GENERAL
THE OPTIMUM POOL TECHNOLOGIES, INC. WEB SITE (THE “SITE”) is an online store where a Buyer can purchase pool supplies and is available subject to your compliance with the terms and conditions set forth below. THE TERMS AND CONDITIONS SET FORTH HEREIN CONSTITUTE THE EXPRESSION OF ALL THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND OPTIMUM POOL TECHNOLOGIES INC. (“SELLER”) FOR THE SALE OF GOODS CONTEMPLATED HEREIN. Any counteroffer will not be binding on Seller and will be null and void, without notice to Buyer. Acceptance in a course of performance rendered under this Agreement will not be relevant to determine the meaning of this Agreement. All orders are subject to the written approval by an authorized representative of Seller at its headquarters in Boise, Idaho, U.S.A. No waiver or alteration of the terms herein will be binding unless it is in writing, signed by an authorized representative of Seller. As used herein, the term “Domestic” is defined as within the continental United States, and the term “Foreign” is defined as outside the continental United States. Optimum Pool Technologies, Inc. reserves the right to modify, alter, or update these terms and conditions at any time. Users of this Site agree to comply with such modifications, alterations, or updates.
AGREEMENT
Please read the following information carefully before using this Site. BY CHECKING THE “I HAVE READ AND AGREE TO THE WEBSITE TERMS AND CONDITIONS” CHECKBOX WHEN YOU PROCEED THROUGH THE REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree with any part of the Agreement, do not use this Site. Optimum Pool Technologies, Inc. reserves the right, in its sole discretion, to modify, alter or otherwise update this Agreement at any time. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.
CONTROLLING EFFECT
Please read the following information carefully before using this Site. BY CHECKING THE “I HAVE READ AND AGREE TO THE WEBSITE TERMS AND CONDITIONS” CHECKBOX WHEN YOU PROCEED THROUGH THE REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree with any part of the Agreement, do not use this Site. Optimum Pool Technologies, Inc. reserves the right, in its sole discretion, to modify, alter or otherwise update this Agreement at any time. Any changes will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.
PAYMENT TERMS
Seller requires payment in advance (PIA), before the goods or services will be delivered, unless an authorized representative of Seller states otherwise in a signed writing. By purchasing supplies, Buyer agrees to pay the amounts owed to Seller in full. If payment terms are net thirty (30) calendar days from the date of invoice, Seller may, in its sole discretion, require prepayment for special order products. Seller may, in its sole discretion, apply Buyer’s payment against any open charges. Billing adjustments of any kind must be approved in writing by Seller’s authorized personnel. Payment not received on time will be charged, to the extent permissible by law, a late payment fee of 1% of the past due amount for each month late. Payment will be made in United States (“U.S.”) dollars and in immediately available funds. Seller, without liability, reserves the right to suspend any further performance under this Agreement or otherwise assert alternate payment terms, in the event payment is not made when due or if, in Seller’s sole discretion, Buyer’s credit is or becomes unsatisfactory. Any claims by Buyer against Seller for an alleged breach of contract, cannot be offset by Buyer against any payment owed to Seller.
SHIPMENT & DELIVERY
All scheduled shipping dates are approximate and based upon current availability of materials, present production schedules, and prompt receipt of all necessary information from Buyer. Buyer is to pay all shipping, insurance and related expenses that may apply. If shipment is delayed because of Buyer, Seller may, after reasonable notice to Buyer, store the Goods at a place of its own choice at Buyer’s sole risk and expense. Seller will not be liable for any damage, loss, fault, or expenses arising out of or related to delays in shipment or other nonperformance of this Agreement due to any cause beyond Seller’s control, including but not limited to: (a) strikes, fire, floods, disasters, riots, acts of God, (b) acts of Buyer, (c) labor disruptions, (d) shortages of fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) foreign or domestic government action , or (e) subcontractor, service or supplier delay. Title passes from Seller to Buyer when materials leave Seller’s shipment point (including manufacturer point of origin for direct shipments) for all will call and common carrier/freight-collect shipments. Buyer will not deduct any amount from the payment due to Seller as a result of shipment damages and/or discrepancies unless given prior written authorization. Seller shall not be responsible for conditions beyond its control including, without limitation, manufacturer’s shipping demand.
