Terms & Conditions

TERMS AND CONDITIONS OF SALE FOR AMT TURBOCHARGERS PRODUCTS (Rev 2 Mar 2023)  

1. APPLICABLE TERMS & CONDITIONS: THESE TERMS AND CONDITIONS OF SALE TOGETHER WITH THE PROVISIONS CONTAINED IN AMT TURBOCHARGER’S QUOTATION ESTABLISH THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE APPLICABLE AMT TURBOCHARGER SELLING ENTITY (“AMT”) AND BUYER WHICH APPLY TO ANY ORDER ISSUED BY BUYER FOR THE PURCHASE OF AMT TURBOCHARGER’S PRODUCTS OR SOFTWARE (COLLECTIVELY “PRODUCTS”), OR SERVICES ASSOCIATED TO THESE PRODUCTS, SUCH AS BUT NOT LIMITED TO DEVELOPMENT SERVICES (“SERVICES”). UNLESS OTHERWISE STATED IN A WRITTEN PURCHASE AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF AMT AND BUYER AND COVERING THE SPECIFIC PRODUCTS THAT ARE THE SUBJECT OF ANY BUYER’S PURCHASE ORDER, AMT’S ACCEPTANCE THEREOF IS MADE EXPRESSLY CONDITIONAL ON ASSENT BY BUYER TO AMT TURBOCHARGER’S QUOTATION AND THE TERMS AND CONDITIONS OF SALE INCLUDED HEREIN. NO ADDITONAL OR DIFFERENT TERMS OR CONDITIONS, WHETHER CONTAINED IN BUYER’S PURCHASE ORDER FORM OR ANY OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER, WILL BE BINDING UPON AMT UNLESS ACCEPTED IN WRITING, AND AMT HEREBY EXPRESSLY OBJECTS TO ANY SUCH TERMS AND CONDITIONS WHICH SHALL BE DEEMED INEFFECTIVE AND ARE REJECTED. REFERENCES TO THIS “AGREEMENT” INCLUDE ANY APPLICABLE PURCHASE ORDER OR AGREEMENT.

 

2. DELIVERY/SHIPPING TERMS: Buyer is responsible for all duties, taxes, and other charges payable upon export. Delivery dates are estimated and not guaranteed. AMT Turbochargers will schedule delivery in accordance with its standard lead time unless Buyer’s Order requests a later delivery date or AMT Turbochargers otherwise agrees in writing. Changes to delivery schedules within 6 weeks of delivery require prior written approval by AMT Turbochargers. It is expressly understood that there is no deferred delivery or cancellation without AMT Turbochargers’ consent. Buyer agrees to pay AMT Turbochargers all charges to change, expedite, or cancel all or any part of the Order. If AMT Turbochargers prepays transportation charges or any special routing, packing, labelling, handling, or insurance requested by Buyer, Buyer will reimburse AMT Turbochargers upon receipt of an invoice for those charges. Title will pass to Buyer upon delivery.

 

3. ACCEPTANCE – PRODUCT: Products are presumed accepted unless AMT Turbochargers receives written notice of rejection from Buyer explaining the basis for rejection within 20 calendar days after delivery. Buyer must disposition rejected Product to AMT Turbochargers in accordance with AMT Turbochargers’ written instructions. AMT Turbochargers will have a reasonable opportunity to repair or replace rejected Products, at its option. Subject to the terms of the article titled “Taxes”, AMT Turbochargers assumes shipping costs in an amount not to exceed actual reasonable direct freight charges to AMT Turbochargers’ designated facility for the return of properly rejected Products. Buyer will provide copies of freight invoices to AMT Turbochargers upon request. Following initial delivery, the party initiating shipment will bear the risk of loss or damage to Products in transit. If AMT Turbochargers reasonably determines that rejection was improper, Buyer will be responsible for all expenses caused by the improper rejection.

