Cocktail Pools® Terms & Conditions.
WHEREAS Buyer desires to provide swimming pools and associated structures to consumers as part of properties it builds or directly or indirectly for sale to consumers;
WHEREAS Supplier is a business that designs, manufactures, produces, and sells pre-cast swimming pools and associated structures having unique and patent-pending attributes that distinguish them from competitive products;
AND WHEREAS Buyer desires to engage Supplier as its supplier of swimming pools and associated structures;
NOW THEREFORE in consideration of the mutual promises contained herein and for other good and valuable consideration, the parties, intending to be legally bound, hereby agree as follows:
1. Scope of Agreement
a. This Agreement consists of a Purchase Order and these Cocktail Pools Terms & Conditions. In the event of any conflict or inconsistency between the terms and conditions stated in the Purchase Order and these Cocktail Pools Terms & Conditions, the terms and conditions of the Purchase Order shall take precedence and govern over these Cocktail Pools Terms & Conditions to the extent of such conflict or inconsistency.
b. This Agreement concerns Supplier’s design, manufacture, production, and customization for Buyer of pre-cast concrete swimming pools and associated structures and components stated in a Purchase Order (hereinafter “Products”), and Supplier’s labor, consultation, assistance and other services performed by Supplier for Buyer in support of its production and delivery of Products (hereinafter “Services”).
c. Supplier shall manufacture Products and deliver Services for Buyer in accordance with the requirements of a Purchase Order. Buyer may choose from among pre-built Products or may request that Supplier design and/or customize Products that meet its bespoke specifications as documented in a Purchase Order.
d. Transportation and delivery of the Products to Buyer’s site(s), excavation, installation, wiring, training, and all other services and activities related to the Products shall be Buyer’s responsibility and are not obligations of Supplier under this Agreement, unless stated otherwise in a Purchase Order. Supplier will work with Buyer to identify 3rd parties to perform these services. If a Purchase Order calls for Supplier to provide such services, Supplier will administer, oversee and manage 3rd parties with whom Buyer contracts on an at-cost basis. Supplier shall not be deemed a party of a contract between Buyer and the 3rd party services provider.
2. Forecasts
a. Every month during the term of this Agreement, beginning upon its Effective Date, Buyer shall provide, and Supplier shall assist Buyer in providing, a written, non-binding, non-prejudicial, good faith estimate of the number and types of Products and Services that Buyer anticipates requiring for its purposes over the coming six (6) months (a “Forecast”). Forecasts shall not constitute a Purchase Order. Supplier shall use the Forecast in its capacity-planning for the production and delivery of Products. Each such successive monthly forecast may be revised from the previous forecast by any amounts or combinations, taking into account factors that include but are not limited to market conditions, housing construction plans, building rates, costs of labor and materials, Products in-process and other factors related to Buyer’s business.
b. Supplier may, within 15 business days of its receipt of any Forecast, notify Buyer in writing that it will not be able to meet the demand for Products or Services described in the Forecast. Supplier’s notification will specify its expected shortfall or other inability to conform with the Forecast, based upon its current and anticipated capacity and capability. Supplier and Buyer shall negotiate in good faith to identify ways of addressing the shortfall or non-conformance.
3. Purchase Orders
a. All material terms related to specifications, volumes, shipping, storage, prices, payment terms, schedules, and other essential terms concerning the production, delivery, and payment for Products and Services will be as described in a Purchase Order. To create any specific binding obligations under this Agreement, a Purchase Order must be in writing and signed and dated by both parties. The Purchase Order is the final, definite statement of production, delivery, and payment obligations regarding the ordered Products and Services and can only be amended in a subsequent writing signed by both parties.
b. Pricing stated in a Purchase Order and will reflect Supplier’s then-current rate and price list and Supplier shall produce and deliver all Products and Services at the then-current rates and prices. The Purchase Order will state and include any State, federal or other taxes for providing the Products and Services.
4. Pricing
a. Beginning upon the Effective Date, Supplier shall provide Buyer with a written description of its rates and prices for Products and Services. From time to time during the Term of the Agreement and based upon its own demonstrable costs of providing such Products and Services, Supplier may increase the rates and prices it charges Buyer upon one month’s prior written notice to Buyer detailing the amounts and reasons for the increase(s).
