Last updated on November 25, 2020.
This Hardware Addendum (“Hardware Addendum”) supplements and is incorporated by reference into and made a part of the Agreement between Customer and Traction Guest. Capitalized terms not defined in this Hardware Addendum shall have the meaning ascribed to them in the Agreement. In the event of a conflict between this Hardware Addendum and the Agreement, the terms of the Agreement shall govern unless this Hardware Addendum expressly states that the terms of the Hardware Addendum shall control.
- Application. This Hardware Addendum governs the Customer’s purchase and receipt of Third Party Products as described in one or more Order Forms or Statements of Work (as applicable, each an “Ordering Document”), executed by the parties from time to time. Upon execution by authorized representatives of each party, the Ordering Document shall be governed by the terms and conditions of this Hardware Addendum and will form part of the Agreement.
- Scope. Traction Guest agrees to act as a reseller in the purchase of Third Party Products by Customer from one of Traction Guest’s selected partners of manufactures and resellers (each a “Supplier”). The parties acknowledge and agree that Traction Guest is not a manufacturer of any Third Party Product.
- Product Orders. Customer shall submit all orders for Third Party Products in writing through an Ordering Document, specifying each Third Party Product, quantity, location of delivery, and delivery date (each a “Product Order”).
- Acceptance. Upon execution of the applicable Ordering Document by both parties, the Product Order shall be deemed accepted.
- Cancellation by Customer. Customer may, without liability, cancel part or all of the Product Order at any time before it is accepted by Traction Guest. Unless the parties otherwise agree in writing, Customer may not terminate or modify the Product Order once the Product Order has been accepted by Traction Guest.
- Cancellation by Traction Guest. In the event a Product Order cannot be fulfilled as specified in the Ordering Document, for reasons outside of its control, Traction Guest may terminate the Product Order without liability. If the Product Order is terminated by Traction Guest after acceptance, Traction Guest agrees to negotiate in good faith to determine a reasonable solution for the replacement of such order. If the parties cannot agree to a reasonable solution, Traction Guest shall refund Customer all fees related to the Product Order.
- Delivery and Shipping. Traction Guest and Customer shall agree to the location of delivery, delivery date, insurance coverage, and any additional terms for each Product Order in the Ordering Document. Unless otherwise agreed to in writing, Traction Guest or Supplier shall determine the method and carrier for shipping. If available, Customer may elect to purchase shipping insurance for a Product Order by indicating it as a separate line item on the Ordering Document or procure appropriate insurance coverage at its own expense. Traction Guest shall not in any way be held liable for any delay, damage, or destruction of any of Product Orders. Notwithstanding the foregoing, Traction Guest shall make all commercially reasonable efforts with Supplier to deliver the products by the delivery date, and in the event there is damage or destruction to a Product Order, it shall cooperate in good faith with Supplier and Customer to determine a reasonable solution.
- Title and Risk.
- Title. Title to the products under any Product Order shall pass from Traction Guest to Customer upon payment in full of all fees pertaining to a Product Order.
- Risk. Notwithstanding any agreement between the parties concerning the transfer of title or responsibility for shipping costs, risk of loss to any product under a Product Order shall pass to Customer pursuant to the shipping terms indicated in the Ordering Document. If no such terms are clearly stated in the Ordering Document, then risk of loss to such products shall pass to Customer upon receipt of shipment by carrier and Customer shall bear the risk of loss during shipment to delivery location.
- Acceptance. Within five (5) days of receipt of delivery, Customer shall inspect all products received under a Product Order and notify Supplier or Traction Guest, in writing, of any goods that are non-compliant with the product specifications provided by Supplier or Traction Guest under an Ordering Document (“Objection Notice”). An Objection Notice must include written evidence or other documentation demonstrating non-conformance with the product specifications. If it is determined that any products delivered under a Product Order are non-conforming, Supplier or Traction Guest may, in its sole discretion: (i) repair or replace the non-conforming products at Supplier’s expense; or (ii) issue a refund for the non-conforming goods plus any transportation expenses paid by the Customer.
- Warranty. Traction Guest agrees to: (i) provide Customer with a copy of each product warranty offered by Supplier with respect to any product purchased under a Product Order; or (ii) pass through or assign to Customer all product warranties that Traction Guest receives from the Supplier. EXCEPT AS PROVIDED FOR UNDER THIS SECTION 6, TRACTION GUEST MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY PRODUCT, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Product Disputes. Customer acknowledges and agrees that Traction Guest assumes no responsibility or liability with respect to Third Party Products. Customer agrees to notify Traction Guest or Supplier as soon as commercially possible with respect to any issues relating to the service or quality of Third Party Products. Traction Guest agrees to make commercially reasonable efforts to engage with Customer and Supplier and provide reasonable assistance to resolve any potential disputes between Supplier and Customer relating to the Third Party Products.
- Fees. Customer shall pay Traction Guest the fees set forth in the applicable Ordering Document with respect to Third Party Products (“Hardware Fees”). All Hardware Fees shall be paid within thirty (30) days of the date of the invoice unless otherwise agreed to in writing by the parties. The Hardware Fees shall exclude all applicable federal, state, provincial, value-added, goods and services, harmonized and local taxes (other than taxes on Traction Guest’s net income). Unless otherwise agreed to in writing in an Ordering Document, Customer shall be responsible for handling any customs clearance and payment of any import duties imposed on the Third Party Products.