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These Terms and Conditions qualify and set forth the terms and conditions under which Latitude, Inc. (“Seller”) offers to sell the goods, services, materials, products and equipment (collectively referred to as the “Goods”) described in Seller’s letter of quotation (“Quote”). Acceptance by Buyer of Seller’s Quote is expressly and exclusively limited to the terms, conditions and limitations contained herein and in the Quote, which terms and conditions supersede all prior statements, proposals, negotiations, representations and agreements and shall constitute the entire agreement between Seller and Buyer (this “Agreement”). This serves as a written objection to and rejection of all inconsistent or additional terms, conditions and limitations contained on any form or writing of Buyer.
ACCEPTANCE OF ORDER – No contract shall arise between Seller and Buyer, and Seller shall not be liable for performance hereunder or in connection with the terms hereof, until an authorized representative of Buyer has reviewed the Quote and acknowledges such acceptance or order in writing. Such writing shall be delivered to the offices of Latitude, 718 Washington Ave N Suite 401 Minneapolis, MN 55401. In any event, Buyer’s acceptance of delivery of the Goods sold hereunder shall manifest Buyer’s assent to the terms and conditions hereof.
Unless otherwise specified by Seller:
(a) All prices are quoted in US Dollars and are firm for the agreed period of delivery. The quoted price is based on the specifications as described by the Buyer. If any of the listed specifications contain inaccuracies, the quote may be adjusted by the Seller to reflect these changes.
(b) Unless otherwise expressly agreed, all prices are net and F.O.B. shipping point(s) as specified by Seller. Freight will be prepaid and invoiced to the Buyer.
(c) Payment terms are net thirty (30) days from the date of Seller’s commercial invoice and all payments shall be in United States currency.
(d) Taxes and Duties – Prices do not include import duties, federal, state, local, sales, use, excise or similar taxes. Consequently, in addition to the price quoted, the amount of any present or future sales, use, excise or other similar tax applicable to the sale or use of the materials and/or services covered hereby shall be paid by Buyer. In lieu thereof, Buyer shall provide Seller with (i) a tax exemption certificate acceptable to the taxing authorities prior to shipment or (ii) evidence of a valid direct pay permit. In the event that, in reliance upon (i) or (ii) above, Seller does not collect any such taxes from Buyer but, upon audit or examination by any taxing body, Seller is assessed taxes, penalties and/or interest with respect to this Agreement or any portion thereof, Buyer shall, upon notice by Seller, reimburse Seller for the entire amount so assessed.
(e) Collection Costs – In the event that payment is not made in accordance with the terms hereof and Seller pursues any form of legal action to collect any amount that has become due on an invoice, in addition to any amount determined to be due Seller, Seller shall be entitled to an award of its reasonable attorneys’ fees and any other costs of collection, together with interest on the past due amount at the rate of 1% per month beginning on the date payment was due on the invoice.
(a) The delivery date shown on the Quote is provided to Buyer on the basis of Seller’s best estimate for informational purposes only and is not guaranteed.
(b) Delayed Delivery Schedule – If Buyer is unable or unwilling to accept delivery of Goods within the period specified under this Agreement, Seller shall have the right to charge Buyer storage charges and/or all costs of commercial storage, handling, insurance and freight. In any event, the risk of loss shall pass to Buyer and the balance of all payments due shall be due and payable unconditionally as if there had been no delay.
(c) Seller’s Liability for Shortages, Delivery of Improper Material or Delivery of Damaged or Defective Material – Buyer agrees to carefully check without unreasonable delay all received material upon unloading at destination. No claims for shortages, for delivery of improper material or for apparent defects or damage to material will be recognized by Seller unless written notice specifying in detail the nature and extent of the shortage, defect or damage shall be delivered to Seller’s office, 212 2nd St. SE, Suite 225, Minneapolis, MN 55414, within fourteen (14) calendar days from the date of unloading. Seller will in no case pay or be liable for any claims resulting from the use by Buyer of material having apparent defects or damage when accepted by Buyer.