IMPORTING EXPENSES, LICENSING & REGULATIONS
For Foreign shipments, Buyer is exclusively responsible for payment of any and all related import expenses, satisfaction of the respective licensing requirements, and compliance with all applicable regulations and standards, which are required by the Buyer’s territory and/or country.
EXPORT REGULATIONS
Seller is bound by all U.S. export regulations, restrictions, trade embargoes, etc. (“U.S. Government Action”); therefore, any offer for the sale of Goods to a Foreign Buyer where sales are restricted by such U.S. Government Action, will not be valid and will immediately expire without any liability whatsoever to Seller.
INSPECTION & ACCEPTANCE
Buyer will immediately inspect the Goods upon receipt. The Goods will be deemed finally inspected, checked and accepted by Buyer, within three (3) business days of receipt for Domestic shipments, and within five (5) business days after receipt of Foreign shipments, unless Buyer states otherwise to Seller in writing prior to the expiration of the respective time periods.
PACKAGING
Prices stated are based on Seller’s standard packaging. Special mutually agreed upon customer packaging will be furnished only when specified and so stated herein, and the cost thereof will be borne by Buyer.
PRICE
All prices are in U.S. dollars, are based on the terms and conditions herein. All prices shown in published price lists are wholesale list prices unless otherwise indicated. Quoted prices and/or discounts from list price are firm only on a unit basis and only for a maximum of 10 days from the date of quote unless otherwise indicated in writing on the quote form. Seller routinely updates and revises its offerings of products, and Seller may discontinue products at any time without notice. To the extent that Seller provides information on availability of products, Buyer should not rely on such information, and Seller will not be liable for any lack of availability of products that Buyer may order through the site. All pricing for the products available on the site is subject to change. Prices shown do not include any sales, excise, or other governmental tax or charge payable by Seller to any federal, state or local authority. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price, and Buyer shall reimburse Seller for any such tax or provide Seller with an acceptable tax exemption certificate. All prices and other terms provided to Buyer shall be kept confidential except to the extent a party is required by law to disclose the same.
PRICE QUOTATIONS
All written quotations automatically expire unless accepted in writing within thirty (30) calendar days from the date quoted. Verbal quotations are invalid unless and until written confirmation by an authorized representative of Seller is issued to Buyer within five (5) business days therefrom for Domestic shipments, and thirty (30) calendar days therefrom for Foreign shipments. Such written confirmation will supersede any verbal quote.
GENERAL CONDITIONS
In addition to the rights and remedies conferred upon Seller by law, and without Seller being in breach of this Agreement, Seller will not be required to proceed with the performance of any order or contract if Buyer is in default in the performance of any order or contract with Seller, or in case of doubt as to Buyer’s financial responsibility, or other future performance. Any clerical errors are subject to correction. All paragraph headings are for convenience only and are not to be construed as defining the terms and conditions herein. If any provision in this Agreement is determined to be illegal, this Agreement will continue as if such provision were removed.
ELECTRONIC TRANSACTIONS
Any transaction accomplished through Electronic Data Interchange or any other electronic means, including, but not limited to facsimile and Email, will be subject to the terms and conditions set forth herein.
WARRANTY
Many of the products manufactured by Seller are covered under the manufacturer’s warranty, which is detailed in the product’s description or at the manufacturer’s official website. Please refer to the specific product’s manual for warranty information and scope before contacting Seller concerning warranty coverage. If applicable, manufacturer’s warranties apply from the date of shipment. Seller does not express or imply any other warranties beyond those stated in official product descriptions or manuals. Seller cannot be held responsible for any injury, loss, cost, or damage due to customer negligence or error. For all warranty replacements, the customer is responsible for all shipping costs. Seller’s warranty does not apply to any Goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, improper installation, modification, or adjustment, repair, evaluation, or testing performed by anyone other than Seller or one of Seller’s authorized agents. Buyer will be responsible for compliance with all written instructions relative to the installation, use and limitations of the Goods. Failure to comply with such instructions will constitute misuse of the Goods. Unless the Seller expressly agrees otherwise in writing, all warranties will be null and void and of no force or effect in the event the Buyer fails to make any payment due to Seller strictly in accordance with the terms hereof; and in no event will Seller be liable with respect to any claim or cause of action brought under any of the foregoing warranties from and after the date of such material breach. THE FOREGOING WARRANTY AND OBLIGATION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE NOT EXPRESSLY SET FORTH HEREIN. THE FOREGOING WARRANTY EXTENDS ONLY TO THE ORIGINAL BUYER OF THE GOODS AND IS NOT TRANSFERABLE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION HEREIN.
