Aqua Spas Terms & Conditions of Sale
.
AQUA SPAS
TERMS AND CONDITIONS OF SALE
Sale, Delivery and Installation of Spa and Wellness Products
Republic of South Africa | Effective date: 17/09/2026
IMPORTANT – PLEASE READ. These Terms contain provisions that limit Aqua Spas’ liability, place risks and responsibilities on you, and – because our Products are custom-manufactured to your order – restrict your ability to cancel an order or return a Product once manufacturing has begun. The clauses that do this are printed in bold where they appear. Nothing in these Terms limits any right you have under the Consumer Protection Act 68 of 2008 that cannot lawfully be limited. If anything here is unclear, please ask us before you place your order.
1. SUPPLIER INFORMATION
In accordance with section 43 of the Electronic Communications and Transactions Act 25 of 2002, our details are:
1.1 Trading name: Aqua Spas
1.2 Registered name and legal status: Aqua Spas (Pty) Ltd, a private company incorporated in the Republic of South Africa
1.3 Registration number: 2023/549450/07 VAT number: 4270315551
1.4 Registered / head office and showroom: Hibernian Towers, 120 Beach Road, Strand, Western Cape, 7139
1.5 Assembly factory and address for returns: Pryde Park , Broadlands , Gordons Bay Unit 7 ,Western Cape, 7140
1.6 Other premises: Pryde Park , Broadlands , Gordons Bay Unit 4
1.7 Telephone: +27 21 023 0305 / +27 87 550 2268 WhatsApp: +27 79 096 7950
1.8 Email: office@aquaspas.co.za / admin@aquaspas.co.za / sales@aquaspas.co.za Website: https://aquaspas.co.za
1.9 Trading hours: Monday to Friday 08:00–17:00; Saturday 09:00–12:00; closed on Sundays and public holidays.
1.10 Directors: Ruben Labuschagne
2. DEFINITIONS AND INTERPRETATION
In these Terms, unless the context indicates otherwise:
2.1.1 “Agreement” means these Terms read together with the accepted Quotation, the Order confirmation and any invoice issued in respect of the Order;
2.1.2 “Aqua Spas”, “we”, “us” or “our” means the entity identified in clause 1, its successors and assigns;
2.1.3 “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
2.1.4 “Customer”, “you” or “your” means the person or entity named on the Quotation or invoice;
2.1.5 “CPA” means the Consumer Protection Act 68 of 2008 and its regulations; the Consumer Protection Act is referred to in full at various points in these Terms for ease of reading, and every such reference means the same Consumer Protection Act 68 of 2008;
2.1.6 “Deposit” means the payment referred to in clause 8.2 required to initiate manufacture;
2.1.7 “ECTA” means the Electronic Communications and Transactions Act 25 of 2002;
2.1.8 “Manufacturer” means the independent third party that manufactures a Product;
2.1.9 “Order” means your instruction to Aqua Spas to supply the Products described in a Quotation, accepted in accordance with clause 7;
2.1.10 “POPIA” means the Protection of Personal Information Act 4 of 2013;
2.1.11 “Products” means the goods listed on the Quotation or invoice, including jacuzzis and spas, wood-fired hot tubs, ice baths, walk-in baths, saunas, splash pools, spa covers, spa parts and accessories;
2.1.12 “Quotation” means a written quotation issued by Aqua Spas;
2.1.13 “Service Provider” means an independent third-party courier, transport, crane or installation contractor engaged in relation to your Order, including our certified installers;
2.1.14 “Site” means the address at which the Products are to be delivered and, where applicable, installed;
2.1.15 “special-order goods” bears the meaning given to it in section 1 of the Consumer Protection Act, namely “goods that a supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the consumer’s requirements”;
2.1.16 “Writing” includes email, WhatsApp and other data messages as contemplated in ECTA.
2.2 Clause headings are for convenience only and do not affect interpretation. Words importing the singular include the plural and vice versa, and words importing one gender include the others.
2.3 A reference to any legislation is a reference to that legislation as amended, re-enacted or replaced from time to time.
2.4 “Including”, “include” and “in particular” are not words of limitation.
2.5 No provision will be interpreted against a Party solely because that Party was responsible for drafting it.
2.6 Where any number of days is prescribed, those days are calculated by excluding the first and including the last day, and if the last day is not a Business Day, the period runs to the next Business Day.
3. APPLICATION AND ACCEPTANCE
3.1 These Terms apply to every Quotation, Order, invoice, sale, delivery and installation by Aqua Spas, and to your use of our website. Read together with the accepted Quotation, they form the entire agreement between you and Aqua Spas.
3.2 You accept these Terms by doing any of the following, whichever occurs first: signing or accepting a Quotation in Writing; placing an Order through our website; paying a Deposit or any part of the purchase price; or accepting delivery of the Products.
3.3 These Terms apply to the exclusion of any terms you may seek to impose, including terms printed on a purchase order, and no such terms will bind Aqua Spas unless expressly accepted by us in Writing.
3.4 No variation, waiver or cancellation of these Terms is of any force or effect unless recorded in Writing and signed by a duly authorised representative of Aqua Spas.
3.5 We may amend these Terms from time to time by publishing an updated version on our website. The version applicable to your Order is the version in force on the date your Order is accepted under clause 7.2, and we will make that version available to you on request.
3.6 In accordance with section 22 of the Consumer Protection Act, these Terms are intended to be in plain and understandable language. If any provision is unclear to you, contact us before placing your Order and we will explain it.
4. USE OF OUR WEBSITE AND INTELLECTUAL PROPERTY
4.1 Use of our website is limited to browsing, making legitimate purchases and other lawful purposes. You may not use the website to make false, speculative or fraudulent purchases, or to place orders you do not intend to pay for.
