Terms of Sale

These terms govern the purchase through the website shop.toyotaforklift.com (the “Store”), operated by Toyota Material Handling, Inc. (“we”, “us” or “our”), of (i) equipment, parts, accessories and other tangible items, including the tangible components of the MyInsights Telematics System (collectively, the “Goods”); (ii) the inherent software features and services included in the MyInsights Telematics System for no additional charge; and (iii) separately purchased optional subscription services offering additional features or functionalities, including MyInsights+ and MyInsights+ Compliance  (the “MyInsights Subscription Services”).  Upon purchase and for so long as Buyer remains subscribed to MyInsights Subscription Services, the MyInsights Subscription Services become integrated into the MyInsights Telematics System and are governed by the MyInsights System Terms, as defined in section 4.1.  The Goods, MyInsights Telematics System software features and services, and MyInsights Subscription Services are collectively referred to herein as the “Offerings”.

When you submit an order on the Store, you are offering to enter into a legally binding agreement that becomes effective only upon acceptance of the order by us, authorized Toyota dealers or other merchants (as identified on the order submission page, the “Seller”). If you are submitting an order on behalf of a business entity and Seller accepts that order, these terms constitute an agreement between Seller and that business entity. If you are submitting an order for individual use and Seller accepts that order, these terms constitute an agreement between Seller and you.

1. PURCHASING AUTHORITY: 
        1.1.   Business Entity Orders.  If you are placing an order on behalf of a business entity, you represent that (i) you are an employee or agent of the business entity identified in the order; and (ii) you have the authority to bind that entity to these terms.  When you purchase on behalf of a business entity, that entity is the “Buyer” under these terms.  The business entity is responsible for compliance with all terms.

        1.2.   Individual Orders.  If you are purchasing for your own individual use and not on behalf of a business entity, you are the “Buyer” under these terms and are responsible for compliance with all terms.  

2. ORDERS AND PAYMENT: 
        2.1.   Order Process and Acceptance.  Submitting an order constitutes an offer to purchase Offerings.  All orders are subject to acceptance by Seller.  No order is binding on Seller until accepted.  Seller may decline any order for any reason in its sole discretion.   We will notify Buyer of Seller acceptance by sending an order confirmation or by Seller commencing performance.

        2.2.   Pricing.  All prices are in U.S. Dollars unless otherwise specified.  Prices are subject to change without notice prior to acceptance.  Prices do not include taxes, shipping or handling charges, which will be added to the order total.  Buyer shall pay any applicable sales, use, value-added or similar taxes related to its purchase.  

        2.3.   Payment.  For each accepted order, Buyer shall pay for Offerings at the time of order submission via credit card or other payment methods we accept.  If Buyer purchases MyInsights Subscription Services on a month-to-month basis, Buyer will be charged monthly until Buyer is no longer subscribed to MyInsights Subscription Services.  For business orders, by providing credit card information, you represent that you are authorized to use the card on behalf of the business entity, and if Seller accepts the order, that business entity authorizes us to charge the card for the order total. For individual orders, by providing credit card information, you represent that you are authorized to use the card and, if Seller accepts the order, authorize us to charge the card for the order total. We will not charge Buyer until Seller accepts Buyer’s order.  All payments, including all subscription fees under section 4.3, are final and non-refundable unless otherwise provided in these terms.

3. GOODS: 
        3.1.   Shipment, Delivery and Title.  Seller will ship the ordered Goods to the address specified on Buyer’s order.  Method and route of shipment are at Seller’s discretion.  Delivery dates are estimates only and not guaranteed.  Delivery of Goods may be made in installments.  Title to and risk of loss in Goods will pass to Buyer upon delivery.  Notwithstanding the preceding sentence, Seller will be entitled to maintain an action against Buyer for any unpaid amount without prejudice to any other right or remedy available to Seller either in law or under these terms.

        3.2.   Inspection.  Buyer may inspect Goods within five days of its receipt (the “Inspection Period”).  If Buyer reasonably determines that any Goods is out of compliance with its specifications, Buyer shall notify Seller in writing, specifying the details of noncompliance, and shall furnish any evidence Seller reasonably requests.  Buyer will be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any nonconforming Goods during the Inspection Period. If Buyer timely notifies Seller, Seller will either (i) correct or replace, at its expense, the nonconforming Goods; or (ii) refund or credit the portion paid and associated with the nonconforming Goods.  The remedies set forth in this section 3.2 are Buyer’s exclusive remedies for the delivery of nonconforming Goods.  Notwithstanding the preceding sentence, Buyer’s acceptance of Goods under this section does not waive Buyer’s warranty rights. 

