For our Websites - No Warranties or Representations
In consideration of you viewing this website, you agree to be bound by the following terms and conditions:
Every effort has been made to ensure that the information on this site is correct and up to date, however, Tomcar Australia Pty Ltd, A.C.N number: 143 371 966 (“Tomcar”) does not provide any warranty as to the completeness or accuracy of the information and, subject to applicable laws, does not accept any liability for damages of any kind resulting from the access or use of this site and its contents.The information that is contained on this site is for preliminary and general purposes only.
This information is provided by Tomcar "as is" and to the extent permitted by law, is provided without warranty of any kind, expressed or implied, including (but not limited to) any implied warranties of merchantability, fitness for any particular purpose, or non-infringement. While the information provided is believed to be accurate, it may include errors or inaccuracies. As such, no reliance whatsoever should be placed on the information that is contained in this site as being accurate, complete and up to date.
Tomcar is not responsible for and will not accept responsibility for any cost, damage, expense or loss (whether direct or indirect) that is or may be incurred as a result of any possible error, misrepresentation and or omission that is, was, or may be contained in this site at any time and from time to time.
In addition, all video clips and photograph depicting the use of any Tomcar vehicle as shown in this website were conducted by highly trained professional stunt drivers. Do not attempt to replicate any manoeuvres shown in this website. All driving tips are only meant to be a basic guide, and is not a substitute for professional training.
Tomcar does not take responsibility for accidents, injuries, deaths, damage to property, acts of terrorism or any other law and traffic violations as a result of actions by individuals trying out the techniques contained herein.
The information contained on this website is subject to change without notice, and is intended as general information only and is not complete or definitive.
Tomcar is not liable, and does not take any responsibility whatsoever, for the reliance on such information. This web site contains links to sites maintained by other organisations, and Tomcar does not take any responsibility for the content of those sites.
Tomcar reserves the right to discontinue or change any of the models, prices, colours, materials, equipment or other specifications referred to on this site at any time without notice. Some of the equipment shown or referred to in this site may only be available as an option at extra cost.
Always consult an Authorised Tomcar Dealer or Rep for the latest information about a Tomcar product, and its availability, before placing an order.
All prices specified on this site are in Australian dollars.
All information on this site is protected by copyright and other intellectual property rights. The text, images, graphics, sound files, animation files, video files and their arrangement on this website are all subject to copyright and other intellectual property protection laws in Australia and other countries, including but not limited to the Copyright Act 1968 (Cth) and through international treaties. Apart from any use that is permitted under the Copyright Act 1968 (Cth) all rights are reserved. These objects may not be copied for commercial use or distribution, nor may these objects be modified or reposted to other internet sites. Some sites also contain images that are subject to the copyright rights of third party providers.No images, text or other content from this site may be distributed or reproduced without prior written approval from Tomcar.© Tomcar Pty Ltd. All rights reserved. Use of the information that is contained on this page is governed by the laws of Australia and is subject to its terms and conditions.
Please contact us anytime on email@example.com or call 1800 TOMCAR (1800 866 227)
Tomcar Australia warrants for a period of 3 years (or 1,000 hours whichever comes first) from the date of delivery from Tomcar Australia Pty Ltd and/or an authorised Tomcar Australia Rep and/or Dealer, and that each new Tomcar Australia vehicle shall be free from any defect in material and workmanship subject to the following conditions, exclusions, obligations and limitations.
1. WHAT IS COVERED UNDER THIS LIMITED WARRANTY. Tomcar warrants to the original retail purchaser only that the product that is the subject of this sale is free from defects in material or workmanship for the 3 year period (or 1,000 hours whichever comes first) commencing on the delivery date to the customer and such defect shall be remedied, without charge for parts or labour, at any authorised Tomcar Rep and/or authorised Dealer and/or original purchaser. This warranty is limited to repairing or replacing the defective product and/or component, solely at the discretion of Tomcar Australia. The engine comes with a 1 year limited warranty (or 500 hours whichever comes first).