4.2 All content on our website – including text, images, photographs, product renderings, layouts, logos, trade marks and design elements – is owned by or licensed to Aqua Spas and is protected by law. You may not copy, reproduce, republish, distribute, adapt, scrape, data-mine, frame, embed or deep-link to that content without our prior written consent.
4.3 We may modify, suspend or withdraw the website, or any part of it, and may change the range and availability of Products, at any time and without notice. We will not be liable to you for doing so, save to the extent that we have already accepted your Order.
4.4 Website content, including product descriptions and specifications, is provided for information purposes and we do not warrant that it is complete, accurate or current at every moment. This clause does not limit your rights under clause 17 or the Consumer Protection Act in respect of Products actually supplied to you.
4.5 Our website may link to third-party sites. We do not control and are not responsible for their content.
4.6 Product names used descriptively on our website and in our marketing material (for example “spa”, “hot tub”, “jacuzzi-style bath” or “walk-in tub”) refer to a general category of product and are not intended to invoke, and do not imply any licence to use, any third party’s registered trademark. Any third-party trademarks that may appear or be referenced remain the property of their respective owners. We will act promptly on any reasonable, verified trademark concern raised with us.
5. PRODUCT INFORMATION, ILLUSTRATIONS, DIMENSIONS AND AVAILABILITY
Appearance and finishes
5.1 Actual product finishes may vary. Owing to differences in materials, batch variation in acrylics and timber, manufacturing processes, lighting and the display settings of your screen, the Product delivered may differ in colour, grain, texture or finish from samples, swatches or images shown to you. We take reasonable steps to ensure quality and consistency, but slight variations are inherent in the products we supply and are possible.
5.2 All product images, finishes, colours, jet layouts, cabinet styles and other visual representations on our website, in brochures, on social media or in other promotional material are provided for illustrative purposes only. While we take reasonable steps to ensure accuracy, the Product delivered may differ in appearance, specification or configuration due to manufacturing processes, product updates, design improvements or component availability.
5.3 A variation of the kind described in clauses 5.1 and 5.2 is not, on its own, grounds for a claim, cancellation, return or refund, provided the Product performs its intended function and materially meets the specifications recorded in the accepted Quotation. This clause does not limit your rights under clause 17 where a Product is defective or does not meet its agreed specifications.
Dimensions and site suitability
5.4 All dimensions, weights, capacities and technical figures given in our marketing material are approximate and are provided as a guide. Before placing your Order you must satisfy yourself, using the figures confirmed in Writing on your Quotation or in the relevant installation manual, that the Product will fit the intended position and can be moved along the access route to it.
5.5 Where you have not verified dimensions and access as required by clause 5.4, and delivery or installation cannot be completed or additional equipment is required as a result, the resulting costs (including abortive delivery, storage, re-delivery and crane hire) are for your account. Nothing in this clause excludes our liability under clause 19.2.
Availability
5.6 Stock availability is not guaranteed. Where a Product or component you have ordered becomes unavailable, we will notify you and offer you a reasonable alternative or, if you do not accept the alternative, refund any amounts you have paid in respect of the unavailable item.
6. QUOTATIONS
6.1 A Quotation is valid for three (3) weeks from its date of issue. After that date it lapses and must be reconfirmed with Aqua Spas before it can be accepted.
6.2 A Quotation is not binding on Aqua Spas unless and until it has been checked and approved by a supervisor of Aqua Spas. Where a Quotation has not been so approved, we will tell you promptly and, if we cannot supply at the quoted price, you may either accept a corrected Quotation or cancel at no cost, in which event any amount you have paid will be refunded in full within 10 Business Days.
6.3 A Quotation is prepared on the basis of the information you supply, including site address, access details, floor level, electrical arrangements and product specification. If that information is incomplete or inaccurate, the price may change and we will notify you before proceeding.
6.4 Obvious errors, omissions or misprints in a Quotation, price list, invoice or website listing are not binding on Aqua Spas and may be corrected, provided we notify you before your Order is accepted or, if later, as soon as we become aware of the error. If a corrected price is materially higher, you may cancel without penalty and receive a full refund of anything paid.
6.5 All prices are in South African Rand (ZAR). The Quotation states whether prices include or exclude value-added tax and delivery.
6.6 Every Quotation is subject to, and must be read together with, these Terms as published at https://aquaspas.co.za/terms-conditions/.
7. ORDERS
7.1 You place an Order by accepting a valid Quotation in Writing and paying the Deposit required under clause 8.2.
7.2 An Order is only accepted, and an agreement of sale only comes into existence, when Aqua Spas confirms acceptance of the Order in Writing and the Deposit has reflected in our bank account in cleared funds. Automated acknowledgements of receipt are not acceptance.
7.3 You are responsible for the accuracy of the specification you order – including model, shell colour, cabinet finish, jet configuration, dimensions, cover size, shape and colour, door/step orientation and any bespoke feature. Because Products are manufactured to that specification, we manufacture strictly in accordance with the confirmed Order.
7.4 Before manufacturing begins, we will send you a written configuration summary covering the items in clause 7.3, together with a list of what is included in the Agreement Price and what is optional or excluded (for example steps, cladding upgrades or non-standard plumbing). You must check the Order confirmation and configuration summary carefully and notify us in Writing of any error within two (2) Business Days of receiving it. After that period, or once manufacturing has been initiated (whichever is earlier), the specification is treated as confirmed by you, and we will not be liable for a configuration issue that was accurately reflected in a summary you did not query within that period.
7.5 Requests to change an Order after manufacturing has been initiated may not be possible. Where a change can be accommodated, it is subject to our written agreement and to any additional cost, which we will quote to you before proceeding.
