This Agreement is made between
In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of this Agreement shall govern.
1. SERVICES:
USER shall use the online system (hereafter, the "Service") only in accordance with this Agreement and any additional services offered through the Service in the future will only be used in accordance with this Agreement.
You shall be the only authorized user of the Service under this Agreement. You shall be responsible for the confidentiality and use of your User ID and sign-on password. You understand that you shall be solely responsible for all transactions entered through the Service using your User ID and sign-on password.
You further understand and agree that, as a condition of using the Service, you shall immediately notify POOLCORP if: (a) a transaction has been placed through the Service and you have not received an accurate acknowledgment (whether through hard copy, electronic, or verbal means); (b) you become aware of certain content or information that is missing, non-accurate, or incorrect; or (c) you become aware of any unauthorized use of your User ID or sign-on password.
If you fail to notify POOLCORP as soon as practicable when any of the above conditions occur, neither POOLCORP nor any of its officers, employees, agents, affiliates or subsidiaries can or will have any responsibility or liability to you or to any other person whose claim may arise through you for any claims with respect to use of the Service.
You agree that POOLCORP may modify the Service or change the terms of this Agreement, in whole or in part, upon notice through the Service and/or in writing.
2. METHOD AND RATE OF PAYMENT:
USER agrees to pay POOLCORP for all materials ordered and accepted through this Service under the pre-existing USER account terms established between the USER and the corresponding POOLCORP branch location(s).
3. TERMINATION OF AGREEMENT:
POOLCORP reserves the right in POOLCORP's sole discretion, to immediately terminate this Agreement should USER be in breach of any provision of this Agreement.
USER may terminate this Agreement by providing POOLCORP a written request to do so, after which POOLCORP will make best efforts to remove the associated User ID and sign-on password within three business days of receipt of USER request.
In the event that either party gives proper termination notice to the other, neither party shall be liable to the other as a result of termination of this Agreement for any costs, claims, losses, damages, or liabilities including, without limitation, loss of anticipated profits.
4. CONFIDENTIAL INFORMATION:
Each party hereto ("Such Party") shall hold in trust for the other party hereto ("Such Other Party"), and shall not disclose to any nonparty to the Agreement, any confidential information of Such Other Party. Confidential information is information that directly relates to Such Other Party's research, development, trade secrets or business affairs, but does not include information which is generally known or otherwise in the public domain. USER AGREES TO TREAT POOLCORP CORPORATE INFORMATION, PRODUCT PRICES, PROGRAMS, AND FEES AS CONFIDENTIAL INFORMATION.
Certain information may be collected concerning the use of the Service. This information includes, but is not limitied to, the User's demographics, computer specifications, and product purchases. Information such as the User's markup or product prices will not be collected in any form or fashion.
5. LIABILITY:
POOLCORP MAKES NO WARRANTIES FOR THE SERVICE, WHETHER WRITTEN, ORAL, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
YOU AGREE THAT POOLCORP AND ITS OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND SUBSIDIARIES SHALL NOT BE LIABLE FOR FAILURE TO PROVIDE SERVICE, AND IN NO EVENT SHALL BE LIABLE TO THE USER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROFITS, OR USE OF PRODUCTS) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS SUCH AS INABILITY FOR USER TO ACCESS YOUR ONLINE SERVICE PROVIDER, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, FLOODS, EARTHQUAKES, STRIKES, OTHER LABOR PROBLEMS OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. APPLICABLE LAW:
POOLCORP shall comply with all applicable laws in providing Service but shall be held harmless for violation of any governmental procurement regulation to which it may be subject.
This Agreement shall be construed in accordance with the laws of the State of Louisiana.
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of the Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees from the other party, which fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose, and which fees shall be in addition to any other relief which may be awarded.
7. WAIVER/SEVERABILITY:
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
8. ASSIGNMENT:
Neither party may assign this Agreement, in whole or in part, without the express written consent of the other party, except that POOLCORP may assign this Agreement without USER consent to a parent or wholly owned subsidiary or in connection with a transfer of all or substantially all its assets. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto.
9. FORCE MAJEURE:
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party.
10. ENTIRE AGREEMENT:
This agreement constitutes the entire agreement between POOLCORP and USER, and supersedes all prior negotiations, representations, or agreements, either oral or written, related to this Agreement.
11. DISPUTE RESOLUTION:
Any dispute to be adjudicated between the parties hereto concerning the scope of interpretation of this Agreement, shall be submitted to arbitration for resolution. Arbitration shall be held in Louisiana. The rules of Commercial Arbitration of the American Arbitration Association in effect on the date the matter is submitted to arbitration shall apply. The decision of the arbitrators shall be in writing and shall contain the findings of fact and conclusions of law on which their decision is based. Such decision shall be final and binding on the parties and may be enforced in any court of competent jurisdiction. The arbitration award shall not include punitive or consequential damages and the arbitration panel shall be so instructed. Each party shall bear its costs of counsel, witnesses and related costs. The costs of the arbitration panel services shall be borne equally by the parties.
NOTICES:
(i) Notices to POOLCORP should be sent to:
SCP Pool Corporation
109 Northpark Blvd.
Covington, LA 70433
IN WITNESS WHEREOF, the parties hereto have electronically signed this Agreement.