Latham Link Terms and Conditions
Latham Pool Products, Inc. (hereinafter “Latham”) offers to sell the products listed on its website, www.LathamLink.com, (hereinafter the “Website”) relating to residential swimming pools (hereinafter the “Pool Products”) to authorized users of the Website. By completing a purchase on the Website, each authorized user (hereinafter a “Dealer”), agrees to the following terms and conditions. By completing a purchase on the Website, you agree you have read these Terms and Conditions, understand them, and agree to be bound by each and every term contained herein. In the event you do not agree with the terms contained below, you must not complete your purchase of the Pool Products.
Latham and Dealer hereby agree as follows:
Relationship of the Parties. The relationship between the parties shall be that of a buyer and seller. Dealer shall not be considered an agent or representative of Latham. Neither party is the other’s partner and neither party shall have the right to bind the other contractually in any respect whatsoever. Dealer shall not represent to third parties that it is an affiliate of Latham in any capacity other than a buyer, or that it is empowered to speak on Latham’s behalf.
Price. Prices posted on the Website are for wholesale merchandise, shipped pursuant to the terms set forth in the Shipping Terms and Conditions, which can be found here. Freight, handling fees, taxes, and duties are in addition to the price shown on the Website. Export orders may be subject to other special pricing.
Taxes. Dealer is responsible for payment of all applicable state and local taxes (including H.S.T.), or for providing a valid sales tax exemption or resale certificate. When placing an order, the Dealer shall indicate which products are tax exempt, and shall be prepared to provide documentation regarding such exemption, as applicable. If the Dealer does not provide sales tax exemption certificate(s) or resale certificate(s), all applicable sales taxes will be added to invoice paid by the Dealer.
Orders. No order shall bind Latham unless accepted by Latham in writing, in Latham’s sole discretion. Accepted orders are subject to these Terms and Conditions. These Terms and Conditions, the Shipping Terms and Conditions, and the Limited Warranty, as applicable, are the only terms which apply to the Pool Products. All offers and proposals by Dealer (including but limited to terms included in a purchase order) are rejected unless expressly accepted in writing and signed by an authorized Latham representative.
In the event Dealer is required to provide information to complete the order on the Website, Dealer shall provide true and accurate data. Latham may cancel any order which it determines, in its sole and absolute discretion, to contain incorrect or misleading homeowner data or delivery dates.
Use and Installation. Dealer agrees to strictly adhere to the installation instructions provided with the Pool Products. Dealer’s improper installation of the Pool Products will void Latham’s Limited Warranty. Dealer shall not: (1) sell the Pool Products to any other third party or parties, including but not limited to other installers or suppliers; (2) sell the Pool Products to a homeowner who intends to use a third party for installation; or (3) sell the Pool Products to any party who intends to use them in any manner other than in a residential capacity. In the event Dealer uses a subcontractor for installation, Dealer agrees it will ensure its subcontractor will strictly adhere to Latham’s installation instructions.
Invoicing and Payment; Security. Unless otherwise set forth in a written agreement between Dealer and Latham, Dealer shall pay for the Pool Products prior to shipment. Latham may accept checks, automated clearinghouse payments, money orders, Visa, MasterCard, Discover, and American Express as payment for invoices. Payments made by credit card will be subject to an additional fee. Notwithstanding the foregoing, a written agreement between the Dealer and Latham regarding credit and payment shall take precedence over this Section. Anticipation and cash discounts are not allowed.
A service charge of the lesser of (1) 1½% per month (18% per annum) or (2) the highest amount allowed by law, will be levied against all past due accounts. If any part of any outstanding account becomes past due, all outstanding accounts shall immediately become due and payable, notwithstanding any other agreement to the contrary. To secure its payment obligations hereunder, Dealer hereby grants to Latham a security interest in the Pool Products and the proceeds thereof. In the event of default by Dealer of any of its obligations to Latham, Latham shall have the right to repossess any Pool Products that are in Dealer’s possession or control and shall be entitled to any and all other remedies available to a secured party. Dealer hereby authorizes Latham to file UCC financing statements (without Dealer’s signature) and to use a copy of this Agreement as an exhibit to any such financing statement.
