The following definitions and rules of interpretation in this clause apply in these Conditions
“Carrier” means any person who in a contract of carriage undertakes to perform or procure the carriage of the Products to the Customer and any employee, agent or contractor of that person.
“Company” means Lafarge Africa PLC (RC 1858) and its subsidiaries.
"Conditions" means the conditions set out in this document and includes any special terms and conditions agreed in writing between the Company and the Customer.
“Contract” means the contract between the Company and the Customer for the sale and purchase of the Products subject to these Conditions.
”Contract Price" means the amount payable by the Customer to the Company pursuant to the Contract in respect of the supply of the Products.
"Customer” means the person, firm or company who purchases the Products from the Company.
"Delivery Note" means the written or electronic proof of delivery/collection of the Products by the Company to the Customer
"Destination" means the Customer’s site and the point of unloading for the Products.
Minimum Delivery Level: means 10 tons (or such or quantity which the Company shall notify the Customer from time to time) being the minimum tonnage of Products which the Customer must order for the Company to deliver the Products to the Customer’s Destination.
"Products" means any goods and materials agreed in the Contract to be supplied by the Company to the Customer (including any part or parts of them).
“Party" means a party to the Contract.
2. SUPPLY OF PRODUCTS
All orders shall be deemed to incorporate these Conditions of sale as shall any contract or agreement arising thereform to the exclusion of any inconsistent terms in any such order contract or agreement otherwise agreed by the Company in writing. The Company reserves the right at its option upon giving prompt notice in writing of its intentions to the Customer not to fulfil any order. If any one or more of these Conditions shall be held be unenforceable or invalid then the remaining Conditions shall nonetheless continue to have full force.
3. ORDERS AND ACCEPTANCE
3.1. Every payment of cash into the Company’s account through, e-payment systems, point of sales, cheques or electronic funds transfer or any other acceptable means of payment and the submission of a written or oral instruction to the Company or any of its designated agents shall be deemed an order to purchase Products and shall be subject to these Conditions.
3.2. Where there is a credit arrangement between the Company and the Customer and the Customer wishes to purchase Products on credit, the Customer shall submit a written purchase request (the “Purchase Request”) to its designated sales manager, or by email to firstname.lastname@example.org, or through any software which may be provided by the Company to the Customer for that purpose. The Purchase Request shall include the type and quantity of Products ordered and the date and location for the delivery of the Products.
3.3. A quotation or estimate does not constitute an offer to supply the Products on any other basis than a Contract incorporating these Conditions and no contract shall exist until there has been an order from the Customer which has been accepted by the Company in accordance with clause 3.5. below and any such order shall be deemed to be an offer by the Customer to buy the Products subject to this Contract.
3.4. Based on the instruction and the prevailing price of the Product on the date of instruction, the Company shall generate sales orders (Sales Orders) to which it shall assign Sale Order Numbers and/or Codes. The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Products within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.5. No order submitted by the Customer shall be deemed to be accepted by the Company until the earlier of an acknowledgement of order being dispatched to the Customer, or the Products being delivered or dispatched to the Customer or made available to the Customer for collection.
4.1. The Customer shall ensure that the Company has reasonable prior notice (being a minimum of 2 Working Days) of the required time and date of delivery, and where the Products are being delivered, that the Company (or its Carrier) is given sufficient particulars of the agreed Destination. The Company shall only deliver Products to the Customer’s Destination for orders that meet the Minimum Delivery Levels. Where the order does not meet the Minimum Delivery Level or the delivery instruction is unclear or the Customer has not paid for the delivery to the Destination, the delivery of the Products shall be at the Company’s premises.
4.2. Where delivery of the Products is to take place at the Company's premises:
a. the vehicle in which the Customer, its employees, agents or sub-contractors collect the Products shall be as specified by the Company;
b. whilst at the Company’s premises, the Customer, its employees, agents, and subcontractors must obey the Company’s site rules and instructions of the Company’s duly authorised representative;
c. the Customer will be responsible for the condition of the vehicle which it, its employees, agents or sub-contractors collects the Products (whether owned or hired) and the Company shall not be liable in any way (including, without limitation, for negligence) for loss or contamination of the Products resulting from the condition of such vehicle;
d. delivery shall take place into the vehicle in which the Customer, its employees, agents or sub-contractors collect the Products, at the Destination or at the Company’s premises as directed by the Company’s duly authorised representative;
e. the Customer shall indemnify the Company for any loss, damage or injury to the Company, its employees or agents or sub-contractors, its plant and equipment caused by the Customer, its employees or agents or sub-contractors, the Customer's vehicle, or that of its agent or sub-contractor, or the condition thereof.