8. PRICES, DEPOSITS AND PAYMENT
8.1 All transactions are in South African Rand and may be settled by electronic funds transfer or by the online payment methods offered on our website. Payment must be made using the reference stated on the invoice, and proof of payment must be sent to office@aquaspas.co.za.
8.2 Deposit. Unless the Quotation states otherwise:
8.2.1 for jacuzzis and spas, wood-fired hot tubs, ice baths, walk-in baths, saunas and splash pools: a deposit of 60% of the purchase price is required to initiate the manufacturing process, and the remaining 40% is due before delivery or collection;
8.2.2 for spa covers, spa parts and accessories: payment in full is required up front.
8.3 The full balance of the purchase price, together with any agreed delivery and installation charges, must be received in cleared funds before the Product is delivered, collected or installed. We are not obliged to deliver, release or install a Product while any amount remains outstanding.
8.4 Payment must be made without deduction, set-off or withholding of any kind.
8.5 Amounts not paid on due date bear interest from the due date until date of payment, calculated daily and compounded monthly, at the maximum rate permitted by applicable law (and, where no other maximum applies, at the publicly quoted prime overdraft rate of our bankers from time to time plus 2%).
8.6 Where we are obliged to take steps to recover an overdue amount, you are liable for our reasonable costs of collection and legal costs actually incurred, subject to any limit imposed by law and, where the Consumer Protection Act applies, subject to those costs being reasonable.
8.7 Risk in payment rests with you until funds reflect in our account. We do not accept responsibility for payments made to any account other than the account stated on our official invoice. If you receive banking details purporting to come from Aqua Spas that differ from those on your invoice, telephone us on the number in clause 1.7 to verify them before paying.
8.8 In the same way, Aqua Spas will not release a Product or treat an Order as paid on the strength of a forwarded “payment notification” email alone. We independently verify that funds have cleared into our own bank account before releasing goods, and we will never ask you, by email alone, to change the banking details to which you pay us.
9. OUR ROLE: AQUA SPAS AS SUPPLIER AND RESELLER
9.1 Aqua Spas is a reseller and does not itself manufacture the Products. Aqua Spas exclusively provides all Products, which are manufactured by independent third-party Manufacturers.
9.2 Aqua Spas collaborates with certified installers and courier companies for the delivery and installation of the Products. Those Service Providers are independent contractors and are not employees or agents of Aqua Spas.
9.3 Where a Product proves defective, or a delivery or installation gives rise to a valid claim, we will assist you, as reasonably required, in referring and pursuing that claim with the responsible Manufacturer or Service Provider.
9.4 Clauses 9.1 to 9.3 describe how responsibility is allocated between us and our suppliers and contractors. They describe how we will direct claims to the party best placed to resolve them; they do not affect any right you have to enforce a claim directly against Aqua Spas where the Consumer Protection Act or other law gives you that right – see clause 17.6.
9.5 Where a Product is lost or damaged in transit before risk passes to you under clause 16.1, we – not you – will lodge and manage the claim against the responsible courier or Service Provider. You do not need to pursue the courier yourself. We will keep you reasonably informed of material developments and will, at our election and having regard to your installation timeline, repair the Product, expedite a replacement, or agree another remedy with you directly under clause 17. A dispute between us and a courier over the cause of damage, insurance recovery or transport charges will not be used to delay the remedy owed to you.
9.6 Our arrangements with our Manufacturer and Service Providers. We maintain written agreements with our Manufacturer and with the Service Providers who deliver and install our Products, under which they warrant their own work, carry their own liability insurance, and indemnify Aqua Spas for losses we suffer because of their defective manufacture or negligent delivery or installation. This is an arrangement between Aqua Spas and those suppliers – it is how we recover our own costs, and it does not reduce, delay or stand in the way of any remedy you are entitled to from Aqua Spas directly under clause 17, clause 20 or the Consumer Protection Act. You do not need to identify or pursue our Manufacturer or a Service Provider yourself; that is our responsibility, not yours.
10. CUSTOM MANUFACTURE, CANCELLATION AND DEPOSITS
10.1 All our Products are custom-made to order in accordance with the specification you confirm under clause 7. They are procured, created or altered specifically to satisfy your requirements, they are not held as generic stock, and, being made to your specification, generally cannot be resold to another customer. They are accordingly special-order goods as defined in section 1 of the Consumer Protection Act.
10.2 Significant cost, materials, production capacity and time are committed to manufacturing a Product as soon as your Order is placed and the manufacturing process is initiated.
10.3 For the reason set out in clause 10.2, once manufacturing of your Product has been initiated:
10.3.1 the Deposit is non-refundable; and
10.3.2 the Product itself is non-refundable, and Aqua Spas is not obliged to accept its return, to cancel the Order, or to refund any part of the purchase price,
save where you are entitled to a refund, repair or replacement under clause 17 or clause 18 (including your rights under the Consumer Protection Act where it applies) because the Product is defective, unsafe or does not meet its agreed specifications, or where any other law that cannot be excluded by agreement entitles you to a refund.
10.4 Manufacturing starts within 24 hours since your order has been placed .Cancellation before manufacturing is initiated. If you cancel your Order in Writing before manufacturing has been initiated, we will refund the Deposit less a reasonable cancellation charge covering the costs we have actually incurred or irrevocably committed at that point – for example design and drawing work, bespoke components already ordered from the Manufacturer, production slot booking and administration. We will give you a written breakdown of that charge.
10.5 Section 17 of the Consumer Protection Act – right to cancel an advance order – does not apply to special-order goods. Section 17(1) of the Consumer Protection Act expressly provides that that section does not apply “in respect of any special-order goods”. Because our Products are special-order goods (clause 10.1), the statutory right in section 17 to cancel an advance order subject to a reasonable cancellation penalty is not available in respect of them.
