GENERAL TERMS OF SALE
GENERAL TERMS OF SALE
1. SCOPE OF APPLICATION
These general GTS (hereinafter the «GTS») shall apply to all sales and purchases of our products (the “Product/s”) between Fluidra Export SAU, with registered address in Avda. Alcalde Barnils, 69, 08174 Sant Cugat del Vallès (Barcelona), Spain, and TIN A- 62.657.556 (the “Company”), and the purchasing party (the “Purchaser”) on the territory of worldwide (the “Territory”). The Purchaser may only acquire the Products subject to these GTS. Any terms and conditions other than these GTS shall not be binding, except where there is explicit written acceptance from both parties. Upon acceptance of any order (the “Order/s”), the Purchaser must have read and be aware of these GTS beforehand. Furthermore, the Purchaser acknowledges and accepts that the GTS shall form an integral part of its contractual relationship with the Company, whereby they shall be deemed to have been voluntarily and expressly accepted by the Purchaser without any reservation whatsoever by signing and/or placing any Order, or any other documents or agreements that are signed by the parties, or, if the contractual relationship has not been made in writing, from the time the Company has provided a copy of the GTS to the Purchaser and it has not expressed its opposition to them in writing within thirty (30) days.
The Company reserves the right to amend the GTS, whereby the GTS must be available and permanently updated. The parties agree that the amended GTS provided by the Company shall form an integral part of the contractual relationship between them, whereby they shall be deemed to have been voluntarily and expressly accepted by the Purchaser without any reservation whatsoever whether the Purchaser does not expressly declare opposition in writing within thirty (30) days from the time they had been provided by the Company.
Any of the Purchaser’s contractual terms and conditions or policies are expressly excluded following the implementation of these GTS. Furthermore, these GTS shall cancel and replace any earlier general terms or agreements, whether written or verbal, which shall become null and void.
The Company may, at its sole discretion, accept and/or reject any Order received from the Purchaser. The Company reserves the right to make any appropriate changes to the Products from its catalog at any time, the features of its Products, and even to stop their production, replace them or remove them from the catalog. The Purchaser acknowledges and accepts the foregoing and therefore this can involve modifications to the Orders. The purchase shall be deemed to have been performed from the time an Order has been accepted by means of written notification by the Company to the Purchaser.
To avoid errors and improve the way orders are handled, they must be submitted in writing to our Customer Service, via email or by calling (+34) 937 24 39 00.
Regarding a certain specific category of the Product, the Company reserves the right to prohibit their resale via third-party platforms.
3. COMMERCIAL TERMS AND CONDITIONS
Unless otherwise agreed in writing, our prices shall always be deemed Ex works (Incoterms 2020), including packaging, whereby the Purchaser must pay all taxes, levies, duties, costs and any other expenses, whether general or special.
The current prices of the catalog or those subject to a special agreement between the parties at the moment of accepting the Order shall apply. Notwithstanding the foregoing, the Company reserves the right to review prices at any time at its own discretion. All prices shall be deemed to be net, in euros and with no discount.
The Company reserves the right to annually amend the commercial terms and conditions agreed upon with the Purchaser due to changes in the Company’s in-house policy. In such an event, the Company shall inform the Purchaser of these changes.
4. SHIPPING AND FREIGHT CHARGES
Products shall be shipped at the expense and risk of the Purchaser, including carriage-paid deliveries. Any additional expense not covered in our prices (sea freight packaging, special unloading methods, dispatch of goods as baggage, air freight, etc.) shall be always deemed at the expense and risk of the Purchaser. For shipments of Products outside the Territory, a special shipment quote must be requested which shall always be at the Purchaser’s expense, based on, unless otherwise agreed upon, the following:
The Company reserves the right to unilaterally modify the prices above mentioned.
In respect of the matters not provided by the provisions of this section, the current rules for national and international transport shall be applied.
