If terms were agreed for a special order that deviate from these Terms and Conditions of Purchase, these purchasing conditions will be considered minor and supplementary.
2. Contract Termination, Withdrawal
1. 2.1 If KUBOTA does not contradict the order in writing within a period of 2 weeks from the order date, it will be considered as accepted if the order is placed within the context of an already existing contractual relation and KUBOTA point this out to Supplier in the respective order.
2. 2.2 If the Supplier’s confirmation of order contains deviations, additions or restrictions of the order, Supplier should particularly emphasize these as such. Such deviations, additions or restrictions only become binding by a written affirmation from KUBOTA .
3. 2.3 When Supplier submits an offer to KUBOTA and manufactures drafts or manufactures samples, this takes place free of charge for KUBOTA, insofar not agreed upon differently in writing. KUBOTA may accept Supplier’s offer within 2 weeks after receipt. Until this period expires, Supplier cannot recall its offer.
4. 2.4 KUBOTA has the right at any time after contract termination to change the specification for construction and execution, insofar this is reasonable to Supplier and Supplier is reimbursed for appropriate expenditures including a proportionate profit.
5. 2.5 KUBOTA has the right without prejudice to other rights of withdrawal, to withdraw unconditionally, totally or partly from the contract (i) if Supplier, without just reason, does not meet substantial obligations to KUBOTA , (ii) if insolvency proceedings against Supplier’s property are started, or is dismissed for lack of sufficient assets, (iii) or in case of a substantial decrease of Supplier’s property which would infringe on KUBOTA’s rights.
3. Prices, Payments and Invoices
1. 3.1 The agreed prices are, unless otherwise agreed in writing, net fixed prices deliverd at place (DAP). They include all expenditures and additional expenses in connection with deliveries made by Supplier, in particular packing, transport, unloading, insurance and Customs clearance.
2. 3.2 If a price was agreed upon “ex factory”, KUBOTA will only accept the most favorable freight charges, unless KUBOTA explicitly prescribes a certain mode of transport.
3. 3.3 Payments will be made by KUBOTA within 14 days with a 3% discount and within 30 days net. The payment period begins as soon as full delivery is received, or, in case of deliveries that require inspection, not before a written approval by KUBOTA is sent to Supplier and KUBOTA has received the proper invoice. A full delivery also comprises the delivery of documentation or test certificates, if applicable.
4. 3.4 Each invoice must contain the commission number, order number, KUBOTA’s part number for each single position, if applicable project number and Supplier’s VAT number. VAT must be identified separately. Invoices must be sent by mail to KUBOTA on the day of delivery. They may not be attached to the shipment.
5. 3.5 KUBOTA has the right to pay by transfer. Timely payment depends on the carrying out of transaction by KUBOTA.
6. 3.6 Payments of KUBOTA should not be considered as approval of the delivery nor do they acknowledge the delivery as being according to agreement or settled. In case of incorrect or incomplete delivery, KUBOTA has the right, without prejudice to other rights, to withhold payments on demands from the commercial relation to appropriate extent, until delivery requirements have been met.
7. 3.7 The handover of Supplier’s demands against KUBOTA to a third party without the written consent of KUBOTA is out of the question.
4. Delivery Times and Delays
1. 4.1 Agreed times of delivery are binding. Meeting the delivery dates is a substantial obligation of Supplier. If delays are to be expected or actually occur, Supplier has to inform KUBOTA in writing immediately without being asked, indicating reason and prospective duration of the delay; KUBOTA’s claims due to the delivery delay remain untouched. Delivery before the agreed upon time is permitted only after previous consent by KUBOTA.
2. 4.2 In case Supplier fails to deliver, KUBOTA is entitled to its statutory rights. After an appropriate respite with a fruitless outcome, KUBOTA is in particular entitled to require payment for damages instead of Supplier’s delivery and may withdraw from the contract.
3. 4.3 If Supplier fails to deliver, KUBOTA may require a contractual penalty of 1% of the value of the failed delivery per calendar week in which the respective date is not met, however, to a maximum of 5% of the failed and/or faulty delivery value. KUBOTA may claim the contractual penalty without explicit reservation at acceptance of the delivery up to the time of the final payment. KUBOTA reserves the right to claim payment of damages going beyond the contractual penalty. However, any paid contractual penalties are to be taken into account.
