PURCHASE ORDER TERMS & CONDITIONS
1. Pace’s Purchase Orders
Pace Industries, LLC (“Pace”) contemplates that its purchases of Product and Services from Sellers will be by Pace Purchase Order (“Purchase Order”). Each Purchase Order incorporates these Purchase Order Terms and Conditions, even in the absence of express reference or incorporation in the Purchase Order.
2. Seller’s Acceptance – Agreement
Seller’s unmodified acknowledgement of any Purchase Order, commencement of work on the Product and/or Services subject to the Purchase Order, or shipment of the Product, whichever occurs first, shall be considered Seller’s acceptance of every term and condition of the Purchase Order, front and back, and these Purchase Order Terms and Conditions. Pace hereby objects to and rejects all effort by Seller in any acknowledgment of any Purchase Order or otherwise to eliminate, modify or supplement Purchase Order terms or these Purchase Order Terms and Conditions (the “Rejected Document”), and no term in any Rejected Document shall bind Pace.
3. Title Transfer and Risk of Loss
Title, and risk of loss with respect, to any Product Seller provides Pace transfers to Pace only upon delivery to Pace’s loading dock.
Unless otherwise stated in the Purchase Order, all Seller’s prices include (a) all applicable federal, state and local taxes as may be assessed against Seller, and (b) charges for insurance, import dues, packaging, freight, transportation and other fee or expenses related to Seller’s delivery obligations. Seller assumes the risk of any event or cause (foreseen and unforeseen), including without limitation, any foreign exchange rates changes; inflation; and increases in material costs, components, labor, transportation, logistics, and energy, affecting prices in any Purchase Order,.
5. Termination for Pace’s Convenience
a. In addition to any other rights Pace may have to cancel or terminate a Purchase Order, Pace reserves the right to terminate its obligations, except as provided in this Section, for Pace’s sole convenience, at any time, for any reason, upon Pace’s delivery of written notice to Seller. In the event of the termination and upon Pace’s delivery of notice to Seller, Seller shall immediately stop all work on all Product and/or Services subject to the Purchase Order and shall promptly cause its suppliers and contractors to stop that work and/or services.
b. In circumstances where, after Pace’s notice to Seller, Seller has completed unpaid work and/or services pursuant to a Purchase Order, Pace shall make payment to Seller equal to the Purchase Order price adjusted to reflect the percentage of work Seller completed prior to Pace’s notice.
c. In circumstances where, after Pace’s notice to Seller, Seller has begun but not completed Product and/or Services intended for Pace pursuant to a Purchase Order, Pace shall make payment to Seller equal to Seller’s actual direct costs incurred for work-in-process and raw materials the costs of which Seller could not reasonably have avoided, provided that Pace shall have no obligation to pay for supplies or raw materials that Seller can use in the ordinary course of its business. Pace shall have no obligation to pay Seller for Seller’s profit lost on work and/or services not complete upon Pace’s notice of termination.
d. In no circumstance shall Pace pay Seller for any work Seller undertakes after Pace issues a termination notice, or for any costs incurred by Seller’s suppliers or subcontractors that could reasonably have been avoided, or for items of supplies or raw materials that Seller, its suppliers and subcontractors can use in the ordinary course of their business.
6. No Termination by Seller
Seller shall have no right to terminate any Purchase Order or to refuse or delay shipment of Product except for Pace’s non-payment of an undisputed Seller invoice, but only after notice to Pace and Pace’s continued non-payment thirty (30) days thereafter. In the event of Pace’s non-payment of a disputed Seller invoice, Seller nevertheless shall continue to perform all obligations otherwise required of it by the Purchase Order.
