PACER USA LLC TERMS AND CONDITIONS
1. LIMITS OF AGREEMENT
The terms and conditions as set forth herein as well as any additional terms and conditions that may appear on the face hereof shall constitute the entire agreement between Pacer USA LLC (“Seller”) and the buyer (“Buyer”) set forth on the face hereof, invoice or order acknowledgement. Seller will not be bound by any terms of Buyer’s order that are inconsistent with the terms herein. Acceptance by Buyer of these terms and conditions may be made either (a) by Buyer’s order accepted by Seller, or (b) by receipt by Buyer of delivery of any products described on the face of the order or this Form (“Products”). The Agreement shall not be modified except in writing, signed by the parties hereto. No waiver by Seller of any default or provision hereof shall be deemed a waiver of any subsequent default or provision.
- The price of all Products unless otherwise specifically stated on the face hereof is F.O.B. carrier, at the place of manufacture or warehouse location, which is the address set forth on the face hereof, exclusive of insurance cost. The cost of packaging for normal domestic shipment is included in the invoiced price. Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense.
- Prices and orders do not include Federal, State or local excise, sales, use or other taxes now or hereinafter enacted, which are applicable to the Products sold hereunder or this transaction (excluding only taxes based on Seller’s income), which tax or taxes will be added by Seller to the sales price when Seller has the legal obligation to collect the same and will be invoiced to and paid by Buyer, unless Buyer provides Seller with a proper tax exemption certificate. In the event Seller is required to pay any such tax, fee or charge at the time of sale or thereafter, the Buyer shall reimburse Seller therefore.
- Prices quoted are for the Products and services described on the face hereof only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller’s standard tests unless expressly agreed to in writing by Seller.
- Unless otherwise stated by Seller in writing, all quotations are firm for, and expire, thirty (30) days after date thereof and constitute offers.
3. PAYMENT TERMS
- Unless otherwise stated on the front of this form, the terms of the sale are net 30 from date of invoice. Seller reserves the right to require alternative payment terms, including, without limitation, sight draft, letter of credit or payment in advance. All payments shall be made to seller at its principal office in Palm Beach Gardens, Florida, or such other office as designated on the face hereof. Interest accrues on overdue invoices at the rate of one and one-half percent (1 1/2%) per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice. Payment shall not be withheld for delay in installation if at Buyer’s request nor for delay in delivery of required documentation unless a separate price is stated therefor, and only to the extent of the prices stated. The Buyer shall pay, and the Seller must receive, the full invoice value in payment without regard to any commissions, charges, fees, discounts or similar deductions that Seller may suffer or incur as a result of the payment method used by the Buyer. Accordingly, the Buyer agrees to pay the Seller any commissions, charges, fees, discounts or similar deductions that the Seller suffers or incurs as a result of the payment method used by the Buyer to purchase the Products.
- All orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of the Seller as provided in paragraph 10, to require of the Buyer payment of all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer is or becomes delinquent in the payment of any sum due Seller (whether or not arising out of this order) or refuses to accept C.O.D. shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer. Partial shipments made under any order shall be treated as a separate transaction and payment thereof shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order.
- Seller reserves a purchase money security interest in the Products sold hereunder and the proceeds thereof, in the amount of the purchase price. In the event of default by Buyer on any of its obligations to Seller, Seller will have the right to repossess the goods sold hereunder without liability to Buyer. In such event, Buyer agrees to make the Products available to Seller so that Seller can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Seller’s security interest. Buyer shall cooperate fully with Seller to execute such other documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller’s interests in the Products furnished hereunder. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
4. TRANSPORTATION AND RISK OF LOSS
Unless otherwise agreed to in writing by Seller, all transportation shall be at the expense of Buyer, Seller reserving the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account. Risk of loss or damage shall pass to Buyer upon delivery of the Products to the transportation company at the FOB point, whether or not installation is provided by or under supervision of Seller.
Seller may at its option obtain insurance for its Products covering their delivery to Buyer and Buyer agrees to reimburse Seller for the cost of providing such insurance. If Buyer has not been notified of the existence of insurance coverage and provides its own insurance for such shipment Seller will waive its insurance charge.
Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer therefore. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain in Buyer until the Products are returned at Buyer’s expense to such places as Seller may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefor, or the Products have been returned, for whatever reason, to Seller.
Seller will attempt to meet shipment schedules. However, any shipment quotation or forecast on an order acknowledgment is only an estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its active or passive negligence. Seller reserves the right to allocate inventories and current production in any way it deems desirable.
