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terms and conditions

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1. Applicability; Acceptance and Agreement.

These terms and conditions ("Terms and Conditions") shall apply to any sales order and/or invoice issued ("Order"), and the sale of any products and/or services and support ("Products"), by the Aviva Pools sales entity listed on the Order ("AVIVA").  You, as the buyer identified in an Order ("Buyer" or "you"), irrevocably agree by written acknowledgement of such Order, acceptance of any Products thereunder or payment of the amount due as indicated thereon that your purchase and AVIVA 's sale to you of any Products is subject to these Terms and Conditions, which together with the Order and the documents listed below is a binding agreement (the "Agreement") between you and AVIVA (each a "Party" and, collectively, the "Parties"). The Agreement shall include (a) any current dealer, franchise or consignment agreement entered into by the Parties or their affiliates, if applicable, and any documents incorporated therein by reference; (b) these Terms and Conditions; (c) the Order(s) and any accompanying drawings; (d) any Change Order(s) (as defined below); and (e) written terms or specifications submitted by Buyer and accepted by AVIVA or its affiliates in writing.  In the event of any conflict among the terms of the foregoing documents, such documents shall have priority in the order in which they are listed in the preceding sentence of this Section 1, except that the consignment agreement shall have priority over the dealer or franchise agreement with respect to any consigned products. 

2. Entire Agreement; Conflicts; Amendment.

The Agreement constitutes the entire agreement between the Parties related to the sale of Products to Buyer by AVIVA and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, whether written or oral, between the Parties. AVIVA 's fulfillment of any order by Buyer does not constitute, and shall not be deemed to constitute, acceptance of any of Buyer's terms and conditions or modification or amendment of the Agreement, and any conflicting or additional Buyer terms and conditions are expressly rejected by AVIVA. There are no promises, covenants, agreements, representations, warranties or undertakings other than those expressly set forth in the Agreement. The Agreement may only be modified or amended by a writing signed by authorized representatives of both Parties. No waiver or modification by AVIVA of any provision of the Agreement is effective unless explicitly set forth in a writing that specifically references the Agreement and is signed by an authorized representative of AVIVA.  To the extent any advertising or promotional material of AVIVA or its affiliates conflicts with the terms of the Agreement, the Parties agree that the terms of the Agreement shall control and such advertising or promotional material is not part of the Agreement. 

3. Pricing; Taxes.

Pricing shall be as provided in the Order(s) and subject to any qualifications set forth therein. Product prices are exclusive of shipping charges and all applicable sales, use, excise or other taxes now or hereafter imposed on the sale or delivery of the Products (collectively, "Taxes"). Buyer shall be solely responsible for paying all Taxes and remitting the same to the applicable taxing authorities (other than Taxes invoiced by AVIVA, which shall be remitted to AVIVA) unless Buyer presents an exemption certificate acceptable to AVIVA and the applicable taxing authorities.   

4. Payment; Financing Statements; Remedies.

4.1 Unless otherwise agreed in writing by AVIVA, payment is due in full prior to delivery and AVIVA shall have no obligation to deliver any Products until Buyer has paid the purchase price in full. Unless otherwise agreed in writing by AVIVA, all payments shall be made in U.S. dollars (except to the extent otherwise indicated by AVIVA  on the Order) to the address or account listed on the Order, and the following forms of payment shall be acceptable: check drawn on a U.S. bank account (or a Canadian bank account for Canadian sales), bank wire transfer from a U.S. bank (or a Canadian bank for Canadian sales) and credit cards (Visa, MasterCard and American Express accepted, which may be subject to an additional fee). 

4.2 If any Products are delivered prior to payment in full by Buyer, Buyer shall do everything necessary to assist AVIVA  in registering its interest in and title to any such Products, and shall sign and deliver to AVIVA such financing statements, continuation statements and other documents reflecting the ownership of the Products by AVIVA , in a form satisfactory to AVIVA , as AVIVA  may from time to time reasonably request. AVIVA may, at its sole expense, file any necessary financing statements or continuation statements. AVIVA reserves all rights granted to a seller under the United States Uniform Commercial Code and/or under the applicable personal property security act or other legislation of similar effect, as applicable, for Buyer's failure to pay for any goods sold or any other breach of the Agreement by Buyer. In addition to all other remedies available to AVIVA at law or in equity, AVIVA may commence proceedings for collection, stop shipment, delay or stop future deliveries, enter any premises owned or controlled by Buyer where goods are located to repossess unpaid delivered goods, and/or terminate one or more Orders. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with AVIVA.

5. Buyer Specifications; Order Changes.

Products fabricated pursuant to any specifications, drawings, information and/or data supplied to AVIVA or its affiliates by or at the direction of Buyer, its affiliates or representatives ("Buyer Specifications") are based on AVIVA 's understanding of such Buyer Specifications and Buyer bears the responsibility for any ambiguity in or problems resulting from such Buyer Specifications. Buyer shall send any requests for additions, deletions or other revisions to any Order to AVIVA promptly and in writing clearly referencing the applicable Order. AVIVA may accept or reject any such revisions in its sole discretion and any such revisions accepted by AVIVA shall only be effective if reflected in a written document signed by authorized representatives of both Parties ("Change Order"). Such Change Orders shall become a part of the Agreement. AVIVA shall not be responsible for any delay in fabrication or delivery caused by Change Orders. If any change effected by a Change Order affects the cost to AVIVA or time of performance hereunder, the price and/or delivery date for the Products shall be adjusted to reflect the effect of such change.   

