(Revision #2 - 8/25/2011)
THIS ACKNOWLEDGMENT IS AN ACCEPTANCE OF CUSTOMER’S PURCHASE ORDER OR WRITTEN RELEASE UNDER A VALID BLANKET ORDER ONLY FOR THOSE PRODUCTS AND/OR SERVICES WITH A SCHEDULED DELIVERY DATE SHOWN ON THE FRONT OF THE ORDER OR ON A WRITTEN RELEASE FROM CUSTOMER. ACCEPTANCE BY PACE IS GOVERNED BY THESE TERMS AND CONDITIONS OF SALE SET FORTH HEREIN TOGETHER WITH ANY ADDITIONAL PRINTED TERMS AND CONDITIONS CONTAINED IN QUOTATIONS OR OFFER PROVIDED BY PACE TO CUSTOMER AND THE FACE OF THIS ACKNOWLEDGEMENT (THE GOVERNING TERMS”), ALL OF WHICH ARE IN LIEU OF, REPLACE AND SUPERSEDE ANY AND ALL TERMS AND CONDITIONS SET FORTH ON CUSTOMER’S PURCHASE ORDER, APPLICABLE SPECIFICATIONS, OR ANY OTHER DOCUMENT PROVIDED BY CUSTOMER. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS PROVIDED BY CUSTOMER, EITHER BEFORE OR AFTER ISSUANCE OF THIS ACKNOWLEDGMENT, ARE HEREBY OBJECTED TO BY PACE, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE OF PRODUCTS AND/OR SERVICES UNDER THE GOVERNING TERMS AND SHALL NOT BE BINDING IN ANY WAY ON PACE. IF CUSTOMER HAS NOT OTHERWISE ACCEPTED THE GOVERNING TERMS, THEN CUSTOMER’S ACCEPTANCE OR DELIVERY OF, OR PAYMENT FOR, THE PRODUCTS AND/OR SERVICES SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THE GOVERNING TERMS. No waiver or amendment of any of the provisions of the Governing Terms shall be binding on Pace unless in a writing and signed by the parties. Customer further acknowledges and agrees that Pace may amend, any or all of the Terms and Conditions of Sale at any time without notice, and that Customer’s relationship with Pace will be governed by the Terms and Conditions of Sale, as amended. Any amendment will be reflected on the Website and Customer is encouraged to periodically review the Terms and Conditions of Sale posted on the Website.
2. Terms of Payment.
Unless otherwise stated on the face of this Acknowledgment or in the written quotation from Pace to Customer, all invoices for products and/or services are due and payable thirty (30) days from the date of invoice. Past due accounts will be charged interest at an annual rate of ten percent (10%), or the maximum rate permitted by applicable law. Pace retains a purchase money security interest under the Uniform Commercial Code in each state in which performance is to take place in the products sold until payment in full has been made. In the event of default by Buyer under this Agreement, Pace shall have all the rights and remedies of a secured creditor under the aforementioned UCC provisions. Customer agrees to execute such financing statements and other documents as Pace may request in order to perfect Pace’s security interest. Additionally, Customer acknowledges that Pace will have a lien on tooling and/or other property owned by Customer which is in the possession of Pace to secure full payment of that portion of past due invoices not subject to valid dispute for products made using such tooling and/or other property. All deliveries of products and performance of services shall at all times remain subject to the credit approval of Pace, and Pace may at any time decline to make any shipments or deliveries, or perform any services, except upon receipt of payment or upon terms and conditions or security arrangements or the provision of adequate assurance satisfactory to Pace.
The price of each product (“Product Price”) comprises a) the price of the metal component (“Metal Price”), b) the price of the non-metal component i.e. manufacturing component (“Net of Metal Price”) and, if applicable, c) the price for purchased components (“Component Price’). Product Prices are firm except as otherwise provided herein. The price for services comprises labor, overhead, material and subcontractor charges. Product Prices are FOB Pace plant. Product Prices are in United States dollars. Product Prices do not include any applicable sales or use taxes, tariffs, customs and other duties and other similar taxes and charges, applicable to the finished Products, which shall be the responsibility of Customer and added to the stated Product Prices if paid for by Pace.