Unless otherwise agreed in writing, the date and place of delivery shall be deemed to be the time the Products leave the Company’s warehouses (Ex Works – Incoterms 2020). Orders shall be delivered from one to three weeks following the acceptance of the Order by the Purchaser provided that the Company has sufficient stock to meet Purchaser demand. For the sake of clarity, the acceptance of the Order by the Purchaser shall be deemed given by the sending of the signed proforma invoice to the Company or through email confirmation from the purchaser. If the Company will be unable to meet a delivery deadline, it shall confirm the delivery time as soon as possible.
The delivery deadline above mentioned should not be applied for Products MTO (“Make To Order”). For these Products, the delivery deadline shall be specified on a case-by-case basis.
Failure to comply with the delivery schedule for reasons beyond the Company's control, including but not limited to, delays due to accidental reasons or beyond the control of the Company and/or due to force majeure or if the Purchaser has not fulfilled all or part of its obligations, shall not entitle the Purchaser to cancel the Order or to claim any type of indemnity or compensation, by expressly waiving any rights to claim.
The Company hereby informs the Purchaser that it is possible that any given Order may be divided into several deliveries.
The date and place of delivery shall always be deemed as the time Products leaves the Company’s warehouses (Ex Works).
The Company will indicate on the proforma invoice the date of delivery. However, the Company will inform the Purchaser once the Products relating to an Order are prepared for delivery. Upon such communication, the Purchaser may have a period of grace of thirty (30) days (“Grace Period”) to collect the referred Products. After expiry of the Grace Period, if the Purchaser has not collected the Products relating to an Order at the Company’s warehouses, the Company shall cancel the Order and free the Products related thereto for other sales. If the Purchaser intends to acquire such Products a new order with the updated price conditions will need to be issued.
In case some Products relating to an Order remain on the loading dock once a delivery has been performed, the Company will notify such circumstance to the Purchaser by email and the Purchaser will be given five (5) business days to indicate (a) if the Company should send them to the indicated address, (b) if the Company should send them together with the delivery of the next Order (which will not exceed a two (2) month period as of such date), or (c) partially cancel the Order in respect of such Products. In case the Purchaser does not indicate any option, the Company will apply the one it deems most convenient.
Notwithstanding the above, the Company and the Purchaser may, however, decide that the Products shall be delivered under the regime of another Incoterm (CCI version 2020). In this case, the Incoterm shall set out the method and cost of transport, payment of customs duties and the time of transfer of risk for the Products.
If the chosen Incoterm implies that the Company is responsible and bears the risk of the Products, the Company shall freely organize carriage of the Products.
The Purchaser must examine Products in its warehouse in front of the carrier to check that they are in a good state of repair. Should the Purchaser detect any defect or damage in the packaging, it shall be indicated on the delivery note (“Delivery Note”). In the event of any incident upon receipt of the Product, it has to be recorded in the carrier’s delivery document and the Purchaser shall inform the customer service of the Company within twenty-four (24) hours in order to process the relevant claim.
Notwithstanding the foregoing, if unpacking the Product, the Purchaser detects any defect such as a dent, breakage, signs that it had been opened or otherwise damaged due to shipping, the Purchaser undertakes to inform the CMompany within four (4) working days following the delivery of the Product. If the damage is caused by reasons attributable to the Company, the provisions set out in article 6 and in article 8 (under section “Returns of defective or non-compliant Products, (i) For Products under warranty”) shall apply. In this event, the Delivery Note number must be stated.
It shall be understood that the Purchaser has accepted a delivery in the following cases: (i) it has expressly accepted it; (ii) it fails to report defects within the above deadlines; (iii) the Product has been sold or distributed.
The Company warrants that, on delivery, the Products shall (i) conform in all material respects with their description in the Company’s published specification; and (ii) be free from material defects in design, material and manufacture. The general warranty period is two (2) years from the date of delivery in compliance with the national provisions in force regarding the consumer's legal rights.
For the rest of the Products not subject to the scope of the consumer's legal rights, a specific warranty shall be established on a case-by-case basis, as indicated on the corresponding warranty card or certificate, or on any other of the Company’s official documentation. For the avoidance of doubt, these specifics warranties may set out longer deadlines.
In order for this warranty to become effective, the Purchaser must provide evidence of the date of the Product’s purchase and receipt. Furthermore, for this warranty to be valid, the Purchaser must strictly follow the Manufacturer’s instructions included in the documentation that comes with the Product.
