Cootehall Marina,
Cootehall.
Co.Roscommon
Phone: 086.2526373
Email: Murray Marine
STANDARD CONDITIONS OF SALE
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1. INTERPRETATION In these standard conditions of sale (“Conditions”):- 1..1 'Boat' means the boat and any other components, products or other items or services which the vendor is to supply in accordance with the contract. 1..2 'Contract' means the contract between the vendor and the purchaser for the sale and purchase of the boat comprised of the vendor’s purchase order form to which these conditions are annexed ('Order Form'), incorporating these conditions, provided it has signature being the 'Contract Date'). 1..3 'Force Majeure' means any circumstance beyond the reasonable control of the vendor including, without limitation, war or threat of war, actual or threatened terrorist activity, any form of industrial action ,disaster, adverse weather conditions, act of god or act of governmental or other regulatory bodies. 1..4 'Price' means the purchase price of the boat (including value added tax, if applicable, separately itemised) as set out in the order form, plus:- 1.4.1 the cost of insurance, as notified in writing to the purchaser by the vendor; and 1.4.2 the charge for packing, loading, unloading, carriage, effecting delivery and commissioning of the boat in accordance with these conditions, such charges to be notified in writing to the purchaser by the vendor, unless already included within the purchase price set out in order form and itemised accordingly. 1..5 'Property' means the legal and equitable title. 1..6 'purchaser' means the person who accepts the vendors written quotation for the sale of the boat or whose written order for the boat is written by the vendor agreement/contract. 1..7 'vendor' means Murray Marine Brokerage. 1..8 'Writing' includes facsimile transmission (“fax”) but no electronic mail. 1..9 A reference to any provision of a statute shall be construed as a reference to that provision as it is in force at the relevant time taking account of any amendment, re- enactment extension. 1.10 Except where the context otherwise requires ,words denoted the singular include the plural and vice versa, words denoting any gender include all gender s and any references to a “person“ includes an individual ,firm, corporation, and/or other legal entity. 1.11 References to a numbered condition are to that condition in these conditions. 1.12 The headings are for convenience only and shall not affect the interpretation of these conditions. 2. BASIS OF SALE 2.1 The vendor shall sell and the purchaser shall buy the boat in accordance with the contract/agreement which shall constitute the entire agreement and understanding between the parties relating to the subject matter of the contract/agreement . These conditions shall govern the contract/agreement to the exclusion of all other terms and condition (including any terms or conditions which the purchaser may purport to apply under any documentation or otherwise). 2.2 No variation or addition to these conditions shall be binding unless contained on the face of the order form or set out in written instrument and, in each case signed by the vendor. 2.3 The vendor employee ,agent, and representatives are not authorised to make any statment promise or representations concerning the boat . In entering into the contract the purchaser acknowledges that it has not relied on statement , promise or representation which has not been confirmed by the vendor to the purchaser in writing. Nothing in these conditions 2 shall exclude or limit the vendors liability for fraudulent misrepresentation. 3 ORDER 3.1 The vendor shall be under no liability for an order received nor shall it be deemed to have accepted any order, unless and until an authorised representative of both the vendor and the purchaser have signed the order form and a deposit referred to in condition 4.1 has been received in cleared funds into the vendor's nominated bank account. 3.2 The purchaser have signed the order form and the deposit referred to in condition 4.3 has been received in cleared funds into the vendor’s bank account. 3.3 Any offer or quotation given by the vendor in any order form may be withdrawn at any time prior to signature and return of such order form by the purchaser, and will automatically and without notice be withdrawn and become incapable of acceptance by the purchaser if such order form has not been signed by the purchaser and received by the vendor within fourteen days of the date of posting by the vendor. 3.4 Subject to condition 7 the quantity , quality and description of any specification relating to the boat shall be those set out in the order form. The purchaser shall ensure that the terms of its order and any applicable specification are complete and accurate . 3.5 No contract may be cancelled or varied by the purchaser except with the agreement in writing of a senior manger of the vendor and on terms such that the purchaser will indemnify the vendor and keep and fully and effectively indemnified against any losses (including loss of profits), costs, damages, charges and expenses incurred by the vendor as a result of such a such cancellation or variation. 