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UK & EIRE GENERAL TERMS & CONDITIONS OF SALE

BASIS OF SALE

1.1. The contract is subject to the following terms and conditions, to the exclusion of any other conditions (including those of the Purchaser, and those implied by trade, custom, practice or course of dealing).

 

1.2. The order constitutes an offer by the Purchaser to purchase the goods in accordance with these conditions. The Purchaser is responsible for ensuring that the terms of the order are complete and accurate before it is signed. The order shall only be deemed to be accepted when AirWair issues a written acknowledgement of the order, at which point the binding contract shall come into existence

 

1.3. Any typographical, clerical or other error or omissions on any sales literature, quotation, price list, acceptance of order, invoice or other document or information issued by AirWair which is obvious on its face shall be subject to correction without any liability on the part of AirWair.

 

1.4. The goods are as described in the product description in AirWair’s catalogue. AirWair reserves the right to amend the description if required by any applicable statutory or regulatory requirement.

DELIVERY OF GOODS

2.1. AirWair shall deliver the goods to the delivery address.

 

2.2. AirWair shall endeavour to comply with the delivery date. The delivery date shall however be an approximate date for the delivery of goods to the delivery address and in relation to delivery, time shall not be of the essence.

 

2.3. Delivery shall take place on the commencement of unloading of the goods at the delivery address. If requested, the Purchaser shall confirm delivery by signing a delivery note (or an electronic equivalent).

 

2.4. If AirWair fails to deliver goods the Purchaser’s sole and exclusive remedy shall be redelivery.

2.5. If AirWair fails to redeliver goods which it has previously failed to deliver, the relevant order shall automatically be cancelled and AirWair’s liability shall be limited to the costs reasonably and properly incurred by the Purchaser in obtaining substitutive goods (of similar description, quality and price) on the best terms reasonably available in the market, less the price AirWair would have paid to the Purchaser for the goods that have not been redelivered.

 

2.6. For the avoidance of doubt, failure or delay in delivery under a contract shall not entitle the Purchaser to cancel any other contracts which it has with AirWair.

2.7. AirWair shall not be liable for any failure or delay in delivery caused by a Force Majeure Event or by the Purchaser’s failure to provide AirWair with adequate delivery instructions or to accept goods that are transported to the delivery location.

TITLE & RISK

3.1. Risk in the goods shall pass to the Purchaser on delivery. The Purchaser shall be responsible for taking out and maintaining appropriate insurance cover for loss or destruction to the goods after delivery takes place in accordance with these conditions.

 

3.2. Notwithstanding delivery and the passing of risk, title to the goods shall remain in AirWair until the earlier of:

 
  • 3.2. Notwithstanding delivery and the passing of risk, title to the goods shall remain in AirWair until the earlier of:
  • 3.2.1.  AirWair receives payment in full (in cash or cleared funds) by or on behalf of the Purchaser for the goods and any other goods that AirWair has supplied to the Purchaser under any contract, in which case title to the goods shall pass at the time of payment of all such sums; or
  • 3.2.2. the Purchaser resells the goods, in which case title to the goods shall pass to the Purchaser at the time specified in condition 3.4.2.
 

3.3. Until title to the goods passes to the Purchaser, the Purchaser shall be the bailee of the goods for AirWair.

 

3.4. The Purchaser may resell or use the goods in the ordinary course of its business (but not otherwise) before AirWair receives payment for the goods. However, if the Purchaser resells the goods before that time:

 
  • 3.4.1. it does so as principal and not as AirWair’s agent; and
  • 3.4.2. title to the goods shall pass from AirWair to the Purchaser immediately before the time at which resale by the Purchaser occurs.
 