If the Dealer fails to make payment according to this Agreement or separate credit and payment terms between Dealer and Latham, as may be applicable, or fails to supply adequate assurance of full performance to Latham within a reasonable time after requested by Latham (such time as specified in Latham’s request), Latham may, at Latham’s sole option, defer shipments until such payment or compliance is made, require cash in advance for any further shipments regardless of a credit agreement, demand immediate payment of all amounts then owed, elect to pursue collection action (in which case Dealer agrees that amounts due Latham shall include without limitation, attorneys’ fees and any and all other associated costs of collection), and/or cancel all or any part of any unshipped order. Latham shall have the right of set-off and deduction for any sums owed by Dealer to Latham.
Dealer agrees to assume responsibility for, and Dealer hereby unconditionally guarantees payment of, as provided herein, all purchases made by Dealer, its subsidiaries and affiliates. Each of Dealer’s subsidiaries and affiliates purchasing from Latham are jointly and severally liable for purchases with Dealer, and Dealer is also acting as agent for such subsidiaries and affiliates.
Latham may change, alter, or modify the timing of payment or any agreement for extension of credit, or may require partial or full payment before assembling or shipping any Pool Products notwithstanding any contrary conditions specified in any order, contract, or sale.
Credit. For Dealers with established Latham credit, payment terms are as set forth in the written credit terms, which are incorporated herein by reference. All credit extended by Latham to Dealer, and the limits of such credit, is at Latham’s sole discretion and may be reduced or revoked by Latham at any time, for any reason. As a condition for the continued extension of credit, Dealer agrees to provide Latham with current credit information and the latest annual financial statement within five (5) business days following Latham’s request. Additionally, Dealer, and each of its subsidiaries and affiliates, agrees to provide to Latham proper authorization necessary for Latham to request any financial information from third parties.
Title. Title to all Pool Products shall transfer to Dealer once the Pool Products are available to Dealer or a carrier to transport them to Dealer or Dealer’s order.
Risk. All responsibility for loss, damage, or destruction of any Pool Products is assumed by the Dealer as of the time the Pool Products are available to Dealer or a carrier to transport them to Dealer or Dealer’s order. Dealer agrees to inspect the Pool Products upon delivery and prior to unloading. Latham shall not be liable for any delay in shipping or delivery of Pool Products for any cause whatsoever. Latham shall not be liable for damage to the Pool Products during handling, warehousing, or installation.
Shipping. The terms and conditions of the shipping and transportation of Pool Products from Latham to Dealer shall be in accordance with the Shipping Terms and Conditions which are in effect at the time of shipment of Pool Products. A copy of the Shipping Terms and Conditions in effect as of the date of this Agreement may be viewed here. Dealer acknowledges and agrees that Latham in its sole discretion may amend, modify, and/or update the Shipping Terms and Conditions from time to time by posting updated terms to the Website with or without notice to Dealer.
Claims. No claim may be made that the Pool Products as delivered are not in accordance with the order accepted by Latham unless made within ten (10) days after the said Pool Products are delivered. Notwithstanding the foregoing, Dealer agrees to make any claim alleging damage in transportation of the Pool Products no later than five (5) days from receipt.
Consumer Complaints. Dealer agrees to handle all consumer complaints with respect to the Pool Products in a manner that preserves the goodwill of Latham and the Dealer. Dealer shall promptly report all complaints to Latham. Dealer agrees to make every reasonable effort to resolve consumer complaints in a manner satisfactory to the consumer. In the event a consumer contacts Latham directly with any complaints or concerns, Latham may respond to the consumer without releasing Dealer from its obligation under this section. Dealer is responsible for all costs incurred by Latham with respect to any customer complaints. These costs include, but are not limited to, the time lost by Latham employees and out-of-pocket expenses.
