Last updated: April 18, 2023
- CERTAIN DEFINITIONS USED IN THIS DOCUMENT. “Seller” means Pure Pools, Inc. dba APi. “Buyer” means the purchaser identified in the applicable document to which this Terms and Conditions of Sale is attached to, or comprises the reverse part of (as applicable), irrespective of whether the document is an Invoice, Order Confirmation, Quotation, Statement, Electronic Order Confirmation, or other document (hereinafter, all references to such document and to the Terms and Conditions of Sale, collectively shall be made by a reference to “this Document”). “Products” mean the goods, equipment, supplies and services supplied by Seller to Buyer as described in this Document. “Buyer” and “Seller” include the respective heirs, executors, personal representatives, successors and permitted assigns of each.
- TERMS ARE EXCLUSIVE. THIS DOCUMENT CONSTITUTES THE COMPLETE AND FINAL AGREEMENT OF BUYER AND SELLER FOR THE PRODUCTS. THIS DOCUMENT MAY NOT BE ADDED TO, MODIFIED OR SUPERSEDED EXCEPT IN A WRITING SIGNED BY AN EXECUTIVE OFFICER OF SELLER, EVEN THOUGH OTHER TERMS MAY APPEAR ON BUYER’S DOCUMENTS (ALL OF WHICH ARE HEREBY OBJECTED TO BY SELLER WITHOUT FURTHER NOTICE). IF BUYER ACCEPTS ANY PERFORMANCE BY SELLER, BUYER WILL BE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS DOCUMENT.
- PURCHASE ORDERS; ACCEPTANCE BY SELLER. All purchase orders issued by Buyer to Seller (the “Order(s)”) are subject to acceptance by Seller. Seller reserves the right to reject any Order, in whole or in part, for any reason or no reason. Seller may accept Orders by written or electronic acknowledgement. No Order is accepted by Seller unless and until Seller, at Seller’s sole discretion, provides an express written or electronic acceptance. If Buyer specifies Products or Prices (as defined below) that are no longer available, Buyer may submit to Seller an amended Order, which Seller may reject or accept at Seller’s sole discretion. Seller reserves the right, at any time in its sole and absolute discretion and without any obligation, liability or advance notice to Buyer, to discontinue the sale of or limit the production of any Product, to terminate or limit deliveries of any Product, to alter the design or composition of any Product, and to add new Products to or delete existing Products from its product lines.
- PRICES AND PAYMENT TERMS. The prices for the Products (“Prices”) shall be as set forth in Seller’s price guides. Payment of the Prices is due in full no more than thirty (30) days from the invoice date unless otherwise specified by Seller in writing. Invoices shall be issued upon shipment of the Products to Buyer, and Buyer shall identify the invoice number on each payment to Seller. By placing an Order for Products, Buyer represents and warrants that Buyer is solvent and has the ability to pay its debts as they come due. Should Buyer become delinquent in payment of any sum due to Seller (whether under the current Order or otherwise), Seller shall not be obligated to continue performance under this Document. Any amounts not paid when due will be subject to a service charge of one and one-half percent (1.5%) of the amount due per month or the highest rate permitted under applicable law, whichever is less, until the balance is paid in full. Seller shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Buyer that are more than sixty (60) days delinquent.
- TAXES. Buyer shall pay all sales, use, value-added, excise, or similar taxes and duties and any shipping, delivery, and related insurance costs applicable to the Products, which shall be in addition to the Prices, unless otherwise agreed. In lieu of certain tax payments, Buyer may provide Seller with a tax exemption certificate acceptable to the taxing authorities. Buyer agrees to reimburse Seller for any such amounts which Seller incurs on behalf of Buyer.
- SHIPMENT. Unless otherwise agreed, all shipments are F.O.B. shipping point. Any specified delivery date is approximate only. Title and risk of loss of all Products sold hereunder shall pass to Buyer upon Seller’s delivery to Buyer or Buyer’s agent (including freight carrier) at the shipping point. Any special handling charges shall be paid by the Buyer. Weights and tares fixed by Seller’s invoice shall govern.
- CUSTOM PRODUCTS. Buyer may request that Seller manufacture certain Products according to specifications requested by Buyer (“Custom Products”) by placing an Order for such Custom Products. Buyer acknowledges that the Custom Products being purchased from Seller are made solely for Buyer. Therefore, after ten (10) calendar days from the date Seller receives an Order from Buyer for Custom Products, Buyer may not cancel the Order for Custom Products without Seller’s prior written consent. All cancelled Orders for Custom Products, if permitted by Seller, are subject to a cancelation fee in the amount of thirty percent (30%) of the total purchase price under the Order. If the Custom Products have been scheduled for delivery or have been delivered when Buyer improperly attempts to cancel the Order, Seller shall have no obligation to accept the cancelation, and Buyer shall remain liable for the entire purchase price of the Custom Products.
