GENERAL TERMS AND CONDITIONS OF SALE AS AT 1 JANUARY 2009

1 - GENERAL PROVISIONS

The original French version of these terms and conditions shall take precedence over any other version translated into a foreign language. In the absence of any express written stipulation to the contrary, these terms and conditions apply in full to all our commercial relationships, including in particular the sale and manufacture of our Products during our current financial year, i.e. until 30 September, after which time they may be revised.
They represent the underlying basis for our commercial relationships, and take precedence over any terms and conditions of purchase or other documents issued by Customers. By placing any order, Customers unreservedly accept these terms and conditions as well as our prices.
All information, standards and characteristics indicated in our paper and electronic documentation (catalogues, instructions, information sheets, brochures, circulars, etc.) is provided for information only. We reserve the right to make any changes to our Products as may be appropriate, even while orders are being processed, as long as such changes do not affect Products’ essential characteristics and performance..

2 - APPLICABLE LAW AND JURISDICTION

Any matters relative to these terms and conditions or to sales governed by them which are not covered by contractual stipulations shall be governed by domestic French law. Any disputes related to our activity shall come under the sole competence of the Commercial Court in the place of our registered office as at the summons date, including emergency proceedings, third party appeals, incidental claims or multiple defendants.

3 - ORDERS

All orders must be confirmed in writing (even if only by fax or e-mail) and duly signed by the Customer, specifying the references of the Product being ordered.

• + Heat pumps and dehumidifiers: orders stipulating delivery times longer than eight weeks will not be accepted. Our commitment to supply these products shall only be valid after written confirmation or fulfilment by ourselves of corresponding orders initially issued by the Customer, and after payment by the Customer of any deposit that may be payable as set out in clause 11 below.

All purchase orders are binding upon the Customer, irrespective of submitter or signatory. Customers shall not under any circumstances be entitled to be released from a contract by giving up any non-refundable deposit paid. Orders may not be cancelled and/or amended and/or transferred without prior written agreement from SPA.

Customers acknowledge that they have sufficient experience and expertise to analyse their needs, and that they have received all information needed to be able to make decisions in full knowledge of the facts. In this respect, it is up to Customers to ensure that the characteristics of Products they order correspond with their intended use in terms of both performance and installation options.

4 - RETENTION OF TITLE

PRODUCTS ARE SOLD SUBJECT TO RETENTION OF TITLE UNTIL PAID FOR IN FULL. IN THIS RESPECT, PAYMENT IN FULL REFERS TO ACTUAL PAYMENT INTO OUR ACCOUNT OF PRODUCT COSTS, SALES-RELATED EXPENSES AND INTEREST.

In the event of non-payment of an instalment, even in part, the Customer shall be required, after receiving a letter of formal notice from L.R.A.R., to return at his/her own expense and risk any Products not paid for; any Products held in stock by the Customer shall be assumed to be those not paid for.
In this case, subject to any applicable provisions with regard to receivership and court-ordered liquidation, the sale shall automatically be cancelled as of the date on which the request to return the Products is made.

We shall be entitled to claim any Products not paid for, together with any costs associated with their resale. In the event that a Product has been transformed or integrated into a larger work, the transfer of ownership of our Product shall become applicable to the item arising from such transformation, or to all or part of the price of the item so transformed. Any deposits paid will be retained by us by way of damages, without prejudice to any other compensation. Customers shall under no circumstances be entitled to pledge, give as security or grant any legal charge over Products not yet paid for. Furthermore, Customers may only resell Products, subject to retention of title, in the normal course of business.

5 - PRICES

Our Products are sold and invoiced based on the annual prices in force on the day the sale is completed. Prices are always assumed to be exclusive of VAT, ex-warehouse and including packaging. Customers shall bear all shipping-related costs (haulage, insurance, customs duties, taxes and any other fees payable on importing into the destination country, etc.), which shall be invoiced in addition.
Our annual prices may be amended during the year without prior notice in the event of a more than 10% variation in the price of raw materials used in calculating the cost price of a product, salary costs, shipping costs or taxes levied before delivery; any such amendment to prices shall apply to all orders in course of being processed.

6 - RELEASE, DELIVERY AND TIMESCALES

For all orders dispatched to mainland France, Switzerland and the European Union, we are deemed to have fulfilled our delivery obligations as soon as Products have been delivered to the Customer’s factories, warehouse or registered office.
For all orders dispatched to French overseas departments or territories or countries other than those referred to above, Products shall be deemed to have been delivered once they have been made available or handed over to the first haulage contractor in factories, shops, our warehouses or any other place designated by the Customer, and shall be delivered ex-works (ICC Incoterms 2000). However, in general terms, we are free to organise delivery of Products to the delivery location designated by the Customer. We are free to choose both the method of transport used and the haulage contractor, with whom the Customer shall enter into a contract at his/her own expense and risk.
Customers are, however, free to choose to collect Products themselves at their own expense and risk. In this case, they must inform us at the time the order is placed. Shipping costs will not be invoiced, and Products will be deemed to have been delivered once they have been made available or handed over to the first haulage contractor in factories, shops or our warehouses or any other place designated by the Customer.
Customers authorise us to carry out full or partial deliveries.
All stated delivery timescales are indicative only.
Under no circumstances may failure to meet the stated timescales be considered grounds for cancellation of orders or payment of compensation.
For exports (including to French overseas departments and territories), delivery timescales are determined based on accepted delivery timescales for the importing country.
In any case, Customers shall have no grounds to contest late delivery in cases where they have failed to fulfil their obligations to us, in particular with regard to payment, or where we have not been in possession, in due time, of any specifications and/or other information required for delivery.

