These general terms and conditions of KUBOTA Baumaschinen GmbH (“KUBOTA”) apply exclusively to customers, business owners, legal persons under public law and public-law corporations according to § 310 BGB (German Civil Code), for KUBOTA products (“Items”) that they have purchased (“Customer”).
I. Offers and Signing (Contract Formation)
1.1 For all offers, contracts and deliveries the general terms and conditions of KUBOTA apply exclusively. These shall apply and be recognised at the time of order placement, even if the customer with his/her own terms refuses the recognition of other conditions.
1.2 The absence of objection(s) or a missing response to the terms and conditions of the customer shall at no time be understood as approval or consent. Customer order copies of confirmation for the receipt of order placement do not change the exclusive validity of the general terms and conditions of KUBOTA.
1.3 Recognition for one, some or all clauses of the terms and conditions of the customer requires an advance individual agreement in writing.
2. An order is considered to be a legally binding offer according to § 145 BGB (German Civil Code). The contract comes into effect only after KUBOTA has accepted this offer by confirmation. The verbal confirmation of an order by an employee of KUBOTA, who is not authorized to make such an agreement, requires a written order confirmation from KUBOTA. Authorization with the right to represent and make such a verbal confirmation shall apply only to those who explicitly have full proxy power to act for KUBOTA. Employees of KUBOTA who work in the department of order processing are not authorized and do not have the right to represent. The contractual relationship is based on the content of the order and is made binding in conjunction with the general terms and conditions of KUBOTA. If no written order confirmation has been issued in the above sense – for example, for order of small, replacement or accessory parts – the contents of the shipment including the written order of the customer become the basis for the contractual relationship, after delivery or upon notification of readiness for delivery.
3.1 Changes and additions, as well as cancellations of confirmed orders require the written consent of KUBOTA.
3.2 KUBOTA reserves the right to make changes to an offer based on a change in circumstances. Costs to complete an order that include specialty parts, freight charges or costs for the administrative processing of a change shall be carried by the customer.
4. KUBOTA reserves the right to make changes based on technical development and changes in regards to specifications and statements for services, weights, running costs, speeds, etc.
5. Completion of the contract is subject to correct and timely delivery within KUBOTA. This does not apply if KUBOTA is responsible for an incorrect or missing delivery, in particular when no congruent fall-back coverage has been agreed upon. KUBOTA shall immediately inform the customer about the unavailability of the purchased item and will immediately refund and return any and all services/money.
6. KUBOTA reserves the right according to industry standards to make partial deliveries and issue partial invoices.
II. Prices and payments
1. The prices are valid for services and items as listed in the order confirmations. Unless otherwise and specifically agreed to, prices are ex works, plus packaging, legally required VAT, customs for export deliveries, as well as fees and other public charges. Any kind of special offers do not apply.
2. Costs for transportation insurance, loading and transfer and all similar costs will be carried by the customer.
3. Invoices from KUBOTA are to be paid immediately without any deductions. Bills of exchange and checks are accepted only towards payment and not in lieu of payment.
KUBOTA is not obliged to accept bills of exchange. Should however bills of exchange or checks be accepted, all bank discount and collection charges upon maturity of the demand will be carried by the customer and are to be paid immediately in cash.
4. Without the express authority to collect payments, employees of KUBOTA are not entitled to receive payments.
5. The customer is only allowed to offset or apply the right of retention to claims made by KUBOTA, if the counter-claim of the customer is undisputed or has been made legally binding.
6. Unless a fixed price agreement has been made, KUBOTA reserves the right without notice to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 2 months or later after completion of the contract. To the extent that the prices agreed to are based on list prices and delivery takes place more than four months after the completion of the contract, the valid list prices at the time of delivery minus an agreed to discount shall apply.
7. KUBOTA is authorized require advance (pre-)payment or additional securities for the fulfilment and execution of outstanding deliveries and services should circumstances arise after completion of the contract, whereby the creditworthiness of the client has been significantly decreased and payment for outstanding claims based on the respective contractual relationship between the seller and the customer is at risk.
III. Deliveries and Delivery Dates
1. Deliveries will be made ex works. Delivery dates including deadlines for delivery and services specified by KUBOTA shall only be considered approximate, unless a fixed period or fixed date has been expressly confirmed or agreed upon. Statements are made according to best judgement and take into account the prevailing delivery and production situation on the day of issue. If shipment has been agreed, delivery times and dates apply to the date of delivery to the carrier, freight forwarder or other third parties responsible for transportation.