- INSPECTION AND ACCEPTANCE OF PRODUCTS. Each delivery of Products will be inspected promptly by Buyer for damage and defects. BUYER WILL NOTIFY SELLER OF ALL CLAIMED DAMAGE OR DEFECTS WITHIN TEN (10) CALENDAR DAYS OF BUYER’S RECEIPT OF PRODUCTS. If Buyer fails to so inspect or notify Seller, Buyer will be deemed to have accepted the Products and to have waived any damage or defect. If Buyer inspects the Products and notifies Seller within such period of its claim that the Products are damaged or defective, Seller will review Buyer’s claim, and if valid, Buyer and Seller will mutually agree on the timing of curing such damage or defect. Any remedy of Buyer against Seller shall be barred unless notice is given in accordance with the foregoing provision. All actions by Buyer for breach of warranty against Seller shall be brought within one (1) year after the cause of action thereon accrues. Buyer shall not resell any Products that are damaged or defective and instead shall destroy or dispose of such Products in accordance with Seller’s instructions and applicable law.
- ORDER CANCELATION; RETURNS. After ten (10) calendar days from the date Seller receives an Order from Buyer for Products other than Custom Products (“Non-Custom Products”), Buyer may not cancel such Order without Seller’s prior written consent. Buyer shall not return Non-Custom Products without Seller’s prior written approval. If a return is approved, all Products or containers returned must be marked with a return authorization number supplied by Seller. All returns shall conform to Seller’s return policy and standards, as applicable from time to time. Without limiting the foregoing, in the event of return of Non-Custom Products, Buyer shall return the Non-Custom Products in the original packaging and in resalable condition. Buyer shall be responsible for packing and documenting the Non-Custom Products according to Seller’s requirements. Seller shall have the right not to accept the return for all or any part thereof if Buyer does not comply with the terms of this Section 9. Any packing and logistics costs incurred shall also be borne by the Buyer.
- LIMITED WARRANTY. Seller warrants that: (i) it has the right to convey good title to the Products, free and clear of any lien or encumbrance; and (ii) the Products shall meet their specifications in all material respects at the time of shipment. Any alleged breach of the foregoing limited warranty must be promptly reported to Seller. If Seller determines, in its sole reasonable discretion, that any Product does not conform to the warranty stated in this Section, Buyer’s sole and exclusive remedy and Seller’s sole and exclusive obligation, at Seller’s option, shall be for Seller to either: (i) replace the nonconforming Product at Seller’s own expense; or (ii) credit Buyer the purchase Price for the nonconforming Product.
- WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10, THE PRODUCTS AND ANY OTHER MATERIALS PROVIDED BY SELLER HEREUNDER ARE PROVIDED “AS IS.” SELLER MAKES AND GIVES NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES OF NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES OR BUSINESS, COST OF CAPITAL, COST OF PURCHASE, COST OF RECALL, OR COST OF REPLACEMENT PRODUCTS). SELLER’S AGGREGATE LIABILITY FOR ANY DAMAGE OR THAT OF ANY THIRD PARTY CAUSED BY ITS PRODUCTS OR OTHERWISE BY ITS ACTS OR OMISSIONS, SHALL NOT EXCEED, IN RESPECT OF ANY CLAIM ARISING OUT OF A SINGLE EVENT OR A SERIES OF CONNECTED EVENTS, THE PRICE OF THE PRODUCT(S) SPECIFIED ON THE ORDER THAT IS THE SUBJECT MATTER OF A DISPUTE. THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL APPLY HOWEVER THE LOSS OR DAMAGE IS CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, WARRANTY, BREACH OF CONTRACT, DELAY OF PERFORMANCE, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
- INDEMNITY. BUYER SHALL, AND HEREBY DOES, INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS SELLER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, PARTNERS, COUNSEL, AUDITORS, ACCOUNTANTS, AGENTS, ADVISORS AND ALL OTHER REPRESENTATIVES AND EACH OF THE HEIRS, EXECUTORS, SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING, FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS, ACTIONS, CAUSES OF ACTIONS, SUITS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, VARIANCES, TRESPASSES, DAMAGES, JUDGMENTS, EXECUTIONS, CLAIMS, AND DEMANDS WHATSOEVER, IN LAW, ADMIRALTY, OR EQUITY, KNOWN OR UNKNOWN OF ANY KIND TO THE EXTENT THEY ARE CAUSED BY, ARISE FROM, OR ARE INCURRED IN CONNECTION WITH (A) ANY BREACH OF, OR FAILURE TO PERFORM, ANY TERM, COVENANT, OR CONDITION IN THIS DOCUMENT BY BUYER, OR (B) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF BUYER OR ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS.
