DISCLAIMER AND TERMS AND CONDITIONS OF USE OF THE WEBSITE
FLUIDRA WATERLINX (PTY) LTD (Registration Number: 2004/019077/07) (hereinafter, “FLUIDRA”, “we” or “our”), with registered offices at 5 Kruger Street, Denver, Johannesburg, 2094, is the owner of this website (“Website”).
ACCESS AND TERMS AND CONDITIONS OF USE OF THE WEBSITE
The purpose of these Terms and Conditions of Use (“Terms and Conditions”) is to provide Users with information about FLUIDRA, its business and products, published news items and various business divisions.
This Website is for information purposes only.
Both browsing and accessing the information posted on this Website imply that the User accepts all of these Terms and Conditions without any reservations whatsoever. If you do not accept these terms and conditions, you should refrain from using the Website and its content.
FLUIDRA may at any time modify these Terms and Conditions without prior notice. Any such modifications shall be posted on the Website so that Users may read them before browsing it.
Access and use
Access to the Website is free of charge, except for the cost of connecting to it through the Internet service provider contracted by the User.
The User undertakes to make responsible use of the Website, as well as of the information posted on it. Its use shall likewise be subject to both the legislation in force, and to these Terms and Conditions.
FLUIDRA reserves the right, in its sole discretion, to terminate or restrict your access to the Website and the related services or any portion thereof at any time, without notice.
Legal obligation to make proper use of the Website
Users shall be entirely responsible for the use they make of the information they access while browsing the Website, as well as for any subsequent use made of it.
The User undertakes to use the Website and applications posted on it in compliance with the Law, these Terms and Conditions, any instructions or warnings received, as well as with generally accepted moral and ethical standards, and public order.
The User undertakes to solely use the Website and its contents for lawful and legitimate purposes, which neither violate the laws in force nor breach the legitimate rights of FLUIDRA or any third parties, and/or that could cause direct or indirect damages.
Pursuant to the foregoing, content shall be understood to mean, but not limited to: the texts, photographs, graphic displays, images, technology, software, links and other audio-visual or sound contents, in addition to its graphic design and source codes (hereinafter, the “Content/s”), in compliance with the Law, these Terms and Conditions, other notifications, rules of use and instructions brought to your attention, as well as with generally accepted moral and ethical standards, and public order, and, in particular, you hereby undertake to refrain from: reproducing, copying, distributing, making available or in any other way publicly disclosing, transforming or modifying the Contents, unless you have the consent of the owner of the corresponding rights or if permitted by law, or, if applicable, done using the buttons enabled by FLUIDRA for social media. Furthermore, the User may not delete, manipulate or in any other way alter the copyright and other identifiers of the exclusive rights of FLUIDRA or any other technical resources established to recognize its brand.
The User undertakes, by way of example but not limited to, not to disclose, disseminate or make available to third parties the information, data, contents, messages, graphic displays, drawings, sound and/or image files, photographs, recordings, software and, in general, any class of materials belonging to this Website, as well as to refrain from carrying out action that:
- Induce, incite or encourage criminal, slanderous and violent acts or, in general, that are against the Law, generally accepted moral and ethical standards, and public order.
- Are false, ambiguous, untrue, exaggerated or untimely and that could lead to misinterpretations of the subject matter or the intentions or purposes of the disclosing party.
- Are protected by any intellectual or industrial property rights held by third parties, without the User having sought the prior permission from the holders necessary to make use of such rights.
- Constitute, where applicable, unlawful, deceitful or unfair advertising and, in general, that constitute unfair competition or violate the statutory regulations on personal data protection.
- Contain viruses or any other physical or electronic components that could damage or prevent FLUIDRA’s network, IT system, hardware or software from working properly.
- Give rise to failures in the services offered on this Website due to their characteristics (such as file formats and extensions).
The User shall be held liable for damages of any nature that FLUIDRA may sustain as a consequence of a breach of any of the obligations to which she/he is subject pursuant to these Terms and Conditions or to the legislation that applies to the use of the Website.
RELEASE OF LIABILITY OF FLUIDRA
By way of example but not limited to, FLUIDRA may not be held liable under any circumstances for:
- The use that the Users may make of the materials on this Website, and/or websites to which there are links, whether prohibited or permitted, that are in breach of the intellectual and/or industrial property rights of the contents of this Website or those of third parties.
