The Sale of any Products, Services and the Licensing of Software is expressly conditioned on Buyer’s full assent to these Terms and Conditions. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative. Any order to perform work and Seller’s performance of work shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, Seller’s quotation shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming acceptance.
1. Definitions
“Buyer” means the entity to which Seller is providing Products or Services under the Contract.
“Contract” means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller’s final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
“Derivative Works” includes but is not limited to (a) any work based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be published, recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright to such pre-existing works, would constitute a copyright infringement, and/or (b) any compilation that incorporates such pre-existing works. For Software, Documentation, and third-party software (as defined below), Derivative Works also includes any and all corrections, bug fixes, and updates.
“Documentation” means all material including all printed material and on-line or electronic documentation (excluding training materials) referencing the Software and/or third-party software.
“Insolvent/Bankrupt” means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.
“Licensee” means the Buyer as defined in these terms and conditions.
“Licensor” means the Seller as defined in these terms and conditions.
“Products” means the equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Buyer under the Contract. All references to “Products” shall be deemed to include the accompanying Software when identified in the Contract, provided nothing herein shall be construed as the sale of or passage of title in, any Software or any other intellectual property rights.
“Seller” means the entity providing Products or performing Services named on the face of the Contract either AMI Automation LLC (a Delaware limited liability company) or AMI International S.A.P.I. de C.V. (a Mexican corporation).
“Services” means the services Seller has agreed to perform for Buyer under the Contract.
“Site” means the premises where Products are used or Services are performed, not including Seller’s premises from which it performs Services.
“Software” shall mean the Licensor’s software and software security devices which Seller has agreed to supply to Buyer pursuant to the Contract.
“Terms and Conditions” means these “Terms and Conditions for Sale of Products and Services”, including any relevant addendum, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
2. Payment
2.1 Unless agreed otherwise, Buyer shall compensate Seller for the Products and Services by paying all invoiced amounts in U.S. dollars no later than thirty (30) days of receipt of the invoice without set-off. Time is of the essence with respect to Buyer’s payment obligations.
2.2 If requested by Seller, Buyer shall at its expense establish and keep in force payment security in the form of an irrevocable, unconditional, sight letter of credit or bank guarantee allowing for pro-rata payments as Products are shipped and Services are performed, plus payment of cancellation and termination charges, and all other amounts due from Buyer under the Contract (“Payment Security”). The Payment Security shall be (a) in a form, and issued or confirmed by a bank acceptable to Seller, (b) payable at the counters of such acceptable bank or negotiating bank, (c) opened at least sixty (60) days prior to both the earliest scheduled shipment of Products and commencement of Services, and (d) remain in effect until the latest of ninety (90) days after the last scheduled Product shipment, completion of all Services and Seller’s receipt of the final payment required under the Contract.
2.3 If at any time Seller determines at its sole discretion that Buyer’s financial condition or payment history does not justify continuation of Seller’s performance, Seller shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of Payment Security, suspend its performance or terminate the Contract.
2.4 If Seller leases any of Seller’s equipment or provides related Services to Buyer, including placing Seller’s equipment at Buyer’s site to provide remote Services, leasing contract terms in Seller’s proposal apply.
3. Taxes and Duties
3.1 Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract (“Seller Taxes”). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes (“Buyer Taxes”). The Contract Price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.
4. Deliveries; Title Transfer; Risk of Loss; Storage
4.1 Unless agreed otherwise, Seller shall deliver Products to Buyer as FCA, Monterrey MX (Incoterms 2020 or latest edition). Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges including any other reasonable assessments. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption.
4.2 Title and risk of loss or damage shall pass to Buyer upon delivery per designated incoterms of the Contract.
4.3 If any Products to be delivered under this Contract or if any Buyer equipment at Seller’s facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.
4.4 If repair Services are to be performed on Buyer’s equipment at Seller’s facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller’s facility to the extent such damage is caused by Seller’s negligence.
5. Warranty
5.1 Seller warrants that Products shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications.
5.2 The warranty for Products shall expire one (1) year from first use or eighteen (18) months from delivery, whichever occurs first, except that software is warranted for ninety (90) days from delivery. The warranty for Services shall expire one (1) year after performance of the Service, except that software-related Services are warranted for ninety (90) days.
