1. Each time Pace Innovations Pty Ltd, ACN 120 790 758, ABN 27120790758, an Australian Proprietary Company with its Principal Place of Business at Unit 23A, 53-57 Link Drive, Yatala, Queensland 4207, Australia (“Pace Innovations”) accepts an order from a customer for a product and/or service whether by sending the customer an acceptance of order, supplying the product or service, or issuing an invoice, a contract for the supply of that product and/or service shall come into existence between Pace Innovations and the customer upon and subject to the
terms and conditions set out below and any other terms agreed by Pace Innovations in writing, to the exclusion of any other terms or conditions specified by the customer orally or in writing whether in the customer’s order or purchase order or in other documentation containing the customer’s terms of purchase or terms of trade.
2. All orders for products and/or services shall be deemed to be an offer to purchase the items specified in the order which Pace Innovations may, in its absolute discretion, accept or decline.
3. Pace Innovations may at is discretion accept an order either as regards all the items listed in the order or any one or more of them.
4. Pace Innovations shall be entitled from time to time, at its discretion, to replace or amend these terms and conditions, the prices, conditions of sale, payment terms, or specifications of or applying to any product or service and to discontinue the manufacture, supply or marketing of any product or service, without thereby incurring any obligation or liability to the customer provided that Pace Innovations may not apply any such change to a supply in respect of which it has already accepted the customer’s order. Any change to such a supply must be agreed in writing between Pace Innovations and the customer.
5. Any time for delivery stated by Pace Innovations is an estimate only and whilst Pace Innovations will use all reasonable endeavours to deliver by any requested delivery date, it does not warrant that such date will be met. In no case shall Pace Innovations be liable for any loss or damage resulting either directly or indirectly from a failure to deliver by any specific date.
6. Prices quoted by Pace Innovations do not include customs duties, import or sales taxes or any other taxes or levies whatsoever charged for the product or service supplied and all of such duties, taxes or levies are to be paid directly by the customer. Should any payment to Pace Innovations be subject to any withholding tax of any kind, the customer shall increase the amount of such payment in proportion to the amount withheld or deducted so as to ensure that Pace Innovations receives the same amount it would have received in the absence of such withholding or
7. All products supplied by Pace Innovations must be paid for in full. If prior to providing a quotation Pace Innovations has agreed in writing credit arrangements with the customer, payment must be made in accordance with those arrangements. If Pace Innovations has not so agreed credit arrangements, the payment terms will be notified to the customer by Pace Innovations in its quotation (if any). If no quotation is supplied, the payment terms will be either
(b) payment-on-delivery, or
(c) payment within 14 days of the date of invoice, as may be specified by Pace Innovations.
8. If any payment is not made by the due date then Pace Innovations may demand payment of all sums owing to Pace Innovations by the customer, regardless of whether the time for payment has arrived and in addition and without prejudice to its other rights and remedies, Pace Innovations Pace shall be entitled to suspend performance of any supply until payment has been made and/or charge the customer interest on any late payment at the rate of 3.0% above the prevailing overdraft rate of Pace Innovations’ bank during the period from when the payment is due until payment is received by Pace Innovations.
9. Pace Innovations has the right to terminate any credit arrangements with the customer and to substitute payment-with-order or payment-on-delivery terms at any time, without prior
notice. The customer must notify Pace Innovations in writing of any apparent defect, omission or damage to a product within seven (7) days of delivery. If such notice is not given within this period, the product shall be deemed to have been accepted and in conformity with the packing list and free from apparent defects (where applicable).
10. Products are accepted by Pace Innovations on return for credit only upon prior written authorisation of the Pace Innovations manager designated for this purpose by Pace Innovations.
11. Risk in all products supplied passes when the customer or the customer’s carrier collects the product from Pace Innovations but Pace Innovations reserves the right of disposal of the products and for products that are not software (title to which shall not pass to the customer), ownership of and property in such products shall not pass to the customer until Pace Innovations has received payment in full for such products as well as payment for all other products and/or services supplied by Pace Innovations to the customer and until all other sums owing by the customer to Pace Innovations have been paid, in each case regardless of the time at which any such payment may be due.
12. If the customer is in breach of any of these terms and conditions, if the customer suffers or commits any act of bankruptcy, if a receiver or a receiver and manager of the customer is appointed, if some step or proceedings are commenced leading to the appointment of a liquidator of the customer or if Pace Innovations in its absolute discretion shall form the opinion that the customer cannot or will not be able to pay its debts as they fall due, then Pace Innovations shall have the right to repossess all products the property of Pace Innovations in the possession or under the control of the customer and for this purpose to enter any premises where the same may be found and sever and remove and carry away the same.