Confidential Information. Dealer agrees that the following information constitutes confidential and proprietary information of Latham: any and all information contained on the portion of the Website which requires login to view; technical data related to the Pool Products and related items; Pool Product customer lists; Pool Product distributorship lists; Pool Product marketing and pricing information; and any other information designated by Latham as confidential, or which should be reasonably understood to be confidential in light of the nature of the information or the circumstances of its disclosure. Dealer will maintain the confidentiality of such information and will not at any time during or after the term of this Agreement use or disclose any such information for any purposes other than in its performance under this Agreement, and then only to the extent necessary for such purpose. Dealer will only disclose such information to its employees who have a need to know the information for the performance of Dealer’s obligations under this Agreement and to persons or entities who have agreed in writing to be bound by restrictions on use and disclosure of the information that are no less stringent than those set forth in this Agreement.
Pool Product Designs. Dealer will not at any time during or after the term of this Agreement directly or indirectly use, copy, recreate or reproduce the design of any Pool Product or related product or permit any person to do any of the foregoing. Without limiting the foregoing, Dealer will not permit any Pool Product or related product to be copied, or reproduced in any way, in whole or in part. Dealer agrees to not challenge or contest the validity of any patent, trademark, copyright or other proprietary right of Latham.
Trademarks and Other Intellectual Property; Marketing Materials. Dealer acknowledges that Latham is the sole owner of all trademarks, service marks, domain names, patents, copyrights and other intellectual property used in the promotion and sale of or otherwise related to the Pool Products. Dealer is granted a nonexclusive license to use and display any trademarks and service marks related to the Pool Products in connection with the sale and promotion of the Pool Products; provided, however, that all uses of such trademarks and service marks by or on behalf of Dealer shall be in accordance with trademark usage guidelines provided by Latham from time to time and shall be subject in each case to Latham’s prior, written approval. All use of Latham marks by Dealer shall inure to the benefit of Latham. Dealer will not distribute any sales literature or other marketing materials regarding the Pool Products without first submitting such items to Latham for review and obtaining Latham’s written approval to distribute such items.
Substitution. Latham reserves the right to substitute materials and modify specifications to the extent required in order to comply with any law or regulation.
Design. Latham reserves the right to modify the Pool Products or packaging without notice.
Cancellation or Changes. No orders or sales may be cancelled or changed without Latham’s consent. At Latham’s option, and in Latham’s sole and absolute discretion, any changes to an accepted order, may be subject to repricing at then-current rates or cancellation. Any cancelled orders are subject to payment of cancellation charges equal to all costs incurred by Latham up to the date of cancellation, including a reasonable amount for overhead.
Return of Pool Products. Returned Pool Products will not be accepted by Latham except with the prior permission in writing of Latham and the issuance of a return merchandise authorization (RMA) by Latham. All transportation charges for returns must be borne by the Dealer. Return of new, unused Pool Products of current design accepted by Latham for credit are subject to a restocking charge of 15% of the invoice value of the Pool Products. RMAs issued are good for thirty (30) days. Further deductions will be made if Pool Products returned are in a depreciated condition or if re-crating is necessary. Written permission must be obtained from Latham before any product claimed defective is returned for inspection. The Latham Pool Products RMA procedures must be followed, and the appropriate RMA paperwork must accompany the returning Pool Products.
INDEMNITY. DEALER AGREES TO DEFEND, INDEMNIFY, AND HOLD LATHAM AND ITS AFFILIATES HARMLESS FOR ANY AND ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, LOSSES, DAMAGES, AWARDS, JUDGMENTS, SETTLEMENTS, INTEREST, PENALTIES, FINES, COSTS, AND EXPENSES (INCLUDING THOSE INCURRED IN THE DEFENSE OF ANY ACTION SUCH AS COURT COSTS, AND REASONABLE ATTORNEY’S FEES AND EXPENSES), WHICH ARISE FROM OR RELATE TO: (A) ACTS OR OMISSIONS OF DEALER OR ITS AGENTS, SUBCONTRACTORS, EMPLOYEES OR REPRESENTATIVES WITH RESPECT TO THE INSTALLATION, SALE, SERVICING, AND/OR USE OF THE POOL PRODUCTS OR ANY RELATED PRODUCTS; (B) ANY REPRESENTATIONS OR STATEMENTS MADE BY DEALER OR ANY OF ITS AGENTS, SUBCONTRACTORS, EMPLOYEES, OR REPRESENTATIVES THAT ARE INCONSISTENT WITH OR IN ADDITION TO LATHAM’S CURRENT, APPROVED MARKETING MATERIALS FOR THE POOL PRODUCTS; OR (C) ANY CLAIM RELATED TO DEALER’S BREACH OF THIS AGREEMENT. SUCH AGREEMENT TO DEFEND, INDEMNIFY, AND HOLD HARMLESS LATHAM AND ITS AFFILIATES SHALL APPLY WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR OF THE CONCURRENT OR CONTRIBUTING FAULT OR NEGLIGENCE OF LATHAM AND ITS AFFILIATES. LATHAM WILL HAVE THE RIGHT TO CONTROL THE DEFENSE OF ANY SUCH CLAIM, AT DEALER’S EXPENSE, USING COUNSEL SELECTED BY LATHAM. DEALER’S OBLIGATION PURSUANT TO THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
No Waivers. Dealer understands that no waiver or failure to act on the part of Latham with respect to any part of this Agreement will not prevent Latham from later exercising any such right under this Agreement.
