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;
1.1.2 “Agreement” means the agreement between Ampd Energy and the Customer for (i) the purchase and sale of Goods and/or supply of Services; or (ii) the lease of Goods and/or supply of Services (as the case may be), comprising:
(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 “Associated Person” means, in relation to a company, a person (including an employee, agent or subsidiary) who performs services for or on behalf of that company;
1.1.5 “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;
1.1.6 “Conditions” means these terms and conditions for (i) the purchase and sale of Goods and/or supply of Services; or (ii) the lease of Goods and/or supply of Services (as the case may be), which are incorporated into and form part of the Agreement;
1.1.7 “Confidential Information” has the meaning given in Clause 12.1;
1.1.8 “Consumables” means non-durable items used in the operation of the Goods for example air filters and back-up/lead-acid batteries;
1.1.9 “Customer” means the person, firm or company who places the Customer’s Order for Goods and/or Services and is named in the Quotation;
1.1.10 “Customer’s Order” means the written order placed by the Customer for (i) the purchase and sale of Goods and/or supply of Services; or (ii) the lease of Goods and/or supply of Services (as the case may be), and documents (if any) incorporated by express reference on the face of the Customer’s Order;
1.1.11 “ex Works” shall be construed in accordance with Incoterms 2020 published by the International Chamber of Commerce;
1.1.12 “Goods” means the goods (including any instalment of the goods or any parts of them) which Ampd Energy is to sell or lease to the Customer in accordance with the Agreement and which may (without limitation) comprise or include Software;
1.1.13 “Operating Manual(s)” means any documents including operation and maintenance manuals which provide guidance to the Customer on how to use and operate Goods;
1.1.14 “OSS” has the meaning given in Clause 6.4;
1.1.15 “Party” means Ampd Energy or the Customer and “Parties” means both of them;
1.1.16 “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);
1.1.17 “Service Plan Services” has the meaning given in Schedule 3;
1.1.18 “Services” means the services described in the Quotation which Ampd Energy is to supply to the Customer in accordance with this Agreement;
1.1.19 “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.
1.1.20 “Software” means the software and firmware items which are comprised or included in or related to the Supplies;
1.1.21 “Spare Parts” means all spare components and subassemblies of the Goods supplied for installation in the Goods as part of the provision of the Service Plan Services, and does not include Consumables; and
1.1.22 “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 thereof 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 or leased 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. In respect of a lease of Goods, Ampd Energy shall lease, and the Customer shall take on hire, 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, including Services accompanying the sale or lease of, or provided in relation to, Goods and, where the context allows, any reference to the sale or lease of Goods includes the provision of such Services.
2.3 In addition to the main body of these Conditions:
2.3.1 Schedule 1 sets out the additional Conditions in respect of a sale of Goods by Ampd Energy to the Customer;
2.3.2 Schedule 2 sets out the additional Conditions in respect of a lease of Goods by Ampd Energy to the Customer;
2.3.3 Schedule 3 sets out the additional Conditions in respect of the provision of Service Plan Services by Ampd Energy.
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 confirms acceptance of the Customer Order to the Customer, which may be in writing, verbally or by conduct (for example, by beginning the supply, or issuing an invoice).
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 In respect of a lease of Goods, the Customer shall not acquire in any way ownership of any intellectual property rights in the Supplies of whatever nature, any Software associated with any Goods, service plan or any Operating Manuals. All such interests and rights are and shall remain the exclusive and absolute property of Ampd Energy and/or its licensors as applicable. This Clause 4.2 shall continue to apply (including in relation to any Purchased Goods (as defined in Schedule 2)) even if the Customer exercises its Option to Purchase under Paragraph 5.2 of Schedule 2 to the Conditions.
4.3 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.
4.4 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.
4.5 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, trade marks 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 of any 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 (i) the purchase and sale of Goods and/or supply of Services; or (ii) the lease of Goods and/or supply of Services (as the case may be):
7.2.1 Ampd Energy accepts no liability for:
(a) any economic loss, loss of profit, loss of income, loss of revenue, loss of property, loss of contracts, loss of or interruption to business, loss of business opportunity;
(b) loss of goodwill, loss of information, loss or corruption of data, software or records; 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.
7.6 The Customer acknowledges that the Goods are not designed or intended as the sole protection device in environments or applications requiring extraordinarily high quality power supply and/or power supply reliability, or for use in any circumstances in which the failure of the Goods to perform could lead directly or indirectly to death, personal injury, or that would affect the operation or safety of any life support device (“high-risk activities”). To the extent legally permitted, Ampd Energy disclaims any express or implied warranty of fitness of the Goods as the sole protection device for high-risk activities and does not recommend the use of the Goods as the sole protection device for high-risk activities. Use of the Goods in high-risk activities shall be at the Customer’s own risk.
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 affiliated 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 enure 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 applicable laws, rules and regulations affecting its obligations and the performance of the Agreement. The Customer 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 In any dispute arising out of, in connection with, this Agreement, the Customer and Ampd Energy irrevocably and unconditionally waive any right to a trial by jury.
10.3 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.
10.4 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 The Parties shall treat as confidential all information obtained from the other Party under or in connection with this Agreement which is designated as confidential by the other Party; which is by its nature clearly confidential; or which a Party, acting reasonably, would expect to be confidential including but not limited to all intellectual and industrial property rights in the Supplies, Goods, any Software, a service plan or any Operating Manuals (“Confidential Information”) exclusively for the purpose of the Agreement and keep the same confidential subject to the following. The Parties may disclose Confidential Information to employees of the receiving Party and to third parties who reasonably need to know such Information for the purpose of the Agreement provided such employees and third parties are bound by equivalent confidentiality obligations. The Party disclosing Information shall be held liable for a breach of such obligations by its employees or a third party.