5.3 If Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing prior to expiration of the warranty period. Seller shall (i) at its option, repair or replace defective Products and (ii) re-perform defective Services. If despite Seller’s reasonable efforts, a non-conforming Product cannot be repaired or replaced or non-conforming Services cannot be re-performed, Seller shall refund, or credit monies paid by Buyer for such non-conforming Products and Services. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. Buyer shall obtain Seller’s agreement on the specifications of any tests it plans to conduct to determine whether a non-conformance exists.
5.4 Buyer shall bear the costs of access for Seller’s remedial warranty efforts (including removal and replacement of systems, structures, or other parts of Buyer’s facility), de-installation, decontamination, re-installation and transportation of defective Products to Seller and back to Buyer.
5.5 The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (c) modification or repair of Products or Services only as authorized by Seller in writing. Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear.
5.6 This Article 5 provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied, or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
6. Anti-Bribery and Anti-Corruption
6.1 Each Party represents, warrants, and covenants that it, its affiliates, directors, officers, employees, agents, and any third parties acting on its behalf shall comply at all times with all applicable anti-bribery and anti-corruption laws, including but not limited to:
(a) the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”);
(b) the UK Bribery Act 2010;
(c) the Mexican Ley General de Responsabilidades Administrativas, the Sistema Nacional Anticorrupción, and all applicable federal and state anti-corruption statutes; and
(d) any other laws prohibiting bribery, corruption, kickbacks, facilitation payments, influence peddling, or improper advantages.
6.2 No Party shall, directly or indirectly, offer, promise, authorize, give, request, receive, or accept any bribe or improper financial or other advantage, including:
(a) payments or gifts to any government official, public servant, candidate for political office, or employee of a state-owned entity;
(b) commercial bribery or kickbacks offered to any private individual or entity;
(c) facilitation or “grease” payments (whether permitted under local law or not);
(d) any benefit intended to improperly obtain or retain business, secure an advantage, or influence a decision.
6.3 At the request of the other Party, each Party shall provide periodic written certifications confirming compliance with this Anti-Bribery and Anti-Corruption Clause.
6.4 Each Party shall prohibit retaliation against any employee or individual who, in good faith, reports concerns or suspected violations of this Clause.
7. Cybersecurity measures
7.1 The Seller shall implement reasonable cybersecurity measures to protect its systems and data related to the Products and Services provided under this Contract. However, the Seller shall not be liable for any damages arising from cyber attacks, including but not limited to data breaches, unauthorized access, system disruptions, or denial of service incidents, except to the extent such damages are caused by Seller’s gross negligence or willful misconduct. The Buyer acknowledges that cybersecurity threats are pervasive with continually evolving tactics and agrees to cooperate with the Seller to support and maintain a secure operating environment.
7.2 Buyer shall implement and maintain administrative, technical, and physical safeguards that meet or exceed industry-standard cybersecurity practices, including:
(a) access controls, authentication measures, and password management;
(b) up-to-date firewalls, antivirus, anti-malware, and intrusion detection systems;
(c) regular installation of security patches and software updates;
(d) secure data storage, encryption, and secure transmission protocols for any data associated with AMI systems, equipment, or services; and
(e) employee training programs to ensure secure handling of credentials, systems, and data.
7.3 Buyer agrees to the following restrictions:
(a) Buyer shall not share any AMI-issued credentials, passwords, API keys, log-ins, or access tokens with third parties or unauthorized personnel.
(b) Buyer shall ensure that only authorized individuals with a strict need-to-know are permitted access to AMI platforms, software, equipment dashboards, or any other AMI digital environment.
(c) Buyer shall not attempt to circumvent, disable, reverse-engineer, or otherwise interfere with AMI’s security controls, access limitations, or authentication technologies.
(d) Buyer shall immediately revoke internal access credentials for any personnel who no longer require access or whose employment has been terminated.
Unauthorized use or sharing of AMI system access constitutes a material breach of the Agreement.
7.4 Buyer shall promptly notify AMI in writing within 48 hours of becoming aware of any actual or suspected:
(a) data breach, unauthorized access, or compromise involving AMI systems, equipment, or data;
(b) compromise of Buyer’s network or devices used to access AMI systems;
(c) loss, theft, or unauthorized disclosure of AMI credentials or user accounts; or
(d) cyberattack, ransomware event, or intrusion affecting AMI-related information.
Buyer shall cooperate fully with AMI in the investigation, containment, mitigation, and remediation of any such incident.
Notification shall include available details about the nature, scope, and impact of the incident, without violating legal restrictions or jeopardizing security.