 

4. PRICES, TAXES, DUTIES & ORDER SIZES: All prices are in the applicable currency of the AMT Turbochargers quotation, unless otherwise agreed by the parties. If, notwithstanding the provisions hereof, Buyer’s terms and conditions of purchase are deemed to apply by a court of competent jurisdiction, then AMT Turbochargers reserves the right to either (a) modify the prices (including retroactively) according to the additional level of risk and responsibility that Buyer’s terms and conditions require AMT Turbochargers to undertake; or (b) cancel the Agreement any time after such determination without liability for such termination other than for the Products already delivered on the terms set out herein. Prices do not include any charges for services such as packaging; insurance; or brokerage fees. AMT Turbochargers’ pricing excludes all taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), duties, tariffs, and charges (collectively, “Taxes”). Buyer is responsible for all such Taxes resulting from this Agreement or as a result of AMT Turbochargers’ performance under this Agreement, whether imposed, levied, collected, withheld, or assessed now or later. If AMT Turbochargers is required to impose, levy, collect, withhold, or assess any Taxes on any transaction under this Agreement, then in addition to the purchase price, AMT Turbochargers will invoice Buyer for the Taxes unless at the time of order placement Buyer furnishes AMT Turbochargers with an exemption certificate or other documentation sufficient to verify exemption from the Taxes. If any Taxes are required to be withheld from amounts paid or payable to AMT Turbochargers under this Agreement, such withholding amount will not be deducted from the amounts due AMT Turbochargers as originally priced, Buyer will pay the Taxes on behalf of AMT Turbochargers to the relevant taxing authority in accordance with applicable law and Buyer will forward to AMT Turbochargers, within 60 days of payment, proof of Taxes paid sufficient to establish the withholding amount and the recipient. In no event will AMT Turbochargers be liable for Taxes paid or payable by Buyer. AMT Turbochargers reserves the right to establish minimum order sizes. AMT Turbochargers reserves the right to change its prices if series production ends, or if, from the time of quotation (i) raw material and/or component prices have changed; or (ii) actual volume is less than forecast volume; or (iii) there is any significant change in economic circumstances.

 

5. PAYMENT TERMS/SETOFF: Payment is due 30 calendar days from the date of invoice in the applicable currency quoted and must be accompanied by remittance detail containing at a minimum the invoice number and amount paid per invoice. If Buyer is delinquent in payment to AMT Turbochargers, AMT Turbochargers may at its option (a) stop work and withhold future shipments until all delinquent amounts and late interest, if any, are paid; (b) repossess Products or Software for which payment has not been made; (c) charge interest on delinquent amounts at the lower of 1.5% per month or the maximum rate permitted by law for each full or partial month; (d) recover all costs of collection, including but not limited to reasonable attorneys’ fees; (e)) combine any of the above rights and remedies as may be permitted by applicable law. These remedies are in addition to those available at law or in equity. AMT Turbochargers may re-evaluate Buyer’s credit standing at any time and modify or withdraw credit terms. Buyer may not set off any invoiced amounts against sums that are due to AMT Turbochargers.

 

6. CHANGES: Buyer may request changes to the scope of any Order subject to written acceptance by AMT Turbochargers. AMT Turbochargers will inform the Buyer if the change causes a price modification or schedule adjustment. The change will be effective and AMT Turbochargers may begin performance upon the Parties’ authorized signature of the change order and receipt of Buyer’s amended Order.

 

7. BUYER CAUSED DELAY: AMT Turbochargers will not be liable for any delays or increased costs caused by a failure of Buyer, such as delays in providing necessary information or other Buyer deliverables or delays by Buyer designated suppliers in providing goods or services. In the event of a non-force majeure Buyer-caused delay, the price and other affected terms will be adjusted accordingly to reflect AMT Turbochargers’ increased costs and other adverse impacts associated with such delay. In addition, if delivery of goods or services are delayed due to the acts or omissions of Buyer or Buyer-designated suppliers, AMT Turbochargers may store the goods at Buyer’s risk and expense and may invoice Buyer just as if there had been no delay in delivery.

 

8. EXCUSABLE DELAY (FORCE MAJEURE): Except for payment obligations, neither party will be liable to the other for any failure to meet its obligations due to any Force Majeure event. Force Majeure is an event beyond the reasonable control of the non-performing Party and may include but is not limited to: (a) delay or refusal to grant an export license or the suspension or revocation thereof, (b) any other act of any government that would limit a party’s ability to perform the Agreement, (c) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather condition, or any other acts of God, (d) quarantines or regional medical crisis, (e) labor strike or lockout, (f) riots, strife, insurrection, civil disobedience, landowner disturbance, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property), and (g) shortages or inability to obtain materials or components. If a force majeure event causes a delay, then the date of performance will be extended by the period of time that the non-performing party is actually delayed, or for any other period as the parties may agree in writing.