12.2 This confidentiality obligation shall not apply to Confidential Information which:
12.2.1 is or becomes part of the public domain other than by fault of the receiving Party;
12.2.2 is disclosed to the receiving Party in good faith by a third party who is entitled to make such disclosure;
12.2.3 is developed independently by the receiving Party without reliance on Confidential Information;
12.2.4 was known to the receiving Party prior to its disclosure by the other Party; or
12.2.5 is required to be disclosed by law (subject to the receiving Party’s obligation to notify the disclosing Party in a timely manner of such requirement).
12.3 The obligations contained in this Clause 12 shall endure, even after the termination of the Agreement, without limit in point of time except and until the Information enters the public domain as set out above.
12.4 Each Party will establish and maintain adequate security measures to safeguard information and data of the other Party in its possession from unauthorised access, use or copying.
12.5 The Parties shall be permitted to publicise their involvement in the Agreement only if the other Party has given written consent to the publication of such involvement.
13. COMPLIANCE
13.1 Each Party shall comply with all laws and regulations that are applicable to that Party in relation to privacy and data protection laws.
13.2 The Customer agrees to Ampd Energy processing, collecting, using and disclosing certain personal data and information about the Customer for various purposes, including but not limited to: (a) assess the creditworthiness of the Customer; (b) perform its obligations under the Agreement; (c) communicate with the Customer about other goods and services which Ampd Energy or its partners or affiliates may provide to the Customer, including for marketing and sales purposes; (d) implement these Conditions and other relevant policies; and (e) comply with relevant laws.
13.3 Ampd Energy, at the written request of the Customer, will: (a) provide the Customer with access to any personal data relating to the Customer held by Ampd Energy; and (b) correct or amend any personal data relating to the Customer held by Ampd Energy which is inaccurate or out of date.
13.4 Ampd Energy will collect, use, store, process, disclose and/or delete the Customer’s personal data in accordance with relevant laws. Ampd Energy’s Privacy Policy, which may be updated from time to time, can be found at https://www.ampd.energy/ampd-energy-privacy-policy or such other place as Ampd Energy may update from time to time. The Customer acknowledges that it has read and understood Ampd Energy’s aforementioned Privacy Policy and agrees at all times not to do anything which would be a breach of the Privacy Policy.
13.5 The Customer may choose to provide personal information or personal data to Ampd Energy on behalf of third parties as part of this Agreement. The Customer will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal or personal data to Ampd Energy.
13.6 The Customer undertakes to Ampd Energy that:
13.6.1 it will not engage in any activity, practice or conduct which would constitute an offence under applicable anti-bribery or anti-corruption laws (including the UK Bribery Act 2010 and the USA Foreign Corrupt Practices Act 1977); and
13.6.2 it has and will maintain in place procedures designed to prevent any Associated Person from undertaking any conduct that would give rise to an offence under applicable anti-bribery or anti-corruption laws.
SCHEDULE 1
ADDITIONAL SALE CONDITIONS
1. DEFINITIONS
1.1 In this Schedule 1, unless the subject or context otherwise requires, the following words and expressions have the following meanings respectively ascribed to them:
1.1.1 “Ampd Warranty Periods” means the warranty periods defined in limited manufacturer warranty referred to in Paragraph 6.1 of this Schedule 1;
1.1.2 “Customer’s Default” means a default of the Customer in the manner described in Paragraph 4.13 of this Schedule 1;
1.1.3 “Deliver”, “Delivered” or “Delivery” means the act of: (i) delivering or making available Goods ex Works unless expressly otherwise agreed in writing between the Customer and Ampd Energy; or (ii) where assembly, installation, erection or commissioning of Goods at Site or otherwise is required, Ampd Energy declaring that Goods are ready for acceptance;
1.1.4 “Delivery Date(s)” means the date or dates provided in the Agreement, on which Delivery of the Supplies or instalments of the Supplies are to take place respectively; or the extended date or dates for the same pursuant to the notification issued by Ampd Energy in accordance with Paragraph 4.12 of this Schedule 1;
1.1.5 “Rated Maximum Output Current Per Phase” of Goods shall be the maximum output current per phase as listed on the specification sheet of those Goods; and
1.1.6 “Purchase Price” has the meaning given in Paragraph 2.1 of this Schedule 1.
2. PRICE, CHANGE TO SUPPLIES, VARIATIONS
2.1 The price of the Supplies shall be the price stated in the Agreement (the “Purchase Price”).
2.2 Except as otherwise agreed in writing between the Customer and Ampd Energy, all prices are given by Ampd Energy on an ex Works basis and exclude packing, freight, insurance and any other additional charges (such as storage, inspections by third parties). Where Ampd Energy agrees to deliver the Supplies otherwise than at Ampd Energy’s premises, the Customer shall be liable to pay Ampd Energy’s charges for transport, packaging and insurance.
2.3 For the provision of Services at the Site, the Purchase Price shall exclude any incidental costs incurred by Ampd Energy for the purposes and in the course of providing Services i.e. travel costs, daily allowances, costs for transporting tools and equipment etc.
2.4 The Purchase Price is exclusive of value added tax, goods and services tax, any similar sales or transaction tax or any tax that replaces such sales or transaction taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to Ampd Energy, the Customer shall increase the sum it pays to Ampd Energy by the amount necessary to leave Ampd Energy with an amount equal to the sum it would have received if no such withholding or deduction had been made.
2.5 Either Party may at any time request in writing changes, modifications or additions to the scope of the Supplies (hereinafter referred to as “Variation”). Upon receipt of a Variation request, Ampd Energy shall provide the Customer with a written quotation for the requested Variation, specifying the effects of the requested Variation on the Agreement, including any necessary adjustment of the Purchase Price, time schedules and agreed dates, scope of the Supplies and any other affected provisions of the Agreement.
2.6 If the Customer wishes to proceed with a requested Variation on the basis of Ampd Energy’s quotation, the Customer shall notify Ampd Energy thereof in writing within fourteen (14) days of receipt of the quotation. Ampd Energy is not obliged to give effect to the Variation until it has been agreed in writing by the parties.