7.5 Buyer shall ensure compliance not only for itself but also for all personnel, subcontractors, vendors, or agents who may have access to AMI data or systems.
8. Confidentiality
8.1 Seller and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. “Confidential Information” means (a) information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within twenty (20) days after the oral or visual disclosure. In addition, prices for Products and Services shall be considered Seller’s Confidential Information.
8.2 Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and use of Products and Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) Buyer may disclose Confidential Information to lenders as necessary for Buyer to secure or retain financing needed to perform its obligations under the Contract, and (d) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information. Seller may also retain one archive copy of Buyer’s Confidential Information.
8.3 The obligations under this Article 6 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.
8.4 Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither Buyer nor Seller shall make any public announcement about the Contract without prior written appervaproval of the other party. As to any individual item of Confidential Information, the restrictions under this Article 6 shall expire five (5) years after the date of disclosure. Article 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.
9. Intellectual Property
9.1 Product(s) sold hereunder may contain or be accompanied by Software and, excepts as otherwise expressly provided herein, all references to “Products” shall be deemed to include the accompanying Software when specified in the Contract, provided nothing herein shall be construed as the sale of or passage of title in, any Software or any other intellectual property.
9.2 Seller warrants that any Product (or part thereof) manufactured by Seller shall be free of any rightful claim by a non-affiliated third party (a “Claim”) alleging that Products or Services furnished under this Contract infringe a patent in effect in the country of the Site (provided there is a corresponding patent issued by the U.S., Mexico or an EU member state), or any copyright or trademark registered in the country of the Site, provided that Buyer (a) promptly notifies Seller in writing of the Claim, (b) makes no admission of liability and does not take any position adverse to Seller, (c) gives Seller sole authority to control defense and settlement of the Claim, and (d) provides Seller with full disclosure and reasonable assistance as required to defend the Claim.
9.3 Section 7.1 shall not apply and Seller shall have no obligation or liability with respect to any Claim based upon (a) Products or Services that have been modified, or revised, (b) the combination of any Products or Services with other products or services when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim, (d) unauthorized use of Products or Services, or (e) Products or Services made or performed to Buyer’s specifications.
9.4 Should any Product or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product or Service, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products or Services and refund the price received by Seller attributable to the infringing Products or Services.
9.5 Article 7 states Seller’s exclusive liability for intellectual property infringement by Products and Services.
9.6 Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by Seller in the performance of this Contract, whether alone or with any contribution from Buyer, shall be owned exclusively by Seller. Buyer agrees to deliver assignment documentation as necessary to achieve that result.
9.7 If Seller contracts with Buyer with the authorization of Seller to provide Software to a third-party customer, the terms of the AMI End User License Agreement (EULA) shall apply whether provided in a written and/or click-through agreement.
10. Software License (applicable to all Software from Seller)
10.1 Subject to the terms of these terms, Licensor hereby grants to Licensee a non-transferrable and nonexclusive license to use Software and Documentation, including upgraded, modified, or enhanced versions, and to use authorized third party-software, all for Licensee’s internal business purposes only.
10.2 Licensee has no right to (i) lease, rent, transfer, distribute, sublicense, timeshare, or allow third parties to access Software, Documentation, or third-party software, agreement; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to reconstruct or discover the source code of the Software or third-party software; (iii) pledge Software or third-party Software as collateral or otherwise, or encumber such Software or third-party software with any lien or security interest; or (iv) remove any Product identification, copyright, trademark, or other notice from Software, Documentation or third-party software. Licensee shall use any technical information delivered by Licensor only for technical information as Proprietary Information (defined below). Any reverse engineering of Software shall void any warranties or indemnification obligations of Licensor and shall automatically release Licensor from any obligation to provide support services under this or any separate agreement.
10.3 Certain software Licensor provides to Licensee may contain third-party software and its source code may be governed by separate copyright notices and license provisions, which may be found or identified in Documentation or on the media delivered with Software and which are incorporated by reference into this License. Licensee shall not modify or combine Software and/or any third-party software in any manner that could cause, or could be interpreted or asserted to cause, Software or any modifications thereto to become subject to the terms of any license applicable to third party software. All third-party software provided hereunder is bundled with Products and licensed for use with such Products only.
10.4 Licensee shall only have the right to install and use a single copy of Software and third-party software on a single computer workstation for use by a single user.
