Terms & Conditions
Conditions of Sale
SC Airquee SRL
Airquee Ireland Limited
Airquee N.I. Limited
Airquee Limited is registered in the UK at Duel House, Llandowlais Street, Cwmbran, NP44 7XB, UK
Company Registration No: 03129324.
SC Airquee SRL is registered in Romania at Str. Lt. Paius David, nr.9, 520077, Sf. Gheorghe, jud. Covasna, Romania
Company Registration No: J14/293/2007.
Airquee Ireland Limited is registered in Ireland at 93 O’Connell Street, Limerick, Ireland.
Company Registration No: 689242.
Airquee N.I. Limited is registered in UK at 54 Bloomfield Avenue, Belfast, Northern Ireland, BT5 5AD
Company Registration No: NI680206.
Airparx is a brand of Airquee Limited, whose registered address is at Duel House, Llandowlais Street, Cwmbran, NP44 7XB, UK
Company Registration No: 03129324.
CONDITIONS OF SALE AND WARRANTY
Applies to Online, Local and Export Sales
In these Conditions certain words have the meanings stated in the Schedule following the Conditions below:
Applicable terms and conditions
1. No alteration will be made to these conditions as a result of any representation, statement or undertaking either oral or in writing. All terms and conditions put forward by the Buyer at any time will be of no effect whatsoever. All other terms, conditions or warranties whatsoever whether express or implied by statute, common law, custom or otherwise (save those which are by statute incapable of exclusion) are hereby entirely excluded. Nothing in these Conditions shall affect the statutory rights of a consumer.
2. Either by entering a contract with the Company to buy the Goods or by clicking on the icon on Airquee International Website for acceptance of these Conditions before proceeding to the checkout or by acceptance of the Goods the Buyer agrees without qualification and is otherwise deemed to accept and be bound by these Conditions and to have full knowledge thereof. The Buyer is deemed to have read these Conditions a copy of which is available on request and without charge from the Company at the address stated above. These Conditions are also accessible from the Airquee International Website and by clicking on the icon for acceptance of these Conditions the Buyer is deemed to have read these Conditions. Each Contract of Sale will be deemed to be a separate and new contract having no relation to previous dealings or other contracts between the Buyer and the Company (save for rights of set-off reserved by the Company). The Buyer is deemed to buy the Goods in the course of business exclusively for commercial use and not as a consumer for personal use.
All quotations by the Company whether oral or in writing or shown on the Airquee International Website are non-binding until a Contract of Sale comes into existence and may be withdrawn or varied at any time at the discretion of the Company. The description and quantity of the Goods to be sold shall be as set out in the quotation. The quantity of the Goods in stock shown by the relevant counter on the Airquee International Website is for information purposes only and no warranty is given or implied regarding availability of the Goods. If the in stock number shown on the counter is zero the Company reserves the right to extend the delivery time or decline to accept the Order. All stated dimensions and weights of the Goods are approximate and details and colours of the Goods shown from time to time on the Airquee International Website or the Company’s catalogue or brochure are subject to variation or amendment without notice. (See also clause 23 below.)
Contract of Sale
4. A Contract of Sale will not come into existence between the Buyer and the Company until the Order is accepted by:
4.1 the Company’s written acknowledgement or confirmation or acceptance of Order including acknowledgement or confirmation or acceptance of Order by email of any Order placed by the Buyer via the Airquee International Website; or
4.2 the Company and the Buyer respectively signing the Company’s Standard Contract of Sale for Inflatable / Soft Play Goods incorporating these Standard Conditions of Sale and Warranty; or
4.3 delivery of the Goods and the Company’s invoice.
5. Buyer’s inspection
5.1 The Buyer is deemed not to rely on any description, representation, statement, recommendation or advice communicated orally or in writing by the Company, its employee(s), dealers or agent(s) concerning the quality, durability, finish, colour, texture, smell, appearance, cleanliness, condition, history, age, previous use, capacity, performance, specification, dimensions, weight, safety, suitability or fitness for any purpose or use under specific conditions, (including any particular purpose or conditions made known by the Buyer) or any other characteristic or inherent property or other matter concerning the Goods unless specifically stated in the Contract of Sale and expressly agreed in writing by the Company.
