1. DEFINITIONS
1.1 In these Conditions, unless the subject or context otherwise requires, the following words and expressions have the following meanings respectively ascribed to them:
1.1.1 “
Additional Charge” means a charge payable by the Customer for additional services outside the scope of the Services in accordance with Ampd Energy’s prevailing rates for such services including without limitation, the supply of spare parts;
1.1.2 “
Agreement” means the agreement between Ampd Energy and the Customer for the purchase and sale of Goods and/or supply of Services:
(a) the Customer’s Order issued by the Customer to Ampd Energy on the same terms as the Quotation; and
(b) these Conditions.
No term or condition of the Customer’s Order additional to or different from these Conditions shall become part of the Agreement unless explicitly agreed to in writing by Ampd Energy. Prices, specifications and any delivery date referenced in the Quotation are for information only and shall not be binding on Ampd Energy until all technical requirements have been agreed and Ampd Energy has accepted the Customer’s Order.
1.1.3 “
Ampd Energy” means the Ampd legal entity specified in the Quotation;
1.1.4 “
Business Day” means any day (other than a Saturday, Sunday or public holiday) on which commercial banks are normally open for business (other than solely for trading and settlement) in the jurisdiction where Ampd Energy is incorporated;
1.1.5 “
Conditions” means these terms and conditions for the purchase and sale of Goods and/or supply of Services, which are incorporated into and form part of the Agreement;
1.1.6 “
Confidential Information” has the meaning given in Clause 12.1;
1.1.7 “
Customer” means the person, firm or company who places the Customer’s Order for Goods and/or Services and is named in the Quotation;
1.1.8 “
Customer’s Order” means the written order placed by the Customer for the purchase and sale of Goods and/or supply of Services; and documents (if any) incorporated by express reference on the face of the Customer’s Order;
1.1.9 “
ex Works” shall be construed in accordance with Incoterms 2020 published by the International Chamber of Commerce;
1.1.10 “
Goods” means the goods (including any instalment of the goods or any parts of them) which Ampd Energy is to sell to the Customer in accordance with the Agreement and which may (without limitation) comprise or include Software;
1.1.11 “
Operating Manual(s)” means any documents including operation and maintenance manuals which provide guidance to the Customer on how to use and operate Goods;
1.1.12 “
OSS” has the meaning given in Clause 6.4;
1.1.13 “
Party” means Ampd Energy or the Customer and “
Parties” means both of them;
1.1.14 “
Quotation” means the quotation provided by Ampd Energy to the Customer to which these Conditions are attached (Quotations do not constitute an offer, and automatically expire if the Customer does not place an order with Ampd Energy within thirty (30) days, or such other period as stated in the specific Quotation), unless otherwise agreed in writing by Ampd Energy);
1.1.15 “
Services” means the services described in the Quotation which Ampd Energy is to supply to the Customer in accordance with this Agreement;
1.1.16 “
Site” means the address for delivery, that part of the address for delivery where Goods are to be installed and operated, or where any Services are to be performed.
1.1.17 “
Software” means the software and firmware items which are comprised or included in or related to the Supplies; and
1.1.18 “
Supplies” means Goods and/or Services.
1.2 References to “Clauses”, “Schedules” and “Appendices” are to clauses of, and the schedules and the appendices to, these Conditions; references to “Paragraphs” are to paragraphs of the relevant Schedule.
1.3 Any reference to a statutory provision shall include such provision and any regulations made in pursuance there of as from time to time modified or re-enacted whether before or after the date of this Agreement so far as such modification or re-enactment applies or is capable of applying to any transactions entered into prior to the date of this Agreement and (so far as liability thereunder may exist or can arise) shall include also any past statutory provisions or regulations (as from time to time modified or re-enacted) which such provisions or regulations have directly or indirectly replaced.
1.4 The headings are for convenience only and shall not affect the interpretation of this Agreement.
1.5 References to a person include any company, limited liability partnership, partnership, business trust or unincorporated association (whether or not having separate legal personality).
1.6 Unless the context otherwise requires or permits, references to the singular number shall include references to the plural and vice versa, references to a particular gender shall include all genders, and references to natural persons(also referred to as individuals) shall include bodies corporate and vice versa.
1.7 Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. APPLICATION OF CONDITIONS
2.1 Save as otherwise provided herein, these Conditions shall apply to all Quotations and Customer’s Orders accepted by Ampd Energy and to all Goods sold by Ampd Energy to a Customer. In respect of a sale of Goods, Ampd Energy shall sell, and the Customer shall purchase, Goods in accordance with the Agreement.
2.2 Unless otherwise specified in writing by Ampd Energy, so far as applicable, these Conditions also apply to the provision of any Services accompanying the sale of, or provided in relation to, Goods and, where the context allows, any reference to the sale of Goods includes the provision of such Services.
2.3 In addition to the main body of these Conditions:
2.3.1 Schedule1 sets out the additional Conditions in respect of a sale of Goods by Ampd Energy to the Customer; and
2.4 These Conditions may not be varied or cancelled unless agreed in writing by Ampd Energy.
2.5 Subject to any variations under Clause 2.4, these Conditions shall apply to the Agreement to the exclusion of any other conditions or terms which are set out in any offer, Customer’s Order or other document submitted by or on behalf of the Customer or which are implied by law, trade, custom, practice or course of dealing.
2.6 In the event of any inconsistency between these Conditions and other documents forming part of the Agreement, the following order of priority shall apply:
2.6.1 these Conditions; and
2.6.2 the Customer’s Order.
3. CUSTOMER’S ORDERS
3.1 By submitting the Customer’s Order to Ampd Energy, the Customer agrees to be subject to these Conditions in their entirety.
3.2 The Customer’s Order constitutes an offer by the Customer to purchase the Supplies in accordance with these Conditions.
3.3 The Customer’s Order shall only be deemed to be accepted when Ampd Energy issues a written acceptance of the Customer Order to the Customer.
3.4 The Customer shall be responsible to Ampd Energy for ensuring the accuracy of the terms and any information provided in the Customer’s Order (including any applicable specification or documents).
3.5 No Customer’s Order which has been accepted by Ampd Energy may be cancelled, varied or suspended by the Customer except with the agreement in writing of Ampd Energy and on terms that the Customer shall indemnify Ampd Energy in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Ampd Energy as a result of the cancellation, variation or suspension.
3.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions or the Quotation.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 In respect of a sale of Goods, notwithstanding delivery of and the passing of title in any Goods and subject to Clause 6.1, nothing in these Conditions or the Agreement shall have the effect of granting or transferring to, or vesting in, the Customer any intellectual property rights in or to any Supplies.