10.5 Licensee may make one (1) copy of Software, Documentation, and third-party software for backup purposes only. Licensee must reproduce and include all proprietary rights and copyright notices on any backup copies. Except as authorized under this License, no copies of Software, documentation, or third-party software may be made by Licensee or any third party; provided, however, Licensee may print on-line Software and/or documentation for its own internal use, provided the maximum number of copies may not exceed the number of users licensed hereunder.
10.6 This License does not obligate Licensor to provide maintenance and support on any Software or third-party software licensed hereunder. Support services are available under separate agreement. If Software is an upgrade of a previous version (provided such upgrade was obtained under a separate support services agreement with Licensor or a Licensor authorized distributor), Licensee may use the upgraded Software only in accordance with this License.
10.7 Software, Documentation, and third-party software shall be considered accepted by Licensee upon receipt.
10.8 This License is effective until terminated. Licensor may terminate this License immediately if Licensee fails to comply with any of the terms and conditions herein. The license for any Software or third-party software provided with leased equipment shall terminate concurrently with termination of the lease. Upon termination, Licensee shall (a) cease using Software, Documentation, and third-party software and (b) certify to Licensor within one (1) month of the termination that Licensee has destroyed or returned to Licensor Software, Documentation, and third-party software, and all copies thereof.
10.9 All Software, Documentation, and third-party software are licensed and not sold. Licensee agrees that Licensor or its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software, Documentation, and third-party software, including any Derivative Works thereof regardless of the source of development, including but not limited to cases where Licensee engages a third party to perform such development and any corrections, bug fixes, and updates to such Software, Documentation, third-party software, or Derivative Works.
10.10 Therefore, to the extent that any Derivative Works of Licensor’s proprietary Software or of third-party
10.11 Notwithstanding the foregoing, Licensor grants Licensee a “right to use” license to use any Software or third-party software Derivative Works for internal business purposes only under the same terms and conditions that apply to Software, Documentation, or third-party software under Article 2 herein.
10.12 Licensor warrants for Licensee’s benefit along that under normal use the media in which Software is embedded shall be free from defects in material and workmanship, for a period of ninety (90) from the date of delivery of the original Software (Warranty Period).
10.13 Licensor warrants, for Licensee’s benefit alone, that during the Warranty Period If, during by an incorrect operation of the unmodified computer code in Software or an incorrect statement or diagram in Documentation that produces incorrect results), Licensor will use commercially reasonable efforts to correct such Error, provided Licensee furnishes Licensor with the following: (a) written notice of the Error, including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which the Error occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analyzing the Error. If Licensor is unable, after commercially reasonable efforts, to correct the Error, Licensee’s sole remedy shall be termination of this License and a refund of the license fees allocable to the specific nonconforming Software that have been paid by Licensee to Licensor hereunder.
10.14 The two proceeding sections provide (8.12 and 8.13) the exclusive remedies for all claims based on failure of or defect in Software and Documentation whether Error arises before, during, or after the applicable Warranty Period and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability, or otherwise. The warranties provided in Article 7 are exclusive and are in lieu of all other warranties, conditions, and guarantees whether written, oral, implied, or statutory. NO IMPLIED STATUTORY WARRANTY OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR ERRORS OR ITS USE WILL BE UNINTERRUPTED.
10.15 Any remedial steps taken by Licensor hereunder shall not extend the applicable Warranty Period.
10.16 Except as expressly authorized by Licensor in writing, all third-party software shall carry only the warranties provided by the owners thereof and Licensor gives no warranties for such third-party software.
10.17 All information concerning or embedded in Software (including but not limited to source code, object code, and training materials), Documentation, and third-party software is confidential, and the property of information is marked as Proprietary Information. Proprietary Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amounts of time and money.
10.18 Licensee acknowledges: (a) any use of Software, Documentation, or third-party software in a manner inconsistent with this License or (b) any other misuse of Proprietary Information of Licensor (or its suppliers), will cause immediate irreparable harm to Licensor (or its suppliers) for which there is no adequate remedy at law. Licensee agrees that Licensor (or its suppliers) shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by Licensee. The parties agree and stipulate that Licensor shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $1,000 shall be sufficient. Nothing contained herein shall limit Licensor’s right to any remedies at law, including the recovery of damages from Licensee for breach of this License.
10.19 Licensor may make changes to this License. All such changes shall be specified in an Exhibit which shall be attached to the License and fully incorporated therein. Unless otherwise agreed in writing, the following order of precedence shall apply if there is any conflict between the terms of the incorporated Exhibit, the License, and/or the Terms and Conditions: (i) the Exhibit, (ii) the License, (iii) the Terms and Conditions.