5.2 The Buyer or his authorised agent may by appointment inspect the Goods at the Company’s premises during manufacture and/or testing. In any event, the Buyer is deemed to have carried out a sufficient inspection and test of the Goods so as to have full knowledge of and to be satisfied as to all such matters stated in clause 5.1 above concerning the Goods.
5.3 Where Pre-Shipment Inspection of the Goods (“P.S.I.”) is required by the Buyer and accepted by the Company, all costs and expenses associated with the P.S.I. are at the cost of the Buyer. The Company reserves the right to decline or accept an Order subject to P.S.I. or cancel the Contract of Sale if the requirements of the P.S.I. agency concerned are unacceptable to the Company being in the opinion of the Company unreasonable or onerous or likely to delay shipment.
6 Suitability / fitness for purpose
The Buyer is responsible for ascertaining and ensuring that the Goods are fit for the Buyer’s purpose(s) or otherwise suitable or sufficient. If the Buyer makes known any particular purpose the Buyer is deemed not to rely upon the skill or judgement of the Company unless the Company expressly waives this Condition in writing.
7.1 The Company reserves the right to alter or withdraw without notice to the Buyer any catalogue, leaflet, brochure, price list, drawing, illustration, photograph, video, model, sample, particulars, specification, description or representation or web page applicable to the Goods.
7.2 Any manuals, drawings, operating instructions, maintenance records, certificates or other documentation supplied by the Company to the Buyer are deemed to be for information only and the Company will not be liable for any omission or error therein. Such documentation is deemed to be part of the Goods for the purpose of passing of risk and property but the passing of any intellectual property therein or granting of any express or implied licence to reproduce the same in any way is hereby entirely excluded.
8 Health and Safety
8.1 The Buyer is wholly responsible at all times for the use of the Goods by himself, his employees or agents or any third party (including any hirer of the Goods) without risk to health or safety or damage to other property and for:
8.1.1 compliance with all legislation or regulations applicable to the use of the Goods; and
8.1.2 compliance with any applicable code of practice or guidance; and
8.1.3 the proper and safe transportation, storage, maintenance, handling, siting, assembly, disassembly, inspection, operation and use of the Goods; and
8.1.4 making his own risk assessment and obtaining and providing any necessary information (including safety warnings) and appropriate training for the health and safety of all attendants, operators, hirers and users of the Goods and bystanders.
8.2 The Buyer agrees to keep the Company fully indemnified against all claims, actions, damages (including punitive or exemplary damages), loss and expenses whatsoever and howsoever arising out of any fault or negligence by the Buyer or its employees, agents or hirers and users of the Goods including any failure to comply fully with clause 8.1 unless but only to the extent that the same is directly caused by negligence on the part of the Company its employees or agents.
9. Payment terms
9.1 The prices are as stated in the Company’s quotation or applicable price list or Airquee International Website but the Company reserves the right to alter its prices without prior notice. Freight and delivery charges and insurance premiums if applicable (unless expressly included in the price) quoted and listed prices for export are EXW (Ex works Cwmbran or Ex works SF Gheorghe, Romania as the case may be at the sole discretion of the Company). [-see clause 15 below regarding additional terms applicable to exports.]
9.2 Value Added Tax (VAT) or (TVA) at the rate in force for the time being will be added to the invoice for all Goods for delivery in countries in the European Union unless in the case of exports the Buyer clearly states his VAT (or TVA or equivalent) registration number on the Order.
9.3 Method of payment
9.3.1. Payment should be made by bank transfer. Details of the correct bank (dependent on which Airquee company is invoicing), and correct bank account details (depending on currency of invoice), will appear at the bottom of the invoice. It is the customers responsibility to ensure that the correct company and currency is paid. If payment is made to the wrong company or in the wrong currency, then any shortfall in funds must be made up by the customer.
9.3.2. The amount received must equal the total invoice value or agreed payment terms. It is the customers responsibility to mark the transaction as ‘bank charges paid by customer’ to ensure the full and correct amount enters the Airquee account. Any shortfall must be made up by the customer.
9.3.3. Payment can also be made by cash up to the value of €10,000 euros or the sterling or US Dollar equivalent per order. Airquee reserves the right to refuse cash. This value is subject to change according to government legislation. Payment can also be made by bank debit card to any value. Payment can be made by credit card up to the value of £2500 or €2500.