6. INSPECTION AND ACCEPTANCE
The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within thirty (30) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him. Notwithstanding the foregoing, use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of the goods by Buyer.
The Products may not be returned to Seller without first obtaining Seller’s consent. The request for return and credit must be filed with Seller and shall include purchase order number, approximate date shipped and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc.). Each request for return of Products for credit should state the type and quantity of goods, the part numbers and the reasons for the return. If return authorization is granted, Products shall be returned in a clean, well packaged condition. No credit allowance on defectives will be made and no replacement for defectives will be shipped in any event, unless the alleged defectives are, among other things, established to Seller’s satisfaction after suitable testing and inspection by Seller.
No order for Products may be terminated or cancelled by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions:
- Buyer will indemnify the Seller from all costs, expenses, liabilities, claims, damages and losses resulting from, or relating to, such termination, order, Seller’s work-in-progress, and/or Seller rights and obligations hereunder. Buyer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Buyer at the time of Seller’s receipt of notice of termination and our mutual agreement to terminate;
- Buyer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller’s receipt of notice of termination and our mutual agreement to terminate, plus a pro rata portion of the normal profit on the contract;
- Buyer will pay a termination charge on all other Products affected by the termination. Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will divert completed parts, material or work-in-progress from terminated contracts to other customers whenever, in the Seller’s sole discretion, it is practicable to do so. In the event of a termination, Buyer will have no rights in partially completed goods.
9. LIMITED WARRANTY—LIMITATION OF REMEDIES
- Except as otherwise specified herein, Seller warrants the Products to be free from defects in material and workmanship for a period of twelve (12) months from shipment, and to repair and replace the individual Product for twelve (12) months from shipment if a warranty for an individual product is not specified.
- This warranty is limited to repair and replacement of the individual Product for the time period set forth in paragraph 9(a), and is the only warranty made by Seller with respect to the Products and no representative or person is authorized to bind Seller for any obligations or liabilities beyond the warranty in connection with the sale of Seller’s goods. This warranty is made to the original purchaser only at the original location and is nontransferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller. This limited warrant does cover any modifications, revisions or changes that are made to the Products by the Buyer or any other third party, and Seller makes no warranty, express or implied regarding the Products in the event of modifications, revisions or changes thereto. Goods or parts which are replaced or repaired under this warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific product.
- These remedies are available only if Seller is notified in writing by Buyer promptly upon discovery of the defect, and in any event within the warranty period for the individual Product, Seller’s examination of such goods discloses to Seller’s satisfaction that such defects actually exist and the goods have not been (i) repaired, worked on, or altered by persons not authorized by Seller so as, in Seller’s sole judgment, to injure the stability reliability, or proper operation of such goods; (ii) subject to misuse, negligence or accident; or (iii) connected, installed, used or adjusted otherwise that in accordance with the instructions furnished by Seller.
- All Products which Buyer considers defective shall be returned to Seller’s office as designated on the face hereof transportation costs prepaid and borne by Buyer (unless otherwise provided on the face hereof). The risk of loss of the goods shipped or delivered to Seller’s plant for repair or replacement will be borne by Buyer.
- If it is found that any Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at Buyer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on Products so returned.
- THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (EXCEPT FOR SPECIFIC WRITTEN PRODUCT PERFORMANCE GUARANTEES) WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL BE THE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY ON CONTRACT OR WARRANTY OR OTHERWISE FOR THE PRODUCT.
10. BANKRUPTCY OR INSOLVENCY OF BUYER
If the financial conditions of the Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations under this agreement. Seller may (a) by notice in writing to Buyer, cancel this agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller, (b) require full or partial payment in advance and suspend any further deliveries for continuance of the work to be performed by Seller until such payment has been received or (c) make shipments C.O.D.
11. PROPRIETARY RIGHTS
The sale of the Products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights, if any, that the Seller (or the manufacturer) may have covering the Products. Seller or the manufacturer) retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products supplied by Seller and to all discoveries, inventions, patents and other proprietary rights relating thereto, arising out of or in connection with the Products. Seller does not represent, warrant or defend that the Products furnished hereunder are free from, or do not constitute, infringement of any patent or other property rights.
Stenographic and clerical errors are subject to correction.
13. APPLICABLE LAW; JURISDICTION AND VENUE
This agreement will be governed by the laws of the State of Florida. The state courts of Palm Beach County, Florida (or if there is exclusive federal jurisdiction, the United States District Court for the Southern District of Florida) will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and Buyer hereby consents to the jurisdiction of such courts.
14. LIMITATION OF LIABILITY
- Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to causes beyond the reasonable control of Seller, including without limitation, supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay.
- SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS, AT SELLER’S SOLE OPTION, AS SET FORTH IN PARAGRAPH 9 ABOVE. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTED PRODUCTS BY BUYER, NOR WILL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF PROFIT WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
15. SUBSTITUTIONS AND MODIFICATIONS
Seller will have the right to make substitutions and modifications at the specifications of Products sold by Seller, provided that such substitutions or modifications will not materially affect overall Product performance.
16. ATTORNEY’S FEES AND COSTS
Reasonable attorney’s fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement.
Ref SV 347342252v4
4149 Burns Road
Palm Beach Gardens, FL 33410
QUALITY REMARKS PERTAINING TO PURCHASE ORDERS PLACED BY PACER UPON SUPPLIERS
QUALITY FORM: QF-12 Page 1 of 1: QUALITY REMARKS REVISION: NC
GENERAL REQUIREMENTS: Unless otherwise specified in the purchase order, the following general requirements apply to the purchase.
SUBTIERS: The seller is required to flow down the requirements to all subtier to allow “Right of Access’, to notify PACER of any product/process changes, notification of nonconformance, and records retention requirements as called out in these terms and conditions.
RESPONSIBILITY FOR CONFORMANCE: Neither surveillance, inspection and or tests made by PACER or his representatives, at either the Seller’s or PACER’s facility will relieve the seller of the responsibility to furnish items which conform to the requirements of the Purchase Order.
DOCUMENTATION: PACER may refuse to accept items delivered under the purchase order if the seller fails to submit the certification, documentation, test data or reports as specified in the purchase order. Documentation includes source inspection record when source inspection is performed.
CORRECTIVE ACTION REQUEST: When a Quality problem exists, PACER will request Corrective action from the seller. Such request require timely responses and will include the following information: Analysis of the cause of the problem, statement of the action taken, and the effectiveness of the action.
NONCONFORMING MATERIAL CONTROL: The seller will maintain an effective, documented system for control of nonconforming articles, which include identification, segregation, review and processing of nonconforming articles.
The seller will not accept nonconforming articles, other than the Seller’s proprietary products, unless authority to conduct Material Review activities has been granted by PACER. Sellers of proprietary products will not conduct Material Review action or discrepancies that will result in a departure from the requirements of PACER or customer specifications.
Should the seller identify a possible delivery of a nonconformance supplied to PACER they shall inform PACER’s Inside Sales Manager within two (2) working days, by phone from the date of the discovery and within seven (7) working days by letter.
RIGHT OF ACCESS: The seller will permit PACER, PACER’s customer, and cognizant Government agencies to conduct such inspections and audits at suppliers facilities as may be required to verify compliance with PACER Purchase Order requirements, Such facilities and assistance as may be reasonably required to accomplish these inspections will be furnished by the seller without cost to PACER or its customer.
WARRANTY: Seller expressly warrants that all work, including articles, material and designs, supplied by seller, will conform to the specifications, drawings, samples or other descriptions set forth in order or furnished by PACER and will be good material and workmanship and free from defect. All work is subject to final inspection and acceptance at PACER’s plant, it being understood that payment therefore shalt not constitute acceptance. Any work which is found to be defective either before or after acceptance may be rejected and returned to seller at seller’s risk and expense for repair or replacement , or if seller cannot make the repair or replacement in the time required buy the buyer to meet its delivery schedules, for credit at PACER’s option. If PACER finds it impractical to return defective work for rework, repair or replacement within a reasonable time, it may perform necessary repairs and charge the reasonable cost therefore to seller. Any payments made on any rejected work shall be immediately refunded to PACER.
DELIVERY: Should Seller fail to deliver material within the time specified, PACER may terminate this order in whole or part and may buy elsewhere and charge Seller any additional expense incurred thereby. PACER expressly retains all its rights and remedies provide by law in case of such a default, and no action on the part of PACER shall constitute a waiver of any right or remedy. Seller shall not be liable by reason of any failure to deliver or delay in delivery due to any cause beyond Seller’s reasonable control and without fault or negligence of PACER.
PACKING: No charge will be allowed for packing, boxing, or cartage, unless agreed upon at the time of purchase, but damage to any material not packed to ensure proper protection will be charged to Seller. Each package must contain a memorandum showing Shipper’s name, contents of package and purchase order number of PACER.
RECORD RETENTION: Supplier will retain all records pertaining to this order for a period of 7 years. If the supplier cannot do this for any reason the supplier is to forward all records to PACER. The supplier will contact PACER purchasing department before destroying any records.