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Airquee Limited - Airparx

Terms and Conditions Specific to all Airparx sales

The customer's attention is drawn in particular to the provisions of clause 15.

  1. Interpretation
    1. Definitions:

      Business Day: a day (other than a Saturday, Sunday or public holiday) when banks inLondon are open for business.

      Conditions: the terms and conditions set out in this document as amended from time totime in accordance with clause 18.4.

      Contract: the contract between the Supplier and the Customer for the sale andpurchase of the Goods in accordance with these Conditions.

      Customer: the person or firm who purchases the Goods from the Supplier.

      Force Majeure Event: an event or circumstance beyond a party's reasonable control.

      Order: the Customer's order for the Goods, as set out in the Order Acceptance.

      Goods: the goods (or any part thereof) set out in the Order.

      Specification: any specification for the Goods, including any related plans anddrawings, that is agreed in writing by the Customer and the Supplier.

      Supplier: Airquee Limited (registered in England and Wales with company number03129324).

    2. Interpretation:

      (a)a reference to a statute or statutory provision is a reference to such statute orprovision as amended or re-enacted. A reference to a statute or statutoryprovision includes any subordinate legislation made under that statute orstatutory provision, as amended or re-enacted.

      (b)any phrase introduced by the terms including, include, in particular or anysimilar expression shall be construed as illustrative and shall not limit the senseof the words preceding those terms.

      (c)a reference to writing or written includes emails.

  2. Basis of contract
    1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
    3. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
    4. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
    5. Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the items referred to in them. They shall not form part of the Contract nor have any contractual force.
    6. A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
  3. The Goods
    1. The Goods are as described in the Specification.
    2. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
    3. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
  4. Delivery
    1. Unless otherwise stated in the acceptance of order the Supplier will deliver all Goods intended for use in the United Kingdom carriage paid to site and the Customer shall be responsible for providing firm and proper access.
    2. Goods to be delivered abroad will be delivered as agreed in the Specification or Quotation as the case may be.
    3. The delivery period stated in the order shall commence from the receipt by the Supplier of the written order to proceed, the receipt of any moneys by way of down payment payable at contract and all the necessary information required to put the work in hand. The Supplier will use its best endeavours to despatch within the time or times stated in the order bust does not accept any liability for loss or damage occasioned by delay in delivery however caused.
    4. The delivery period stated in the order shall commence from the receipt by the Supplier of the written order to proceed, the receipt of any moneys by way of down payment payable at contract and all the necessary information required to put the work in hand. The Supplier will use its best endeavours to despatch within the time or times stated in the order bust does not accept any liability for loss or damage occasioned by delay in delivery however caused.
    5. If the Supplier does not receive forwarding instructions within seven days after notifications that the goods are ready for despatch, the Customer shall take delivery or arrange for storage.
    6. In the event of failure of the Customer to take delivery, or arrange for storage, the Supplier reserves the right to make such arrangements for storage as are convenient to the Supplier and that the cost of such storage (including insurance against fire only) shall be debited to the Customer. Any charges for storage or demurrage after despatch must be paid by the Customer.
  5. Quality
    1. The Supplier warrants the Goods it will be free from defects in workmanship and material. Equipment manufactured by others than the Supplier is sold exclusively under such warranty as the manufacturer may give to the Supplier and to the extent enforceable by the Supplier.
    2. The Supplier does not warrant the amount or quality of production.
    3. The Supplier warrants the Goods will be designed and manufactured to perform the mechanical functions expressly stated in the specifications provided the equipment is maintained and operated under proper conditions by competent trained personnel using such raw materials as may be specified.
    4. (a) If any structural part (steel and clamp parts) be found within ten years from the date of delivery to have been defective when delivered and provided immediate notification in writing is given to the Supplier, the Supplier will replace or repair such part. The liability of the Supplier under this warranty is limited to repair or replacement of the defective part, all damage claims of whatever nature being excluded.

      (b) If any other part including nylon netting, PVC coated components (including flooring) and air filled parts are found within one year from the date of delivery to have been defective when delivered and provided immediate notification in writing is given to the Supplier, the Supplier will replace or repair such part. The liability of the Supplier under this warranty is limited to repair or replacement of the defective part, all damage claims of whatever nature being excluded.