10. Unless alternative payment terms have been agreed by the Company in writing at the time that the Contract of Sale is made, the Company reserves the right to require payment in full in cash or by bank debit card or bankers draft or cleared funds (if payment is by cheque) before parting with possession of the Goods. In other cases the credit terms are as stated on the invoice. If payments received from the Buyer are not stated to refer to a particular invoice the Company may appropriate such payments to any outstanding invoice.
11. No delay in using the Goods and no alleged defect will entitle the Buyer to withhold or delay payment in full.
12. The Company is entitled to maintain an action for the price of the Goods notwithstanding that title in them has not passed to the Buyer.
13. In the event of any price shown on the Airquee International Website being misquoted or otherwise mistaken the Company reserves the right not to accept the Buyer’s Offer and/or rescind the Contract of Sale by notice to the Buyer at all times up to the despatch of the Goods.
13.1 Unless otherwise agreed in writing by the Company a deposit of 50% of the full Order value is payable with Order. For special products made to order the deposit will be 60% of the full Order value. The balance is due and payable on delivery without discount or deduction, or, where alternative payment terms have been agreed by the Company in writing, the balance is due and payable not later than 30 days from the date of despatch of the Goods, or if applicable, the first instalment of the Goods, Ex-Works.
13.2 Where the Contract of Sale is made via the Airquee International Website the Company requires payment in full at the time of Order and Condition 10 above will apply.
14. The Buyer will pay interest to the Company on all sums due under these Conditions from the due date until payment at the rate of 8% above the official dealing rate from time to time of the Bank of England compounded monthly and calculated on a daily basis.
Additional terms applicable to Export sales
15. In the case of exports each Contract of Sale incorporates ICC INCOTERMS 2010 and is subject to the following:
15.1 Any necessary export permissions to be obtained by the Company.
15.2 Any necessary import permissions to be obtained by the Buyer.
15.3 Prices quoted and listed are deemed to be EXW (Cwmbran) or EXW (SF Gheorghe) as the case may be and exclude carriage or freight charges, insurance premiums, import duties, taxes, landing charges, warehousing etc. unless otherwise stated.
15.4 Unless clause 10 above applies, an irrevocable letter of credit for the full invoice value confirmed by a Clearing Bank payable at sight requiring presentation of shipping documents, is required before despatch or delivery can take place.
15.5 Deferred payment terms under letters of credit or drafts or bills of exchange are not acceptable.
15.6 The currency of payment shall be the UK Pound (Sterling), Euros, USD or Romanian RON and must be set at the time or placing the order.
15.7 Unless otherwise agreed in writing, risk in the Goods passes to the Buyer when the Goods are placed at the disposal of the Buyer at the Company’s premises or other agreed place of despatch and thereafter Buyer will effect all reasonable insurances for the value of the Goods.
Cancellation / suspension / deferment
16. Cancellation (or suspension or deferment as the case may be) by the Buyer will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company by reason of such cancellation / suspension / deferment are paid by the Buyer to the Company immediately upon receipt of written details. Any deposit paid by the Buyer will be forfeited by the Company unless the Company decides otherwise at its discretion. Subject to the foregoing, Orders for standard items may be cancelled by written notice at any time before the Goods are allocated to the Buyer but in the case of Orders for special goods or components if manufacture has begun at the date of receipt of notification of intention to cancel the Buyer will still be bound to accept the Goods and pay for them in full. Acceptance of such cancellation/ suspension/ deferment will only be binding on the Company if in writing and signed by a Director of the Company.
Retention of title to the Goods
17. Until full payment (which means that the Company has received payment in full of the amounts due for the Goods as stated in the Company’s invoice) the following will apply:-
17.1 The Company will remain the sole and absolute owner of the Goods. This applies notwithstanding that risk in the goods will already have passed to the Buyer in accordance with clauses 15.7 or 18.
17.2 The Buyer is trustee of the Goods for the Company and will hold the Goods and any proceeds of sale or hire of the Goods in trust for the Company and will not mingle the proceeds of sale or hire with other monies and will not pay the proceeds into an overdrawn bank account or loan account or pay the proceeds to any third party. The Buyer will account to the Company for such proceeds of sale or hire upon first written demand.