7. Termination for Cause
a. Pace may terminate all or part of a Purchase Order for cause in the event Seller defaults, breaches or repudiates a Purchase Order or these Purchase Order Terms and Conditions. Delays in delivery, delivery of defective products or products that do not comply with a Purchase Order, or failure to provide Pace, upon request, reasonable guarantees about future performance, are causes that allow Pace to terminate a Purchase Order with cause. In the event of a termination for cause, Seller is liable to Pace for all damages caused by Seller’s breach. Pace may terminate a Purchase Order without liability in the event of any of the following: (i) Seller’s insolvency; (ii) the filing by or against Seller of a voluntary or involuntary bankruptcy petition; (iii) the appointment of a receiver or trustee for Seller; or (iv) an appointment for the benefit of the Seller’s creditors.
b. In the event of a circumstance that would permit Pace to terminate a Purchase Order for cause, even should Pace determine not to terminate the Purchase Order as a result, Seller shall reimburse Pace for all costs including, but not limited to, all reasonable attorneys’ fees, that Pace incurs in connection therewith.
8. Proprietary Information – Confidentiality
Seller shall consider all information furnished by Pace, including but not limited to Product pricing, payment terms and other economic information, in whatever form, whether in writing, verbally, by demonstration, inspection or observation, to be confidential and shall not disclose the information to any person or use the information for any purpose other than performing as required by a Purchase Order and these Purchase Order Terms and Conditions, unless Pace grants Seller written permission to do so. This Section applies to drawings, specifications, or other documents Seller prepares for Pace in connection with a Purchase Order. Seller may not disclose or publicize the fact that Pace has contracted with Seller to purchase Product or Services, nor may Seller disclose any information in connection with a Purchase Order without written permission. Unless otherwise agreed in writing, no commercial, financial or technical information that Seller discloses to Pace shall be considered secret or confidential, and Seller shall have no rights against Pace with respect thereto, except such rights as may exist under patent laws.
Seller warrants that:
a. all Product and Services will conform to all specifications that Pace provides to Seller, will be new, and will be free from defects in material and workmanship;
b. all Product and Services will conform to statements printed on containers or labels or in advertisements for Product or Services, and that all Product will be properly contained, packaged, marked, and labeled;
c. all Goods and Services will be merchantable, safe, and fit for the purpose for which the Product and Services are normally used and for which Pace intends;
d. if Seller knows or has reason to know the particular purpose for which Pace intends to use the Product or Services, the Product and Services will be suitable for that particular purpose;
e. the Product and Services comply in all respects with the samples provided. Inspection, testing, acceptance, or use of any Product and Services shall not affect Seller’s obligations under its warranties. Seller’s warranties shall extend to Pace, its successors and assigns. Seller’s express warranties are in addition to those warranties provided by statute, common law, and implied warranties.
f. Pace may return to Seller defective Prodcut at Pace’s option, for full credit or replacement expense, including all costs of material and labor costs involved in correcting defects, handling, sorting, packaging and transportation costs. No replacement of defective Product will be made unless authorized by a replacement Purchase Order signed by Pace. In the event of Seller’s failure to promptly correct defects in, or replace, nonconforming Product and Services, Pace, after reasonable notice to Seller, may make the corrections or replace the Product and Services and charge Seller for Pace’s costs incurred.
10. Price Warranty
Seller warrants that Seller’s prices for the Product and Services are not less favorable than those Seller extends to other customers for the same or similar product and services in similar quantities. If Seller reduces the price of similar product or services during the term of any Purchase Order, Seller shall extend the same price reduction to Pace. Seller warrants that the prices to which the Parties agree are complete and that Seller without Pace’s express written consent will claim no additional charges of any kind, including but not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, and crating,
11. Force Majeure
a. Definition of Force Majeure Event: “Force Majeure Event” means any event or circumstance beyond Pace’s reasonable control, including, but not limited to, acts of God, fires, floods, earthquakes, hurricanes, storms, pandemics, epidemics, strikes, labor disputes, war, acts of terrorism, government actions, and any other events that are unforeseeable and make it impossible or unreasonably difficult for Pace to fulfill its obligations imposed by any Purchase Order.