4. PRICE AND PAYMENT 4.1 On the contract date the purchaser shall pay to the vendor 20% of the price as a non - transferable non-refundable deposit. The purchaser shall pay to the vendor the balance of the price in full without any deduction within 7 days after receipt of a reminder of balance due being issued by the vendor and time for the payment shall be of the essence. 4.2 T The vendor shall be under no obligation to deliver the boat to the purchase unless and until the purchaser shall have paid price in full. 4.3 No payment shall be deemed to have been received until the vendor has received cleared funds. 4.4 Failure by the purchases to pay the price or any part of the same (including any part exchange allowance which has been converted by the vendor into an obligation on the purchaser to pay in cash under condition 4.5, 4.6, 4.7) shall entitle the vendor, without prejudice to any other right or remedy available o the vendor, at its sole discretion, to:- 4.4.1 Suspend any outstanding work or deliveries or cancel the contract; and/or charge interest both before and after judgement on the sum outstanding at the rate payable under the late payment of commercial debts (interest) act 1998, as if such act applied and whether or not it is necessary for the vendor to issue proceeding for recovery of any amount due and, for the avoidance of doubt, the purchaser shall not be entitled to apportion any part of the price which it may have paid to any particular part or component of the boat so as to be able to claim that it has purchased any such part or component. 4.5 Where the vendor agrees to accept a boat (“Part Exchange Boat”) in part payment of the price (“Part Exchange Allowance”) , the vendor shall have the right to have the part exchange boat inspected and surveyed (“First Survey”) within 14 days after the contract date. Any agreement by the vendor to accept the part exchange boat shall be conditional on all previous satisfactory surveys been available, all relevant documentation , proof of ownership etc, the first survey being satisfactory (in which event the vendor shall confirm to the purchaser in writing the amount of the part exchange allowance) and shall be further conditional on condition 4.6. The vendor shall have the right at its sole discretion and with out prejudice to any other right or remedy available to it to reject the part exchange boat, where upon the part exchange allowance shall be payable in cash as the balance of the price. 4.6 The vendor shall have the right to have the part exchange boat surveyed a second time prior to the delivery date for the boat {“Second Survey”) and if, the sole opinion of the vendor, there shall have been any material deterioration in the condition of the part exchange boat between the dates of the first survey and the second survey the vendor shall endeavour to negotiate with the purchaser a reduced part exchange allowance for the part exchange boat. If the vendor and purchase do not agree upon a reduced part exchange allowance the vendor shall have the right at Its sole discretion and without prejudice to any other right or remedy available to it to reject the part exchange boat, whereupon the part exchange allowance shall be payable in cash as the balance of the price. 4.7 The agreement of the vendor to accept a part exchange boat shall be further conditional upon the purchaser passing good and clear title prior to the delivery date, in default of which the vendors Agreement to accept the part exchange boat shall be null and void and of no effect and the part Exchange allowance shall be payable in cash as the balance of the price. 4.8 Payments by letter of credit (“Letter of Credit”) shall only be permitted if stipulated in the order form . In such a case all costs including bank charges shall be for the account of the purchase and all letters of credits shall be:- 4.8.1 in favour of the vendor; 4.8.2 consistent with these condition; 4.8.3 insufficient amounts and for the period necessary to meet with all payment obligations of the purchaser under these conditions; 4.8.4 irrevocable, transferable and divisible; and 4.8.5 issued or confirmed by a bank in Ireland acceptable to the vendor within fifteen days after the contract date. 5. DELIVERY 5.1 Without prejudice to condition 4.2, delivery of the boat to the purchaser shall be made at the vendors place of business by the purchaser accepting delivery of the best within 14 days after the vendor has notified the purchaser that the boat is ready for collection or, if some other place for delivery is agreed in writing by the vendor, by the vendor delivering the best to that place. It shall be sufficient proof of delivery for the vendor to obtain the signature units acceptance of handover note of either the purchaser or such person as may be nominated by the purchaser in advance ofdelivery either on collection of the best boat at the vendors place of business or at the agreed alternative place of delivery, as the case may be. The time of signature shall be the “time of delivery” . 