- AUTHORIZED SELLER PROGRAM AND OTHER POLICIES. Buyer agrees to comply with Seller’s Authorized Seller Program policies, as may be in effect from time to time and as applicable to Buyer. Seller may issue other policies from time to time related to the promotion, handling, or sale of the Products and Buyer agrees to comply with such policies. Notwithstanding the foregoing, and for avoidance of doubt, any policy identified by Seller as a “unilateral” policy, including any unilateral minimum advertised price policy, shall not be included in this requirement. Seller does not seek and will not accept any agreement or assurance of compliance by Buyer with respect to any unilateral policy.
- Governing Law and Forum. This Document, and any and all disputes, claims and controversies directly or indirectly arising from or relating to this Document, will be governed by and construed under the laws of the State of Florida, U.S.A., without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Document. Any dispute, claim or controversy that directly or indirectly arises out of or relates to this Document will be first negotiated in good faith by the parties. If such negotiations do not result in a mutually agreeable resolution, either party may bring a claim against the other party, provided that such claim will be exclusively venued in the state or federal courts located in Palm Beach County, Florida. Each party hereby consents, agrees, and submits to the exclusive jurisdiction of such courts for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Document, and waives any and all objections to such courts, including, but not limited to, objections based on improper venue or inconvenient forum. In the event of a dispute arising under this Document, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs.
- Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE PARTIES’ ACTIONS IN THE NEGOTIATIONS, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF. THE PARTIES ACKNOWLEDGE THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.
- Force Majeure. Seller shall not be liable for any delay or non-delivery of any of the Products or other nonperformance caused, in whole or part, by any contingency or event beyond Seller’s reasonable control, including, without limitation, any epidemic or pandemic; acts of God; acts of any government or any agency or subdivision thereof; fire; strikes; war; machinery breakage; failure of a communications or internet provider; transportation delays; shortage of or inability to secure labor, fuel, energy, materials, or supplies at reasonable prices or from regular sources or otherwise; riots or acts of a public enemy; terrorist acts; and any existing or future laws or regulations with which Seller, in its judgment and discretion, deems it advisable to comply as its legal duty.
- MISCELLANEOUS. If any of the provisions of this Document are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby. No right or interest in the contract arising from this Document may be assigned by Buyer and no delegation of any obligation owed by Buyer may be made without the prior written permission of Seller. The rights and remedies of Seller herein will be cumulative and additional to any other or further rights and remedies provided in law or equity. No amendment to, or modification of, any provision of these Terms and Conditions shall be binding upon Seller unless set forth in a written document signed by Seller. No waiver of any breach of any provision of these Terms and Conditions shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, nor shall it constitute a course of dealing and no waiver shall be effective unless made in writing.
- CANCELATION. Seller may cancel or terminate all or part of the contract evidenced by this Document immediately if Buyer is materially delinquent on any of its obligations hereunder or under any other order or transaction with Seller; Buyer becomes insolvent; a receiver under Title 11 U.S.C., as amended (the “Bankruptcy Code”) is appointed for or on behalf of Buyer, or a case under any chapter of the Bankruptcy Code is commenced for, by or against Buyer; Buyer suspends or terminates business or makes an assignment for the benefit of creditors; any guarantor of the obligations of Buyer dies, becomes insolvent or any case under any chapter of the Bankruptcy Code is commenced for, by or against such guarantor; or any event occurs, whether or not similar to the foregoing, which in Seller’s good faith belief materially impairs the prospect of payment or performance by Buyer. Seller’s rights to cancel or terminate may be exercised by Seller without liability.
- REPRESENTATION BY AGENT OR REPRESENTATIVES. The terms of this Document will govern the liability and obligations of Seller in regard to the sale of Products, whether the sale was procured directly by Seller or indirectly through an authorized sales representative. No agent, employee or representative of Seller has any authority to bind Seller to any additional or contrary terms. Unless a term is specifically included within this Document or is in writing signed by an executive officer of Seller, it will not be enforceable by Buyer or by any person claiming by or through Buyer.
- CONFIDENTIALITY. Buyer will not disclose or otherwise disseminate, directly or indirectly, any of the terms of this Document or any other information of Seller given to or received by Buyer or its associates or agents, unless Buyer received Seller’s written permission or such information is required to be disclosed by law or becomes part of the public domain through no fault of Buyer, its associates or agents.
IN ALL CASES CLERICAL ERRORS ARE SUBJECT TO CORRECTION
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