Incorporation of Conditions
1. The Toyo Australia Standard Conditions of Sale (Conditions) form part of every sale by Toyo Tyre Australia Pty Ltd (Toyo Australia) of a product imported for distribution into the Australian market by Toyo Australia, the Conditions are subject to and, to the extent of any inconsistencies or conflict, the provisions of the Australian Consumer Law shall prevail and apply. By placing an order for any products the purchaser (You) acknowledge that the products purchased will be subject to the conditions set out below, any Particular Transaction Terms and any other additional or substituted conditions notified at www.toyotires.com.au/sales-condition prior to the date of an order.
2. You acknowledge that you have read the conditions set out at www.toyotires.com.au/sales-conditions prior to placing any order for products
3. A contract for sale on the Conditions and any Particular Transaction Terms is formed when Toyo Australia accepts your order.
4. The descriptions, illustrations and performances contained in our referenced price lists and other advertising material issued by Toyo Australia do not form part of the contract for sale of the products or of the description applied to the products.
5. All accepted orders will be invoiced at prices current at the date the order is accepted by Toyo Australia.
6. Prices shown in our referenced price lists exclude GST. You agree in addition to the listed price to pay GST, for taxable supplies, made under any order.
7. Toyo Australia may provide to you, by way of recommendation only, a list of trade prices at which the products may be resold (RRP list). The parties agree for the purposes of Section 97 of the Competition and Consumer Act 2010 (Cth) (the CCA) that any prices set out in the RRP list are recommended prices only and there is no obligation on you to comply with those recommendations.
Conditions for Resale
8. You agree:
- a. to only offer for sale and sell Toyo products imported for distribution into the Australian market by Toyo Australia; and
- b. not make any representation or give any warranty in respect of the products inconsistent with or in addition to those given or notified to You in writing by Toyo Australia.
- c. To only offer for sale and sell Toyo products to an End User. [“End User“ means: the party that will own the product when fitted. Specifically excluded is any party that sells the products to another party that is not an End User or third-party marketplaces (i.e. a web-based platform hosted by a third-party to connect sellers and buyers such as EBay; Gumtree or Tyrestock)].
Payment for Products
9. Unless otherwise agreed in writing by Toyo, payment for the products must be made by You no later than 30 days after acceptance of the order by Toyo Australia is notified to You (due date).
Delivery, Title and Risk
10. Despite any other provision of the Conditions, risk in the products passes to You when the products are delivered.
11. Toyo Australia reserves the right of ownership of the products until all accounts owed by You to Toyo Australia are fully paid.
12. If the products are resold You agree to hold such part of the proceeds of any such sale as represents the invoice price payable to Toyo Australia for the products sold in a separate identifiable account as the beneficial property of Toyo Australia and payable to Toyo Australia on request.
13. Notwithstanding clauses 10 and 12 of the Conditions, Toyo Australia is entitled to maintain an action against You for the purchase price.
Return of Product
14. Return of products supplied in error by Toyo Australia will be accepted providing that notification of the error is given to the Toyo Australia branch from which product/s were supplied within twenty eight (28) calendar days of delivery. In such case, return will be at Toyo Australia’s cost utilising Toyo Australia’s nominated carrier.
15. Return of products correctly supplied in accordance with Your order, either written or oral, will only be accepted under the following conditions:
- a. return authorisation must be requested from Toyo Australia within twenty eight (28) calendar days of delivery;
- b. return authorisation must be granted by the Toyo Australia branch from which the product/s was supplied;
- c. returned product/s must be received by the Toyo Australia supplying branch within five (5) Working Days of return authorisation being granted;
- d. freight charges, both inwards and outwards, shall be at Your cost,
- e. an administration charge of 10% of original net invoice value will apply as a deduction from the credit value, plus any applicable GST.
- f. product/s must be received by Toyo Australia in good condition (credit will not be approved for damaged products).
16. Where product/s are returned pursuant to clause 15, Toyo Australia will grant a credit of the net invoice price plus GST. You and Toyo Australia will make such GST adjustments as required.
17. No cash refund will be payable to You for product/s returned pursuant to clause.
18. Subject to clauses 19, 20, 21, 22, 23, and 25 in the Conditions, should any tyre and/or tube imported and distributed by Toyo Australia and bearing Toyo identification marking:
- a. develop a fault in material or manufacture within a reasonable period from the date of sale to You ; or
- b. which fault in Toyo Australia’s opinion may prevent reasonable service of the original tread life being obtained by the end-user, then provided such product is returned to Toyo Australia, Toyo Australia will either
- c. repair the product without charge; or
- d. make such allowances to the purchaser (either You or the end-user) by way of reduction, offset in the price for a new Toyo Australia product or partial or full refund (at Toyo Australia’s sole discretion), taking into consideration the service rendered by the product prior to the fault developing.
19. Toyo Australia will not make cash refunds. Any product on which an allowance is made under clause 18.d. becomes the property of Toyo Australia.
