Toyota Material Handling Australia (“TMHA”)
Terms of Sale (March 2021)
B) Formation and object of the contract
C) Prices & Payment terms
D) Delivery period and delay
E) Return policy
G) Long and Short Term Rental
H) Service contract
I) Delivery Lead Times and Force Majeure
J) Limitation of Liability
1. The product range of TMHA (“we” or “the Supplier”), whose registered office is at 8 Secombe Place Moorebank, applies exclusively to businesses in Australia. This means that we only deliver to business Customers with their registered office (billing address) within Australia, who are able to specify a delivery address within Australia. If a Customer resides outside of Australia and contacts TMHA to obtain a quote for any Product listed in the Online Store, TMHA will redirect the request to our Online Store in the country where the Customer is located.
2. These General Online Terms and Conditions (“GTC”) shall apply to all transactions regarding new products (“Products”), concluded via our Online Store with companies (“the Customer”). The Customer's terms and conditions shall not apply. INCOTERMS 2010 shall also apply for the interpretation of commercial terms.
3. With each update to the Online Store all prices and descriptions of Products previously displayed in our Online Store become null and void.
5. The formation, existence, construction, performance, validity and all aspects of these GTC shall be governed by the laws of New South Wales, Australia whose courts and courts competent to hear appeals from those courts are the courts of exclusive jurisdiction.
B) Formation and object of the contract
1. The presentation of our Products visible in the Online Store, including related illustrations and drawings, and dimensions, weight and performance data, shall not constitute a legally binding offer, but an invitation for submission of an offer by the Customer.
2. When an order has been placed the Customer receives an e-mail confirmation of receipt entitled "Thank you for your order"-email. This confirmation of receipt is information about the content of the order. It does not constitute acceptance of the Customer’s order, merely confirmation of receipt thereof. When the order is confirmed by back-office personnel, the Customer receives an email confirmation entitled "Your order confirmation."
An order is deemed accepted by the Supplier and a binding agreement between the parties concluded upon order confirmation. However, the Customer is bound by the order after order placement.
Before the order is sent the Customer can at any time change the information or correct any input errors. The ordering process can be interrupted at any time before the Customer clicks on the "Submit Order" by simply closing the browser window.
2. We aim to process orders within 7 working days by issuing an order confirmation including order data and the agreement via e-mail for the Customer to save/print. The agreement must be in English. We do not issue a confirmation if the product is not available. Instead the Customer will be contacted with alternatives. The validity of the contract is subject to our written or electronic order confirmation transmitted to the Customer by standard commercial means of dispatch (e-mail, fax, letter, etc.) following receipt of payment in accordance with section C.
3. Our written order confirmation is binding as to the description of the nature and scope of the Products ordered by a Customer. If the order confirmation (including the price of the order) differs from the Customer’s order, the Customer will be considered in agreement to our order confirmation (including the price of the order) unless we are notified by the Customer without delay. If the prices of individual Products change after an order is made, we reserve the right to adjust prices.
4. We reserve the right to deviate from contractually agreed parameters where such deviations are customary in the trade. This shall apply in particular to colour variations and technical modifications by the manufacturer, provided that they have no effect on fitness for use and agreed quality.
5. Agreements, in particular verbal agreements, promises, commitments and obligations, guarantees and assurances made by our sales staff shall be binding only with our written confirmation.
6. Unless otherwise specified, ordered Products will be assembled by us before delivery. If otherwise specified, assembly will be performed by the Customer at the Customer’s cost. If the Customer instructs us to perform the installation, the terms and conditions of installation included with the quote shall apply in addition.
8. We retain the unrestricted intellectual property rights (including without limitation copyrights, design rights and trademarks as well as commercial patent rights) to the Products, cost estimates, drawings, pictures, Product illustrations, Product films and all other content including multimedia content of the Online Store. Any use, dissemination, in particular transmission, duplication, publication and provision, including copies in excerpted form of any Products and/or content in the Online Store, requires our express prior written consent.
9. The Product videos and images available on our website are intended for the sole purpose of giving an approximate idea of the Products described in them only and do not provide any guarantee and/or warranty as to the Products and their performance of any nature whatsoever regarding the products advertised. For the avoidance of doubt, our written order confirmation is binding for the description of the nature and scope of our Products.
C) Prices & Payment terms
1. The price list is revised continuously and the Supplier has the right to change the prices specified therein without notice. All prices exclude GST.
2. The stated transport cost in the Online Store are confirmed in the order confirmation and shall, unless otherwise indicated be paid by the Customer. The total shipping cost is calculated by adding up "Per Product" cost. The "Per Product" cost is a flat rate based on the weight, or volume and calculated on the assumption that no ramp is available at Customers delivery address and located with the range of 50 km from Supplier’s local depot. If additional shipping charges apply, the Supplier will inform the Customer and the charge appear on the order confirmation.