4. Price Adjustments.
a. The Metal Price is subject to periodic adjustment for fluctuations in commodities prices. The Metal Price is equal to the Part Weight of the product plus melt loss factor stated in written quotation from Pace to Customer multiplied by the Metal Base. The Part Weight for each product shall be established at the time of the first production run by Pace and accepted by Customer. The Metal Base shall be the per pound price of the applicable type and grade of aluminum alloy for each product as indicated by the metals market index stated on the front of the Acknowledgement stated in written quotation from Pace to Customer. The Metal Base shall be adjusted periodically as stated in written quotation from Pace to Customer.
b. If Customer requests that Pace provide additional surface treatment, finishing or machining operations on any product which is not included in the Product Price, the Product Price shall be equitably adjusted to reflect such additional finishing operations.
c. The Product Price for each product was determined based on the revision level specifications for the product in the original Pace quotation to Customer (“Applicable Specifications’). If an error is found in the Applicable Specifications for any product, the Product Price of the affected product will be equitably adjusted up or down to reflect such error. Neither party may change, or interpret differently, any dimensional feature or cosmetic attribute written on the Applicable Specification for a product without the express written agreement of the affected party and subject to there being an equitable adjustment, up or down, as the case may be, to the Product Price of the affected product and any necessary adjustments to delivery . All revisions to Applicable Specifications must be processed through a written Engineering Change Notification signed by both parties. In addition, a revised Purchase Order reflecting agreed upon new pricing shall be provided to Pace before commencing further manufacturing of the affected product in accordance with the revised Applicable Specification. If a product is in development and a complete set of Applicable Specifications is not completed, each progression towards completion shall be a deemed change in Applicable Specifications as herein provided.
d. The Product Price includes packaging and handling in accordance with the written quotation to Customer, and if Customer requests any deviations or changes, the Product Price shall be equitably adjusted to reflect such increase or decrease in cost.
e. Component Prices shall be subject to adjustment, up or down, for market fluctuations in purchased component costs. Any Component Price adjustment will be notified to Customer and will only affect Product Prices for products using such newly purchased components.
Purchase Order shall mean: a. a specific order of firm quantity of products or b. a valid blanket purchase order issued by Customer to Pace under which written paper or electronic releases are issued setting forth product delivery requirements. The minimum time frame for placing purchase orders and providing releases, delivery time parameters, ordering quantities and allowable deviations against which Pace shall be obligated to ship, and other specific ordering criteria, are set on the face of this Acknowledgement or in Pace’s written quotation to Customer. Pace shall have no obligation to supply products with shorter delivery times or larger order quantities than specified. Customer may place firm orders calling for delivery times, quantities and other criteria outside of the parameters specified (“Special Orders”). Pace will use its best efforts to comply with Special Orders but will not be in default if it does not comply. Additional costs to be paid by Customer that are related to Special Orders will be as agreed upon between the authorized persons of Pace and Customer. For purposes of the Governing Terms, Special Orders shall not be deemed to be products.
6. Delivery and Quantity Verification.
a. Delivery of product is FOB Origin. Customer shall be responsible for all costs of transportation and insurance of products from point of origin.
b. Customer is responsible for providing written instructions related to shipping and packaging for all product shipments, both domestic and export.
c. Pace will use commercially reasonable efforts to make all deliveries, whether full or partial, in accordance with the delivery schedule set forth on the face of this Acknowledgement or contained in written releases pursuant to valid blanket orders from Customer issued within lead times for ordering products. Pace may reasonably change any delivery date by written notification to Customer and such date shall become the agreed upon delivery date unless Customer objects to such date in writing. Delivery shall be deemed complete at point of loading onto carrier at Pace’s loading dock. Upon delivery of the products as contemplated herein, title to products will pass to Customer who will then be solely responsible for and bear the entire risk of any loss or damage to the products
d. See section 5 for provisions related to Special Orders.
e. Customer shall have thirty days from date of receipt of products to inspect and notify Pace of any inaccuracies in quantities shipped, failing which, such quantities shall be deemed to be accurate.
7. Cancellation and Returns.
No order or release may be cancelled and no products sold may be returned without the written consent of Pace.