5.2 Any dates specified for delivery of the best of the boat are an estimated only and any failure to comply with such dates shall not constitute a breach of the contract. Time for delivery shall not be of the essence of the contract unless previously agreed by the vendor in writing. If no dates specified, delivery shall be within a reasonable time having regard to the normal time for delivery for that particular boat from that manufacturer. The boat may, at the vendors option, be delivered by the vendor and paid for by the purchaser in advance of any specified delivery date by the giving of reasonable notice to the purchaser. 5.3 The vendor shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused by any delay in delivery of the boat howsoever caused, nor shall any delay entitle the purchaser to terminate or rescind the contract unless such delay exceeds 90days. 5.4 Where the purchaser fails to take delivery of the boat when it is ready for collection, or the vendor is unable to delivery the boat because the purchase has failed to give the vendor adequate delivery instruction, documents, licences or authorisations, without prejudice to any other night or remedy available to the vendor, the vendor may at its option:- 5.4.1 store the boat until actual delivery and charge the purchase for the purchaser for the costs(including insurance) of the storage; or 5.4.2 sell the boat either by auction or through private treaty at the best price readily obtainable and (after deducting all storage and selling expenses) account to the purchaser for any excess over the price or charge the purchaser for any shortfall below the price. 6. RISK AND THE PASSING OF PROPERTY 6.1 The risk in the boat shall pass to the purchaser from the time of the delivery. 6.2 Without prejudice to condition 4.2, in the event of delivery of, and the passing of the risk in he boat prior to receipt by the vendor to the price, notwithstanding any other provision of these Conditions, property in the boat shall not pass to the purchaser until the vendor has received in Cash or cleared funds or an irrevocable letter of credit payment in full of the price. Until such time as the property in the boat passes to the purchaser the following provisions of the condition 6 shall apply. 6.3 The purchaser shall:- 6.3.1 hold the boat on a fiduciary basic as the vendors bailee; 6.3.2 Store the boat properly and separately from any other boat belonging to the purchaser or any third party, and In such a way it remains readily identifiable as the boats Property; 6.3.3 Keep the boat protected, free from destruction or defacement and insured for its full price against all risks with the vendors interest in the boat noted on the policy The vendor shall have all rights of inspection necessary to ensure the purchase has complied with this condition. 6.4 The purchaser rights to possession of the boats shall terminate immediately if the purchaser:- 6.4.1 has a bankruptcy order made against him/her or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors( whether formal or informal) , or has a receiver and /or manager, administer or administrative receiver appointed of its undertaking or any part of the same, or documents are filed the court for the appointment of an administrator of the purchaser or notice of appoint an administrator is given by the purchaser or its directors by a qualifying floating charge holder (as defined in Paragraph 14 of schedule B1 to the insolvency act 1986), or a resolution is passed or a petition to any court for the winding up of the purchaser or for the granting of an administration order in respect of the purchaser, or any proceedings are commenced relating to the insolvency of the purchaser; or 6.4.2 suffers or allows any execution, whether legal or equitable, to be levied on its property obtained against it, or fails to observe or perform any of its obligations under the contract ,or is unable to pay its debts within the meaning of section 123 of the insolvency act 1986 or ceases to trade; or 6.4.3 without prejudice to condition 4.2, fails to pay balance of the price outstanding to the vendor within 14 days of the time of delivery 6.4.4 encumbers or in any way charges the boat. 6.5 the purchaser grants the vendor, its agents and employees an irrevocable licence at any time to enter any premises where the boat is or may be stored in order to inspect it, or, where the purchasers rights to possession has terminated, to recover it, in which event the purchaser shall deliver up to the vendors any and all documents of title on it possession or under its control. 6.6 On termination of the contract, howsoever caused, the vendors (but not the purchasers)rights contained in this condition 6 shall remain in effect. 7. SPECIFICATIONS 7.1 All specifications are approximate only and are subject to normal margins of tolerance for the materials and construction in question .Whilst the vendor will endeavour to supply the boat in accordance with the specification prevailing at the time of the contract it reserves th right notwithstanding the above , to vary the specifications without notice in the light of changes I n technical knowledge, production techniques Government or other regulations considerate on safety or other reasonable cause The delivery of the boat conforming to the vendor prevailing design and specification at the time of delivery shall be good and sufficient performance of the contract by the vendor. 