6. Delivery and Shipment; Delay.

6.1 AVIVA will ship Products using its carrier of choice in accordance with its standard shipping policies at the time of shipment unless otherwise requested by Buyer 

and agreed in writing by AVIVA.  Transport of Products shall be at Buyer's expense. AVIVA is not responsible to send Products by direct truck line or other expedited method unless Buyer has prepaid for such services. There must be appropriate access to, and adequate room for the delivery truck to turn around and back up at, the delivery location. It is Buyer's responsibility to have someone present at the delivery location to receive and offload the Products at Buyer's expense. Neither AVIVA nor its affiliates shall have any liability for damage to or loss or theft of Products once delivered to the delivery location. If the delivery location is not adequate for delivery for any reason or if delivery is delayed or altered by Buyer or other circumstances beyond AVIVA 's control for any reason, then Buyer shall be responsible for any additional charges in connection therewith.

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7. Title; Risk of Loss; Inspection.

Title in the Products will not pass from AVIVA to Buyer until those Products have been paid for in full. Risk of loss with respect to any Product will transfer to Buyer upon the following: (a) if AVIVA is charging for delivery, upon delivery to Buyer; or (b) if Buyer is collecting or using its own carrier to collect the Product(s) from a holding yard or other designated collection area, or is paying the holding yard to deliver, upon collection from the holding yard or other designated collection area by Buyer, Buyer's carrier or the holding yard.  Neither AVIVA nor its affiliates is responsible for loss or damage to Products that occurs after the risk of loss has passed to Buyer.  Any damage or loss claims for deliveries for which AVIVA has not charged Buyer delivery charges must be made to the applicable carrier. Buyer shall carefully inspect all Products and sign and return the bill of lading as follows: (a) for Products delivered to Buyer on a delivery vehicle hired or operated by AVIVA  or its affiliates, while the Product is still on the delivery vehicle and prior to unloading and (b) for Products collected by Buyer from an AVIVA holding yard or other designated collection area, while the Product in still in the holding yard or collection area and prior to loading. Buyer shall note any discrepancy in fulfillment, shortages or defects on the bill of lading at the time of delivery or pick up and promptly notify AVIVA of the same within five (5) business days. Such notice shall be in writing and contain reasonable detail stating the discrepancies.  If no notation is made on the bill of lading and/or such notice is not timely given by Buyer, Buyer agrees that such Products will be deemed irrevocably accepted as complete and in good condition and Buyer shall have no claim in respect thereof, which claims shall be conclusively waived.  It is Buyer's responsibility to retain a copy of the bill of lading documenting any discrepancies. In cases where Products are properly noted as non-conforming by Buyer, and such non-conformities are not the direct or indirect result of any acts or omissions of Buyer or its directors, officers, managers, employees, agents, consultants, advisers or subcontractors, as applicable ("Representatives"), AVIVA will, at its option, either directly or indirectly through its affiliates, repair, replace or refund the purchase price (or a portion thereof) of the relevant non-conforming Product, which shall constitute BUYER'S SOLE AND EXCLUSIVE REMEDY AND THE SOLE AND EXCLUSIVE OBLIGATION AND LIAIBLITY OF AVIVA AND ITS AFFILIATES IN CONNECTION WITH NON-CONFORMING PRODUCTS. Defects covered by the Limited Warranty (as defined in Section 10) shall be reported to AVIVA and addressed as provided in Section 10 below.  

8. Force Majeure.

Neither AVIVA nor its affiliates shall be liable for any failures, delays or other non-performance caused by circumstances beyond its reasonable control (each a "Force Majeure Event"), including without limitation strikes, labor disputes, fires, floods, accidents, actions of any governmental authorities, acts of God, war, insurrection or riots, failure of vendors or subcontractors, Buyer's failure to give timely information or approval or any other act or omission of Buyer, or shortages of or delays in labor, energy, fuel, materials, production facilities or transportation.  

9. Buyer Representations and Warranties.

Buyer represents, warrants and covenants to AVIVA and its affiliates that each of the following statements is true and accurate, will remain true and accurate so long as the Agreement remains in effect, and shall be promptly supplemented to reflect any changes:

(a) Buyer possesses the necessary power and authority and has secured the requisite approvals to enter into the Agreement and to carry out its obligations thereunder; 

(b) Buyer's execution, delivery and/or performance of the Agreement will not (i) violate, conflict with or result in a breach of any applicable law; (ii) permit the acceleration of the maturity of any indebtedness of Buyer or (iii) violate or conflict with any provisions of the certificate or articles of incorporation, charter, bylaws or similar organizational instruments, if any, of Buyer; and

(c) The Agreement, including without limitation these Terms and Conditions, is enforceable against Buyer in accordance with its terms.

10. Limited Warranty.

Subject to the limitations and conditions herein, AVIVA provides the following standard limited warranties (each as defined below and, collectively, the "Limited Warranty") to the original retail purchaser or Authorized Transferee (as defined below in this Section 10) (as applicable, the "Retail Purchaser") of its pool shell listed below on the following terms: 

10.1 Structural Limited Warranty

(a) Structural Limited Warranty. Subject to the exclusions and conditions listed herein, AVIVA warrants the structural soundness of its Full Vinyl Ester Resin pool shell (the "Pool") against water loss caused by (i) defects in manufacturing workmanship and materials or (ii) osmosis for the lifetime of the Retail Purchaser of the Pool (but in no event less than 35 years) so long as the Pool is owned by the Retail Purchaser (the "Structural Limited Warranty").