Customers refusing delivery without good reason shall pay any costs incurred for such delivery (shipping, warehousing, repackaging, administrative processing costs, equal to 20% of the order amount).

7 - TRANSFER OF RISK

By express agreement and notwithstanding the retention of title clause referred to in clause 4 above, Products shall be considered to be in the Customer’s care with effect from their delivery date as set out in clause 6 above. With effect from this date, the Customer shall therefore be responsible for any risks that may be sustained or caused by the Products, for any reason whatsoever, event in the event of force majeure, exceptional circumstances or third party intervention. Our liability may not therefore be incurred at any point after the delivery time as set out in clause 6.
Customers must therefore take out an insurance policy covering risks pertaining to the Products with effect from the time such risks are transferred to them, and must inform us as quickly as possible of any event liable to adversely affect the policy.

Exported goods are always shipped at the Customer’s risk; Customers must make all necessary arrangements to protect against risks inherent to shipping.

8 - CONFORMANCE AND RECEIPT

Upon receipt of Products, Customers must always check that they are in satisfactory condition, conform to the order and have no visible defects. Any costs and risks associated with checking Products by comparing them with purchase orders and invoices are the Customer’s responsibility.
All complaints, reservations and disputes relative to missing or damaged goods must be recorded on the receipt in the driver’s presence and notified by L.R.A.R. to the haulage contractor within three (3) business days of delivery. They must be referred to on the documentation provided, and confirmed to our company by registered letter with acknowledgement of receipt within the same timescale.
The Customer shall be required to provide proof that Products are missing, damaged, defective or irregular. We reserve the right to inspect Products on site, either directly or via an authorised agent or subcontractor. Notes of the type “Subject to packaging” or “Palettes/boxes intact but products damaged” will not be taken into consideration.
In the event of failure to adhere to these terms, Products shall be deemed to conform and no liability shall be incurred by us; the Customer shall be held liable for any losses suffered by us due to failure to comply with these procedures.

9 - WARRANTIES

With the exception of any provisions to the contrary, new Products installed and commissioned by a professional installer are contractually guaranteed against malfunction for a period of two years with effect from the delivery date as set out in clause 6 above.

- Heat pumps and dehumidifiers: our warranty only applies where installation is carried out by a professional. This warranty is extended:

• + To three years for all Products commissioned by an approved servicing agent and covered by a maintenance contract between an approved servicing agent and the user
• + To the lifetime of the Product against corrosion of titanium components.

Our warranty is limited to material and manufacturing defects recognised by us after inspection by our technical staff.
Limitation : In any case, this warranty is limited to our choice of repairing, exchanging or refunding Products recognised as defective, in addition to paying shipping and haulage costs. It excludes any labour, travel and/or accommodation costs incurred by us in carrying out repairs outside of mainland France, as well as any payment of damages. Products returned by the Customer without consultation will not be accepted.
This guarantee does not apply to obvious defects, i.e. visible faults not declared by the Customer on taking delivery of Products.
Also excluded are any defects or damage caused by a product not being suited to the user’s requirements, normal wear and tear, negligence, faulty installation or use, installation or use not in line with the recommendations included in the corresponding installation or usage instructions, inadequate maintenance and/or damage caused by movement, unsuitable storage, and/or any surveys, instructions and/or specifications produced by the Customer.
In order for the guarantee to be applicable, the Customer and end User undertake to comply with the following parameters: free chlorine: maximum 2.5mg/l; total bromine: maximum 5.5 mg/l; pH between 6.9 and 8.0. Where a chemical or electrophysical disinfection system is used, the Customer must also check with the system’s manufacturer to ensure compatibility with our Products. In particular, such systems must be installed after the heating system. The Customer and User are also required to have any Products that include refrigerant fluids checked for watertightness at least once a year. In any case, this warranty does not apply to any malfunction and/or damage outside our control (incorrect power supply, incorrect bypass settings, incorrect distribution of air, poor insulation of buildings, thermal bridges, etc.). Any repairs or modifications carried out on the Products by the Customer, the User or a third party shall automatically and completely invalidate the warranty. The same applies to cases where original parts have been replaced with parts not originating from our stores.
Under no circumstances shall any repairs or replacements carried out under the terms of this warranty cause its duration to be extended. More specifically, the guarantee covering parts only applies to parts returned to us for analysis and assessment.
Finally, this warranty shall not apply in the event that the Customer fails to pay for the Product concerned in due time.
When passing on to users the “warranty certificate” that comes with our heat pumps and dehumidifiers, the Customer undertakes to record the date of delivery of the Product(s) on the corresponding warranty certificate prior to any sale, in order to establish the warranty start date. Failing this, the Customer shall bear the full cost of any claims made by Users under the contractual warranty and after its expiry date.