8. WARRANTY 8.1 The vendor shall endeavour to transfer to the purchaser the benefit of any manufacture’s warranty or guarantee (“Manufacturer Warranty”) given to the vendor in respect of the boat and the purchaser shall in such case (and is a condition of any liability of the vendor under the contract that it does) use its reasonable commercial endeavours to enforce the terms of the manufacturer warranty against the manufacturer prior to seeking any redress against the vendor. 8.2 The vendor warrants that subject to the other provisions of these conditions upon delivery, and for a period of 12 months from the time of delivery (”Warranty Period”), the boat shall be of satisfactory quality within the meaning of the sale or goods act1979 (“Warranty”). 8.3 The vendor shall not be liable for a breach of the warranty unless:- 8.3.1 the purchaser gives written notice of the defect to the vendor within fourteen days of the time when the purchaser discovers or ought have discovered the defect; and 8.3.2 the vendor is given a reasonable opportunity after receiving the notice of examining the boat and the purchaser( if asked to do so by the vendor) returns the boat (or any defective part of the same if such is detachable without damage) to the vendors place of business (or any other destination nominated by the vendor) at the vendors cost of for such examination to take place there. The risk of loss or damage to the boat whilst in transit to be borne by the purchaser. 8.4 The vendor shall not be liable for a breach of the warranty if:- 8.4.1 the purchaser makes any further use of the boat after giving the notice in condition 8.3.1 if to do so might worsen the alleged defect; or 8.4.2 the purchaser has not paid the price in full; or 8.4.3 the detect arises due to fair wear and tear, accident, wilful damage, acts of third parties, misuse, environmental conditions or other causes beyond the vendors control, or Because the purchaser failed to follow normal marine practice or the vendors oral or Written instructions as to the storage, installation, commissioning, use or maintenance of the boat; or 8.4.4 the defect was known to the purchaser, or would have been apparent to the purchaser on reasonable inspection of the boat, prior to entry into the contract; or the purchaser or an third party alters, repairs or replaces the boat or any part of it without the prior written consent of the vendors. 8.5 Subject to conditions 8.3 and 8.4, if the boat or any part of it does not confirm with the warranty during the warranty period the vendors shall at its sole option make good by repair or replacement (it being acknowledged that in respect of fabrics t may not always be possible to obtain identical matching colours or design) any defects in the boat which arise solely from faulty design (other than a design made, furnished or specified by the purchaser ) , materials or workman’s (“Guarantee”). 8.6 Where a manufacture warranty exists, the warranty period shall be reduced or extended in scope (as the case may be) so that both the manufacturer warranty and the warranty expire at the same time. 8.7 In the event that the vendor elects to make good by repair or replacement any defects in the boat under condition 8.5 , at the vendors option:- 8.7.1 such repair or replacement may be carried out locally to where the boat is stored (by the vendor or any local contractor of its choice) I which case the purchaser shall grant the vendor free and ready access to the boat upon the vendors giving not less than 24 hour prior notice without there being any requirement for the purchaser to be present; or 8.7.2 the purchaser shall (if asked to do so by the vendor) return the boat (or any defective part of the same if such part is detachable without damage) to the vendors place of business( or any other destination nominated by the vendor), in the case only of a purchaser who is a consumer (as defined in condition 8.1o) at the vendors cost of carriage, for such repair or replacement to take place there. The risk of loss or damage to the boat whilst in transit to be borne by the purchaser. 8.8 Where the vendor responds to a complaint which is not covered by the warranty It reserves the Right to charge the purchaser at it a normal rate for travel, subsistence, labour and materials in carrying out any inspection and rectification. 8.9 If the vendor complies with the guarantee, subjects to condition 8.10, it shall have no further iability for breach of the warranty in respect of the boat, any boat or ant part of the same which has been replaced shall belong to the vendor. Any replaced boat or part of the same shall be guaranteed under the guarantee for the full warranty period but any repaired boat or part of thethe same shall be guaranteed under the guarantee for the unexpired portion of the warranty period only. 8.10 Where the purchaser contracting the vendor deals as a “consumer” within the meaning set out in section 12 of the unfair contract terms act 1977 and/or in the sale and supply of goods to consumer regulations 2002:- 8.10.1 The provision of the guarantee does not affect the purchasers legal rights; and implied undertaking contained in sections 13, 14 and 15 of the sale of goods act 1979 shall not be excluded or restricted by reference to any terms of this contract. 