5. Delivery, Acceptance and Risk
a. The Products shall be delivered Free On Board (FOB) at the Supplier's facility described in the Purchase Order. Unless otherwise specified in a Purchase Order, Buyer shall arrange for transportation of the Products to the location(s) specified by the Buyer in each Purchase Order. Title and risk of loss of the Products shall pass from the Supplier to the Buyer upon Product(s) availability at the point of shipment.
b. The Buyer is responsible for obtaining appropriate insurance to cover the transportation of the Products from the Supplier's facility to the Buyer's specified location.
c. Prior to Product(s) leaving the manufacturing facility, Buyer or Buyer’s authorized representative shall inspect the Product(s) for conformity with the Purchase Order. Unless the Buyer provides the Supplier with notice of any non-conformity within 24 after its inspection of the Products, the Products shall be deemed accepted by the Buyer. Notification may occur by means of email or telephone or other electronic means and must be confirmed contemporaneously via US postal or other delivery service within a reasonable period thereafter. If any Products are found to be non-conforming, the Buyer shall inform the Supplier in writing, providing detailed reasons for the nonconformity. The Supplier shall then have the opportunity to timely repair or replace the non-conforming Products at its own cost and discretion.
6. Warranties
a. Supplier represents and warrants that the Products will be fit for their intended use, merchantable, and free from material defects in design, material, and workmanship. The Products will not spall or show visible cracking beyond the accepted industry standards for precast concrete pools, split, deform, or loosen for a period of one (1) year from the date of their delivery.
b. Craze cracking or non-structural shrinkage cracks are normal and are not covered by this or any other warranty. Only structural cracks defined as those cracks large enough whereby a dime coin can be inserted into the crack without effort shall be covered under the Product warranty.
c. This warranty is contingent upon the Products being installed properly by professionals who are appropriately licensed for such installations. Products must be installed following engineering requirements as provided with each pool. Failure to install the Product as specified will void this warranty.
d. This warranty applies solely to the swimming pool shell that is manufactured by the Supplier. Any ancillary equipment or systems that are not produced by the Supplier are not covered under this warranty. Any Services provided by the Supplier, as detailed in each individual Purchase Order, may also be covered by a warranty. The specifics of this warranty will be individually stated in each Purchase Order.
e. The warranty provided by the Supplier does not apply to any damage to the Products resulting from misuse, alteration, transportation, or negligence by any party other than the Supplier. The Buyer or end user's failure to properly maintain the Products may also result in the warranty being voided. The warranty does not include and or encompass any finish applied to the surface of a Cocktail Pool. This includes any and all plaster / cementitious surface finishes, paint finishes or other finishes of any kind. Any plumbing or equipment attached to and or connected to a Cocktail Pool by others is not warrantied by Cocktail Pool and or Manufacturer in any way.
f. In the event that any of the Products fail to conform to the warranties provided herein, Supplier shall have the option, at its sole discretion, to either repair or replace the non-conforming Products at no cost to the Buyer or Buyer’s customers. The Supplier reserves the right to determine the method of repair to ensure structural soundness. If the Supplier chooses to repair the non-conforming Products, it will do so in a manner and on a timeline reasonably acceptable to the Buyer. The Buyer shall give the Supplier reasonable access to the non-conforming Products for the purpose of repair or replacement. If the Supplier is unable to repair or replace the non-conforming Products within a reasonable period of time, the Buyer may return the non-conforming Products at the Supplier's expense and receive a full refund of the purchase price. This shall be the Buyer's sole and exclusive remedy for any non-conforming Products.
g. Any warranties provided by the Supplier to the Buyer under this Agreement for the Products or Services may be passed through by the Buyer to its customers. The Supplier authorizes the Buyer to make such warranty commitments to its customers on the Supplier's behalf. The Buyer agrees to make its customers aware of the terms and limitations of the Supplier's warranty and to not make any additional warranties or representations regarding the Products or Services beyond those provided by the Supplier. This pass-through warranty does not create any additional liability for the Supplier beyond the original warranty provided to the Buyer under this Agreement.
7. Limitation on Liability
a. Notwithstanding anything to the contrary in this Agreement, Supplier's total liability to the Buyer for any claim arising out of or in connection with this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amounts paid by the Buyer to the Supplier pursuant to the specific Purchase Order to which the claim relates.
b. Supplier shall not be liable for any indirect, incidental, consequential, reliance, special or punitive damages of any kind or nature, including but not limited to loss of profits, loss of use, business interruptions, loss of data, cost of cover or similar economic loss, whether or not the Supplier was advised of the possibility of such losses or damages.
c. This limitation of liability applies to all claims of damages, whether those claims are for breaches of contract, negligence, or other torts, and regardless of the theory of liability. The parties agree that these limitations of liability are an essential element of the bargain between the parties and that the pricing and other terms of this Agreement reflect such limitations.
8. Term
a. The initial term of this Agreement shall commence on the Effective Date and will continue for a period of one (1) year from the Effective Date (the "Term"). This Agreement will automatically renew on the same terms and conditions herein for an additional one (1) year period at the end of the Term, and each such renewal period shall be subsequently designated a "Term". Either party may, upon thirty (30) days prior to the end of any Term, give written notice to the other party of its intent not to renew the Agreement, in which case the Agreement shall terminate at the end of the Term.
