TERMS & CONDITIONS OF SALE

(Revision #5 – 12/20/2023)

 

TERMS & CONDITIONS OF SALE

 1. Acceptance.

a. THESE TERMS AND CONDITIONS OF SALE GOVERN CUSTOMER’S PURCHASE ORDERS AND WRITTEN RELEASES AGAINST A VALID BLANKET ORDER ISSUED TO PACE. THESE TERMS AND CONDITIONS OF SALE TOGETHER WITH ANY ADDITIONAL PRINTED TERMS AND CONDITIONS CONTAINED IN QUOTATION OR BID DOCUMENT (PACE’S “OFFER”) THAT PACE PROVIDED CUSTOMER, COLLECTIVELY “THE GOVERNING TERMS”, ARE IN LIEU OF, REPLACE AND SUPERSEDE ANY AND ALL ADDITIONAL, DIFFERENT, CONFLICTING OR INCONSISTENT TERMS AND CONDITIONS SET FORTH ON CUSTOMER’S REQUEST FOR QUOTATION, PURCHASE ORDER, RELEASE, APPLICABLE SPECIFICATIONS, AND ANY OTHER DOCUMENT (THE “REJECTED DOCUMENTS”). PACE HEREBY OBJECTS TO THE REJECTED DOCUMENTS, AND NO REJECTED DOCUMENT SHALL BIND PACE IN ANY WAY. IF CUSTOMER HAS NOT OTHERWISE ACCEPTED THE GOVERNING TERMS, CUSTOMER’S ACCEPTANCE OF, OR PAYMENT FOR, THE PRODUCTS AND/OR SERVICES SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THE GOVERNING TERMS.

b. Each Customer Purchase Order and Release against a Blanket Order
must provide the Product, Product Price, lead time for required Product delivery and delivery terms. Pace may reject any Customer Purchase Order and/or Release against a Blanket Order that include terms inconsistent with the applicable Blanket Order, there Terms and Conditions of Sale, or that are otherwise unacceptable to Pace.

2. Term.
A Blanket Order shall provide for the time period (“Term”) during which Pace will manufacture for Customer, and Customer will purchase, the Product identified in the Blanket Order subject to these Terms and Conditions of Sale.

3. Terms of Payment.

a. Unless otherwise stated in Pace’s Offer, all invoices for Product and/or Services are due and payable thirty (30) days from the date Customer receives the invoice. Pace may charge past due accounts interest at an annual rate equal to the lesser of (i) twelve percent (12%), or (ii) the maximum rate permitted by applicable law.

b. Pace shall retain a purchase money security interest in the Product under the Uniform Commercial Code (“UCC”) in each state in which performance is to take place until Customer has made payment in full. In the event of Customer’s default of any of the Governing Terms, Pace shall have all the rights and remedies of a secured creditor under the UCC. Customer will execute financing statements and other documents as Pace may request necessary to perfect Pace’s security interest. Pace shall have a lien on Customer-owned Tooling and/or Other Property in Pace’s possession to secure full payment of past due invoice amounts not subject to valid dispute. All deliveries of Product and Services are subject to Customer credit satisfactory to Pace, and Pace may decline to make any Product shipments or deliveries, or perform any Services, except upon receipt of prior payment or upon terms and conditions or security arrangements and other assurance satisfactory to Pace.

c. In the event that Customer claims that Product is not in compliance with the Applicable Specifications, Customer nevertheless shall make timely payment for all Product Pace has delivered to Customer as elsewhere provided in the Governing Terms; Customer may not withhold or debit payment owed Pace. If after Customer’s payment the Parties (i) do not agree that Pace was responsible for the Product failure to conform to the Product Specifications, or (ii) that although Pace was responsible for the Product failure to conform, the Parties cannot agree on the appropriate debit or the cost of investigation, analysis, and/or implementation of corrective actions, the Parties shall submit their dispute to binding arbitration pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules for determination of the dispute. The Arbitration hearing shall be held in the AAA offices in Oakland County, Michigan or if none, the AAA offices nearest Oakland County. In the event Customer withholds or debits payment before an arbitration award notwithstanding this Section 2c, Pace may stop-ship Product otherwise due Customer without breach of these Governing Terms.