20. Toyo Australia will not consider any claim for replacement, repair or allowance pursuant to the warranty given in clause 18, unless:
- a. You supply any further information as Toyo Australia may reasonably request;
- b. the Toyo identification marking is still on the product;
- c. the product has been paid for in full by You; and
- d. where the claim is made by You and not on behalf of Your customer (the end-user), You have complied with all other provisions of the Conditions of Sale.
21. The warranty does not cover damage caused by:
- a. products fitted to non-standard wheels or rims as provided by the Tyre & Rim Association of Australia and E.T.R.T.O. specifications;
- b. damage by accident, road hazards or vehicle mechanical faults;
- c. use on a rim or wheel out of alignment, damaged or rusty;
- d. improperly inflated tyres or tyres inflated with substitutes for air or nitrogen;
- e. substitutes or modified equipment of any kind not recommended by Toyo Australia;
- f. use in association with a valve not recommended by Toyo Australia;
- g. use to carry loads beyond the maximum limit recommended by Toyo Australia;
- h. tyres altered, reprocessed or repaired in any way;
- i. illegal activity; or
- j. use in any form of motor sporting competition, testing or speed record purposes.
22. Toyo Australia will be the final arbiter of fact as to the cause of any fault.
Management of Warranty Claims
23. You must inspect the products immediately upon delivery and, except as provided in clauses 14, 15 and 18, or as required by law, no other claims will be recognised.
24. You agree to inform customers who purchase the products from You :
- a. of the Toyo Australia Warranty and Service Policy that applies in respect of those products as it is set out in clauses 18 to 23 of the Conditions; and
- b. that claims in relation to faulty or defective products should be made directly to You or another authorised Toyo Australia Dealer.
25. You agree to manage all claims made by Your customers in respective of faulty or defective products purchased by You from Toyo Australia.
Limitation of Liability
26. Toyo Australia’s liability for breach of contract, negligence or otherwise (and to the extent possible under the CCA) in respect of the products or supply of the products is limited to the replacement of the products or supply of equivalent products.
27. Without limitation Toyo Australia is not liable for consequential loss or damages however arising.
28. Toyo Australia makes all reasonable efforts to ensure the accuracy of the product specifications set out in Price Lists. However, any deviation from any of these things does not cancel any contract with You or form grounds for any claim against Toyo Australia.
29. Toyo Australia makes all reasonable efforts to have the products delivered to You on the date agreed. However, Toyo Australia is under no liability whatsoever, even where Toyo Australia is at fault, if delivery is not made on this date.
30. Most Toyo Australia products imported and distributed by Toyo Australia are tested for Australian conditions and to Australian Standards. Toyo Australia is not responsible for any product bearing the Toyo brand name which is imported by a person or persons or company other than Toyo Australia.
31. These conditions apply despite any arrangements under which we provide credit to You and to the extent there is an inconsistency, the Conditions prevail, Conditions 8, 9 and 10 hereof are essential terms, in the event of an unremedied breach of condition 8, 9 or 10, following 7 days written notice from Toyo, Toyo may terminate its agreement to sell or supply products to you and thereafter have no further obligation to sell or supply products to you.
32. These conditions record the entire understanding of the parties about the subject matter and supersede all previous agreements, understandings or representations. To the extent any clause of the Conditions is void or unenforceable it will be severed from the contract for sale, but the remainder of the contract will remain in force.
33. The laws of the state of New South Wales apply to the Conditions and Toyo Australia and You agree that any proceeding in respect of a dispute arising out of the Conditions or the products must be commenced in the Courts of New South Wales.
34. No variation to the Conditions is effective unless in writing and signed by a Director of Toyo Australia. No representative or agent has any authority to vary these conditions. These conditions prevail over all conditions of the buyer’s order to the extent of any inconsistency.
35. Except for the purposes specified in clauses 10, 11 and 12 of the Conditions, nothing in the Conditions creates any agency or partnership or joint venture between You and Toyo Australia.
GST has the meaning in the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 and the related imposition legislation of the Commonwealth of Australia.
Particular Transaction Terms means written terms and conditions of a contract for sale other than these Conditions.
37. Unless the contrary intention appears
- a. a reference to;
- i. a document includes any variation or replacement of it;
- ii. any gender, includes every gender;
- iii. a statute, is to the statute as amended, replaced or constituted from time to time and all subordinate legislation made under it;
- iv. the words “include” and “including” are not words of limitation;
- v. the consent or authorisation of Toyo Australia, means its prior written consent which, unless this Deed expressly provides otherwise, Toyo Australia may give or withhold, conditionally or unconditionally, at its absolute discretion;
- vi. Toyo Australia’s opinion is to its opinion formed in its discretion having regard to those matters, circumstances, conditions and prospects which it in its discretion thinks fit;
- vii. Toyo Australia’s discretion is to its sole, absolute and unfettered discretion; and
- viii. something Toyo Australia “may” do, means at Toyo Australia’s discretion.
- b. Headings do not affect the interpretation of these Conditions or Particular Transaction Terms.