4. 4.4 Supplier has a right of retention or set-off, insofar a counterclaim is legally established or undisputed.
5. Delivery, Shipping, Execution
1. 5.1 As far as necessary, Supplier’s goods are to be provided with CE-marking and an EEC-Declaration of Conformity or an EEC-Installation declaration. Relevant certificates, test certificates, remittance notes and pieces of evidence as well as manuals, operating and assembly instructions, risk analyses or other documentation, being part of the scope of supply, are to be provided free of charge. Certificates of origin of Supplier’s upstream supplier are to be submitted to KUBOTA on request. Costs of a late dispatching due to late or faulty documentation will go to Supplier’s account. Until the complete, required documentation is received, the goods will be stored at KUBOTA’s at the expense and risk of Supplier.
2. 5.2 Supplier is obligated to inform KUBOTA in writing, if the goods are not unrestrictedly suitable for the use as stated in the contract or if special safety regulations must be observed when handling them, and/or if health, safety or environmental risks may occur during use.
3. 5.3 Supplier has to notify changes he made to the goods before the delivery. The same applies if Supplier buys the goods or parts of it from a third party and this third party makes changes that are noticed by Supplier. If Supplier intends to stop production or supply, he also has to notify KUBOTA.
4. 5.4 Shipping instructions of KUBOTA, insofar available, are to be kept. On forwarding notes, waybills and package notes, order numbers, order dates with specified gross and net weight of each individual parcel must be stated, and, if so stated in the order, the consignees are to be indicated. The packing notes and shipment itself should also contain this information. In case of parts delivery, the individual types of parts must be packed separately and be marked clearly with the associated part number. Damages due to improper packing go to the account of Supplier.
5. 5.5 In case Supplier or one of his subcontractors needs to work on the factory premises of KUBOTA to execute the order, factory regulations are to be kept. The existing regulations for entering and leaving the manufacturing plant are to be kept.
6. Passage of Risk, Delivery, Rights of Ownership
1. 6.1 Unless otherwise agreed, KUBOTA is only obliged to accept work rendered delivery. KUBOTA may declare acceptance up to 6 weeks after announcement of the completion of the delivery by Supplier. KUBOTA is not obligated to take delivery of single parts of the work.
2. 6.2 KUBOTA has the right to refuse acceptance of an unsatisfactory delivery. In all other respects KUBOTA’s obligations conform to legal regulations.
3. 6.3 Independently of the agreed upon quotation, the risk passes on to KUBOTA in case of delivery without setting up or assembling upon receipt and confirmation at KUBOTA’s delivery address and in case of setting up or assembling upon successful final check by KUBOTA. The start-up or use do not replace the acceptance declaration of KUBOTA.
4. 6.4 Upon delivery, the goods become property of KUBOTA. If a retention of title is agreed upon in favour of Supplier, at first it will serve as a simple retention of title; however, regardless of the retention of title, at any time KUBOTA has the right to use the goods in the context of the usual course of business, to process and/or assign as well transfer the property of the goods to a third party, even if this would result in nullification of the retention of title.
7. Quality Assurance
1. 7.1 In the context of his general and profession know-how and expertise, Supplier autonomously has to examine KUBOTA’s designs, calculations, specifications and other technical details for any errors or contradictions. If Supplier were to find any irregularities or if he has any doubts, Supplier should inform KUBOTA immediately in writing, so that afterwards the problems may be solved in collaboration. The same applies to failing technical specifications.
2. 7.2 Supplier has to maintain a quality assurance system which corresponds with newest standards of the relevant supply industry. Supplier is solely responsible to implement the quality assurance measures including the necessary documentation. Supplier will make this documentation available to KUBOTA upon request. Supplier will keep this documentation in accordance with the legal regulations, however, at least 10 years. Insofar individual inspection certificates are owed for deliveries, Supplier will send these enclosed with the delivery. After arranging a date with Supplier, KUBOTA has the right to ascertain the manner in which Supplier maintains the desired quality standard by way of examinations and audits at Supplier’s manufacturing plant, and in particular by checking procedures for inspection and release.