9. Termination
a. Either party may terminate this Agreement by providing written notice to the other party in the event of a material breach of any provision of this Agreement by the other party, provided that the breaching party has failed to cure such breach within thirty (30) days after receiving written notice specifying the nature of the breach.
b. In addition to the above, either party may terminate this Agreement if:
i. The other party becomes insolvent, or a petition for bankruptcy is filed by or against the other party;
ii. The other party ceases to carry on its business operations; or
iii. The other party fails to fulfill its obligations under this Agreement due to force majeure events for a continuous period of more than ninety (90) days.
c. Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for those that expressly survive termination. Both parties shall promptly return or destroy all Confidential Information of the other party, including any copies or extracts thereof, and provide written certification of such return or destruction upon request.
d. Termination of this Agreement shall not relieve either party from any liability or obligation incurred prior to the effective date of termination. Any termination of this Agreement shall be without prejudice to any other rights or remedies that either party may be entitled to at law or in equity.
e. If Buyer terminates this Agreement or terminates any Purchase Order prior to its fulfillment, Buyer shall forfeit any amounts paid to Supplier as a deposit pursuant to the then-effective Purchase Order. Supplier may, in its sole discretion, apply such amounts to future Purchase Orders between Supplier and Buyer.
10. Confidentiality
a. During the term of this Agreement and for a period of five (5) years thereafter, both parties agree to maintain the confidentiality of any and all confidential information disclosed by the other party. "Confidential Information" includes, but is not limited to, trade secrets, proprietary information, customer lists, pricing information, business plans, and any other non-public information that is disclosed in connection with this Agreement.
b. Each party shall use the same degree of care to protect the other party's confidential information as it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Neither party shall disclose or use the other party's confidential information for any purpose other than as necessary to perform its obligations under this Agreement.
c. The obligations of confidentiality shall not apply to any information that: (a) was already in the possession of the receiving party without an obligation of confidentiality prior to its disclosure by the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is independently developed by the receiving party without reference to the disclosing party's confidential information; (d) is lawfully obtained from a third party without an obligation of confidentiality; or (e) is required to be disclosed by applicable law or court order, provided that the receiving party shall give the disclosing party prompt written notice of such requirement to allow the disclosing party to seek a protective order or other appropriate remedies.
d. Upon termination or expiration of this Agreement, each party shall promptly return or destroy all confidential information of the other party, including any copies or extracts thereof, and shall provide written certification of such return or destruction upon request.
e. The obligations of confidentiality set forth in this clause shall survive the termination or expiration of this Agreement.
11. Publicity
a. Each party acknowledges that the terms and existence of this Agreement are considered confidential. However, either party may disclose or announce the existence of this Agreement to third parties, including but not limited to, potential customers, business partners, investors, or as required by law. Such disclosure or announcement can only be made upon obtaining the written agreement of the other party, which is referred to as the non-disclosing party in this context. The non-disclosing party has the right to review and approve the substance and form of any such disclosure or announcement prior to its release. This approval should not be unreasonably withheld, delayed, or conditioned. This clause is intended to protect the interests of both parties and does not prevent either party from fulfilling any legal or regulatory obligations related to disclosure of the Agreement.
12. Intellectual Property
a. All intellectual property rights, including but not limited to patents, designs, trademarks, copyrights, and trade secrets, related to the Products and Services provided under this Agreement, are and shall remain the exclusive property of the Supplier. Nothing in this Agreement shall be construed as transferring or granting, either expressly or by implication, estoppel or otherwise, any license or right to use any such intellectual property rights. Buyer agrees not to claim any right, title, or interest in any such intellectual property rights and acknowledges that no such rights are granted under this Agreement.
13. Indemnification
a. Supplier shall indemnify, defend, and hold harmless Buyer from and against any and all claims, liabilities, damages, losses, costs, or expenses, including but not limited to reasonable attorney's fees and court costs, arising out of or in connection with any intellectual property claims, breach of warranty, or negligence claims arising from the Supplier's provision of Products or Services under this Agreement. This includes but is not limited to any claims that the Products or Services infringe upon any third-party intellectual property rights.
b. Buyer shall indemnify, defend, and hold harmless the Supplier from and against any and all claims, liabilities, damages, losses, costs, or expenses, including but not limited to reasonable attorney's fees and court costs, arising out of or in connection with any negligence on the part of the Buyer or any claims by persons or entities to whom the Buyer subsequently sells property that includes the Products or Services. This specifically includes any claims related to any personal injury or drowning incidents related to the Products that were sold or installed by the Buyer.
c. Moreover, each Party shall indemnify and hold harmless the other Party from and against any claims, liabilities, damages, losses, costs, or expenses arising out of or in connection with the actions or omissions of its employees, agents, or contractors. This includes, but is not limited to, any actions or omissions that result in damage to property, personal injury, or death.
d. These indemnity obligations shall survive the termination or expiration of this Agreement. The indemnifying party shall have the right to control the defense of any such claim or action, and the indemnified party shall cooperate in the defense as may be reasonably requested by the indemnifying party.
