Terms & Conditions for the Supply of Goods

CONTENTS

CLAUSE

1. 1. Interpretation
2. 2. Basis of contract
3. 3. Goods
4. 4. Delivery
5. 5. Warranty
6. 6. Title and risk
7. 7. Price and payment
8. 8. Limitation of liability
9. 9. Termination
10. 10. Force Majeure
11. 11. General

The customer’s attention is drawn in particular to the provisions of clauses 2.1 and 8.

1. Interpretation

1.1 Definitions:

• Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
• Collection Location: has the meaning given in clause 4.3.
• Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
• Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
• Customer: the person or firm who purchases the Goods from the Supplier as or on behalf of a business, acting as a business not a consumer.
• Delivery Location: has the meaning given in clause 4.2.
• Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
• Goods: the goods (or any part of them) set out in the Order.
• Order: the Customer’s order for the Goods, as set out in the Order Confirmation Form attached to these terms.
• Order Confirmation Form: the form attached to these terms that sets out the Customer’s order requirements received.
• Supplier: Airius Europe Limited, a company registered in England and Wales with company number 05676317 whose registered address is Holwell Farm Holwell, Cranborne, Wimborne, BH21 5QP, United Kingdom.
• Warranty Period: has the meaning given in clause 5.1.

1.2 Interpretation:

• (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• (b) A reference to a party includes its personal representatives, successors and permitted assigns.
• (c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
• (d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
• (e) A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1 – The Contract is for the sale of goods to a business only and not to consumers. All consumer rights are, to the fullest extent permitted by law, excluded from the Contract.

2.2 – 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 law, trade custom, practice or course of dealing.

2.3 – 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 and details of the Order on the Order Confirmation Form are complete and accurate.

2.4 – The Order shall only be deemed to be accepted when the Supplier issues the Order Confirmation Form, at which point the Contract shall come into existence.

2.5 – 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.

2.6 – 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 Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.7 – If a quotation for Goods is given by the Supplier, that quotation shall only be valid for acceptance for the period stated on the quotation.

3. Goods

The Goods are as described on the Supplier’s website: www.airius.co.uk.

4. Delivery

4.1 – The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

4.2 – Delivery occurs when the goods are either unloaded at the Customer’s address or when they are collected from the Supplier.

4.3 – Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 – If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 – All goods will need to be signed for upon delivery and the Customer (or such other person at the delivery address’s) signature on the delivery docket is good receipt of delivery.

4.6 – If the Customers is not available to sign for the delivery of the Goods, the Supplier (or its appointed courier) shall make a further delivery attempt, details of which will be made available to the Customer, and if the Customer is not present for the second delivery, the Goods will be returned to the Supplier and additional delivery charges will apply to any redelivery attempt for the Goods. The Customer will be made aware of these charges before the redelivery is made.

4.7 – The Supplier does not ship internationally. All international Orders need to be collected from the Supplier’s Collection Location.

4.8 – If ten Business Days after the day on which the Supplier notified the Customer that the Goods are ready for collection or the Goods were returned for non-delivery under clause 4.8, the Customer has not collected them, the Supplier may resell or otherwise dispose of part or all of the Goods and issue a refund for any amount paid by the Customer for the Order less any reasonable delivery, storage and restocking costs charged by the Supplier.

5. Warranty

5.1 – The Supplier warrants that from the date of delivery (as determined under clause 4.4), and for five years for Destratification Fans and one year for all other Goods (the “Warranty Period”), all parts and components of the Goods shall:

• (a) – conform in all material respects with their description;
• (b) – be free from material defects in design, material and workmanship;
• (c) – be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
• (d) – be fit for any purpose held out by the Supplier.

5.2 – Subject to clause 5.4, if:

• (a) – the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1 and receives a returns number from the Supplier (that must appear on any return-shipping labels or correspondences relating to the return);
• (b) – the Supplier is given a reasonable opportunity of examining such Goods;
• (c) – the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, subject to clause 5.8,

the Supplier shall, at its option and complete discretion, repair the defective Goods (on site or at the Supplier’s place of business), replace the defective Goods or refund the price of the defective Goods in full.

5.3 – The Customer may, for any reason, within 120 days of delivery of the Goods, request a refund from the Supplier under the Supplier’s money back guarantee (“Money Back Guarantee”). For the Money Back Guarantee to apply, the Goods must be returned at the Customer’s cost and be in a resaleable condition, such condition to be assessed by the Supplier in its complete discretion. Any refunds due under the Money Back Guarantee shall be paid to the Customer within 60 days of receipt of the Goods.

