Rhōmb TERMS OF SERVICE

1. Purchase of Products and Services.  Customer hereby enters into an agreement with Latitude Security Solutions, LLC, a New Jersey Limited Liability company d/b/a Rhōmb (“Latitude”) for cloud-based eCommerce (Rhōmb) system consisting of equipment and services supplied by Latitude and other related products and services provided by vendors determined by Latitude. These General Terms and Conditions (including the Exhibit(s) hereto) are incorporated by reference and form an integral part of each written proposal or agreement between Latitude and Customer that references these General Terms and Conditions, or to which these General Terms and Conditions are attached (each a “Proposal,” and together with these General Terms and Conditions, this “Agreement”)).

2. Subscription Services.  Customer agrees to purchase from Latitude a subscription(s) for the services described in the Proposal (hereinafter the “Subscription Services”), for the length of time specified therein (the “Service Period”). The Service Period shall begin thirty (30) days from the Effective Date. 

3. Hardware. Customer agrees to purchase from Latitude such hardware, equipment, parts, components, and accessories manufactured by third parties as are more specifically described in the applicable Proposal (hereinafter the “Hardware”). Customer shall use the Hardware solely for Customer’s internal business use in connection with the Subscription Services (as defined below). 

4. Installation. Customer agrees to purchase from Latitude such Installation Services described therein. 

2. Fees and Payment.  

3. Hardware and Shipping Fees.   All hardware fees are due upon receipt and payment must be received before any products ship to Customer.

4. Subscription Fees.  All subscription fees are due upon receipt and invoiced on either the 1^st or the 15^th of the month, depending on the services delivery date.   Subscription fees are not prorated upon commencement.  They may be prorated upon termination if it applies.

5. Installation Fees.  Installation fees due upon receipt and are invoiced upon the completion of the installation work.

6. Lake Payment.  Amounts unpaid after thirty (30) days shall accrue interest at 1.5% per month or maximum permitted by law.  Amounts unpaid after sixty (60) days will result in suspended services for non-payment.  Services will be restored once all outstanding fees are collected.

3. Shipment and Installation.  Latitude shall begin shipment or installation of the Hardware after the Effective Date.  Latitude or its assignee, agent or subcontractor will provide one-time standard installation services of the Hardware for the charge set forth in the Proposal. Standard installation shall include only installations performed between 8:00 a.m. and 5:00 p.m., Monday through Friday, local time. Latitude may charge, and Customer shall pay, an incremental fee based on Latitude’s then-current fees for any non-standard installation services

4. Hardware Warranty.  

5. Limited Warranty.  Latitude warrants that for a period of two years (24 months) from the Effective Date of this agreement (the “Warranty Period”), all Hardware will be free from material defects in materials and workmanship.  The foregoing warranty does not extend to: (i) any failure in the Hardware due to accident, abuse, misuse or negligent use of the Hardware; (ii) any failure resulting from use in other than a normal and customary manner under normal environmental conditions and conforming to the Hardware’s instructions; (iii) any failure in the Hardware caused by failing to follow prescribed operating maintenance procedures; (iv) any failure in the Hardware due to modifications, alterations, additions or changes to the Hardware not made or authorized to be made by Latitude; or (v) damage caused by force of nature, external causes, or act of any third party (other than Latitude or its duly-authorized representative). The foregoing warranty is void and of no force or effect if any Hardware is installed or serviced by any party other than Latitude or an installation/repair agent authorized by Latitude

6. Warranty Procedures.  Customer will, within the Warranty Period, notify Latitude in writing of any Hardware containing defects Customer believes to be covered by the limited warranty provided in paragraph (a) of this Section (the “Limited Warranty”).  Provided the defects complained of are covered under this Limited Warranty, Latitude shall, at its sole option and expense, repair or replace the defective Hardware.  Notwithstanding the foregoing, however, in the event the defective Hardware is not covered by this Limited Warranty, Latitude shall charge Customer, and Customer shall pay to Latitude, for such replacement Hardware or repair services, at Latitude’s then-current list prices; further, in such event, Customer shall be liable for any shipping and insurance charges incurred in connection with shipment of the defective Hardware and/or replacement Hardware (as the case may be).  This Section states Customer’s sole remedy, and the sole liability of Latitude, arising out of the Limited Warranty provided by Latitude.

5. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER Latitude NOR ITS SUPPLIERS OR LICENSORS MAKE, AND CUSTOMER RECEIVES, NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, AND Latitude SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.

6. Limitation of Liability.  NEITHER Latitude NOT ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, REVENUE OR DATA; INTERRUPTION OF BUSINESS; LOST PROFITS OR GOODWILL; INCREASED COSTS OF OPERATION; OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR UNDER THIS AGREEMENT, EVEN IF Latitude HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.  IN NO EVENT SHALL THE TOTAL LIABILITY OF Latitude ARISING OUT OF OR UNDER THIS AGREEMENT, OR FOR BREACH OF THIS AGREEMENT, EXCEED THE AMOUNT PAID TO Latitude UNDER THIS AGREEMENT.  THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND APPLY WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEG-LIGENCE), STATUTE, FRAUD, MISREPRESENTATION, OR OTHER LEGAL OR EQUITABLE THEORY.

7. Intellectual Property.  The Subscription Services are the property of Latitude.  Latitude owns all right, title and interest in and to the Subscription Services and all intellectual property rights associated therewith, and Customer has no right thereto except as expressly provided in this Agreement and the Subscription Agreement.

8. Termination.  Latitude reserves the right to terminate this Agreement on thirty (30) days written notice for the following reasons: (a) The Customer fails to make any payment as agreed herein, in which case the balance of the moneys due for the full term of this Agreement shall become immediately due and payable; (b) Customer breaches the Subscription Agreement; (c) Fraud committed by Customer is suspected; (d) Customer becomes insolvent; (e) Customer violates the law; (f) Customer creates undue financial, regulatory, reputational, or compliance risk; or (g)Latitude loses its right to act as an authorized Reseller for Subscription Services it may be reselling to Customer.   Unless terminated due to non-payment by Customer to Latitude or breach by Customer, any advance payment made for service not yet rendered at the effective date of such termination shall be refunded to Customer.  Should Customer default on payment, Customer agrees to pay for all fees, including reasonable attorney fees, incurred by Latitude in the collection of Customer's account.  At the end of the initial term of this Agreement, the Agreement is terminable by either party upon the giving of a thirty (30) days prior written notice to that effect to the other party. 

Customer reserves the right to terminate this Agreement on sixty (60) days prior written notice and the balance of the contract term will be due upon termination.  The balance is calculated as follows:  Monthly minimum Rhōmb fees plus flat monthly fees for other services (i.e. video, access control, occupancy, etc.) multiplied by the number of months remaining in the contract term. 

9. General Provisions.

10. Entire Agreement.  This Agreement (including the Subscription Agreement) constitute the entire agreement between the parties and supersedes all previous agreements, understandings, statements, communications, representations and proposals, whether oral or written, with respect to the subject matter hereof.  In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of the Subscription Agreement, the Subscription Agreement shall prevail, as applicable. This Agreement does not apply to the sale of goods under U.S. Government Contract Regulations, regardless of whether such provisions are on any Customer-supplied purchase order. In the case of a government contract, the applicable government regulations shall be only those which are mandatory for Latitude under U.S. Government Federal Acquisition Streamline Act provisions as a subcontractor and which have been agreed to by Latitude in an attached Rider.

11. Dispute Resolution.  Any dispute between the parties relating to this Agreement, whether or not a contract dispute, shall be determined by binding and non-appealable arbitration under the applicable rules of the American Arbitration Association (“AAA”).  The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within 15 days of a party submitting a proposal, then by a single arbitrator appointed by the [City, State] office of AAA.  The arbitration shall be administered by the Somerset County New Jersey office of AAA.  The arbitrator shall be authorized to award or apportion attorneys’ fees and costs to the prevailing party of the arbitration.  If the arbitrator’s decision is a compromise, the determination of which party or parties bear the costs and expenses incurred in connection with the arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator’s assessment of the extent to which each party prevailed in its position.  Notwithstanding the first sentence of this Section, Latitude shall be entitled to seek court-ordered injunctive and other equitable relief upon any actual or threatened breach of this Agreement, in addition to reimbursement of its attorneys’ fees and other costs incurred in obtaining the relief.