4.2 Except as expressly otherwise agreed in the Agreement, all intellectual and industrial property rights in the Supplies, in all documents provided by Ampd Energy in connection with the Agreement and in all software, hardware, know how, and other things provided with or as part of the Supplies shall be the exclusive property of and vest in Ampd Energy or its licensors at all times. The Customer shall not reverse engineer, decompile, or reproduce the Supplies or parts thereof and shall ensure that third parties will not reverse engineer, decompile or reproduce the Supplies in each case to the extent mandatory law does not prohibit such limitation.
4.3 If a third party asserts a claim for breach of its intellectual property rights arising from the supply or use of Goods, the Customer will immediately inform Ampd Energy and Ampd Energy will be solely responsible for the defence, resolution and settlement of any such claim. The Customer will at Ampd Energy’s cost and request render such reasonable assistance as Ampd Energy requires in defending any such claim. In no circumstances will the Customer acknowledge or concede the validity of any such claim except with Ampd Energy’s express written consent. If any such claim against Ampd Energy succeeds, Ampd Energy will at its option use its best endeavours to obtain a right to use or license any such intellectual property rights or modify Goods or replace them at its cost.
4.4 The Customer will indemnify Ampd Energy for and in respect of claims by any third party in relation to Goods which arise from or can be attributed to the special processes, requirements or specifications of the Customer, including the use or transfer of designs, logos, trademarks and techniques, equipment and tools in the manufacture, production and labelling of Goods.
5. EXPORTS AND EMBARGOES
5.1 This section applies where the Customer undertakes export, re-export or resale of Goods.
5.2 The Customer warrants and undertakes to Ampd Energy:
5.2.1 the Customer shall comply with all the (re-) export control regulations applicable jurisdiction and it shall obtain all necessary licences, shipping documents and authorisations required under such legislation in respect of such exports;
5.2.2 the Customer shall not export or re-export Goods to a country that is subject to embargo or sanction without having obtained all necessary authorisations from the relevant authorities;
5.2.3 the Customer shall not supply Goods to parties, organisations or entities subject to embargoes, sanctions or other restrictions, or to parties, organisations or entities if there is reason to believe that they fail to fully comply with all applicable national or international regulations, sanctions and embargoes;
5.2.4 Goods are not intended to be used in connection with any sectors or use that is banned or subject to restrictions under any laws or regulations, unless all required authorisation by the relevant bodies have been obtained;
5.2.5 all transfer and receipt of funds by the Customer comply with all national and international regulations;
5.2.6 to enable authorities or Ampd Energy to conduct compliance audits, the Customer upon request by Ampd Energy, shall promptly provide Ampd Energy with all relevant licences and authorisations, information as to the identity of the customer to whom Goods are supplied, the destination and intended use of Goods and the financial institutions or entities used to collect and issue payments;
5.2.7 the Customer shall notify Ampd Energy if the Customer suspects that any person the Customer has supplied Goods to may not be complying with any embargo, sanction or export control regulation; and
5.2.8 the Customer shall indemnify and hold harmless Ampd Energy from and against any and all claims, proceedings, actions, fines, losses, costs and damages arising out of or relating to any non-compliance by the Customer with any of the above undertakings or breach of any relevant export control regulations or sanction or embargo.
5.3 The Customer shall indemnify and hold harmless Ampd Energy from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with the above undertakings by the Customer set out in Clause 5.2, and the Customer shall compensate Ampd Energy for all losses and expenses resulting thereof.
5.4 The Customer’s compliance with all the above undertakings is a condition of Ampd Energy continuing to supply the Supplies to the Customer and Ampd Energy has the right to suspend such supply and terminate this Agreement where Ampd Energy has reason to believe that the above undertakings are not being complied with or that any obligation under this Agreement would constitute a breach of any national or international regulations or any embargo or sanction and Ampd Energy shall have no liability to the Customer or any third party by way of damages or otherwise in respect of such suspension or termination.
6. SOFTWARE
6.1 Where applicable, software is licensed under the license terms contained in the software documentation, the software itself or in attached license terms (in each case the “
Applicable License Conditions”), which shall prevail over this Clause 6. If such Applicable License Conditions are not provided, Ampd Energy grants to the Customer a non-exclusive, non-transferable licence to use the Software delivered with the Supplies for the purposes stated in the Operating Manuals of the Supplies or, if no such Operating Manuals are provided, for the purpose of operation and routine maintenance of the Supplies during the validity of the Agreement subject to the provisions of this Clause 6. Such licence will terminate without notice upon the expiration or earlier termination of the Agreement.
6.2 The Customer acknowledges that the Software contains valuable confidential and proprietary information and trade secrets of Ampd Energy or its licensors, and undertakes that it (including its agents, employees and/or servants) shall not, without Ampd Energy’s prior consent in writing, disclose the details of the Software to third parties.
6.3 All rights, title and interest in the Software, including revisions and updated versions, shall remain the property of Ampd Energy or its licensors. All rights to the Software not expressly granted in the Agreement shall remain reserved.
6.4 In the event the Software contains third party components which Ampd Energy has licensed under generally used open-source software (“
OSS”) licence terms, these applicable OSS licence terms shall prevail over this Clause 6 with respect to the OSS components. Ampd Energy will, on request by the Customer, provide the applicable OSS license terms together with the Supplies. If necessary and where reasonably requested by Ampd Energy, the Customer agrees to sign a licence agreement with the licensor of the Software.
6.5 The Customer shall not make any back-up copies of the Software without Ampd Energy’s prior consent in writing.
6.6 The Customer shall not use the Software on hardware other than the agreed equipment without Ampd Energy’s prior consent in writing.
6.7 The Customer shall not disassemble or otherwise modify the Software without express agreement in writing from Ampd Energy.
6.8 Ampd Energy may terminate the Customer’s licence upon notice of breach of these licence terms. The Customer must destroy all copies of the Software immediately upon notice of termination.
6.9 Without prejudice to the Customer’s intellectual property rights and subject to compliance with applicable law, Ampd Energy may for its own business purposes collect, use, modify, and copy any data received in connection with the Supplies.
7. LIMITATION OF LIABILITY
7.1 Nothing in these Conditions excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law which cannot lawfully be excluded, restricted or modified.