17.3 If the Buyer sells or hires the Goods he does so as agent for the Company and will provide the Company with full details of the relevant transaction on request. The Buyer will not sell the Goods for a price less than the amount required to make full payment to the Company.
17.4 The Buyer will be a bailee of the Goods and will keep the Goods insured for their full replacement value against all risks and will indemnify the Company against any loss or damage to the Goods. The Goods may not be charged or pledged or allowed to become subject to any lien.
17.5 If the Buyer is a company it must give 14 days’ notice to the Company before applying to the Court for the appointment of an administrator or protection from its creditors. Failure to give such notice is deemed a fundamental breach of the Contract of Sale.
17.6 The Buyer’s right of possession of the Goods will cease on the earliest of these events:-
17.6.1 The expiration of any agreed period of credit; or
17.6.2 Any of the circumstances stated in clause 26 below; or
17.6.3 If the Buyer does or fails to do anything which may in any way put at risk the title of the Company to the Goods.
17.7 At any time following loss by the Buyer of his right to possession of the Goods (without prejudice to its other rights or remedies) the Company acting by its servants or agents may enter upon any premises where the Goods may be held or where the Company reasonably believes the Goods to be held with or without workmen and vehicles and at the expense of the Buyer in order to repossess the Goods and the Company may dismantle the Goods without liability on the part of the Company for any loss or damage thereby occasioned, in respect of which the Buyer hereby fully indemnifies the Company.
17.8 If the Buyer sells or hires the Goods on his own account:
17.8.1 He will open a fiduciary account with his bankers into which all such proceeds will be paid promptly without deduction and he will notify them that he holds the entire proceeds of sale or hire as trustee for the Company; and
17.8.2 He will neither withdraw from the fiduciary account as cash nor transfer to any other account any profit or other amounts from the proceeds of sale or hire.
17.9 If a receiver is appointed and at the time of appointment the Buyer has not received the proceeds of sale or hire the Buyer, or the receiver as agent for the Buyer, will assign to the Company at the earliest date possible all rights remedies and cause(s) of action relating to the Goods against the person(s) to whom the Goods have been sold or hired.
Delivery and risk
18.1 Goods are delivered to the Buyer and risk passes to the Buyer when:
18.1.1 under Ex-Works terms the Goods are placed at the disposal of the Buyer or any agent or anyone claiming through the Buyer or any carrier (who will be the Buyer’s agent whoever pays his charges) at the Company’s premises or other agreed place of despatch or other delivery point agreed by the Company.
18.1.2 under CIF, CFR or other ICC INCOTERMS, delivery and passing of risk shall be in accordance with ICC INCOTERMS2010.
18.2 Risk in the Goods passes to the Buyer on delivery and thereafter the Buyer will effect all proper insurances.
18.3 If the Goods are delivered by instalments the Company has the right to deliver the instalments in any sequence. Each instalment will be deemed to be the subject of a separate contract and any default by the Company in respect of one or more instalments will not vitiate the Contract of Sale in respect of the Goods previously delivered or undelivered Goods.
18.4 Delivery dates are those confirmed by the Company on acceptance of the Order. Any dates quoted by the Company for delivery of the Goods are an indication of endeavour to comply but in any event delivery dates are approximate only and do not form part of the Contract of Sale. Time of delivery is not of the essence.
18.5 If the Buyer with due notice of availability fails to take delivery of or arrange collection of the Goods when made available by the Company or to provide any access, COD payment, instructions, documents, licences, permissions or authorisations to enable the Goods to be delivered the Company will be entitled to store or arrange storage of the Goods and without prejudice to the rights reserved by clause 26 below:
18.5.1 Risk in the Goods will pass to the Buyer; and
18.5.2 Delivery will be deemed to have taken place; and
18.5.3 The Buyer will pay to the Company all costs and expenses including carriage storage and insurance charges arising from the failure; and
18.5.4 The Company will not be liable for loss or damage howsoever arising to Goods so stored.
18.6 The Company will not be liable for any penalty loss injury damage or expense arising from any delay or failure in delivery or performance from any cause at all nor will any such delay or failure entitle the Buyer to refuse to accept any delivery or performance of or repudiate the Contract of Sale.