Warranties. Latham offers a limited warranty on each of the Pool Products, which varies in scope and term, depending on the product. A written warranty accompanies each Pool Product, and the Dealer agrees to deliver same to the end user. Copies of all of Latham’s warranties are available at the following website: www.lathampool.com/warranties.
EXCEPT FOR THE WRITTEN LIMITED WARRANTY ENCLOSED WITH THE POOL PRODUCTS AND REFERENCED ABOVE, LATHAM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE POOL PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
In the event Latham is called upon to examine or to perform work on the Pool Products after they have been delivered, the Dealer agrees to ensure the Pool Products are prepared for Latham, as requested by Latham. This includes, but is not limited to draining, bracing, and blocking the Pool Products. Dealer shall perform this work without cost to Latham.
Liability. In no event will Latham be liable for any consequential, incidental, indirect or punitive damages or lost profits arising from or relating to the Pool Products or this Agreement. Latham’s maximum cumulative liability arising from or relating to the Pool Products or this Agreement will in no event exceed the total amounts paid by Dealer to Latham for the Pool Product about which any claim arose.
Governing Law and Forum. This Agreement, and any disputes directly or indirectly arising from or relating to this agreement, will be governed by the laws of the State of New York, without reference to choice of law rules thereof. The parties hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Albany, New York for any such disputes, and hereby waive any objections to the laying of venue in such courts.
Force Majeure. Latham will not be liable for any default or delay in the performance of its obligations hereunder to the extent, and while, such default or delay is caused, directly or indirectly, by fire, flood, elements of nature, pandemic, epidemic, quarantine conditions, acts of God, acts of war or terrorism, or direct government action or order, or any other event beyond Latham’s reasonable control.
Notices. Dealer’s address for purposes of this Section will be as set forth in Appendix A. Latham’s address for purposes of this Section will be 787 Watervliet Shaker Road, Latham, NY 12110, Attention General Counsel, LegalNotice@lathampool.com, or such other address of which Latham notifies Dealer pursuant to this Section. All notices and communications required or permitted to be given by either party under this Agreement must be in writing. Except as otherwise provided in this Agreement, no notice will be effective unless given in accordance with this Section. Notice delivered by hand will be deemed received immediately upon actual delivery. Notice sent by an internationally recognized express overnight courier with a reliable system for tracking delivery will be deemed received on the second business day after sending. Notice sent by registered or certified mail, return receipt requested, postage prepaid, will be deemed received on the fourth business day after sending. Notice sent by email will be deemed received when: (a) the recipient acknowledges having received that email (with “read receipt,” “out of office,” or other automated responses not constituting such acknowledgment); or (b) the same notice is given by another method described in this Section.
Entire Agreement. This Agreement and the Shipping Terms and Conditions represent the entire agreement between the parties with respect to its subject matter and supersedes all prior discussions and agreements between the parties with respect to such subject matter. The parties do not intend that the provisions of this Agreement be explained, supplemented, or qualified through evidence of trade usage or any prior course of dealings or any course of performance under any prior agreement.