7.2 For all Goods and/or Services supplied by Ampd Energy, whether in respect of the purchase and sale of Goods and/or supply of Services:
7.2.1 Ampd Energy accepts no liability for:
(a) any economic loss, loss of profit, loss of income, loss of revenue, loss of contracts, loss of business, loss of business opportunity,
(b) or loss of goodwill, loss of data; or
(c) any indirect, incidental, special or consequential losses or damages,
in each case arising from or in connection with its performance or non-performance under the Agreement and whether based upon contract, tort, or any other legal theory; and
7.2.2 Ampd Energy’s maximum aggregate liability for any cause and under any head of liability will not in any circumstances exceed the total price paid by the Customer for those Goods and/or Services.
7.3 These Conditions describe the full extent of Ampd Energy’s obligations and liabilities in respect of the provision of the Supplies. Except as expressly stated or referred to in this Agreement or as otherwise specifically provided in writing by Ampd Energy, there are no guarantees, conditions, warranties or other terms that bind Ampd Energy nor will Ampd Energy otherwise be liable in contract, tort (including negligence) or for breach of statutory duty for any loss, damage, cost or expense of any kind.
7.4 If the Customer is not or shall not be the sole end user and ultimate owner of Goods or beneficiary of Services or is procuring them for any joint venture, the Customer shall include a clause in its contract with the end user, ultimate owner or joint venture participants such that Ampd Energy is given the benefit of the indemnities, exclusions and limitations of liability in the Agreement by all such users, owners or participants (which shall apply as if the user, owner or participant were the Customer) and shall indemnify Ampd Energy against claims by them to the extent that Ampd Energy would not be liable to the Customer under the Agreement if the claim had been made by the Customer.
7.5 Ampd Energy does not cover or undertake any liability of any kind in any event for damages incurred from abuse, misuse, alteration or negligence in the use of Goods or any changes to the installation or configuration of Goods not directly authorised by Ampd Energy.
8. FORCE MAJEURE
8.1 Ampd Energy shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Ampd Energy’s obligations in relation to the Supplies, if the delay or failure was due to force majeure. For the purposes of this Clause 8, “force majeure” shall mean any event beyond the reasonable control of Ampd Energy or its subcontractors such as, but not limited to, any act of God, act of government or any authorities, attacks on Ampd Energy’s information technology systems (such as virus attacks, hacker attacks), non-issuance of licences , permits or approval, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events.
8.2 If any delay in performing, or any failure to perform the Agreement is caused by the delay of a subcontractor of Ampd Energy, and is beyond the control and without the fault or negligence of Ampd Energy, Ampd Energy shall incur no liability for such delay.
8.3 In respect of a sale of Goods, where there is force majeure, Ampd Energy is entitled to an extension of the Delivery Date(s) as provided in Paragraph 4 of Schedule 1.
8.4 Without prejudice to the other provisions of the Agreement, where the force majeure continues for more than six (6) months, Ampd Energy shall have the right to terminate the Agreement. In such a situation, Ampd Energy shall be reimbursed for Supplies already performed/delivered, cost of materials or goods reasonably ordered, any other expenditure reasonably incurred in the expectation of completing the Supplies as well as the reasonable cost for removal of Ampd Energy’s equipment and demobilization of personnel.
9. GENERAL
9.1 The Agreement and the documents referred to or incorporated in it constitute the entire agreement between the Parties relating to the subject matter of this Agreement and supersede and extinguish any prior drafts, agreements, undertakings, discussions, correspondence, negotiations, promises, assurances, warranties, representations, arrangements and understandings of any nature whatsoever, whether or not in writing, between the Parties in relation to the subject matter of the Agreement.
9.2 Each of the Parties shall bear their own legal costs and expenses relating to the preparation and execution of the Agreement.
9.3 The Customer shall not assign any of its rights or obligations under the Agreement without the prior written consent of Ampd Energy, such consent to be signed by its authorised representatives. Any attempted delegation or assignment shall be void. Ampd Energy may attach conditions to the giving of its consent.
9.4 Ampd Energy shall be entitled to, in its sole discretion:
9.4.1 transfer, assign, or novate the Agreement or any part of it (including receivables) to an affiliate company (“
Affiliate”), being any legal entity which directly or is indirectly controlled by Ampd Energy, controls Ampd Energy or is controlled by another legal entity which directly or indirectly controls Ampd Energy;
9.4.2 transfer, assign or novate the whole Agreement or a part of it to any third party, in the event of a sale or other transfer of the business or a part of the business of Ampd Energy to a third party; and/or
9.4.3 assign any receivables due from the Customer in respect of the Agreement at any time to any party, without prior notice to the Customer.
The Customer shall be bound by such novation or assignment. The Customer agrees to be a party to any novation or assignment, if so requested by Ampd Energy, and to execute all relevant documents in connection therewith.
9.5 The Agreement shall be binding on and shall ensure for the benefit of the successors and permitted assigns of each of the Parties.
9.6 Ampd Energy may sub-contract the performance of the Agreement or any part of the Agreement without obtaining the prior consent of the Customer.
9.7 In respect of a sale of Goods, any shipment terms quoted in relation to the delivery of the Supplies shall be in accordance with Incoterms 2020 or its latest version as from time to time modified supplemented or revised.
9.8 The Customer shall comply with all relevant laws, rules and regulations affecting its obligations and the performance of the Agreement and shall obtain at its own costs and expenses all necessary permits and licences and shall furnish to Ampd Energy, upon request, information or documentation of the Customer’s compliance, as well as any other information or documentation required to enable Ampd Energy to comply with any laws, rules, regulations and requirements applicable to its performance of the Agreement.
9.9 Any notice required or permitted to be given by either Party to the other under these Conditions shall be in writing and signed by the authorised representatives of the Party addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the Party giving the notice. Notices may be delivered by hand, or by prepaid registered post or by electronic mail (e-mail) and shall be deemed to have been served:
9.9.1 if by hand, at time of delivery;
9.9.2 if by first-class post, three (3) Business Days after posting;
9.9.3 if by airmail, seven (7) Business Days after posting;
9.9.4 if by e-mail, on receipt of a read receipt email from the correct e-mail address, or if acknowledged by the recipient of the e-mail by way of return e-mail.
9.10 No failure to exercise and no delay in exercising on the part of either of the Parties of any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right power or privilege. The rights and remedies provided in the Agreement are cumulative and not exclusive of any of the rights or remedies otherwise provided by law.
9.11 A waiver of any right or remedy under the Agreement or by law is only effective if it is given in writing by the Party waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not constitute a continuing waiver.
9.12 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part such provision shall be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected but shall remain in full force and effect.
