Contract Terms & Conditions between ‘the Buyer’ and Doyle Sails New Zealand ‘the Company’.
March 2023
TERMS OF CONTRACT
1.1 By ordering Goods from the Company, the Buyer agrees to and will become bound by these terms and conditions, notwithstanding anything contrary in its enquiries or order.
1.2 Each related company (as that term is defined in the Companies Act 1993) of the Company which supplies Goods is entitled to the benefit of these Terms in accordance with Subpart 1, Part 2 of the Contract and Commercial Law Act 2017 and, in addition, the Company is entitled to enforce these Terms on behalf of any of its related companies.
1.3 The supply agreement entered by the Company and the Buyer together with these terms and conditions shall be referred to herein as the ‘Terms’.
2. ORDERS
2.1 Orders shall be deemed accepted by the Company when accepted in writing. Acceptance of orders is at the Company’s sole discretion.
2.2 Once an order has been accepted by the Company, it may not be changed or cancelled by the Buyer without the prior written consent of the Company.
3. PAYMENT
3.1 The Price for the Goods is payable in accordance with the Payment Schedule, unless otherwise agreed by the parties in writing. The Price is the total amount payable by the Buyer to the Company for the Goods and any other services or products to be provided by the Company as set out in these Terms.
3.2 The Price is exclusive of:
(a) freight, insurance, customs duty and any other costs; and
(b) all applicable taxes (including any goods and services tax) assessed or levied in connection with the supply of the Goods, and where the payment of such taxes or duties is the responsibility of the Company, the price shall be increased by the amount of such taxes or duties.
3.3 Any expenses, costs or disbursements incurred by the Company in recovering any outstanding monies, including debt collection agency fees or legal fees, shall be recoverable from the Buyer on a full indemnity basis.
4. DEFAULT
4.1 Any payment that is in arrears shall bear interest at the rate of 2% per month, which shall continue to accrue after judgement until the date of payment in full and without prejudice to the Company’s other rights and remedies in respect of non-payment or late payment.
4.2 The Company shall have the right to apply all payments received by it from the Buyer towards any indebtedness of the Buyer as the Company thinks fit. The Company shall not be bound by any qualifications or conditions attached to such payment by the Buyer.
5. RISK AND DELIVERY
5.1 Goods shall be deemed to be delivered when delivered to the destination agreed by the Company and Buyer. Default or refusal on the Buyers part to take delivery shall be equivalent to delivery and acceptance.
5.2 The Company shall arrange delivery of the Goods by a third party carrier at the Buyer’s cost, which shall be preapproved by the Buyer.
5.3 Any delivery dates given by the Company are estimates only and not commitments. The Company shall not be bound by such dates.
5.4 Risk in the Goods (or part thereof) shall pass to the Buyer immediately when the Goods (or part thereof) are delivered in accordance with the Terms. No claim for loss or damages up to the point of delivery will be considered unless notification of such loss or damage is given in writing within seven days to the Company and the carrier. No such claim will be accepted where a Buyer has undertaken insurance of the goods during transit.
6. PROPERTY
6.1 Full property (being both legal title and equitable ownership) in the Goods shall remain with the Company until the Company has received full payment of the Price for the Goods and all other amounts owing by the Buyer to the Company have been paid in full.
7. SECURITY INTEREST
7.1 The Buyer acknowledges that these terms create a security interest in all present and after acquired Goods supplied or to be supplied by the Company and any proceeds of the sale of the Goods as security for all of the Buyer’s obligations to the Company pursuant to the Personal Property Securities Act 1999 (New Zealand) (the ‘PPSA’). The Company may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the Buyer in accordance with the provisions of the PPSA.
7.2 The Buyer appoints the Company as its agent to provide all information, execute or arrange for execution of all documents and do all other things that the Company may require to ensure that the Company has a perfected first ranking security interest in the goods under the PPSA.