13. The customer agrees and understands that the account as between Pace Innovations and the customer is a running account to the intent that sums owing by Pace Innovations to the customer will be set off against sums owing by the customer to Pace Innovations in the books of account kept by Pace Innovations. The customer may not deduct from or set-off against any amount that is or may become payable by it to Pace Innovations in relation to any amount that is or may become payable to it by Pace Innovations in any whatsoever.
14. Pace Innovations shall be entitled to sub-contract to any third party the supply or any part of the supply of the products and/or services for which it has accepted the customer’s order.
15. The customer may not transfer or assign the benefit or novate any contract for the supply of products and/or services without the prior written consent of Pace Innovations.
16. The customer agrees that all parties to the contract for the supply of products and/or services are in trade and the customer acknowledges that it does not rely and has not relied on a representation or other conduct of Pace Innovations whether during negotiations prior to the contract being entered into or at any subsequent time.
17. Nothing in these terms and conditions shall affect the ownership of any existing intellectual property right.
18. All intellectual property rights in each development, invention or discovery in relation to which intellectual property rights subsist, exist or are capable of exploitation shall be exclusively owned by Pace Innovations unless the development, invention or discovery was created independently by the customer.
19. Nothing in these terms and conditions, either expressly, impliedly or at law or in equity confers any right or interest in, or licence under any of Pace Innovations’, the customer’s or any other person’s intellectual property rights except the licences expressly set out below.
20. The customer grants to Pace Innovations a royalty-free, non-exclusive, personal, non-sub-licensable, non-transferable, world-wide licence under the customer’s intellectual property rights to the extent required for Pace Innovations to perform its obligations under the contract referred to in clause 1 of these Terms of Trade and the customer warrants to Pace Innovations that its use of the customer’s intellectual property rights will not infringe any proprietary or other intellectual property right of any person. The customer agrees to indemnify Pace Innovations (and Pace Innovations’ personnel) against any and all claims, proceedings, liabilities, losses, costs, damages and expenses (including but not limited to court and legal costs) that may be suffered or incurred by any of them arising out of or in connection with any breach by the customer of such warranty.
21. Pace Innovations grants to the customer, a royalty-free (other than the price and other payments set out in Pace Innovations’ invoice), non-exclusive, personal, non-sub-licensable, nontransferable, perpetual licence under any of Pace Innovations’ intellectual property rights covering the products and/or services supplied to use the products and/or services for the purposes for which they have been ordered from Pace Innovations. The customer shall have no right to disassemble, decompile, reverse-engineer, manufacture or have manufactured any product supplied by Pace Innovations.
22. All software supplied to the customer will be supplied in object code form only and the customer shall have no right to source code in respect of any software supplied. Where software is supplied for the operation of a product that is also supplied by Pace Innovations, the customer may use such software solely on and for the operation of the product for which it was provided and using only the features and capacity for which it was licensed and the customer agrees not to decompile, disassemble, or reverse-engineer any part of any software.
23. If any product or service supplied by Pace Innovations infringes or misappropriates the intellectual property rights of any person, Pace Innovations will at its option in its absolute discretion either modify or replace the product or service so as to make it non-infringing, obtain a licence from the owner of the right infringed or misappropriated, or take back the product or service and refund to the purchaser the purchaser’s depreciated value of the product or service. Pace Innovations shall have no liability for infringement of any intellectual property right by the supply of any product and/or service where the alleged infringement results:
(a) from the assembly, function or use of the product or service in combination with any products or service not supplied by Pace Innovations;
(b) from the modification of the product or service by the customer or by any third party; (c) from use of the product or service outside Australia; (d) from Pace Innovations’ compliance with
the customer’s specifications and designs; or
(e) from use unforeseen by Pace Innovations at the time of acceptance of the customer’s order; and Pace Innovations’ obligations under this clause shall be the customer’s sole and exclusive remedy and expresses all of Pace Innovations’ liabilities for any allegations of infringement or misappropriation in respect of intellectual property of whatsoever kind.
24. Any vehicle or other property of the customer in the possession or under the control of Pace Innovations at any place or any time is at the customer’s risk in all respects and Pace Innovations will not be liable for any loss of or damage to that vehicle or property or caused by it.
25. Pace Innovations shall not be liable for any special, indirect, incidental or consequential damages of any kind even if the likelihood of the same has been brought to its prior attention, and Pace Innovations shall not be liable for losses of use, data, profit, income, business opportunity, anticipated savings, goodwill or reputation and more generally, any losses of an economic or financial nature, which are or may be deemed to be consequential. Pace Innovations’ total liability for a product or service, whether in contract or in tort, at common law, in equity, under any statute or under any indemnity will be limited to 25% of the price paid by the customer for that product or service.
