PACE, INCORPORATED
TERMS OF SALE
PACE, Incorporated (“PACE”) provides to visitors to our website at www.pacedirect.com and any derivative, co-branded or successor site as PACE may make available from time to time the opportunity to make online purchases of PACE's products and accessories (the “Products”) and/or PACE's services and support (the “Services”). This Terms of Sale Agreement (the “Agreement”) sets forth the terms and conditions that govern your purchases of the Products and/or Services. PACE reserves the right, at any time and at its sole discretion, to update, revise or otherwise modify the terms and conditions of the Agreement without notice to you. By placing an order for the Products and/or Services, you are agreeing that you have read and accept the following terms and conditions.
1. OFFER FOR SALE .
All agreements between you (the “Buyer”) and PACE to purchase the Products and/or Services shall be governed by the terms and conditions herein. Any modifications, changes or alterations of the terms and conditions herein must be in writing and signed by the Buyer and PACE. PACE hereby objects to any additional or different terms which may be contained in any of the Buyer's purchase orders, acknowledgements or other documents or any communications received from the Buyer, and they will not be deemed a part of the terms and conditions hereunder or any resulting order.
To the extent that this Agreement and its associated order acknowledgment constitutes an offer by PACE to sell the Products and/or Services to the Buyer, PACE's offer is expressly limited to the terms and conditions herein, and the Buyer agrees that the terms and conditions herein may not be altered, supplemented or amended by the use of any other documents and such attempt shall be null and void. To the extent that this Agreement and its associated order acknowledgement constitutes an acceptance of any offer from the Buyer, PACE's acceptance is expressly conditioned on the Buyer's assent to the terms and conditions of this Agreement.
Any offer hereunder shall expire sixty (60) days following its date, unless the Products and/or Services are provided by PACE and accepted by the Buyer. No order may be cancelled, modified or altered by the Buyer, without written consent of PACE, which may be withheld in its sole discretion.
2. PRICE AND PAYMENT TERMS.
The prices for the Products and/or Services are based on PACE's published prices, in effect at the time of the order, unless otherwise set forth in the order acknowledgement, for the Products and/or Services when provided by Pace in accordance with the warranty and limitation of liability provisions set forth herein. In the event that the Buyer desires that PACE provide a greater or additional warranty and/or assume a greater or additional liability for the Products and/or Services hereunder, then the Buyer must notify PACE prior to the acceptance of any offer, and PACE shall amend the prices for the Products and/or Services to reflect increased pricing reasonably compensating PACE for providing such greater warranties and assuming such greater liabilities. All published prices are subject to change by PACE at any time without prior notice.
All payments of the prices for the Products and/or Services are payable in United States Dollars. The Buyer shall make payment in full in advance or upon delivery by cash, cashier's check or credit card, unless PACE requires payment in advance, or unless the order acknowledgement states different terms. Notwithstanding the foregoing, at its option at any time, PACE may require the Buyer to make payment by irrevocable letter of credit, upon terms and conditions satisfactory to PACE in its sole discretion, and PACE may defer shipment or cancel any order if the Buyer does not promptly provide such letter of credit.
A late charge will be assessed on past due accounts at a rate equal to the lesser of: (i) one and one-half percent (1.5%) each month or (ii) the highest rate permitted by applicable law. The Buyer's failure to pay in accordance with the provisions of this Section 2 shall entitle PACE without prejudice to its rights to damages, to suspend or cancel any outstanding orders or require further assurance of payment from the Buyer.
3. TAXES AND OTHER CHARGES.
The Buyer shall pay, in addition to the prices as set forth herein, any and all manufacturer's tax, occupation tax, use tax, property tax, sales tax, excise tax, value-added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, except for taxes on PACE's income, imposed by any governmental authority on or measured by the transaction between PACE and the Buyer. In the event that PACE is required to pay any such tax, fee or charge, the Buyer shall, immediately upon notice from PACE, reimburse PACE for such taxes, fees and charges.
4. DELIVERY.
The Products are sold freight on board destination upon delivery to the carrier designated by the Buyer at PACE's plant in Annapolis Junction , Maryland USA , unless otherwise stated in the order acknowledgement. Delivery of the Products to a carrier at PACE's plant or other loading point shall constitute delivery to the Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by the Buyer.