Any additional warranty service, performed other than at Seller’s headquarters, without authorization from an authorized representative of Seller, will be at Buyer’s sole expense. Optimum Pool Technologies, Inc. stands behind its products and will honor its product’s warranties as expressed in their respective warranty documents.
RETURN OF GOODS
All returns must be made within 30 days of receipt and must be approved by an authorized representative of Seller. Buyer must: (1) Contact Seller to obtain a RMA (Return Merchandise Authorization) number; (2) Return such Goods in accordance with the Seller’s instructions regarding the manner and mode of shipment; and (3) Prepay all shipping costs. Seller is not responsible for any shipping costs for returned merchandise. All original shipping, freight, and handling charges are non-refundable. All returned items must be in new condition and have original packaging, warranty cards, and all owner’s manuals to be returned. All returns may be subject to a 20% restocking/handling fee, as determined by Seller in its sole and absolute discretion. Items damaged in transit by the delivery carrier require a copy of the carrier’s paperwork clearly stating that the item was damaged when it arrived. If Seller has shipped the wrong product by mistake, Buyer may contact Seller to notify Seller of the mistake and Seller will promptly exchange the item(s), if returned undamaged within 10 days of receipt, at no cost to the Buyer.
LIMITATION OF LIABILITY
Seller’s maximum liability for its Goods, including, but not limited to, breach of contract or warranty, negligence, or strict liability, will be limited to the repair or replacement of, or issuance of credit for Goods found by Seller, in its sole and absolute discretion, to be nonconforming by reason of a defect in materials or workmanship within the warranty period. IN NO EVENT WILL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) DETERMINED BY SELLER TO BE DEFECTIVE. Buyer has a one (1) year statute of limitation for any breach of contract claim against Seller. Any additional warranty service, performed other than at Seller’s headquarters, without authorization from an authorized representative of Seller, will be at Buyer’s sole expense.
DISCLAIMER OF INCIDENTAL & CONSEQUENTIAL DAMAGES
IN NO EVENT, WILL SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, (INCLUDING BUT NOT LIMITED TO, BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH) OR THE USE, STORAGE, DISPOSAL OR HANDLING OF THE GOODS SOLD HEREUNDER. INCIDENTAL AND CONSE-QUENTIAL DAMAGES FOR PURPOSES HEREOF WILL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF INCOME OR PROFIT, INCREASED EXPENSE OF INSPECTION, OPERATION OR DOWN-TIME, OR LOSSES SUSTAINED AS THE RESULT OF INJURY OR DEATH TO ANY PERSON, OR LOSS OF OR DAMAGE TO ANY PROPERTY. BUYER WILL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
INDEMNIFICATION & ASSUMPTION OF RISK
BUYER ASSUMES ALL RISK, LIABILITY AND RESPONSIBILITY FOR ANY LOSS, DAMAGE, COST AND EXPENSE ARISING OUT OF OR RESULTING FROM THE HANDLING, USE, STORAGE, DISPOSAL OR APPLICATION OF THE GOODS DELIVERED HEREUNDER, AND THE CONTAINERS IN WHICH SUCH GOODS ARE SHIPPED. Buyer hereby assumes and agrees to indemnify, defend and hold Seller harmless from and against all liability, loss, cost, damage and expense (including reasonable attorneys’ fees) arising out of or in connection with claims by Buyer, its employees, customers, independent contractors and any third parties based upon or resulting from the handling, use, storage, disposal or application of the Goods delivered hereunder or the containers in which such Goods are shipped. Buyer warrants that the Goods will not be resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations or export control imposed by the U.S. Government. Buyer will indemnify, defend and hold harmless Seller, including reasonable attorney fees, court costs, and costs of investigation and defense, from any harm or damages or liability caused to Seller by any breach of the foregoing representations or for the failure to comply with any laws or regulations including, without limitation, any U.S. export laws.