9.13 The following clauses shall survive the expiry or termination of the Agreement: Clause 1 (Definitions), Clause 4 (Intellectual Property Rights), Clause 5 (Exports and Embargoes), Clause 7 (Limitation of Liability), Clause 9 (General), Clause 10 (Applicable Law and Dispute Resolution), Clause 12 (Confidentiality), and Clause 13 (Privacy and Personal Data).
9.14 The Parties do not intend that any term of this Agreement will be enforceable by a third party under any law or statue, including the UK
Contracts (
Rights of Third Parties) Act 1999, the
Contracts (Rights of Third Parties) Ordinance Chapter 623 of the Laws of Hong Kong; or the Singapore
Contracts (Rights of Third Parties) Act 2001.
9.15 Nothing in the Agreement is intended to or shall be construed as establishing or implying any partnership of any kind between the Parties.
10. APPLICABLE LAW AND DISPUTE RESOLUTION
10.1 Unless otherwise indicated in the Customer’s Order, the Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the jurisdiction where Ampd Energy is incorporated. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall be excluded.
10.2 If a dispute arises out of or in connection with the Agreement, the responsible representatives of the Parties shall attempt to settle such dispute. Upon request of a Party a senior management representative of each Party shall participate in the negotiations. Each Party shall be entitled to terminate these negotiations by written notification to the other Party at any time.
10.3 Unless otherwise indicated in the Customer’s Order, all disputes arising out of or in connection with this agreement shall be submitted to the International Court of Arbitration of the International Chamber of Commerce (the “ICC”), and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”). For disputes where the total quantum in dispute (including all counterclaims) is less than US$5 million, the tribunal shall consist of one (1) arbitrator to be appointed according to the Rules. For all other disputes, the tribunal shall consist of three (3) arbitrators. Each Party will appoint an arbitrator and the third arbitrator shall be jointly nominated by the other two arbitrators. If such two arbitrators fail to nominate the third arbitrator within 30 days after the confirmation of the second arbitrator pursuant to the Rules, such third arbitrator shall be appointed in the manner prescribed by the Rules. The seat of arbitration shall be the jurisdiction where the Ampd Energy is incorporated.The language to be used in the arbitration proceedings shall be English. The arbitral award is final and binding upon both Parties.
11. ENVIRONMENT, HEALTH & SAFETY
11.1 Ampd Energy and the Customer shall comply with all health and safety laws, regulations and requirements in force at the work area where: (i) Goods need to be installed or (ii) Services need to be provided (hereinafter “Work Area”). Where applicable, the Customer shall provide to Ampd Energy the Work Area at the agreed point in time and shall ensure that the Work Area and the Customer’s facility where the work is to be performed (“
Customer Site”) complies at such time with all aforementioned laws, regulations and requirements, and shall not during the performance of the Agreement cause any risks not in compliance with the aforementioned laws, regulations and requirements.
11.2 In the event there are health or safety risks which may arise out of the Customer’s plant and equipment or which may exist on the Customer Site, including but not limited to hazardous materials (“
Customer Health or Safety Risks”) or there exists any reasonable doubt that the same exist or may be created by or during the work or the Customer has failed to comply with any of its obligations set out in Clause 11.1, then, without limiting its other rights and remedies, Ampd Energy shall be entitled to suspend its work until: (i) the respective Customer Health or Safety Risk has been permanently eliminated or (ii) the addressed reasonable doubt has been proven to be unsubstantiated or (iii) agreed protective and preventive measures have been taken.