    5. The warranty stated above is valid only if the structure and play equipment have been installed by the Supplier and have been subjected to normal use for the purpose for which the goods were designed; have not been subject to vandalism, misuse, neglect, or accident; have not been subjected to addition or substitution of parts; and have not been modified, altered, or repaired by persons other than the Supplier or suitably qualified third parties.
    6. This warranty coverage starts from date of completed installation sign-off by Buyer and Supplier’s receipt of final payment by Buyer.
    7. During this warranty period, the Supplier shall service any play elements which are defective without charge to the Customer. Parts required which are not defective shall be replaced at additional cost. The Supplier shall not be required to make any repairs or replace any parts if damage to the Goods is caused by vandalism, abuse, or by extraordinary wear and tear. The Customer agrees to promptly notify the Supplier of any defects immediately upon detection. Defective items will be either repaired or replaced by the Supplier at the Supplier's option. The Customer will prepay freight on returned defective items and charge to the Supplier and the Supplier will prepay freight charges upon the return to Customer. The Supplier shall retain the right to close the operations of the Goods during any time that repairs are being made.
    8. For Goods sold for shipment overseas the repaired or new parts will be delivered to the same point of delivery as for the original equipment.
    9. The Supplier shall not be liable for the failure of the Goods to comply with the warranty set out in clause 5.1 in any of the following events:

      (a) the Customer makes any further use of the Goods after giving notice to the Supplier that the Goods do not comply with the warranty set out in clause 5.1;

      (b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

      (c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

      (d) the Customer alters or repairs the Goods without the written consent of the Supplier;

      (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

      (f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

    10. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1.
    11. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
    12. These Conditions shall apply to any repaired or replacement Goods or repaired or replacement parts of the Goods supplied by the Supplier.
  6. Variation of Specification
    1. Changes made in any specifications shall be valid only if in writing and signed by the Supplier, and the Customer. Such changes must provide for any modification in the price or in the time of delivery.
    2. Minor variations by the Supplier in the details of design or construction of any equipment ordered shall not give rise to any claim of defect or default, and the Supplier reserves the right to make such changes in details of design or construction as shall in its judgment constitute an improvement over those set forth and described in the Specification.
  7. Shortages and damaged equipment

    All claims for shortages or for damaged equipment must be made in writing within 60 days after delivery or due date for delivery at destination. If responsibility for the shortage or damage is accepted by the Supplier its only obligation will be to make good the shortage or replace the damaged equipment and despatch same to Customer by identical means used for shipment of the original order.

  8. Shipment to other countries

    If the Goods are shipped to a destination in a country other than that previously indicated by the Customer then the Customer will pay to the Supplier any commission or compensation payable by the Supplier to its agents or representatives for sales of equipment to the country in question.

  9. Inspection

    The Customer may arrange for inspection before delivery of the Goods manufactured at the Supplier’s works.

  10. Drawings and information
    1. Specifications, drawings, descriptive and advertising matter, all weights and dimensions, together with figures for performance included in this order, are approximate only based on the Supplier’s experience and are not legally binding on the Supplier.
    2. Foundations drawings for major capital machinery and equipment where necessary are included in the price. Such drawings will show the location and space requirement for the equipment and auxiliaries furnished under this contract, the location of floor openings and bolt holes and foundations loadings. The Supplier accepts responsibility only for correctness of data referring to the equipment supplied hereunder and not for the dimensions, arrangement, or foundation of any buildings.
    3. All drawings submitted by the Supplier are to remain the property of the Supplier and are submitted under the express conditions that they are not to be copied or divulged to any third party or used in any way against the interests of the Supplier.
  11. Patents
    1. The Supplier warrants that none of the equipment described in the Specifications infringes any patent provided that Customer will:

      (a)forthwith upon receipt forward to the Supplier any communication charging infringement,

      (b)forthwith forward to the Supplier all process, pleadings and other papers served in any such action charging infringement,

      (c)give the Supplier the opportunity to defend any such action at the Supplier’s expense and

      (d)give the Supplier the option at any time up to after judgement at the Supplier’s expense to minimise Customer’s damage or liability

      (i) by altering the equipment to make it non-infringing

      (ii) be exchanging a non-infringing part which will fulfil substantially the same function for the infringing part which in that case becomes the Supplier’s property,