4. Prices.

a. The Price of each Product (“Product Price”) comprises (i) the price of the metal component (“Metal Price”), (ii) the price of the non-metal component, i.e. manufacturing component (“Net of Metal Price”) and, if applicable, (iii) the price for purchased components (“Component Price’), and/or (iv) the charge for Tooling replacement (“Perpetual Tooling Charge”). Product Prices are firm except as otherwise provided in the Governing Terms. The Services Price comprises labor, overhead, material and subcontractor charges. Neither Product nor Services Price includes any sales or use taxes, tariffs, customs and other duties and similar taxes and charges (“Customer-owed costs”), which shall be Customer’s responsibility. Pace shall add Customer-owed costs to Product Prices if paid by Pace.

b. Product Prices are EX Works Pace location. Product Prices are in United States dollars.

5. Price Adjustments.

a. The Metal Price is subject to periodic adjustment for fluctuations in commodities prices. The Metal Price shall be equal to the Part Weight of the Product plus melt loss factor provided in Pace’s Offer to Customer, multiplied by the Metal Base. The Part Weight for each Product shall be established at the time of Pace’s first production run 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 in Pace’s Offer, or as otherwise mutually agreed in writing between Pace and Customer. The Metal Base shall be adjusted periodically as provided in Pace’s Offer, or as otherwise mutually agreed in writing between Pace and Customer.

b. If Customer requests that Pace provide additional surface treatment, finishing or machining operations on any Product the treatment and operation of which are not included in the Product Price, the Product Price shall be equitably adjusted to reflect the additional operations.

c. Pace will determine the Product Price for each Product based on Customer’s Product revision level specifications in the Pace Offer (“Applicable Specifications’). If Customer makes a change to the Applicable Specifications or an error is found in the Applicable Specifications for any Product, the Parties shall equitably adjust the Product Price to reflect the change or 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 other Party. All revisions to Applicable Specifications must be processed by a written Engineering Change Notification signed by both parties. Customer shall provide Pace a revised purchase order reflecting the agreed new pricing before Pace begins further manufacture of the affected Product. If the Applicable Specifications are not complete for a Product in development, each progressive phase until completion shall be regarded as a modification of the Applicable Specifications.

d. The Product Price includes packaging and handling as provided in Pace’s Offer. If Customer requests any change in packaging or handling, the parties shall equitably adjust the Product Price to reflect the cost differential.

e. Component Prices shall be subject to equitable adjustment for market fluctuations of component costs. Pace will inform Customer of intended Component Price adjustments, which will apply only to Product Prices for Product that incorporate the adjusted-price components.

f. Customer from time to time may request reasonable changes to the agreed materials, testing, time or method of delivery or shipment. If Pace agrees to Customer’s request, the parties shall adjust the Product prices and other terms. Pace need not proceed with any Customer change request until the Parties have agreed to the adjustments. Change requests must be in writing signed by Customer’s authorized representative.

6. Ordering.

a. Pace’s Offer establishes the minimum lead time for its receipt of Purchase Orders and Releases, delivery time, Product quantities, other specific ordering criteria, and allowable deviations against which Pace shall be obligated to ship.

b. In the event that Customer submits a Purchase Order requiring delivery times, quantities and/or other terms different than Pace’s Offer (“Special Orders”), Pace will use its best efforts to comply on the condition that Customer agrees to the pay additional costs.

c. Pace during the Term to which a Blanket Order is applicable will make Product available to Customer for Customer’s service and Product replacement requirements at the Prices agreed by the Parties plus any additional costs for special packaging, shipping and handling, and other related services.

d. Pace will make Product available to Customer for Customer’s past-model service requirements for a for one (1) year after Pace last produces that Product for Customer at Prices to which the Parties agree based on Product and delivery requirements, and considering availability and cost of needed materials, supplies, skilled workers, equipment setup, packaging, shipping and handling, related services, and any other relevant factors.