2.7 Ampd Energy reserves the right to make any changes in the Agreement or specification of the Supplies which are required to conform to any applicable laws, rules, regulations, engineering standards or statutory requirements or, where the Supplies are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
2.8 In the event of amendments or updates to applicable laws, rules and regulations, engineering standards and codes of practice, and decisions or guidance issued by courts or public authorities subsequent to the date of the Agreement, Ampd Energy shall be entitled to an adjustment of the Agreement, including among other things, an adjustment of the Purchase Price to reflect any additional costs to be incurred by Ampd Energy, the time schedules and scope of the Supplies, as necessary in order to compensate for any adverse effects or additional requirements deriving from such changes.
3. TERMS OF PAYMENT
3.1 Unless otherwise agreed or specified in the Agreement, payment of the Purchase Price is to be made by an initial non-refundable deposit (generally stated as a percentage of the Purchase Price) as stated on the Quotation and/or Customer’s Order before the delivery of the Supplies. Such deposit will become immediately due upon presentation of invoice by Ampd Energy. The balance shall be due and payable immediately upon delivery of Goods and presentation of invoice by Ampd Energy (unless otherwise stated in the relevant Quotation and/or Customer’s Order), and in any event by the next Business Day after the date of delivery of Goods and presentation of invoice by Ampd Energy. Time is of the essence in respect of payment of the Purchase Price.
3.2 Ampd Energy is not obliged to perform any of its obligations set out in the Agreement until the Customer has paid the required payments as stipulated under the Agreement.
3.3 After the formation of the Agreement, Ampd Energy reserves the right to suspend performance or withhold delivery under the Agreement if Ampd Energy in its reasonable opinion determines that the Customer’s credit worthiness is unsatisfactory or that the Customer will not be able to pay the amounts due and payable under the Agreement or if the Customer fails to make payment of any amount due and payable (“Suspension”). Ampd Energy shall by written notice to the Customer inform the Customer of such Suspension.
3.4 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Ampd Energy, Ampd Energy shall be entitled to:
3.4.1 suspend any further deliveries and/or Services to the Customer and terminate the same pursuant to Paragraph 7 of Schedule 1 (without being liable to the Customer for any losses);
3.4.2 at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract or agreements between Ampd Energy and the Customer, including but not limited to deposits or security payments, towards the payment of the relevant invoice; and
3.4.3 charge the Customer interest on the amount unpaid on a daily basis at the rate of ten per cent (10%) per annum from the due date until payment in full is made (or the maximum amount legally permitted if such amount is lower).
3.5 The Customer is not entitled to withhold from, set off against or otherwise reduce any payments due to Ampd Energy unless agreed in writing by Ampd Energy.
4. DELIVERY & INSTALLATION
4.1 Unless otherwise agreed in writing, Goods shall be delivered ex Works the location designated in the Customer’s Order and Ampd Energy shall be entitled to select the mode of shipment (especially with regard to carrier, route of shipment and packaging).
4.2 Partial delivery/performance of Supplies ordered is permissible. Where the Supplies are to be delivered/performed in instalments, each delivery/performance shall constitute a separate agreement and failure by Ampd Energy to deliver/perform any one or more of the instalments in accordance with the Agreement or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the whole Agreement as having been repudiated.
4.3 Where in relation to the delivery/provision of Supplies, works need to be performed by Ampd Energy at a Site, the Customer shall at its own costs and expense, take all necessary measures, to prepare the Site and ensure that the Site is suitable and ready for the commencement of the works or Services. The Customer shall ensure that the access roads to the Site are clear, Ampd Energy’s personnel are able to commence work immediately upon their arrival at the Site and further ensure that work proceeds in an uninterrupted manner. The Customer is responsible for all things related to the Site and shall supply Ampd Energy with such labour, information, facilities, equipment and any other materials and tools which Ampd Energy requires for the delivery/provision of the Supplies. This also includes information relating to the Site and all auxiliary services required by Ampd Energy which are relevant for the purposes of the delivery/provision of the Supplies and the provision of required documents (such as necessary permits and approvals). Without limiting the foregoing, the Customer shall provide at its own expense and in a timely manner the following:
4.3.1 unrestricted access to the Site and related infrastructure, including but not limited to entry permits and security passes;
4.3.2 such assistance as may be required by Ampd Energy in relation to obtaining import, export and customs clearance for personal belongings and goods of Ampd Energy and its subcontractors’ personnel and of the equipment, tools and goods required for the works or Services to be performed at the Site;
4.3.3 assistance to Ampd Energy and its subcontractors’ personnel for the obtaining of visas, work and residential permits to the extent required for the carrying out of the works or Services at the Site as well as with regard to any permits required for leaving the country;
4.3.4 repatriation of Ampd Energy’s and its subcontractors’ personnel in case of emergencies including but not limited to war, civil war, civil disturbance and epidemics;
4.3.5 the equipment, tools and materials as may be required by Ampd Energy which are necessary for the assembly, commissioning and the performance of Services, such as scaffolds, lifting equipment and other devices as well as fuels and lubricants;
4.3.6 any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data;
4.3.7 all utilities including but not limited to energy, water, telecommunications services, internet access, heating and lighting;
4.3.8 suitable dry and lockable rooms of sufficient size adjacent to the Site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working rooms for Ampd Energy’s and its subcontractors’ personnel, including sanitary facilities as are appropriate in the specific circumstances;
4.3.9 all reasonable measures to protect the property of Ampd Energy and its personnel and the health of Ampd Energy's employees at the Site;
4.3.10 protective clothing and protective devices needed due to particular conditions prevailing on the specific Site;
4.3.11 documentation of existing systems (e.g. service manuals, operator guides), building descriptions and floor plans, programming devices, measurement, test resources and tools; and
4.3.12 all earth-moving and construction work and other ancillary services to the extent not expressly included within Ampd Energy’s scope of Supplies including the necessary works, materials and tools.