26. The customer must take reasonable steps to mitigate any claim for loss or damage it may have against Pace Innovations or arising out of the supply of any product or service and/or the contract referred to in Clause 1 of these Terms of Trade howsoever such claim may arise.
27. Notwithstanding any other provision of these terms and conditions, Pace Innovations will not be liable for any failure or delay in complying with any obligation imposed on it under these terms and conditions and/or the contract referred to in Clause 1 of these Terms of Trade if the failure or delay arises from, or is in connection with, a Force Majeure Event. For the purposes of ABN: 27 120 790 758. Registered Office: 23a/55-57 Link Drive, Yatala, QLD, 4207, Australia these terms and conditions, a “Force Majeure Event” shall be deemed to be an unforeseeable event or circumstance beyond the reasonable control of Pace Innovations, including but not limited to an act of God, lightning strike, earthquake, storm, flood, drought, landslide, explosion or fire, strike, lockout, go-slow or other industrial action, disturbance in supplies from otherwise normally reliable sources (including, but not limited to water, electricity, fuel and the like), Government decisions, action of a court or public authority, war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic.
28. Pace Innovations warrants to the customer that it has the right to supply all of the products or services supplied to the customer and all products will, at the time of delivery, be free from any lien, charge, mortgage, or encumbrance or security interest except for Pace Innovations’ reservation of title under these terms and conditions.
29. Subject at all times to Clause 35 below:
(a)For all products and services of a supplier to Pace Innovations that are resupplied to the customer by Pace Innovations, whether as an OEM product or not, the manufacturer’s or supplier’s warranties as to quality, defects, fitness for purpose and compliance with sample or description (if any) shall apply.
(b) For all other products and services than those referred to in paragraph (a) above, Pace Innovations warrants, during the during the warranty period specified in writing for that product or service by Pace Innovations (the “Warranty Period”) (if any), that the products and services will (i) (subject to the clause below in respect of software) be reasonably free from defects in materials and workmanship; (ii) be fit for all purposes which the customer has made known to Pace Innovations or, if none is made known, the purposes for which they are commonly acquired; and (iii) materially comply with any sample or description given by Pace Innovations.
(c) Pace Innovations will use its reasonable endeavours to ensure that all software supplied that has been written or developed by Pace Innovations: (i) is free from bugs, errors, defects or anything which adversely affects the ability of the software, or the hardware or system on which it is installed, to perform in accordance with its specifications; (ii) is delivered free of any virus; and (iii) does not contain or include any time bombs, Trojan horses, worms, traps or other mechanisms which are intentionally designed to deny access by the customer, to allow access by unauthorised means and/or persons, or to disable, erase, destroy, damage, alter or render meaningless, useless or ineffective the software or otherwise harm any the customer data, programmes or applications; but Pace Innovations does not warrant that any software will be entirely free thereof.
30. If Pace Innovations breaches a warranty relating to a product during the product’s Warranty Period (if any), Pace Innovations will at its option either replace or repair the non-complying product or a part thereof or render a credit for the defective or non-conforming portion of the product.
31. If Pace Innovations breaches a warranty relating to a service during the warranty period specified in writing for that service by Pace Innovations (if any), Pace Innovations will at its option, either correct or re-perform the service or render a credit for the defective or non-conforming portion of the service.
32. If during the Warranty Period, the customer has altered or modified a product without the prior written approval of Pace Innovations, or has wilfully or negligently damaged the product and such alteration, modification of, or damage to the product results in or may result in Pace Innovations being in breach of the warranties, then Pace Innovations:
(a) will not be, or be deemed to be, in breach of the warranties; and
(b) may charge the customer for any cost or expense incurred by it in remedying, correcting or, where necessary, upgrading or replacing the product.
33. The customer acknowledges that all products and services are acquired for the purposes of a business and that no consumer protection laws will apply to the supply of any product or service. Except as expressly provided in these terms and conditions, all warranties, conditions, representations, indemnities and guarantees, whether express or implied, arising by law, custom,
prior oral or written statements by Pace Innovations or otherwise, including any warranty of merchantability or fitness for a particular purpose or of error-free and uninterrupted use, are excluded and disclaimed.