(b) Required Retail Purchaser Actions Under Structural Limited Warranty. To obtain Structural Limited Warranty services, the Retail Purchaser must (i) return a completed warranty card prior to any Structural Limited Warranty services and within six (6) months of delivery of the Pool; (ii) notify AVIVA  in writing within seven (7) days of becoming aware of a potential Structural Limited Warranty claim; (iii) provide AVIVA  and/or its affiliates, agents or subcontractors a reasonable opportunity to inspect the Pool and the installation or use thereof and records kept in connection therewith and (iv) have paid AVIVA or its designated sales affiliate the Purchase Price (as defined in Section 10.3(c)) for the Pool in full (collectively, the "Retail Purchaser Structural Limited Warranty Actions"). The AVIVA mailing address, warranty department and address and warranty telephone number for purposes of the foregoing are as follows: Aviva Pools Warranty Department, 2901 Leisure Island Way, Knoxville, TN 37914, telephone number (865) 281-1604.

(c) Exclusions to Structural Limited Warranty. The Structural Limited Warranty shall not apply in connection with any of the following:

(i)  failure to complete any of the Retail Purchaser Structural Limited Warranty Actions above; 

(ii)  damages or alterations caused or contributed to by acts of nature including but not limited to earthquake, ground movement, storm or flood, inadequate site drainage, excessive hydrostatic pressure, ground water, underground springs, underground obstructions, tree roots or heavy water flow into the Pool; 

(iii)  installation, repairs, alterations or other work by someone other than an AVIVA dealer or other person experienced and trained in installing and repairing Aviva  Pools™products, except to the extent any claimed defects or damages are unrelated to such work (for the avoidance of doubt, this exclusion shall not exclude coverage under the Structural Limited Warranty in all cases, but AVIVA shall have no responsibility or liability in connection with defects or damages arising out of or related to installation, repairs, alterations or other work by someone other than an AVIVA dealer or other person experienced and trained in installing and repairing Aviva  Pools™ products);

(iv)  failure to install the Pool level or in accordance with AVIVA’s installation guidelines, engineering specifications issued by AVIVA or its affiliates and/or all applicable codes, laws, rules and regulations;

(v)  normal wear and tear, mistreatment, abnormal use of the Pool, neglect, or alteration;  

(vi)  damages caused or contributed to by accident, abuse (whether chemical, accidental or deliberate), misuse or exposure to fire or hazards of nature;

(vii)  failure to comply with any written guidelines, specifications or instructions contained in the Aviva Pools swimming pool handbook provided to the Retail Purchaser, including without limitation with respect to Pool maintenance and the use of proper chemicals;

(viii)  if the Pool is emptied to a level less than the skimmer box or by more than thirty percent (30%) of the water capacity of the Pool (whichever is the lesser) without the prior written consent of AVIVA; 

(ix)  if the Pool is allowed to overflow with water; 

(x)  failure to maintain a monthly written record of the water levels in the Pool, including the levels of chlorine, free chlorine, pH, total alkalinity and calcium hardness (with calcium hardness to be tested by a pool shop at least every 6 months); 

(xi)  failure to maintain the pH level of the water in the Pool between 7.2 and 7.4, the total alkalinity level between 80 to 120 parts per million, and/or the free chlorine level between 1 and 3 parts per million; 

(xii)  damages caused or contributed to by the water chemistry in the Pool outside of any standard operating water conditions set forth in the Aviva Pools swimming pool handbook provided to the Retail Purchaser; 

(xiii) damages or alterations caused or contributed to by the use of improper or incorrect chemicals;

(xiv) failure to maintain the Pool in good order and condition;

(xv)  water loss due to failure of pipe fittings, inlet fittings, outlet fittings, solar connections, manifold, skimmer, hydrostatic valve relief, light fittings or anything connected to the Pool; 

(xvi)  the coping (top edge around the perimeter of the Pool), which is not considered part of the Pool for Limited Warranty purposes and which AVIVA recommends be covered with concrete, pavers, tiles or other suitable covering subject to applicable conditions;

(xvii)  any equipment used in connection with the Pool or any other accessories or surrounds, including without limitation waterfalls or fountains and decks, concrete, wood, masonry or other surrounds; 

(xviii)  changes in color, fading of color or stains of the internal gelcoat finish of the Pool or the external finish of the Pool;

(xix)  damages sustained during or as a result of loading, transporting or unloading by the Retail Purchaser or a third party;

(xx)  problems attributable to any specifications, drawings, information and/or data supplied to AVIVA or its affiliates by or at the direction of the Retail Purchaser, whether or not accepted by AVIVA or its affiliates; 

(xxi)  any goods or components not manufactured by AVIVA or its affiliates; 

(xxii) surface cracking and surface imperfections on the internal and external surface finish of the Pool; 

(xxiii) damages caused or contributed to by inadequate site drainage or incorrect deck installation; or

(xxiv) damage to or failure resulting from any attachments to the Pool such as fittings, skimmers, piping, lighting fixtures, wiring, rails, ladders, slides or any other accessories.

10.2 Surface Limited Warranty. 

(a) Surface Limited Warranty. Subject to the exclusions and conditions listed herein, AVIVA warrants the surface of the Pool against excessive pigmentation change caused by defects in manufacturing workmanship and materials for a period beginning on the date the Retail Purchaser purchases the Pool (the "Purchase Date") and ending on the date that is ten (10) years from the Purchase Date, so long as the Retail Purchaser owns the Pool (the "Surface Limited Warranty"). This Surface Limited Warranty is accepted by the Retail Purchaser with the understanding that, with exposure to the elements and time, some color and surface degradation may occur. While necessary chemicals for the Pool may be obtained from any company, AVIVA recommends that only chemicals purchased from AVIVA or its affiliates be used. The use of improper or incorrect chemicals voids the Surface Limited Warranty.