7. Delivery and Quantity Verification.

a. Delivery of Product is Ex Works Pace location. Thereafter, Customer is responsible for Product insurance and for all costs of Product transportation from Pace to Customer’s designated delivery location.

b. Customer is responsible to provide Pace written instructions for packaging and shipping, domestic and export, of all Products.

c. Pace will use commercially reasonable efforts to make all deliveries, whether full or partial, in accordance with agreed lead times and delivery schedules. Title to Product passes to Customer when placed on Pace’s dock awaiting Customer transportation, at which time Customer is solely responsible for, and bears, the entire risk of any Product loss or damage.

d. See Section 6 for Special Orders terms.

e. Customer shall have fifteen (15) days from date of Product receipt to inspect and notify Pace in writing of any inaccuracies in quantities shipped; in the event Customer fails to provide the required notice, Product quantities shall be considered accurate.

f. Upon reasonable advance notice to Pace, Customer may inspect Pace’s production processes and property during normal business hours and, subject to Pace’s prior written approval, conduct testing at Pace’s premises for the sole purpose of verifying Pace’s performance of the Governing Terms. Pace may restrict Customer’s access as necessary to protect proprietary information and may require appropriate covenants of confidential protection, indemnification and releases of liability.

8. Cancellation and Returns.

Without Pace’s written consent Customer may not cancel any Purchase Order or Release.

9. Limited Warranty.

a. At the time of delivery Products manufactured by Pace shall:

(i) be free and clear of all liens, claims and encumbrances;
(ii) conform to the Applicable Specifications;
(iii) be manufactured in conformance with all applicable Federal, State, and Local laws, regulations, and ordinances;
(iv) be free of all toxic and poisonous materials;
(v). be free from material defects in workmanship and materials;
vi). Pace’s sole warranty with respect to Services is that the Pace will perform the Services in a workmanlike manner consistent with the level of care and skill ordinarily exercised by service providers providing similar services under similar conditions.

b. REPRESENTATIONS AND WARRANTIES CONTAINED IN THE OVERNINING TERMS ARE IN LIEU OF AND SUPERSEDE, EXCLUDE AND EXTINGUISH ANY OTHER WARRANTY, REPRESENTATION, ASSURANCE, GUARANTEE, OR OBLIGATION WHATSOEVER (WITHOUT LIMITATION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE AND OTHERWISE WHETHER EXPRESS OR IMPLIED AND WHETHER ARISING AT COMMON LAW OR BY STATUTE, CUSTOM, USAGE, COURSE OF DEALING OR OTHERWISE).PACE EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

c. IF CUSTOMER PROVIDES PACE PRE-PRODUCTION SAMPLES, DESCRIPTIONS OR DRAWINGSE, THOSE SAMPLES, DESCRIPTIONS AND DRAWINGS WERE FOR GENERAL INFORMATION PURPOSES ONLY AND SHALL NOT CREATE ANY WARRANTY BY SAMPLE, DESCRIPTION OR MODEL, OR OTHERWISE HAVE ANY LEGAL EFFECT.

d. Pace may provide Customer Product samples for approval before production. Product manufactured in accordance with Customer-approved samples shall conclusively be considered in compliance with the Applicable Specifications. Customer acknowledges that the design and Applicable Specifications of each Product originated with Customer. Pace shall not be responsible for any defect, non-conformity or failure resulting from: (i) Tooling or Other Property (defined in Section 13) supplied by Customer or procured, from a Customer-directed supplier or from a source other than Pace; (ii) any alterations, machining or finishing of the Product, whether by Customer, its customers or others; (iii) compliance with the Applicable Specifications; or (iv) the integration or interaction of the Product with systems or components not supplied by Pace.

e. In the event Pace shall breach any warranty provided in the Governing Terms, Customer’s exclusive remedy is that Pace, at Pace’s discretion, will replace, repair, or refund the purchase price of the Product, in which event Pace is entitled to the return of all non-conforming Product. In no event shall Pace be responsible for the cost of procuring substitute Product for Customer. Customer with respect to all warranty claims shall comply with Pace’s Return Materials Authorization (“RMA”) procedures for the return and validation of any non-conformity. Pace will not accept or process warranty claims without a valid Pace-issued RMA number. Customer shall provide Pace with access to any available warranty data related to the Product and any available Product returned from the field. Customer must provide Pace with an opportunity to participate in any defect root cause analysis performed by Customer.