Defects/Damage/Loss or Non-Delivery
19. No claim for non-delivery of the Goods or for damage to or total or partial loss of Goods or that the Goods are not of the correct quantity or do not comply with their description will be valid unless notified in writing to both the carrier and the Company within three days of delivery or within any period stipulated by the carrier whichever period expires sooner. Before giving the carrier a receipt for the Goods the Buyer will examine them but if no full examination takes place the Buyer will mark on the receipt/delivery note “unexamined”.
20. The Buyer shall be deemed to have accepted the Goods if they have not been rejected on or before the 7th day after delivery. The Buyer shall not be entitled to reject the Goods in whole or in part after such date. If it is alleged that any defect was not reasonably apparent on inspection the Buyer must notify the Company in writing within 14 days from when the defect was reasonably apparent or came to the attention of the Buyer.
21. Any claim must be in writing and must contain full details of the claim including a full description of the alleged defect(s). The Buyer must afford the Company reasonable opportunity and facilities for inspection and to investigate any claims made by the Buyer and if requested by the Company the Buyer must promptly return for examination any goods which are the subject of any claim and any packing, securely packed and carriage paid, to the Company or its agent at such address as the Company may stipulate.
22. The Company will not be liable for any defect unless a claim is made which conforms with clauses 19 to 21 above. Clause 25 below provides a 12 month warranty against manufacturing defects (12 months for inflatables intended for water use) and is to be read in conjunction with these Conditions as a whole.
The scope of the Contract of Sale
23. Under no circumstances will the Company be liable for:
23.1 Defects or damage resulting from deterioration through use or fair wear and tear (as defined in the Schedule to these Conditions), or improper use, or failure to comply with any manuals, drawings, operating instructions, maintenance records, certificates or other documentation supplied by the Company to the Buyer or any other instructions or advice of the Company or the manufacturer of any equipment forming part of the Goods, or failure to comply with or observe or perform any applicable duty or requirement relating to the use of the Goods imposed by statute, regulation or code of practice, or neglect of any other description.
23.2 Goods which have been adjusted adapted altered or repaired by anyone except the Company or its authorised agent.
23.3 The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company.
23.4 Substitution by the Company at the Buyer’s request of any feature material(s) or component(s) which were not part of the Company’s specification or quotation for the Goods notwithstanding that such substitution is agreed by the Company.
23.5 Descriptions illustrations photographs specifications drawings and details of performance weight and dimensions stated by the Company contained in the Company’s quotations price lists brochures Airquee International Website or elsewhere in any document which does not form part of the Contract of Sale.
23.6 Variations in the colour quantity or dimensions of the Goods or changes in specifications or substitution of any material or components if the variation or substitution does not materially affect the characteristics of the Goods and the substituted materials or components of the Goods are of a quality or play value equal to or better than those advised or specified originally.
23.7 Any statements representations recommendations or advice furnished to the Buyer or his agent by the Company its employees dealers or agents before the Contract of Sale is made. The Buyer is deemed not to rely or have relied upon the same at any time whether made orally or in writing. [see also clause 5.1]
24. The Company will not be liable to the Buyer or anyone claiming through the Buyer (other than liability for death or personal injury resulting from the Company’s negligence or negligence of a person for whose acts or omissions the company is vicariously liable) for any loss or damage of any nature including loss of profit consequential or economic loss or exemplary or punitive damages arising from:
24.1 any breach of any express or implied warranty or condition of the Contract of Sale; or
24.2 any negligence, breach of statutory or other duty on the part of the Company; or
24.3 in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract of Sale; or
24.4 or attributable (whether directly or indirectly) to the use or misuse of the Goods.
25 12 Month Warranty against Manufacturing Defects
25.1 In lieu of all and any warranties, conditions or liabilities implied by the law, the Company’s liability in respect of any defect in Goods by reason of defective design or workmanship or the use of defective materials, or any loss, injury or damage whatsoever directly or indirectly attributable thereto will be limited to, at the Company’s option:
25.1.1 Repair at the Company’s premises of defective Goods; or
25.1.2 The supply of new Goods in exchange for defective Goods; or
25.1.3 Payment of the value of the defective Goods.
25.1.4 Payment of the cost of carriage in connection with .1 to .3 above.
Save as aforesaid and without prejudice thereto the Company will not be liable for consequential or economic loss or other damages howsoever arising.