11.3 The Customer shall dispose of all waste created on the Customer Site in a timely manner and in accordance with all applicable laws. The Customer shall also be responsible for the timely and lawful disposal of its equipment or parts thereof, which are or become hazardous waste. In all cases, the Customer shall be responsible for decontamination and/or disposal of any radioactive materials or waste.
11.4 The Customer shall indemnify and hold Ampd Energy harmless from and against any claims, losses or damages any employee of Ampd Energy or its subcontractors or any other third party may demand from Ampd Energy and arising out of the realization of any Customer Health or Safety Risks or the disposal of any waste that the Customer is responsible for.
12. CONFIDENTIALITY
12.1 雙方須將所有根據本協議或與本協議有關從另一方獲得的所有資料，並被另一方指定為機密、本質明顯保密；或一方在合理行為期望保密的資料，包括但不限於物品、商品、軟體、服務計劃或任何操作手冊的所有知識產權和工業財產權 (」
機密資訊」) 僅用於本協議的目的，並在以下情況下保留相同的機密性。當事人可向接收方的僱員及合理需要知道該等資料的第三方披露機密資料，但該等僱員和第三方受相等保密義務約束。披露資料的一方應對其僱員或第三方違反此等義務承擔責任。
12.2 本保密義務不適用於以下機密資料：
12.2.1 屬於或成為公共領域的一部分，除非由接收方的錯誤而出現；
12.2.2 由有權進行此類披露的第三方誠意向接收方披露；
12.2.3 由接收方獨立開發，而不依賴機密資料；
12.2.4 接收方在另一方披露之前已知道；或
12.2.5 根據法律要求披露（但接收方有義務及時通知披露的方有關規定）。
12.3 本條第 12 條所載的義務，即使本協議終止後，仍不受任何時間限制，除非資料進入上述公共領域為止。
12.4 每一方都會制定並維持適當的安全措施，以保護其持有的另一方的資料和資料，避免未經授權的存取、使用或複製。
12.5 雙方只有在對方已書面同意發布該等參與的情況下，才能公開其參與協議。
十三.隱私和個人資料
13.1 各方在收集、使用、披露或處理個人資料和個人信息方面，應遵守適用於該方的所有法律和法規。
13.2 客戶同意為不同目的收集、使用和披露有關客戶的某些個人數據和信息，包括但不限於：(a) 評估客戶的信用性；(b) 履行本協議下的義務；(c) 與客戶溝通安培能源或其合作夥伴或關聯公司可能向客戶提供的其他商品和服務，包括用於營銷和銷售目的；(d) 實施這些條件及其他相關政策；及 (e) 遵守相關法律。
13.3 安培能源應客戶的書面要求，將：(a) 為客戶提供訪問安美能源所持有的任何與客戶有關的個人資料；及 (b) 更正或修改安美能源持有關客戶的任何不準確或過期的個人資料。
13.4 安普能源將根據相關法律收集、使用、儲存、處理、披露及/或刪除客戶的個人資料。安普能源的隱私權政策可能會不時更新，請參閱
https://www.ampd.energy/ampd-energy-privacy-policy 或安普能源之其他地方可能會不時更新。客戶確認已閱讀並理解安普能源上述隱私權政策，並同意隨時不採取任何違反隱私權政策的行為。
附表 1
額外銷售條件
1.定義
1.1 在本附表 1 中，除非主題或上下文另有規定，否則下列字詞和表達式分別歸屬於下列意義：
1.1.1」
客戶的預設值」指客戶按本附表 1 第 4.13 段所述的方式違約；
1.1.2 英寸
交付」，」
已交付」或」
送貨」指以下行為：(i) 在工廠交付或提供貨物，除非客戶與安培能源之間另有書面協議；或 (ii) 在現場裝配、安裝、安裝、安裝或調試貨物或其他方式需要，安培能源聲明貨品已準備接受；
1.1.3」
交貨日期)」指本協議所規定的日期或日期，將分別進行供應物品或供應分期交付；或根據安培能源根據本附表 1 第 4.12 段發出的通知而延長的日期或日期；及
1.1.4 英寸
購買價格」具有本附表 1 第 2.1 段所述的含義。
二.價格，供應變化，變化
2.1 供應物品的價格應為本協議中所列明的價格（」
購買價格」)。
2.2 除客戶與安培能源之間另有書面協議外，所有價格均由安美能源自工廠提供，並不包括包裝、運費、保險及任何其他額外費用（例如儲存、第三方檢查）。如果安培能源同意在安培能源處所以外交付物品，客戶應負責支付安普能源運輸、包裝和保險費用。
2.3 在本網站提供服務時，購買價格將不包括安培能源在提供服務的目的和過程中所產生的任何附帶成本，例如旅行費用、每日津貼、運輸工具和設備的費用等。
2.4 購買價格不包括增值稅、商品和服務稅、任何類似的銷售稅或任何取代此類銷售稅的稅。任何有關該等金額應繳納的稅款，均須在這些金額外支付。如果客戶根據任何適用法律要求從 Ampd Energy 的付款中扣除或扣除任何金額，則客戶應將其支付給安普能源所需的金額增加以保留安普能源所需的金額，以相等於如果沒有進行此類預扣或扣除的金額，將其支付給安普能源所需的金額增加。
2.5 任何一方均可隨時以書面要求更改、修改或補充物品範圍（以下簡稱為」
變化」)。在收到變更請求後，Ampd Energy 將向客戶提供所要求變更的書面報價，並指明所要求變更對協議的影響，包括購買價格、時間表和協議日期、供應範圍以及本協議的任何其他受影響條文的任何必要調整。
2.6 如客戶希望根據安美能源的報價進行要求的變更，客戶應於收到報價後十四（14）天內以書面通知安培能源。在雙方書面同意之前，Ampd Energy 無義務對該變更生效。
2.7 Ampd Energy 保留對本協議或供應品規格作出任何要求符合適用法律、規則、法規、工程標準或法定要求的任何更改，或若供應物品須按客戶規格提供，而且不會有重大影響其品質或性能的變更。
2.8 如果適用法律、規則及法規、工程標準和實務守則，以及法院或公共機構在協議之後發出的決定或指引進行修訂或更新，安培能源有權調整協議，包括調整購買價，以反映安普能源產生的任何額外費用、供應時間表和範圍，視需要補償任何不良影響或其他要求由此類變更引起的。
三.付款條款
3.1 除非本協議另有協議或指明，否則購買價格必須在交付物品之前，以報價及/或銷售訂單上所列明的初始不可退還押金（一般以購買價格的百分比表示）支付。安培能源出示發票後，該等押金將立即到期。餘額須在安培能源交付商品及出示發票後立即到期並應付（除非有關報價單及/或銷售訂單中另有說明），以及在任何情況下，在 Good and ampd Energy 出示發票之日後的下一個營業日。時間對於支付購買價格至關重要。
3.2 在客戶支付本協議規定的所需款項之前，安培能源無義務履行本協議中所訂明的任何義務。
3.3 在合約成立後，如安美能源根據合理意見判定客戶的信用價值不滿意，或客戶將無法支付本協議應付的應付款項，或客戶未能支付任何應付的金額或客戶未支付任何應付款項，安培能源保留在本協議中暫停執行或拒絕交付的權利（」
懸吊系統」)。安普能源須通過書面通知客戶通知該等暫停。
3.4 如客戶在到期日未能支付任何付款，在不影響安培能源所提供的任何其他權利或補救措施的情況下，安培能源有權：
3.4.1 根據附表 1 第 7 段暫停任何進一步向客戶的交付和/或服務，並終止該等服務（不對客戶對任何損失負責）；
3.4.2 根據自行決定，根據本協議或安培能源與客戶之間的任何其他合約或協議收到的任何款項，包括但不限於存款或保證付款，用於支付相關發票；3.4.3 每日向客戶收取未付款金額的利息，以每日從到期日起計算至完全付款（或最高）的年利率為止。如果該金額較低，法律允許的金額）。
3.5 除非與安培能源書面同意，否則客戶不有權扣除、扣除或以其他方式減少任何向安美能源發生的任何款項。
4.交貨及安裝
4.1 除非另有書面協議，否則貨物須在客戶訂單中指定的地點出發，安培能源有權選擇運輸方式（特別是運輸人、運送路線和包裝方式）。
4.2 允許部分交付/履行訂購物品。如供應分期交付/執行，每項交付/履行均構成單獨的協議，而 Ampd Energy 根據本協議不交付/執行任何一或多個分期，或客戶對任何一或多個分期的任何索償，則不會讓客戶將整份協議視為已被拒絕。
4.3 如果與物品交付/提供有關，安普能源需要在工地上進行工程，客戶應自行承擔費用和費用，採取所有必要的措施，準備工地，並確保該網站適合和準備就緒，以便開始工程或服務。客戶須確保通往本網站的通道清晰，安普能源的人員可在抵達現場後立即開始工作，進一步確保工作以不間斷的方式進行。客戶對與本網站有關的一切事項負責，並須向 Ampd Energy 提供該等人力、資訊、設施、設備以及任何其他材料和工具供應用品供應。這也包括有關本網站和安普能源所需的所有輔助服務的資訊，這些與交付/提供物品及提供所需文件（例如必要的許可證和批准）有關的相關資訊。在不限制上述內容的情況下，客戶應自行支付及時提供以下內容：
4.3.1 無限制訪問本網站和相關基礎設施，包括但不限於入境許可證和安全通行證；
4.3.2 安培能源有關獲得安培能源及其分包商人員的個人物品和貨物進出口、出口和海關通關時所需的協助，以及在本網站執行工程或服務所需的設備、工具和商品時，可能需要的協助；