4.4 Where the Customer does not either provide or fulfil the above required obligations in Paragraph 4.3 of Schedule 1 to the satisfaction of Ampd Energy, Ampd Energy shall be entitled to carry out all necessary work at the costs and expenses of the Customer provided the Customer has been informed of the non-compliance and has failed to remedy this within the rectification period set out in such notice of non-compliance. The Customer shall not move any Goods, equipment or part thereof from the Site without the prior consent in writing of Ampd Energy.
4.5 Subject to the Customer granting Ampd Energy such reasonable access to the Site and the Site conditions being suitable for the performance of the works or Services in accordance with Paragraph 4.3 of Schedule 1, Ampd Energy shall commence work at the Site on the scheduled date and/or deliver the Supplies on the scheduled date.
4.6 Where Goods are delivered to the Customer and no assembly, installation, erection and commissioning is required:
4.6.1 The Customer is obliged to inspect Goods upon delivery and shall notify Ampd Energy within one (1) week of receipt of Goods if there are any defects. Such notification of any defects shall be accompanied with relevant supporting evidence; and
4.6.2 If the Customer fails to notify Ampd Energy of the defects within one (1) week of the receipt of Goods, it will be deemed to have accepted such Goods free from any defects.
4.7 Where installation, erection or commissioning is required:
4.7.1 The Customer shall accept Goods (a) within two (2) weeks from the date that Ampd Energy declares that the relevant Goods are ready for acceptance, or (b) upon the completion of the Supplies including successful performance of acceptance tests if such tests have been agreed on; and
4.7.2 The Customer will be deemed to have accepted Goods if: (a) the relevant Goods are put to use by the Customer for commercial purposes or for other purposes other than for testing; (b) it fails to accept the Goods within the two (2) weeks period without providing any legitimate written reasons or specific details of such refusal; or (c) if the acceptance tests have not been carried out within 1 week after their scheduled dates due to reasons not attributable to Ampd Energy.
4.8 The Customer shall not be entitled to withhold acceptance for (a) defects which do not materially affect the usage of Goods; (b) minor deviations or deficiencies which do not materially affect the functioning of Goods; (c) defective installation or erection not carried out by Ampd Energy; or (d) reasons which are not within the reasonable control of Ampd Energy. As long as defects are capable of being remedied and Ampd Energy has not refused in writing to undertake the required remedial efforts, acceptance of Goods and/or Services shall be deemed to have taken place upon completion of remedial efforts by Ampd Energy.
4.9 If Goods or Services or any portion thereof is ready for delivery or performance and cannot be delivered or performed for reasons beyond Ampd Energy’s control, acceptance shall be deemed to have taken place upon Ampd Energy’s notification to the Customer of readiness for delivery or performance.
4.10 Any costs and expenses related to the inspection and/or acceptance of the Supplies shall be borne by the Customer.
4.11 If Ampd Energy fails to Deliver the Supplies by the Delivery Date (and in the case where Delivery is via instalment, by the last Delivery Date), and such failure is due to the wilful or negligent action or inaction of Ampd Energy, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Delivery Date(s) may be extended, at Ampd Energy’s discretion and by written notification to the Customer, by such further periods as may reasonably reflect any delay which will or may be or has been caused by any of the following events:
4.11.1 Force Majeure, as provided in Clause 8;
4.11.2 Any Variation or Suspension of the Agreement pursuant to Paragraph 2.5 to 2.8 or 3.3 of Schedule 1;
4.11.3 Any suspension of the Agreement pursuant to Paragraph 7 of Schedule 1;
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 Ampd Warranty Periods 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 Notwithstanding 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.
PPSA
5.5 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; and
6.1.2 it will comply with the Ampd Energy written limited manufacturer warranty which apply to the Goods and which will be made available to the Customer on request.
6.2 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.
6.3 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 Ampd Warranty Periods shall be as set forth in this Paragraph 6 and the limited manufacturer warranty.
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 Agreement 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.
SCHEDULE 2
ADDITIONAL LEASE CONDITIONS
1. DEFINITIONS
1.1 In this Schedule 2, unless the subject or context otherwise requires, the following words and expressions have the following meanings respectively ascribed to them:
1.1.1 “Deposit” means, in respect of a lease of Goods, the sum specified in the Customer’s Order to be deposited by the Customer with Ampd Energy on the execution of the Agreement;
1.1.2 “Hire Charges” means the amounts payable in respect of the lease of Goods and/or the supply of Services, as set out in the Customer’s Order;
1.1.3 “Lease Commencement Date” has the meaning given in Paragraph 2.2 of this Schedule 2;
1.1.4 “Lease Termination Notice” has the meaning given in Paragraph 9.1 of this Schedule 2;
1.1.5 “Minimum Period of Hire” means, in respect of the lease of Goods, the period commencing on the Lease Commencement Date for (i) the duration as set out in the Customer’s Order under the column titled “Item” and identified as the minimum period of hire for the unit rates so quoted; and (ii) any extension of the Period of Hire;
1.1.6 “Option Notice” has the meaning given in Paragraph 5.3 of this Schedule 2;
1.1.7 “Option Schedule” has the meaning given in Paragraph 5.1 of this Schedule 2;
1.1.8 “Option to Purchase” has the meaning given in Paragraph 5.2 of this Schedule 2;
1.1.9 “Period of Hire” means, in respect of the lease of Goods, the period commencing on the Lease Commencement Date and ending on the Return Date;
1.1.10 “Purchased Goods” has the meaning given in Paragraph 5.4 of this Schedule 2; and
1.1.11 “Return Date” means, in respect of the lease of Goods, the date which takes place after the period of time commencing from the Lease Commencement Date as specified in the Customer’s Order under the columns titled “Quantity” and “Units”.
2. PERIOD OF HIRE AND TRANSPORTATION
2.1 Upon receipt of the notice in writing from the Customer, Ampd Energy shall pack Goods for transportation and shall transport Goods to the Site. The risk of loss and damage to Goods shall pass from Ampd Energy to the Customer when Goods arrive at the Site.