(b) Required Retail Purchaser Actions Under Surface Limited Warranty. To obtain Surface Limited Warranty services,the Retail Purchaser must (i) return a completed warranty card prior to any Surface Limited Warranty services and within six (6) months of delivery of the Pool; (ii) notify AVIVA  in writing within seven (7) days of becoming aware of a potential Surface Limited Warranty claim; (iii) provide AVIVA and/or its affiliates, agents or subcontractors a reasonable opportunity to inspect the Pool and the installation or use thereof and records kept in connection therewith; and (iv) have paid AVIVA or its designated sales affiliate the Purchase Price (as defined in Section 10.3(c)) for the Pool in full (collectively, the "Retail Purchaser Surface Limited Warranty Actions"). The AVIVA mailing address, warranty department and address and warranty telephone number for purposes of the foregoing are as follows: Aviva Pools Warranty Department, 2901 Leisure Island Way, Knoxville, TN 37914, telephone number (865) 281-1604.

(c) Exclusions to Surface Limited Warranty. The Surface Limited Warranty shall not apply in connection with any of the following: 

(i)  failure to complete any of the Retail Purchaser Surface Limited Warranty Actions above; 

(ii)  damages or alterations caused or contributed to by acts of nature including but not limited to earthquake, ground movement, storm or flood, inadequate site drainage, excessive hydrostatic pressure, ground water, run-off water, underground springs, underground obstructions, tree roots or heavy water flow into the Pool; 

(iii)  installation, repairs, alterations or other work by someone other than an Aviva Pools dealer or other person experienced and trained in installing and repairing Aviva Pools™ products, except to the extent any claimed defects or damages are unrelated to such work (for the avoidance of doubt, this exclusion shall not exclude coverage under the Surface Limited Warranty in all cases, but AVIVA shall have no responsibility or liability in connection with defects or damages arising out of or related to installation, repairs, alterations or other work by someone other than an AVIVA dealer or other person experienced and trained in installing and repairing Aviva  Pools™ products);

(iv)  failure to install the Pool level or in accordance with AVIVA’s installation guidelines, engineering specifications issued by AVIVA or its affiliates and/or all applicable codes, laws, rules and regulations; 

(v)  normal wear and tear, mistreatment, abnormal use of the Pool, neglect, or alteration; 

(vi)  damages caused or contributed to by accident, abuse (whether chemical, accidental or deliberate), misuse or exposure to fire or hazards of nature;

(vii)  failure to comply with any written guidelines, specifications or instructions contained in the Aviva Pools swimming pool handbook provided to the Retail Purchaser, including without limitation with respect to Pool maintenance and the use of proper chemicals;

(viii)  if the Pool is emptied to a level less than the skimmer box or by more than thirty percent (30%) of the water capacity of the Pool (whichever is the lesser) without the prior written consent of AVIVA; 

(ix)  if the Pool is allowed to overflow with water; 

(x)  failure to maintain a monthly written record of the water levels in the Pool, including the levels of chlorine, free chlorine, pH, total alkalinity and calcium hardness (with calcium hardness to be tested by a pool shop at least every 6 months); 

(xi)  failure to maintain the pH level of the water in the Pool between 7.2 and 7.4, the total alkalinity level between 80 and 120 parts per million, the calcium level between 150 and 200 parts per million, and/or the free chlorine level between 1 and 3 parts per million; 

(xii)  damages caused or contributed to by the water chemistry in the Pool outside of any standard operating water conditions set forth in the Aviva Pools swimming pool handbook provided to the Retail Purchaser; 

(xiii) damages or alterations caused or contributed to by the use of improper or incorrect chemicals;

(xiv) damages or alterations caused or contributed to by chlorine tablets resting on the surface of the Pool;

(xv) failure to maintain the Pool in good order and condition;

(xvi)  the coping (top edge around the perimeter of the Pool), which is not considered part of the Pool for Limited Warranty purposes and which AVIVA recommends be covered with concrete, pavers, tiles or other suitable covering subject to applicable conditions;

(xvii)  minor to moderate pigmentation changes in color, fading of color or stains of the internal gelcoat finish of the Pool or the external finish of the Pool; 

(xviii)  damages sustained during or as a result of loading, transporting or unloading by the Retail Purchaser or a third party; 

(xix) surface cracking and surface imperfections on the internal and external surface finish of the Pool; 

(xx) damages caused or contributed to by inadequate site drainage or incorrect deck installation; or

(xxi) damage to or failure resulting from any attachments to the Pool such as fittings, skimmers, piping, lighting fixtures, wiring, rails, ladders, slides or any other accessories.

10.3 Other Conditions. The following shall apply in connection with the Limited Warranty, including both the Structural Limited Warranty and the Surface Limited Warranty:

(a) Damages Limitation. THE LIMITED WARRANTY DOES NOT COVER THE COST OF REMOVAL, REINSTALLATION, TRAVEL, LODGING, LOSS OF TIME OR USE OF THE POOL, INCONVENIENCE, DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION ANY FENCING, GRASS, PLANTS, DRIVEWAYS, SIDEWALKS, TREES, PATIOS OR OTHER IMPROVEMENTS) OR OTHER INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM ANY DEFECT OR IN CONNECTION WITH ANY REPLACEMENT OR REPAIR HEREUNDER.  SOME STATES OR PROVINCES DO NOT ALLOW EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE RETAIL PURCHASER WITH RESPECT TO THE LIMITED WARRANTY.