34. The warranties and remedies referred to in these terms and conditions are conditional upon the proper receipt, handling, storage and installation of the products in accordance with the relevant instructions (if any) and shall not extend to any loss or damage arising as a consequence of negligence or improper manipulation of or repair to the product by the customer other than in accordance with the relevant instructions (if any) or by a third party not approved by Pace Innovations, or where:
(a) The product has not been used, maintained, repaired or inspected in accordance with these terms and conditions;
(b) the product has been modified, repaired or re-worked by the customer other than in accordance with Pace Innovations’ instructions (if any) or any third party not authorised by Pace Innovations;
(c) the defect is the result of the following in contravention of the relevant Pace Innovations instructions (if any);
(d) the improper storage, handling or use of the product;
(e) a failure to apply previously applicable Pace Innovations modifications and corrections;
(f) operator error;
(g) improper installation, relocation, or neglect of the product;
(h) use of the product in conjunction with another non-OEM certified, or non-OEM recommended products; or
(i) negligence or use in any manner not in accordance with the specification, operating instructions, or licences therefor.
35. Where a product or service is supplied for a motorsport purpose or is used by the customer for or in any way related to motorsport, the following additional provisions shall apply:
(a) None of the warranties in clause 29 above shall apply to the product or service even if Pace Innovations has specified a Warranty Period for that product or service.
(b) The customer acknowledges and agrees that the product or service has been designed, manufactured or performed exclusively for use in motorsport competitions and may not be fitted to or used in connection with vehicle on a public road.
(c) The product or service must be fitted or applied only by qualified engineers, mechanics or technicians experienced in motorsport who have been specifically trained to install and operate products or apply services of the type supplied by Pace Innovations.
(d) The product must be regularly removed for inspection for damage, cracks and wear and replaced or repaired as necessary before the vehicle to which the product is fitted returns to competition.
(e) All mounts of the product must be regularly checked for loss of torque and tightened to the torque settings specified by Pace Innovations or the product’s OEM (if any).
(f) All products for which Pace Innovations or the product’s OEM specifies a life must be replaced at the end of the specified life and not re-used without reconditioning, re-work or re-building by a suitably trained technician. If Pace Innovations or the product’s OEM does not recommend end-of-life reconditioning, re-work or re-building, the product must be disposed of.
36. The customer shall not make any public announcement or publicise the supply of the products and/or the services supplied by Pace Innovations without the prior consent of Pace Innovations.
37. All information of or concerning Pace Innovations, its personnel, related companies, customers, sub-contractors or suppliers or their respective business activities, products or services and all other sensitive information in any form, whether oral, documented or in any electronic format, which is provided to the customer or of which the customer may, in any other way, become aware at any time (“Confidential Information”) may:
(a) only be used by the customer for the purposes of using the product or service supplied for the purpose for which it was supplied;
(b) not be disclosed, made available or otherwise disposed of, to any third party except with the prior written consent of Pace Innovations or as may otherwise be expressly permitted by these terms and conditions; and
(c) may only be disclosed by the customer to those of its personnel who or which must necessarily deal with the Confidential Information in order to discharge their duties provided that Pace
Innovations may require any such personnel to first execute a confidentiality deed as reasonably required by Pace Innovations.
38. The customer will advise its personnel who or which receive or become aware of any of Pace Innovations’ Confidential Information of its confidential nature, and will procure that they preserve the confidentiality of such Confidential Information including (but not limited to) doing the acts, matters and things set out above. The customer agrees that if any of its personnel does any act, matter or thing which, if done by the customer, would constitute a breach of its obligations under these terms and conditions, the customer will be, or will be deemed to be, in breach of contract referred to in Clause 1 of these Terms of Trade.
39. The customer shall take adequate and proper precautions to preserve the confidentiality of Pace Innovations’ Confidential Information in its possession and shall use the same degree of care for the protection thereof from unauthorised use and/or disclosure as it uses for its own similar Confidential Information but in no case, less than a reasonable degree of care.
40. The contract referred to in clause 1 of these Terms of Trade, including these terms and conditions, contains the entire agreement between Pace Innovations and the customer as to its subject matter and supercedes all previous agreements, correspondence and understandings between them as to such subject matter.
41. In the event that any of these terms and conditions or any other terms or conditions of the contract referred to in clause 1 of these Terms of Trade are in conflict with any rule of law or
statutory provision or otherwise are unenforceable under the laws of any country, such invalidity shall not invalidate any of the other provisions hereof or thereof.
42. Failure by Pace Innovations on any occasion to enforce or require strict or timely compliance by the customer with any of these terms and conditions or any other terms or conditions of the contract referred to in clause 1 of these Terms of Trade shall not affect or impair that provision in any way or the rights of Pace Innovations to avail itself of the remedies it may have in respect of any breach of any such term or condition.
43. These terms and conditions and each contract referred to in Clause 1 of these Terms or Trade are governed by, and construed in accordance with, the laws of Australia. The Parties agree to
submit to the non-exclusive jurisdiction of the Courts of Australia.