No warranty is extended on the Products’ normal wear and tear.
Consumables and perishable components, including but not limited to, light bulbs, rubber parts and batteries, are totally excluded from this warranty whereby they shall be subject, if applicable, to the provisions in the documentation that comes with these consumables and perishable components.
The parts that are replaced or repaired under this warranty shall not extend the term of the original Product warranty, although such parts shall be subject to a separate warranty.
This warranty does not cover any defects or deterioration caused by the Product’s unsuitability for the end user’s needs, by normal wear, negligence, incorrect installation or by any use that does not comply with the recommendations stipulated in the user manual or in the studies and instructions issued by the Company, by maintenance operations non- compliant with the user manual provided at the time of sale and/or by a handling accident or incorrect storage.
This warranty shall not cover obvious defects for which any claim must be submitted by the Purchaser over the four (4) days following the delivery of a Product as described in article 5 above.
In the event that the Purchaser resold the Products outside of Spanish territory, the warranty claim procedure shall be subject to the Group’s internal policies, the different availability of service engineers and the binding rules that apply in each case, for the purposes of which the Company must be contacted through the procedures set forth in article 8.
Unless otherwise agreed in writing, all payments must have been made by bank transfer or letter of credit at the time the Product leave the warehouse in Spain. Pursuant to the stipulations of article 3, expenses, duties and taxes shall be borne by the Purchaser.
A delay in payment or in the acceptance of payment shall give rise to a 2% monthly rate of interest on the price of a Product from the time of the payment due date, without the need for notifications or summons being served on the Purchaser. Any modification to the method and/or due date of payment must be authorized in writing by the Company.
Furthermore, the Purchaser must pay the Company damages for, amongst others, bank fees and legal costs arising from returned payments, defaults and non-payment claims, MTO items cancelled by the Purchaser once the order is confirmed will be charged at the value of the item.
8. RETURNS, REPAIRS AND CLAIMS
Returns of Products in a good state of repair and/or compliant
Notwithstanding the stipulations below in respect of defective or non- compliant Products, all Products may be returned and refunded, provided the Purchaser fulfills the conditions listed below.
In such cases, the Purchaser shall be notified in advance of the shipping and return costs, which shall be at its expenses.
To do so, the Purchaser must inform the Company of its intention to return a Product within one (1) month from the date of delivery, subject to the following conditions:
1. Include the number of the Delivery Note.
2. Products must be returned in the same state of repair as when they were delivered and bear their original labels.
3. The same packaging must be used for returning Products as when they were delivered, failing which, similar packaging that ensures they are returned in a perfect state of repair must be used.
4. Customer Service must be contacted by phone or by email written at email@example.com, in order to obtain a claim number in order to track the status of the return through either of the following methods:
• The Purchaser may ship the Product freight prepaid to our nearest branch office.
• The Products can be collected by the Company at the Purchaser’s facilities, with shipping costs whenever applicable.
Returns shall not be accepted if one (1) month has elapsed from the date of the Delivery Note to the date a claim is lodged. If by commercial decision a return is accepted after this deadline, a 10% restocking fee shall be charged. Under no circumstances shall the return of a Product be accepted after three (3) months since the date of delivery.
No returns shall be accepted for work or customized products that match the characteristics, designs and projects requested by the Purchaser.
Likewise, discontinued Products may not be returned.
Returns of defective or non-compliant Products.
(i) For Products under warranty:
If a Product is determined to be defective or not compliant with what has been requested, for reasons attributable to the Company, the Purchaser may require the Company to replace the Product.
No Product shall be accepted for replacement that does not come with the Claim Form provided by Customer Service to the Purchaser.
In order to perform the replacement above mentioned, the Purchaser has to options:
a. The Product shall be shipped by the Company in the next shipment, following the receipt of the Claim Form by the Company.
b. If the Purchaser has the Product available in its warehouse, the replacement can be performed in a such way, and a credit note must be issued by the Company to the Purchaser.
In the event of a replacement of a Product (whether the Purchaser has chosen option a or option b), the defective or non-compliant Product shall be destroyed and a picture shall be sent to the Company as evidence for the destruction.