- The potential damages the Users may sustain caused by search tools working normally or incorrectly, the organization or localization of the contents and/or access to the Website and, in general, the errors or problems that may arise in the development or implementation of the Website’s technical components or software provided to the User.
- The contents on any web pages that the Users may access from links posted on the Website, whether authorized or not.
FLUIDRA hereby informs the users that it is unable to guarantee that:
- The access to the Website and/or linked websites shall be uninterrupted or free of error.
- The content or software that the Users access from the Website or linked websites do not contain any errors, computer virus or other features in the contents that could damage their computer system, electronic documents or files stored on their computer system, or that could cause any other damage.
For all intents and purposes, the contents on the Website are posted to provide information and as a guideline only, as a result of which:
FLUIDRA is unable to vouch for the accuracy of the information posted on the Website and, therefore, it may not be held liable for any potential damages or inconvenience caused to Users arising from any inaccuracies on it.
The Users undertake to browse the Website and use its content in good faith. Pursuant to the provisions in the laws relating to personal information, in addition to the rights under The Protection of Personal Information Act No. 4 of 2013 (“Act”), we hereby inform you that any personal information provided to fill in any forms on this Website or sent via email to any of our inboxes:
Shall be treated in the strictest confidence and shall be added to the databases held by FLUIDRA, so that they can be processed and replied to, as well as to handle any business related to them, and to send emails in reply to requests for information made from this Website by filling in the forms posted on it.
Pursuant to current data protection laws, FLUIDRA has adopted suitable security measures in respect of the personal data provided by the Users and, in addition, it has implemented all means and measures available to it to prevent their loss, misuse, alteration, unauthorized access and extraction.
The right to access, rectification, erasure, restriction, portability and to object
Pursuant to the laws in force under the Act, Users may at any time exercise their right to access, rectification, erasure, restriction, portability and to object to their personal information, withdraw their consent to receive marketing messages and/or to their personal information being processed by sending us an email to [firstname.lastname@example.org].
You must clearly state the right that you wish to exercise and attach a copy of an ID document/passport.
To use this Website, cookies and small data files must be enabled. Cookies are used for the purposes of improving the services provided by FLUIDRA and are accepted whenever the User accesses the Website. Under no circumstances shall any type of personal information about the Users be stored and all information obtained shall remain anonymous. Should Users so wish, they may configure their browsers to prevent the installation of cookies on their hard drive, for which we recommend they consult their browser’s instructions and manuals.
INTELLECTUAL AND INDUSTRIAL PROPERTY
FLUIDRA holds all of the rights on the content, design and source code of the Website, and, in particular but not limited to, on the photographs, images, texts, logos, designs, trademarks, brand names and data that appear on this Website or app.
The Users are hereby informed that all such rights are protected by current South African and international laws on intellectual and industrial property.
The total or partial reproduction of the Website, even via a hyperlink, or any of its contents is strictly prohibited, unless express consent to do so has been given by FLUIDRA in writing.
Likewise, copying, reproducing, adapting, modifying, distributing, marketing, publicly disclosing and/or committing any other acts that involve a breach of the South African and/or international laws currently in force, in addition to the use of the contents of this Website, is strictly prohibited, unless prior express authorization to do so has been given by FLUIDRA in writing.
FLUIDRA hereby informs the Users that it does not grant licenses nor does it give its implicit consent on the intellectual and/or industrial property rights or on any other rights or property directly or indirectly related to the contents posted on the Website or app.
GUIDELINES ON SECURE USE:
Do not use links attached to the emails or web pages of third parties to access this Website. From time to time, the indiscriminate mass distribution of emails from false email addresses are detected, whose sole purpose it to obtain the Users’ confidential information. This technique is known as PHISHING. FLUIDRA declines all liability in this respect.
These Terms and Conditions, and your use of this Website, are governed by the laws of the Republic of South Africa and you consent to the exclusive jurisdiction of the High Court of South Africa in the event of any dispute arising in connection with the Terms and Conditions or any matter relating to or in connection therewith.
If you need to contact FLUIDRA for purposes relating to these Terms and Conditions, please use the following e-mail address: [email@example.com]
These Terms and Conditions were most recently updated on 12 August 2020.
1 “These terms shall apply in respect of each and every contract for the sale of Goods, unless specifically agreed otherwise between the” Parties in writing.
2 “The provisions of this document shall overrule any terms of contract of the Purchaser, unless it is specifically otherwise agreed between” the Parties in writing.