2.2 The Lease Commencement Date shall be the date Goods arrive at the Site. Ampd Energy shall use reasonable endeavours to ensure that Goods arrive at the Site on or before the date specified in the Customer’s Order, if any.
2.3 Upon the expiry of the Agreement or termination of the Agreement pursuant to Paragraph 9.1 of Schedule 2 (and upon satisfying the Minimum Period of Hire), Ampd Energy shall repack Goods and procure that it is appropriately packed and ready for collection and removal from the Customer’s premises.
3. PAYMENT
3.1 The Customer shall pay to Ampd Energy the Hire Charges in the amounts so specified in the Customer’s Order. Payment shall be made so as to be received by Ampd Energy in cleared funds on its due date. If the due date does not fall on a Business Day then such payment shall be made by the next subsequent Business Day.
3.2 Ampd Energy may issue its invoice for the Hire Charges on a monthly basis in arrears. The Customer shall pay all undisputed invoices in full without deduction or set-off, in cleared funds within thirty (30) days of receipt of each invoice, to Ampd Energy or to the bank account nominated by Ampd Energy.
3.3 All amounts due under the Agreement are exclusive of all charges, taxes, duties, fees and levies of whatever nature which may be imposed, which where applicable shall be paid by the Customer.
3.4 The Customer shall pay full Hire Charges and will not be entitled to any rebate of Hire Charges for any reasons whatsoever. The Customer is not entitled to withhold from, set off against or otherwise reduce any payments due to Ampd Energy unless agreed in writing by Ampd Energy.
3.5 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Ampd Energy, Ampd Energy shall be entitled to:
3.5.1 suspend the provision of any further Services to the Customer, without being liable to the Customer for any losses;
3.5.2 at its sole discretion, apply the Deposit towards the payment of the relevant invoice; and
3.5.3 charge the Customer interest on the amount unpaid on a daily basis at the rate of ten per cent (10%) per annum from the due date until payment in full is made (or the maximum amount legally permitted if such amount is lower).
4. DEPOSIT
4.1 The Customer shall on the execution of the Agreement pay to and maintain with Ampd Energy the Deposit in the amount specified in the Customer’s Order. The Deposit shall be held by Ampd Energy throughout the currency of the Agreement, free of any interest to the Customer. The Parties acknowledge the Deposit is not held on trust. In the event of any breach or non-observance or non-performance of the Agreement, Ampd Energy (without prejudice to any other rights or remedies under the Agreement), shall be entitled to deduct from the Deposit the reasonable amount of any costs, expenses, loss or damage incurred or suffered by Ampd Energy as the result of any breach, non-observance or non-performance of the Agreement by the Customer.
4.2 If Ampd Energy makes a deduction from the Deposit under Paragraph 4.1 of Schedule 2, the Customer shall on demand by Ampd Energy make a further deposit equal to the amount so deducted.
4.3 Subject to Paragraphs 4.1 and 4.2 of Schedule 2, Ampd Energy shall refund the Deposit to the Customer without interest within thirty (30) days after the expiration or termination of this Agreement.
5. OPTION TO PURCHASE
5.1 Where the Customer’s Order expressly indicates that an option to purchase is available to the Customer and has attached thereto a schedule containing prices for the purchase of Goods (the “Option Schedule”), this Paragraph 5 of Schedule 2 shall apply.
5.2 Ampd Energy hereby grants to the Customer an option during the Period of Hire to purchase Goods (the "Option to Purchase"). The Customer may exercise the Option to Purchase at any time during the Period of Hire, but not before or after the Period of Hire.
5.3 The Option to Purchase shall only be exercised by the Customer giving Ampd Energy notice in writing in the form as appended in Annex A (the “Option Notice”) and signed by or on behalf of the Customer.
5.4 Once given, an Option Notice given in accordance with Paragraph 5.3 of Schedule 2 shall constitute a binding commitment on Ampd Energy to sell and on the Customer to purchase Goods so identified in the Option Notice (the "Purchased Goods") in accordance with the following terms:
5.4.1 the Customer shall make payment in accordance with the purchase price and payment terms specified in the Option Schedule, together with any modifications that may be expressly agreed in writing between Ampd Energy and the Customer;
5.4.2 Ampd Energy shall transfer (or confirm) possession of the Purchased Goods to the Customer in its then existing state and condition, and the Customer acknowledges, understands and accepts the Purchased Goods on an as-is basis;
5.4.3 risk or loss and damage in the Purchased Goods shall pass to (or remain with) the Customer upon such transfer (or confirming) of possession of the Purchased Goods; and
5.4.4 title in the Purchased Goods shall pass to the Customer upon Ampd Energy's receipt of the purchase price for the Purchased Goods in full, and Paragraph 7.1.1 of Schedule 2 shall continue to apply to the Purchased Goods until title so passes in accordance with this Paragraph 5.4.4.
6. AMPD ENERGY’S COVENANTS
6.1 Ampd Energy warrants, undertakes and agrees that:
6.1.1 provided the Customer is not in breach of its obligations under the Agreement, Ampd Energy will not interfere with the Customer's possession, use or enjoyment of Goods; and
6.1.2 the capacity of Goods shall be as stated in the Customer’s Order and the Operating Manuals.
6.2 Except as represented in the Agreement, Ampd Energy provides Goods and any Software associated with Goods “as is”. Other than as provided in the Agreement, Ampd Energy makes no other warranties, express or implied, and hereby disclaims all implied warranties, including any statutory warranties.
