TERMS AND CONDITIONS
OFFER, CONFIRMATION, CONTRACT
These general terms and conditions of sale of Julius Berger Nigeria Plc. (the “General Condi tions”) apply to, and form an integral part of, all quotations and offers for the delivery of goods (“Products”) made by Julius Berger Nigeria Plc (“Julius Berger ”) to any customer (“Customer”) and any acceptance, acknowledgement or confirmation by Julius Berger of any request for the delivery of Products by any Customer and any contracts regarding the sale by Julius Berger and purchase by a Customer of Products, also for future business transactions, unless and to the extent Julius Berger explicitly agrees to otherwise in writing. Offers of Julius Berger are open for acceptance within the period stated by Julius Berger in the offer or, if no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Julius Berger at any time prior to the receipt by Julius Berger of Customer’s acceptance thereof. No request for the delivery of Products submitted by the Customer shall be deemed accepted by Julius Berger unless and until confirmed in writing by Julius Berger.
PRICES AND PAYMENT
The prices in any offer or confirmation of Julius Berger and any contract shall be exclusive of VAT, and based on delivery at the place of delivery in accordance with clause. The prices are based on quantities agreed or indicated in the contract and the date agreed for delivery. Julius Berger reserves the right to adjust the price if the Customer fails to take delivery of the indicated quantity or within the agreed delivery period. The prices do not include any taxes, duties or similar levies enacted after the date of any offer or confirmation of Julius Berger, applicable to the Products. Julius Berger will add such taxes, duties and similar levies to the sales price. The Customer shall pay for the Products (less any discount to which it may be entitled but without any other deduction) on such date or within such period as specified in the offer respective- ly order confirmation of Julius Berger. Time for payment shall be of the essence. No discount is allowed for early payment unless agreed to in writing by Julius Berger . If deliveries are made in instalments, each instalment may be separately invoiced and shall be paid for when due. Any query by the Customer relating to an invoice must be made in writing within 14 days of the date of invoice. Payments are to be made by bank transfer to the account of Julius Berger specified in the invoice. Unless the Julius Berger reference number of the quotation respectively the order confirmation is clearly specified when payment is made, Julius Berger may appropriate any payment made by the Customer as Julius Berger thinks fit. In the event of default in payment by the due date, Julius Berger shall be entitled to charge interest on money overdue at a rate of five (5) percentage points above the Prevailing Monetary Policy Rate as published by the Central Bank of the federal Republic of Nigeria until payment in full is made. Without prejudice to its entitlement to payment of interest, Julius Berger shall at its discretion be entitled to suspend delivery or terminate the contract in respect of any undelivered Products.
Delivery dates communicated or acknowledged by Julius Berger shall be treated as being ap- proximate only, and Julius Berger shall not be liable for, nor shall Julius Berger be in breach of its obligations to Customer, for any delivery made within a reasonable time before or after the communicated delivery date. Julius Berger agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it. The place of delivery shall be the place designated by Julius Berger in the offer or confirmation or, if no such place is specified, the Julius Berger manufacturing facility. The Customer will sign an acknowledgement of receipt of the Products. If the Customer speci- fies “unexamined” or similar wording Julius Berger will treat that as confirmation of receipt of all the Products. If the Customer fails to take delivery of the Products on the agreed date for delivery or requests Julius Berger to hold the Products thereafter, Clause 5 shall apply accordingly. Julius Berger shall be entitled to make partial deliveries of the Products or deliver the Products by instalments. No sale of Products shall be a sale by sample.
Where Products are to be delivered in instalments, failure by Julius Berger to deliver any one or more instalments or any claim by Customer under these General Conditions with respect to one instalment shall not entitle the Customer to reject further instalments or cancel any further contract.
Julius Berger reserves the right to modify the Products to comply with statutory requirements and to improve facilities or performance. It is Julius Berger’s policy to endeavour to develop and improve its Products, and accordingly Julius Berger reserves the right to change specifications without prior notification or public announcement, if nothing in this clause shall oblige the Customer to accept Products which do not reasonably comply with the Contract.