8. Limited Warranty.
a. Products supplied by Pace shall at the time of delivery:
i. Be free and clear of all liens, claims and encumbrances of any creditor of Pace;
ii. Conform to the Applicable Specifications;
iii. Have been manufactured in conformance with all applicable Federal, State, and Local laws, regulations, and ordinances;
iv. Be free of all toxic or poisonous materials;
v. Be free from defects in workmanship and materials;
b. The above warranties shall expire twelve (12) months after the date of delivery of products.
c. THIS WARRANTY AND ANY OTHER REPRESENTATIONS AND WARRANTIES CONTAINED IN THE GOVERNINING TERMS ARE IN LIEU OFAND SUPERSEDE, EXCLUDE AND EXTINGUISH ANY OTHER WARRANTY, REPRESENTATION, ASSURANCE, GUARANTEE, OR OBLIGATION WHATSOEVER (WITHOUT LIMITATION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE OR OTHERWISE WHETHER EXPRESS OR IMPLIED OR OTHERWISE AND WHETHER ARISING AT COMMON LAW OR STATUTE, CUSTOM, USAGE, COURSE OF DEALING OR OTHERWISE) IN RELATION TO THE PRODUCTS AND SERVICES AND THE SUPPLY OF SUCH PRODUCTS AND SERVICES HEREUNDER, AND PACE EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ONLY THE APPLICABLE SPECIFICATIONS WILL GOVERN AND IF PRE-PRODUCTION SAMPLES, DESCRIPTIONS OR DRAWINGS ARE PROVIDED TO PACE BY CUSTOMER, SUCH SAMPLES, DESCRIPTIONS OR DRAWINGS SHALL HAVE BEEN FOR GENERAL INFORMATION PURPOSES ONLY AND SHALL NOT BE DEEMED A WARRANTY BY SAMPLE, DESCRIPTION OR MODEL, OR OTHERWISE HAVE ANY LEGAL EFFECT. IN NO EVENT SHALL PACE HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR ECONOMIC OPPORTUNITY) CLAIMED BY CUSTOMER OR OTHERS IN CONNECTION WITH ANY OF THE PRODUCTS DELIVERED OR SERVICES PROVIDED TO CUSTOMER IN THIS AGREEMENT, WHETHER OR NOT PACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY, IF ANY, OF PACE FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT RELATED AND DAMAGES FOR INJURY TO PERSONS OR PROPERTY, WHETHER ARISING FROM PACE’S BREACH OF THE GOVERNING TERMS, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, OR OTHERWISE WITH RESPECT TO THE PRODUCTS OR ANY SERVICES, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR PRODUCTS OR SERVICE. Customer’s exclusive remedy under this Section is for Pace, at Pace’s discretion, to replace, repair, or refund the purchase price of any product not in compliance with the warranty. Pace shall be entitled to the return of all non-conforming Products at Customer’s expense. In no event will Pace be responsible for the cost of procuring substitute product by the Customer. For all warranty claims, Customer shall comply with Pace’s Return Materials Authorization (“RMA”) procedures for the return and validation of the non-conformity. Claims shall not be accepted or processed without an RMA number. Customer will be provided with samples of products for approval prior to production commencing. Product made in accordance with samples so approved by Customer shall be deemed to be in compliance with the Applicable Specifications for the product. Customer acknowledges that the design and Applicable Specifications of each product originated with Customer.
a. Any one of the following events shall constitute an event of default by Customer:
i. Failure to make payment on any invoice when due, excepting out any portion which is subject to valid dispute;
ii. Failure to accept conforming products or services supplied hereunder;
iii. The return of any products delivered without the prior written consent of Pace;
iv. The filing of a voluntary or involuntary petition in bankruptcy by or against Customer, the institution of any proceedings in insolvency or bankruptcy (including reorganization) by or against Customer, the appointment of a trustee or receiver of Customer, or an assignment for the benefit of the Customer’s creditors; or
v. Any other breach of any of the provisions hereof.
b. In the case of an event of default by Customer, if Customer fails to cure such default within: ten (10) days of receiving written notice of default in the case of sub-section a., fifteen (15) days in the case of sub-section b. and c., sixty (60) days in the case of sub-section d., and thirty (30) days in the case of sub-section e. , Pace may, without limiting any other remedies which it may have in law or equity, by written notice to Customer, terminate the order covered hereby, any release, or any part thereof, without any liability whatsoever.
c. No delay or omission to exercise any right or remedy available to Pace in the event of an event of default or otherwise shall impair any such right to Pace’s remedies or constitute a waiver of any breach or default.
