GENERAL TERMS AND CONDITIONS OF SALE (IN FORCE FROM JANUARY 1, 2023)

ARTICLE 1: Definitions

“Buyer(s)” means any professional natural or legal purchasing person wishing to acquire one or more Product(s) or Services offered by the Company.

“Company” means PCFR, a simplified joint-stock company (société par actions simplifiée) with a capital of €779,800 with their head office at 130, boulevard du Nord – 84 160 Cucuron, registered with the Avignon Trade and Companies Register under number 514 992 494, and represented by Lane HOY, as President.

“General Terms and Conditions of Sale” (”GTCS”) means this document of general conditions which govern the sale of the Products by the Company.

“Order” means any order placed by a Buyer from among the Company’s Products and Services.

“Products” designates all the Products marketed by the Company and listed in its catalogue, subject to available stock.

“Services” means all available Services as provided by the Company and presented in their catalogue.

 

ARTICLE 2: Purpose and scope

These General Terms and Conditions of Sale are, pursuant to Article L 441-6 of the French Commercial Code, the sole basis of the commercial relationship between the parties. The General Terms and Conditions of Sale apply to all sales of Products and Services by the Company to Buyers.

These GTCS are systematically communicated to any Buyer who so requests, to enable them to place an order with the Company.

They are also communicated to any distributor (excluding wholesalers) prior to the conclusion of any single agreement according to Articles L 441-3 and subsequent of the French Commercial Code, within the legal deadlines.

Any Order placed with the Company implies the Buyer’s unreserved acceptance of these GTCS.

These GTCS may be updated at any time; the version applicable is that in effect on the day a sale is concluded.

The information appearing in the Supplier’s catalogues, prospectus and prices are given for information only and may be updated at any time. The Company shall be entitled to make any changes they deem useful.

 

ARTICLE 3: Order

Orders may give rise, depending on the case, to an estimate issued by the Company or a purchase order issued by the Buyer.

QUOTE

Sales of Products and Services are deemed to be complete only after acceptance by the Buyer of the estimate issued by the Company, who shall specifically ensure the availability of the Products and Services requested.

Thus, the Buyer must return via email to the Company the estimate duly completed, dated and signed indicating their acceptance (hereinafter “Accepted estimate”) and provide all the information requested so that their Order can be correctly processed.

The estimate issued by the Company shall include a detailed description and figures of the Products and Services as requested by the Buyer.

Acceptance of the estimate by the Buyer means conclusion of the sale, making it irrevocable and final.

 

PURCHASE ORDER

The Buyer shall send via email to the Company a dated and signed purchase order, including a detailed and quantified description of the Products and Services required and more generally all the information necessary for the proper processing of their Order.

The taking into account and acceptance of the Order by the Company shall be confirmed via an email (hereinafter “Order Confirmation”).

Sales shall only be final after express written acceptance of the Order by the Company, who shall specifically verify the availability of the Products and Services requested.

 

Order Changes

Any changes to the Order requested by the Buyer shall only be taken into account within the limits of the Company’s possibilities and at the latter’s sole discretion, if they are notified in writing via email, at least eight (8) calendar days before the scheduled date for the delivery of the Products and Services ordered and after signature by the Buyer of a specific purchase order and possible amendment of the price.

 

Order cancellation

Should an Order be cancelled by the Buyer following its acceptance by the Company, less than ten (10) days before the scheduled date for the supply of the Products or Services ordered, for any reason whatsoever except force majeure:

• If a deposit has been paid for the Order, this shall be automatically acquired by the Company and shall not give rise to any reimbursement;
• If no deposit has been paid for the Order, an amount equivalent to 30% of the total amount of the Products or Services ordered shall be deemed due by the Company to the Buyer, and the Company shall invoice this as compensation for prejudice suffered.

 

ARTICLE 4: Price

The Products and Services offered by the Company shall be sold at the prices in force on the date of acceptance of the Order, as indicated on the Order Confirmation and/or the Estimate accepted by the Company.

Special pricing conditions may be applied depending on the specifics requested by the Buyer, and specifically concerning the delivery terms and times, or the payment terms and conditions. A specific commercial proposal shall then be sent to the Buyer.

The prices are expressed in Euros and are ex-works excluding taxes, delivery and packaging costs. They do not include transport, nor any customs fees and insurance which shall be the responsibility of the Buyer.