9. LIMITATION OF LIABILITY 9.1 Subject to condition 5.and 8 the following set out the entire financial liability of the vendor including any liability for the acts or omission of its employees ,agents and sub-contractors to the purchaser in respect of :- 9.1.1 any breach of contract including these condition : 9.1.2 any use made or resale by purchaser of the boat: and 9.1.3 any representation statement or tortuous act or omission including negligence arising under or in connection with the contract. 9.2 All warranties, condition and other terms implies by statute common law, custom, usage or otherwise save for the conditions implied by section 12 of the sale of goods act 1979 are subject to condition 8.10 and to the fullest extent permitted by law excluded from the contract . 9.3 Nothing in these conditions excludes or limits the liability of the vendor : 9.3.1 for death or personal injury resulting from the vendors malignance or under section ( 2 /3) of the consumer protection act 1987 9.3.2 for any matter of which it would be illegal for the vendor to exclude or attempt to exclude its liability : or 9.3.3 for fraud or fraudulent misrepresentation. 9..4 Subject to conditions 9.2 and 9.3:- 9.4.1 the vendors total liability in contract tort (including negligence or breach of statutory duty),misrepresentation restitution or otherwise arising in connection with the performance or contemplating performance of the contract shall be limited to the price and 9.4.2 the vendor shall not be liable to the purchaser for any pure economic loss, of profit loss of business , depletion of goodwill or otherwise in each case whether direct or indirect or consequently. Or any claims for consequential compensation whatsoever (however caused ) which arise out of or in connection with the contract. 10. RACING AND CHARTERING Warranty shall not extend to racing or chartering. 11. TERMINATION If either party “(Defaulting Party )”suffers any of the events setout in conditions 6.4.1 or makes default in or commit’s a breach of the contract (and in case of a breach capable of remedy fails to remedy such a breach within 21 days of receiving notice of the breach requiring its remedy from the other party (Non Defaulting Party )the non defaulting party may forthwith or giving written notice to the defending party terminate the contract without incurring any liability to the defaulting party and without prejudice to either party’s rights which may have accrued up to the date of termination. 12. ASSIGNMENT The contract is not assignable by the purchaser without the prior written consent of the vendor. The vendor may without consent assign or sub-contract the contract or any part of it to any person. 13. FORCE MAJEURE The vendor shall not be liable to the purchaser for any delay or failure to preform under this contract due to Force Majeure. Without limitation ,the vendor reserves the right to defer any specified date of delivery of the boat or to cancel the contract in an event of Force Majeure (without liability to the purchaser ) If the event of Force Mejeure continues for a continuous period in excess of 90 days the contract be deemed mutually terminated beween the parties without any liability on either side to the other party. 14 GENERAL 14.1 All remedies available to either party for breach of the contract are cumulative and may be exercised . Concurrently or separately,and the exercise of any one remedy shall not be deemed an election of such a remedy to the exclusion of any other remedies. 14.2 Any indulgence granted by the vendor to the purchaser and any/or failure by the vendor to insist upon strict performance of theses condition shall not be deemed a waiver of any of the vendors rights or remedies . 14.3 Any waiver by the vendor of any breach of, or anf default under any provision of the contract by the purchaser shall be made in writing and shall not be deemed a waiver of any subsequent breach or default of the same or any other provision of the contract. 14.4 If any provision of the contract by any court or competent authority to be wholly or partly illegal ,void or unenforceable it shall to the extent of such illegality ,void ness or unforeseeablebe deemed serverable and the remaining provision of the contract and the remainder of such provision of the contract. 14.5 The parties to the contract do not intent that any terms of the contract shall be enforceable by virtue of the contract (Rights of a third parties) Act 1999 by any person that is not party to it. 15. GOVERNING LAW AND JURISDICTION The contract shall be governed by and construed in accordance with Irish law and both parties irrevocably submit to non -exclusive jurisdiction of the Irish courts in relation to this contract. | ||