        3.3.   Goods Warranties.  Any warranty for Goods is provided exclusively by the original Goods manufacturer according to the warranty certificate that accompanies the Goods.  Except to the extent we are the original Goods manufacturer, we make no warranties of our own with respect to Goods.  We pass through to Buyer any manufacturer warranties to the extent permitted by the original Goods manufacturer. Buyer shall make all warranty claims directly to the original Goods manufacturer in accordance with the procedures specified in the warranty certificate.  THE WARRANTY CERTIFICATE PROVIDED WITH THE GOODS CONSTITUTES THE EXCLUSIVE WARRANTY FOR THE GOODS AND SUPERSEDES ALL OTHER WARRANTIES.

        3.4.   Returns.  Notwithstanding section 2.3, Buyer may request to return purchased Goods by contacting Seller within 30 days of the original purchase date so long as the returned Goods is in new and unused condition.  Seller may, in its sole discretion, accept or reject Buyer’s return request.  Buyer acknowledges that Seller has no obligation to accept any returns made without its prior approval.  If Buyer’s return request is approved, Buyer shall ship the Goods to a destination of Seller’s choosing at Buyer’s expense and risk of loss and subject to a restocking fee.  Title to each unit of returned Goods will transfer to Seller upon its receipt and acceptance of the returned Goods.  Subject to the following sentence, Seller will issue Buyer a refund, less any restocking or shipping fees, within 45 days of its receipt of the returned Goods.  If any returned product is not in new and unused condition, Seller will have no obligation to refund any monies to Buyer.

4. MYINSIGHTS TELEMATICS SYSTEM: 
        4.1.   Terms of Use.  Buyer’s rights and obligations with respect to its access to and use of the MyInsights Telematics System is governed exclusively by the MyInsights System Terms, available at https://www.toyotaforklift.com/myinsights-legal/terms-and-conditions and incorporated herein by reference.  These Terms of Sale govern only the initial purchase transaction and any recurring payments; they do not govern Buyer’s ongoing use or access to the MyInsights Telematics Systems or its integrated components.  In the event of any conflict between these Terms of Sale and the MyInsights System Terms, the MyInsights System Terms will prevail with respect to the MyInsights Telematics System.

        4.2.   MyInsights System Warranty.  Any warranties applicable to the MyInsights Telematics System are set forth exclusively in the MyInsights Terms.  These Terms of Sale do not provide any additional warranties with respect to the MyInsights Telematics System. 

        4.3.   MyInsights Subscription Services.  

                4.3.1.      Month-to-Month Subscriptions and Auto-Renewal.  This section applies to MyInsights Subscription Services purchased by Buyer for use on a month-to-month basis.  We will charge the Buyer monthly, with the first month’s payment due pursuant to section 2.3 upon our order acceptance.  Buyer’s MyInsights Subscription Services will continue and automatically renew at the end of the disclosed monthly billing period until terminated or non-renewed by Buyer under section 4.3.3.   Upon no less than 30 days’ notice to Buyer, we may increase the monthly price, such increase to be effective as of the next renewal month.  If Buyer’s payment method expires and Buyer does not update its payment method or terminate its MyInsights Subscription Services, Buyer authorizes us to (i) continue billing, in which case Buyer will remain responsible for any uncollected amounts, or (ii) terminate Buyer’s MyInsights Subscription Services.    

                4.3.2.      Prepaid Subscriptions.  This section applies to MyInsights Subscription Services purchased upfront by Buyer for a defined term.  Prepaid MyInsights Subscription Services begin on the date we accept Buyer’s order and remain in effect for the number of months selected by Buyer at the time of purchase (the “Subscription Term”).  Upon expiration, the Subscription Term will automatically renew for successive periods equal in length to the original Subscription Term, unless Buyer provides notice of non-renewal under section 4.3.3 no less than 30 days prior to the end of the then-current Subscription Term.  Upon no less than 45 days’ notice, we may adjust pricing applicable to any future renewal Subscription Term.  Upon renewal, we will charge Buyer upfront for the entire renewal Subscription Term.  All subscription fees, once paid, are non-refundable, including fees for any renewal Subscription Term.