10. Default.

a. Any one of the following events shall constitute an event of Customer default:

(i) Failure to make payment of any invoice when due;
(ii) Failure to accept conforming Product or Services;
(iii) return Product without Pace’s written consent;
(iv) 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 for Customer, or an assignment for the benefit of Customer’s creditors; or
(v) Any breach of the Governing Terms.

b. In the case of a Customer default, if Customer fails to cure the default within: ten (10) days of receipt of written notice of a subsection (i) default; , fifteen (15) days of a sub-section (ii) default; and thirty (30) days of a sub-section (iv);default; and sixty (60) days of a sub-section (v) default, Pace may, without limiting any other remedies available in law or equity, terminate the parties’ relationship .

c. Pace’s remedies in the event of Customer’s default shall not be impaired or waived should Pace elect to forego exercise of any remedy.

11. Indemnification.

11.1 Pace’s Indemnification Obligation.

Subject to the limitations declared at Section 18, Pace shall defend, indemnify and hold Pace and its officers, directors, employees, successors and assigns harmless from and against all claims, actions, lawsuits, proceedings, judgments, liabilities, costs and expenses, including attorneys’ fees, arising out of:
(a) Pace’s breach of the Governing Terms; and
(b) Product failure or defect caused by material defects in workmanship and/or materials.

11.2 Customer’s Indemnification Obligation.

a. Customer shall indemnify and defend Pace against third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless whether the claim or demand arises according to tort, contract, strict liability, or other legal theories, if and to the extent caused by (i) Customer’s Product design; ii) any alteration or improper repair, maintenance, handling, or installation of the Product by anyone other than Pace; (iii) the integration or interaction of the Product with systems or components not supplied by Pace; (iv) material supplied by Customer or procured from a source other than Pace, including a Customer-directed supplier; (v) any alterations, machining or finishing of Product after delivery by Pace; and/or (vi) Pace’s compliance with Customer’s Applicable, or other, Specifications.

b. Customer shall indemnify and hold Pace and its 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 Product Pace manufactured and Services delivered Customer pursuant to Applicable, or other, Specifications, drawings and representations Customer provided Pace.

11.3 Procedure.

When first aware of an event or circumstance that reasonably could lead to a claim for indemnification, the Party seeking indemnification shall notify the other Party. The Parties will cooperate to determine whether a Product is implicated, and, if so, to determine whether the Product and/or Customer-related systems and components were a root cause of the event or circumstance. Each Party may examine and test all available Product and Customer-related systems and components that may be implicated by the third-party claim.

12. Insurance.

12.1 Insurance Limits.

Customer shall obtain the insurance policies, each of which shall protect Pace from and pay for Pace’s benefit any Claim and Recall related to any Product, operations, or services performed pursuant to this Agreement, regardless whether the Product, operations, or services are performed by Pace or Customer:

a. General Liability. Commercial general liability insurance (including without limitation completed operations and contractual liability) with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the aggregate. The policies must (i) name Pace as an additional insured; and (ii) must provide the primary coverage when the principal Claim asserts that liability is the fault of Customer. The insurance must preclude subrogation claims against Pace.

b. Excess Liability. Excess Liability insurance with a limit of not less than Twenty-Five Million Dollars ($25,000,000) in the aggregate. The policies must follow form and substance of the General Liability coverage.
c. Product Recall. Product recall insurance with a limit of not less than One Million Dollars ($1,000,000) and on the same terms as the insurance required by Section 12.1.a.

12.2 Insurance Placement.
Customer shall: (a) place all insurance policies with insurers rated by A.M. Best as “A-” rating or higher; (b) be an “occurrence” (and not a “claims made”) policy; and (c) assure the policies apply worldwide and the insurers possess the ability to pay claims in the United States. Customer shall furnish Pace certificates documenting the required insurance coverage and shall provide Company thirty (30) days’ written notice of any intended cancelation of or material changes in coverage.

13. Delivery Term and Quantity.

In the absence of stated delivery terms in a Blanket Order, Pace shall be obligated only with respect to delivery terms in Customer’s Releases that Pace accepts in writing. All Blanket Orders must provide the quantity the Customer must purchase during the Term, failing which Pace shall be obligated only with respect to written Releases Pace accepts in writing.