The delivery costs are indicated in the Company price list and the catalogue.

These prices are firm and non-revisable during their validity period, as indicated on the Accepted estimate or the Order Confirmation by the Company; the latter reserves the right, outside this period of validity, to amend the prices at any time. Any delay or no obvious manifestation by the company in no way means a waiver of the application of this indexation for payments, both currently and subsequently due.

Should any tax or contribution, specifically environmental once, be created or modified, upwards or downwards, this change may affect the sales price of the Products.

The Company reserves the right to increase the price of the Products in order to reflect any significant variation, upward or downward, in the cost of raw materials by notifying the Buyer about this at least three (3) months in advance. The prices thus modified shall apply to all orders placed after the entry into force of the price variation.

The Buyer may benefit from discounts and rebates appearing in the Company’s prices, depending on the quantities acquired or delivered by the latter at any single time and place, or on the regularity of Buyer Orders. Any decision to apply a discount, reduction, or sliding scale prices (percentage or fixed price), remains at the sole discretion of the Company, and this for the specific Order concerned. Any advantages granted to the Buyer for an order shall under no circumstances imply a right acquired for subsequent orders.

No discount shall be applied by the Supplier for payment before the date appearing on the invoice.

 

ARTICLE 5: Payment

A deposit amounting to a percentage of the total price of the Products and Services may be requested when placing the Order, the balance of the price shall be payable in full, on the day of delivery.

In all other cases, the price shall be payable in full on the due date which appears on the invoice, by direct debit or bank transfer to the account communicated by the Company for this purpose, without any discount, compensation, deduction or withholding.

Should there be late payment, even partial, the Buyer shall automatically be liable, from the first day of the delay, for penalties amounting to 6% of the amount due including tax of the unpaid sums and a lump sum indemnity for recovery costs of forty euros (€40). These penalties for late payment and this lump sum indemnity shall be automatically due to the Company without any prior formality or formal notice.

Any delay in payment, even partial, shall result in the suspension of the completion of the Order and the immediate payment of all sums due to the Company, without prejudice to any other action that the company may be entitled to bring.

Moreover, the Buyer shall immediately inform the Company of any financial difficulty and any risk of insolvency concerning them.

 

ARTICLE 6: Retention of title

The Products and Services sold are subject to retention of title until their full payment (including late payment penalties and all related costs, including collection fees), pursuant to article 2367 of the French Civil Code, and regardless of the delivery date.

Should there be failure to pay, even partially, the Company shall be entitled to claim the unpaid Products and Services, and the Buyer shall be required to return these upon the first request.

The Buyer shall preserve the Products and Services by taking all necessary care and shall refrain from reselling unpaid Products and Services, and they shall under no circumstances pledge or grant any security on unpaid stocks.

This right to claim shall be exercised even in the case of collective proceedings by the Buyer. In case of intervention by creditors of the Buyer, specifically the seizure of goods or the opening of collective proceedings, the latter shall immediately inform the Company by registered letter with acknowledgment of receipt, as well as the seizing creditors or the bodies representing the collective procedure.

The Buyer shall cover the costs resulting from the measures taken to put an end to this intervention, and specifically, those relating to any third party opposition.

The Buyer shall, therefore, include separately in their accounting the value of the Products and Services which are subject to a retention of title and shall ensure that the Products and Services are identifiable and individualised at all times, they shall refrain from transforming them or assembling them with other goods before full payment of the price to the Company.

The Buyer shall also insure, at their own expense, the Products and Services, for the benefit of the Company, using appropriate insurance, until the complete transfer of ownership and shall justify this upon simple request from the company.

Failing this, the Company shall be entitled to delay the delivery until this proof is presented.

 

ARTICLE 7: Delivery

Deadlines

The Products or Services acquired by the Buyer shall be delivered (or provided) within the time given on the accepted Estimate or the Order Confirmation, duly signed and accompanied, if applicable, by the deposit due on that date.

Delivery deadlines are not strict, and in no way bind the Company. No order may therefore be cancelled unilaterally by the Buyer for failure to fulfil the delivery deadline; no compensation or penalty shall be due to the Buyer for this reason.

Delivery shall be made to the place indicated on the Accepted Estimate or the Order Confirmation, and the Products are carried at the Buyer’s risk.