If Customer fails to give all necessary instructions and documents for the Products to be deliv ered, or Customer shall otherwise cause or request a delay, Julius Berger shall be entitled to put the Products in storage. Julius Berger shall be entitled to withhold delivery and put the Products in storage if Custom- er owes any amounts or is in arrears with payment. General Terms and Conditions of Sale (2019.06) Upon expiry of (i) 30 days from the date the Products were available for delivery or (ii) a final deadline set by Julius Berger for the taking of the delivery, Julius Berger may, at its option, (a) keep the Products and return any payment received (after deducting all storage and other rel- evant costs), or (b) sell the Products and (after deducting all storage, selling and other relevant cost and expenses) charge the Customer for any shortfall below the contract price. Where Julius Berger arranges storage on the Customer’s behalf or for a reason in Clauses 3.3, 5.1 or 5.2, the Customer shall make the payment of the purchase price on the day following the date the Products were available for delivery. In addition to the purchase price, for storage and other relevant costs an amount equal to 0.2% of the agreed price of the Product(s) in storage per calendar day as lump sum compensation. This compensation shall be due and payable weekly in arrears.
TITLE AND RISK
The risk of loss in or damage to the Products shall pass to Customer upon delivery by Julius Berger. If the Customer fails to take delivery at the delivery date, the risk of loss shall never- theless pass to the Customer at the delivery date. In such case, the risk of loss will not vest in Julius Berger by virtue of Julius Berger providing storage of Products. Title in the Products will not pass to the Customer until Julius Berger has received full payment for the Products and for any other claims in respect of the business relationship with the Customer, including any future claims. Julius Berger shall be entitled to bring an action for the payment whether or not the property in the Products has passed. Until title passes, the Customer holds the Products on behalf of Julius Berger as bailee and must keep the Products free from any charge, lien or other encumbrance and shall keep the Products identifiable and separate from other property in its possession. The Customer has the right to resell the Products but not as Julius Berger’s agent or otherwise in the name of Julius Berger and Julius Berger may terminate that right at any time prior to full.
At the time of delivery, the Products shall correspond with their specification and shall be free from defects in material and workmanship, subject to the following conditions. Julius Berger shall be under no liability in respect of:
any defect in the Products arising from designs or specifications supplied to Julius Berger by the Customer; 7.1.2 any defect arising from the Customer’s failure to use and store the Products;
any defect arising as a result of excessive wear and tear, the Products being incorrectl fitted, subjected to neglect, carelessness or abnormal conditions, accident, or any attempt at repair, replacement or modification has been made without the prior written agreement of Julius Berger;
REMEDIES AND LIMITATION OF LIABILITY
The following sets out Julius Berger’s liability to the Customer arising out of or in connection with the delivery or any failure to deliver Products under these General Conditions, whether in contract or tort, including negligence, and are the Customer’s sole remedies in respect of any act or default on the part of Julius Berger.
Julius Berger will accept liability for death or personal injury resulting from its negligence, for fraud or for fraudulent misrepresentation, and for any other liability which cannot be excluded by law.
Julius Berger will accept liability for direct physical damage to the tangible property of the Customer to the extent that it is caused by the negligence of Julius Berger, subject to the exclusions set out in clause 8.6 and up to a maximum limit of 200% of the Product price in aggregate.
Julius Berger will not be liable for any defect or other non-compliance of a Product with the contract, notified after the expiry of six (6) months after the agreed delivery date.
Except as provided in clauses 8.2 and 8.3, Julius Berger’s total liability in respect of any one default will not exceed 100 % of the total purchase price of all the Products in respect of which Julius Berger is in default. If a number of defaults give rise to substantially the same
Except as provided in clause 8.2 Julius Berger will not be liable for:
loss of business, revenue, profits, anticipated savings (even where the same arise direct ly from a breach of these General Conditions); or special, indirect or consequential loss, even if such loss is foreseeable by or in the contemplation of Julius Berger , or for any claim made against the Customer by any other person.
Except as expressly stated in this clause 8 all conditions and warranties implied, statutory or otherwise are excluded to the maximum extent permitted by law.