PACE reserves the right to make delivery in partial installments, unless otherwise expressly stipulated herein. All such partial installments will be separately delivered and paid for when due, without regard to subsequent deliveries. Any delay in delivery of any partial installment shall not relieve the Buyer of its obligation to accept remaining deliveries.
The Buyer acknowledges that all delivery dates are approximate. In no event shall PACE be liable for any delays in delivery of the Products and/or Services.
The method and route of shipment shall be at the discretion of PACE unless the Buyer shall specify otherwise; any such additional expense of the method or route of shipment specified by Buyer shall be borne entirely by the Buyer. Buyer shall bear all costs of bags, barrels, boxes, pallets or other containers used to ship the Products sold hereunder beyond PACE's normal packaging. No shipping containers may be returned to PACE unless such return is accepted in advance by PACE in writing and unless all return freight is prepaid by the Buyer.
5. INSPECTION UPON RECEIPT AND RETURNS .
The Buyer must examine the Products when they are received by the Buyer. The Buyer shall make any and all claims for shortages, defects or other errors in delivery in writing to PACE within thirty (30) days of receipt of shipment and in accordance with PACE's then-current return authorization policy. Failure to give such notice shall constitute unqualified acceptance of all shipments made prior to PACE's receipt of the Buyer's notice of such claims, and shall constitute a waiver of all such claims by the Buyer. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to PACE.
To make any return of the Products to PACE, the Buyer must obtain a return authorization number by contacting PACE as set forth herein prior to returning any Products to PACE. The Buyer shall pay all costs and expenses related to, and bear the risk of loss and damage for, shipping of returned Products to PACE. Any returns made on a cash on delivery basis or without a return authorization number may be refused by PACE, in its sole discretion.
6. TITLE.
Notwithstanding the passing of the risk of loss and damage from PACE to the Buyer upon delivery of the Products to the Buyer as described herein, PACE shall retain title to the Products until it has received payment in full of all such amounts owed by the Buyer to PACE due in connection with the Products delivered hereunder or any other account.
7. STORAGE.
If the Products ordered by the Buyer are not shipped within fifteen (15) days after notification to the Buyer that the Products are ready for shipment for any reason beyond PACE's reasonable control, including without limitation, the Buyer's failure to give shipping instructions, PACE may store the ordered Products at the Buyer's risk in any warehouse or yard or upon PACE's premises, and the Buyer shall immediately pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices by PACE for such handling, transportation and storage charges.
8. CHANGES TO PRODUCTS AND SERVICES.
PACE reserves the right to make, at any time, changes in design and construction of Products or in the content and scope of the Services as PACE deems appropriate, without prior notice to the Buyer; provided that such changes do not have a material adverse affect on the Products and/or Services. For example, PACE provide to the Buyer products and/or services that have the functionality and performance of the Products and/or Services that the Buyer ordered, but changes in what is provided and what is described in a specification sheet, catalog or description of the Products and/or Services are possible. PACE may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
9. LIMITED WARRANTY.
PACE warrants to the Buyer that the Products are free of defects in materials and workmanship under conditions of normal use for a period of the lesser of: (i) one (1) year from the date of receipt by the Buyer, or (ii) one (1) year and three (3) months from the date of manufacture by PACE. Monitors, computers and other brand equipment supplied but not manufactured by PACE are covered under their respective manufacturer's warranty in lieu of such limited warranty.
PACE's sole responsibility shall be, at its option, during the warranty period either: (i) to repair or replace any defective Products, at its facility or other location approved by it, during PACE's normal working hours, at no charge to the Buyer; (ii) to provide parts without charge for installation by the Buyer in the field at the Buyer's expense and risk; or (iii) to refund to the Buyer all amounts paid for such defective Products. The Buyer shall be responsible for all costs of shipping any Products to PACE or other location for warranty service.
Excluded from the limited warranty are the following: (i) set up, adjustments, programming, computer software, (ii) wear and tear under normal use, (iii) repair or replacement required as a result of misuse, improper application, mishandling, improper environmental conditions or improper storage and (iv) consumable items which wear out under normal use. Failure to perform recommended routine maintenance, alterations or repairs made other than in accordance with PACE's directions, or removal or alteration of identification markings in any way will void this limited warranty.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY PACE, ITS AFFILIATES AND ITS SUPPLIERS WITH RESPECT TO PRODUCTS AND SERVICES SOLD OR PROVIDED BY PACE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PACE, ITS AFFILIATES AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE AND NON-INFRINGEMENT.
IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN SUCH NON-EXCLUDED WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH THE BUYER FIRST RECEIVED THE PRODUCTS AND/OR SERVICES, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
10. LIMITATION OF LIABILITY.
EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN AND THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT PACE, ITS AFFILIATES AND ITS SUPPLIERS SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF PACE, ITS AFFILIATES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN AND THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT PACE'S, ITS AFFILIATES' AND ITS SUPPLIERS' CUMULATIVE LIABILITY TO THE BUYER OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO PACE UNDER THIS AGREEMENT.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO THE BUYER. THIS LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE.
11. INTELLECTUAL PROPERTY.
The Buyer acknowledges that PACE, its affiliates or its suppliers retain all right, title and interest in and to the Products, Services and any and all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights therein (collectively, the “Product Technology”). The Buyer agrees that it has no right, title or interest in or to the Product Technology or any copies thereof. The Buyer may not remove or obscure any copyright notice, trademark notice or other notices contained within the Product Technology. PACE's name and logo, and all related product and service names, design marks and slogans are the trademarks, service marks or registered trademarks of PACE and may not be used or modified in any manner without the prior written consent of PACE.
Except as otherwise set forth herein, the Buyer agrees not to: (i) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or otherwise access the Product Technology, or any part thereof; (ii) copy, download or save the Product Technology, or any part thereof, in any form; (iii) publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or create compilations or derivative works or improvements of the Product Technology, or any part thereof; or (iv) assign, sublicense, convey, transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder. The Buyer agrees not to access the Product Technology by any means other than through the interface that is provided by PACE for use in accessing the Product Technology. Any other use of the Product Technology other than as expressly set forth herein without PACE's prior written consent, which may be withheld in PACE's sole and absolute discretion, is strictly prohibited and all implied licenses are disclaimed.
12. CONFIDENTIAL INFORMATION.
The Buyer acknowledges that, in its course of dealings with PACE, the Buyer may come into possession of Confidential Information (as defined herein). At all times following the date of any order made hereunder, the Buyer shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of itself or any other third party any Confidential Information. “Confidential Information” means any information, whether in written, digital, oral or other form, relating to any aspect of the business and operations of PACE, its affiliates or its suppliers which is not generally known to others engaged in similar business or activities or generally available from sources outside PACE, or typical of industry practice, including without limitation, ideas, discoveries, inventions, concepts, technical information, know-how, processes, specifications, sketches, models, software, technology, computer programs, source code, customer and prospect lists, supplier lists, records, financial information, budgets, marketing plans, business plans and any other similar materials and information. PACE's failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder. Notwithstanding the foregoing, Confidential Information does not include information which: (i) was publicly known or generally known within the trade at the time of disclosure, (ii) becomes public knowledge or generally known within the trade without breach of this Agreement by the Buyer or any of its directors, officers or employees, (iii) was information already known by the Buyer at the time of disclosure, or information independently developed by the Buyer's personnel who did not have access to the information disclosed by the disclosing party, (iv) is required to be disclosed by law, or (v) is obtained by the Buyer, its officers or employees from third parties who are under no obligation of confidentiality with respect to the information.
13. INDEMNIFICATION.
The Buyer agrees to indemnify, defend and hold harmless PACE, its employees, directors, officers, agents and its affiliates and suppliers from and against any costs, expenses, damages, fees, liabilities, actions, claims, suits, judgments, demands and decrees, including reasonable attorneys' fees, arising out of or resulting from: (i) the Buyer's breach of any representations, warranties or covenants set forth herein; (ii) any infringement by Buyer, its directors, officers and employees of the patent, trademark, copyright, trade secret and any other intellectual property rights of any third party, other than as otherwise set forth in this Section 13; and (iii) the possession, use or operation of the Product Technology by the Buyer.
