Treace Medical Concepts, Inc.

Terms and Conditions for Sale of Products

The following terms and conditions (“Terms”) will apply to all purchases of products from Treace Medical Concepts, Inc. (“TMC”), and by ordering products from TMC, Customer expressly agrees to these Terms.

 

Placing Orders

Customer may place orders by contacting Customer’s local TMC sales representative or agent. All orders are subject to acceptance and confirmation by TMC. When ordering, please provide:

1. Your TMC Customer account number;

2. Purchase order number;

3. Shipping and billing address, including zip code;

4. How items will ship including special shipping instructions, if any; and

5. Product part numbers and quantities.

Delivery Terms

Orders are F.O.B. shipping point (under the Uniform Commercial Code). TMC will prepay freight charges, and Customer will pay the shipping and handling fees invoiced to the Customer. Risk of loss will pass to Customer when the products have been delivered by TMC to a common carrier for delivery to Customer.

Payment Terms and Price; Taxes

The price in effect at time of delivery will apply. Prices do not include sales, use, excise or similar taxes or any shipping, delivery, handling or insurance charges. Except to the extent exempt therefrom, as evidenced by a tax exemption certificate provided to TMC, Customer agrees to pay all taxes or levies of whatever nature arising out of or in connection with the purchase of products, including the sale, delivery, ownership, or use of the products, excluding taxes based on TMC’s net income. Customer agrees to pay the applicable invoiced amounts due to TMC within 30 days of the date of the sale of the products. Interest at the rate of the lesser of 1.5% per month or the maximum permitted under applicable law may accrue on payments that are not made when due.

Remittance Address

Customer may pay electronically, by check or by credit card. To receive instructions for making electronic payments, please email ar@treace.net or call (904) 373 5940 and then select option 3. Payments by check may be mailed to: Treace Medical Concepts, Inc. Dept CH 17535, Palatine, IL 60055-7535 or such alternative address specified by TMC from time to time. Credit card payments are accepted on TMC’s customer portal and may be subject to additional fees.

Limited Warranty; Limitation of Liability

TMC warrants its catalog products to the original purchaser against defects in workmanship and materials for 180 days from the date of purchase from TMC (the “warranty period”). Claims for breach of warranty that are not received in writing by TMC within the warranty period are waived. TMC may require that Customer return the alleged defective product, freight prepaid, pursuant to TMC’s written authorization before remedying a breach of warranty.

TMC’s only liability and the exclusive remedy of Customer in the event of any defect is for TMC to provide at TMC’s option, either

1. a full refund or credit in the amount of the purchase price, or

2. the repair or replacement of the product.

This warranty does not cover and TMC disclaims any liability for: (1) damage caused by misuse (use in any way inconsistent with TMC’s instructions, specifications, warnings or labeling), neglect (including failure to store or handle the product in accordance with TMC’s instructions, specifications, warnings or labeling), accident or causes external to the product; (2) any product on which the serial number or lot code has been removed or made illegible; (3) any product or part thereof that has been disassembled, serviced, reassembled, repackaged, or modified by anyone other than TMC, unless authorized by TMC; (4) re-use of a product sold for single use; (5) any instrument damaged through use with other than TMC authorized products; or (6) the removal or defacing of any labeling of the product.

TMC’S WARRANTIES ARE LIMITED EXCLUSIVELY TO THIS EXPRESS WARRANTY. ALL OTHER WARRANTIES OF ANY KIND, NATURE, OR DESCRIPTION WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR INFRINGEMENT, ARE DISCLAIMED.

TMC will not be liable for any indirect, consequential, incidental, punitive, special, exemplary, or contingent loss or damage (including without limitation lost or anticipated profits and savings or damage to goodwill) arising from or in connection with the purchase, use of, or inability to use, or unavailability of, the TMC products or otherwise in connection with this agreement, even if TMC has been advised of the likelihood of such damages. TMC will not be liable for any loss, damage, injury or expense related to the use of its products in any manner inconsistent with TMC’s instructions, specifications, warnings or labeling. TMC’s maximum aggregate liability for any loss, damage, injury or expense related to its products, services or these Terms, whether such liability arises out of breach of contract, negligence or otherwise, will not exceed the actual amounts paid by Customer to TMC for the TMC product(s) involved in such claim. The limitations in this section will not preclude any liability which, under applicable products liability law, cannot legally be precluded by contract.

Compliance

Customer agrees to comply with all applicable federal, state, and local laws and regulations in connection with the purchase and use of TMC products and product pricing, including all applicable fraud and abuse laws and all requirements to disclose and report the existence and terms of discounts to Medicare, Medicaid or other Federal or State health care programs in accordance with 42 C.F.R. § 1001.952(h) and 42 U.S.C. § 1320a-7b(b)(3)(A). Customer agrees that any reduction in price offered to Customer hereunder is subject to the aforementioned law and regulation. If Customer is an individual or an entity in whose name a claim or request for payment may be submitted to a Federal or State health care program or an individual or entity who submits cost reports to Federal or State health care programs, Customer agrees to, upon request, provide the Secretary of the U.S. Department of Health and Human Services or a State agency with the discount information contained in any price quotation, the invoice, and any discount statement, as specified in 42 C.F.R. 1001.952(h)(2)(ii). In addition, if Customer is a buyer that reports costs on a cost report required by a Federal or State health care program, Customer agrees to the following: (a) any discount must be earned on purchases of the same good or service bought within a single fiscal year of the Customer; and (b) Customer must claim the benefit of any discount in the fiscal year in which the discount is earned or the following year. Customer must also fully and accurately report the effect of any discount on the effective price paid for products on any applicable cost report (or claim form if such claim form requires cost reporting) covering the products submitted to a Federal or State health care program. Customer acknowledges that Customer should consult with its accountants, legal counsel, or other advisors regarding any reporting obligations it may have, including appropriate calculation methodologies used to report discounts, rebates, product upgrades, or credits received from TMC. Customer will also comply with all applicable third-party payor requirements to which it is subject regarding the reporting of discounts/rebates and the submission of claims. Customer represents and warrants that neither it nor, to the best of its knowledge, any of its employees, officers, directors, members, managers, or other agents has ever been suspended, excluded, debarred, or sanctioned by Medicare or any other Federal healthcare program or ever been convicted of a criminal offense related to healthcare.