14. Tooling and Other Property.

a. Customer shall provide all tooling, dies, gauges, fixtures (“Tooling”) necessary to cast, trim, machine and gauge Product. Customer shall be responsible for the cost of Tooling. Customer shall retain ownership of all Tooling and supplies, materials, and other equipment (“Other Property”) that Customer provides Pace. Customer is responsible for personal property taxes assessed against Customer’s Tooling and Other Property (collectively, “Tooling”). Ownership of Tooling that Pace procures for Customer shall transfer to Customer only upon Customer’s payment in full for the Tooling. Unless otherwise stated in Pace’s Offer, Customer’s payment for Tooling is due: (i) one third (1/3) upon Customer’s receipt of the Tooling purchase order; (ii) one third (1/3) upon Pace’s delivery of the Tooling to Customer; and (iii) one third (1/3) upon the earlier of completion of Product testing, Customer’s acceptance of sample parts, or beginning of Product production.

b. Pace shall have a lien on Tooling until Customer makes full payment for the Tooling and for Product made with the Tooling.

c. Subject to Section 12a., Tooling in Pace’s possession shall remain Customer’s property, which Pace shall use only for the manufacture of Product. Tooling shall be plainly marked or tagged as Customer’s property. Pace covenants that it will (i) not allow Tooling to be encumbered in any way as a result of any Pace act or omission, (ii) not move Tooling to a different location without Customer’s written consent, which Customer shall not unreasonably withhold; (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, with the Parties’ understanding that all major maintenance shall be at Customer’s expense after Customer’s review and authorization. In the event that Customer declines Pace’s recommendations regarding required maintenance, repairs, or replacements, and if Customer declines Pace’s recommendations, Pace shall have no responsibility (including warranty responsibility) for any non-conforming Product or other consequences of Customer’s failure; (iv) insure the Tooling in reasonable amounts against fire, theft and vandalism in a manner consistent with industry practice; (v) operate the Tooling in a safe manner with all warnings and safeguards in place.

d. Pace shall be responsible to monitor all operational Tooling. Upon the occasion that Tooling cavities have an estimated six (6) months of remaining life (per quoted tool life for die cast cavities), Pace shall notify Customer to ensure that Customer can timely order replacement cavities permitting sufficient opportunity to sample Product manufactured in the replacement cavities and to obtain Customer’s production approval. If Customer fails to timely replace Tooling cavities, Customer shall be responsible for any increased manufacturing cost that Pace incurs from necessary use of the Tooling cavities beyond quoted tool life.

e. If after manufacturing Product on Customer-provided Tooling Pace or Customer determine that the Product produced will not conform to the Applicable Specifications (“Tooling Event”), Customer shall correct the Tooling Event from one of the following options: (i) notify Pace in writing that Customer accepts the Product as an acceptable deviation from the Applicable Specifications, or (ii) repair the Tooling at Customer’s cost so the Product conforms to the Applicable Specifications, or (iii) authorize Pace in writing to perform additional finishing operations to the non-conforming Product at Customer’s expense, so the Product conforms to the Applicable Specifications.

f. Pace shall not make any modifications to Customer-owned Tooling without Customer’s written consent.

g. Pace may request that Customer provide disposition instructions in writing for any Tooling inactive for one (1) year. Upon conclusion of the one (1) year, inactive Tooling left at Pace becomes a bailment, for which Pace shall assess Customer costs of storage per square foot of floor space occupied by the Tooling at the prevailing market rate for storage. If upon notice of Pace’s intent to dispose of the Tooling Customer does not respond to Pace within thirty (30) days with instructions for immediate disposition or elects to abandon the Tooling, Pace may dispose of the Tooling at Customer’s cost without liability. Upon termination of Pace’s relationship with Customer, Pace shall make all Tooling readily available for shipment at Pace’s dock. Customer shall be responsible for shipping the Tooling from Pace’s facility and shall be responsible for all loading and freight costs. Customer must remove Tooling from Pace’s facility within sixty (60) days of the Parties’ termination of their relationship unless otherwise agreed by the Parties.