                4.3.3.      Termination and Non-Renrewal.  Buyer may withdraw from MyInsights Subscription Service automatic renewal through the MyToyota Customer Portal, whereupon the applicable service will terminate at the end of the then-current billing period.  Buyer may terminate any MyInsights Subscription Service at any time by contacting us at https://my.toyotaforklift.com/contact-us or by phone at 800.381.5879.

5. INTELLECTUAL PROPERTY. As between Buyer and Seller, Seller retains all intellectual property rights in and to the Offerings and all modifications, updates or improvements thereto, including those developed in collaboration with or suggested by Buyer. The granting of access to any web-based service by us should not be construed as granting or conferring any rights by license.

6. INDEMNIFICATION: 
        6.1.   S&SC Indemnification.  Seller will defend, indemnify, and hold harmless Buyer and its officers, directors, employees and agents against all losses, damages, penalties, judgments, liabilities, settlements and expenses, including reasonable attorney fees and other expenses of litigation, settlement or defense (collectively, “Indemnifiable Losses”) arising out of or resulting from any claim, suit, proceeding or cause of action brought by a third party (each, a “Claim”) in connection with an allegation that Buyer’s use of Seller’s Offering infringes or misappropriates the intellectual property rights of any third party.  Notwithstanding the foregoing, Seller will have no defense or indemnity obligation for Claims arising from (i) Buyer’s use of Seller’s Offering not in compliance with these terms, the Offering documentation or Seller’s reasonable instructions; (ii) modification to any portion of the Offering not approved in writing or performed by Seller or its representatives (iii) any use of the Offering in combination with other products, Goods, software or data not supplied by Seller; or (iv) Buyer’s failure to implement an update or enhancement provided by Seller.  If any Offering becomes, or is likely to become, the subject of a Claim, then, in addition to defending the Claim and paying any damages as required in this section, Seller may replace or modify the Offering, providing not less than the functionalities specified in these terms, to make them non-infringing or misappropriating; or procure for Buyer the right to continue using the Offering.  If Seller determines that neither of the foregoing is feasible or otherwise reasonable, Seller will have the right to immediately terminate the applicable order and refund to Buyer the prorated portion of any amounts paid thereunder.    The remedies set forth in this section will be Buyer’s sole remedy, and Seller’s sole liability, for any Claim.

        6.2.   Buyer Indemnification.  Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees and agents of each against all Indemnifiable Losses arising out of or resulting from any Claim in connection with (i) Buyer’s or its contractor’s, subcontractor’s or agent’s use of the Seller’s Offerings not in accordance with any provided Offering documentation, these terms or in any unlawful manner; (ii) the negligence or intentional misconduct of Buyer or its employees, agents, subcontractors or representatives; or (iii) any breach or alleged breach of these Terms of Sale by Buyer. 

        6.3.   Procedure.  A party (the “Indemnified Party”) seeking indemnification or defense shall give prompt notice to the other party (the “Indemnifying Party”) upon learning of any Claim.  If the Indemnified Party does not promptly notify the Indemnifying Party of the Claim, the Indemnifying Party will be relieved of its indemnification and defense obligations with respect to the Claim to the extent the Indemnifying Party was prejudiced by that failure.  The Indemnified Party shall allow the Indemnifying Party to control the defense and settlement of the indemnified Claim and shall reasonably cooperate with the Indemnifying Party.  After the Indemnifying Party assumes the defense of the indemnified Claim, the Indemnified Party will bear the expenses of any additional counsel retained by the Indemnified Party, and the Indemnifying Party will not be liable to such party under this agreement for any legal or other expenses subsequently incurred by such party.  The Indemnifying Party shall use counsel reasonably experienced in the subject matter at issue and shall only settle a Claim without the written consent of the Indemnified Party if the settlement (i) does not entail any admission on the part of the Indemnified Party that it violated any law or infringed the rights of any person; (ii) has no effect on any other claim against the Indemnified Party; (iii) provides as the claimant’s sole relief monetary damages that are paid in full by the Indemnifying Party; and (iv) requires that the claimant releases the Indemnified Party from all liability alleged in the Claim.