MODIFICATION, TERMINATION & CANCELLATION
After acceptance of Buyer’s order by Seller, such order may only be modified, terminated, cancelled, or shipment deferred (hereinafter “Altered”) prior to shipment, if it is agreed to in writing by an authorized representative of Seller. Buyer will fully indemnify Seller against any and all liability and expense incurred by Seller pursuant to any Altered order. Additionally, Buyer will pay reasonable and proper cancellation charges, as determined solely by Seller, to compensate for disruptions in scheduling, planned production, and costs incurred prior to the order being Altered for materials, labor, factory overhead, work in process and other direct costs; however, such amount will not exceed 25% of the invoice amount, unless the Goods are custom manufactured by Seller for Buyer. Seller will have the right to cancel any order or contract at any time by written notice for any breach of the order or contract by the Buyer and Seller will be entitled to collect cancellation charges as identified above.
INTELLECTUAL PROPERTY
Seller has independently developed confidential and proprietary information, related to the Goods, which may be transmitted, communicated, or otherwise disclosed to Buyer pursuant hereto. Buyer hereby agrees to treat such confidential and proprietary information in the strictest confidence and shall not disclose such information to any third party without the prior written consent of Seller. Buyer acknowledges that no license or right is granted hereby and no license or right will be incorporated herein by reference, implication or by other means with respect to or under any invention, patent application, patent, copyright, trade secret or other Proprietary right contained in or in any way relating to the Goods.
GOVERNING LAW
The Seller and Buyer (regardless of whether Buyer is Domestic or Foreign) expressly agree that this sale of Goods and these controlling terms and conditions, will be governed exclusively by and interpreted in accordance with the laws of the State of Idaho, U.S.A., and agree to exclude the application of the United Nations Convention for the International Sale of Goods (“CISG”) from any and all aspects of this sale; however, all foreign delivery terms, as used herein or in other written correspondence used in this transaction for the sale of the Goods, will be exclusively governed by and in accordance with the ICC Incoterms 1990.
Right to Preserve and Disclose
Seller may preserve all information you provide. Seller may also disclose information you provide if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) complete your transaction; (b) comply with legal process; (c) enforce this Agreement; (d) respond to claims that any materials on this Site violate your rights or the rights of third parties; (e) protect the rights, property, or personal safety of Seller, its users and/or the public; or (f) in the event that all or substantially all of Seller’s assets are acquired by a third party.
Privacy
Personal information transmitted to Seller will be treated in accordance with our Privacy Policy.
Our Copyrighted Materials; Infringement Claims
The copyrights in all text, images, screens and other materials provided on this Site (collectively, the “Materials”) are owned by Optimum Pool Technologies, Inc. and/or by third parties. Except as provided below, none of the Materials may be copied, distributed, displayed, downloaded, or transmitted in any form or by any means without the prior written permission of Seller or the copyright owner. Unauthorized use of any Materials contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or other regulations and statutes.
TRADEMARKS
Trademarks and service marks that may be referred to on the Site are the property of their respective owners. References are for comparison only. Optimum Pool Technologies, Inc. is not affiliated with Hayward®, Goldline®, Pentair®, Jandy®, or Zodiac®. Hayward®, Goldline® and AquaRite® are registered trademarks of Hayward Industries, Inc. Pentair® and Intellichlor® are registered trademark of Pentair Ltd. Jandy® and Zodiac® are registered trademarks of Zodiac International, S.A.S.U. Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark without our written permission.
