General Terms and Conditions of Trade (effective as at August 2013)
To the fullest extent legally permissible all dealings between the customer [ “the Customer”] and Goodyear and Dunlop Tyres (Aust) Pty Ltd ACN 004 098 346 [“GDT”] relating to any goods and/or services [the “goods” and/or the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:
- 1.1 Products
- 1.2 Warranty
- 1.3 Purchase Price
- 1.4. Placement of Orders
- 1.5. Supply and Delivery
- 1.6. Cancellations and Returns
- 1.7. Limitation of Liability
- 1.8. Exclusions
- 1.9. Intellectual Property
- 2.1. Consumer Guarantees & AC
- Imported Goodyear Brand Tyres - Warning to Tyre Importers, Resellers and Customers
1. PRODUCT TERMS
1.1. Products: a) To the extent permitted by the ACL and without derogating from clause 1.7 GDT disclaims all responsibility and/ or liability whatsoever in relation to any goods and/or services (including tyres & tubes) sold subject to these Terms or otherwise which are: (i) fitted to or used on rims or wheels: (A) which do not comply with any specifications of the Tyre & Rim Association of Australia [“TRAA”] or which are used in contravention of any applicable statutory provision; (B) which are out of alignment, damaged, rusty or otherwise in improper condition; (C) used in abnormal conditions (including off road use, trials, rallies, record attempts etc); (D) in conjunction with tubes and/or valves which are not recommended or approved by GDT; (E) in breach of good practice or any GDT conditions of use or recommendations; (F) with undersized tubes or flaps; (ii) damaged in any way after manufacture; (iii) improperly inflated at any time or used with substitutes for air which are not recommended by GDT; (iv) used for any purpose which is in excess of the ratings marked on the tyre side walls or specified by the TRAA; (v) used for excessive loads or at excessive speeds; (vi) altered, reprocessed or repaired in any way whatsoever whether by GDT, its authorised agents or otherwise; (vii) purchased by the Customer second hand or blemished; and/ or (viii) treated at any time with any sealant for any reason. b) The Customer acknowledges that tyres and tubes can be damaged by (inter alia) misuse, contact with solvents or other chemicals, prolonged exposure to infra red or ultra violet rays and other light sources, heat, incorrect storage, improper or careless fitting or use and any of the matters referred to above.
1.2. Warranty: a) Notwithstanding clause 1.7, if any tyre or tube sold by GDT develops any fault which is due to a defect in manufacture, processing or material and which in GDT’s opinion precludes reasonable usage being obtained by the Customer, then provided such tyre or tube is returned to GDT at any owned and operated tyre service centre within 14 days of the Customer becoming aware of the fault, with all transportation charges prepaid, GDT will either: (i) repair or replace the tyre or tube free of charge; or (ii) make such allowance to the Customer in a reduction in the then current price for a new, reconditioned or repaired tyre or tube as is appropriate, after taking into account the usage already rendered by the tyre or tube in question. b) All warranty adjustments must be made on a properly completed warranty adjustment processing form.
1.3. Purchase Price: All sales are made at the price prevailing at the time of delivery. Any price quoted or in any GDT publication shall be deemed an estimate only and shall be subject to alteration at the discretion of GDT to reflect movements in exchange rates, taxes and imports, CPI increases and increases in the cost of labour and/or raw materials or other costs up to the time of delivery. Unless agreed in writing the purchase price for any goods shall not include any GST or any other impost and all are payable by the Customer.
1.4. Placement of Orders: The Customer agrees that if any dispute arises concerning any order (including any question of identity or authority) the internal records of GDT shall be conclusive evidence of what was ordered.
1.5. Supply and Delivery: a) GDT may supply by instalments and/or withhold or cancel supply without liability and/or ramification where: (i) GDT has insufficient goods to fulfil orders; (ii) goods are not available to supply; (iii) the Customer is in breach of these Terms or any agreement with GDT; (iv) GDT has any safety concerns; and/or (v) GDT considers it appropriate whether because of any minimum invoice policy or otherwise. b) the exercise of any of these rights does not entitle the Customer or any party terminate any agreement with GDT or to claim any loss or damage. c) The Customer agrees: (i) that GDT may elect to arrange delivery at its discretion and without any liability and at the cost and responsibility of the Customer in all things; (ii) that the Customer shall be deemed to have accepted delivery and liability for goods on being notified by GDT that goods are ready for collection and/or on goods being delivered to a carrier or to the Customer’s business premises or nominated site whether attended or not; (iii) to pay GDT for any demurrage or other costs and expenses in handling and/or holding any goods once ready for delivery and/or collection; (iv) to pay for so much of any forward order as GDT invoices from time to time; and (v) that a certificate purporting to be signed by an officer of GDT confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket.
1.6. Cancellations and Returns: The Customer agrees: a) not to cancel any order without GDT’s prior approval; b) not to return goods without an original invoice and GDT’s prior approval, and only if goods are in brand new and unused condition with undamaged packaging and/or if no more than 3 weeks have passed since delivery; c) that GDT may take back goods in saleable condition on such terms as GDT considers to be reasonable; d) to pay GDT on request a restocking fee for returned goods as follows: for Pass/ULT/ Cartons - $15.00 per unit, LT/4WD - $20.00 per unit, Truck/ Trailer - $30.00 per unit, and Tractor - $50.00 per unit and e) not to return any goods which have been custom made, custom processed or custom acquired.
1.7. Limitation of Liability: To the extent permitted by the ACL: a) the Customer agrees to limit any claim to the replacement/ repair of the goods (or cost thereof) and/or re supply of services (or cost thereof); b) GDT shall not be liable for: (i) any claim, loss or expense which is made after 7 days from the date of delivery of goods and/or services – after which there shall be deemed to have been unqualified acceptance; (ii) any consequential loss and/or any special and/or punitive damages through any fault of GDT or otherwise; and/or (iii) any claim in any way caused and/or contributed to by the Customer and/or any third party.
1.8. Exclusions: To the extent permitted by the ACL: a) no dealing between GDT and the Customer shall be or be deemed to be a sale by sample; b) the Customer shall rely on its own knowledge and expertise in selecting any goods and/or services for any purpose and any advice and/or assistance given by or for GDT shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer; c) all goods are sold subject to all applicable trading terms, warranties and representations of the manufacturer; d) GDT shall not be responsible nor liable for paying and/or obtaining any necessary judicial, statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licences; e) GDT shall not be liable for any goods and/or services: (i) made or performed to designs, drawings, specifications and/or procedures etc. and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; (ii) utilised, stored, handled and/or maintained incorrectly or inappropriately; and/or (iii) manufactured and/or supplied by any other party; and f) the Customer agrees to: (i) check all goods for compliance with all applicable laws, standards and/or guidelines before use, on-sale and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by GDT and/or by any manufacturer; and (iii) act in accordance with good practice at all times.
1.9. Intellectual Property: The Customer agrees that all intellectual property in the creation of any goods and/or services shall be and remain the property of GDT notwithstanding any contribution by the Customer.
2.1. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www. consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
WARNING TO TYRE IMPORTERS, RESELLERS AND CUSTOMERS
Goodyear & Dunlop Tyres (Aust.) Pty Ltd (“Goodyear”), a company owned by The Goodyear Tire & Rubber Co. (U.S.), is responsible for the distribution in Australia of locally manufactured and imported Goodyear branded tyres (excluding earth moving tyres).
Through its Beaurepaires outlets, Goodyear Autocare and its authorised independent dealers, Goodyear provides a world class level of service for these tyres.
Goodyear is aware that Goodyear tyres have been imported into Australia by non-authorised distributors.
Distributors and customers are warned that: