STANDARD CONDITIONS OF SALE

Incorporation of Conditions

1. The Nitto Tyres Australia Standard Conditions of Sale (Sales Conditions) form part of every sale by Nitto Tyres Australia of a product imported for distribution into the Australian market by Nitto Tyres Australia. 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.nittotyre.com.au/terms-and-conditions/ prior to the date of an order.
2. You acknowledge that you have read the conditions set out at www.nittotyre.com.au/terms-and-conditions/ prior to placing any order for products.
3. A contract for sale on the Conditions and any Particular Transaction Terms is formed when Nitto Tyres Australia accepts your order.
4. The descriptions, illustrations and performances contained in our referenced price lists and other advertising material issued by Nitto Tyres Australia do not form part of the contract for sale of the products or of the description applied to the products.

Pricing

5. All accepted orders will be invoiced at prices current at the date the order is accepted by Nitto Tyres 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.

Resale Prices

7. Nitto Tyres 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:
1. to only offer for sale and sell Nitto Tyres Australia products imported for distribution into the Australian market by Nitto Tyres Australia; and
2. 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 Nitto Tyres Australia.

Payment for Products

9. Unless otherwise agreed in writing by Nitto Tyres Australia, payment for the products must be made by You no later than 30 days after acceptance of the order by Nitto Tyres 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. Nitto Tyres Australia reserves the right of ownership of the products until all accounts owed by You to Nitto Tyres 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 Nitto Tyres Australia for the products sold in a separate identifiable account as the beneficial property of Nitto Tyres Australia and payable to Nitto Tyres Australia on request.
13. Notwithstanding clauses 10 and 12 of the Conditions, Nitto Tyres Australia is entitled to maintain an action against You for the purchase price.

Return of Product

14. Return of products supplied in error by Nitto Tyres Australia will be accepted providing that notification of the error is given to the Nitto Tyres Australia branch from which product/s were supplied within twenty eight (28) calendar days of delivery. In such case, return will be at Nitto Tyres Australia’s cost utilising Nitto Tyres 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:
1. return authorisation must be requested from Nitto Tyres Australia within twenty eight (28) calendar days of delivery;
2. return authorisation must be granted by the Nitto Tyres Australia branch from which the product/s was supplied;
3. returned product/s must be received by the Nitto Tyres Australia supplying branch within five (5) Working Days of return authorisation being granted;
4. freight charges, both inwards and outwards, shall be at Your cost,
5. an administration charge of 10% of original net invoice value will apply as a deduction from the credit value, plus any applicable GST.
6. Product(s) must be received by Nitto Tyres Australia in good condition (credit will not be approved for damaged products).
16. Where product/s are returned pursuant to clause 15, Nitto Tyres Australia will grant a credit of the net invoice price plus GST. You and Nitto Tyres Australia will make such GST adjustments as required.
17. No cash refund will be payable to You for product/s returned pursuant to clause 15.

Warranty

18. Subject to clauses 19, 20, 21, 22, 23, and 25 in the Conditions, should any tyre and/or tube imported and distributed by Nitto Tyres Australia and bearing Nitto identification marking:
1. develop a fault in material or manufacture within a reasonable period from the date of sale to You ; or
2. which fault in Nitto Tyres 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 Nitto Tyres Australia, Nitto Tyres Australia will either:
3. repair the product without charge; or
4. make such allowances to the purchaser (either You or the end-user) by way of reduction, offset in the price for a new Nitto Tyres Australia product or partial or full refund (at Nitto Tyres Australia’s sole discretion), taking into consideration the service rendered by the product prior to the fault developing.

19. Nitto Tyres Australia will not make cash refunds. Any product on which an allowance is made under clause 18.d. becomes the property of Nitto Tyres Australia.
20. Nitto Tyres Australia will not consider any claim for replacement, repair or allowance pursuant to the warranty given in clause 18, unless:
1. You supply any further information as Nitto Tyres Australia may reasonably request;
2. the Nitto identification marking is still on the product;
3. the product has been paid for in full by You; and
4. 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:
1. products fitted to non-standard wheels or rims as provided by the Tyre & Rim Association of Australia and E.T.R.T.O. specifications;
2. damage by accident, road hazards or vehicle mechanical faults;
3. use on a rim or wheel out of alignment, damaged or rusty;
4. improperly inflated tyres or tyres inflated with substitutes for air or nitrogen;
5. substitutes or modified equipment of any kind not recommended by Nitto Tyres Australia;
6. use in association with a valve not recommended by Nitto Tyres Australia;
7. use to carry loads beyond the maximum limit recommended by Nitto Tyres Australia;
8. tyres altered, reprocessed or repaired in any way;
9. illegal activity; or
10. use in any form of motor sporting competition, testing or speed record purposes.
22. Nitto Tyres 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 :
1. of the Nitto Tyres 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
2. that claims in relation to faulty or defective products should be made directly to You or another authorised Nitto Tyres Australia Dealer.
25. You agree to manage all claims made by Your customers in respective of faulty or defective products purchased by You from Nitto Tyres Australia.

Limitation of Liability

26. Nitto Tyres 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 Nitto Tyres Australia is not liable for consequential loss or damages however arising.
28. Nitto Tyres 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 Nitto Tyres Australia.
29. Nitto Tyres Australia makes all reasonable efforts to have the products delivered to You on the date agreed. However, Nitto Tyres Australia is under no liability whatsoever, even where Nitto Tyres Australia is at fault, if delivery is not made on this date.
30. Most Nitto Tyres Australia products imported and distributed by Nitto Tyres Australia are tested for Australian conditions and to Australian Standards. Nitto Tyres Australia is not responsible for any product bearing the Nitto brand name which is imported by a person or persons or company other than Nitto Tyres Australia.

General

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.
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 Nitto Tyres 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 Nitto Tyres 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 Nitto Tyres Australia.

Dictionary

36. Definitions

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 this Contract other than these Conditions.

Your has a similar meaning to You.

Interpretation

37. Unless the contrary intention appears
1. a reference to:
1. a document includes any variation or replacement of it;
2. any gender, includes every gender;
3. a statute, is to the statute as amended, replaced or constituted from time to time and all subordinate legislation made under it;
4. the words “include” and “including” are not words of limitation;
5. the consent or authorisation of Nitto Tyres Australia, means its prior written consent which, unless this Deed expressly provides otherwise, Nitto Tyres Australia may give or withhold, conditionally or unconditionally, at its absolute discretion;
6. Nitto Tyres 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;
7. Nitto Tyres Australia’s discretion is to its sole, absolute and unfettered discretion; and
8. something Nitto Tyres Australia “may” do, means at Nitto Tyres Australia’s discretion.
2. Headings do not affect the interpretation of these Conditions or a Contract.