14. Independent Contractor
a. The parties to this Agreement acknowledge and agree that their relationship is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship between the parties. Each party shall act solely as an independent contractor and shall have no authority to bind or obligate the other party in any manner.
b. Each party shall have full control and direction over its own activities and operations. Neither party shall have the right or authority to control or direct the activities or operations of the other party, except as expressly provided in this Agreement.
c. Each party shall be solely responsible for its own taxes, including, but not limited to, income taxes, employment taxes, and any other taxes or contributions required by applicable law. Each party shall also be responsible for providing and maintaining any necessary insurance coverage for its own employees or contractors, including workers' compensation insurance.
15. Assignment
a. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement to a successor in interest as a result of a merger, acquisition, or sale of all or substantially all of its assets, without the consent of the other party. Any purported assignment or delegation in violation of this provision shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
16. Digital Signatures
a. This Agreement, along with any Purchase Orders or other related documentation issued pursuant to it, may be signed and executed digitally. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. The execution and delivery of this Agreement and any related Purchase Orders may be conducted by electronic means, in compliance with the Electronic Signatures in Global and National Commerce Act (the "E-Sign Act"), Florida's Uniform Electronic Transaction Act ("FUETA"), and any other applicable laws or regulations governing electronic signatures and transactions.
17. Severability
a. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. However, any invalid, illegal, or unenforceable provision shall be modified or interpreted to the extent necessary to make it valid, legal, and enforceable, while preserving the parties' original intent to the maximum extent possible.
18. Survival
a. The termination or expiration of this Agreement shall not affect the rights and obligations of the parties that, by their nature, should survive such termination or expiration, including but not limited to Sections 7, 10, 12, 1313, and 14.
19. Headings
a. The headings used in this Agreement are for convenience purposes only and shall not be deemed to affect the interpretation or construction of any provision herein.
20. Notices
a. Any notice, demand, request, consent, or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or sent by registered or certified mail, postage prepaid, or by email to the following addresses:
To Buyer based on the email address on Purchase Order
To Supplier:
Email: legal@cocktailpools.com
b. Either party may change its address for notice by giving written notice of such change to the other party in accordance with this clause. Notice given by personal delivery or registered or certified mail shall be effective upon receipt, and notice given by email shall be effective upon transmission, provided that the sender obtains confirmation of successful transmission.
c. Any notice or communication sent by email shall be deemed to have been received on the first business day after transmission, unless the sender receives a delivery failure notification or other indication that the email was not successfully transmitted.
21. No Presumption
a. Any ambiguity or uncertainty in the interpretation of this Agreement shall not be construed against the drafter. The parties agree that they have had the opportunity to review and negotiate the terms of this Agreement, and any resulting ambiguity or uncertainty shall not be resolved in favor of or against either party solely based on which party drafted the language in question.
22. Counterparts
a. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Each counterpart may be executed and delivered by facsimile, email, or any other electronic means and shall be binding upon the party executing the same, notwithstanding that such counterpart is not physically signed or delivered by the other party.
23. Force Majeure
a. Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement due to any event beyond its reasonable control, including but not limited to acts of God, war, terrorism, fire, flood, natural disasters, strikes, labor disputes, governmental actions, pandemics or epidemics, or any other event that is unforeseeable and beyond the control of the parties (each, a "Force Majeure Event"). In the event of a Force Majeure Event, the affected party shall promptly notify the other party in writing of the occurrence and the anticipated duration of the Force Majeure Event. The performance of the affected party's obligations under this Agreement shall be suspended for the duration of the Force Majeure Event. The affected party shall use commercially reasonable efforts to mitigate the impact of the Force Majeure Event and resume full performance of its obligations as soon as reasonably practicable after the Force Majeure Event has ceased. If the Force Majeure Event continues for a period of more than ninety (90) days, either party may terminate this Agreement upon written notice to the other party without liability.
24. Governing law
a. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. Any legal action, suit, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal or state courts located within the State of Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action, suit, or proceeding.
25. Integration
a. This Agreement, including all attached Purchase Orders and any subsequent amendments or modifications made in writing and signed by both parties, constitutes the entire agreement between the Buyer and the Supplier with respect to the subject matter hereof and supersedes all prior agreements, understandings, and negotiations, whether oral or written. No other representations, warranties, or commitments, whether express or implied, shall be binding unless specifically set forth in this Agreement.