 

9. HARDSHIP: If for any reason, AMT Turbochargers’ production or purchase costs for the Product (including without limitation costs of energy, equipment, labor, regulation, transportation, raw material or Product) increases by more than 10% over AMT Turbochargers’ production or purchase costs for the Product on the date of entering into this Agreement, then AMT Turbochargers may, by written notice to Buyer of such increased costs, request a renegotiation of the price of the Product under this Agreement. In the event the Parties are not able to agree on a revised Product price within 30 days after a request for renegotiation is given, then AMT Turbochargers may terminate this Agreement on 30 days written notice to Buyer.

 

10. SPECIAL TOOLING: Special Tooling includes, but is not limited to, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, other special equipment and manufacturing aids and replacement items, now existing or created in the future, together with all related specifications, drawings, engineering instructions, data, material, equipment, software, processes, and facilities created or used by AMT Turbochargers in the performance of its obligations under this Agreement. AMT Turbochargers owns all Special Tooling, except to the extent an authorized representative of AMT Turbochargers specifically transfers title for any Special Tooling in writing to Buyer. Any transfer of title to Special Tooling does not include transfer of AMT Turbochargers’ intellectual property used to create or that may be embodied in the Special Tooling, other than a license to use the Special Tooling and AMT Turbochargers retains the right to use Special Tooling to which title has been transferred for purposes of manufacturing and selling Goods to the Independent Aftermarket. This license to use does not include the right to reproduce the Special Tooling unless specifically authorized by AMT Turbochargers

 

11. PATENT/ COPYRIGHT INDEMNIFICATION: AMT Turbochargers will defend any suit against the Buyer arising out of any actual or alleged patent or copyright infringement of a valid patent or copyright, to the extent based on the Product as delivered by AMT Turbochargers, and indemnify for any final judgment assessed against Buyer resulting from such suit provided that Buyer notifies AMT Turbochargers at such time as it is apprised of the third-party claim, and agrees to give sole and complete authority, information and assistance (at AMT Turbochargers’ expense) for the defense and disposition of the claim. AMT Turbochargers will not be responsible for any compromise or settlement made without AMT Turbochargers’ written consent. AMT Turbochargers will have no obligation or liability with respect to: (a) Products provided pursuant to Buyer’s designs, drawings or manufacturing specifications; (b) Products used other than for their ordinary purpose; (c) claims of infringement resulting from combining any Product furnished hereunder with any article not furnished by AMT Turbochargers; (d) use of other than the latest version of software Product released by AMT Turbochargers; or (e) any modification of the Product other than a modification by AMT Turbochargers. Further, Buyer agrees to indemnify and defend AMT Turbochargers to the same extent and subject to the same restrictions set forth in AMT Turbochargers’ obligations to Buyer as set forth in this Article for any suit against AMT Turbochargers based upon a claim of infringement resulting from (a), (b), (c), (d) or (e) of the preceding paragraph. Because AMT Turbochargers has exclusive control of resolving infringement claims hereunder, in no event will AMT Turbochargers be liable for Buyer’s attorney fees or costs. If a claim is made against a Product, or if AMT Turbochargers believes that such a claim is likely, AMT Turbochargers may, at its option, and at its expense, (i) procure for Buyer the right to continue using the Product; (ii) replace or modify the Product so that it becomes non-infringing; or (iii) accept return of the Product, or terminate Buyer’s license to use the infringing Product, and grant Buyer a credit for the purchase price or license fee paid for such product, less a reasonable depreciation for use, damage, and obsolescence. Further, if a claim of patent or copyright infringement is made against a Product, or if AMT Turbochargers believes that such a claim is likely, AMT Turbochargers may cease shipping infringing Products without being in breach of this Agreement. Any liability of AMT Turbochargers under this Article is subject to the provisions of the “Limitations of Liability” Article of this Agreement. This Article states the parties’ entire liability, sole recourse and their exclusive remedies with respect to infringement. All other warranties against infringement of any intellectual property rights, statutory, express or implied are hereby disclaimed.