11. Indemnity
11.1 Each of Buyer and Seller (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller’s indemnity obligation, no part of the Products or Site is considered third party property.
12. Insurance
12.1 During the term of the Contract, Seller shall maintain for its protection the following insurance coverage: (i) Worker’s Compensation, Employer’s Liability and other statutory insurance required by law with respect to work related injuries or disease of employees of Seller in such form(s) and amount(s) as required by applicable laws; (ii) Automobile Liability insurance with a combined single limit of $2,500,000.00 USD, and (iii) Commercial General Liability or Public Liability insurance for bodily injury and property damage with a combined single limit of $2,500,000.00 USD. If required in the Contract, Seller shall provide a certificate of insurance reflecting such coverage.
13. Excusable Events
13.1 Seller shall not be liable or considered in breach of its obligations under this Contract to the extent that Seller’s performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, pandemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or Buyer’s contractors or suppliers. If an excusable event occurs, the schedule for Seller’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment.
14. Termination and Suspension
14.1 Buyer may terminate the Contract (or the portion affected) for cause if Seller (i) becomes Insolvent/Bankrupt, or (ii) commits a material breach of the Contract which does not otherwise have a specified contractual remedy, provided that: (a) Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate the Contract, and (b) Seller shall have failed, within 30 days after receipt of the notice, to commence and diligently pursue cure of the breach.
14.2 If Buyer terminates the Contract pursuant to Section 11.1, (i) Seller shall reimburse Buyer the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete that scope, and (ii) Buyer shall pay to Seller (a) the portion of the Contract Price allocable to Products completed, (b) lease fees incurred, and (c) amounts for Services performed before the effective date of termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller’s then-current standard time and material rates.
14.3 Seller may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer (i) becomes Insolvent/Bankrupt, or (ii) materially breaches the Contract, including, but not limited to, failure or delay in Buyer providing Payment Security, making any payment when due, or fulfilling any payment conditions.
14.4 If the Contract (or any portion thereof) is terminated for any reason other than Seller’s default under Section 11.1, Buyer shall pay Seller for all Products completed, remaining lease fees owed and Services performed before the effective date of termination, plus expenses reasonably incurred by Seller in connection with the termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller’s then-current standard time and material rates. In addition, Buyer shall pay Seller a cancellation charge equal to 80% of the Contract Price applicable to uncompleted made-to-order Products and 15% of the Contract Price applicable to all other uncompleted Products.
14.5 Either Buyer or Seller may terminate the Contract (or the portion affected) upon twenty (20) days advance notice if there is an excusable event (as described in Article 10) lasting longer than one hundred and twenty (120) days. In such case, Buyer shall pay to Seller amounts payable under Section 11.4, excluding the cancellation charge for uncompleted Products.
14.6 Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.
15. Compliance with Laws, Codes and Standards
15.1 Seller shall comply with laws applicable to the manufacture of Products and its performance of Services. Buyer shall comply with laws applicable to the application, operation, use and disposal of the Products and Services.
15.2 Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice.
15.3 Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer’s obligations, except that Seller shall obtain any license or registration necessary for Seller to generally conduct business and visas or work permits, if any, necessary for Seller’s personnel. Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits.
16. Health and Safety
16.1 Buyer shall maintain safe working conditions at the Site, including, without limitation, implementing appropriate procedures regarding hazardous conditions, confined space entry, and energization and de-energization of power systems (electrical, mechanical, and hydraulic) using safe and effective lock-out/tag-out (“LOTO”) procedures including physical LOTO or a mutually agreed upon alternative method.
16.2 Buyer shall timely advise Seller in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures. Without limiting Buyer’s responsibilities under Article 13, Seller has the right but not the obligation to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site.
16.3 Operation of Buyer’s equipment is the responsibility of Buyer. Buyer shall not require or permit Seller’s personnel to operate Buyer’s equipment at Site.
16.4 Buyer will make its Site medical facilities and resources available to Seller personnel who need medical attention.
16.5 Seller has no responsibility or liability for the pre-existing condition of Buyer’s equipment or the Site. Prior to Seller starting any work at Site, Buyer will provide documentation that identifies the presence and condition of any hazardous conditions existing in or about Buyer’s equipment or the Site that Seller may encounter while performing under this Contract. Buyer shall disclose to Seller industrial hygiene and environmental monitoring data regarding conditions that may affect Seller’s work or personnel at the Site. Buyer shall keep Seller informed of changes in any such conditions.