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 the logs and records during normal business hours.

i. If Pace exports Tooling into Mexico under Pace’s IMMEX program for temporary use at one or more of Pace’s Mexico facilities, in the event Tooling is removed from a Pace facility, Customer shall pay the administrative costs to terminate the relevant permit/s and reimport the Tooling into the United States and all loading and transportation costs.

15. Force Majeure.

A Party shall be temporarily excused from performance of the Governing Terms to the extent that nonperformance is caused by acts of God, labor disputes, governmental actions, orders or regulations, national emergencies, pandemics, epidemics, disease, quarantines, unavailability of raw materials, supplies or energy, or any other unpredictable cause beyond the reasonable control of the non-performing Party.

16. Confidentiality.

a. ”Confidential Information” means, any information whether disclosed in writing, orally, visually, by demonstration, observation or otherwise: (i) all confidential information disclosed by one Party to the other Party pursuant to any non-disclosure agreements between the Parties; (ii) 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 (iii) any other information one Party discloses to the other Party which reasonable business executives would reasonably understand to be confidential.

b. 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.

c. The Party that acquires Confidential Information (“Receiving Party”)from the other Party (“Disclosing Party”) shall not disclose the Information to anyone other than its affiliates, officers, directors, employees, contractors or authorized representatives and agents that have a need to know the information in connection with the Party’s performance of its obligations with respect to the Governing Terms and that have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those provided in this Section 15. The Receiving Party shall exercise the same degree of care to prevent disclosure of any Confidential Information received from the Disclosing Party as it exercises 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 Confidential Information, the Receiving Party shall promptly notify the Disclosing Party. 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.

17. Independent Contractors.

Pace and Customer are independent contractors and nothing in the Governing Terms 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.

18. Remedies; Limitations.

IN NO EVENT SHALL PACE HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, ECONOMIC OPPORTUNITY, MARKET SHARE OR BRAND VALUE) 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. PACE’S MAXIMUM LIABILITY, IF ANY, FOR DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT RELATED AND DAMAGES FOR INJURY TO PERSONS OR PROPERTY, REGARDLESS 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 PRODUCT OR ANY SERVICES, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE CUSTOMER PAID FOR THE IMPLICATED PRODUCT OR SERVICE.

19. Successors and Assigns.

Customer shall not assign its rights or delegate its obligations without Pace’s the consent. The rights and obligations of the parties hereunder shall be binding upon and shall inure to the benefit of the parties’ respective permitted successors and assigns.

20. Waiver.

No delay on the part of either Party in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any waiver 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.

21. Severability.

If any provision of the Governing Terms is determined to be unenforceable, the remaining provisions shall not be affected thereby.

22. Commercial Standards.

The “Product Specification Standards for Die Castings” published by the North American Die Casting Association (“NADCA Standards”) shall be considered in determining the parties’ compliance with commercial standards, reasonableness, diligence or other pertinent requirements of the relationship of the parties. The NADCA Standards are available at www.diecasters.org/XXX.

23. Governing Law and Jurisdiction.

The validity, interpretation, and enforcement of these Governing Terms shall be governed by and construed according to the laws of the State of Michigan, without reference to its conflict of laws principles. The exclusive venue for any judicial action regarding any dispute arising out of or relating to these Governing Terms will be the state or federal courts located in Oakland County, Michigan, or the United States Federal District Court located in the Eastern District, Southern Division, and each Party waives any challenge to venue and personal jurisdiction.

24. Amendments.

No waiver or amendment of any of the Governing Terms shall be binding on Pace unless in a writing and signed by the Parties, except that Pace with respect to unaccepted Purchase Orders and Releases may amend any or all of these Terms and Conditions of Sale at any time without notice, and Customer’s relationship with Pace will be governed by the Terms and Conditions of Sale as amended. Any amendment will be reflected on Pace’s Website. Pace encourages Customer to periodically review its posted Terms and Conditions of Sale.

25. Entire Agreement.

The Governing Terms constitutes the entire agreement between the parties with respect to the subject matter and supersede all previous oral and written agreements and understandings regarding the subject matter. 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.