5.4 – The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if, without prior written authorisation from the Supplier,:

• (a) – there are any modification, alterations, adjustments or disassembly to any parts or components of the Goods;
• (b) – the Goods have been properly serviced within 3 years of the purchase date by an Airius Europe Ltd approved contractor;
• (c) – the Goods are used in an environment that would be detrimental to its usual functioning, such as in areas with airborne oils / cutting fluids or solvents that may attack the base resin or motorised components of the Goods;
• (d) – the Goods are operated by fan controls that are neither supplied nor purchased from the Supplier;
• (e) – the Goods are not maintained in accordance with any maintenance schedules set out in the Goods’ installation guide or manufacturer’s guide;
• (f) – Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
• (g) – the defect arises because the Customer failed to follow the Supplier’s and the manufacturer’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods as well as in accordance with good trade practice regarding the same, including but not limited to applicable codes and ordinances of the National Electric Code, local building codes and electrical engineering industry standards;
• (h) – the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
• (i) – the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal storage, abnormal working conditions or the incorrect electrical supply, current or voltage is used; or

• (j) – the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.5 – Except as provided in clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.6 – 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.

5.7 – These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier and the Supplier shall cover any delivery charges for replacement Goods;

5.8 – If a Good, part or component is replaced or repaired, the Warranty Period of the replacement Good, part or component will be the same as the part it replaced and there will be no extension to any Warranty Period because of the repair or replacement.

6. Title and risk

6.1 – The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 – Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.

6.3 – Until title to the Goods has passed to the Customer, the Customer shall:

• (a) – store the Goods separately from all other goods held by the Customer so that they remain 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 them insured against all risks for their full price from the date of delivery;
• (d) – notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
• (e) – give the Supplier such information as the Supplier may reasonably require from time to time relating to:
  • (i) – the Goods; and
  • (ii) – of the ongoing financial position the Customer.

6.4 – Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

• (a) – it does so as principal and not as the Supplier’s agent; and
• (b) – title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.5 – At any time before title to the Goods passes to the Customer, the Supplier may:

• (a) – by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
• (b) – require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and 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 them.

7. Price and payment

7.1 – The price of the Goods shall be the price set out in the Order.

7.2 – The Supplier may, by giving notice to the Customer at any 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), quantities or types of Goods ordered; 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.

7.3 – The price of the Goods:

• (a) – excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
• (b) – excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 – The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.

7.5 – The Customer shall, unless agreed otherwise in writing by the Supplier on the Order Confirmation Form, pay each invoice submitted by the Supplier:

• (a) – on the date of the invoice; and
• (b) – in full and in cleared funds to a bank account nominated in writing by the Supplier on the Order Confirmation Form, and

time for payment shall be of the essence of the Contract.

7.6 – if the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9:

• (a) – the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
• (b) – any early payment discount applied to the Order shall be rescinded and the total amount payable on the Order shall be read as if the early payment discount was not shown.

7.7 – amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of liability

8.1 – The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10 million per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

8.2 – The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3 – Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.

8.4 – Subject to clause 8.3, the Supplier’s total liability to the Customer, where possible, shall not exceed the higher of the value of the Good as set out on its associated Order or the cost of repair or replacement of the Good and in all other cases no more than £10 million.

8.5 – Subject to clause 8.3, the following types of loss are wholly excluded:

• (a) – loss of profits;
• (b) – loss of sales or business;
• (c) – loss of agreements or contracts;
• (d) – loss of anticipated savings;
• (e) – loss of use or corruption of software, data or information;
• (f) – loss of or damage to goodwill; and
• (g) – indirect or consequential loss.

8.6 – This clause 8 shall survive termination of the Contract.

9. Termination

9.1 – 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 15 days of 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), obtaining a moratorium, 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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

9.2 – 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 9.1(b) to 9.1(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.

9.3 – 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.

9.4 – 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 and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

9.5 – If the Customer does not make all payments due under clause 9.4, the Supplier may:

• (a) – enter the Customer’s premises and take possession of all unpaid or partly paid for Goods; and / or
• (b) – initiate legal proceedings, commence a winding up petition or appoint a receiver against the Customer;

to recover all amounts owed to it and all fees, charges and costs incurred in enforcing its rights under the Contract of these terms and the Customer agrees to fully indemnity the Supplier against all such costs, losses and expenses, including any legal costs or court filing fees.

9.6 – Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.7 – Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. Force Majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.

11. General

11.1 – Assignment and other dealings.

• (a) – The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over 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, delegate, 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.

11.2 – Entire agreement.

• (a) – The Contract constitutes the entire agreement between the parties.
• (b) – Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.3 – Variation.

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.4 – Waiver

• (a) – A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
• (b) – A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.5 – Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.If any provision of the Contract is deemed deleted under this clause 11.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.6 – Notices

• (a) – Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
  • (i) – delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  • (ii) – sent by email to the usual email addresses used by the parties between each other.
• (b) – Any notice shall be deemed to have been received:
  • (i) – if delivered by hand, at the time the notice is left at the proper address;
  • (ii) – 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; or
  • (iii) – if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
• (c) – This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.7 – Third party rights.

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.8 – 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.

11.9 – 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 the Contract or its subject matter or formation.