4.3.3 協助 Ampd Energy 及其分包商的人員獲得簽證、工作和居住許可證，以便在工地進行工程或服務所需的範圍，以及就離境該國所需的任何許可證而言；
4.3.4 如發生緊急情況，包括但不限於戰爭、內戰、內戰、內亂和流行病的緊急情況下，安培能源及其分包商的人員返回國內；
4.3.5 Ampd Energy 可能需要的設備、工具和材料，以及服務組裝、調試和執行所需的設備、工具和材料，例如腳手架、起重設備和其他裝置以及燃料和潤滑油；
4.3.6 有關隱藏的電力、氣體和水路或類似裝置的位置所需的任何資料，以及必要的結構數據；
4.3.7 所有公用事業，包括但不限於能源、水、電訊服務、互聯網連接、暖氣和照明；
4.3.8 適合乾燥和可鎖定的房間，面積相當於該工地，用於存放機器零件、儀器、材料、工具等，以及適當的工作室供安培能源及其分包商的人員使用，包括根據特定情況適當的衛生設施；
4.3.9 保護安培能源及其人員的財產，以及安培能源在該站點的員工健康的所有合理措施；4.3.10 因特定網站的特殊情況而需要的防護服裝和防護裝備；
4.3.11 現有系統的文件（例如服務手冊、操作指南）、樓宇描述和平面圖、程式設備、測量、測試資源和工具的文件；以及
4.3.12 在安培能源供應範圍內明確不包括在安培能源供應範圍內的所有土地搬遷和建築工程以及其他附屬服務，包括必要的工程、材料和工具。
4.4 如客戶未提供或履行附表 1 第 4.3 段所述的上述義務，以滿足安培能源，安培能源有權承擔客戶的費用和費用進行所有必要的工作，前提是客戶已獲通知有關違規情況，並未在該違規通知所述的更正期內進行修正時間內進行所有必要的工作。未經安普能源事先書面同意，客戶不得從本網站移動任何商品、設備或其部分。
4.5 在客戶根據附表 1 第 4.3 段授予 Ampd Energy 合理訪問本網站，以及該工地條件適合進行工程或服務的條件，安培能源應於預定日期在該工地開始工程和/或在預定日期交付物品。
4.6 如貨物交付給客戶而不需要組裝、安裝、安裝和調試時：
4.6.1 客戶有義務在交貨時檢查貨物，如有任何瑕疵，應於收到貨物後一（1）週內通知安普能源。有關任何瑕疵的通知須附有相關證據；及
4.6.2 如客戶在收到貨物後的一（1）週內未通知安普能源有關瑕疵，將視為已接受該貨品沒有任何瑕疵。
4.7 需要安裝、安裝或調試時：
4.7.1 客戶須於 (a) 安普能源聲明有關貨品已準備接受之日起兩 (2) 週內接受貨物；或 (b) 完成物品，包括成功進行驗收測試（如同意有關測試）；及 4.7.2 客戶將被視為已接受貨物：(a) 客戶用於商業目的或其他用途以外的目的，客戶將被視為已接受商品檢測；(b) 未提供任何合法的情況下，未在兩（2）週期內接受貨物有關拒絕的書面原因或具體詳情；或 (c) 如果由於不屬於安培能源的原因而未在預定日期後的一星期內進行驗收測試。
4.8 客戶無權拒絕接受 (a) 不具有實質影響商品使用的缺陷；(b) 不影響商品運作的小偏差或缺陷；(c) 安裝或安裝不由安培能源進行的瑕疵；或 (d) 不能合理控制範圍之原因。只要缺陷有能力修正，而安培能源並未以書面形式拒絕採取所需的補救措施，安美能源完成補救工作後，將視為已接受貨物及/或服務。
4.9 如商品或服務或其任何部分已準備好供貨或執行，且由於安普能源控制的原因無法交付或執行，則在安培能源通知客戶準備交付或執行時，將視為已經接受。
4.10 與檢查及/或接受物品有關的任何費用和開支均由客戶承擔。
4.11 如果安普能源在交貨日期前未交付物品（如果交付分期，則在最後交貨日期），而該失敗是由於安普能源的故意或疏忽行動或不採取，其責任將限於客戶在可用最便宜的市場購買類似描述和質量的替代貨品而產生的成本和費用，減去商品價格。安培能源自行決定並通過向客戶書面通知，可以延長發送日期，以合理地反映由下列任何事件導致或可能導致的任何延遲的延遲時間：
4.11.1 第 8 條規定的不可抗力；
4.11.2 根據附表 1 第 2.5 至 2.8 或 3.3 段對本協議作出任何變更或暫停；
4.11.3 根據附表 1 第 7 段暫停本協議；
4.11.4 Any breach of the Agreement by the Customer or any other third party appointed by or acting on behalf of the Customer;
4.11.5 If the Supplies are not Delivered due to or in relation to the event described in Paragraph 4.12 of Schedule 1; or
4.11.6 Any other circumstances where Ampd Energy is entitled under law to have an extension of time.
4.12 Ampd Energy shall not be liable for any delays due to an act or omission of the Customer or any other third party appointed by or acting on behalf of the Customer (including but not limited to any failure of the Customer to comply with any of its obligations under the Agreement (“
Customer’s Default”). Where there is a Customer’s Default, Ampd Energy shall be entitled to claim such increase in costs incurred by Ampd Energy as a result of the Customer’s Default.
4.13 If the Customer fails to give Ampd Energy adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to Ampd Energy, Ampd Energy may:
4.13.1 store Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
4.13.2 sell Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the Purchase Price under the Agreement.
4.14 Charges for all handling and transport as determined by Ampd Energy are to be paid by the Customer except where such charges have been incurred as a result of Ampd Energy’s performance of obligations during the Warranty Period under Paragraph 6 of Schedule 1.
5. TITLE AND RISK
5.1 Unless otherwise agreed in writing between the Parties, risk of damage to or loss of Goods shall pass to the Customer as soon as they are Delivered.
5.2 Not withstanding delivery and the passing of risk in Goods, or any other provision of these Conditions, title in Goods shall not pass to the Customer until Ampd Energy has received in cash or cleared funds payment in full of the Purchase Price and all other goods agreed to be sold by Ampd Energy to the Customer for which payment is then due.
5.3 Until such time as title in Goods passes to the Customer, Ampd Energy shall be entitled at any time to require the Customer to deliver up Goods to Ampd Energy and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party (whose cooperation the Customer hereby undertakes to procure) where Goods are stored and repossess the relevant Goods. Until such time as in accordance with this provision, Goods shall not be pledged or given as security or resold by the Customer and the Customer undertakes to store Goods in its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as Ampd Energy’s Goods.