2. The start for delivery times specified by KUBOTA is based on a proper order from the customer and that the parties have agreed to all relevant details. For additions and modifications to an originally confirmed order, delivery times start anew from the date when KUBOTA has confirmed the supplemented or amended order. Should the customer have not or have not completely satisfied prior contracts, KUBOTA reserves the right to object to fulfilment of the contract.
3. For unforeseeable delays in deliveries due to circumstances of a technical or other nature that are outside the scope of KUBOTA’s responsibilities, for example strikes, fire, raw material shortages, other cases of operational failures or acts of God, which make completion of the contract impossible or substantially more difficult, KUBOTA is entitled to extend the time for delivery for the duration of the disturbance; this does not apply in the case of employee lockouts outside of regular labour disputes and in the case of fixed business transactions. Should a delivery date be extended by more than 6 weeks for legitimate reasons, both parties are entitled to withdraw from the contract and the customer may not make demands for replacement or damages. Should such a situation take place, KUBOTA agrees to immediately inform the customer stating the relevant facts.
4.1 KUBOTA is obliged to comply with an agreed delivery date. Should the agreed delivery date be extended by more than 2 weeks, the customers has the right to set a final deadline for KUBOTA. Should the contents of the order not be delivered by KUBOTA by the final deadline, the customer may withdraw from the contract with a written statement.
4.2 Should KUBOTA not meet the agreed delivery date, which has been delayed and they are responsible for the delay, the customer has the right to claim compensation for the delay amounting to 0.5 % for each completed week for the delay, but in no case at no such time for more than up to 5 % of the invoice value for goods and services affected by the delay. Additional claims are excluded, unless the delay is based on gross negligence on the part of KUBOTA. KUBOTA is at liberty to demonstrate and prove that the customer receive a smaller damage than the default compensation as listed above in section 1 for the delay in delivery.
5. KUBOTA’s obligation to deliver is suspended should the customer be more than just slightly behind with an obligation. Costs incurred by KUBOTA as a result will be carried by the customer.
6. KUBOTA reserves the right to make design and form changes to the purchased item during the delivery period to the extent that the modification and its execution is within the context of standard tolerances or deemed reasonable.
7. Should the purchased item at the customer’s request be shipped to him or another destination at the by customer’s request, the risk for accidental loss and accidental deterioration of the purchased item is assigned to the customer the moment the purchased item leaves KUBOTA’s factory/warehouse. This applies regardless of whether the shipment starts at the place of fulfilment or whoever is responsible for the freight costs.
8. KUBOTA is not liable for the inability to deliver or for delays in delivery due to acts of God or other unforeseeable events at the time of contract signing (e.g. malfunctions of any kind; difficulty in obtaining materials or energy; transport delays; strikes; lawful lockouts; lack of labour/workers, energy or raw materials; difficulties in obtaining the necessary regulatory approvals; governmental actions or missing, incorrect or late delivery by suppliers), for which KUBOTA is not responsible. In the case when such events make deliveries or services from KUBOTA much more difficult or impossible and should the obstruction not be only temporary, KUBOTA is entitled to withdraw from the contract.
For temporary hindrances delivery and service deadlines shall be extended or postponed to account for the obstruction period, including a reasonable start-up period.
As a result of the delay, should the customer find that the postponement for a delivery or service is not reasonable, he/she may with an immediate written statement to KUBOTA withdraw from the contract.
IV. Acceptance/Breach of Contract by the Customer
1. If the customer is in default of acceptance or culpably violates other co-obligations and without prejudice to any further claims, KUBOTA is entitled to demand, without further proof of 0.5% for each full week of delay or breach of duty, up to a maximum of 5% of the total liquidated damages. Should KUBOTA withdraw from the contract, due to a culpable breach of duty by the customer, KUBOTA may demand 5% of the total liquidated damages without additional proof. KUBOTA reserves the right to demand higher damages, just as the customer reserves the right to prove that damages do not exist or are much lower.
2. Should a default of acceptance take place, the risk of accidental deterioration and accidental loss passes to the customer.