(b) Disclaimers. NEITHER AVIVA NOR ANY OF ITS AFFILIATES MAKES ANY EXPRESS WARRANTY OF ANY KIND OTHER THAN THE EXPRESS LIMITED WARRANTY HEREIN, WHICH MAY NOT BE ALTERED IN ANY MANNER WITHOUT THE EXPRESS WRITTEN CONSENT OF AVIVA. IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED TO THE DURATION OF THE LIMITED WARRANTY FOR PRODUCTS COVERED THEREBY. SOME STATES OR PROVINCES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE RETAIL PURCHASER. ALL IMPLIED WARRANTIES, WHETHER STATUTORY OR OTHERWISE, ON PRODUCTS OR SALES NOT COVERED BY THE LIMITED WARRANTY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, NON-INFRINGEMENT AND TITLE, ARE HEREBY EXPRESSLY DISCLAIMED BY AVIVA AND ITS AFFILIATES AND WAIVED TO THE FULLEST EXTENT ALLOWED BY LAW AND SUCH PRODUCTS ARE SOLD "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ANY WARRANTIES IN CONNECTION THEREWITH IMPLIED BY ANY COURSE OF DEALING OR USAGE ARE EXPESSLY EXCLUDED. 

(c) Remedies. If the Limited Warranty is applicable, AVIVA shall, at its option, either repair or replace the defective Pool, or may refund the Purchase Price, or a portion thereof, in its sole discretion, which repair, replacement or refund may be effected directly by AVIVA or through its designated affiliate at the discretion of AVIVA.  Any such warranty replacement or repair shall only be warranted until the conclusion of the original warranty term.  In the event AVIVA chooses to repair the Pool, it will repair it so that it can retain water.  Neither AVIVA nor its affiliates shall be responsible for any cost to refill the Pool or chemically condition the Pool water. The Retail Purchaser is responsible for draining and bracing the Pool, and for removing all hydrostatic (ground water) from around the Pool.  Warranty repairs may (i) require modification to the Pool, including without limitation modification to the length, width, depth or texture of the Pool; (ii) require the removal or sanding off of the non-skid finish of the Pool and the reapplication thereof; and/or (iii) result in a different appearance of the repaired area from the original condition of the Pool, including without limitation gelcoat repairs resulting in a color or shade variance from the original gelcoat color. IN NO EVENT SHALL THE LIABILITY OF AVIVA AND ITS AFFILIATES UNDER THE LIMITED WARRANTY EXCEED THE PURCHASE PRICE PAID TO AVIVA OR ITS DESIGNATED SALES AFFILIATE, AS APPLICABLE, FOR THE POOL. FOR THE AVOIDANCE OF DOUBT, THE "PURCHASE PRICE" PAID TO AVIVA OR ITS DESIGNATED SALES AFFILIATE FOR THE POOL MEANS EITHER (A) THE WHOLESALE PRICE PAID BY THE APPLICABLE AVIVA DEALER IF THE RETAIL PURCHASER PURCHASED THE POOL FROM A DEALER OR (B) THE RETAIL PRICE PAID BY THE RETAIL PURCHASER TO AVIVA OR ITS DESIGNATED SALES AFFILIATE IFTHE RETAIL PURCHASER PURCHASED THE POOL DIRECTLY FROM AVIVA OR ITS DESIGNATED SALES AFFILIATE, WITH THE PURCHASE PRICE IN EACH CASE BEING ONLY THAT PAID FOR THE SHELL OF THE POOL ITSELF AND NO OTHER RELATED PRODUCTS, EQUIPMENT, COPING, SURROUNDS, LANDSCAPING OR OTHER WORK OR ASSOCIATED PROJECT COSTS. THE REMEDIES SET FORTH IN THIS SECTION CONSTITUTE THE RETAIL PURCHASER'S SOLE AND EXCLUSIVE REMEDIES, AND THE SOLE OBLIGATION AND LIABILITY OF AVIVA AND ITS AFFILIATES, FOR ANY BREACH OF THE LIMITED WARRANTY. 

(d) Transfer of Limited Warranty. The Retail Purchaser may transfer the Limited Warranty within five (5) years of the date the Pool was originally purchased by notifying AVIVA in writing of the change in ownership and providing AVIVA with the name, address, telephone number and email address of the new owner (the "Authorized Transferee"). Any such transfer must occur within one (1) month of the change in ownership and shall be effective when the Authorized Transferee has received the Aviva Pools swimming pool handbook and Limited Warranty from AVIVA. 

(e) Third Party Products. Neither AVIVA nor its affiliates shall have any warranty or other obligations with respect to goods or materials manufactured by third parties and the warranty, if any, of the respective third-party manufacturer will instead apply.  The Retail Purchaser agrees that the disclaimers in Section 10.3(b) above shall apply equally to such goods or materials manufactured by third parties.

(f) Applicable Law; Jurisdiction and Venue. The Limited Warranty gives the Retail Purchaser specific legal rights, and the Retail Purchaser may also have other rights which vary from state to state or among provinces. To the fullest extent permitted, the laws of the State of Tennessee shall apply to disputes arising from or relating to this Limited Warranty and/or the Pool without regard to conflicts of law principles. Except to the extent prohibited by applicable law, and subject to the provisions of Section 10.3(g) (without limiting or waiving the provisions of that Section), the Retail Purchaser and AVIVA irrevocably agree to submit to the exclusive jurisdiction of the state or federal courts located in Knoxville, Knox County, Tennessee or, to the extent AVIVA’s headquarters are at any time relocated outside Knoxville, Tennessee, then in the city and county in which AVIVA’s principal place of business is then located, for the resolution of any disputes arising from or relating to this Limited Warranty and/or the Pool.