3 “The Seller may agree to a specific contract on special terms set out in the order for such contract, and in the event of any inconsistency” ‘between the provisions of this document and any such special terms, the special terms shall prevail.”
4.1 “Unless the context indicates otherwise, the following terms or expressions shall have the meanings set out hereunder:”
4.1.1 “The Seller”” means Fluidra WaterLinx (Pty) Ltd. and all of its divisions and/or trading entities”
4.1.2 “The Purchaser” means the Applicant described in this credit application form.”
4.1.3 “The Parties” means the Seller and the Purchaser collectively.”
4.1.4 “The Contract” means each individual transaction concluded between the Parties in terms of these terms.”
4.1.5 “The Goods” means the subject matter of the contract.”
4.2 The head notes and preamble in these conditions are for reference purposes only and shall not in any way affect the construction or interpretation of anything herein contained.
4.3 Words signifying the singular number shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and neuter
5 GRANT OF CREDIT
5.1 “The granting, refusal or withdrawal of credit facilities, including the extent and nature of such facilities and the payment in terms thereof’ shall at all times be at the sole discretion of the Seller who may withdraw same at any time without any prior notice to the purchaser
6 PAYMENT TERMS
6.1 Payment shall be made in respect of:
6.1.1 “a credit account, not more than 30 days nett from date of statement; and”
6.1.2 “cash and “”C.O.D.”” accounts, on receipt of the Goods by the Purchaser”
6.2 “Payment shall not be set off against or withheld on account of any counter-claim of the Purchaser, unless same is acknowledged by the” Seller in writing.
6.3 “Should the Purchaser fail to make payment in full on due date, it shall be obliged to pay interest on overdue amounts at the rate of 2%” above the prime overdraft rate charged by the Seller’s bankers from time to time.
6.4 “The Purchaser further agrees that in the event of its default in any respect whatsoever toward the Seller, the Seller shall be entitled to” “place the Purchaser on a” “stop supply”‘ without further notice to the Purchaser, notwithstanding that the Purchaser may have placed an” order for the supply of Goods prior to the stop supply date.
6.5 “In the event of the Purchaser tendering a cheque or any other negotionable instrument, then payment will only deemed to have been made” once the said cheque or negotiable instrument has been received by the Seller and thereafter met by the relevant bank or paying authority.
6.6 “All payments made to the Seller, shall be made at the address of the Seller set out on the face hereof or at such other address as the” Seller may from time to time designate in writing.
6.7 “Goods returned without the written consent of the Seller will not be accepted for credit. The Seller may, at its option, elect to accept the” “return of the Goods, in which event the Seller shall levy a handling fee equivalent to 10% of the selling price of the returned Goods.”
6.8 “Any promissory notes, bill of exchange or any other negotiable instrument received from the Seller by the Purchaser shall not constitute a” novation of the debt for which it was given.
7.1 The purchase price of the Goods is strictly nett and shall not be subject to any discount whatsoever unless as may be specifically agreed to in writing between the Parties. Prices are per unit and are payable in South African currency unless otherwise expressly stated.
7.2 The price of Goods shall be the price quoted in the Seller’s official price list ruling for such Goods at the date on which they were delivered to the Purchaser.
7.3 “Unless stated otherwise, prices quoted shall be exclusive of VAT.”
8 INCORRECT DELIVERIES
8.1 “Unless the Seller receives notice within 14 days of the date of dispatch of the statement, the account shall be deemed to be in order and” the Purchaser shall be deemed to have received delivery of each and every item appearing on such statement.
8.2 “In the case of delivery by carrier, insurance coverage with the carrier is the responsibility of the Purchaser.”
8.3 Delivery dates are based on the Seller’s prevailing stock situation and are subject to change and to the Purchaser carrying out all “its obligations which obligations include the supplying of all the necessary information to carry out the order being received timeously,” “from the Purchaser. Irrespective of the date stipulated for delivery, the Purchaser records that such data shall not be of the essence of “the contract. Consequently, the failure by the Seller to deliver in terms of the Contract, shall not entitled the Purchaser to cancel the” “Contract or any part thereof or to claim any loss or damages, whether consequential or otherwise, in consequence thereof. The Seller” “shall, however, make every endeavour to effect delivery timeously.”
9 RESERVATION OF OWNERSHIP
9.1 “Notwithstanding that all risks in and to all Goods sold by the Seller to the Purchaser will pass on delivery, ownership in all Goods sold and” delivered shall remain vested in the Seller until the full purchase consideration in respect thereof shall have been paid.