10.6 Notwithstanding clause 10.5, where you cancel before manufacturing has been initiated we will apply clause 10.4, and the charge we levy will be a fair amount in the circumstances having regard to the nature of the Product, the length of notice you gave, the reasonable potential for us to find an alternative buyer, and general practice in our industry.
10.7 No cancellation of the Agreement by you is of any force or effect unless it is given in Writing and acknowledged in Writing by Aqua Spas.
10.8 We will tell you, on request, whether manufacturing of your Product has been initiated and, if so, what stage it has reached.
10.9 If you are unable to accept delivery on the agreed date, you must notify us at least five (5) Business Days beforehand. We will store the Product for up to 5 days at no charge, after which reasonable storage charges of R500 per day apply, and risk in the Product passes to you from the date it was first tendered for delivery.
11. DELIVERY AND INSTALLATION CHARGES
11.1 Any delivery, freight, crane or installation cost shown on a Quotation is an estimate only, based on the information available to Aqua Spas at the time the Quotation is prepared.
11.2 Final delivery quotes may change and are subject to the costs charged by the relevant courier or installation company. The final charge is determined by the relevant Service Provider and may differ from the estimate for reasons outside our control, including distance, site access, floor level, road or weather conditions, fuel costs, crane or specialised handling requirements, and the specific requirements of the delivery or installation.
11.3 Where the final delivery or installation charge will be materially higher than the estimate, we will notify you before proceeding and you may elect to proceed at the revised charge, arrange your own transport or installation at your cost and risk, or collect the Product from our premises. Where reasonably possible we will obtain your agreement to any increase before the cost is incurred.
11.4 Delivery charges quoted are for delivery to the kerbside or nearest reasonably accessible point at the Site, unless the Quotation expressly provides for placement in position.
12. DELIVERY
12.1 We will deliver the Products to the Site on or about the date agreed with you, or where no date is agreed, within a reasonable time. Lead times quoted for custom manufacture are estimates in good faith and are not guaranteed.
12.2 Where we cannot deliver on the agreed date, we will notify you as soon as we reasonably can and agree a revised date. Your rights under section 19 of the Consumer Protection Act, including the right to cancel where delivery is materially late and we have not agreed a revised date with you, are not affected.
12.3 You or an authorised representative aged 18 or over must be present at the Site to accept and sign for delivery. If nobody is present at the agreed delivery time, a re-delivery charge is payable.
12.4 You must inspect the Product on delivery, before signing the delivery note, and record any visible damage, shortage or incorrect item on the delivery note. Where visible damage is not reasonably apparent on delivery, notify us in Writing within 48 hours of delivery. Notifying us late does not remove your rights under clause 17 or the Consumer Protection Act in respect of latent defects, but it may make it harder to establish where and when damage occurred.
12.5 Where a crane, hiab, tele-handler, additional labour or removal of fencing, gates, walls or roofing is required to place a Product, the cost and arrangement of that equipment or work is for your account unless expressly included in the Quotation.
12.6 See clause 9.5 for how a claim for Products lost or damaged in transit before delivery is handled.
13. DELIVERY PREPARATIONS AND SITE REQUIREMENTS
13.1 Unless otherwise agreed in Writing, you must ensure that all obstacles are cleared from the delivery route and the installation Site to allow safe and unimpeded delivery. Where this is not done, Aqua Spas and its Service Providers may need to reschedule delivery or installation, and any resulting additional cost may be charged to you.
13.2 Before the agreed delivery date you must ensure, at your cost, that:
13.2.1 the access route is clear, of sufficient width and height, and is safe and passable for the Product and the equipment needed to move it;
13.2.2 the base or foundation on which the Product will stand is level, structurally sound and able to bear the full weight of the Product when filled with water and occupied, and complies with the requirements set out in the applicable installation manual;
13.2.3 any required electrical supply is installed and available in accordance with clause 14;
13.2.4 any required water supply, drainage and, for wood-fired products, flue clearances and combustible-material clearances comply with the installation manual;
13.2.5 all necessary consents have been obtained, including any approval required from a body corporate, homeowners’ association, landlord or local authority, and any building plan approval required by law.
13.3 Obtaining the consents and approvals referred to in clause 13.2.5, and compliance with the National Building Regulations and any applicable municipal by-laws, including any requirement for pool or spa safety fencing or covers, is your responsibility and not ours.
13.4 Where Aqua Spas has itself been asked to submit documentation in support of a body corporate, homeowners’ association or municipal approval (for example electrical specifications or drainage information), we will ensure that documentation is complete and accurate before submission, and will not submit it piecemeal in a way likely to cause delay.
13.5 Where our Service Provider attends the Site and cannot complete delivery or installation because the Site is not ready as required by this clause 13, standing time and a further call-out or re-delivery charge is payable by you.
14. ELECTRICAL AND SERVICES REQUIREMENTS
14.1 The electrical requirements for each Product are set out in the installation manual for that Product, available on our website at https://aquaspas.co.za/installation-manuals. It is your responsibility to read the applicable manual and to ensure the installation Site meets those requirements before delivery and installation.
14.2 Providing the fixed electrical supply to the Product — including any dedicated circuit, correctly rated circuit breaker, earth leakage protection and isolator switch — is your responsibility and is not included in the price unless the Quotation expressly says so.
14.3 All electrical work must be carried out by a registered person as required by the Electrical Installation Regulations, 2009 made under the Occupational Health and Safety Act 85 of 1993. A Certificate of Compliance in respect of your fixed electrical installation must be issued by that registered person. Aqua Spas does not issue Certificates of Compliance for your fixed installation and accepts no responsibility for the compliance of electrical work that we did not perform.
14.4 Damage to a Product, or harm to any person, caused by an incorrect, non-compliant or unprotected electrical supply, by power surges, or by electrical work not performed by a registered person, is excluded from the guarantees in clause 17 and may void the Manufacturer’s warranty.