2. WHAT THE OWNER MUST DO TO OBTAIN LIMITED WARRANTY COVERAGE. The following obligations must be fulfilled by the original retail purchaser to maintain the validity of this Tomcar warranty. Such Owner must: (1) present a proof of initial retail purchase date issued at the time of purchase to Tomcar Australia Pty Ltd and/or an authorised Tomcar Australia vehicle Rep and/or Dealer at the time warranty repairs are needed to be performed on the vehicle; and (2) owner must cause the regular/scheduled repairs, services and maintenance of the Tomcar Australia vehicle. This warranty is void if the Tomcar Australia vehicle is not used as instructed in the Tomcar Australia vehicle's owner's manual and in a reasonable manner.
3. WHAT IS EXCLUDED FROM THIS LIMITED WARRANTY. The following are specifically excluded from the terms and provisions of this warranty:
(a) Any Tomcar Australia vehicle used to carry loads in excess of the maximum vehicle load including occupants and cargo as specified in the owner's manual, or exceeding the GVWR on the manufacturers certification label;
(b) Any Tomcar Australia vehicle used for rental purposes, or any other commercial use;
(c) Any Tomcar Australia vehicle engaged in competitive racing, stunt or related use;
(d) Any Tomcar Australia vehicle accessories (which may have their own warranties);
(e) Any product, components or parts not original to the Tomcar Australia vehicle;
(f) Repair or replacement required as a result of: (i) accident, (ii) misuse or neglect, (iii) lack of reasonable and proper maintenance, (iv) repairs improperly performed or replacements improperly installed, (v) use of replacement parts or accessories not conforming to Tomcar's specifications (vi) alterations or modifications not recommended or approved in writing by Tomcar (vii) acts of God such as fire, flood and lightning, (viii) normal wear and deterioration occasioned by the use of the vehicle (including, without limitation, repair or replacement of bulbs, tires, covers (seat, etc.), paint, drive belt, seals, leaks, brake pads, CVT and chains) and (ix) any abuse or misuse by the owner;
(g) Any emission-related part, which malfunctions, fails or is damaged due to alterations and/or modifications such as changing, adding, or removing parts and any failure to properly install, adjust or repair any emission-related part;
(h) Accelerated wear caused by harsh off-road driving conditions, or abuse;
(i) Routine maintenance services and adjustments. Including but not limited to: Ball Joint play, squeaks, rattles, Bushings etc.
4. LIMITED LIABILITY.
(a) The liability of Tomcar under this 3 year (or 1,000 hours whichever comes first) warranty is limited solely to the remedying of defects in materials or workmanship. This warranty does not cover inconvenience or loss of use of the Tomcar Australia vehicle, or transportation of the vehicle, or any person, to or from a Tomcar Rep and/or Dealer.
TOMCAR SHALL NOT BE LIABLE FOR ANY OTHER EXPENSE, LOSS OR DAMAGE, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY ARISING IN CONNECTION WITH THE SALE OR USE OF OR INABILITY TO USE THE TOMCAR AUSTRALIA VEHICLE FOR ANY PURPOSE.
(b) NO EXPRESS WARRANTY IS GIVEN BY TOMCAR WITH RESPECT TO THE TOMCAR AUSTRALIA VEHICLE EXCEPT AS SPECIFICALLY SET FORTH HEREIN. ANY WARRANTY IMPLIED BY LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS EXPRESSLY LIMITED TO THE THIRTY SIX (36) MONTH WARRANTY TERMS SET FORTH HEREIN. THE FOREGOING STATEMENTS OF WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES.
(c) This Tomcar Australia Limited Warranty is the complete and exclusive warranty and superseding all oral or written prior agreements and all other communications between Tomcar Australia and any other party relating to the subject matter of this warranty, including statements made by dealers and salespersons. No dealer or any agent or employee of Tomcar Australia, is authorised to modify, extend or enlarge this Tomcar Australia Limited Warranty.
5. LEGAL RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
TERMS & CONDITIONS OF SALE
1. Terms of this agreement
For the purpose of this Agreement:
1.1. “TCA” means Tomcar Australia Pty Ltd (A.C.N. 143 371 966)
1.2. The “Buyer” means an entity to which TCA issues an invoice, quote, statement, variation, contract, or similar.
1.3. This “Agreement” means any transaction or order made by the Buyer to TCA for goods or services.
1.4. No variation, waiver, or cancellation of the Agreement will be effective unless signed in writing by TCA.
1.5. Any failure by TCA to enforce any clause of this Agreement will not be construed as a waiver of TCA’s rights under this Agreement.