(g) Arbitration; Waiver of Class Actions and Jury Trial. Except to the extent expressly prohibited by applicable law, and subject to the provisions of this Section and Section 10.3(f) herein, any and all claims and disputes arising out of or in connection with this Limited Warranty and/or the Pool shall be submitted to and settled by binding arbitration under the authority of the Federal Arbitration Act. In the event a court determines that this limitation on joinder or class action certification of claims is unenforceable, then this entire commitment to arbitrate will become null and void and the parties must submit all claims to the jurisdiction of the courts. The arbitration shall take place in Knoxville, Knox County, Tennessee or, if AVIVA has relocated its headquarters from Knoxville, Tennessee, then in the city where AVIVA’s headquarters are located at the time of the dispute. The arbitrator must follow the law and may not disregard the express terms of this Limited Warranty. Notwithstanding the foregoing, the arbitration requirements of this Section shall not apply to any action for declaratory or equitable relief, including without limitation injunctive relief, brought at any time, including without limitation prior to or during the pendency of any arbitration proceedings initiated hereunder.WHERE PERMITTED BY APPLICABLE LAW, THE RETAIL PURCHASER AND AVIVA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER (AND/OR THE OTHER’S AFFILIATES) ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT IN A PRIVATE ATTORNEY GENERAL CAPACITY OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, AND NEITHER WILL SEEK TO COORDINATE OR CONSOLIDATE ANY CLAIMS HEREUNDER WITH ANY OTHER PROCEEDING. Unless both the Retail Purchaser and AVIVA agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. Subject to the foregoing arbitration requirements, and without limiting or waiving the same, each of the Retail Purchaser and AVIVA acknowledges and agrees that it has had an opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the subject matter hereof, the provisions of any federal, provincial, state or local law, regulation or ordinance that can be waived by contract notwithstanding. SOME STATES DO NOT PERMIT THE WAIVER OF A JURY TRIAL, SO THIS PROVISION MAY NOT APPLY TO THE RETAIL PURCHASER.

(h) Sole Agreement. The Limited Warranty is accepted by the Retail Purchaser with the understanding that it is the sole warranty offered by AVIVA or any of its affiliates applicable to the Pool and supersedes any prior understandings, agreements or representations, whether written or oral, by or among AVIVA and/or its affiliates and the Retail Purchaser regarding the Limited Warranty.

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11. Returns; Cancellations.

No returns, exchanges or credits are permitted unless otherwise agreed in writing by AVIVA. To the fullest extent permitted by law, unless otherwise agreed in writing by AVIVA, any Product that has been delivered to Buyer may only be returned to AVIVA  if it is, subject to compliance with Section 7, defective or damaged in some way or subject to a recall issued by AVIVA  or its affiliates and provided that any defect, damage or recall is not, to any extent, the direct or indirect result of any act, omission or thing done, or permitted to be done, by Buyer or Buyer's Representatives or any breach of the Agreement by Buyer or Buyer's Representatives.  If Buyer cancels an Order, Buyer shall nevertheless be responsible for payment in full of the purchase price unless otherwise agreed in writing by AVIVA. 

12. Limitations of Liability; Indemnification.

12.1 If Buyer is an AVIVA dealer or franchisee, limitations of liability and indemnification shall be as provided in the applicable dealer or franchise agreement, if any. If Buyer is not an AVIVA dealer or franchisee or if Buyer has not entered into a dealer or franchise agreement with AVIVA, the provisions of this Section 12 shall apply. 

12.2 IN NO EVENT WILL AVIVA OR ANY OTHER INDEMNITEE (AS DEFINED BELOW) HAVE ANY LIABILITY TO BUYER IN ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING ANY BREACH OF THE LIMITED WARRANTY IN SECTION 10 HEREOF,  FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, DOWNTIME, TRANSPORTATION COSTS, OR LOST REVENUES, PROFITS, PRODUCTS OR SIMILAR LOSS OR EXPENSE INCURRED BY BUYER, ITS AFFILIATES OR REPRESENTATIVES OR ANY THIRD PARTY, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT AVIVA  OR ANY OTHER INDEMNITEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN THOUGH CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF AVIVA  OR ANY OTHER INDEMNITEE. IN CONNECTION WITH THE LIMITED WARRANTY, SOME STATES OR PROVINCES DO NOT ALLOW EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO BUYER WITH RESPECT TO THE LIMITED WARRANTY. 

12.3 Subject to Section 12.2 and other applicable limitations contained in these Terms and Conditions, THE LIABILITY OF AVIVA AND ITS AFFILIATES ON ANY BASIS, INCLUDING NEGLIGENCE, TORT, CONTRACT, STATUTE OR OTHERWISE, IN RESPECT OF ANY LOSS SUFFERED OR INCURRED BY BUYER, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES OR INVITEES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE TOTAL PURCHASE PRICE PAID TO AVIVA OR ITS DESIGNATED SALES AFFILIATE FOR THE APPLICABLE PRODUCTS. THIS LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL EXPENDITURES OF AVIVA AND ITS AFFILIATES BEING AGGREGATED TO DETERMINE SATISFATION OF THE LIMIT. BUYER HEREBY RELEASES AVIVA AND ITS AFFILIATES FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION.

12.4 UNDER NO CIRCUMSTANCES SHALL A PARTY OR ITS AFFILIATES' LIABILITY HEREUNDER EXTEND TO ANY PORTION OF ANY CLAIM THAT ARISES FROM, OR IS CAUSED IN WHOLE OR IN PART BY, AN ACT OR OMISSION OF THE OTHER PARTY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AVIVA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES INCURRED BY BUYER ARISING OUT OF OR RELATING TO (A) BUYER OR ITS AFFILIATES' OR REPRESENTATIVES' IMPROPER OR UNAUTHORIZED USE, HANDLING, MAINTENANCE OR INSTALLATION OF THE PRODUCTS, TRANSPORTING OR LOADING/UNLOADING OF ANY PRODUCTS, OR ANY IMPROPER USE OR DISCLOSURE OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION OF AVIVA AND/OR ITS AFFILIATES; OR (B) ANY INFORMATION, DATA OR SPECIFICATIONS SUPPLIED BY OR AT THE DIRECTION OF BUYER, ITS AFFILIATES OR REPRESENTATIVES, OR ANY MODIFICATION OR ALTERATION OF A PRODUCT BY OR ON BEHALF OF BUYER WITHOUT AVIVA'S PRIOR WRITTEN CONSENT.