Should there be special requests from the Buyer concerning the conditions of delivery, packaging or transport of the Products, duly accepted in writing by the Company, the related costs shall be subject to additional specific invoicing.

Transfer of risk

The transfer to the Buyer of the risks of loss and damage shall occur when Products leave the Company’s warehouses.

The Buyer shall be required to check the conformity and the apparent condition of the Products and Services upon delivery.

Reception – complaints

If there are no reservations expressly issued in writing to the carrier upon delivery, the Products shall be deemed to comply with the order in quantity and quality. The unreserved reception of the Products and Services covers any apparent defect and/or missing Product.

Any complaint or reservation, of any type, concerning the conformity of Products and Services, shall only be enforceable for the Company if this is made in writing, by registered letter with acknowledgment of receipt, within two (2) calendar days after delivery, under penalty of forfeiting any action relating thereto.

No return may be made by the Buyer without the Company’s prior express and written consent. Should lack of conformity be duly proven by the Buyer, the latter shall be entitled to the replacement of the non-conforming items and/or the complement to replace missing items, without being able to claim any compensation or cancellation of the order.

The complaint made by the Buyer shall in no way suspend the obligation to pay for the Products and Services concerned.

 

ARTICLE 8: Warranty covering hidden defects

The Buyer shall be deemed to have received all the technical information concerning the Products and Services sold. The Company shall protect the Buyer against any hidden defect resulting from a material, design or manufacturing defect affecting the Products delivered rendering them unfit for use.

The warranty forms an inseparable whole with the Products and Services sold by the Company. The Products and Services may not be sold or resold as altered, transformed or modified. This only applies to Products and Services which have become the property of the Buyer under usual circumstances.

In order to enforce their rights, the Buyer must inform the Company, in writing, of the defects at the contact details appearing at the top of this document. It is the Buyer’s responsibility to prove the date that the alleged defects and their results are discovered.

If the claim is justified, the Company shall only be required to repair or replace (or correct as the case may be) the defective Products and Services, at their discretion and free of charge, replacing defective parts as soon as possible following the observation by the Company of the defect or malfunction, without the Buyer being able to claim damages, for any reason whatsoever.

Any reimbursement under this warranty shall be limited to the price of the Products or Services actually paid by the Buyer and shall be made by credit to the Buyer’s bank account. This warranty also covers labour costs. The replacement of defective Products or parts shall not extend the duration of the warranty set out above.

The Products and Services shall comply with the regulations in force in France. The Company cannot be held liable for non-compliance with the legislation of the country in which the Products and Services are used, and so the Buyer, who is solely responsible for the choice of the Products and Services ordered, shall make these verifications.

 

ARTICLE 9: Adequacy of the material and the Buyer’s duty to inform their own customers

The Company shall not replace the Buyer in the decision-making to be exercised according to the respect of their own interests.

Under no circumstances shall it be the responsibility of the Company to assess the specifications or descriptions provided to the Buyer by their customers. Only the Buyer shall exclusively check the adequacy between the choice of material and the actual conditions of use of the Products.

Only the Buyer shall be bound by a duty to advise and inform their customers and/or project owners and the Buyer declares they are aware of the regulations resulting from the law relating to swimming pool safety and the subsequent application decrees making a standardised safety device intended to prevent the risk of drowning in private and collective swimming pools mandatory.

The Buyer agrees regarding the Company to inform their own customers and/or project owners about this regulation so that the company shall in no way be held responsible for a lack of information or advice with regard to the Buyer’s customers and/or project owners or their successors in title.

 

ARTICLE 10: Liability – Warranty scope

The Company declines all responsibility for any reason whatsoever due to non-compliance by the Buyer (i) with their own obligations resulting from the European, national, legal, regulatory and normative standards in force, (ii) the rules of use and restrictions stated on the technical data sheets and/or the user manual of the Products and Services.

Moreover, the Company shall not be considered either responsible or at fault in case of an unforeseeable and insurmountable event due to a foreign third party or a case of force majeure normally recognised as such by French case law.

The Company shall be excluded from all liability in any capacity whatsoever for consequential damages such as loss of profit, commercial or financial loss, increase in overheads, losses originating from or resulting from this Sale, even if the Company may have been notified in advance.