10.1 Delivery shall be completed when the Goods are pointed out to the Purchaser or its agent at the Seller’s premises and before loading commences.
10.2 “No claim of whatsoever nature shall lie against the Seller for Goods lost or damaged in transit, save where the Seller’s own vehicles are” employed.
10.3 “Where an outside transporter is engaged such transport shall be deemed to be the agent of the Purchaser, notwithstanding the fact that” the Seller may appoint such transport and/or pay such transporters charges.
10.4 “No claims in respect of Goods delivered by the Seller to the Purchaser shall be entertained by the Seller, unless such claims are” submitted by the Purchaser to the Seller in writing within 24 hours of receipt of such Goods.
11.1 The Seller shall not be liable for any consequential damages caused by faulty materials or defective workmanship or for any other reason whatsoever and the Purchaser hereby indemnifies the Seller against claims of any nature whatsoever.
11.2 All Goods are manufactured in accordance with the Seller’s principle standards of quality and are intended for use as set out in the Seller’s products/installation manual and for no other purpose whatsoever.
12 SECURITY BY PURCHASER
12.1 “If required by the Seller, the Purchaser shall provide a surety or sureties who shall be subject to the approval of the Seller, and shall” “execute (if two or more, jointly and severally) a guarantee on such terms and conditions as the Seller shall determine for the performance” “of all the Purchaser’s obligations and such guarantee shall be binding notwithstanding any variations, alterations, or extentions of time” “as may be made, given, conceded or agreed to in terms of these general conditions or in terms of any other agreement. The expense” “of procuring, preparing, completing and stamping such instrument shall be paid by the Purchaser.”
12.2 If the surety / ies referred to in clause 11.1 above shall not be duly furnished to the Seller by the Purchaser within 7 days after being “requested so to do, the Seller may at its sole option and without prejudice to any rights which it may have by notice in writing to the” “Purchaser, terminate this and all agreements existing between the Purchaser and the Seller.”
13 VICARIOUS LIABILITY
13.1 “The Purchaser shall be responsible for and shall be bound by all acts and ommissions of any of its employees, agents or servants in the” course and scope of their employment with the Purchaser in respect of any contraventions or implementation of any of the terms and” conditions and provisions of these general conditions. All such acts and ommissions by such employees, agents and servants shall be” deemed to have been committed or omitted within the course and scope of their employment or mandate with the Purchaser unless the contrary is proved.
14 SALE OF BUSINESS AND LIABILITY OF THE SELLER
14.1 The Purchaser hereby undertakes that in the event of the Purchaser’s business being sold or in the event of the Purchaser being a “company, upon the sale of shares of the controlling interest in the company, or in the event of the Purchaser being a close corporation” “upon the sale of members interest of the controlling member in the close corporation, to immediately in writing advise the Seller thereof” and the Purchaser shall in any event remain responsible for all Goods ordered in the name of the business until such time as the written notice referred to above has been given and receipt thereof acknowledged by the Seller.
15 TELE SALES
15.1 Oral orders or order per telephone or telefax are executed at the Purchaser’s sole risk. Such orders must be confirmed in writing failing which no responsibility for errors will be accepted by the Seller.
16.1 “Notwithstanding any other provision of these conditions, the Purchaser shall have committed a breach if:”
16.1.1 he fails to pay on time any amount payable in terms hereof;
16.1.2 he commits a breach of any other terms of these conditions and fail to remedy such breach on 7 days notice;
16.1.3 so consistently breaches the conditions of sale (whether by non-payment or non-compliance) that no further notice is necessary;
16.1.4 “if the Purchaser is an individual, dies or if a juristic person, is provisionally or finally sequestrated or surrenders his estate;”
16.1.5 “or if the Purchaser be a partnership, the partnership is terminated or dissolved or provisionally or finally sequestrated or being a company” “or close corporation, is placed under provisional or final order of liquidation or judicial management;”
16.1.6 the Purchaser compromises or attempts to compromise generally with any of the Purchaser’s creditors;
16.2 “In the event of the Purchaser committing a breach of these conditions of sale, then the Seller shall be entitiled, at its option, in addition to” and without prejudice to any rights or remedies it might have against the Purchaser to:
16.2.1 “Claim immediate payment of all amounts owing by the Purchaser to the Seller, irrespective of whether or not such amounts are then due;”
16.2.2 Terminate any agreement between the Parties summarily without notice to the Purchaser and to claim damages;
16.2.3 “Terminate such agreement summarily without notice to the Purchaser, take possession of all Goods delivered by the Seller to the” “Purchaser and which are not yet paid for, retain all payments already made by the Purchaser and claim as liquidated damages payment” of the difference between the balance outstanding and the value of the said returned Goods;
16.3 “Should the Seller proceed in terms of clause 15 hereinabove, then the Purchaser shall on demand deliver to the Seller either at the” “premises of the Purchaser or at an address nominated by the Seller, all Goods not yet paid for, forthwith.”