5.4 The Customer shall reimburse Ampd Energy for any expenses and costs to Ampd Energy in recovering Goods arising from any non-compliance by the Customer with the terms of Paragraph 5.3 of Schedule 1.
PPSA5.5 The following Paragraphs 5.6 to 5.13 apply if Goods are supplied in Australia. “PPSA” means the Australian
Personal Property Securities Act 2009 (Cth).
5.6 For the purposes of this Paragraph 5, the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’, ‘PPS lease’ and ‘security interest’ have the meanings set out in the PPSA.
5.7 The Customer:
5.7.1 grants Ampd Energy a security interest in the Goods (and any proceeds thereof) as security for the performance by the Customer of its obligations under this Agreement; and
5.7.2 agrees the security interest referred to under Paragraph 5.7.1 is a PPS lease and therefore represents a purchase money security interest under the PPSA.
5.8 The Customer agrees to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which Ampd Energy requests and considers necessary for the purposes of:
5.8.1 ensuring that the security interest is enforceable, perfected and otherwise effective;
5.8.2 enabling Ampd Energy to apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or
5.8.3 Ampd Energy exercising its rights in connection with the security interest.
5.9 Everything that Ampd Energy is required to do under this clause is at the Customer’s expense.
5.10 The Customer waives any rights it may have:
5.10.1 under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4),134(1), 135 and 157 of the PPSA; and
5.10.2 under sections 142 and 143 of the PPSA.
5.11 The parties agree that sections 96 and 117 of the PPSA do not apply to this Agreement.
5.12 Neither Ampd Energy nor the Customer will disclose information of the kind mentioned in section 275(1) of the PPSA, and the Customer will not authorise, and will ensure that no other party authorises, the disclosure of such information.
5.13 The Customer must not:
5.13.1 change its name, ACN or ABN without providing Ampd Energy with at least 30 days’ notification in writing;
5.13.2 remove the Goods from its premises without the prior consent of Ampd Energy;
5.13.3 expose the Goods to the risk of loss, damage or detention;
5.13.4 transfer, sub-license, part with or share the possession of the Goods;
5.13.5 create, consent to or permit a security interest over the Goods to anyone else; or
5.13.6 make any replacement, alteration or addition which would mean that the Goods are no longer readily identifiable as Ampd Energy’s, or which may lead to a reduction in the value of the Goods.
6. WARRANTIES
6.1 Ampd Energy warrants that:
6.1.1 it will perform Services where required with reasonable care and skill;
6.1.2 Goods will correspond with the specification Ampd Energy Provides to the Customer at or before the time of delivery (if any) and will be free from defects in material and workmanship under normal use and service for a period of five (5) years (“
Warranty Period”) from the date of Delivery of Goods; and
6.1.3 Goods shall continue to provide its Rated Maximum Output Current Per Phase (as defined below), notwithstanding the limitations and exclusions set out in Paragraph 6.4 of Schedule 1,
save that Ampd Energy does not warrant that operation of the Software will be uninterrupted or error free. For the purposes of this Paragraph, the “
Rated Maximum Output Current Per Phase” of Goods shall be the maximum output current per phase as listed on the specification sheet of Goods.
6.2 During the Warranty Period, any claim by the Customer which is based on any defect in the quality or condition of Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to Ampd Energy within the relevant period referred to in Paragraphs 4.6 and 4.7 of Schedule 1 or (where the defect or failure was not apparent on reasonable inspection) within fourteen (14) calendar days of the date on which such defect or failure appeared or ought to have been discovered by the Customer, failing which Ampd Energy shall not be liable under the warranty provided in Paragraph 6.1 of Schedule 1 herein.
6.3 Upon notification of a claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification by the Customer to Ampd Energy in accordance with Paragraph 6.2 of Schedule 1:
6.3.1 Ampd Energy shall conduct an examination of the Goods which are the subject of the claim. For this purpose, the Customer shall grant Ampd Energy working access to the non-conforming Goods, shall undertake any necessary dis-assembly and re-assembly, and shall provide access to operation and maintenance data, all at no charge to Ampd Energy;
6.3.2 Provided that Ampd Energy determines to its satisfaction, after a reasonable period to inspect the relevant Goods, that such Goods are defective in material or workmanship, Ampd Energy’s sole liability shall be, at Ampd Energy’s option, to repair the Goods or replace the Goods (or the part in question) free of charge at Ampd Energy’s sole discretion. In repairing the Goods, Ampd Energy will, at its sole determination and discretion, use new and/or refurbished components or components of an improved design; and
6.3.3 Upon Ampd Energy’s request, the Customer shall ensure that title to any replaced defective parts shall transfer to Ampd Energy.
6.4 Ampd Energy shall be under no liability under Paragraph 6.1 of Schedule 1 whatsoever:-
6.4.1 in respect of any defect in Goods arising from any drawing, design or specification supplied by the Customer;
6.4.2 in respect of any defect in Goods arising from fair wear and tear or otherwise due to the ageing of Goods from long-term usage or storage;
6.4.3 in respect of non-conformity resulting from excessive strain, wilful damage, negligence, fault, abnormal working conditions;
6.4.4 in respect of any defect in Goods arising from failure to follow Ampd Energy’s instructions or recommendations (whether oral or in writing), misuse or alteration or repair of Goods without Ampd Energy’s approval or improper or inadequate maintenance by the Customer;
6.4.5 in respect of minor deviations from the drawings, design or specifications supplied by Ampd Energy, where such minor deviations are superficial or cosmetic in nature and do not materially affect the performance of Goods;
6.4.6 in respect of consumables related to Goods;
6.4.7 if Goods have been used in a manner or under a circumstance or for a purpose not disclosed to Ampd Energy prior to the date of the Agreement; 6.4.8 if the Purchase Price for the Supplies has not been paid by the due date for payment;
6.4.9 for any delay in the delivery or installation of the Supplies if such delay arises or results from Variations of the Agreement pursuant to Paragraphs 2.5 to 2.8 to Schedule 1;
6.4.10 if the Customer permits persons other than the authorised representative of Ampd Energy to effect any replacement of parts, maintenance adjustments or repairs to Goods;
6.4.11 in respect of any defect in Goods arising from installation, shipping, transportation, erection, modification, commissioning or pre-commissioning of Goods, if the installation, shipping, transportation, erection, modification, commissioning, or pre-commissioning of Goods, in each case, is not carried out by Ampd Energy;
6.4.12 in respect of any damage, whether direct or indirect, to any equipment or property connected to Goods, due to the installation or usage of Goods; and
6.4.13 in respect of negligence not attributable to Ampd Energy or Ampd Energy’s authorised representatives.