Orders will be accepted by Seller only with the express understanding that in the event of a written request to stop work or to cancel any part of an order, payment shall be made to Seller as follows unless otherwise agreed upon in writing:
(a) Any and all work that can be completed within thirty (30) days from the date of notification to stop work on account of cancellation shall be completed, shipped and paid for in full by Buyer, without condition.
(b) All work in process, any materials or supplies procured or for which definite commitments have been made by Seller in connection with orders shall be paid to Seller on the basis of actual cost, direct and indirect, and overhead expenses determined in accordance with good accounting practice plus thirty percent (30%). Additional re-stocking fees shall be levied, inclusive of any applicable insurance fees.
(c) Seller may cancel this Agreement in whole or in part if governmental regulation or control of material or services prevents the lawful performance of this Agreement for a period of twelve (12) months after the date of the issuance of the order or regulation making further performance unlawful. In that event, Buyer’s obligation shall be as set forth in Section 4(b) above.
Seller shall not be responsible for delay in delivery or failure to deliver because of causes beyond the control of Seller or Seller’s suppliers or subcontractors, including, but not limited to, fires, floods, windstorms, strikes, lockouts, work stoppages, failure of Seller’s carrier to perform, inability to obtain raw materials, delay in machining and receipt of sub assemblies from suppliers, energy, fuel or power curtailment, war, civil disturbances, acts of terrorism, declared national emergencies, regulations, orders, statutes or laws of any state, local or national government. Seller shall be obligated to settle any labor disputes related to Seller’s supply and service or disputes with suppliers of raw materials only according to its own discretion.
Risk of loss (except as specified in Section 3(b) hereof) of, all materials or goods furnished hereunder shall pass to Buyer upon delivery to a carrier at Seller’s plant or other shipment point, and such carrier shall thereafter be deemed to be acting for Buyer. Title shall pass to Buyer upon full payment of the applicable sales price.
Subject to Buyer’s Compliance with section 3(c) hereof, the products provided by the seller are provided “as is” without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
In connection with any designs, logos, or pictures furnished by Buyer, hereunder, Buyer hereby indemnifies Seller against any and all claims for trademark and/or copyright infringement and against any damages incurred by Seller resulting from infringement by use of such designs, logos, and pictures.
The Contract resulting from the acceptance of this quote shall be construed according to the laws of the State of Minnesota. The Buyer shall, by accepting this quote, submit to the jurisdiction of the Fourth District Court of Minnesota or the U.S. District Court of Minnesota
Buyer may not assign or transfer this Agreement or any rights granted under it. This Agreement binds Buyer and inures to the benefit of Seller, as well as their respective principals, employees, agents, and affiliates, heirs, legal representatives, successors, and assigns. Buyer and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. This Agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this agreement; to the extent that any provision of this agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this agreement shall prevail. To the maximum extent permitted by law, the parties intend that this Agreement shall not be governed by or subject to the UCITA of any state. Seller is an independent contractor and not an employee. If Seller is deemed under any law to be an employee of Buyer, and if any images generated for use in connection with Buyer’s order are therefore considered works made for hire under the U.S. Copyright Act, Buyer hereby transfers the copyright to all such images to Seller. Buyer agrees to execute any documents reasonably requested by Seller to accomplish, expedite or implement such transfer.
Seller does not accept liability beyond the remedies set forth herein. Seller will not be liable for any consequential, special, indirect, or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party. Buyer agrees that Seller’s liability is limited to the listed price of the quote.
No amendments of this quote or any resulting order shall be valid unless in writing and signed by authorized representatives of both parties. The terms herein shall control in the event of any inconsistencies or conflict between the terms and conditions hereof and the terms and conditions of the Buyer’s acceptance, confirmation, purchase order, or other documentation submitted in response to this quote. However, the invoice may reflect, and Buyer is bound by, Buyer’s oral authorizations for additional production of printed materials, fees, and expenses that could not be confirmed in writing because of insufficient time or other practical considerations.
All headings are for convenience only, and are not to be construed to limit the rights of the parties.
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.