 

12. LIMITATION OF LIABILITY: IN NO EVENT WILL AMT TURBOCHARGERS BE LIABLE FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, STATUTORY DAMAGES, INDIRECT DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF USE, OR DAMAGE TO GOODWILL OR BRAND NAME OR SUBSTANTIALLY SIMILAR TYPE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. AMT TURBOCHARGERS’ LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL IN NO CASE EXCEED IN THE AGGREGATE A SUM EQUAL TO TWICE THE AMOUNT ACTUALLY PAID TO AMT TURBOCHARGERS FOR THE PRODUCTS FROM WHICH THE CLAIM AROSE OR IN THE CASE OF SERVICES THE AMOUNT ACTUALLY PAID TO AMT TURBOCHARGERS. FURTHER, IF BUYER REQUIRES AMT TURBOCHARGERS TO USE A PARTICULAR SUPPLIER OR SUPPLIERS, THEN AMT TURBOCHARGERS SHALL HAVE NO LIABILITY FOR THE SUPPLIER(S) PERFORMANCE, NOR FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY AMT TURBOCHARGERS’ PRODUCT OR SERVICES TO THE EXTENT RESULTING FROM INCORPORATION OF SUCH SUPPLIER(S) PRODUCT OR SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE. NOTHING HEREIN, HOWEVER, IS INTENDED TO DISCLAIM AMT TURBOCHARGERS’ LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY DEFECTIVE PRODUCTS TO THE EXTENT SUCH LIABILITY IS MANDATED BY APPLICABLE LAW.

 

13. INTELLECTUAL PROPERTY: AMT Turbochargers and the Buyer shall not be obligated to transfer or grant any rights to their respective Intellectual Property, including but not limited to patents, designs, trade secrets, copyrights, and trademarks, that are used in or developed for the Products, or created previously or resulting from any Services provided, regardless of the financial contributions each may make towards such development or services. No development work or Services work in support of this Agreement shall be considered “work for hire.”

 

14. TRADEMARKS AND OTHER LABELS: Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the AMT Turbochargers, including without limitation the serial numbers or trademarks on nameplates or cast or machined components.

 

15. EXPORT AND IMPORT COMPLIANCE: Buyer is responsible for compliance with all applicable import and export control laws and regulations. In the case of an international transaction, AMT Turbochargers will obtain all required export licenses for the initial delivery. Buyer must obtain, at its sole cost and expense, all import, and re-export approvals and licenses required for Products, transfers, services and technical data. Buyer will retain documentation evidencing compliance with those laws and regulations. AMT Turbochargers will not be liable to Buyer for any failure to provide Products, services, transfers or technical data because of government actions that impact AMT Turbochargers’ ability to perform, including: (1) The failure to provide or the cancellation of export or re-export licenses; (2) Any interpretation of applicable import, transfer, export or re-export law or regulation after the date of any order or commitment that has a material adverse effect on AMT Turbochargers’ performance; or (3) Delays due to Buyer’s failure to follow applicable import, export, transfer, or re-export laws and regulations. If Buyer designates the freight forwarder for export shipments, then Buyer’s freight forwarder will export on Buyer’s behalf and Buyer will be responsible for any failure of Buyer’s freight forwarder to comply with all applicable export requirements. AMT Turbochargers will provide Buyer’s designated freight forwarder with required commodity information.

 

16. COMPLIANCE WITH LAWS: Buyer shall comply with all local laws and regulations applicable to the installation, use, or import of all Products delivered hereunder. As a condition of purchase, Buyer shall comply with all applicable export control laws and regulations of the United States, the European Union and any other country having proper jurisdiction and shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer shall not sell, transfer, export or re-export any AMT Turbochargers Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use AMT Turbochargers Products or technology in any facility which engages in activities relating to such weapons.

 

17. TERMINATION: Either party may terminate this Agreement and any or all unperformed Orders by giving written notice to the other party upon the occurrence of any of the following events: (a) Except as otherwise provided in (b), the other party materially breaches this Agreement and fails to remedy the breach within 60 calendar days after receipt of written notice that specifies the grounds for the material breach; (b) the other Party fails to make any payment required to be made under this Agreement when due, and fails to remedy the breach within 3 calendar days after receipt of written notice of non-payment; or (c) any insolvency or suspension of the other Party’s operations or any petition filed or proceeding made by or against the other Party under any state, federal or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings. Termination does not affect any debt, claim or cause of action accruing to any party against the other before the termination. The rights of termination provided in this clause are not exclusive of other remedies that either party may be entitled to under this Agreement or in law or equity.