25.2 The Company will not be liable:
25.2.1 Unless Goods claimed to be defective are returned to the address nominated at the time of claim by the Company within 12 months of the date of delivery as defined by these Conditions in the case of Goods sold as new Goods, or 6 months in the case of Goods sold as used, ex-hire or ex-demonstration.
25.2.2 Unless the Buyer has notified the Company in writing of each claimed fault not later than 14 days after such fault has first become apparent.
25.2.3 To accept the return of Goods until the Company has examined them.
25.2.4 If any other person other than a person approved by the Company is permitted to effect any replacement of parts, maintenance, adjustment or repair to the Goods.
25.2.5 Unless the Goods supplied are used and properly maintained in accordance with any manuals, drawings, operating instructions, maintenance records, certificates or other documentation supplied by the Company to the Buyer or any other instructions or advice of the Company or the manufacturer of any equipment forming part of the Goods,
25.2.6 If the Buyer causes or permits the Goods to suffer neglect of any other description.
25.3. After the Company has examined the Goods or photographs provided by the Buyer to show the nature and location in the Goods of the claimed fault.:
25.3.1 If the Company is satisfied that the clause 25.1 Warranty applies Buyer will be notified of the action which the Company proposes to take at no cost to Buyer including paying for carriage if applicable.
25.3.2 If the clause 25.1 Warranty does not apply, in whole or in part, Buyer will be provided with a quotation for the cost of any repair(s) to the Goods for which the Company is not liable. In such case Buyer will be responsible in any event for associated inspection, storage and carriage costs (both ways). The Company reserves the right not to carry out such non-warranty repairs before payment is received and further reserves a right of lien over the repaired Goods until full payment is received.
25.4 The fans, blowers and transformers supplied by the Company are guaranteed by the original manufacturers and every care is taken to supply such from reputable sources only. Should any such merchant item prove defective under the terms of the supplier’s guarantee (normally 2 years for fans) then the Company will use reasonable endeavours to obtain the benefit of the supplier’s guarantee for the Buyer.
25.5 In respect that the Goods include design and artistic work not capable of precise definition the Company’s obligation to supply Goods to Buyer’s Order is limited to supplying Goods reasonably in compliance with any specification forming part thereof.
25.6 It is understood by Buyer that the Goods have a limited life, the length of which is determined according to the amount of use. Consequently Goods used extensively will not last as long as Goods used occasionally. The Buyer accepts that he has no claim by reason of the Goods deteriorating through use.
25.7 All Goods returned to the Company for work under guarantee (or work undertaken at the Buyer’s request and at his cost) will be returned in a clean and dry condition properly rolled, folded and packed. Should the Company judge that Goods are not in a fit condition as to cleanliness the Buyer will bear all costs of putting such Goods in a fit condition for inspection and/or work to be carried out.
25.8 The Buyer will not at any time in relation to the resale or hire or loan of the Goods make any representation or agree to any condition or warranty in terms more favourable to the sub-buyer or hirer or user than those made or agreed by the Company in these Conditions.
25.9 Warranty on accessories and spare parts. All accessories, spare parts, climb sheets, slide sheets and similar have a 3 month warranty with the exception of fans that have a 12 month warranty. The decision process on resolving any warranty claim is the same as above.
25.10 Warranty on repair work is 3 months from date of repair. The decision process on resolving any warranty claim is the same as above.
26.1 If the Buyer is in default or in breach of any of his obligations to the Company or if any distress or execution is levied upon the Buyer or his assets or property or if the Buyer makes or offers to make any arrangement or composition with his creditors or (in the case of an individual or partnership) commit an act of bankruptcy or be adjudged bankrupt or (being a corporate body) it does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle any person to present a petition for winding up or apply for an administration order; or any petition is presented or receiving or administration order made (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver or administrative receiver of all or part of the Buyer’s undertaking assets or property is appointed (or if any similar event occurs under the bankruptcy laws of the country in which the Buyer resides) the Company has the right to terminate forthwith any subsisting contract between the Company and the Buyer (and any subsidiary or affiliate of the Buyer) and upon posting or sending by facsimile of written notice of such termination to the Buyer’s last known address any subsisting contract will be deemed to be discharged lawfully by agreed termination without prejudice to any claim(s) or rights the Company may have against the Buyer (and any subsidiary or affiliate of the Buyer).