Any warranty and/or liability of the Company is excluded in the case of misuse, negligence, fault or lack of maintenance by the Buyer or their own customer, as well as normal wear and tear of the Products and Services.

Specifically, the warranty shall not apply and the Company shall not be held liable should the Products and Services be subject to abnormal use or use under conditions contrary to their intended purpose, specifically if there is non-compliance with the conditions defined in the instructions for use.

Finally, the warranty shall not apply and the Company shall not be held liable in case of damage or accident resulting from impact, fall, negligence, acts of vandalism, lack of supervision or maintenance, in case of total or partial dismantling of the Products or if the Products are transformed or mixed with other Products.

Moreover, the Company shall not be held liable for non-performance of their obligations in case of (i) malfunction, loss, delay or error in the transmission of data beyond their control, (ii) erroneous, incomplete or imprecise entry of information or contact details by the Buyer, upon Order or payment, (iii) should data not reach them, for any reason whatsoever, or should the data they receive be illegible.

The civil liability of the Company shall only be engaged by their actions, or that of their employees, in the case of services performed, by themselves or by the latter, within the framework of the contract, and only in case a direct causal link is established between the alleged damages and gross negligence of the Company.

In any case, should the Company’s liability be engaged for any reason whatsoever, the total amount of compensation that they may be required to pay to the Buyer may not be more than the price of the Products and Services affected by the damage, regardless of the legal basis of the claim, and this shall be expressly accepted by the Buyer.

 

ARTICLE 11: Loyalty and good faith

The Parties shall always behave fairly and in good faith, and specifically, shall call to the attention of the other party immediately, any dispute or any difficulty that they may encounter within the framework of this contract.

The Parties shall ensure permanent monitoring, both European and national, of the legal, regulatory and standards obligations relating to the Products, their packaging and their labelling and shall communicate reliable information to each other.

 

ARTICLE 12: Intellectual property rights

The Company shall retain all the industrial and intellectual property rights of the Products: photographs, documents, studies, drawings, models, prototypes, etc., produced, even at the request of the Buyer, within the framework of this document which cannot be the subject of any distribution, reproduction, exploitation or transfer without the express, written and prior permission of the Company, who may require financial compensation.

 

ARTICLE 13: Personal data

The personal data collected from natural person Buyers are subject to computer processing carried out by the Company. The data is recorded in Customer files and are required for the processing of orders.

This personal information and data is also retained for security purposes, in order to comply with legal and regulatory obligations. It shall be kept for as long as necessary for the completion of orders and any applicable guarantees/warranties.

The data controller is the Company. Access to personal data shall be strictly limited to employees of the data controller, permitted to process the information by virtue of their functions. The information collected may possibly be communicated to third parties linked to the company by contract for the performance of subcontracted tasks, without the Buyer’s authorisation being required.

As part of their services, third parties have only limited access to the data and shall be required to use it in accordance with the provisions of the applicable legislation on the protection of personal data.

Apart from the cases defined above, the Company shall be prohibited from selling, renting, transferring or giving third parties access to the data without the Buyer’s prior consent, unless they are forced to do so for a legitimate reason.

Should the data be transferred outside the EU, the Buyer shall be informed and measures shall be taken to secure the data (for example, adherence of the external service provider to the “Privacy Shield“, the application of standard protection clauses as approved by the CNIL, application of a code of conduct, obtaining a CNIL certification, etc.) shall be specified for them.

Pursuant to the applicable regulations, the Buyer has a right of access, rectification, erasure, and portability of the data concerning them, as well as the right to oppose the processing for legitimate reasons, rights that they can exercise by contacting the data controller at the following postal address: PCFR, 130, boulevard du nord – 84 160 Cucuron,contact@poolcop.com, telephone +33 (4)90095426.

 

ARTICLE 14: Unforeseeable circumstances

Should there be a change in circumstances unforeseeable at the time of the contract conclusion, pursuant to the provisions of article 1195 of the French Civil Code, the Party which has not agreed to assume an excessively onerous performance risk may request a renegotiation of the contract with their co-contracting party.

However, should the change in circumstances unforeseeable at the time of the contract conclusion be definitive or continue beyond ninety (90) calendar days, the present document shall be purely and simply terminated fifteen (15) days after the sending, by the first party to act, of a registered letter with acknowledgment of receipt or any extrajudicial act.