b. If a Force Majeure Event occurs that prevents or delays Pace from performing its obligations imposed by any Purchase Order or these Purchase Order Terms and Conditions, Pace shall promptly send written notice to Seller specifying the Force Majeure Event, its expected duration, and the measures Pace has taken to mitigate its consequences.
c. During the period the Force Majeure Event continues to impair Pace’s ability to perform, Pace’s obligations imposed by any Purchase Order and these Purchase Order Terms and Condition shall be suspended, and Pace shall be excused from any penalties or liabilities resulting from its non-performance.
d. The time for performance of Pace’s obligations shall be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event continues for a period of thirty (30) days beyond the expected duration specified in Pace’s notice to Seller, either Party may, by written notice sent the other, terminate the Purchase Order without liability.
e. Pace shall make reasonable efforts to mitigate the effects of a Force Majeure Event and to resume performance of its obligations as soon as practicable.
f. Except as expressly modified by this Force Majeure Clause, all other terms and conditions of these Purchase Order Terms and Conditions shall remain in full force and effect.
12. Infringement of Patents and Intellectual Property
Seller assumes full responsibility for the defense of any suit or proceeding brought against Pace and its employees and agents for alleged patent infringement, alleged unfair competition resulting from similarity in design, trademark or appearance of Product and Services, and Seller shall indemnify Pace, its employees and agents against any and all expenses, losses, and damages, including court costs and reasonable attorney’s fees, resulting from any suit or proceeding. Pace may be represented by, and actively participate through, its own counsel in any such suit or proceeding, and Seller shall pay the costs of that representation.
Seller at its expense shall maintain insurance coverage in amounts reasonably satisfactory to Pace for Workers’ Compensation, Employer’s Liability and Comprehensive General, Bodily Injury and Property Damage, Product Liability and Product Recall. Seller shall furnish Pace certificates setting forth the amounts of coverage, policy number(s) and expiration date(s).
Seller shall indemnify and hold harmless Pace, its agents and employees, against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, with respect to allegations (a) that the Product or Services are defective, unfit or unsafe, and (b) that the Product or Services provided do not comply with applicable laws or regulations. The rights and remedies reserved to Pace are cumulative and additional to all other remedies available to Pace in law or equity.
15. Services at Other Locations
If labor or services in connection with any Purchase Order are performed at any locations occupied by, or under the control of, Pace, Seller shall indemnify and hold harmless Pace, its agents and employees against all suits, actions or proceedings, at law or in equity, and from all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, arising out of, or related to, the labor and services provided, whether or not related to the conduct of Pace, its employees or agents.
16. Changes to Product and Services
Pace shall have the right at any time to make changes in Product drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If the changes result in an increase or decrease in cost, or the time required for Seller’s performance, the Parties shall make an equitable adjustment to the Purchase Order.
17. Quality Assurance and Business Conduct
Seller shall comply with the Pace Industries Supplier Quality Manual (the Pace Manual), including its Code of Conduct. Seller will maintain proper and ongoing quality control inspections and tests to ensure that the Product and Services it provides comply with all specifications and standards that Pace provides. Seller shall, upon Pace’s request, provide substantiated results of quality control inspections and tests in accordance with the Pace Manual. Seller shall notify Pace in writing before changing in any way the processes used in the production, or Pace’s specifications or standards, of the Product and Services Pace requests. Seller’s compliance worldwide with the standards is a mandatory component of Pace’s Purchase Order Terms and Conditions apply to Seller’s subcontractors. The Pace Manual is incorporated in all Purchase Orders even in the absence of any reference in the Purchase Order.
18. Audit Right
Pace shall have the right at any reasonable time to examine Seller’s documents and materials relating to Seller’s obligations under a Purchase Order or these Purchase Order Terms and Conditions.