26.2 Without prejudice to the other rights and remedies of the Company, if all or part of the Price or other amount(s) due from the Buyer remains unpaid for 28 days or more after the due date the Company will be entitle to terminate the Contract of Sale forthwith and at its sole discretion to resell the Goods.
27 Intellectual property
All drawings, designs, sketches, visuals, computer software, catalogues, leaflets, brochures, price lists, illustrations, photographs, videos, models, samples, particulars, specifications, manuals, instructions, descriptions or representations applicable to the Goods prepared by or for the Company and the intellectual property and associated rights including moral rights relating thereto remain the property of the Company even though the Buyer may have been charged a fee for design services and must not be copied or reproduced in any form whatsoever without the written consent of the Company with or without payment of a fee at the sole discretion of the Company. Where the Buyer specifies his own artwork (with or without registered trade marks or other intellectual property) to be applied to the Goods by the Company, the Company shall have a limited non-assignable royalty-free license to reproduce the same on the Goods. When Goods are made or adapted by the Company in accordance with the Buyer’s specification or requirements the Buyer undertakes fully to indemnify the Company against all costs, expenses, claims, loss and damages incurred by the Company in respect of infringement by such Goods of any intellectual property rights belonging to or claimed by any third party or third parties.
28 Circumstances outside the control of the Company
If the performance of the Contract of Sale or any agreement or obligation between the Buyer and the Company is prevented restricted or interfered with by reason of force majeure or other circumstances beyond the reasonable control of the Company then upon giving notice to the Buyer the Company will be excused from performance to the extent of the prevention restriction or interference.
The Company reserves the right to set-off against any sum claimed by or due to the Buyer or its subsidiary or affiliate or member of the same group of companies or undertakings as the Buyer any sum (including any unliquidated sum) claimed or due to the Company or its subsidiary or affiliate from the Buyer or its subsidiary or affiliate or member of the same group of companies or undertakings as the Buyer whether or not the sums or claims in respect of which such set-off is claimed arise from the same or connected transactions.
Any notice required under these conditions will be properly served if in writing and sent by facsimile or prepaid letter post or delivered by hand to the Company’s address shown above or the last known address of the Buyer. Notice will be deemed to be effective at the time of sending if sent by facsimile, or at the time of delivery if delivered by hand, and in the case of first class prepaid letter post sent to a UK address, it will be deemed to be delivered on the second working day after posting. In the case of overseas pre-paid airmail post it will be deemed to be delivered on the fifth working day after posting. In the case of facsimile it will not be effective unless and until a confirmation hard copy is also received by the party to whom it is addressed. For the avoidance of doubt notice shall not be validly served by e-mail.
31.1 Subject to the general law, clauses in these Conditions which are unenforceable or illegal shall be severable.
31.2 The Contract of Sale incorporating these Conditions constitutes the whole agreement between the parties. Any subsequent amendments will only be binding if in writing and duly executed by an authorised representative of the parties.
31.3 Termination of the Contract of Sale shall not alter in any way the rights and liabilities of parties to the Contract of Sale which may have already arisen at the time of termination.
31.4 The waiver by any party of any right and failure by any party to exercise any right or insist on the strict performance of any provision of these Conditions shall not operate as a waiver of, or preclude any further exercise or enforcement of (as the case may be) or other exercise or enforcement by such party of that or any other right or provision. Unless specifically provided in these Conditions, no waiver of any provision of these Conditions shall in any event be effective unless the same shall be in writing, and then such waiver shall be effective only in the specific instance, for the purpose for which the same is given and such waiver shall not operate as a waiver of any future application of such provision.
32 Applicable law and jurisdiction and arbitration
32.1 These Conditions are governed by Law of the country who issues the sales invoice unless otherwise expressly agreed in writing by the Company any Contract of Sale incorporating these Conditions takes effect as a contract made in Cwmbran, England. For the purpose of section 1(2) of the Contracts (Rights of Third Parties) Act 1999 the parties state that they do not intend any term of this Agreement to be enforced by any third parties.