14.5 Water supply, filling, drainage and any plumbing connection are your responsibility unless expressly included in the Quotation. Where a replacement or upgraded Product is being connected to your existing equipment (for example an existing heat pump), we will confirm compatibility with that equipment in writing before dispatch, so far as you have given us accurate details of it.
14.6 Every Product is electrically and safety tested by our Manufacturer before it leaves the factory, and a signed pre-dispatch test record is kept for each unit by serial number. This record does not limit any right you have under clause 17 or the Consumer Protection Act; it is retained so that, if a claim arises, the cause can be established accurately rather than assumed, including whether it relates to the Product as manufactured or to something that occurred after delivery, such as the electrical installation described in this clause 14.
15. INSTALLATION
15.1 Where installation is included in your Quotation, it will be carried out by our certified installers in accordance with the Manufacturer’s directions and the applicable installation manual.
15.2 Our installers are independent contractors. Any workmanship guarantee in respect of the installation is given by, and enforceable against, the installer that performed the work, in accordance with that installer’s own terms – subject always to clause 17.6.
15.3 Unless expressly quoted, installation does not include: electrical supply work or Certificates of Compliance; plumbing or drainage connections; construction of a base, slab, deck or enclosure; crane or specialised lifting equipment; removal or reinstatement of fences, gates, walls, paving or landscaping; making good of surfaces; or removal of building rubble.
15.4 You must provide safe access to the Site, and reasonable access to water, electricity and ablution facilities, for the duration of the installation.
15.5 You must inspect the completed installation with the installer and raise any concern about the installation at that time or in writing within 48 hours.
15.6 On completion of installation, our installer will complete a written commissioning checklist confirming that every feature and component included in your Order – including any optional extra you paid for, such as an insulation upgrade, WiFi/app connectivity, or a specified heater or pump component – has been supplied and is functioning, and will ask you to countersign it. If any paid component or feature is found to be missing after handover, notify us in Writing; we will supply or fit it within 20 Business Days of that notice or, where a longer Manufacturer or import lead time genuinely applies, confirm a realistic revised timeline to you in Writing.
16. RISK AND OWNERSHIP
16.1 Risk of loss of or damage to the Product passes to you on delivery to the Site or, where installation is included in the Quotation, on completion of installation – or, if earlier, on the date the Product was first tendered for delivery in circumstances contemplated by clause 10.9 or clause 13.5.
16.2 Ownership of the Product passes to you once Aqua Spas has received payment of the full purchase price and all other amounts owing in respect of the Order in cleared funds.
16.3 You must insure the Product for its full replacement value from the date risk passes to you.
16.4 Until ownership passes, you must not sell, pledge, encumber or part with possession of the Product, and you must keep it safe, identifiable and adequately covered.
17. WARRANTIES AND GUARANTEES
Who carries the guarantee
17.1 Manufacturer warranties. Each Product is sold subject to the warranty or guarantee (if any) offered by its Manufacturer. The applicable warranty terms, period and exclusions are those published or provided by the Manufacturer, and will be supplied to you with the Product or on request.
17.2 Installer and courier responsibility. Any workmanship guarantee relating to installation, and any liability for loss or damage arising during delivery or transport, is carried by the Service Provider that performed the installation or delivery, in accordance with that Service Provider’s own terms.
17.3 Aqua Spas’ role. Aqua Spas does not itself manufacture the Products and does not itself perform delivery or installation. Where a Product proves defective, or an installation or delivery gives rise to a valid claim, Aqua Spas will assist you, as reasonably required, in referring and pursuing that claim with the responsible Manufacturer or Service Provider.
Guarantee periods
17.4 Subject to clause 17.6 and to the exclusions in clause 18, the following guarantee periods apply from the date of delivery:
(a) Spa shell – structural soundness (water containment): three (3) years.
(b) Piping and plumbing: three (3) months. A defect in installation workmanship affecting piping or plumbing (for example an unthreaded or glued joint used where a threaded fitting was required) is treated as a manufacturing/installation defect for the purposes of clause 17.6, and is not excluded as ordinary wear-and-tear merely because it falls within this three-month period.
(c) Pump: one (1) year.
(d) Blower: six (6) months.
(e) Electrical components, wiring and electrical installation: the Manufacturer does not offer a voluntary guarantee on these items, and asks that any electrical fault be reported within 7 days of installation so that it can be assessed while the cause can still be established. Reporting an electrical fault within that period helps us resolve it quickly, but the 7-day period is a reporting request and not a time limit on your rights: your rights under clause 17.6 and the Consumer Protection Act, including the six-month right in section 56(2), apply to electrical components in the same way as to any other part of the Product, and are not affected by this paragraph or by the absence of a Manufacturer guarantee. Damage caused by a non-compliant electrical supply or by electrical work not performed by a registered person remains excluded under clause 14.4.
17.5 Guarantees under clause 17.4 are given to the original purchaser and are not transferable on a private resale of the Product.
Your statutory rights
17.6 Nothing in this clause 17, or anywhere else in these Terms, limits or excludes any right you have under the Consumer Protection Act. In particular, and where the Consumer Protection Act applies to your transaction:
17.6.1 section 55 gives you the right to receive goods that are reasonably suitable for the purposes for which they are generally intended, of good quality, in good working order and free of defects, and usable and durable for a reasonable period;
17.6.2 section 56(1) implies a warranty of quality under which the producer or importer, the distributor and the retailer each warrant that the goods comply with section 55; and section 56(2) entitles you, within six (6) months after delivery, to return goods that fail to meet that standard, without penalty and at the supplier’s risk and expense, and requires the supplier – at your direction, not ours – either to repair or replace them, or if none of the below is possible then to refund the price you paid;
17.6.3 section 56(3) provides that if we repair goods and, within three (3) months of that repair, the failure, defect or unsafe feature has not been remedied or a further failure or defect is discovered, we must replace the goods or refund the price; and
17.6.4 section 61 imposes liability for harm caused by unsafe or defective goods on producers, importers, distributors and retailers, irrespective of negligence, and that liability is joint and several.