3.5. If before title of the goods passes to the buyer the buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due; or the buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; or an application is made to court, or an order is made, for the appointment of an administrator; or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the buyer:

 
  • 3.5.1. the Purchaser’s right to resell the goods or use them in the ordinary course of its business ceases immediately; and
  • 3.5.2. AirWair may at any time
  • 3.5.2.1. require the Purchaser to deliver up all goods in its possession which have not been resold, or irrevocably incorporated into another product; and
  • 3.5.2.2. if the Purchaser fails to do so promptly, enter any premises of the buyer or of any third party where the goods are stored in order to recover them.
PRICES & PAYMENT

4.1. The price of the goods shall be the price(s) contained in the price list as at the date of the order.

 

4.2. AirWair shall have the right, on informing the Purchaser in writing at any time up to one week prior to delivery, to change the price of any goods to reflect any increase in the cost of those goods that is due to any factor beyond AirWair’s control (including foreign exchange fluctuations, increases in taxes and duties, insurance or transportation costs).

 

4.3. If any goods are removed from the range of products offered by AirWair, the parties shall enter into good faith discussions regarding the substitution of those goods.

 

4.4. The price of the goods is exclusive of any applicable value added or any other sales tax.

 

4.5. AirWair may invoice the Purchaser for the goods (including any applicable packaging, insurance and delivery) on or at any time after delivery. The Purchaser shall pay AirWair’s invoice within 30 days of the date of such invoice. Time of payment is of the essence.

 

4.6. Payment shall be made by cheque payable to AirWair International Limited or direct to AirWair’s bank account or by such other method of payment as the parties may agree from time to time.

 

4.7. If the Purchaser does not pay on or by the date referred to in condition 4.5, AirWair shall be entitled, without prejudice to any right or remedy it may have, to:

 
  • 4.7.1. recover the goods; and/or
  • 4.7.2. cancel or suspend any other orders or contracts which is has in place with the Purchaser until payment is made in full; and/or
  • 4.7.3. charge the Purchaser interest on the amount unpaid from the due date in accordance with the Late Payment of Commercial Debts Act 1998; and/or
  • 4.7.4. terminate the Purchaser’s account.
  • 4.7.5. All amounts due under the contract shall be paid in full without any set-off, counterclaim, deduction, or withholding.
INTELLECTUAL PROPERTY

5.1. The Purchaser acknowledges that all intellectual property (including all design rights, trade marks, copyright, and know-how) subsisting in in the goods, any promotional materials and any approved materials (to the extent that such materials contain or reference any intellectual property rights owned or licensed by AirWair) belong and shall continue to belong to AirWair. The Purchaser agrees that it shall notify AirWair of any infringement of AirWair's intellectual property rights immediately upon it coming to the Purchaser's notice.

 

5.2. The Purchaser shall not, without the prior written consent of AirWair, use or allow others to use its intellectual property rights, or any wording or sign confusingly similar as a domain name or other internet identification. If the Purchaser does so the Purchaser shall, at the request of AirWair, take all steps necessary to transfer immediately to AirWair or cancel the domain name or other internet identification at the Purchaser’s cost. If AirWair gives such consent, it may be given subject to the Purchaser agreeing to sell the goods via a domain name acceptable AirWair.

DEFECTIVE GOODS

6.1. New goods that are damaged or defective must be returned to AirWair for inspection. AirWair will inspect such merchandise, and upon confirmation of damage or defect, will issue a credit for the goods. Used goods that are damaged or defective must be returned to AirWair for inspection. AirWair will inspect such goods, and upon confirmation of damage or defect, will issue a credit or provide a replacement for the goods if it has been received by the Purchaser within three hundred sixty-five (365) days. Goods deemed to be defective will be credited to the Purchaser’s account at the lowest price paid by the Purchaser less any discounts that may have been awarded with purchase. Purchasers will not be allowed to deduct the value of a return from an invoice payment without receiving a credit note from AirWair. After three hundred sixty-five (365) days from the date of delivery this type of return will not be accepted.

 

6.2. If AirWair determines that any goods are not defective, AirWair will inform Purchaser and AirWair will then ship to the address from which the goods were initially shipped to AirWair, unless Purchaser otherwise instructs otherwise.

 

6.3. If Purchaser has been given an allowance for defective goods, Purchaser may not send defective goods to AirWair. Instead, Purchaser must destroy such defective goods. Purchaser may not resell defective goods.