(ii) For Products NOT under warranty:
For Products that are not under warranty, the Company shall proceed as in the above case but shall send a quote for the repair that must be accepted. The quote shall be valid for twenty-five (25) calendar days from its date of issue.
Should the Purchaser reject a quote and request the return of the Product, it shall be subject to a “QUOTE NOT ACCEPTED” charge including any costs relating to such return.
Notwithstanding any other actions, the Company reserves the right to terminate or cancel any transaction in the event of a breach of these GTS, as well in the case of non-payment by the Purchaser, a delay in the payment of previous deliveries, and if the Purchaser was subject to any enforcement procedure.
In the event of withdrawal or cancellation by the Purchaser of an Order without the Company’s prior approval, the Purchaser must pay to the Company an amount equivalent to 20% of the value of the Products subject to withdrawal or cancellation, notwithstanding the Company’s right to claim for damages for such cancellations.
10. INTELLECTUAL AND INDUSTRIAL PROPERTY
The Company owns and retains an exclusive right, title and interest to the Products that includes, but are not limited to, patents, trademarks, logos, symbols, trade names, photographs, plans, presentations (the “Intellectual Property Rights”).
The Purchaser expressly acknowledges and agrees the ownership of these rights and shall not acquire any Intellectual or Industrial Property Rights whatsoever arising from these GTS. The Purchaser shall refrain from disputing the right of the Company to the Intellectual Property Rights, and from registering or having registered in any country any Intellectual Property Rights whatsoever for the Products. Nothing in these GTS provides for a transfer of licenses for a brand or a transfer of any of the Intellectual Property Rights.
All information disclosed for the purposes of the contractual relationship by either of the parties shall be their property, and no license shall be deemed as arising from the exchange of information between the parties. Neither party may, under any circumstances whatsoever, file an application for the registration of the Intellectual Property Rights that may arise from the information provided by the other party.
Furthermore, pursuant to these GTS the Purchaser undertakes and accepts NOT TO APPLY for the registration of any Domain Name that includes, whether in part or in full, the trademarks that belong to the Company and/or the Fluidra Group. This undertaking extends to all of the countries in which the Company and/or the Fluidra Group holds registered trademarks by virtue of the laws in force. The Purchaser likewise expressly waives all rights that may arise from the use of the Company and/or the Fluidra Group’s trademarks.
Should the Purchaser breach this clause, the Company reserves the right to unilaterally terminate these GTS, in addition to taking any legal actions that it deemed appropriate.
11. CONFIDENTIALITY AND PERSONAL DATA PROTECTION
The Purchaser shall keep strictly confidential any of the information disclosed by the Company or its representatives, whereby it undertakes to prevent its disclosure and use the information in strict compliance with what has been agreed upon to this regard.
We hereby inform you that your personal data shall be processed by Fluidra Export ("the Data Controller"), located at Avda. Alcalde Barnils, 69, 08174 Sant Cugat del Vallès (Barcelona), Spain, and holder of TIN A-62.657.556.
Your data shall be processed for the purpose of handling the purchase of the Products.
The legitimacy of the processing of your data is the performance of the contractual obligations arising from the purchase of Products sold by the Data Controller or other companies in the Fluidra Group.
Your data shall not be assigned, sold, leased or in any other way whatsoever made available to third parties, except in the case of service providers of the Data Controller that render certain services to the Data Controller, but under no circumstances shall they process them for their own ends. Some of these service providers may be based outside of the European Union, as stated below.
The Data Controller, as a company with international outreach, has international service providers that may render their services from outside the EU, therefore it is possible that your data may be transferred outside of the European Union or the European Economic Area.
In any event, the Data Controller shall ensure that such data processing is protected by the appropriate safeguards, which may include:
- Standard clauses approved by the EU. These are contractual clauses approved by the European supervisory authority that provide sufficient safeguards to ensure that data processing complies with the requirements established by the European Data Protection Regulation.
- Third-party certification. Privacy Shield, for example, is a framework agreement between the EU and the United States that set out the standards for processing data in compliance with the European Data Protection Regulation.