3. 7.3 The complete or partial subcontracting of an order by Supplier is only permitted after written agreement from KUBOTA, unless it only concerns supply of standard goods or raw materials. KUBOTA is entitled to have its consent depend on the fact that the subcontractor is obligated to meet the requirements pursuant to section 7.2. Partial, over- or under-deliveries require KUBOTA’s consent in writing.
4. 7.4 Before delivery, Supplier must carry out a thorough outgoing inspection. Goods that did not pass this inspection, should not be delivered. After delivery KUBOTA examines the goods only with regard to type (identity check), quantity as well as for any transport damages and obvious defects. KUBOTA is not bound to a thorough examination.
8. Material Defects and Defects of Title
1. 8.1 Deliveries are to be made free from material defects and defects of title. They have to meet the standards of modern science and technology and have to meet the legal requirements of environmental protection and industrial safety as well as of relevant standards and the agreed application, and must be suitable for normal use.
2. 8.2 In case of a material defect or a defect of title, KUBOTA is entitled to the full relevant statutory rights and claims. In any case KUBOTA has the right to require from Supplier immediate rectification of the defect or new delivery of faultless goods. All costs and expenditures for KUBOTA resulting from the replacement will come to the expense of Supplier, this also applies to additional costs for relocating the goods. KUBOTA’s right to compensation, in particular the right to compensation instead of service, remains explicitly unimpaired.
3. 8.3 KUBOTA has the right, at the expense of Supplier and without prejudice to its warranty for defects, to remedy the defect themselves, if there is danger of KUBOTA being declaired in default, or if special urgency is required. In such a case, KUBOTA will inform Supplier – as far as possible and reasonable – about this particular default.
4. 8.4 In case of a material defect or a defect of title KUBOTA has the right to require the lump sum substitution of the expenditures resulting from the claim in the amount of EUR 50.00 for each claim. The claim to exeeding damages remains unimpaired. Supplier is obliged to present evidence that none or only a substantially smaller damage was caused.
5. 8.5 The period of limitation for claims is 36 months starting from the legal beginning of limitation, unless otherwise agreed or if a longer period of limitation is set down by law, e.g. according to § 438 par. 1 No. 1 BGB (material right third party), §§ 438 par.1 No. 2 BGB (Building; oject which was used for a building), 634 A par. 1 No. 2 BGB (building; Planning and monitoring service herefore); §§ 438 par. 3, 634 A par. 3 BGB (Fraud). Goods that were delivered as replacement of faulty goods or repaired goods, are subject to a new period of limitation of 24 months, unless replacement and/or repair were done out of leniency and without acknowledgment of legal obligation. If the originally applicable remaining period of limitation should be longer, this applies.
6. 8.6 A complaint of KUBOTA within the limitation period will suspense the limitation until there is an agreement with Supplier with regard to repair and any consequences; however, the suspension ends 6 months after final rejection of the claim by Supplier. The period of limitation starts at the earliest 3 months after the end of the suspension, however, never before expiration of the guarantee period.
9. Industrial Property Rights
1. 9.1 Supplier ensures that in connection with its delivery no rights of third parties are violated and no vested titles, industrial property rights or copyrights (in the following : “property rights”) exist in connection with the goods, which could impair or exclude their free use by KUBOTA.
2. 9.2 If a third party lodges a complaint against KUBOTA because of violation of a property right, Supplier is obligated to guarantee the usefulness of the product to be manufactured by KUBOTA for their customer, if necessary in a manner that, at Supplier’s convenience, the property right-violating parts are altered or replaced by property right-free parts. Supplier is responsible for all damages, in particular claims of KUBOTA customers or other third parties, which are the result of a property right violation due to intended assignment of the goods.
3. 9.3 Supplier exempts KUBOTA from all claims from third parties due to a property right violation, which are lodged against KUBOTA or against KUBOTA customers, where KUBOTA must exempt its customers. Supplier is not entitled to enter into any agreements with third party without KUBOTA’s consent. The exemption obligation of Supplier refers to all expenditures, which arise for KUBOTA from or in connection with the demand of third parties.