Pace agrees to indemnify Customer with respect to all direct damages suffered by Customer (consequential, incidental, indirect, special damages, loss of profits or economic opportunity are expressly excluded) which a court of competent jurisdiction determines to have resulted solely from the products, including without limitation reasonable attorney’s fees and court cost(s), sustained by Customer in connection with (i) a breach of a representation or warranty by Pace, (ii) any actual damage to property, or (ii) any bodily injury or death to any person.
Customer shall indemnify and hold Pace and its affiliates, and their respective officers, director, employees, representatives and agents harmless from any claim of infringement of a patent, copyright, trademark, trade name, or other proprietary right or claim of unfair trade or unfair competition, in connection with the products or services, to the extent such products or services are manufactured, sold or used pursuant to specifications, drawings and representations furnished by Customer to Pace.
12. Term and Quantity.
Customer’s purchase order should specify a term, which will operate as the applicable term hereunder. In the absence of a term specified on the purchase order, the term shall be the time it takes to complete the fulfillment of the specific firm quantity of products under the Purchase order or written release. If Customer uses a blanket purchase order, such blanket shall specify a term which in any case shall not extend for more than one (1) year. In the absence of any stated term, Pace shall only be obligated for specific written releases which it accepts in writing. Additionally, all blanket purchase orders must state a quantity requirement which customer will purchase during for the term of the blanket, failing which mutuality of obligation will not be deemed to exist, and Pace shall only be obligated for specific written releases which it accepts in writing,
a. Customer shall provide all tooling, dies, gauges, fixtures (“Tooling”) necessary to cast, trim, machine and gauge the products.
b. Customer shall be responsible for the cost of Tooling. Customer shall retain ownership of all Tooling which it provides directly to Pace. Any Tooling procured through Pace shall become Customer’s upon payment in full by Customer. Until receipt of full payment by Pace for such Tooling or on any invoice for product made from such Tooling, Pace shall have a lien on such Tooling.
c. While in the possession of Pace, the Tooling shall remain the property of Customer and shall only be used by Pace for the manufacture of Customer’s products. The Tooling shall be plainly marked or tagged as property of the customer. Pace covenants that it will (i) not allow the Tooling to be encumbered in any way as a result of any act or omission of Pace, (ii) not move the Tooling to a location different from the address of Pace stated herein without written consent of Customer, which in the case of a transfer to an affiliate of Pace shall not be unreasonably withheld; (iii) provide normal routine maintenance of Tooling (e.g.: core and ejector pin replacement, minor welding, polishing and stress relieving, as necessary in accordance with general industry maintenance standards at Pace’s expense, all other major maintenance shall be at the expense of the Customer but subject to Customer’s advance review and authorization of such work; (iv) insure the Tooling in a manner consistent with industry practice; (v) operate the Tooling in a safe manner with all warnings and safeguards in place at all times.
d. It shall be Pace’s responsibility to monitor all operational Tooling. Upon reaching estimated six (6) monthly remaining life, as in quoted tool life for die cast cavities, Pace shall notify Customer to ensure timely ordering of replacement cavities by Customer prior to the operational cavities reaching end of life, with sufficient time given to sample the replacement cavities and obtain production approval from Customer. If Customer fails to timely replace cavities after receiving notification from Pace, customer acknowledges and agrees that it will be responsible for any increased manufacturing cost incurred by Pace caused by the use of the cavities beyond quoted tool life, and agrees to promptly pay such increased costs upon presentment of invoice.
e. If Customer should directly provide to Pace any Tooling, new or used (“Transfer Tooling”), then, if after running any Tooling provided by Customer, it is determined by Pace or Customer that the resultant product as produced on the Tooling will not be able to conform to the Applicable Specifications for that product (“Tooling Event”), Customer shall correct the Tooling Event by selecting one of the following options: (i) notify Pace in writing that the product, as produced will be an acceptable deviation from the Applicable Specifications, or (ii) repair the subject Tooling, at Customer’s cost, so that future product runs of the product will meet the Applicable Specifications, or (iii) require Pace, after providing written notification to Pace to perform additional finishing operations to the non-conforming product at Customers expense, so that the product is made to conform to the Applicable Specifications.