7. CUSTOMER’S COVENANTS
7.1 The Customer warrants, undertakes and agrees:
7.1.1 that as between Ampd Energy and the Customer, Goods shall remain the property of Ampd Energy and that the Customer shall have no right or interest therein and will not obtain title to Goods and shall at no time do or permit to be done any act or thing which might prejudice or jeopardise the rights of Ampd Energy in and to Goods;
7.1.2 without prejudice to the generality of Paragraph 7.1.1 of Schedule 2:
(a) not to sub-let or lend out Goods without the prior written consent of Ampd Energy; and
(b) not to impose or cause to be imposed any charge, lien, equity, third party right, option, right of pre-emption, priority or security interest, or encumbrances of whatsoever nature on Goods without the prior written consent of Ampd Energy;
7.1.3 to safeguard and protect Goods against damage or destruction;
7.1.4 to use only in conjunction with other plant and equipment of whatever nature as are specified in the Operating Manuals or as may be otherwise approved in writing by Ampd Energy;
7.1.5 to only engage operators that have been authorised by Ampd Energy to operate Goods in accordance with the Operating Manuals or as may be otherwise instructed by Ampd Energy;
7.1.6 not to make any modifications or alterations of whatsoever nature to Goods;
7.1.7 to return Goods to Ampd Energy in the same state of repair as it was received from Ampd Energy (reasonable fair wear and tear only excepted);
7.1.8 not to remove Goods from the Site without the prior written permission of Ampd Energy;
7.1.9 not to:
(a) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of Goods or any Software, nor arrange or create derivative works based on Goods or any Software; or
(b) permit the whole or any part of any Software to be combined or merged with or become incorporated in any other program;
7.1.10 to notify Ampd Energy in writing as soon as reasonably practicable if Goods are involved in any accident resulting in bodily injury, sickness, disease or death, of any person or damage to or loss of any property, real or personal; and
7.1.11 to permit Ampd Energy and any persons duly authorised by Ampd Energy to have access to Goods on reasonable notice being given and at a time convenient to the Customer in order to allow inspection, testing and repair of Goods.
8. INSURANCE
During the Period of Hire, the Customer shall at its own expense effect and maintain contractor's all risks and third-party liability arising out of the use of Goods for not less than the actual value of Goods. The Customer will ensure that Ampd Energy shall enjoy the benefits of contractor's all risks and third-party liability insurances arranged by the Customer (or for which the Customer is otherwise entitled to enjoy). Ampd Energy shall at its own expense effect and maintain plant and equipment insurance in respect of Goods.
9. TERMINATION
Termination after the Minimum Period of Hire
9.1 Provided the Customer is not in default of any of its obligations under the Agreement, the Customer shall be entitled to terminate the Agreement at any time on giving Ampd Energy not less than three (3) months' advance notice in writing (the “Lease Termination Notice”). Where the date that the Lease Termination Notice expires is a date occurring before the end of the Minimum Period of Hire the Customer shall pay Hire Charges for the entire period of the Minimum Period of Hire.
If the Customer fails to provide the Lease Termination Notice as referred to in and required by Paragraph 9.1 of Schedule 2, then without prejudice to any other remedies that Ampd Energy may have under the Agreement or at law, Ampd Energy shall be entitled to make a deduction from the Deposit as compensation. The deduction shall be calculated as follows:
9.2 The Parties agree that the deduction above proportionately represent Ampd Energy's rights in enforcing the notice period in Paragraph 9.1 of Schedule 2.
9.3 The Customer shall return the Goods to Ampd Energy without any charge, lien, equity, third party right, option, right of pre-emption, priority or security interest, or encumbrances of whatsoever nature.
Termination on insolvency
9.4 In the event that:
9.4.1 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;
9.4.2 the Customer has any distress for rent or other seizure under execution or other legal process made in respect of its assets;
9.4.3 an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer; or
9.4.4 if any act is done or event occurs which (under any applicable laws) has a similar effect to any of the acts or events mentioned above,
then, to the extent legally permitted, the Agreement shall terminate immediately without requiring any notice or other act by Ampd Energy.
Termination on default
9.5 If and on each and every occasion on which:
9.5.1 the Customer fails to pay any Hire Charges or any other sums payable under the Agreement in full within forty-five (45) days after the same has become due;
9.5.2 the Customer does or causes to be done or permits or suffers any act or thing whereby Ampd Energy's rights in Goods are prejudiced or put into jeopardy; or
9.5.3 a Party commits a material breach of the Agreement and (if capable of remedy) fails to remedy such breach within thirty (30) days after notice in writing from the other Party requiring the same;
then the defaulting Party shall be deemed to have repudiated the Agreement and the other Party may thereupon or at any time within one (1) month after becoming aware of the same accept that repudiation and (without prejudice to any other rights under the Agreement or any pre-existing liability) serve written notice on the defaulting Party terminating the Agreement forthwith and for all purposes.
9.6 Where the Customer is the defaulting Party pursuant to Paragraph 9.5 of Schedule 2, Ampd Energy may at its sole and exclusive discretion, disable use of Goods without providing notice of any kind to the Customer, in addition to any other remedies afforded to Ampd Energy in accordance with the Agreement and provided by law.
9.7 Upon the termination of the Agreement under Paragraphs 9.4 or 9.5 of Schedule 2 above, if the Customer is the defaulting Party, the Customer shall no longer be entitled to possess or use Goods with the consent of Ampd Energy and the Customer shall:
9.7.1 at the Customer’s expense return or re-deliver such Goods to Ampd Energy at such place in the world as may be appointed by Ampd Energy in good working order and condition (reasonable fair wear and tear only excepted) and so that if the Customer shall fail to return or re-deliver such Goods within a reasonable time (not exceeding fourteen (14) days) of being requested so to do by Ampd Energy, Ampd Energy may forthwith and without any notice retake possession of such Goods and for this purpose shall be entitled freely to enter into and upon any premises (including the Site) occupied by or under the control of the Customer (and the Customer waives any right of action against Ampd Energy for such repossession);
9.7.2 be solely responsible for ensuring the safe-keeping, supervision and custody of Goods until it is returned to or repossessed by Ampd Energy; and
9.7.3 without prejudice to Ampd Energy's rights to claim damages, become immediately liable to pay Ampd Energy an amount comprising the aggregate of:
(a) all arrears of Hire Charges and any other sums accrued due and unpaid under the terms of the Agreement together with interest thereon;
(b) any costs and expenses incurred by Ampd Energy in locating, repossessing, recovering or restoring Goods or in collecting any payments due under the Agreement or otherwise in obtaining the due performance of the obligations of the Customer hereunder; and
(c) all and any other sums due under the Agreement for the full term of the Agreement which shall at the option of Ampd Energy at once become immediately due and payable.