PATENTS AND COPYRIGHT
Julius Berger warrants that no patent infringement shall arise from the design (if any) and manufacturing of the Products by Julius Berger. Julius Berger shall, however, not be liable for any patent right infringement arising from compliance with the Customer’s design, specification or instruction.
Where design or documentation is embedded in or delivered with the Products, the sale of the Products shall not constitute a transfer of title in the same to the Customer but shall only imply a non-exclusive and non-transferable license under Julius Berger’s intellectual property rights to use the same with, and as embedded in or delivered with, the Products as supplied by Julius Berger.
All descriptions, drawings, software or other information supplied by Julius Berger will remain property of Julius Berger together with the copyright in them. BREACH Without prejudice to any other right or remedy, a party not in breach will be entitled to consider the other party in breach and may promptly terminate any contract and/or suspend any further deliveries and bring action in accordance with clause 6.3 if:
a party commits a material breach of the contract and fails to remedy the same within 14 days of receiving written notice to remedy from the other party (however, late payment requires no such notice for there to be such a breach); or
either party or its parent makes any voluntary arrangement with creditors or becomes subject to an administration order, or if an individual or firm, becomes bankrupt or, if a company, goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
a receiver or administrative receiver is appointed over, or an encumbrancer takes possession of any of a party’s property or assets or the property or assets of its parent or subsidiary companies or a party ceases trading or threatens to cease trading or any distress or execution is levied on a party, its goods or assets; or
a party has reasonable cause to believe that any of these events is about to occur to the other party.
Customer acknowledges that all technical, commercial and financial data disclosed to Customer by Julius Berger and/or its affiliates is the confidential information of Julius Berger and/or its affiliates. Customer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
ASSIGNMENT AND SETOFF
Customer shall not assign any rights under a contract without the prior written consent of Julius Berger. Customer shall have no right to withhold or reduce any payments or to offset existing or future claims under any other agreement that Customer may have with Julius Berger or any of its affiliates against any payments for Products, and Customer agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Customer or on its behalf. However, Customer shall have the right to offset claims that are undisputed by Julius Berger or which have been established through a non-appealable judgment.
Neither party shall be liable to the other for any breach arising from events beyond the reasonable control of the other party or its sub-contractors or suppliers including but not limited to acts of God, war, riot, fire, strikes, terrorism, lock-outs or other forms of industrial action.
These General Conditions may not be amended, varied or modified except in writing signed by a duly authorised officer or representative of each of the parties.
Failure or delay by a party in enforcing or partially enforcing any provision of these General Conditions shall not be construed as a waiver of any of its rights under any contract.
If any provision of these General Conditions is found to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected by that invalidity or unenforceability.
These General Conditions and the contract between the Customer and Julius Berger shall be construed and interpreted in all respects in accordance with the laws of the Federal Republic of Nigeria.
Disputes between the customer and Julius Berger arising out of, in connection with or as a consequence of the contract which cannot be settled amicably, shall be finally settled by arbitration disbarring the competent court. Arbitration shall be held in Abuja in accordance with the rules of arbitration of the Arbitration Act of the Federal Republic of Nigeria as in force at the date of contract. The language of the proceedings shall be English.
Any terms and conditions which by their nature extend beyond expiration or termination of these General Conditions shall survive and remain in effect.
These General Conditions are not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date at which the order is placed and neither party can declare itself a trustee of the rights under it for the benefit of any third party.
Any other terms and conditions or provisions proposed by the Customer whether orally or in writing shall be of no effect and the supply of the Products by Julius Berger shall not constitute acceptance of such terms and conditions or provisions.
All descriptions and illustrations and particulars of weights and dimensions and performance criteria issued by Julius Berger in catalogues, price lists, advertising matter and specifications are by way of general descriptions and approximate only and shall not form part of any contract with Julius Berger.
These General Conditions, Julius Berger’s offer and the Customer’s acceptance, respectively the Customer’s order and Julius Berger’s order confirmation (all excluding any customer terms and conditions) constitute the entire agreement and understanding of the parties with respect to its subject matter. Each of the parties acknowledges that, in entering into this contract, it has not relied on any oral or written representation, warranty, or other assurance (except as provided for or referred to in these General Conditions) and waives all rights and remedies which might otherwise be available to it.