17.7 The periods in clause 17.4 apply in addition to, and do not shorten or replace, the six-month return right in section 56(2) of the Consumer Protection Act, the implied warranty in section 56(1), or any longer period that the Consumer Protection Act or the Manufacturer’s own warranty gives you. Where clause 17.4 and your statutory rights differ, the provision more favourable to you applies.
17.8 Business-to-business transactions. If you are acquiring the Products for business purposes and the Consumer Protection Act does not apply to this transaction – for example because you are a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold determined by the Minister under section 6 read with section 5(2)(b) of the Consumer Protection Act, being R2 000 000 as at the date of these Terms – clauses 17.1 to 17.5 apply as the entire agreement between the Parties regarding warranties, to the maximum extent permitted by law, and clauses 17.6 and 17.7 do not apply.
How to claim, and how quickly
17.9 To make a warranty or defect claim, notify us in Writing at office@aquaspas.co.za, giving your invoice number, the date of delivery, a description of the problem and photographs or video where possible. You must give us and the Manufacturer or installer a reasonable opportunity to inspect the Product at the Site before any repair is attempted.
17.10 Where a valid claim is made under a Manufacturer’s warranty, the remedy, timing and the question of who bears transport and labour costs are governed by that Manufacturer’s warranty terms. Where the Consumer Protection Act applies, clause 17.6.2 governs and you may choose the remedy.
17.11 Response and repair timing. We will acknowledge a claim made under clause 17.9 within three (3) Business Days. We will arrange an inspection, or give you a firm date for one, within ten (21) Business Days of acknowledgement, subject to reasonable extension during our annual factory shutdown or seasonal peak periods, which we will disclose to you if it applies. Following inspection we will give you, in Writing, a repair-or-replace decision and an estimated completion date. If a date we have given you will not be met, we will notify you in Writing before that date lapses, together with a revised date.
17.12 If you dispute our assessment of a claim, you may request a second inspection by a different technician, or refer the dispute under clause 25.
18. GUARANTEE EXCLUSIONS
18.1 Subject to clause 17.6, the guarantees in clause 17.4 do not cover, and Aqua Spas is not responsible for, damage, deterioration or failure caused by:
(a) incorrect water chemistry, chemical imbalance, use of unsuitable or non-approved chemicals, or failure to maintain water quality as set out in the manual;
(b) freezing, frost damage, or leaving a Product empty and exposed to direct sunlight for extended periods;
(c) failure to carry out the routine maintenance and servicing described in the manual;
(d) repair, modification, servicing or relocation of the Product by any person other than Aqua Spas, the Manufacturer or a technician approved by them — save that this exclusion does not apply to emergency remedial work reasonably necessary to prevent injury, further damage or unsafe use (for example an active leak or an electrical fault presenting a safety risk), provided you notify us in Writing within 48 hours of that work being carried out and retain reasonable evidence of the fault and the work performed;
(e) an incorrect, non-compliant or unprotected electrical supply, or power surges, as described in clause 14.4;
(f) a skid pack, control box or equipment bay that has not been adequately covered and protected against water ingress, weather, vermin or physical damage;
(g) abuse, misuse, negligence, accident, vandalism, or use of a domestic Product in a commercial, rental or public setting;
(h) normal wear and tear, fading, or gradual weathering of timber, acrylic surfaces, headrests, filters, seals and other consumable or wearing parts; and
(i) flood, lightning, storm, earthquake or other event beyond reasonable human control.
18.2 Clause 18.1 sets out the position under the guarantees we and the Manufacturers give voluntarily. It does not exclude a claim under section 55, 56 or 61 of the Consumer Protection Act where the Consumer Protection Act applies and the true cause of the failure is a defect in the Product rather than one of the causes listed above. Where the cause is disputed, we will engage in good faith with you, the Manufacturer and, if necessary, an independent technician to establish it.
19. RETURNS, REFUNDS AND COOLING-OFF RIGHTS
Custom-manufactured Products
19.1 Because all our Products are special-order goods custom-made to order, they are not returnable and not refundable once manufacturing has been initiated, on the basis set out in clauses 10.3 and 10.5. Your rights in respect of defective, unsafe or non-conforming Products under clause 17 and the Consumer Protection Act are unaffected.
19.2 Cooling-off does not apply to custom goods. Where you order online, section 44 of ECTA ordinarily gives a consumer seven (7) days to cancel an electronic transaction without reason or penalty. That right does not apply to goods made to your specifications or clearly personalised, which are excluded by section 42(2) of ECTA. It therefore does not apply to our custom-manufactured Products.
Stock items, parts and accessories
19.3 Spa parts, accessories and any Product supplied from existing stock and not manufactured to your specification may be returned within seven (7) days of purchase, provided the item is unused, in a resaleable condition and in its intact original packaging. A 15% handling fee is deducted from the refund for goods returned in this way where the goods are not damaged or defective. Return shipping is for your account and is deducted from the refund, and the original delivery fee is not refunded.
19.4 Where you cancel an online purchase of a stock item under section 44 of ECTA within seven days, we will refund the full price you paid within 30 days of cancellation, and you bear only the direct cost of returning the goods. Clause 19.3’s handling fee does not apply to a valid ECTA cooling-off cancellation.