17. Changes
17.1 Each party may at any time propose changes in the schedule or scope of Products or Services. Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed.
17.2 The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller’s proposal date, in Buyer’s Site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. However, no adjustment will be made on account of a general change in Seller’s manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at Seller’s time and material rates.
17.3 It shall be acceptable and not considered a change if Seller delivers a Product that bears a different, superseding, or new part or version number compared to the part or version number listed in the Contract.
18. Limitations of Liability
18.1 The total liability of Seller for all claims of any kind arising from or related to the formation, performance or breach of this Contract, or any Products or Services, shall not exceed the (i) Contract Price, or (ii) if Buyer places multiple order(s) under the Contract, the price of each particular order for all claims arising from or related to that order and ten thousand US dollars (US $10,000) for all claims not part of any particular order.
18.2 Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, claims arising from cyber attacks or cybersecurity incidents (including but not limited to data breaches, unauthorized access, system disruption, or denial of service), or claims of Buyer’s customers for any of the foregoing types of damages.
18.3 All Seller liability shall end upon expiration of the applicable warranty period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such warranty period.
18.4 Seller shall not be liable for advice or assistance that is not required for the work scope under this Contract.
18.5 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third party, Buyer shall either (i) indemnify and defend Seller from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Article 15, or (ii) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all the limitations included in this Article 15.
18.6 For purposes of this Article 15, the term “Seller” means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Article 15 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller’s liability.
19. Governing Law and Dispute Resolution
19.1 This Contract shall be governed by and construed in accordance with the substantive laws of the State of New York (excluding the CISG) without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction (the “Governing Law”).
19.2 All disputes arising in connection with this Contract, including any question regarding its existence or validity shall be resolved in accordance with this Article 17. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice. If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed, either party may commence court proceedings. With respect to any claim arising out of this Agreement, each party irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and any United States District Court located in New York City and each party irrevocably waives any objection which it may have at any time to the laying of venue of any suit, action or proceeding brought in any such court has been brought in any inconvenient forum and further irrevocably waives the right to object, with respect to such claim, suit, action or proceeding brought in any such court that such court does not have jurisdiction over such party. Each of the parties further consents and agrees that such party may be served with process in the same manner as a notice under the Contract.
19.3 Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Contract, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Article 6 or to seek interim or conservatory measures. Monetary damages shall only be available in accordance with Section 16.2.
20. Inspection and Factory Tests
20.1 Seller will apply its normal quality control procedures in manufacturing Products. Seller shall attempt to accommodate requests by Buyer to witness Seller’s factory tests of Products, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work.
21. Bank Account Change Notice
AMI expressly states that it does not request changes to deposit or payment bank accounts by email. Any notice purporting to modify AMI’s banking information shall be deemed invalid unless it fully complies with the verification requirements established herein.
21.1 Any modification, update, or replacement of the bank account details designated by the Company for payment purposes shall only be valid and enforceable if communicated through an official letter on AMI’s letterhead, duly signed by both the Chief Financial Officer (CFO) and the Chief Executive Officer (CEO). If such notification is transmitted from an official AMI email account, it must in all cases be accompanied by the aforementioned official letter and shall be subject to additional verification measures, including but not limited to confirmation through a scheduled videoconference, telephone call, or other Company-approved authentication method. No email communication, informal notice, or instruction that lacks these formalities and the required multi-factor verification shall be considered sufficient to authorize or validate any change to AMI’s banking information.
21.2 Clients and counterparties remain fully responsible for verifying any request related to changes in payment instructions. AMI shall not be liable for losses or misdirected payments resulting from failure to comply with this verification process.
22. General Clauses
22.1 The Parties expressly agree that this Contract constitutes the sole and exclusive agreement governing the purchase and sale of the goods and/or services described herein. No oral or written representation or warranty not contained in this Contract shall be binding on either party. No purchase order, acknowledgment, acceptance, portal notice, general terms, or any other document issued by Buyer—whether before or after the execution of this Contract—shall modify, supplement, or prevail over this Contract. Any such Buyer terms are hereby expressly rejected. Buyer’s and Seller’s rights, remedies and obligations arising from or related to Products and Services sold under this Contract are limited to the rights, remedies and obligations stated in this Contract.