General
9.8 Without prejudice to Clause 9.13 of the Conditions, this Paragraph 9 of Schedule 2 shall survive the expiry or termination of the Agreement.
9.9 Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of any of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
10. PPSA
10.1 The following Paragraphs 10.2 to 10.9 apply if Goods are supplied in Australia. “PPSA” means the Australian Personal Property Securities Act 2009 (Cth).
10.2 For the purposes of this Paragraph 10, the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’, ‘PPS lease’ and ‘security interest’ have the meanings set out in the PPSA.
10.3 The Customer:
10.3.1 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
10.3.2 agrees the security interest referred to under Paragraph 10.3.1 is a PPS lease and therefore represents a purchase money security interest under the PPSA.
10.4 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:
10.4.1 ensuring that the security interest is enforceable, perfected and otherwise effective;
10.4.2 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
10.4.3 Ampd Energy exercising its rights in connection with the security interest.
10.5 Everything that Ampd Energy is required to do under this clause is at the Customer’s expense.
10.6 The Customer waives any rights it may have:
10.6.1 under sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 134(1), 135 and 157 of the PPSA; and
10.6.2 under sections 142 and 143 of the PPSA.
10.7 The parties agree that sections 96 and 117 of the PPSA do not apply to this Agreement.
10.8 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.
10.9 The Customer must not:
10.9.1 change its name, ACN or ABN without providing Ampd Energy with at least 30 days’ notification in writing;
10.9.2 remove the Goods from its premises without the prior consent of Ampd Energy;
10.9.3 expose the Goods to the risk of loss, damage or detention;
10.9.4 transfer, sub-license, part with or share the possession of the Goods;
10.9.5 create, consent to or permit a security interest over the Goods to anyone else; or
10.9.6 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.
ANNEX A
OPTION NOTICE
Date:
Option Notice
[NAME OF CUSTOMER]
Agreement for Rental of Goods
in connection with the Quotation dated [DATE] (the “Agreement”)
We hereby give you notice that we exercise the Option to Purchase to purchase the Goods as listed below pursuant to Paragraph 5.2 of Schedule 2 to the Conditions and the Option Schedule. For the avoidance of doubt, this letter constitutes the Option Notice defined in Paragraph 5.3 of Schedule 2 to the Conditions.
| Item No. | Description of Goods | Quantity | Purchase Price |
|---|---|---|---|
| TOTAL: |
Yours sincerely
________________________
[NAME OF SIGNATORY]
Authorised Signatory
For and on behalf of
[NAME OF CUSTOMER]
SCHEDULE 3
ADDITIONAL SERVICE PLAN CONDITIONS
1. DEFINITIONS
1.1 In this Schedule 3, unless the subject or context otherwise requires, the following words and expressions have the following meanings respectively ascribed to them:
1.1.1 “Good Working Order” means operating in accordance with Ampd Energy’s specification for the Goods.
1.1.2 “Service Plan” means an Ampd Energy service plan for the Goods described in the documentation that Ampd Energy attaches to the Quotation, as updated from time-to-time;
1.1.3 “Service Plan Services” means fulfilment of a Service Plan by Ampd Energy;
1.1.4 “Service Plan Charges” means the amounts payable in respect of the Service Plan Services, as set out in the Customer’s Order;
1.1.5 “Customer’s Default” means a default of the Customer in the manner described in Paragraph 4.13 of this Schedule 3;
1.1.6 “Purchase Price” has the meaning given in Paragraph 2.1 of this Schedule 3.
2. PRICE, CHANGE TO SUPPLIES, VARIATIONS
2.1 The price of the Service Plan Services shall be the price stated or referred to in the Agreement (the “Purchase Price”).
2.2 For the provision of Service Plan Services, the Purchase Price shall include the costs referred to in the Service Plan, and exclude any other costs incurred by Ampd Energy for the purposes and in the course of providing Service Plan Services, unless otherwise stated in the Quotation. The Customer shall be responsible for any additional costs Ampd Energy incurs in providing the Service Plan Services.
2.3 The Purchase Price is exclusive of value added tax, goods and services tax, any similar sales or transaction tax or any tax that replaces such sales or transaction taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to Ampd Energy, the Customer shall increase the sum it pays to Ampd Energy by the amount necessary to leave Ampd Energy with an amount equal to the sum it would have received if no such withholding or deduction had been made.
2.4 Either Party may at any time request in writing changes, modifications or additions to the scope of the Service Plan Services (hereinafter referred to as “Variation”). Upon receipt of a Variation request, Ampd Energy shall provide the Customer with a written quotation for the requested Variation, specifying the effects of the requested Variation on the Agreement, including any necessary adjustment of the Purchase Price, time schedules and agreed dates, scope of the Supplies and any other affected provisions of the Agreement.
2.5 If the Customer wishes to proceed with a requested Variation on the basis of Ampd Energy’s quotation, the Customer shall notify Ampd Energy thereof in writing within fourteen (14) days of receipt of the quotation. Ampd Energy is not obliged to give effect to the Variation until it has been agreed in writing by the parties.
2.6 Ampd Energy reserves the right to make any changes in the Agreement or specification of the Service Plan Services which are required to conform to any applicable laws, rules, regulations, engineering standards or statutory requirements or, where the Supplies are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
2.7 In the event of amendments or updates to applicable laws, rules and regulations, engineering standards and codes of practice, and decisions or guidance issued by courts or public authorities subsequent to the date of the Agreement, Ampd Energy shall be entitled to an adjustment of the Agreement, including among other things, an adjustment of the Purchase Price to reflect any additional costs to be incurred by Ampd Energy, the time schedules and scope of the Supplies, as necessary in order to compensate for any adverse effects or additional requirements deriving from such changes.