Other statutory rights of return
19.5 In addition to the above, and where the Consumer Protection Act applies, you may return goods and receive a refund:
19.5.1 under section 16 of the Consumer Protection Act, within five (5) Business Days, where you concluded the transaction as a result of direct marketing. Section 16(1) provides that this right does not apply where section 44 of ECTA applies to the transaction, so for an online purchase the seven-day ECTA right in clause 19.4 applies instead of, and not in addition to, this five-day right;
19.5.2 under section 20(2)(b) read with section 19(5) of the Consumer Protection Act, where goods were delivered that you did not have an opportunity to examine before delivery and you reject them on delivery because they do not correspond with the description or sample by which they were sold (section 18), or, in the case of a special-order agreement, because they do not reasonably conform to the material specifications of the special order;
19.5.3 under section 20(2)(d) read with section 55(3) of the Consumer Protection Act, within 10 Business Days after delivery, where you specifically informed us before purchase of the particular purpose for which you wanted the Product and it is found to be unsuitable for that purpose; and
19.5.4 under section 56(2) of the Consumer Protection Act, within six (6) months, where the goods fail to meet the standards in section 55 — in which case you choose between repair, replacement or refund.
19.6 Section 20(3)(b) of the Consumer Protection Act provides that the return right in section 20(2) does not apply to goods that, after being supplied, have been partially or entirely disassembled, physically altered, permanently installed, affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property. Many of our Products fall into this category once installed. This limitation applies to section 20 only; it does not affect your rights under section 56 in respect of defective goods.
19.7 Goods sold on sale, on clearance, as ex-display or as second-hand are sold at a reduced price on that basis and are not returnable simply because you have changed your mind. This does not affect your right to a remedy if such goods are defective, unless we expressly informed you that the particular goods were offered in a specific condition and you expressly agreed to accept them in that condition, as contemplated in section 55(6) of the Consumer Protection Act. Note that section 55(6) removes only the guarantees in sections 55(2)(a) and (b); your right under section 55(2)(c) to goods that are useable and durable for a reasonable period is not affected by a reduced price.
How refunds are paid
19.8 Refunds are paid by electronic transfer to the bank account from which payment was received, unless we agree otherwise in Writing, and are processed within 10 Business Days of the refund being agreed or, where ECTA applies, within 30 days of cancellation.
20. LIMITATION OF LIABILITY
20.1 To the extent permitted by law, and subject to clauses 17.6 and 20.3, Aqua Spas’ liability to you arising out of a Product, its delivery or its installation is limited to assisting you in pursuing your claim against the responsible Manufacturer or Service Provider, and Aqua Spas will not be liable to you for indirect or consequential loss – including loss of profit, loss of use, loss of enjoyment, or the cost of alternative facilities.
20.2 Where Aqua Spas is found liable to you notwithstanding clause 20.1, and to the extent permitted by law, our aggregate liability arising out of or in connection with the Agreement is limited to the purchase price actually paid by you for the Product giving rise to the claim.
20.3 Nothing in these Terms limits or excludes liability that cannot lawfully be limited or excluded, including liability for death or personal injury caused by negligence, gross negligence, fraud or fraudulent misrepresentation, or liability arising under sections 55, 56 or 61 of the Consumer Protection Act or any other applicable law.
20.4 You use the Products at your own risk in the ordinary sense that water, heat, cold and electricity carry inherent hazards. You must read and follow the safety instructions in the manual, supervise children at all times, and observe the maximum water temperature and immersion times recommended for spas, ice baths and saunas. We draw your particular attention to the risks of unsupervised access by children, of use while intoxicated, and of use by persons who are pregnant or have heart, blood-pressure or circulatory conditions without medical advice.
20.5 In accordance with section 49 of the Consumer Protection Act, the provisions of these Terms that limit our risk or liability, that constitute an assumption of risk or liability by you, that impose an obligation on you to indemnify us, or that are an acknowledgement of any fact by you, are drawn to your attention in a conspicuous manner by being printed in bold, and are drawn to your attention before you are required to enter into the transaction. By accepting these Terms you confirm that these provisions were brought to your attention in that manner and that you were given an adequate opportunity in the circumstances to receive and comprehend them.
20.6 Where any activity connected with a Product carries a risk of an unusual character or nature, or a risk of which you could not reasonably be expected to be aware, or which an ordinarily alert consumer could not reasonably be expected to notice or anticipate, we will draw that risk to your attention separately and, as contemplated in section 49(2) of the Consumer Protection Act, ask you to sign or initial that specific notice.
21. BREACH, SUSPENSION AND DEFAULT
21.1 If you fail to make any payment on due date, we may – without prejudice to any other right – suspend manufacture, delivery or installation, withhold the Product, and claim immediate payment of the full outstanding balance, having first given you written notice and a reasonable opportunity of not less than 7 Business Days to remedy the failure.
21.2 If you commit a material breach of the Agreement and fail to remedy it within 20 Business Days of written notice, we may cancel the Agreement and claim damages actually suffered, subject to our duty to mitigate.
21.3 No cancellation of this Agreement is of any force or effect unless given in Writing by Aqua Spas – save that this clause does not limit any right of cancellation the law gives you and does not require our consent where the law gives you a right to cancel.
21.4 Either Party may cancel the Agreement on written notice if the other is placed under liquidation, business rescue, sequestration or an equivalent process, or commits an act of insolvency.
22. FORCE MAJEURE
22.1 Neither Party is liable for any delay or failure to perform caused by an event beyond its reasonable control, including natural disaster, fire, flood, epidemic, war, civil unrest, riot, load-shedding or sustained failure of the national electricity supply, strike or industrial action, failure of a Manufacturer or shipping line, port congestion, import restriction, or change in law.