2. Quotation Validity
2.1. Unless otherwise agreed in writing, a quotation provided by TCA is only capable of acceptance for 30 days from the quotation date in writing, after which it is withdrawn.
2.2. All quotations are exclusive of GST or any tax, impost or duty on goods, services or other things introduced by a government authority either before, or after the quotation has been given.
2.3. All quotations are provided as an estimate only and should only be relied upon as a guide.
2.4. The quotation does not include any incidental charges that may not have been made aware to TCA and TCA can seek payment for any incidental charges which were not allowed for in the quotation.
3. Credit Information
The Buyer acknowledges and agrees that if TCA requires financial information about the Buyer for any credit application which attracts the operation of the Privacy Act 1988 (Cth) then TCA may:
3.1. Disclose and collect commercial credit information about the Buyer, and if the Buyer is a company, about its director(s) and officer(s).
3.2. Disclose certain personal information to a credit reporting agency for the purpose of obtaining and maintaining a credit information file.
3.3. Disclose collected information to a credit provider other than TCA or to a credit reporting agency, for the purpose of collecting outstanding amounts owed by the Buyer to TCA.
3.4. Rely upon any information obtained to change payment terms or conditions at its sole discretion without explanation.
4.1. TCA will use reasonable endeavors to complete delivery of the goods and services.
4.2. The Buyer agrees that quoted delivery dates (or periods) are estimates only and are subject to prompt receipt of all information requested from the Buyer by TCA, payment, parts, other material, and relevant permits.
4.3. The risk or loss of goods passes from TCA to the Buyer where the goods or component parts, whether manufactured by TCA or by another supplier, are placed in the possession of the carrier for shipment to the Buyer.
4.4. The Buyer undertakes to arrange and pay for all insurance for an amount no less than the total amount owing to TCA on the basis that the Buyer will direct the insurer to pay TCA directly.
4.5. TCA accepts no liability whatsoever for any loss or damage suffered by the Buyer during transportation or shipping or as a consequence of any delay or failure to deliver the goods and services.
4.6. Title to and ownership of the goods and services passes once:
4.6.1. The Buyer has paid (in full) all invoices issued by TCA pertaining to the goods and services; and
4.6.2. The goods and services have been delivered to the Buyer.
Unless TCA has specified otherwise in writing to the extent permitted by law, the following applies:
5.1. TCA warrants that the goods will conform to the description contained on the invoice, and that no further warranty is to be implied.
5.2. TCA disclaims any implied warranty of merchantability or fitness for a particular purpose.
5.3. The Buyer agrees there are no representations or warranties have been made by TCA except as confirmed in writing by a director of TCA.
5.4. The Buyer holds TCA harmless and indemnifies and defends TCA (including its directors, officers, employers, agents and representatives) for any claims arising out of or relating to the design, specification or use of goods and services(s) sold or otherwise provided by TCA to the Buyer.
5.5. The Buyer agrees that TCA can rely upon the above disclaimers and warranties as a defence to any claim that the Buyer may wish to make against TCA.
6.1. The liability of TCA for any of the matters referred to in clause 5 and this clause will be limited to the greater of:
6.1.1. The minimum required by The Trade Practices Act 1974 (Cth); or
6.1.2. $100.00 (one hundred dollars).
6.2. This limitation of liability applies:
6.2.1. To any personal injury, or loss of, damage to, or delay in relation to any goods or in relation to any goods and services or services provided under any circumstances whatsoever.
6.2.2. To any negligent or wrongful act or deliberate act or default on the part of contractors of TCA, its agents, servants or subcontractors;
6.2.3. To any mis-delivery, delay or non-delivery (whether any specific time for delivery has been agreed to or not).
6.2.4. To any breach of contract or tortious duty.
6.2.5. To any consequential loss for whatever reason and under any circumstances.
6.2.6. To any loss of or damage to or deterioration in or contamination of goods following the goods being shipped to the buyer.
