TTraction & Scale LLC Order Terms & Conditions
All purchases are subject to the following terms and conditions unless agreed to in writing by both parties. Terms & Conditions may change over time and will be updated either on the www.tractionandscale.com website or by being written on a new order form on your next order. By buying any product from Traction & Scale LLC you hereby agree to these terms.
Customer herein known as “Party A” or “Customer”
Traction & Scale LLC herein known as “Party B” or “Supplier”
Party A is responsible for its own due diligence and compliance with all rules & regulations with each brand and supplier. Party A may request a diligence process on each item which will be followed to the best extent possible by Party B.
1. “As is”. All products purchased by Party A are purchased ‘as is’ and only come with whatever warranty or indemnity the manufacturer or supplier has granted to Party B, which is transferred to Party in conjunction with payment in full and transfer of title to the goods. Party A is solely responsible for any off – label product use. Party A acknowledges that it is aware of the possibility that despite best efforts certain units may contain defects and returns may be refused or rendered impractical or impossible to use.
2. Warranty. Party B shall hold no liability or responsibility for warranties, returns, defective products, missing products or missing components. Party B provides no additional warranties or indemnities whether express or implied beyond the Manufacturer warranty. Party A shall be solely responsible for all product liability. All liability issues will be directly resolved between Party A and manufacturer. Party B will act in good faith in support of Party A but is not responsible for product defects. The business of medical supplies is highly complex and involves multiple countries and jurisdictions. Party A’s due diligence may not be perfect. The risks include but are not limited to force majeure issues, supplier fraud, factory fraud, shipping fraud, mislabeling of goods, theft, piracy, seizure and unreasonable shipping delays.
The Parties acknowledge that Traction & Scale LLC will make its best efforts to mitigate these Best Efforts. Party B will
use its best efforts to help cure defective products with manufacturers and suppliers it sources from, but it shall not have any legal obligation to cure.
3. Fair Pricing. Party A acknowledges that all pricing is fair and reasonable, and pricing will remain confidential. By buying from Party B, Party A agrees to hold Party B harmless from any issues resulting from the price paid for goods including but limited to price gouging. Party A acknowledges that if it had any issues with pricing, it would not complete the order.
4. Disputes. Both parties agree that any and disputes be handled first by sending a written notice to the other party and, thereafter, the party in receipt of such notice shall promptly contact the sending party and engage in a 60-day good faith negotiation period to resolve any dispute. Thereafter if the dispute remains unresolved, the parties agree to resolve binding arbitration with a mutually agreed upon arbitrator, using New York law. Any arbitration shall take place under the rules and in accordance with the AAA and shall take place in New York, NY.
5. Force Majeure. Party B shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, shortage of raw materials, quarantine, power failure, or any act of government or any agency thereof, or any fire, flood, piracy, eminent domain, shipping delays, government delays, seizure or other catastrophe.
6. Limitation of liability. Party B shall not be liable for direct, indirect, incidental, special, punitive, or consequential damages that directly or indirectly arise from or relate to products sourced or counterparties sourced on behalf of Party A, regardless of the legal or equitable theory asserted. Party B makes no warranties, or conditions, express or implied, including but not limited to merchantability or fitness of use.
7. Indemnity. Party A assumes all responsibility and liability and provides full indemnity to Party B, its employees, agents, assigns, vendors and contractors for this transaction with the sole exception being intentional fraud committed by Party B. For the sake of avoiding any doubt, this term shall supplement any indemnity clause to the contrary and, Party A acknowledges that Party B is only acting on the request and approval of Party A.
8. Non-Circumvent. Party A on behalf of themselves and their agents, brokers, principals and any other affiliated third parties, agree to maintain strict confidentiality of Confidential Information and covenants and agrees not to transact with, circumvent, avoid, bypass or negotiate, directly or indirectly including, but not limited to, through third-party independent contractors, new entities, joint ventures, parent, sister or subsidiary entities, or through any agreement with each such entity and/or individual, presented by the other party as a “Relationship”, and listed in an Appendix A to this agreement, or mutually agreed by both parties to add to this list over email. Violation of this clause would cause irreparable harm and Party B would be entitled to injunctive relief and damages, which would be at a minimum the entire gross contract value of any transaction executed between Party A or its related parties with relationships of Party B. The Relationships will be emailed after signing this agreement or listed in Appendix A below or listed herein on the website.
8b. For Acon FlowFlex. Party A acknowledges that all descriptive printed matter, advertising, and promotional materials relating to the use of the product shall clearly and conspicuously state that:
This product has not been FDA cleared or approved; but has been authorized by FDA under an EUA;
This product has been authorized only for the detection of proteins from SARS-CoV-2, not for any other viruses or pathogens; and,
This product is only authorized for the duration of the declaration that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection and/or diagnosis of COVID-19 under Section 564(b)(1) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 360bbb-3(b)(1), unless the declaration is terminated, or authorization is revoked sooner.
Appropriate Storage conditions: 36F to 86 F, no freezing and no extreme heat
Party A will indemnify Party B from any product liability and damages resulting from Party A’s inappropriate promotion of or storage of product by Party A.
Appendix A:
9. Final agreement. This agreement is final and supersedes any and all written, and oral agreements and may be signed in counterparts. These terms cannot be changed or modified unless, signed in writing by both parties to this agreement. If any term is deemed invalid, such provision may be struck by an arbitrator, but the remainder of the agreement will remain binding and enforceable. This agreement supersedes any Purchase Orders issued by Party A.