22.2 The affected Party must notify the other as soon as reasonably possible and use reasonable efforts to mitigate. If the event continues for more than 60 days, either Party may cancel the affected Order on written notice, in which case we will refund amounts you have paid less the value of work already performed and materials irrevocably committed, calculated reasonably and supported by a written breakdown.
23. PERSONAL INFORMATION AND PRIVACY
23.1 We process your personal information in accordance with POPIA and our Privacy Policy, available at https://aquaspas.co.za. Our Information Officer, who is registered with the Information Regulator as required by POPIA, is Ruben Labuschagne, contactable at ceo@aquaspas.co.za.
23.2 We collect and process your name, contact details, delivery address, site information, payment information and order history for the purposes of preparing quotations, fulfilling and delivering your Order, arranging installation and warranty support, complying with our legal obligations, and – where you have consented or where the law permits – sending you marketing about similar products.
23.3 We share your personal information with the Manufacturers, couriers and installers involved in your Order, with our payment processors, and with our professional advisers and regulators where required. We require them to protect it.
23.4 You have the right to access the personal information we hold about you, to ask us to correct or delete it, to object to processing, to opt out of direct marketing at any time, and to lodge a complaint with the Information Regulator (South Africa), Woodmead North Office Park, 54 Maxwell Drive, Woodmead, Johannesburg – enquiries@inforegulator.org.za / POPIAComplaints@inforegulator.org.za, telephone 010 023 5200.
23.5 We retain your information for as long as necessary for the purposes above and for any period required by law, including for warranty and tax record-keeping.
24. NOTICES AND ADDRESSES FOR SERVICE
24.1 Each Party chooses the following as its address for the service of all notices and legal process (domicilium citandi et executandi): Aqua Spas – the physical address in clause 1.4; you – the address recorded on the accepted Quotation.
24.2 Notices may be delivered by hand, sent by prepaid registered post, or sent by email to the addresses recorded. A notice is deemed received: on delivery, if delivered by hand on a Business Day; on the 7th Business Day after posting, if posted; and on the first Business Day after despatch, if emailed and no delivery-failure message is received.
24.3 Either Party may change its address on 10 Business Days’ written notice, provided the new address is a physical address in the Republic of South Africa.
24.4 Some status updates, appointment reminders and invoice notices are generated automatically by our systems and may occasionally lag behind, or not exactly reflect, the true status of an open matter. Where you have an open complaint or claim, the written confirmation you receive from the Aqua Spas staff member handling your matter takes precedence over any automated notification you may separately receive.
25. COMPLAINTS AND DISPUTE RESOLUTION
25.1 If you are unhappy with a Product or with our service, please first raise it with us in Writing at office@aquaspas.co.za so that we can try to resolve it. We aim to acknowledge complaints within 3 Business Days and to respond substantively within 15 Business Days.
25.2 If a matter is not resolved, or a timeline we have committed to under clause 17.11 is not met, you may ask for it to be escalated to a senior manager, who will respond within 5 Business Days of that request.
25.3 If we cannot resolve the matter between us, and where the Consumer Protection Act applies, you may refer the dispute to:
– the Consumer Goods and Services Ombud (CGSO), established under the Consumer Goods and Services Industry Code of Conduct made under section 82 of the Consumer Protection Act – www.cgso.org.za, 0860 000 272, info@cgso.org.za, 292 Surrey Avenue, Ferndale, Randburg;
– the National Consumer Commission (NCC) – www.thencc.org.za; or
– the consumer court or other alternative dispute resolution agent having jurisdiction.
25.4 Nothing in this clause prevents either Party from approaching a court of competent jurisdiction, and referring a dispute to the CGSO or NCC does not suspend the running of prescription.
26. GENERAL
26.1 Whole agreement. The Agreement constitutes the entire agreement between the Parties in respect of its subject matter and supersedes all prior discussions, quotations, brochures and representations, save for a configuration summary confirmed under clause 7.4, which forms part of the Agreement for that Order. No representation, warranty or undertaking not recorded in the Agreement is binding.
26.2 Verbal representations. No verbal statement by a salesperson, installer or other representative varies these Terms unless confirmed in Writing by an authorised representative of Aqua Spas. This clause does not permit us to make misleading representations, and does not affect your rights under sections 41 or 51 of the Consumer Protection Act.
26.3 Severability. If any provision is found to be invalid, unlawful or unenforceable, it is severed and the remaining provisions continue in full force. Where a provision would be valid if limited in scope, it applies with that limitation.
26.4 No waiver. No indulgence, leniency or extension granted by a Party constitutes a waiver of that Party’s rights, and no waiver is effective unless in Writing.
26.5 Cession and assignment. You may not cede, assign or delegate your rights or obligations without our prior written consent. We may cede our rights to a purchaser of our business or to a financier, provided your rights are not prejudiced.
26.6 Electronic communication and signature. The Parties agree that the Agreement may be concluded and signed by electronic means, and that data messages and electronic signatures have the effect contemplated in ECTA.
26.7 Survival. Clauses that by their nature should survive termination – including clauses 16, 17, 20, 23, 25 and 27 – survive the termination or completion of the Agreement.
26.8 Counterparts. The Agreement may be signed in counterparts, each of which is an original and which together constitute one agreement.
27. GOVERNING LAW AND JURISDICTION
27.1 These Terms and the Agreement are governed by and interpreted in accordance with the laws of the Republic of South Africa.
27.2 The Parties consent in writing, in terms of section 45 of the Magistrates’ Courts Act 32 of 1944, to the jurisdiction of the Magistrates’ Court having jurisdiction over the Customer, notwithstanding that the value of the matter may exceed that court’s ordinary monetary jurisdiction. This consent is subject to section 46 of that Act, and does not apply to any matter that a Magistrates’ Court may not hear. Aqua Spas may nevertheless institute proceedings in any other court with jurisdiction.