6.2.7. To any claim for delay or damage, to the amount of TCA charges to the company for or in relation to the goods.
6.2.8. For any breaches of this Agreement in whole or in part to strikes, work stoppages, industrial disputes, floods, acts of god, vandalism, sabotage, riot, national emergency, embargoes or restraints, extreme weather or traffic conditions, legislation or other act of government, fire, acts of terrorism, accidents, wars, rebellions, civil commotion, public strife, acts of any government, whether legal or otherwise, acts of public enemies, forces majeure, or qualified labour, or any other causes beyond the reasonable control of TCA.
6.2.9. For any delays or inabilities to obtain goods and services because of the actions of a supplier to TCA.
6.3. In entering into this contract, the Buyer does so not only on its behalf but as agent and trustee for all of its contractors, subsidiaries, servants, sub-contractors and agents.
6.4. The Buyer defends, indemnifies and holds harmless TCA from and against all claims, costs and demands whatsoever and by whosoever made in relation to or arising out of the goods provided.
6.5. Without prejudice to the generality of this clause, this indemnity covers all failures of goods, claims, costs and demands arising from or in connection with the negligence or wrongful or deliberate acts of TCA, its contractors, servants, sub–contractors and agents.
7. Intellectual Property
TCA retains all rights, title and interest in any intellectual property including any design(s), documentation, diagrams or plans existing during the course of the work under this Agreement.
8.1. In the event of the Buyer’s refusal to accept a shipment or other default by the Buyer, TCA (at its discretion and option) is entitled to:
8.1.1. Retain all monies paid by the Buyer on accounts as liquidated damages;
8.1.2. Take immediate possession;
8.1.3. resell the goods;
8.1.4. Charge a default fee to the Buyer equivalent to 50% of the amount invoiced for the genuine presumption of loss;
8.1.5. Declare all unpaid amounts immediately due and payable;
8.1.6. Suspend shipments to the Buyer; and
8.1.7. Settle the goods for any amount owed by the Buyer or any of the Buyer’s related entities against any amount payable to TCA in connection with any unpaid monies to TCA.
8.2. If the Buyer fails to make any payments when due, or if there is a breach of any covenant or agreement by the Buyer, or if TCA deems itself insecure, then the Buyer will be deemed in default.
8.3. A waiver by TCA of any breach or default does not constitute a waiver of any subsequent breach or default.
9.1. The Buyer agrees to pay TCA the amounts specified in the invoice issued by TCA to the Buyer before claiming any set-off, counter-claim, deduction or discount of any kind.
9.2. The Buyer agrees that it must pay all outstanding invoices before commencing any legal process against TCA.
9.3. All amounts payable hereunder will be due to TCA within seven (7) days of the invoice date unless otherwise specified by the invoice (or by TCA in writing).
9.4. Late payments will incur interest at the rate of 2% per month on the largest balance due during the month, whether or not expressed in a quotation or invoice.
9.5. Payment of all invoices is a fundamental term of this Agreement and to the maximum extent permitted by law, TCA will have no liability to the Buyer for acts or omissions or work required to be undertaken by TCA if the circumstance or event which would otherwise give rise to liability occurs at a time when the Buyer is in breach of its obligations to TCA.
9.6. TCA has the right to adjust any invoice rendered to allow for any increase in any exchange rate or delivery costs.
9.7. TCA has the right to increase the amount payable on an invoice to allow for GST (or any other applicable taxes, duties, impost, or other costs) irrespective of whether that tax, duty, impost, or other cost arose before or after the invoice was provided.
9.8. The Buyer is to pay all costs and expenses incurred by TCA on an indemnity basis in connection with TCA attempting to obtain payment of any outstanding amounts, including fees charged by a collection agency or solicitor, whether or not formal proceedings are brought to remedy the Buyer’s breach of this agreement or to collect any amount due.
9.9. The Buyer agrees to deliver written notice of any error in any invoice or statement of account to TCA within three (3) days after the day that the invoice or statement of account is dated. The invoice or statement of account will be deemed to be correct and accepted as rendered, unless TCA has received the Buyer’s written notice to the contrary within three (3) days of it being sent.
All sums owing to TCA by the Buyer will be paid in accordance with the terms and conditions expressed on any written quotation signed by TCA or on a TCA invoice.
10.1. The Buyer agrees that the Buyer is deemed to have received an invoice or statement the day after TCA posts, faxes or emails the invoice or statement.