10 - PRODUCT RETURNS

Returned Products will not be accepted without our express prior agreement. Any returned Products must be in perfect condition and in their original packaging and must not have been dismantled and/or modified.
On accepting a returned Product, after carrying out qualitative and quantitative checks on the Product, we will choose to agree either an exchange or a credit note to be redeemed against a future purchase, excluding any damages that may be due for any reason whatsoever.
In any case, in the absence of any hidden defects or compliance defects, all Products are returned to us at the Customer’s own expense and risk.

11 - PAYMENT TERMS

Our Products must be paid for by cheque, bank transfer or bill of exchange with 30 (thirty) calendar days of the end of the month in which the invoice is issued.
However, all orders which are the first order placed by a Customer for at least two years are payable by cash, cheque, bank transfer or bill of exchange at the order date. We reserve the right to change payment practices agreed with Customers at any time, and in the event of becoming aware of any risk liable to affect the Customer’s ability to pay, we reserve the right to require full payment in cash prior to delivery and without any discount.
Finally, a 30% deposit is required for all special orders for Products manufactured at the Customer’s option.
International sales: payment must be made in full on delivery by Swift or, if we so require, by irrevocable letter of credit in our favour confirmed by a top-tier French bank in accordance with the Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce, notified when the sale contract is signed. Letters of credit must be settled by payment on sight, and discounts will not be awarded for early settlement. The documents required to fulfil such letters of credit are those set out in the Incoterm referred to in clause 6. In any case, payment will be considered to have been made once funds are received in our account. Our invoices are always payable in euros at our registered office. No amounts invoiced to a Customer may be offset against any alleged or recognised amounts owed to that Customer.

12 - LATE PAYMENT AND DEFAULT

Late payment of all or part of an invoice shall, without prejudice to any damages, give rise to late payment penalties calculated using the legal interest rate multiplied by three, until such time as payment has been received in full. Any comments in relation to our invoices must be communicated to us within ten days of the invoice date, and shall on no account cause payment thereof to be suspended.

Any payment irregularity shall automatically lead to fulfilment of the Customer’s orders being temporarily or permanently suspended. At the same time, any amounts owed in relation to other orders already delivered or in the process of being delivered shall immediately become payable.
Should payment still be outstanding fifteen days after issuing a first formal notice to which no reply has been received, we shall be entitled, if we so wish, to terminate the corresponding sale as well as any previous unpaid orders, whether they have already been delivered or are in the process of being delivered, and whether or not their payment is due.
Customers shall be required to reimburse any expenses caused by their failure to pay in due time leading to bills of exchange being returned, cheques being returned unpaid, and debt collection proceedings being instigated, including fees for law officials and officers of the law. Compensation equal to 20% of any amounts owed shall be claimed in this regard.

13 - LIABILITY

Under no circumstances shall we be liable for any economic or indirect losses such as loss of income, financial losses, commercial losses, loss of customers or loss of orders whether or not as a result of the acquisition, use or resale of Products by the Customer.
In the event of being held liable, we may choose either to replace the disputed Product or to refund it at its purchase price. Under no circumstances may we be held liable in the event of incorrect use and/or installation of Products, failure to comply with recommendations, force majeure as defined in clause 14 below and/or modifications made to Products by Customers themselves or third parties. Our liability may only be incurred on the basis of the information and requirements communicated to us in writing by the Customer, who shall be solely responsible for the accuracy and correctness of the information provided.

14 - FORCE MAJEURE

The parties agree to designate as “force majeure” any event outside our control, whether or not foreseeable, whose effect is to delay or prevent us fulfilling our commitments or make such fulfilment economically unviable, including but not limited to the following: fire, flood, storm, embargo, shortage of raw materials, strike, lockout, acts of Government and changes to regulations applicable to these terms and conditions of sale or to Products, occurring in our factories or within the industries and service providers upon which we depend.
Should such an event occur, we reserve the right to immediately suspend or terminate sales without incurring any liability towards the Customer.

15 - INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

Customers shall have no intellectual or industrial property rights over Products or any documents provided to them at the time of purchasing Products; all such rights shall remain our exclusive property.

LEGAL INFORMATION

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Credits
This site was created by Visual-link, on the initiative of ZODIAC POOL CARE EUROPE Marketing Department ZODIAC POOL CARE EUROPE website, www.zodiac-poolcare.com, is intended for the personal informational use of those who consult it. No commercial use of the information it contains, even partial, can be made without previous written consent of ZODIAC POOL CARE EUROPE or of its subsidiaries.