32.2 In case of conflict or discrepancy between any translation of these Conditions in another language and this English version of the Conditions, the English version shall be deemed to be the original or governing version and shall always prevail.
33. Any dispute or difference between the parties or claims arising out of or in connection with the Contract of Sale or the Goods that are the subject of the Contract of Sale shall be determined by a sole arbitrator to be appointed by agreement between the parties or failing such agreement within 14 days of receipt by one party of a written notice to concur in the appointment of an arbitrator, by the president or a vice-president for the time being of the Chartered Institute of Arbitrators. Unless otherwise agreed by the parties the place of arbitration shall be Cwmbran or such other place as shall be nominated by the Company and the language of the arbitration shall be English. The award of such arbitrator shall be final and binding on the parties. The arbitration shall be conducted in accordance with the arbitration rules for the time being of the Chartered Institute of Arbitrators. It is further expressly agreed that the rights to appeal to the High Court or to apply to such Court for the determination of a preliminary point of law is excluded. In the event of the arbitrator becoming unable or unwilling to act as such, a new replacement shall be appointed in the manner described above.
34 THE SCHEDULE : DEFINITIONS
“the Buyer” includes any person, company, association, corporation or other legal entity
“the Company” means Airquee Limited
“Airquee Limited” means the Airquee International Website and any successor or replacement internet website where the Goods and related services are offered for sale hire or lease from time to time
“the Contract of Sale” means the letter(s), quotation(s), order(s), confirmation(s) of Order, invoice(s) and/or other documentation which is/are subject to these Conditions.
“force majeure” any circumstance beyond the reasonable control of the Company including, but not limited to any one or more of Acts of God; war, hostilities, civil unrest, act of terrorism; nuclear or biological or chemical contamination; riot, occurrence of industrial action or disturbance, strike, lock-out; acts of civil or military authorities including refusal or revocation of any licence or consent; fire, explosion, serious accident; storm, lightning, flood or other extreme adverse weather conditions; earthquake; failure or delay of payment systems, of any method of electronically transmitting funds, computer or telecommunications equipment or software or breakdown of plant, machinery or vehicles; or shortage of supply or failure to deliver by any suppliers or sub-contractors of the Company
“the Goods” means the products and/or services specified in the Contract of Sale and includes any ancillary equipment parts or components therefor.
“intellectual property” includes copyright, design right, patents, registered designs, trade marks, inventions, ideas, games, processes, tools, patterns, technical information, artistic concepts, and moral rights and goodwill attaching thereto whether capable of legal ownership and protection or otherwise.
“the Order” means the order whether oral or in writing or electronic placed by the Buyer or his officer employee or agent with the Company for the Goods
“the official dealing rate” means the rate announced from time to time by the Monetary Policy Committee of the Bank of England (“the Bank”) and for the time being in force as the official dealing rate, being the rate at which the Bank is willing to enter into transactions for providing short term liquidity in the money markets
“fair wear and tear” includes deterioration, physical defects, or damage to any structure, fittings fabrics and finishes, artwork, padding, netting, play items or other equipment forming part of the Goods provided that it is due to normal usage in accordance with the Company’s instructions or recommendations and any applicable Codes of Practice.
“fair wear and tear” excludes any deterioration, physical defects, or damage caused by:
34.1 vandalism, misuse, dragging, abuse, neglect; incorrect operation, failure to follow instructions and manuals or applicable Codes of Practice;
34.2 accident; fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion; ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
34.3 transportation, incorrect erection, assembly or dismantling (by persons other than The Company or its approved agent); failure to routinely inspect maintain clean and adjust where required; fault of the operator, user or any third party; causes external to the Goods supplied;
34.4 fault in or failure of electric power or air conditioning or humidity or other environmental control equipment;
34.5 exposure to chemicals, additives, abrasives and other contaminants which may have a deleterious effect on the Goods and/or any finish applied to the Goods;
34.6 damp or mildew
34.7 use other than intended use; unauthorised alteration or modification of the Goods; connection to the Goods or addition of other equipment without the prior written approval of The Company.