7.3 The Buyer waives the rights to receive a verification statement in respect of any financing statement or financing change statement
registered by or on behalf of the Company under the PPSA and agrees that as between the Company and the Buyer, the Buyer will have no rights under (or by reference to) sections 114(1)a, 116, 117 (1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where the Company has rights in addition to those in part 9 of the PPSA those rights shall continue to apply.
7.4 The Buyer shall immediately upon request by the Company, procure any person considered by the Company to be relevant to its security position such agreements and waivers as the Company may at any time require.
7.5 The Buyer shall immediately notify the Company of any change in the Buyers name, address details and any other information provided to the Company to enable the Company to register a financing change statement if required.
7.6 For as long as any amount due and payable by the Buyer to the Company remains unpaid, the Buyer irrevocably authorises the Company and its servants and agents to enter any premises controlled by the Buyer, to search for Goods and to remove them (if necessary, after separating them from any item into which they have been incorporated) without being responsible for any damage caused in doing so.
8. FITTING AND SEATRIALLING
8.1 The Buyer shall be responsible for providing the Company with access (if required) to the location where the Goods are to be installed, to enable the Company to carry out fitting and testing of the Goods in accordance with the Terms. Where appropriate, access to the location shall include access to and parking at the site for delivery of Goods.
9. WARRANTY
9.1 The company will (subject to clause 15) repair or make good any defects in materials and workmanship in Goods in accordance with its Warranty Policy. No claim shall be accepted under such warranty unless written notice of the claim is received by the Company within [one week] after the defect is discovered nor shall any claim be accepted:
(a) if any attempt to repair the Goods is made by any person or persons not authorised by the Company to effect those repairs;
(b) if the Goods have been dismantled or modified without the approval of the Company; or
(c) if the Goods have not been stored, maintained or used in a proper manner and in accordance with the Warranty Policy.
The Company shall not be obliged to carry out any work nor be under any liability under this clause for so long as the Buyer is in default in relation to any payment or in the performance of any obligation under the Terms.
10. CONSUMERS GUARANTEES ACT
10.1 If the Goods are purchased by the Buyer for business purposes, the Buyer agrees that the Consumer Guarantees Act 1993 does not apply to the sale of the Goods.
11. SALE BY DESCRIPTION
11.1 If there is any conflict between the description of Goods in a quotation or as set out in the Package Schedule and any samples shown to the Buyer, the description contained in the invoice or Package Schedule shall apply, and the Company will have fulfilled the contract if the Goods match the description.
12. DELAY
12.1 The Company shall not be liable for any loss or damages suffered by the Buyer due to a failure by the Company to perform its obligations, where such failure is due to circumstances are beyond the Company’s reasonable control including, without being limited to, industrial action, shortage of materials and delays or failures by suppliers.
13. LIABILITY
13.1 The Company shall have no liability to the Buyer for anything, other than a breach by the Company of an express provision of these Terms (including but not limited to negligence on the part of the Company or its employees or agents).
13.2 The Company shall not be liable in contract, tort or otherwise for any consequential, indirect or pure economic loss suffered by the Buyer, even if such loss was, or should have been, within the Company’s contemplation.
13.3 Notwithstanding anything else contained in these Terms, the liability of the Company shall be limited, at the Company’s option, to the repair or replacement of defective Goods.
13.4 Except to the extent of written warranties given by the Company to the Buyer, all warranties and representations, including those expressed or implied by law in respect of the Goods, including without limitation any warranty as to fitness for purpose, are excluded to the maximum extent permitted by law. The Buyer acknowledges that it does not rely on any representation or statement made by or on behalf of the Company or its employees or agents other than the express provisions of these Terms.
13.5 The Buyer shall indemnity the Company against:
(a) any claim against the Company by the Buyer’s employees, agents, contractors, customers, or any other persons in respect of any loss, damage or injury arising from any cause relating to or concerning the Goods; and
(b) any liability or cost incurred by the Company as a result of any breach by the Buyer of any provision of these Terms.