12.5 Buyer shall indemnify, defend and otherwise hold AVIVA, its affiliates and their respective officers, directors, managers, members, shareholders, unitholders, employees, agents, attorneys, lawyers, successors and assigns (each an "Indemnitee" and collectively, the "Indemnitees") harmless from and against any and all liability, loss, claims, suits, damages, causes of action and costs, including without limitation reasonable attorney's and/or lawyer's fees, allocable fees of in-house counsel, consulting and expert witness fees, costs and expenses, arising directly or indirectly from, related to or incurred in connection with: (a) a breach by Buyer of its obligations under the Agreement; (b) any willful, unlawful, fraudulent, negligent or tortious act or omission of Buyer or its affiliates, or their respective Representatives; (c) any improper or unauthorized use, handling, installation, care or maintenance of the Products or any unauthorized use or disclosure of any intellectual property or Confidential Information (as defined below) of AVIVA or its affiliates by Buyer, its affiliates or their respective Representatives; (d) the collection, securing, transporting, loading and unloading, if any, of Products by Buyer or its carrier; and (e) any information or specifications supplied to AVIVA or its affiliates by or at the direction of Buyer, or any item originally supplied by AVIVA or its affiliates that is modified or altered in any manner by or at the direction of Buyer, its affiliates or their respective Representatives. 

12.6 The Parties acknowledge that each of them relied upon the inclusion of the foregoing limitations in this Section 12 in consideration of entering into the Agreement. 

12.7 The provisions of this Section 12 shall survive any termination of the Agreement.

13. Design Changes; No License.

AVIVA reserves the right to alter, modify or redesign its products without any obligation to replace previous shipments to Buyer. The sale of Products shall not itself confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by AVIVA, its subsidiaries, affiliates or suppliers, it being specifically understood and agreed that all such rights are reserved to AVIVA, its subsidiaries, affiliates or suppliers. Without limiting the foregoing, Buyer will not, without AVIVA's prior written consent, use any trademark or trade name of AVIVA or its affiliates in connection with any of the Products or otherwise.  

14. AVIVA Intellectual Property and Confidential Information.

If Buyer is an AVIVA dealer or franchisee, the provisions of the dealer or franchise agreement, if any and as applicable, shall apply with respect to confidentiality and with respect to intellectual property of AVIVA and its affiliates. If Buyer is not an AVIVA  dealer or franchisee or if Buyer has not entered into a dealer or franchise agreement with AVIVA, Buyer acknowledges and agrees that (a) AVIVA or its applicable affiliate is the owner, assignee or licensee of Confidential Information (as defined below) and various intellectual property rights, including without limitation swimming pool designs, trade names, trademarks, copyrights and designs and insignia relating to the Products; (b) Buyer will not have or acquire any rights in or to such intellectual property or Confidential Information and no license by implication, estoppel or otherwise under any intellectual property rights is granted to Buyer hereunder; (c) Buyer will keep all Confidential Information in strict confidence, will treat it with not less than the same degree of care with which Buyer treats its own confidential information (but in no event less than reasonable care), and will not disclose any Confidential Information directly or indirectly to any third party without the prior written consent of AVIVA ; and (d) neither Buyer, nor any agent, contractor, subsidiary or representative of Buyer shall in any way copy, duplicate, adjust, alter, deface, remove, cover up or mutilate in any manner the intellectual property or Confidential Information of AVIVA or its affiliates. "Confidential Information," as used herein, means all information whether now in existence or hereafter developed, regardless of its form or the medium in which it is stored, that is treated by AVIVA or its affiliates as confidential or is not generally known by third parties without reasonable restriction and that is disclosed to Buyer by or on behalf of AVIVA or its affiliates. Confidential Information does not include information which (a) is or becomes, through no fault or breach of Buyer, generally and publicly available and in the public domain; or (b) becomes available to Buyer on a non-confidential basis from a source other than AVIVA that has the right to transfer such information to Buyer; provided, however, the burden of proving the applicability of the foregoing exclusions will reside with Buyer.  

15. Miscellaneous.

15.1 Unless otherwise provided in any dealer or franchise agreement, as applicable, if Buyer is an AVIVA dealer or franchisee, any notices hereunder shall be given as provided herein, shall be in writing and in the English language and shall be delivered by hand, sent by certified mail (postage prepaid, return receipt requested) or reputable overnight express delivery service or, to the extent delivery is acknowledged by a reply confirmation of receipt, sent by facsimile, and shall be deemed given upon personal delivery, three (3) business days after deposit in the mail, the next day after deposit with an overnight express delivery service or upon acknowledgment of receipt of facsimile transmission. Unless otherwise notified in writing by either Party in accordance with this Section, notices shall be sent to Buyer to the address and facsimile number listed on the Order and to AVIVA as follows: 


Aviva Pools 

ATTN: President 

2901 Leisure Island Way 

Knoxville, TN 37914 

Phone: (865) 281-1604 

Facsimile: (865) 219-2889


With an additional copy of any notices of a legal nature to be sent by Buyer to AVIVA addressed as above, but to the attention of "General Counsel."