      (iii) by obtaining a license permitting Customer’s use of any infringing part, or

      (iv) by repurchasing the infringing equipment at Customer’s straight line depreciated cost

    2. The Supplier’s maximum liability under this warranty shall be:

      (a) to indemnify the Customer for any money judgement received against Customer plus Customer’s legal fees if the Supplier does not undertake the defence; and

      (b) to repurchase at Customer’s straight line depreciated costs any parts sold hereunder which Customer cannot use by reason of an adverse judgement, all liability on the Supplier’s part hereunder being subject to due performance by the Customer of the above conditions and the limitations of paragraph 15 hereof. No warranty is made as to process or product patents unless expressly stated in the specifications nor as to infringements resulting from compliance with specifications by the Customer.

  12. Risk and title
    1. The risk in the Goods shall pass to the Customer on completion of delivery.

      (a) In the case of delivery in the in the United Kingdom this shall be at the time that the Goods are delivered to the site confirmed in the Order Acceptance and thereafter shall be at the risk of the Customer who shall be responsible for insurance to the full value.

      (b) In the case of delivery outside the United Kingdom the equipment shall remain at the Supplier’s risk until offloaded on deck at the port confirmed in the Specification (or otherwise agreed) and thereafter shall be at the risk of the Purchaser.

    2. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in which case title to the Goods shall pass at the time of payment of all such sums.
    3. Until title to the Goods has passed to the Customer, the Customer shall:

      (a) store the Goods in such a way that it remains readily identifiable as the Supplier's property;

      (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

      (c) maintain the Goods in satisfactory condition and keep it insured against all risks for the full price from the date of delivery;

      (d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1; and

      (e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

    4. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1, then, without limiting any other right or remedy the Supplier may have:

      (a) the Customer's right to use the Goods in the ordinary course of its business ceases immediately; and

      (b) the Supplier may at any time:

      (i) require the Customer to deliver up the Goods; and

      (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover it.

  13. Price and payment
    1. The price of the Goods shall be the price set out in the Order.
    2. The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

      (a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

      (b) any request by the Customer to change the delivery date(s) or the Specification; or

      (c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

    3. The price of the Goods excludes amounts in respect of value added tax (VAT) and other duties, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate.
    4. The Supplier may invoice the Customer as per the Terms of Payment, Specification or Quotation as the case may be.
    5. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
  14. Termination
    1. Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

      (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;

      (b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

      (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

      (d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

    2. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 14.1(a) to clause 14.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
    3. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
    4. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
    5. Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
    6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
  15. Limitation of liability
    1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:

      (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

      (b) fraud or fraudulent misrepresentation;

      (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.

    2. Subject to clause 15.1:

      (a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

      (b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount already paid by the Customer to the Supplier.

  16. Force majeure

    Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for six weeks, the party not affected may terminate this Contract by giving two weeks written notice to the affected party.

  17. Exceptions

    Unless otherwise stated in the Specification the Customer will by itself or by other contractors and its own expense provide and install all items not specifically agreed to be supplied by the Supplier under the terms of this contract including but not limited to the following: all labour, services, materials and equipment required for assembly, testing and erection of equipment in Customer’s site specified herein: building structures, equipment foundations and anchor bolts, all electric motors and starters; all pumps and associated couplings, drives and bedplates; all wiring, piping, belting, values and fittings, all insulation, all process control apparatus, instruments and gauges, all guards, ladders, walkways, handrails and safety devices, and all requirements of the public authorities and insurance underwriters and requirements of applicable labour contracts at Customers plants.

  18. General
    1. Assignment and other dealings.

      (a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

      (b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

    2. Confidentiality.

      (a) Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 18.2(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

      (b) Each party may disclose the other party's confidential information:

      (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 18.2; and

      (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

      (c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

    3. Entire agreement.

      (a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

      (b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

    4. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    5. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
    7. Notices.

      (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

      (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

      (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

    8. Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
    9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
    10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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Copyright © 2019 Airquee All Rights Reserved
Registered Address: Airquee Ltd, Duel House, Llandowlais Street, Cwmbran, NP44 7XB VAT No: GB 992 1087 04 Company Registration No: 03129324

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