Delivery of System

1. Next Energy shall use commercially reasonable efforts to meet the delivery timeframe set out herein subject to the weather, government orders restricting works or movement and the Customer providing all necessary information, access, permission and approvals in relation to the delivery and installation as requested by Next Energy. Next Energy shall not be liable for, nor shall Next Energy be in breach of its obligations to you hereunder, for any delivery made after the communicated delivery date for any reasons outside its control.
2. For the avoidance of doubt, Next Energy shall be entitled to subcontract the installation services or any part thereof under this agreement to any third party.
3. Next Energy shall notify you when the system and the installation services will be ready for commissioning, inviting you to attend the standard tests or other agreed tests to demonstrate completion of the installation works. If your representative fails to attend the tests on the date notified, Next Energy or its representative will carry out the tests according to Next Energy standard/approved test procedures and these tests shall be deemed performed in the presence of your representative.
4. Upon completion of the installation, Next Energy shall deliver to you a delivery order or completion certificate and you shall be deemed to have accepted the system and all associated services set out in such delivery order or completion certificate on the date specified therein.

Price and Payment

1. Next Energy reserves the right, by written notice to you, to adjust the contract price proportionately under this agreement not yet delivered or performed to reflect the variations in costs arising from any significant material price increase or foreign exchange rate fluctuations that take effect between the date of this agreement and the delivery of the system.
2. You shall have no right to withhold or reduce any payments or to set off existing and future claims against any payments due under this agreement or under any other agreement that you may have with Next Energy and agrees to pay the amounts hereunder regardless of any claimed set-off which may be asserted by you or on your behalf.
3. Next Energy shall be entitled to assign or transfer its receivables due from you under this agreement to any financier or financial institutions.

4. Without prejudice to its other rights and remedies, if you fail to pay any amount due, Next Energy shall be entitled to:

   a. Charge late payment interest as set out in the terms and conditions of any issued invoice; and
   b. Where payment is deferred or in installments, to accelerate all the amounts remaining to be paid whether due or outstanding or otherwise and demand for the full sum to be paid within seven (7) days and/or discontinue any service or use of the system until receipt of the amounts due;
   c. Such other actions and remedies as available to Next Energy, including but not limited to reporting to credit reporting agencies;
   d. Charge you for all costs incurred in collecting the amounts due, as well as additional costs or incurred losses made by Next Energy including without limitation, reasonable administrative, storage, repossession and legal costs.

5. The performance by Next Energy under this agreement will always be subject to Next Energy’s credit approval of you. If, in Next Energy’s reasonable judgment, you are likely to be unable to fulfil its payment obligations, Next Energy may require full or partial payment in advance, or the provision of additional security, or other conditional payment terms. If you are unable to provide such payment, security or assurance to Next Energy, Next Energy may in its absolute discretion suspend, delay or cancel any credit, delivery or any other performance hereunder.

Customer Undertakings

1. You shall, in an accurate and timely manner:

   a. Settle all payment obligations on a timely basis in accordance with the terms of this agreement without any exception whatsoever.
   b. Be, at its own expense and risk, responsible for site preparation, including infrastructure, which must follow all safety, electrical and building codes relevant to the system and safe work surroundings for Next Energy employees and its representative; and
   c. Provide access to and availability of the site to Next Energy without obstacles and in due time to enable Next Energy to start and complete the installation and provide access to necessary utilities.

2. In the event there has been a delay in the installation of the system caused by your delay, act or omission, the period for delivery, installation and commissioning of the system will be extended accordingly and all resulting damages and additional costs caused by such delay, act or omission will be borne by you.

Warranty

1. Warranty coverage is limited to the product warranties attached to the components of the system, if any, and the workmanship warranty set out herein.
2. No warranty or liability in addition to those expressly set out herein shall be provided in relation to the system and all such additional warranty or liability is hereby specifically excluded, including warranty for any fitness for any purpose.
3. You shall be solely responsible and liable for any use of the system or modification or change to the system or any act and omission by you, including neglect or improper handling, in relation to the system and any use of any part of the system or act or omission in relation to such item after the system has been delivered to you.
4. In any event, Next Energy’s sole and exclusive obligation, and your sole and exclusive right, with respect to claims under warranty shall be limited, at Next Energy option, either to the replacement or repair of defective components only. Defective Products shall become Next Energy property as soon as they have been replaced. Next Energy shall not be responsible for the costs related to re-installation, including labor costs, of defective components or parts.
5. The warranties herein shall extend only directly to you and not to your customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability which are hereby specifically disclaimed by Next Energy.

Title and Risk

1. Next Energy retains title to the system until it has received full and clear payment as invoiced and as set out herein Products delivered or until the delivery order/completion certificate has been issued, whichever is the later.
2. Risk shall pass upon delivery of the system.
3. If you become subject to bankruptcy or insolvency proceedings or appear unable to pay its debts before title to the system passes to you, Next Energy may, without limiting any other right or remedy Next Energy may have, at any time require you to return the system to Next Energy at your own cost. In the event you fail to promptly return the system in good condition, Next Energy may enter your premises to recover the system.

Intellectual Property

Next Energy retains ownership, rights and title in and to all intellectual property, including copyrights. In respect of any documents, drawings, diagrams, calculations, designs or other documentation associated with any offer, proposal, order or agreement relating to the system. You are not entitled to re-use any documentation or designs in full or in party without Next Energy’s prior permission, which shall not be unreasonably withheld. Next Energy may attach conditions to its permission, including the payment of reasonable sum.

Indemnity and Limitation of Liability

1. You shall indemnify and keep indemnified and hold harmless Next Energy and its officers, directors, shareholders, agents, representatives and employees against any claim, liability and expense, including attorney’s fees and expenses of litigation in connection with this agreement, including, without limitation, claims for personal injury, death or damage where arising out of or caused directly by your negligent or willful act or omission or that of your officers, directors, shareholder, agents, employees and/or representatives.
2. Notwithstanding any other provision herein, Next Energy shall not be liable for any lost profits, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages arising out of or in connection with this agreement, whether or not such damages are based on tort, warranty, contract or any other legal theory-even if Next Energy has been advised of, or is aware, of the possibility of such damages. Save for liabilities that cannot be limited or excluded by Malaysian law, the total, aggregate and cumulative liability of Next Energy for all claims of any kind arising from or related to this agreement is limited to the price stated herein.

Cooperation

You shall cooperate with Next Energy efforts in relation to any assignment or transfer of receivables under this agreement.