f. Pace shall not make any modifications to Customer owned Tooling without the written consent of Customer. Pace will assume total risk and liability if any changes are implemented in any aspect without Customer’s written approval.
g. Pace may request Customer provide proper tool disposition instructions in writing for any Tooling if inactive for a period of at least two (2) years. Customer acknowledges that leaving possession of inactive Tooling with Pace constitutes an involuntary bailment of such Tooling. If Customer does not respond to Pace within thirty (30) days of the transmittal of notice with an immediate plan of disposition or elects to abandon the Tooling, Pace may dispose of such Tooling without further liability.
h. Pace shall maintain tool logs and records for all Tooling and shall permit Customer and its agents, upon reasonable notice, to inspect and examine such logs and records during normal business hours.
14. Force Majeure.
A party shall be temporarily excused from performance to the extent that nonperformance is caused by acts of God, labor disputes, governmental acts, orders or regulations, unavailability of raw materials, supplies or energy, or any other similar cause beyond the reasonable control of the non-performing party.
”Confidential Information” means, whether disclosed in writing or orally: (a) all confidential information disclosed to one party by the other party pursuant to any non-disclosure agreements between the parties; (b) all business, operational, manufacturing, financial and technical information, including, without limitation, all specifications, formulations, designs, technology, manufacturing processes, quality control standards, data, drawings, documents, procedures, know-how or related information, customer names, pricing and costing data, marketing information, market studies, financial reporting information and other information given by one party to the other; and (c) any other information disclosed to one party by the other party which would reasonably be understood to be confidential. Confidential Information does not include any information which: (i) was already known by the recipient at the time of disclosure; (ii) is or becomes generally known to the public without breach by the recipient; (iii) is rightfully received from a third party without restriction on disclosure and not, to the knowledge of the recipient, in breach of any obligation of confidentiality; or (iv) is independently developed by the receiving party without use of the information received from the disclosing party. The receiving party shall not disclose any Confidential Information disclosed to it by the disclosing party to anyone other than its or its affiliates, officers, directors, employees, contractors or authorized representatives and agents of the receiving party who have a need to know the information in connection with performing the obligations of such party hereunder and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. The receiving party shall exercise the same degree of care to prevent disclosure of any Confidential Information received from the disclosing party hereunder as it takes to preserve and safeguard its own confidential information but, in any event, no less than a reasonable degree of care. In the event of any loss or improper disclosure of the proprietary information, the receiving party shall promptly notify the disclosing party. The foregoing notwithstanding, a party may disclose Confidential Information in compliance with applicable law, court order, subpoena, or request by federal or state banking regulators, provided the other party is given notice and sufficient opportunity to intervene.
16. Independent Contractors. Pace and Customer are independent contractors and nothing in this Acknowledgement shall be interpreted to constitute either Pace or Customer as the partner, employee or agent of the other. Nor shall either Pace or Customer have the authority to assume or create any liability or obligation, express or implied, on behalf of, or bind in any manner, the other party.
17. Remedies; Limitations. Except as specifically provided in the Governing Terms, the rights and remedies provided to a party hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to such party at law or in equity.
18. Successors and Assigns. Customer shall not assign its rights or delegate its obligations hereunder without the consent of Pace. The rights and obligations of the parties hereunder shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
19. Waivers. No delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either party of any such right, power or privilege, nor any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
20. Entire Agreement; Amendments. The Governing Terms constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous oral and written agreements and understandings regarding the subject matter hereof. The Governing Terms shall not be supplemented or contradicted by course or dealing, usage of trade or course of performance under this or other agreements. No purchase order or other document form Customer shall contain any terms concerning the purchase and sale of products or services not contained in the Governing Terms or terms modifying any terms contained in the Governing Terms. To the extent any such terms are contained in any purchase order or other document from Customer, such terms shall not be binding on either party and shall be superseded by the Governing Terms. The Governing Terms may not be modified or amended except by written agreement which specifically references the Governing Terms and which is signed by both parties.
21. Severability. If any provision of the Governing Terms is determined to be illegal or unenforceable, the remaining provisions of the Governing Terms Sale shall not be affected thereby.
22. Governing Law. The Governing Terms shall be governed by Arkansas law.