12. Third Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person, including without limitation, any subcontractors, sub-vendors, or anyone designated as a reseller. Notwithstanding the foregoing, the Subscription Agreement constitutes an agreement between Customer and Latitude and shall be enforceable in all respects by Latitude.

13. Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a mutually agreeable and enforceable replacement, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.  Any waiver by either party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of that or any other provision of this Agreement.  Any modifications of this Agreement must be in writing and signed by the duly authorized representative of Customer and a Vice President or President of Latitude.

14. Force Majeure.  No default, delay or failure to perform on the part of Latitude shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Latitude, including without limitation, failure of a positioning system or wireless or power network or the Internet, strikes, lockouts or other labor disputes, riots, civil disturbances, embargoes, actions or inactions of governmental authorities, carriers or suppliers, epidemics, war, terrorism, severe weather, flood, fire, earthquakes, explosions, volcanic activities, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

15. Notices.  Any notice under this Agreement shall be in writing and shall be sent by email, prepaid registered or certified mail, return receipt requested, internationally recognized courier or personal delivery, addressed to the other party at the following address:

• If to Customer:  to the contact person and at the billing address as set forth in the Proposal

• If to Latitude: Latitude Security Solutions, LLC, 1641 US Highway 206, Ste. 2, Bedminster, NJ 07921

Such notice shall be deemed to have been given upon personal delivery if delivered personally, the next business day if sent by overnight courier, on the fifth (5) business day if sent by courier or mail, or one (1) business day after receipt of successful transmission report if emailed.

1. Assignment.  Customer shall not assign this Agreement, or any rights or obligations hereunder, in whole or in part, voluntarily, by operation of law or otherwise, including by merger, consolidation or acquisition of a controlling interest in a party, without the prior written consent of Latitude.  Any attempt by Customer to assign this Agreement or any right or obligation hereunder in violation of this Section will be null and void and will constitute a material breach of this Agreement

2. Modification of Agreement.  This Agreement (and any Exhibits hereto) may not be modified or amended except by a written document executed by a duly authorized representative of each party. Notwithstanding the foregoing, the Subscription Agreement may not be amended without the prior written consent of Latitude.

3. Waiver.  No rights of a party or breach by the other party of any provision hereunder shall be waived by any act, omission, delay or knowledge of a party, except by a written document executed by a duly authorized representative of the waiving party.  Any waiver on one occasion shall not constitute a waiver of any prior, concurrent, or subsequent occasions.

4. Counterparts.  This Agreement, and any amendments hereto and any waiver hereof, may be executed in counterparts, all of which taken together shall constitute one single agreement between the parties.  If electronic signatures are used for this purpose, either party may print out the faxed or imaged version of the Agreement signed by the other party and then sign in the designated space.

5. Construction.  The captions and article and section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.  The term “including” as used herein means “including without limitation.”  The terms “herein,” “hereof,” “hereunder,” and similar terms refer to the Agreement as a whole, rather than any particular provision.  Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel.  Any rule of construction that resolves ambiguities against the drafting party shall not apply in this interpretation of the Agreement.

6. Governing Law; Venue; Jurisdiction.  This Agreement will, in all respects, including all matters of construction, validity and performance, be governed by the laws of the State of New Jersey United States (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to any conflicts of law principles which may result in the application of the laws of another jurisdiction.  Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in the State of New Jersey and the parties hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding.  Each party hereby irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement if brought in New Jersey and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

7. Waiver of Jury Trial.  THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL REGARDING DISPUTES RELATED TO THIS AGREEMENT.