14. FORCE MAJEURE
14.1 The Company shall not be liable either directly or indirectly, for any act, omission or failure to perform the contract if such act, omission or failure arises from any cause reasonably beyond its control including but not limited to war, hostilities, invasion, insurrection, riot, the order of any competent, civil or military government, or by fire, strikes, lock outs, labour disputes, lack of suitable transport and/or port loading and unloading facilities, shortage of raw materials, late arrival of supplies or by any other cause whether or not of a similar nature. If the situation persists for a period of six (6) months, either party may by notice in writing terminate this contract.
15. ENTIRE AGREEMENT
15.1 The Terms constitute the entire agreement between the Buyer and the Company. No representation, warranty, term or condition shall be binding on the Company unless it is included in the Terms.
16. COSTS
16.1 The losing party in any legal dispute between the parties will pay, upon judgement, all legal costs incurred by the prevailing party in enforcing its rights under the Terms on a full indemnity basis.
17. NO WAIVER
17.1 No failure or delay by either party to exercise a right under the Terms shall be regarded as a waiver of that right or of any other right under these Terms.
18. GOVERNING LAW
18.1 The contract between the Buyer and the Company shall be governed by New Zealand law.
18.2 The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
19. ASSOCIATION WITH CUSTOMER
19.1 The Company may promote or advertise its association with the Buyer pursuant to these Terms and the supply of the Goods. The Buyer agrees that such promotion will include an acknowledgement of the Company, by way of the Company’s logo, displayed on the Goods. The Buyer may not remove or amend the display of the Company’s logo on the Goods without the prior written consent of the Company.
APPENDIX B: WARRANTY POLICY
Doyle Sails has a worldwide service and loft network, therefore, should any warranty issues arise, Doyle Sails will arrange with the Buyer for the sails to be moved to the nearest facility to be repaired or replaced in an efficient manner if these terms and conditions are met satisfactorily and in accordance to the warranty terms set by the category of your sails.
Nylon Warranty:
Doyle Sails does not provide a full warranty for Nylon Sails due to the material variation. Any nylon sail failure that occurs which is not due to improper use or neglect will be covered under this warranty for a period of one year from the date of delivery. All nylon failures will be assessed individually by a Doyle Sails representative to determine the cause of the damage and where liability lies.
Care and Use of Sails:
In the unlikely event that something should happen to your sail in the first year of its life, you must notify your Doyle Sails representative as soon as possible. Doyle Sails will determine whether the sail should be recut, modified or replaced, with all costs being covered by Doyle Sails. If repairs are required after the first year, we will make every effort to facilitate these services for the fairest and reasonable price.
To ensure that your warranty remains valid, we ask that you take care of your sail and be mindful of environmental degradation accelerators.
Unfortunately, we cannot cover your sail in circumstances where the following may have occurred:
· The sail has been used outside of the designed wind range, in extreme conditions or at an incorrect angle.
· The damage to the sail has been caused by failure or misuse of another part of the system (i.e. hydraulics or rigging failures).
· Excessive flogging of the sail.
· Improper fitting or removal from vessel, without the support of a Doyle Sails representative.
· Incorrect storage, including storing the sail in damp conditions or without the correct use of UV protection.
· Exposure to chemicals and solvents.
· Alterations or adjustments made by someone other than a Doyle Sails representative or agent.
Service and Maintenance Conditions:
As a condition of our warranty cover, you must ensure that your sail is maintained at our high standard and therefore must be serviced regularly in accordance with your Service Schedule. Servicing should be carried out at annual intervals and prior to any long passages and will be facilitated by your Doyle Sails representative.
Doyle Sails has a network of world class Superyacht facilities globally, and once the most convenient location has been identified for the yacht; your Doyle Sails representative will liaise directly with your closest expert to ensure your requirements are met.
Additional Conditions:
· This warranty cannot be transferred to subsequent owners.
· This warranty does not cover mildew or discolouration, luff tapes, battens, UV Covers or additional hardware supplied by a third party.