All data shall be processed for the time required to deal with the purchase made under these GTS.
Once the term specified in this section has come to an end, the Controller Data shall keep your personal data anonymous for statistical purposes or market surveys, whenever possible, or duly blocked in order to comply with any legal obligations.
You may at any time withdraw your consent to your data being processed for any of the above purposes.
You make likewise exercise your rights of data access, rectification, cancellation/deletion, objection, restriction of the processing or portability, by writing to FLUIDRA, SA, Avda. Alcalde Barnils, 69, 08714, Sant Cugat del Vallès, with the subject line “Datos Personales Condiciones Generales de Venta” or an email to firstname.lastname@example.org.
Should you have any inquiries about how we process your personal data, or any other questions related to this matter, you may contact our Data Protection Officer at Avda. Alcalde Barnils, 69, 08714, Sant Cugat del Vallès (Barcelona), with the subject line or addressed for the attention of “Delegado de Protección de Datos”, or by writing an email to email@example.com.
12. RETENTION OF TITLE
The Company reserves the right of ownership of all Products sold until the Purchaser has paid the price in full and, until then, the Company may remove the Products from the Purchaser’s facilities.
The Company assumes no liability for any indirect, special or incidental damages that may arise as a consequence of the supply of the Products, including, but not limited to, downtime, loss of earnings, loss of business opportunities, the loss of actual or anticipated profits, reputational risk or the loss of goodwill. The Company’s total liability arising from the supply of any nature whatsoever shall be limited to the value of a Product that may give rise to a claim.
14. SANCTIONS, ANTI-CORRUPTION AND ANTI-BRIBERY POLICY
The Company hereby states that it complies and shall comply with the regulations on international economic sanction regimes, in particular, with the sanction regimes imposed by the United States, the European Union and the United Nations. For this purpose, the Company hereby states that it is subject to Fluidra’s Sanctions Policy and that all its employees shall follow the instructions given by Fluidra for sanctions policy.
Therefore, the Company shall not make transactions in territories with comprehensive sanctions as described in Fluidra’s Sanctions Policy, and it shall conduct the enhanced due diligence checks set forth in the Sanctions Policy to conduct transactions in countries with selective sanctions and high-risk countries.
As a consequence of enforcing this policy, the Company reserves the right to reject any Order, whether the delivery of materials, projects, services, etc. may, in its opinion, involve a breach of the Sanction Policy.
Furthermore, pursuant to the principle of zero tolerance in respect of corruption and bribery, the Company shall not allow any type of relationship to be entered into or maintained, either internally or with third parties, whether with individuals or public bodies, that may entail a breach of the aforementioned regulation. Likewise, whenever local regulations are stricter or more restrictive than those to which the Company is subject, as an entity with registered address in and subject to the laws of Spain, the most restrictive shall apply.
The Purchaser shall comply with all laws regarding economic or trade embargoes and sanctions laws that are applicable to its activity ("Sanctions Regulations"). The Purchaser declares that it is not a listed person nor owned or controlled by a listed person under any of the Sanctions Regulations. Furthermore, the Purchaser shall refrain from directly or indirectly selling the products and/or services sold or rendered by the Company or any of its affiliates into the territories of Cuba, Iran, Crimea (Region of Ukraine), North Korea and Syria, nor to any customer established in those territories. The Company shall have (i) the right to terminate or suspend its business relationship with the Purchaser arising from the Purchaser’s violation of Sanctions Regulations, the business relationship violating Sanctions Regulations or the Purchaser selling products and/or services sold or rendered by the Company in the mentioned territories or to customers located in such territories and (ii) claim compensation for losses and damages arising from the Purchaser´s violation.
If one or several provisions of the GTS become null and void the validity of the rest of the contractual relationship between the parties, shall not be affected.
16. JURISDICTION AND GOVERNING LAW
Any disputes between the parties shall be submitted to the exclusive jurisdiction of the Courts and Tribunals of Sabadell. These GTS shall be governed by Spanish law.
The GTS may be translated into any other language for practical purposes, but the Spanish version shall prevail in the event of any discrepancies.