22.2 No modification, amendment, rescission, or waiver, nor any terms and conditions automatically generated, displayed, or transmitted by Buyer’s internal systems (including ERP platforms, procurement portals, websites, hyperlinks, click-through prompts, pop-up notices, or embedded terms) are null, void, and without legal effect, unless expressly agreed in a separate written document signed by both Parties’ duly authorized representatives.
22.3 Seller’s delivery of goods, provision of services, commencement of work, or issuance of an invoice shall not be construed as acceptance of any Buyer terms, whether written, electronic, implied, or system-generated. Only the terms of this Contract shall apply.
22.4 Accessing, logging into, or using any Buyer portal or platform shall not constitute acceptance of any Buyer-imposed terms. Any “click-wrap,” “browse-wrap,” web-posted, or electronically presented conditions shall be binding only if they are:
(i) separately identified,
(ii) expressly negotiated, and
(iii) signed in writing by duly authorized representatives of both Parties.
Mere electronic acknowledgment, login, or system-required click-acceptance shall not amend or override this Contract.
22.5 The Parties acknowledge and agree that the foregoing provisions rejecting Buyer-imposed terms shall be upheld and enforceable under:
a) U.S. law, including Uniform Commercial Code (UCC §2-207), under which additional or different terms proposed by Buyer are deemed proposals that are rejected unless expressly accepted in writing by Seller;
b) EU law, including Directive 93/13/EC and applicable national contract laws, which require express, mutual consent to modify a commercial agreement and prohibit unilateral imposition of terms; and
c) Mexican law, including the Código de Comercio and Código Civil Federal, under which contract terms may only be modified by mutual written agreement, and unilateral or system-generated terms have no binding effect without express acceptance.
Accordingly, Buyer’s system-generated, preprinted, or electronically presented terms shall not modify this Contract unless expressly agreed to in a mutual written amendment executed by both Parties.
22.6 During the term of this Agreement and for three (3) years thereafter, the Buyer shall not directly or indirectly for Buyer or on behalf of any other person or business entity for the benefit of Buyer solicit, recruit, entice or persuade any employees of Seller who had contact with Buyer pursuant to the services identified in this Agreement to become employees or contractors of the Buyer. Recognizing that compensatory monetary damages resulting from breach of this section would be difficult to prove, the Buyer agrees that breach will render it liable to Seller for liquidated damages in the amount of one-hundred fifty thousand dollars (USD $150,000) for each such event breach.
22.7 Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any party without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation. Seller may subcontract portions of the work, so long as Seller remains responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.
22.8 Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer’s voting rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding Seller’s Confidential Information.
22.9 If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.
22.10 The following obligations shall survive the termination or cancellation of the Contract, regardless of the reason for termination and for as long as necessary to give them full effect:
(a) Software License Survival: All provisions governing the continued use, restrictions, or termination of any software licenses granted under this Contract.
(b) Intellectual Property: All rights, protections, assignments, and restrictions relating to Intellectual Property, including ownership of Deliverables, pre-existing IP, and any improvements.
(c) Non-Solicitation: All non-solicitation obligations applicable to either Party, including restrictions on hiring or engaging personnel involved in the Project or Contract-related activities.
(d) Confidentiality: All confidentiality and non-disclosure obligations, including protection of trade secrets and proprietary information, which shall survive for the period stipulated in this Contract or for the maximum term permitted by applicable law.
(e) Payment Obligations: All outstanding payment obligations, including fees, reimbursements, or other amounts accrued prior to termination, until fully satisfied.
(f) Bank Account Verification Clause: All obligations related to the verification of banking information, restrictions on unauthorized changes, and procedures for validating bank account modifications.
(g) Limitation of Liability: All provisions limiting or disclaiming liability of either Party shall remain in force to the fullest extent permitted by law.
22.11 Except as provided in Article 18 (Limitations of Liability), this Contract is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Contract.
22.12 All notices, demands or other communications required or permitted to be given under this Agreement shall be in writing and in the English language and shall be deemed delivered to the parties (a) on the date sent by electronic transmission or (b) on the date of delivery by courier service for written documents.
22.13 The English version of these Terms & Conditions prevails over any translation.
23. This contract may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures, including signatures executed via PDF, DocuSign, or any other reliable electronic means, shall have the same legal validity, force, and effect as handwritten signatures in accordance with the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN Act) and the Uniform Electronic Transactions Act (UETA), as adopted by the relevant state.