Pace’s payment for Product shall not constitute Pace’s acceptance of the Product until Pace has inspected the Product and determined in Pace’s discretion not to reject the Prodcut. Pace may return to Seller Product that Pace rejects, or Product that Seller over-supplies, at Seller’s expense, and may charge Seller for all related
unpacking, testing, repackaging and reshipping costs. In the event Seller delivers to Pace Product with defects or unfitness not readily detected upon examination in commercially reasonable time, Pace reserves the right to require replacement, as well as payment of related damages. No term or condition in any Purchase Order shall relieve Seller from its obligation of testing, inspection and quality control.
20. Independent Parties
Seller and Pace are independent contracting Parties and nothing in any Purchase Order or these Purchase Order Terms and Conditions shall make either Party the agent or legal representative of the other for any purpose, nor grant either Party any authority to assume or to create any obligation on behalf of, or in the name of, the other.
21. Assignments and Subcontracting
No part of any Purchase Order may be assigned or subcontracted without Pace’s prior written approval; any unapproved assignment or subcontracting shall be void.
Pace shall be entitled to deduction or set-off from all claims for money due or to become due from Pace to Seller to pay Pace with respect to any claim arising out of this or any other Pace transaction with Seller.
If in order to comply with Pace’s required delivery date Seller necessarily must ship by a more expensive method than specified in a Purchase Order, Seller shall pay any increased transportation costs resulting therefrom unless Pace caused the necessity for the rerouting or expedited handling.
Neither Pace’s failure to insist on performance of any terms or condition of a Purchase Order or these Purchase Order Terms and Conditions, or to exercise any right or privilege, nor Pace’s waiver of any breach, shall constitute a waiver of any other similar or dissimilar terms, conditions, or privileges.
25. Limit on Pace’s Liability – Status of Limitations
a. In no event or circumstance shall Pace be liable for Seller’s incidental, indirect, special or consequential damages, including loss of profits, economic opportunity, market share or brand value, and in no event or circumstance shall Pace’s liability for any loss or damage arising out of, in connection with, or in consequence of, Pace’s breach of any Purchase Order or these Purchase Order Terms and Conditions exceed the price of the Product and Services stated in the Purchase Order. Pace shall have no liability for any type of penalty.
b. Seller must commence any action claiming that Pace breached any obligation imposed by any Purchase Order, these Purchase Order Terms and Conditions, or otherwise related to the Product and Services within one year after the cause of action has accrued.
26. Compliance with Laws
All Product Seller manufactures and ships, and Services Seller provides, Pace must be comply with all applicable laws and sanctions lists including, but not limited to, the Fair Labor Standards Act and federal and other applicable employment laws.
Seller shall comply with the United States’ and applicable country’s anti-bribery laws and regulations. Seller shall not, directly or indirectly, in the name of, on behalf of, or for benefit of, Pace, offer, promise, authorize to pay, pay, or give anything of value to any person, official, officer, agent, or employee of any government, governmental agency, or political party, or to any candidate for political office, that would violate the United States’ and/or applicable country’s anti-bribery laws or regulations. Each of Seller’s directors, officers, employees, and agents shall comply with this provision. Pace may terminate this Agreement and/or any Purchase Order immediately upon written notice to Seller if Seller breaches this provision.
28. Governing Law and Jurisdiction
All Purchase Orders and these Purchase Order Terms and Conditions shall be governed by, and interpreted according to, the laws of the State of Michigan, without regard to its principles of conflict of laws. The exclusive venue for any judicial action regarding any dispute arising out of or relating to any Purchase Order and these Terms and Conditions shall be the Michigan state courts located in Oakland County, Michigan, or the United States Federal District Court located in the Eastern District, Southern Division of Michigan, and the parties waive any challenge to venue and personal jurisdiction.
29. Entire Agreement
The Purchase Order and these Purchase Order Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter, and supersede all prior oral and written negotiations, understandings and agreements between the Parties and may be modified only by written agreement signed by Pace and Seller.