Except to the extent Pool Patch LLC, a Arizona Limited Liability Company (hereinafter alternatively referred to as "Pool Patch" or "Seller") otherwise expressly agrees in writing, all product sales of Pool Patch are made on the following Terms and Conditions of Sale ("Terms and Conditions"):
Any order given pursuant to a quotation shall not constitute a contract until same has been received at the office of Seller and accepted by it in writing. Pool Patch reserves the right to modify any quotation until such acceptance. These Terms and Conditions are applicable to, are an integral part of, and incorporated by reference into, every purchase order from a purchaser of Seller's products ("Purchaser") and every acceptance, confirmation or acknowledgement by Seller of Purchaser's purchase order. All terms and conditions of Purchaser in a purchase order or otherwise (whether oral, typed, written or printed) which are inconsistent with, or in any way change, modify, amplify, differ from or add to these Terms and Conditions are rejected and are null and void, even if Seller does not expressly object to such terms and conditions, unless specifically accepted by Seller in writing.
Seller reserves the right to correct all typographical and clerical errors in any seller's quotation, proposal, acknowledgment, or invoice. Seller reserves the right to revise or otherwise modify these Terms and Conditions from time to time. If revised, the revised Terms and Conditions will be posted on the Seller's website, [www.PoolPatch.com] and will thereafter be immediately effective for purchase orders accepted thereafter.
Stated shipment and delivery times for the product are, therefore, estimates which shall date from Pool Patch written acceptance of Purchaser's orders and receipt at our manufacturing facility of all required information from the Purchaser. Pool Patch shall not be liable to the Purchaser or Purchaser's customers for damages of any kind for failure to deliver the product on the date specified.
Products purchased from Pool Patch may not be returned for credit or refund without the written approval of Pool Patch. Freight on product(s) returned due to an error by Purchaser shall be paid by Purchaser. Freight on product(s) returned due to an error by Pool Patch shall be paid by Pool Patch and all returns must be accompanied by a written return authorization with freight prepaid by Purchaser. All unauthorized returns will be rejected.
THERE ARE NO EXPRESS WARRANTIES EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WITH REGARD TO THE PRODUCTS SOLD BY POOL PATCH, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. Products sold by Pool Patch are warranted to be free from manufacturing defects and to meet the specifications of the current Technical Data Sheet for one (1) year from date of installation if used within shelf life and installed in accordance with Seller's instructions. The sole obligation of Pool Patch under this warranty is to repair, or at its option, replace defectively manufactured product(s) without charge to the Purchaser within the warranty period. NO WARRANTY IS MADE BY POOL PATCH WITH RESPECT TO:
Defectively manufactured product(s), notice of which is not provided to Pool Patch within the applicable warranty period;
Failure of the product(s) or damage to the structure to which it is applied due to misapplication, lack of proper maintenance, abuse, improper installation, failure to follow Pool Patch technical literature or instructions, abnormal conditions of temperature, moisture or dirt, chloride concentrations or other conditions beyond those specified in Pool Patch technical literature.
Failure due to improper design by the engineer or architect.
Pool Patch shall not be liable for any expenses of the Purchaser incurred in an attempt to correct any allegedly defective product without first obtaining written permission from an authorized POOL PATCH representative authorizing the correction(s) within cost perimeters agreed between the parties.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL POOL PATCH BE LIABLE TO PURCHASER IN ANY MANNER OR TO ANY EXTENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OR WHETHER BASED ON CONTRACT, TORT, STRICT OR PRODUCTS LIABILITY, OR ANY OTHER LEGAL THEORY, EXCEPT AS PRECLUDED BY LAW. SUCH EXCLUDED INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES INCLUDE LOSS OF PROFITS, EXPENSES, LOSS OF PRODUCTION, LOSS OF USE, DAMAGE TO PROPERTY, OR ANY OTHER INDIRECT DAMAGE OR LOSS OF ANY KIND OR CHARACTER TO PURCHASER OR ITS CUSTOMERS. POOL PATCH SHALL NOT BE RESPONSIBLE FOR THE USE OF THIS PRODUCT BY PURCHASER IN A MANNER TO INFRINGE ON ANY PATENT OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS HELD BY OTHERS.