 

6.4. This section states Purchaser’s sole and exclusive remedy for defective goods.

LIABILITY

7.1. Nothing in these conditions shall exclude or restrict AirWair’s liability for death or personal injury resulting from AirWair’s negligence (or that of its employees, agents or subcontractors), fraud or fraudulent misrepresentation or any other matter of which it would be unlawful for AirWair to exclude or restrict liability.

 

7.2. AirWair shall under no circumstances whatever be liable to the Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, lost sale, loss of business opportunity or any indirect or consequential loss arising under or in connection with any contract.

 

7.3. AirWair’s total liability to the Purchaser in respect of all other losses arising under or in connection with a contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods paid by the Purchaser.

 

7.4. These conditions shall apply to any replacement goods supplied by AirWair.

WARRANTIES

8.1. AirWair warrants that on delivery and for 3 months thereafter, the goods shall

 
  • 8.1.1. in all material respects comply the description;
  • 8.1.2. be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
  • 8.1.3. be fit for the usual purpose for which they were supplied; and
  • 8.1.4. be free from material defects in design, material and workmanship.
 

8.2. This warranty shall not apply to the extent:

 
  • 8.2.1. the defect arises because the Purchaser failed to store or use the goods in accordance with any directions given by AirWair to the Purchaser or in accordance with good trade practice;
  • 8.2.2. the Purchaser makes any further use of the goods after giving notice of a breach of warranty claim;
  • 8.2.3. the Purchaser alters or repairs the goods without the written consent of AirWair;
  • 8.2.4. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  • 8.2.5. the goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.3. Except as expressly provided for in these conditions AirWair shall have no liability to the Purchaser in respect of the goods’ failure to comply with this warranty.

INDEMNITY

9.1. The Purchaser will indemnify, defend, and hold AirWair, its affiliates, and licensors, and their respective officers, directors, employees, and agents from and against any claim, demand, or action alleging facts that, if true, would constitute: (i) a breach of this Agreement by Purchaser or (ii) wrongful or negligent acts or omissions by Purchaser.

FORCE MAJEURE

10.1. Neither party shall be liable for any failure or delay in performing its obligations under a contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party's reasonable control, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

 

10.2. If the Force Majeure Event prevents, hinders or delays the affected party's performance of its obligations for a continuous period of more than one (1) month, the party not affected by the Force Majeure Event may terminate the contract by giving fifteen (15) Business Days' Notice to the affected party.

TERMINATION

11.1. Without limiting its other rights or remedies, either party may terminate this contract with immediate effect by giving written notice to the other party if:

 
  • 11.1.1. the other party commits a material breach of any term herein and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
  • 11.1.2. the other party 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;
  • 11.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • 11.1.4. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations has been placed in jeopardy.
 

11.2. Without limiting its other rights or remedies, AirWair may terminate the contract with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due on the due date for payment.

 

11.3. Termination 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 which existed at or before the date of termination.

 

11.4. Any provision 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.

ENTIRE AGREEMENT:

12.1. These terms and conditions are the entire agreement between the parties concerning purchases from AirWair, and all prior and contemporaneous agreements are merged herein.
All amendments hereto and waivers of any rights hereunder shall be in writing and signed by the parties. All goods purchased from AirWair shall be subject to these terms and conditions and to the terms of AirWair’s invoices, sales confirmations, statements and its other account documents, and subject to the terms of no other form or document.

If there is any conflict between these terms and conditions, on the one hand, and the terms of AirWair’s invoices, sales confirmations, statements or its other account documents, then these terms and conditions shall prevail. Subject to any restriction on transfer, these terms and conditions shall bind and benefit the heirs, successors and assigns of the parties.

If an arbitrator or court with jurisdiction determines that any term of this contract is unenforceable, the other terms shall remain in full force and effect. Save for clause 2, time is of the essence in performing all of the terms of this contract. This contract shall be construed according to its fair meaning and not for or against any party.

GOVERNING LAW & JURISDICTION

13.1. This Agreement between AirWair and the Purchaser shall be deemed in all respects as being performed and construed according to the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.