 

18. ASSIGNMENT: Neither party will assign any rights or obligations under this Agreement without the advance written consent of the other party, which consent will not be unreasonably withheld. Either party may assign this Agreement to any affiliate of such party or in connection with the sale or transfer of all or substantially all of the assets of the product line or business to which it pertains. Any attempt to assign or delegate in violation of this clause will be void.

 

19. WAIVER: The failure of either party to enforce at any time any provision of this Agreement will not be construed to be a continuing waiver of those provisions.

 

20. HEADINGS AND CAPTIONS: Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of this Agreement.

 

21. PUBLICITY: Neither party will issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of the other party. A party’s approval will not unreasonably be withheld, except that either party may make any public disclosure it believes in good faith is required by applicable law or any listing or trading agreement concerning its or its affiliates’ publicly-traded securities. Notwithstanding the foregoing, if either party, or a third party, makes a public disclosure related to this Agreement that is false or damaging to a party, the aggrieved party will have the right to make a public response reasonably necessary to correct any misstatement, inaccuracies or material omissions in the initial and wrongful affirmative disclosure without the approval of the other party. Neither party will be required to obtain consent pursuant to this section for any proposed release or announcement that is consistent with information that has previously been made public without breach of its obligations under this clause. Furthermore, neither party shall issue any press release or make any public announcement relating to the subject matter of this Agreement using the name or trademark of AMT TURBOCHARGERS, its affiliates or related entities without prior written approval. In the case of any approved press release or announcement, neither party shall use or display any AMT TURBOCHARGERS trademark or logo without the prior written consent of Garrett. Any unauthorized use or display of AMT TURBOCHARGERS trademarks or logos by the Buyer shall result in immediate termination of this Agreement.

 

22. CONFIDENTIALITY: “Proprietary Information” means: 1) any information, technical data or knowhow in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, that is clearly identified as being confidential, proprietary or a trade secret, 2) business related information including but not limited to pricing, manufacturing, or marketing, 3) the terms and conditions of any proposed or actual agreement between the parties, 4) either party’s business policies, or practices, and 5) the information of others that is received by either party under an obligation of confidentiality. The receiving party will keep all Proprietary Information disclosed hereunder confidential for 10 years following the expiration, termination, or completion of the work of this Agreement whichever period is longer. Each party will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets. No right or license is granted hereby to either Party or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of the other Party, notwithstanding the expiration of the confidentiality obligations stated in this clause. AMT Turbochargers agrees to use the Proprietary Information of Buyer only to provide products or services for Buyer from AMT Turbochargers and not from any other source. Buyer agrees that it will not use or disclose AMT Turbochargers’ Proprietary Information for any other purpose. The receiving Party has no duty to protect information that is proven by written records to be: (a) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (b) known to recipient at the time of disclosure through no wrongful act of recipient, (c) received by recipient from a third party without restrictions similar to those in this section, or (d) independently developed by recipient. “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity. Buyer will: (a) treat Personal Data of all AMT Turbochargers personnel and prospective AMT Turbochargers personnel as Confidential Information; (b) take appropriate technical and organizational security measures as are required by AMT Turbochargers or applicable law to protect Personal Data; (c) use and permit employees and third parties to use Personal Data pursuant to AMT Turbochargers’ instructions only for purposes directly related to the performance of obligations under this Agreement; (d) refrain from transferring Personal Data out of the European Union unless AMT Turbochargers has given its prior consent to the transfer and Buyer has satisfied any further requirements reasonably imposed by AMT Turbochargers or applicable law; (e) indemnify AMT Turbochargers against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which AMT Turbochargers may suffer or incur arising out of any breach of this Article and (f) promptly notify AMT Turbochargers about any legally binding request for disclosure of Personal Data by a law enforcement agency (unless otherwise prohibited); any accidental or unauthorized processing of Personal Data; and any requests received from individuals to whom Personal Data relates, without responding to that request unless it has been otherwise authorized to do so by AMT Turbochargers.