16.4 A certificate signed by a director for the time being of the Seller setting out the amount owing by the Purchaser shall be sufficient and satisfactory proof of the amount owing by the Purchaser to the Seller for the purposes of an Application for Provisional Sentence or Summary Judgement or for any legal proceedings or for any claim whatsoever and the Purchaser hereby acknowledges itself to be truly and lawfully indebted to the Seller in the said sum.
17.1 The Seller shall be entitled to charge the Purchaser interest at the compound rate of 2% per annum above the prime overdraft rate charged “by the Seller’s bankers to the Seller from time to time on all amounts outstanding in excess of 30 days from due date, provided, however, “that nothing herein contained shall be interpreted as a waiver by the Seller of its right to demand payment on due date.
17.2 Stock returned in lieu of monies outstanding shall result in a seller charging the purchaser a 10% handling fee.
18 CONSENT TO JURISDICTION
18.1 “Should the Purchaser be in breach of any of its obligations in terms of these conditions of sale, the Seller shall be entitled to forthwith” “institute action against the Purchaser in any competent Court of law. In this regard, the Purchaser hereby consents to the jurisdiction of “the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 as amended, notwithstanding that the amount claimed from the Purchaser” by the Seller may exceed the jurisdiction of the Magistrate’s Court.
18.2 “Should any legal proceedings be instituted in terms of clause 15 above, the Purchaser hereby indemnifies the Seller against all costs” incurred to the Seller by its attorneys. Such costs to be on the attorney and own client scale and furthermore all collection commission.
19.1 The address of the Purchaser reflected on the Application for credit is chosen by the Purchaser as its domicilium citandi et executandi “for all purposes hereunder, including the service of all legal and other processes.”
20 INVALIDITY OF ANY OF THE TERMS AND CONDITIONS
20.1 If any of the terms and conditions herein contained shall be invalid the same shall be excusable and shall not invalidate the remainder of the contract.
21.1 “The Seller shall be entitled to cede to any holding, subsidiary or affiliated company or business any of its rights to any agreement” existing between the Purchaser and the Seller or to any rights arising out of the sale of any Goods by the Seller to the Purchaser or arising in any other way whatsoever without the consent of the Purchaser.
21.2 The Purchaser shall not be entitled to cede its rights or delegate its obligations under this Application without the prior written consent of the Seller.
22 VIS MAJOR
22.1 The failure of the Seller to perform in terms of this agreement shall be excused to the extent that such failure is caused by an event of “Vis Major. For the purposes of this agreement, “”vis major means supervening possibility of performance caused by an event or’ “occurrence which is beyond the reasonable control of the Party affected by it. In the event of vis major, the Parties shall negotiate in good” faith to mitigate the adverse effects on both of them.
23.1 These conditions constitutes the whole and entire agreement between the Parties. Any previous conditions or agreements in conflict “with the provisions herein contained are hereby cancelled and there are no agreements, representations or warranties between them” other than those specifically set forth herein.
23.2 No indulgence on the part of any Party in exercising any right conferred upon such Party in terms of these conditions shall constitute a “waiver of such right, nor shall any single or partial exercise of any right preclude any other or future exercise thereof or the exercise of any” other right under these conditions.
23.3 “No addition to, alteration of, amendment or consensual cancellation of these terms and conditions shall be of any force or effect unless the” “same shall be confirmed in writing and signed by both parties, and then such addition, alteration, amendment or cancellation shall be” effective only in their specific instance and for the purpose and to the extent for which it was made or given.
23.4 These terms and conditions shall be in all respect governed by and construed in accordance with the laws of the Republic of South Africa.
23.5 “No warranties, representations or guarantees have been made by the Seller or on its behalf which may have induced the Purchaser” to sign this document.