3. Terms for the following payment methods apply:
i) Credit card: When paying by credit card the Customer will state card number, card expiry date and CCV number. Card processing is encrypted (SSL) by PAYEX, a PCI certified payment service provider. The Customer is obliged to ensure that there are funds available on the card balance until TMHA is credited the purchase price for the order. If there is insufficient coverage or payment for any other reason cannot be completed TMHA is entitled to cancel the order or to invoice the amount.
ii) Invoice: Payment terms are Cash On Delivery or before. In order to meet the payment deadline, the outstanding amount must be received within the said period. No discounts are given for prompt payment
4. The Customer shall not be entitled to make any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
D) Delivery period and delay
1. We only deliver to Customers with a registered office (billing address) in Australia and who can enter a shipping address within Australia.
2. Information about delivery lead times and delivery times and dates are approximate. Our delivery time is noted in the order confirmation and begins when our order confirmation is received by the Customer
3. Delivery will be made to the delivery address specified by the Customer. If the address specified by the Customer is incorrect, incomplete or unclear, the Customer shall be responsible for all resulting costs.
4. Defective delivery shall not be considered delayed delivery. If the Products are damaged on delivery or delivered in a quantity which falls short of the ordered number of Products, then unless the Customer notifies us in writing by the close of business of the third day after delivery no claim against us may be made in respect of damage to or shortfall of such Products. Regarding the transfer of risk for loss and damage to the Product(s), the applicable INCOTERM shall apply. In the absence of a separate agreement, Ex Works, INCOTERM 2001 shall apply.
5. In the event of delay in delivery the Customer shall be deemed to accept the Products on such delivery.
6. If the Customer is late taking delivery or fails to give us adequate delivery instructions, then without prejudice to any other right or remedy available to us, we may (i) store the goods at our facility and invoice the Customer for storage, transport and loading fees incurred (including insurance); and/or (ii) sell or supply the Products in or to any third party in any country at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Customer for any shortfall below the price in the order confirmation.
7. If orders include several Products we are entitled to make partial deliveries, which we will invoice separately.
E) Return policy
1. In addition to the return allowance pursuant to section C(2)(iii), we shall accept the return of undamaged Products or other items delivered, subject to the condition that they the packaging and seals are undamaged, they are not items made to order, they are returned to us free of charge and the return form is attached to the return consignment. Customer
2. Paid invoices regarding agreed returns will be credited by issuance of a credit note, or, in the case of credit card payment, the amount will be refunded to the Customer’s account. The amount refunded shall be the same as the purchase price paid, provided that the items in question are received by us within 7 days from delivery.
New Products are protected by the manufacturer’s product warranty indicated on the Product page. The validity of any warranty is subject to the Customer’s compliance with the manufacturer’s warranty terms and conditions.
G) Delivery Lead Times and Force Majeure
1. Information on delivery lead times and delivery dates are approximate. Delivery lead times shall be considered to have been complied with if the consignment is dispatched from our plant within the delivery lead time. Our delivery obligation shall be subject to correct, punctual and contractual deliveries of supplies and raw materials from our suppliers, unless we are to blame for the incorrect or late deliveries of supplies and raw materials from our suppliers.
We reserve the right to defer the delivery of the Products or to cancel the order confirmation or reduce the volume of the Products to be delivered to the Customer and we shall not be in breach of any of our obligations under these GTC due to circumstances beyond our control including without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to our or the Customer’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate suitable materials.
H) Limitation of Liability
1. Notwithstanding any other provision to the contrary:
(a) so far as the law permits, neither party shall be liable under these terms in contract, under any indemnity, tort (including negligence), by statute or otherwise for loss or damage (whether direct or indirect) of profits, revenues, use, production, contracts, corruption or destruction of data or for any indirect, special, exemplary, punitive or consequential loss or damage whatsoever; and
(b) Our total aggregate liability for breach of these terms or any injury, loss, damage or expense arising out of or in connection with these terms, whether that liability arises under contract, any indemnity, tort (including negligence), by statute or otherwise shall be limited to an amount equal to the amount paid by the Customer under these GTCs. This clause does not affect any rights or remedies of the Customer under the Australian Consumer Law (ACL) that cannot be excluded, restricted or modified.
2. Subject to clause 3, and except as expressly provided to the contrary in these terms, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to these terms are excluded to the maximum extent permitted by law.
3. Nothing in these GTCs excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This includes the Consumer Guarantees contained in the ACL.
4. Where we are unable to exclude or limit the Customer’s remedy for breach of a guarantee, term, condition, warranty, undertaking, inducement or representation imposed by legislation in relation to this Agreement then our liability for breach is limited to (at our election):
(a) if the breach relates to goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
(b) if the breach relates to services, the supplying of the services again or the payment of the cost of supplying the services again.
5. The Customer will be liable for and continually indemnifies us and our officers, employees, representatives and agents against all claims, costs, damages, losses and expenses suffered or incurred by any of those indemnified as a result of a breach of these GTC by the Customer, or anything that the Customer does or fails to do under or in connection with this Agreement.