4. 9.4 KUBOTA reserves all rights of ownership, rights of use, of flavour, of property, of trademark, of character and copyright, and other property rights, in particular with regard to illustrations, drawings and other documents, designs, design proposals, templates, work documents, forms, copyrights, know-how and calculations as well as at software provided by KUBOTA in physical or electronic form.
10. Manufacturer’s Liability, Insurance
1. 10.1 If Supplier is liable for product damage, he has to exempt KUBOTA from requirements from third parties to the extent, that the damage was caused within Supplier’s sphere of authority and organisation area and Supplier is liable in external circumstance.
2. 10.2 In the context of his exemption obligation Supplier has to reimburse for the expenses, that result from and in connection with claims of third party, including a callback, a field action or a warning from KUBOTA or other information of customers. Larger legal claims remain unimpaired.
3. 10.3 Regardless of other claims of KUBOTA, Supplier is obligated to have an extended product liability insurance with an appropriate covering sum per claim.
11. Provisions, Manufacturing Equipment
1. 11.1 Materials and products of any kind furnished by KUBOTA (in the following “provisions”), remain property of KUBOTA. A processing or a reconstruction by Supplier is made for KUBOTA as manufacturer. If the provisions are processed with other objects not belonging to KUBOTA, KUBOTA acquires attribution of ownership of the new article in proportion to the value of provision (cost price) and the value of the other processed item at the time of processing and/or mix-up.
2. 11.2 Tools, designs, calculations, samples, models and other tooling, which KUBOTA furnished to Supplier (in the following “manufacturing equipment”), remain the property of KUBOTA and must be identified and separately stored as such. KUBOTA has the right to visit the place where the manufacturing equipment are stored. If these or part of these are passed on to third party with KUBOTA’s consent, the KUBOTA’ reservation of ownership is to be shown to third party in writing. KUBOTA is to be informed immediately in case snatch measures from third party (e.g. seizing) threaten and must be handed all information and documents KUBOTA need for asserting its rights.
3. 11.3 Supplier is obligated to use provisions and manufacturing equipment as well as all further confidential information and documents received from KUBOTA exclusively for the production of goods ordered by KUBOTA. Supplier will check the quality of provisions and manufacturing equipment immediately after their receipt. Supplier has to carry out the necessary maintenance and inspection work to the manufacturing equipment as well as repairs at his own expense and in time. KUBOTA must be informed of any incidents immediately.
4. 11.4 Supplier takes the risk of loss, destruction or damage of provisions or manufacturing equipment. Supplier is obligated to insure the aforementioned items at the original value at his own expense against the usual risks such as theft, fire, water, break and other damages. At the same time KUBOTA authorizes Supplier to go after all claims for damages from these insurances. All manufacturing equipment as well as any provisions not used for the production of the goods ordered by KUBOTA must be returned immediately at KUBOTA’s wishes, however, at the latest after completion of delivery or contract. In this respect, a right of retention is out of the question.
5. 11.5 Ownership of tools, designs, calculations, samples, models and other means, which Supplier made or purchased at the expense of KUBOTA, will be transferred to KUBOTA ownership upon production and/or acquisition; Supplier holds these for KUBOTA. Supplier has to hand KUBOTA a storage receipt with picture for these items. Otherwise, section
6. 11.2, 11.3 and 11.4 apply accordingly.
12. Confidentiality, Place of Performance and Jurisdiction, Governing Law
1. 12.1 Supplier is obligated to treat all designs, models, company standards, calculations and other documents as well as information received from KUBOTA in physical or electronic form, confidentially. They may only be shown to third party with KUBOTA’s explicit consent. The requirement of confidentiality also applies after completion of the delivery and/or the contract; it expires, if and insofar the manufacturing knowledge contained in the received designs, models, calculations and other documents and/or the general information has become common knowledge. Place of performance and service is always the delivery address indicated by KUBOTA.
2. 12.2 The general registered place of business of KUBOTA is the exclusive place of jurisdiction. However, KUBOTA reserves the right to also sue Supplier at its general court of jurisdiction as well as at any other responsible court.
3. 12.3 The law of the Federal Republic of Germany applies, exclusive of the United Nations convention on contracts with regard to international trade (UN-commercial law).