Prohibited Actions
Buyer agrees not to: (a) decompile, reverse engineer, disassemble, modify, reduce the Site to human perceivable form or create derivative works based upon the Site or any part thereof; (b) disable any licensing or control features of the Site; (c) “frame” the Site or any portion thereof or otherwise cause the Site or its contents to appear to be provided by anyone except Optimum Pool Technologies; (d) introduce into the Site any virus or other code or routine intended to disrupt or damage the Site, or alter, damage or delete any Materials, or retrieve or record information about the Site or its users; (e) merge the Site or Materials with another program or create derivative works based on the Site or Materials; (f) remove, obscure, or alter any notice of the copyright or other proprietary legends on the Site or Materials; (g) sublicense, assign, translate, rent, lease, lend, resell for profit, distribute or otherwise assign or transfer the Materials or access to the Site to others; (h) use, or allow the use of, the Site or the Materials in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; or (i) otherwise act in a fraudulent, illegal, malicious or negligent manner when using the Site. Except as expressly provided herein, the Seller and the its affiliates reserve all rights with respect to the Site, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
Suspension of Buyer’s Account(s)
Without prejudice to any other right or remedy available to Seller, Seller shall be entitled to suspend Buyer’s account if Buyer fails to pay any amounts due to Seller by the due date for payment or if Buyer breaches the provisions of this Agreement.
Prohibition on Scripts, Bots, Third Parties, etc.
Buyer shall not access or use the Site by means of any automated program, expert system, electronic agent or “bot,” and shall not give any person or entity access to the Site.
Prohibition on Scraping
Buyer is prohibited from “scraping,” copying, republishing, licensing, or selling the data or information on the Site.
Ownership of Usage Data
Seller may collect and aggregate data about Buyer’s usage of the Site, and Seller shall be the sole owner of such information.
Must Be At Least 18 Years Old to Use This Site
At this Site, Seller makes no active effort to collect personal information from individuals under the age of eighteen (18). Seller requires that Site users must be of legal age to enter into agreements (typically, at least eighteen (18) years of age or older).
Site Controlled from United States; Prohibited Persons and Countries.
This Site is controlled from offices within the United States. Seller makes no representation that content or materials in this Site are appropriate or available for use in other jurisdictions. Access to this Site content or materials from jurisdictions where such access is illegal is strictly prohibited. If you choose to access this Site from other jurisdictions, you do so at your own risk. You are always responsible for your compliance with applicable laws. THE LAWS OF IDAHO WILL GOVERN THE CONTENT AND MATERIALS CONTAINED IN THIS SITE, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAWS AND EXCLUDING THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. YOU AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF IDAHO IN RELATION TO ANY CLAIM, DISPUTE OR DIFFERENCE ARISING FROM THESE TERMS, AND YOU AGREE TO WAIVE ANY RIGHT OF REMOVAL OR TRANSFER WHETHER DUE TO FORUM NON CONVENIENS OR OTHER REASON. Buyer hereby represents and warrants that (a) it is not located in a country that (1) is subject to a U.S. Government embargo, (2) has been designated by the U.S. Government as a “terrorist supporting” country, or (3) is subject to a U.S. OFAC Sanctions program that would prohibit the sale under this agreement; and (b) Buyer is not listed on any U.S. Government list of prohibited or restricted parties, such as the Specially Designated Nationals and Blocked Persons List. Buyer will comply fully with all applicable export control laws and regulations. Buyer agrees not to export or re-export the product(s) either directly or indirectly to any country that is prohibited by applicable export control laws and/or regulations, including those countries subject to the U.S. OFAC regulations, restrictions and/or prohibitions.
DISPUTE RESOLUTION
Any dispute arising out of or relating to this sale of Goods, this Agreement, or the breach thereof, except for matters relating to intellectual property or breach of confidentiality, will be resolved exclusively through the following means: (a) Authorized representatives of Buyer and Seller will promptly attempt to negotiate a mutually satisfactory resolution to such dispute. If such negotiations are unsuccessful within thirty (30) days after the representatives’ first negotiations, then (b) Such dispute will be resolved through binding arbitration, to be conducted in English in Boise, Idaho, U.S.A., in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and governed exclusively by the laws of the State of Idaho, U.S.A. The parties agree that such arbitration will result in a binding resolution within one hundred and eighty (180) days from its start. If Seller is required to resort to the requirements of this section, and Buyer is determined to have breached this Agreement, then Buyer will be liable to Seller for all attorney’s fees, filing fees and other related costs involved.
NOTICES
All notices hereunder will be submitted in writing via certified mail, return receipt requested addressed to: Optimum Pool Technologies, Inc., Attn: General Manager, 3562 S TK Ave., Boise, Idaho 83705, U.S.A.