Unless otherwise specified on the face hereof, all prices are in U.S. currency, and the place of delivery of the goods described on the face hereof shall be F.O.B. Pool Patch LLC and delivery of the goods shall be deemed complete and possession and risk of loss as to all items shall be deemed to pass to Purchaser upon delivery to the carrier for shipment. Unless otherwise specified on the face hereof, payment is due simultaneously with such delivery. Risk of loss of damage to purchased items in transit shall be borne by Purchaser. If shipment is delayed by the Purchaser, payment shall become due on the date Seller is prepared to make shipment. If any payment is not made when due, a late charge will be paid by Purchaser from the due date until the date of the actual collection by Seller, calculated at the lesser of (i) one and one-half (1.5%) percent per month; and (ii) the highest rate permitted by law. Such late charge shall be in addition to, and not in lieu of, Seller's other rights and remedies for Purchaser's default or nonperformance. Title to all products sold pursuant to this agreement shall remain in the name of Pool Patch until full payment has been made, and to the extent applicable, Seller reserves a security interest in, and Purchaser hereby grants Seller a security interest in the products sold pursuant to this agreement and the proceeds thereof, with the right to take possession and dispose of the products and such proceeds if any such amount is not paid when due. Purchaser agrees to execute and deliver, upon Seller's request and at Purchaser's expense, any and all instruments, including without limitation, financing statements under the Uniform Commercial Code ("UCC") and amendments thereto, which Seller may deem necessary or desirable in order to evidence record or perfect such title and security interest, and Purchaser specifically authorizes Seller to file such instruments with such information and in any jurisdiction deemed necessary by Seller without the signature or any authorization of Purchaser, to the extent permitted by law. With each purchase order, Purchaser represents to Seller that Purchaser is solvent. In the event of Purchaser's default, Seller shall have the rights of a secured party, including, without limitation, those rights under the UCC. Products paid for and held for the Purchaser shall be held at the risk and expense of the Purchaser.
Buyer shall indemnify Seller and its affiliates, directors, officers, agents, servants, employees, successors and assigns against, and hold them harmless from and against, any and all claims, demands, actions, causes of action, suits, liabilities, losses, damages, judgments, settlements and compromises for bodily injury, death, property damage, or economic loss, as well as any and all costs and expenses relating thereto, including reasonably attorneys fees, relating to, resulting from or arising acts or omissions of Buyer relating to or arising out of the use, operation, ownership or condition of any of the products purchased by Purchaser (except for nonconformities expressly warranted in Section 5 above) or the breach or non-performance of Purchaser's obligations under these Terms and Conditions.
Seller shall not be liable to the Purchaser for any expense, loss or damage resulting from delay or prevention of performance by Seller caused, in whole or in part, by floods, earthquakes, or other acts of God, strikes, or other labor disturbances, riots, fires, accidents, wars, acts of terrorism, embargoes, delays of carriers, failure of power or regular sources of supply, or lack of or inability to obtain source of materials, fuel, supplies or other equipment, beyond Seller's reasonable control.
Purchaser agrees to have any dispute, which may arise as the result of the agreement between the parties, to be adjudicated under the laws of the State of Arizona, without regard to conflicts of laws principles, and Purchaser further acknowledges the jurisdiction of the state and federal courts of the State of Arizona for the purposes of adjusting or adjudicating disputes under this agreement.
These Terms and Conditions, and any sales agreement or other general agreement by the Seller and Purchaser, if any, constitutes the entire agreement between the Seller and Purchaser concerning the purchase by Purchaser of Seller's products. These Terms and Conditions and the obligations of Purchaser hereunder shall not be assigned, delegated, or transferred, by operation of law or otherwise, without the prior written consent of Seller.