 

ARTICLE 15: Force majeure

The Parties cannot be held liable for failure to execute or delay in the execution of any of their obligations, as described herein, resulting from a case of force majeure, pursuant to Article 1218 of the French Civil Code or exceptional health or climatic hazards beyond the control of the Parties.

The Party observing the event must, within a maximum of ten (10) days, inform the other Party by registered letter with acknowledgment of receipt of the impossibility to perform their service and justify this to the latter party. The suspension of the obligations shall under no circumstances be a cause of liability for failure to fulfil the obligation in question, nor grounds for the payment of damages or late payment penalties.

During suspension, the Parties agree that the costs generated by the situation shall be shared equally.

The performance of the obligation shall be suspended for the duration of the force majeure if it is temporary and does not exceed a period of ninety (90) calendar days. Consequently, as soon as the cause of the suspension of their reciprocal obligations is resolved, the Parties shall make every effort to resume the normal performance of their contractual obligations as quickly as possible.

Thus, the Party prevented from their obligations shall notify the other of resumption of these by registered letter with acknowledgment of receipt or any extrajudicial act.

Should the hindrance be definitive or exceed ninety (90) days, this document shall be purely and simply terminated fifteen (15) days after the sending by the first party to act of a registered letter with acknowledgment of receipt or any extrajudicial act.

 

ARTICLE 16: Miscellaneous

Non-performance

Should any of the Parties refrain, at any time, from relying on the non-performance by the other Party of any of their obligations according to a clause hereof, this shall not mean that said Party has waived their rights pursuant to said clause or any other clause of the GTCS.

Partial nullity

The nullity or inapplicability of any of the stipulations of these GTCS shall not invalidate the other stipulations which shall retain all their force and scope. However, the parties can mutually agree to replace any null and void stipulation(s).

Notifications

All notifications according to these GTCS shall be made in writing:

• By registered letter with acknowledgment of receipt (receipt shall be considered as the first presentation of the letter, according to the postmark); or
• By hand delivery with handwritten acknowledgment of receipt of the notification, to the recipients at the addresses indicated on the order form or, should there be a change in these, at the new addresses notified in accordance with this article by each of the Parties to the other;
• By e-mail with acknowledgment of receipt.

Said notifications shall take effect either (a) on the date of receipt, this being considered as the first presentation of the letter, according to the postmark; the sending of the registered letter, or (b) on the date of sending the fax, or (c) on the date of receipt of the notification or (d) on the date the e-mail is sent.

 

ARTICLE 17: Disputes

For any dispute concerning the application of these GTCS and their interpretation, their execution and the resulting operations and in general to the relations between the Company and the Buyer, the Parties agree to appoint a Mediator by mutual agreement.

Failing agreement between the Parties within fifteen (15) calendar days from the notification of the dispute by the first party to act, the mediator shall be appointed by the Chairman of the Commercial Court of the Company’s head office ruling in summary proceedings or at the request of the most diligent party.

The Parties shall each cover half of the mediation costs and shall provide the fair cooperation required to reach an amicable solution.

Should mediation fail within thirty (30) calendar days from the appointment of the mediator, the dispute shall be settled by the Commercial Court of the head office of the Company, which shall have sole jurisdiction, regardless of the place of the Order, delivery, and payment and the method of payment, even should there be a warranty claim or multiple defendants.

Bills of exchange shall not constitute either novation or derogation from this jurisdiction clause.

The attribution of jurisdiction is general and applies, whether it is a principal claim, incidental request, substantive action or interlocutory proceedings.

Moreover, should there be legal action or any other action for the recovery of debts by the Company, the costs of summons, justice, as well as lawyer’s and bailiff’s fees, as well as all ancillary costs shall be borne by of the offending Buyer, as will be the costs related to or resulting from the non-compliance by the Buyer with the payment or delivery conditions of the Order in question.

The parties expressly agree that this clause is stipulated for the benefit and in the exclusive interest of the Company, who alone may waive it.

 

ARTICLE 18: Applicable law – Language

These GTCS and the resulting operations are governed by French law.

They were originally written in French. Concerning the translation into one or more languages, only the French text shall prevail in the event of a dispute.

 

The Management

PCFR SAS with capital of €779,800, AVIGNON TCR SIRET number

514 992 494 00021

Head office: La Remise, 130 Boulevard du Nord, 84160 CUCURON France