3. TERMS OF PAYMENT
3.1 The Customer shall pay to Ampd Energy the Service Plan Charges in the amounts so specified in the Customer’s Order. Payment shall be made so as to be received by Ampd Energy in cleared funds on its due date. If the due date does not fall on a Business Day then such payment shall be made by the next subsequent Business Day.
3.2 Ampd Energy will issue its invoice for the Service Plan Charges annually in advance. The Customer shall pay all undisputed invoices in full without deduction or set-off, in cleared funds within thirty (30) days of receipt of each invoice, to Ampd Energy or to the bank account nominated by Ampd Energy.
3.3 All amounts due under the Agreement are exclusive of all charges, taxes, duties, fees and levies of whatever nature which may be imposed, which where applicable shall be paid by the Customer.
3.4 The Customer shall pay full Service Plan Charges and will not be entitled to any rebate of Service Plan Charges for any reasons whatsoever. The Customer is not entitled to withhold from, set off against or otherwise reduce any payments due to Ampd Energy unless agreed in writing by Ampd Energy.
3.5 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Ampd Energy, Ampd Energy shall be entitled to:
3.5.1 suspend the provision of any further Service Plan Services to the Customer, without being liable to the Customer for any losses; and
3.5.2 charge the Customer interest on the amount unpaid on a daily basis at the rate of ten per cent (10%) per annum from the due date until payment in full is made (or the maximum amount legally permitted if such amount is lower).
4. PERFORMANCE OF SERVICE PLAN SERVICES
4.1 Subject to the Customer granting Ampd Energy such reasonable access to the Site and the Site conditions being suitable for the performance of the Service Plan Services in accordance with Paragraph 4.3 of Schedule 1, Ampd Energy shall endeavour to commence and perform the Service Plan Services on mutually agreed dates. The Parties agree that time for performance of the Service Plan Services is not of the essence and that Ampd Energy gives no commitment to perform the Service Plan Services on any particular date or time.
4.2 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.
4.3 The Customer acknowledges and accepts that the Good may need to be shutdown and/or deactivated to perform the Service Plan Services. Ampd Energy has no responsibility for any delay or disruption caused due to such work.
4.4 Unless otherwise agreed in writing between the Parties training and certification will take place at Ampd Energy’s facility. Service Plans Services performed on the Goods shall take place at the Customer’s Site nominated in the Quotation. If the Quotation does not nominate a Site Ampd Energy reserves the right to refuse to perform the Service Plan Services until the Site location is agreed.
4.5 The Customer acknowledges and accepts that Service Plans are not transferrable between the Goods or to third parties, without Ampd Energy’s prior written consent.
4.6 Ampd Energy is not obligated to perform the Service Plan Service where:
4.6.1 the Customer has used the Goods with equipment or materials not supplied or approved in writing by Ampd Energy;
4.6.2 maintenance, alteration, modification or adjustment has been performed by persons other than the Ampd Energy or its employees or agents unless approved in writing by Ampd Energy;
4.6.3 the Customer or third party has moved the Goods unless approved in writing by Ampd Energy;
4.6.4 the Goods have been used in breach of any of the provisions of the agreement under which the Goods were supplied;
4.6.5 there is insufficient electrical power at the Site;
4.6.6 the Customer has neglected or misused the Goods.
4.7 Where Ampd Energy is performing or has performed the Service Plan Services in circumstances where it is established that the Goods were not in Good Working Order due to any of the causes listed in Paragraph 4.6 of Schedule 3, Ampd Energy may charge, and the Customer shall pay, the Additional Charges in respect of that work.
4.8 The Customer shall provide Ampd Energy with such information concerning the Goods, its application, use, location and environment as Ampd Energy may reasonably request to enable it to perform the Service Plan Services.
5. WARRANTIES
Spare Parts and Service Plan Services supplied in the course of fulfilling a Service Plan are subject to the warranties set out in Paragraph 6 of Schedule 1.
6. TERMINATION AND/OR SUSPENSION OF SUPPLIES
6.1 In the event that:
6.1.1 the Customer is in breach of the Agreement;
6.1.2 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;
6.1.3 an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer;
6.1.4 the Customer ceases or threatens to cease to carry on business;
6.1.5 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);
6.1.6 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
6.1.7 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, to the extent legally permitted, terminate the Agreement forthwith on the occurrence of each of the events in Paragraph 6.1.2, 6.1.3, 6.1.4 or 6.1.5 of Schedule 3 or suspend any further Service Plan Services under the Agreement without any liability to the Customer.
6.2 Upon the issuance by Ampd Energy of a written notification giving notice of the suspension of any further Service Plan Services under the Agreement pursuant to Paragraph 6.1 of Schedule 3, the Customer shall if the suspension is due to or arises from a breach by the Customer of the Agreement under Paragraph 6.1.1 of Schedule 3, 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.
6.3 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.
6.4 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.
6.5 Without prejudice to Clause 9.13 of the Conditions, this Paragraph 6 of Schedule 3 shall survive the expiry or termination of the Agreement.
7. NON-SOLICITATION
7.1 In order to protect their respective legitimate business interests each party covenants with the other that it shall not (except with the prior written consent of the other party):
7.1.1 attempt to solicit or entice away; or
7.1.2 solicit or entice away,
from the employment or service of the other party the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other party.
7.2 The parties shall be bound by the covenant set out in Paragraph 7.1 during the term of the Agreement, and for a period of 6 months after termination or expiry of the Agreement.
7.3 For the purposes of this Paragraph 7, a Restricted Person shall mean any firm, company or person employed or engaged by a party during the term of the Agreement, who has been engaged in the provision of the Service Plan Services.
7.4 Any consent given in accordance with Paragraph 7.1 shall be subject to payment to the consenting party of a sum equivalent to 20% of the then current annual remuneration of the Restricted Person or, if higher, 20% of the annual remuneration to be paid to the Restricted Person.
.avif)