6.5 The warranties specified in Paragraph 6.1 of Schedule 1 are exclusive and in lieu of all other warranties, terms and conditions, express or implied by statute or otherwise, to the fullest extent permitted by law, including without limitation warranties of quality or fitness for a particular purpose.
6.6 To the extent permitted by law, the benefit of this warranty shall apply only to the Customer, and this warranty will not transfer to any subsequent purchaser of the Goods without the prior written consent of Ampd Energy.
6.7 If Ampd Energy carries out repair/remedial/replacement work on the relevant Goods and it is ultimately not established that there was any defect in material and workmanship or failure to correspond with their specification, the Customer shall pay Ampd Energy for such repair/remedial/replacement work including error diagnosis.
6.8 Ampd Energy does not warrant that the operation of the Software will be uninterrupted or error free, and does not warrant that the Software does not contain any vulnerability. If any defect arises in the Software, Ampd Energy shall only be obliged to provide the Customer with an updated version of the Software in which the relevant defect has been remedied when such updated version is reasonably available from Ampd Energy or, if Ampd Energy is only the licensee of such Software, from Ampd Energy’s licensor. If the Software has been modified or individually developed by Ampd Energy, Ampd Energy shall in addition provide the Customer with a workaround or other interim corrective solution until the provision of an updated version of the Software, if such workaround or interim solution is feasible at reasonable expense and if otherwise the Customer’s business operations would be substantially impeded.
6.9 The Supplier’s sole and exclusive liability, and the Customer’s sole and exclusive remedy, for breach of the warranties specified in Paragraph 6.1 of Schedule 1 during the Warranty Period shall be as set forth in this Paragraph 6.
6.10 The Customer understands and acknowledges that the obligations of Ampd Energy under this Paragraph 6 may be performed by Ampd Energy, an authorised distributor of Ampd Energy, or a subcontractor, vendor, supplier or other third-party nominated by Ampd Energy (collectively, the “
Eligible Providers”). For the purposes of this Paragraph 6, performance of the obligations of Ampd Energy under this Paragraph 6 by any Eligible Provider shall be deemed performance by Ampd Energy itself.
7. TERMINATION AND/OR SUSPENSION OF SUPPLIES
7.1 In the event that:
7.1.1 the Customer is in breach of the Agreement;
7.1.2 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver or manager appointed over its affairs or have an application made to court for the appointment of a judicial manager or be placed under a judicial management order;
7.1.3 an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer;
7.1.4 the Customer ceases or threatens to cease to carry on business;
7.1.5 there is a change in control of the Customer which in the reasonable opinion of Ampd Energy adversely affects the position, rights or interests of Ampd Energy. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of contract, ownership of shares, or otherwise howsoever);
7.1.6 in the reasonable opinion of Ampd Energy, there occurs a material change in the financial position of the Customer which is likely to affect the Customer’s ability to perform its obligations under the Agreement; or
7.1.7 Ampd Energy reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly,
Ampd Energy shall be entitled to, by issuance of a written notification, (i) to the extent legally permitted, terminate the Agreement forthwith on the occurrence of each of the events in Paragraph 7.1.2, 7.1.3, 7.1.4 or 7.1.5 of Schedule 1 or suspend any further deliveries, production or commissioning works or Services under the Contract without any liability to the Customer on the occurrence of each of the events in Paragraphs 7.1.1, 7.1.6 and 7.1.7 of Schedule 1, and upon the issuance of Ampd Energy’s written notification of such termination or suspension, (ii) if the Supplies have been delivered or completed but not paid for, the Purchase Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, and (iii) Ampd Energy shall be entitled to retain any security given or monies paid by the Customer and apply the said security or monies against the assessed losses and damages, if any, suffered by Ampd Energy, or if there is no such security or monies paid by the Customer, to recover the same otherwise.
7.2 Upon the issuance by Ampd Energy of a written notification giving notice of the suspension of any further deliveries, production or commissioning works or Services under the Agreement pursuant to Paragraph 7.1 of Schedule 1, the Customer shall:
7.2.1 if the suspension is due to or arises from a breach by the Customer of the Agreement under Paragraph 7.1.1 of Schedule 1, remedy such breach within fourteen (14) days of the written notification of suspension, failing which Ampd Energy shall be entitled to terminate the Agreement forthwith by issuance of a written notice to the Customer;
7.2.2 if the suspension is due to or arises from a material change in the Customer’s financial position in accordance with Paragraph 7.1.6 of Schedule 1, provide Ampd Energy with a bank guarantee or such other security (“
Security”) to Ampd Energy’s reasonable satisfaction within thirty (30) days of the written notification of suspension, failing which Ampd Energy shall be entitled to continue the suspension until Ampd Energy is provided with such Security or to terminate the Agreement forthwith by issuance of a written notice to the Customer; or
7.2.3 if the suspension is due to or arises from an event in accordance with Paragraph 7.1.7 of Schedule 1, provide Ampd Energy with proof to Ampd Energy’s reasonable satisfaction, within thirty (30) days of the written notification of suspension, that the relevant event, the occurrence of which Ampd Energy reasonably apprehends, is not occurring and will not occur, failing which Ampd Energy shall be entitled to continue the suspension until Ampd Energy is provided with such proof or to terminate the Agreement forthwith by issuance of a written notice to the Customer.
In the event the Agreement is terminated pursuant to any of Paragraphs 7.2.1 to 7.2.3 of Schedule 1, Ampd Energy shall, in addition and without prejudice to the remedies in Paragraph 7.1 of Schedule 1, be entitled to recover all losses and damages from the Customer.
7.3 The losses and damages in Paragraphs 7.1 and 7.2 of Schedule 1 shall include but are not limited to all costs, expenses and liabilities reasonably incurred by Ampd Energy in respect of Goods that are partially completed or Services not fully performed as well as any costs, expenses and liabilities in expectation of the completion of the Supplies. Termination of the Agreement by Ampd Energy shall not discharge the Customer from any existing obligation accrued, due on or prior to the date of termination.
7.4 The rights and remedies granted to Ampd Energy pursuant to the Agreement are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
7.5 Without prejudice to Clause 9.13 of the Conditions, this Paragraph 7 of Schedule 1 shall survive the expiry or termination of the Agreement.
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