15.2 If, but only to the extent that, any provision of the Agreement is declared or found to be illegal, unenforceable or void, then both Parties shall be relieved of all obligations arising under such provision, provided that (a) the remainder of the Agreement not affected by such provision shall be enforced to the fullest extent permitted by law; (b) it is the specific intent and request of the Parties that the court, arbitrator or other adjudicative body called upon to interpret or enforce the Agreement modify such provision to the minimum extent necessary so as to render it enforceable while preserving the intent of the Parties; and (c) if such amendment is not possible, another provision that is legal and enforceable and achieves the same objectives shall be substituted therefor. 

15.3 If either Party brings any action for relief against the other, declaratory or otherwise, the prevailing Party shall be entitled to recover reasonable legal fees (including without limitation attorneys and/or lawyers' fees and expert witness fees) and expenses in such action in addition to any other recovery to which the prevailing Party is entitled. 

15.4 Neither the failure nor any delay to exercise a right, remedy or privilege under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same.

15.5 Except to the extent expressly prohibited by applicable law, and subject to the provisions of Sections 15.6 and 15.7 below, any and all claims and disputes arising out of or in connection with the Agreement shall be submitted to and settled by binding arbitration under the authority of the Federal Arbitration Act. The arbitration shall take place in Knoxville, Knox County, Tennessee or, if AVIVA has relocated its headquarters from Knoxville, Tennessee, then in the city where AVIVA ’s headquarters are located at the time of the dispute. The arbitrator must follow the law and may not disregard the express terms of the Agreement. Notwithstanding the foregoing, the arbitration requirements of this Section shall not apply to any action for declaratory or equitable relief, including without limitation injunctive relief, brought at any time, including without limitation prior to or during the pendency of any arbitration proceedings initiated hereunder.WHERE PERMITTED BY APPLICABLE LAW, BUYER AND AVIVA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER (AND/OR THE OTHER’S AFFILIATES) ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT IN A PRIVATE ATTORNEY GENERAL CAPACITY OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, AND NEITHER WILL SEEK TO COORDINATE OR CONSOLIDATE ANY CLAIMS HEREUNDER WITH ANY OTHE PROCEEDING. Unless both Buyer and AVIVA agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.  In the event a court determines that this limitation on joinder or class action certification of claims is unenforceable, then this entire commitment to arbitrate will become null and void and the parties must submit all claims to the jurisdiction of the courts.

15.6 SUBJECT TO THE FOREGOING ARBITRATION REQUIREMENTS, AND WITHOUT LIMITING OR WAIVING THE SAME, EACH OF BUYER AND AVIVA ACKNOWLEDGES AND AGREES THAT IT HAS HAD an opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the subject matter hereof, the provisions of any federal, provincial, state or local law, regulation or ordinance notwithstanding.

15.7 The Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee without giving effect to principles of conflict of law. Subject to (and without waiving) the dispute resolution provisions of the applicable dealer or franchise agreement and/or the provisions of Sections 15.5 and 15.6 above, as applicable, Buyer and AVIVA irrevocably agree to submit to the exclusive jurisdiction of the state or federal courts located in Knoxville, Knox County, Tennessee or, to the extent AVIVA’s headquarters are at any time relocated outside Knoxville, Tennessee, then in the city and county in which AVIVA’s principal place of business is then located, for the resolution of any disputes arising from or relating to the Agreement. If Buyer is located in Louisiana, Buyer hereby waives redress under Section 9:2779 of the Louisiana Revised Statutes, if applicable, as it relates to the forum and choice of law for any orders. 

15.8 Titles or headings herein are intended for convenience of reference only and shall not affect the interpretation of any provision.

15.9 The Parties shall comply with all applicable laws, regulations and ordinances. Without limiting the foregoing, in no event shall Buyer take any actions contrary to the export and import laws and regulations of any country involved in the transactions contemplated by the Agreement.

15.10 Buyer acknowledges that it has not been induced to purchase any Products from AVIVA by any representation or warranty not expressly set forth in the Agreement. 

15.11 The Parties understand and agree that they are not partners, joint venturers, or agents of one another and that nothing herein authorizes either one of them to make any contract, agreement, warranty or representation on the other’s behalf, or to incur any debt or other obligation in the other’s name. 

15.12 The Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any construction in favor of or against the other Party.

15.13 The Agreement may not be assigned by Buyer, in whole or in part, by operation of law or otherwise without the prior written consent of AVIVA. Any purported assignment without such consent shall be void and unenforceable. The Agreement shall bind and inure to the benefit of the Parties and their successors and permitted assigns. Any purchaser of AVIVA or of all or substantially all of the assets of AVIVA shall be entitled to the benefits of the Agreement, whether or not the Agreement is assigned to such purchaser.

15.14 Buyer covenants and agrees that, subsequent to the execution and delivery of the Agreement and without any additional consideration, Buyer will execute and deliver any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate the Agreement. 

15.15 The provisions of Section 1 (Applicability; Acceptance and Agreement), Section 2 (Entire Agreement; Conflicts; Amendment), Section 3 (Pricing; Taxes), Section 4 (Payment; Credit Terms), Section 7 (Title; Risk of Loss; Inspection), Section 8 (Force Majeure), Section 9 (Buyer Representations and Warranties), Section 10 (Limited Warranty), Section 12 (Limitations of Liability; Indemnification), Section 13 (Design Changes; No License), Section 14 (AVIVA Intellectual Property and Confidential Information) and this Section 15 (Miscellaneous), and any provisions specified as surviving in any other document expressly made a part of the Agreement, shall survive the termination or expiration of the Agreement for any reason. 

15.16 The Agreement may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one instrument. Facsimile, PDF, electronic and scanned signatures shall be deemed originals. Each Party represents that the person signing on behalf of such Party has the right, power and authority to execute the Agreement.