PACE agrees to indemnify, defend and hold harmless, at its own expense, the Buyer from and against any costs, expenses, damages, fees, liabilities, actions, claims, suits, judgments, demands and decrees, including reasonable attorneys' fees, arising out of or resulting from any suits that may be instituted by any third party against the Buyer for alleged infringement of any United States patent, trademark or copyright relating to the Products, if such alleged infringement consists of the use of the Products, or parts thereof, in the Buyer's business and provided that the Buyer shall have: (i) made all payments then due hereunder, (ii) given PACE immediate notice in writing of any such suit, (iii) transmitted to PACE immediately upon receipt all processes and papers served upon the Buyer, and (iv) permitted Pace through its counsel, either in the name of the Buyer or in the name of Pace, to defend the same and given all needed information, assistance and authority to enable PACE to do so. In the event that the Products in such suit are held in and of themselves to infringe any valid United States patent, trademark or copyright, then: (a) PACE will pay any final award of damages in such suit attributable to such infringement, and (b) if, in such suit, use of such Products by the Buyer is permanently enjoined by reason of such infringement, PACE shall, at its own expense and at its sole option, either (w) procure for the Buyer the right to continue using the Products, (x) modify the Products to render them non-infringing, (y) replace the Products with non-infringing products, or (z) refund the purchase price and the transportation costs paid by the Buyer for such Products.
Notwithstanding the foregoing, PACE shall not be responsible for any compromise or settlement made without its written consent, for infringements of patents, copyrights or trademarks due to modifications or alterations of the Products, or for infringements of combination or process patents covering the use of the Products in combination with other goods or materials not furnished by PACE. The foregoing states the entire liability of PACE for infringement, and in no event shall PACE be liable for consequential damages attributable to an infringement.
14. REPRESENTATIONS.
The Buyer represents and warrants to PACE that: (i) he is at least 18 years old; (ii) in the event that the Buyer is an entity, that it has the full right, power and authority to enter into this Agreement; (iii) the performance by the Buyer of its obligations and duties hereunder, do not and will not violate any agreement to which the Buyer is a party or by which the Buyer is otherwise bound; and (iv) the Buyer's use of the Product Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules.
15. EXPORT RESTRICTIONS.
This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the technology or information about the Product Technology which may be imposed from time to time. The Buyer shall not export the Product Technology, information about the Product Technology or any product containing the Product Technology without complying with such laws, regulations, orders, or other restrictions. The Buyer agrees to indemnify and hold harmless PACE against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this Section 15.
16. GOVERNING LAW.
BY ORDERING ANY PRODUCTS AND/OR SERVICES HEREUNDER, THE BUYER AND PACE EACH AGREE THAT THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE BUYER AND PACE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA , WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. SUBJECT TO THE DISPUTE RESOLUTION PROCEDURES SET FORTH HEREIN, THE BUYER AND PACE AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED WITHIN THE STATE OF MARYLAND WITH RESPECT TO SUCH MATTERS.
17. DISPUTE RESOLUTION.
If a dispute arises out of or relates to the Product Technology or this Agreement or its breach (with the exception of rights to injunctive relief with respect to intellectual property rights, indemnification with respect to intellectual property rights and obligations with respect to confidentiality and payments), and the parties have not been successful in resolving the dispute through direct negotiation, then the dispute will be resolved in binding arbitration as follows: (i) the arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules; (ii) any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction; and (iii) the location of the arbitration will be Annapolis Junction, Maryland, USA.
18. GENERAL INFORMATION.
This Agreement constitutes the entire agreement between the Buyer and PACE with respect to the subject matter herein and governs the Buyer's purchase of the Products and/or Services and the Buyer's access to the Product Technology, superseding any prior agreements between the Buyer and PACE. The Buyer further acknowledges and agrees that the Buyer may not assign any part of this Agreement without PACE's prior written consent. This Agreement shall inure to the benefit of each party's successors and assigns. PACE shall not be deemed to be in breach of the Agreement and thereby liable to the Buyer or any third party for any delays in the performance of its obligations hereunder caused by fire, explosion, act of God, strikes, war, riot, government regulation, delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities or any other act or cause beyond the reasonable control of PACE. The failure of PACE to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
19. CONTACTING PACE.
If the Buyer has any questions about this Agreement, or any question or problem regarding the Products, the Services and/or the Product Technology, please contact us by sending an email to sales@pacedirect.com or by mail at PACE, Incorporated, 9030 Junction Drive, Annapolis Junction, Maryland 20701, USA or by telephone at (301) 490-9860.