7. DISCLAIMER OF WARRANTIES:  subject to the following sentence, the Offerings are provided “as is” and “as available” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR TITLE, AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED.  NOTWITHSTANDING THE PRECEDING SENTENCE, THIS SECTION 7 DOES NOT LIMIT THE TERMS OF ANY WARRANTY OFFERED BY THE MANUFACTURER OF AN OFFERING THAT IS SOLD TO YOU THROUGH THE STORE.  ALL INFORMATION ABOUT THE OFFERINGS ON THE STORE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND WE MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE STORE’S ACCURACY.

8. LIMITATION OF LIABILITY: WE AND ALL SELLERS WILL NOT BE LIABLE TO BUYER FOR INDIRECT, INCIDENTAL, BUSINESS INTERRUPTION OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOSS OF REVENUE (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, OR REPUTATION, WHETHER ARISING UNDER CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THESE EXCLUSIONS APPLY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS INITIAL PURPOSE.  IN NO EVENT WILL A SELLER’S CUMULATIVE LIABILITYARISING OUT OF OR RELATED TO THESE TERMS OF SALE, EXCEED THE TOTAL PAYMENTS RECEIVED BY THAT SELLER FROM BUYER UNDER THESE TERMS IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES.   

9. FORCE MAJEURE:  Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under these terms during any period in which that performance is delayed by any circumstances beyond the party’s reasonable control (a “Force Majeure Event”) provided that the delayed party provides the other party with prompt written notice of the Force Majeure Event.    

10. GOVERNING LAW AND JURISDICTION: The laws of the State of New York govern the validity, interpretation and performance of these terms as well as all adversarial proceedings arising out of these terms, without giving effect to any laws, rules or provisions that would cause application of the laws of any jurisdiction other than the State of New York.  If either party brings against the other party any proceeding arising out of these terms, that party shall bring that proceeding only in a state court located in Chenango County, New York or a federal court located in the Northern District of New York.  The application of the United Nations Conventions on Contracts for the International Sale of Goods is excluded    

11. ASSIGNMENT: Buyer may not assign any of Buyer’s rights or delegate any of Buyer’s obligations under these terms without Seller’s prior written consent. No assignment or delegation relieves Buyer of any of Buyer’s obligations under these terms.  

12. INDEPENDENT CONTRACTORS:  The parties are independent contractors only and are not partners, master/servant, principal/agent or involved as parties to any other similar legal relationship with respect to the transactions contemplated under these terms, and no fiduciary, trust, or advisor relationship, nor any other relationship imposing vicarious liability exists or will exist between the parties under these terms or otherwise at law.    

13. SEVERABILITY:  If a dispute between the parties arises out of these terms or the subject matter herein, the parties desire that the court interpret these terms as follows: (a) with respect to any provision that the court holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; and (b) if an unenforceable provision is modified or disregarded in accordance with this section, by holding that the rest of these terms will remain in effect as written; and (c) if modifying or disregarding the unenforceable provision would result in a failure of an essential purpose of these terms, by holding the entirety of these terms unenforceable   

14. NOTICE: 
        14.1.   To Buyer. We may provide notice to Buyer under these terms by: (i) sending a message to the email address Buyer provided with its order; or (ii) posting to the Store. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is Buyer’s responsibility to keep Buyer’s email address current.

        14.2.   To Us. To give us notice under these terms, Buyer must contact us by personal delivery, overnight courier or registered or certified mail to Toyota Material Handling, Inc., 5559 Inwood Dr., Columbus, IN 47201. We may update the address for notices to us by revising these terms. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent. 

        14.3.   To Another Seller.  To give a Seller, other than us, notice under these terms, Buyer must contact the Seller by personal delivery, overnight courier or registered or certified mail to the address specified on its invoice or order details page. Seller may update the address for notices to Seller by provide notice to Buyer on one or more occasions. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent

15. AMENDMENTS:  These terms may be updated at any time.  When changes are made, the “Last Updated” date above will be revised.  Buyer’s submission of any order after revised terms are posted constitutes acceptance of those revised terms.  

16. ENTIRE AGREEMENT; WAIVERS: These terms contain the entire agreement between the parties and supersede all prior or contemporaneous agreements, whether oral or written, relating to the subject matter herein. There are no understandings, inducements, commitments, conditions, representations or warranties, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained in these terms.     No waiver or satisfaction of a condition or nonperformance of an obligation under these terms will be effective unless it is in writing and signed by the party granting the waiver.