10.2. If the Buyer does not provide written notice to TCA of any objection or complaint within seven (7) days of this receipt, then the Buyer agrees:
10.2.1. That the amount is owing to TCA is rendered;
10.2.2. To be bound by the terms of this Agreement;
10.2.3. That the amount on the statement is accurate;
10.2.4. That the onus will be on the Buyer to prove otherwise thereafter; and
10.2.5. That if the Buyer wishes to make any counterclaim or set-off against TCA, then the Buyer agrees and undertakes to pay the amount claimed on all outstanding invoices owed to TCA in full, before:
10.2.5.1. The Buyer makes any such claim; and
10.2.5.2. The Buyer can raise any dispute to a demand served by TCA pursuant to section 459E of the Corporations Act 2001 (Cth) (as amended).
11. Choice of Law
This contract is to be governed by the laws of Queensland. TCA and the Buyer hereby agree:
11.1. To submit to the exclusive jurisdiction of the Courts of Queensland; and
11.2. That all proceedings are to be filed and trialed in the Court registries at Brisbane.
If these terms and conditions will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable, then:
12.1. That provision will, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
12.2. If the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.
13.1. The person (the “Guarantor”) who undersigned the purchase docket on behalf of the Buyer guarantees to TCA that he or she will do everything that the Buyer is required to do under these Trading Terms.
13.2. The Guarantor will separately continually indemnify TCA against any loss and damage that TCA suffers because the Buyer fails to comply with these terms and conditions.
13.3. The Guarantor is jointly or severally liable to personally perform the terms contained herein with the Buyer.
13.4. TCA is entitled to enforce this Agreement against the Guarantor solely due to the Buyer’s breach of any terms herein.
14. Charging Clause
14.1. The Buyer, director(s) of the Buyer and the Guarantor agree to jointly and severally provide irrevocable guarantees that the Buyer will fully satisfy its obligations pursuant to this Agreement.
14.2. The Buyer, director(s) of the Buyer and the Guarantor provide equitable security over any and all real property in their possession either now or any time in the future including (but not limited to) any property, undertaking or rights held as trustee.
14.3. The Buyer, director(s) of the Buyer and the Guarantor provide a caveatable interest over any real property held by said persons or parties (including by way of joint tenancy) either now or in the future as security for any monies owing under this agreement plus all of TCA’s indemnity legal costs.
15. Enduring Power of Attorney
15.1. The Buyer irrevocably appoints TCA and each and every one of TCA’s directors to be the true and lawful attorney of the Buyer to act at any time after the Buyer breaches any terms herein.
15.2. The attorney is empowered (but not limited):
15.2.1. To do all things which the Buyer is required to do under this Agreement; and
15.2.2. To execute and register (if necessary) any document to effect a bill of sale or mortgage, over the Buyer’s assets or properties for the amount of debt owing.
15.3. The Buyer acknowledges and agrees that whilst there are any monies owing to TCA, TCA may register a caveat or mortgage over any real property held by the Buyer until all monies are paid, or until the Court so orders.
16.1. TCA may terminate this Agreement if:
16.1.1. The Buyer commits any breach of its obligations under this Agreement;
16.1.2. The Buyer becomes insolvent, bankrupt ,enters into a scheme of arrangement with creditors, or is presumed to be insolvent; or
16.1.3. TCA provides seven (7) days prior written notice.
16.2. Termination can be effected by TCA verbally or by written notice to the Buyer.
16.3. In the event that the Buyer terminates this Agreement (or cancels any order) then the Buyer will be required to pay all remaining payments due without setoff.
16.4. In the event that TCA terminates this agreement (or cancels any order) then TCA may elect (at its sole discretion) to complete any order placed by the buyer prior to termination.
17.1. TCA may perform any of its obligations through sub-contractors.
17.2. TCA may assign its rights and obligations under these terms and conditions.
17.3. If the Buyer changes its corporate status, both Buyer and its successors continue to be bound by these terms and conditions of sale, but TCA reserves its rights pursuant to clause 16.
17.4. No prior representation, affirmation, or agreement will be enforceable unless set forth herein.
17.5. If the Buyer sells part or all of its business to another entity, and that other entity purchases any goods from TCA, then that purchase will confirm that the new entity has agreed to be bound by the same Terms and Conditions set out herein.
17.6. A party that is a trustee is bound both personally and in its capacity as a trustee.
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