V. Retention of Ownership
1. KUBOTA retains ownership of the purchased items until full payment for everything has been concluded, including future claims arising from the business relationship and including all ancillary claims as well as until redemption of all submitted bills of exchange and checks. The retention of ownership shall also apply for all claims arising in connection with the purchased item, namely claims arising from repairs; spare parts, accessories and fuel deliveries; and additional services. For current accounts the retention of ownership shall serve as security for the outstanding balance. At the request of the customer, KUBOTA is obliged to waive the retention of ownership if the customer has fulfilled all demands including all standing demands in connection with the purchased item and there is a reasonable assurance that the remaining claims from the ongoing business relationship will be fulfilled.
2. During the period for the retention of ownership and at the request of KUBOTA, it is the customer’s responsibility to carry the expense for insuring the purchased item against destruction, damage and loss, including the provision that this insurance benefits KUBOTA. The purchaser has the free choice for the insurer.
3. The customer has the duty, for the duration of the retention of ownership, to keep the purchased item in good condition, and to carry out at his/her own expense the maintenance and necessary repairs immediately as recommended by KUBOTA.
4. The customer is entitled to resell/lease the purchased items in the ordinary course of business as long as he is not in default. Any additional claims for retention based on a resale or from any other legal justification (insurance, tort) in respect to ownership, have already been given over in full to KUBOTA. KUBOTA revocably authorizes the customer, to collect claims that have passed to KUBOTA to be used against KUBOTA’S invoice. At the request of KUBOTA the customer will disclose the transfer and give to KUBOTA all necessary information and documents.
5. The processing or change/transfer of the purchased item by the customer will always be carried out on behalf of KUBOTA. In this case, the future right of the customer continues for the purchased item in this transferred state. Should the purchased item be processed or inseparably mixed with other items not belonging KUBOTA, KUBOTA acquires joint ownership of the grouped items in proportion to the value of the purchased item to the other processed or mixed items at the time of processing or mixing. The same applies for the grouped items as does for the reserved goods (purchased item).
Should the connection or mixing take place in such a way that the grouped items of the customer are to be regarded as the main item, it is agreed that the customer transfers proportional joint ownership to KUBOTA. The customer shall maintain the solely-owned or co-owned property (item) for KUBOTA.
6. KUBOTA will release the securities in accordance with the above sections 1. and 4., on request and at their discretion, to the extent that the value of the securities covers KUBOTA’s claims by more than 20% in the long-term.
7. In the event of third parties, in particular in the event of seizure of the purchased item or in exercising business seizure for a workshop, the buyer must inform KUBOTA immediately in writing without delay as well as inform the third party of the ownership by KUBOTA. The customer bears all costs that accrue to remove the seizure and re-procurement of the purchased item, to the extent these cannot be collected from the third party.
8. For as long as the retention of ownership exists, only with prior written consent from KUBOTA is a seizure, transfer as security, lease or additional transfer/surrender for the purchased item that is retained by KUBOTA and any other modification permitted, except those referred to in section 4. as allowable changes.
9. Should the customer default on payment or fail to fulfil his/her obligations under the retention of title, KUBOTA is entitled to cancel this contract and take back the reserved goods (purchased item) or, if necessary, to demand assignment of the claims of the customer against third parties.
VI. Warranty, Period of Limitation
1. The warranty period is one year from date of delivery, or if acceptance is required, upon acceptance.
2. KUBOTA guarantees that newly purchased equipment is free from defects. A purchased item is free from defects, when it meets the agreed quality resulting from the order confirmation, the product description and the operating and maintenance instructions. Public statements, promotion and advertising for the agreed quality remain irrelevant.
3. KUBOTA is only liable for purchased items that have been constructed according to and are maintained and operated in accordance with the applicable operating and maintenance instructions, and – in the case of accessories and spare parts – have been fitted accordingly. It is expected and a prerequisite that only accessories and spare parts that have been approved by KUBOTA are used.
4. Moveable parts that can demonstrate wear are excluded from the liability for defects, in so far as it is due to wear and not manufacturing or material defects.
5. The period of limitation for the respective purchased item itself is not extended by the installation of accessories and spare parts.