Return Goods Policy

Authorization is required to return any product by completing and submitting a Return Goods Authorization Form (RGA Form). Receipt of unauthorized returns will not be accepted. To request a return authorization, contact TMC Customer Service. Authorized returns are to be shipped by Customer with freight prepaid.

1. Products returned within 30 days of the date of invoice will be credited at the Customer’s invoice price.

2. Products returned after 30 days but not longer than 90 days from the date of invoice will be credited at the Customer’s invoice price, less a 15% restocking charge.

3. After 90 days from the date of invoice, products will not be accepted for return.

4. Additional products not accepted for return (regardless of timing) include: obsolete products, damaged products, custom made or altered products, sterile products which have open cartons, mixed sterile lot numbers, or products beyond their expiration dates.

All authorized returns are also subject to the following terms:

1. Invoice copy or invoice number, part number, lot number and date of purchase must be provided to TMC Customer Service with the authorization of return.

2. Products that have been opened or are not in their original packaging are disallowed for full credit; the amount credited will be determined by a quality assurance inspection.

3. Merchandise shipped in error by TMC will receive full invoice credit if returned within 30 days of receipt in unopened, original factory package.

TMC Sales Agents

TMC products are sold directly by TMC. TMC does, however, have independent sales agents to assist Customers with respect to purchasing TMC products. For the name and address of your TMC sales agent, contact the TMC Customer Service Department at cs@treace.net. Sales agents may not alter these Terms, extend credit, or accept payment for products.

Instrumentation

Customer acknowledges and agrees that (1) the surgical instruments that TMC makes available to Customer may be used only in surgical cases where TMC’s patented Lapiplasty®, Adductoplasty® or other authorized procedures are performed and TMC’s implants, disposable devices and sterile kits are used; (2) Customer will not use TMC’s instruments for bunion, midfoot or other surgeries of any kind using other companies’ implants or other medical devices; (3) the instruments are intended to be used only by trained surgeons with TMC products; and (4) except for single use instruments and the SpeedPlate^™ system instrumentation, which may be purchased by Customer (“Purchased Instruments”), TMC’s surgical instruments are not available for purchase by Customer, and at all times, TMC will own and retain title to such instruments. Customer’s use and maintenance of TMC’s instruments is at Customer’s sole risk, and Customer will be liable for any loss or damage to such surgical instruments. Other than Purchased Instruments, Customer will keep TMC’s instruments free and clear from any lien, security interest or encumbrance. The use of TMC’s surgical instruments is bundled into and included in the price of certain TMC’s products.

General

Except as otherwise specifically set out in a written agreement signed by Customer and TMC (an “Agreement”), TMC reserves the right to discontinue products or to change specifications, designs, prices, or the terms and conditions of sale at any time. No representation, promise, waiver, amendment, or modification of these Terms will be binding unless in writing signed by an authorized representative of TMC. TMC hereby objects to and will not be bound by any other terms or conditions, express or implied. Acceptance by Customer of the products will constitute acceptance of all the provisions of these Terms. All purchase orders issued by Customer will be considered an offer to buy the products described in the purchase order in accordance with these Terms and any Agreement. Any additional terms or inconsistent terms set forth in a purchase order or similar document created or issued by Customer in connection with the purchase of products will be considered void, will have no binding effect, and are disclaimed by TMC. By accepting a purchase order or by delivering ordered products, TMC does not accept any obligations or provisions that differ from these Terms or the Agreement.
These Terms, all disputes arising under them and all aspects of the relationship between TMC and Customer will be governed by the laws of the State of Florida (excluding those addressing choice of law), and the parties hereby expressly disclaim application of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Any information of TMC, not otherwise publicly available, that is revealed to Customer in connection with sale or supply of TMC products or instruments (including but not limited to product pricing and these Terms), and information arising out of or related to any claim or dispute involving products, is deemed confidential. Such information may not be disclosed to third parties or otherwise used for any purpose other than in connection with the clinical use of TMC products, except with TMC’s prior written consent.
Products sold and delivered within the United States are for domestic use only and will not be exported by Customer in violation of applicable U.S. export laws and regulations. Any resale or distribution of products is prohibited except with TMC’s express written authorization.
TMC will not be liable for any delay in or lack of its performance of its obligations and responsibilities under these Terms due to causes beyond its reasonable control, including, but not limited to acts of war or terrorism, embargo, national emergency, disruptions in transportation, utility, internet and other networks, labor disputes, insurrection or riots, acts of the public enemy, fire, flood, pandemic, epidemic, or other natural disaster, even if such causes are foreseeable. Customer will not use TMC’s name, logos, or trademarks in any manner, including without limitation in any advertising, promotional material, press release, publication, public statement or announcement, or through any form of other media, written or oral, without the prior written consent of TMC. If TMC consents to usage of its name, logo or trademark, Customer will follow TMC’s trademark usage guidelines in effect from time to time. The captions herein are for convenience only and do not modify or explain any of the provisions of these Terms.