VII. Inspection and Notification
The customer shall be responsible for the commercial inspection and notification (§ 377 HGB – German Commercial Code). The customer, immediately upon receiving the purchased item and at the latest within 30 calendar days, shall inspect the purchased item for apparent defects. Recognized defects should be made known and reported immediately, at the latest within one calendar week. Notification for defects shall be made by means of a “Kubota.Net” warranty claim generated in the “Kubota.Net” online portal with a specific description of the defect.
VIII. Time Limits for the Assertion of Warranty Claims
Should KUBOTA return a claim for defect made by the customer as unfounded, the customer forfeits all asserted claims for defects unless he/she makes an official claim in court within three months after receipt of the rejection of his/her claim, if and insofar as the rejection has been made in writing by KUBOTA (Fax rejections are sufficient, in contrast to e-mail) and KUBOTA has specifically stated this course of legal action in the rejection.
IX. Replacement, Removal of Defects, Reduction for the End Customer
1. The customer gives KUBOTA the opportunity to verify claims – also by third parties. Should the notification for defects be unfounded, the customer is obliged to bear the costs for the verification by KUBOTA, unless he/she is not responsible for the unfounded notification for defects.
2. In the case of defects KUBOTA reserves the right to remedy the defect or supply a replacement (new shipment). KUBOTA can also allow the customer to remedy the defect himself/herself with his/her own workshop or through contracting a KUBOTA-licensed workshop to carry out repairing the defect; the customer shall choose the more cost-effective means. Should the customer be allowed to make repairs to the purchased item, these may only be carried out by trained, specialist personnel.
3. Purchased items or parts of such items that are to be replaced by KUBOTA, shall be shipped to KUBOTA only after a written request (E-mail is sufficient) has been issued by KUBOTA, postage and shipping to be paid by the customer. In the case of defects KUBOTA will pay the cheapest shipping/transportation fee. Replacement covers only the defective parts and any parts that have received damage due to proper usage of the purchased item but that have been damaged due to the defective part. Original parts that have been replaced become the property of KUBOTA.
4. The customer will examine and make notification of defects for the replaced purchased item that has been delivered, corrected and repaired in accordance with clause VII. The customer will inform KUBOTA fully about a repair which has been performed using the “Kubota.Net” guarantee agreement.
5. In case of failure, unreasonableness or refusal of rectification, the customer may reduce the price, or – not for the case of minor defects – withdraw from the contract and/or demand damages according to the following clause XI.
6. In cases of customer recourse against KUBOTA and according to § 478 BGB (German Civil Code) for successful reduction of price for the end customer, KUBOTA assumes the reduction ratio that results from the resale to the end user or to another customer.
X. Record-retention Requirements, Information Disclosure
1. The customer is required to retain the defective purchased item or the damaged parts of the purchased item until the guarantee claim has been completed.
2. Should the a purchased item be taken from the customer by way of recourse or by a business associate due to defect, KUBOTA is to be informed immediately. Recourse against KUBOTA is possible only if the customer and his end-customer have not agreed to additional statutory warranty claims beyond the legal agreement.
XI. Limitation of Liability
1. The liability of KUBOTA for damages, regardless of the legal reason, but in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, where fault has been found, is restricted to the content of the following paragraphs:
2. KUBOTA is excluded from liability for only slightly negligent violations of non-essential contractual obligations. For slightly negligent violations of essential contractual obligations – including legal representatives and agents – liability is limited to typical and foreseeable damages. KUBOTA does have, however, unlimited liability for damages caused to the customer, to body and health as well as for intentional, gross negligence and failure of guaranteed properties and conditions towards KUBOTA, their legal representatives or agents.
3. Liability according to product liability law remains unaffected by KUBOTA.
XII. Place of Fulfilment and Court of Jurisdiction, other
1. Place of fulfilment is at the location of KUBOTA.
2. Exclusive court of jurisdiction is the court responsible for the location of KUBOTA; KUBOTA is entitled to make claims at the location of the customer.
3. These general terms and conditions also apply to all future business with the customer, to the extent that they relate to legal transactions.
4. German law shall apply to the contract and contractual relationship; application of the UN Convention of Contracts for the International Sale of Goods (CISG) is excluded.
5. In addition, the relevant special terms and conditions of KUBOTA apply in their most current version.
6. If any of the above provisions become invalid, the validity of the remaining provisions shall not be affected.
KUBOTA Baumaschinen GmbH, November 2013