4.3. Delivery will be deemed to take place either when the Customer is notified that the Products are available for collection or at the time of arrival at the Destination. If the Company or its Carrier is unable to deliver because of inadequate instructions, the order does not meet the Minimum Delivery Level or the Customer wrongly fails to take delivery of the Products, delivery is deemed to take place at the time when the Company has tendered delivery of the Products.
4.4. The Company shall use all reasonable efforts to comply with any time or date given or agreed by the Company for delivery of the Products, but any aforesaid dates and times are intended for guidance purposes only and shall not be of essence, and shall not be capable of being made of the essence by notice from the Customer. If no times or dates are specified, the Products shall be delivered within a reasonable time of the acceptance of the order.
4.5. The Company may deliver the Products by means of separate instalment and each instalment shall be invoiced and paid for in accordance with these Conditions. Each instalment shall for the purpose of delivery be treated as a separate supply and a failure to deliver any instalment or any claim by the Customer in respect of any instalment shall not entitle the Customer to repudiate, cancel or terminate the Contract.
4.6. The Customer shall be required to execute or acknowledge the Delivery Note and the execution or acknowledgement of such Delivery Note by the Customer shall amount to the acceptance of the information contained in the Delivery Note by the Customer.
5. PRICE AND PAYMENT
5.1. Unless otherwise agreed by the Company in writing, the Contract Price for the Products shall be the price quoted by the Company. Where no price has been quoted by the Company, deliveries will be made at the Company's prices ruling either at the time the order is accepted by the Company, the date of delivery or collection (whichever is the earlier).
5.2. Where a Customer pays cash for Products, the price indicated in the Sales Orders shall be valid for a period of 90 (Ninety) days from the date of issuance by the Company. In the event a Sales Order expires, the Company reserves the right to re-issue the Sales Order at the ruling price of the Products or the Customer may request a refund of payment. Refunds if approved by the Company will be made within 45 (Forty-five) days of the written request by the Company.
5.3. Where the Company discontinues the manufacture or distribution of any or all the Products at any time, the Customer shall have the option of utilizing any unutilized payments made for such products for the purchase of alternative Products or request a refund of payment.
5.4. Payments by the Customer to the Company shall be cash to order except where the Company has granted unto the Customer credit facilities in which instance payment shall, subject to the terms of the credit sales Contract, not exceed thirty (30) days from date of delivery.
5.5. Where the Customer requires the Company to sell the Products on credit, it shall apply for such credit on the credit application form and provide all documents requested and required by the Company to consider the Customer’s credit application.
5.6. Where the Company approves the credit application by the Customer, the Customer shall be required to enter into a Contract with the Company for the sale on credit and shall provide to The Company such form of payment guarantee or security as may be acceptable and approved by the Company.
5.7. The Customer hereby consents and authorizes the Company or its duly authorized agent to make such credit investigation as the Customer may deem fit, including contacting relevant trade references, bank or any other relevant bodies or persons and obtaining credit reports with respect to the Customer.
5.8. The Company reserves the right to revoke any credit granted at its sole discretion or to request for a change in the nature of the payment guarantee or security provided by the Customer.
5.9. The Customer agrees to pay all invoices when due regardless of other scheduled deliveries and shall not be entitled to withhold payment of any amount due to the Company by any set-off, counter-claim, abatement, or other similar deduction.
6. RISK AND TITLE
6.1. Risk in the Products shall pass to the Customer:
a. in the case of Products to be delivered at the Company’s premises, at the moment of discharge at the Destination on the Company’s premises into or onto the vehicle in which the Customer, its employees, agents or sub-contractors collect the Products or at the moment when the Company notifies the Customer that the Products are available for collection; and
b. in the case of Products to be delivered otherwise than at the Company’s Premises, at the moment of their discharge or offloading from the Company’s or Carrier’s vehicle at the Destination or if the Customer wrongly fails to take delivery of the Products, at the time when the Company tendered delivery of the Products.
6.2. Ownership of the Products shall not pass to the Customer until the Company has received payment in cleared funds of all sums owed by the Customer to the Company under the Contract.
7. PRODUCT LIABILITY
The Customer shall, as soon as it becomes aware of a matter that may result in a claim with respect to a product defect:
a. Give the Company written notice of the details of the matter;
b. Give the Company access to and allow copies to be taken of any Products, records or documents as the Company may require taking action under clause 7.1(c);
c. Allow the Company the exclusive conduct of any proceedings and take any action that the Company requires to defend or resist the matter, including using professional advisers nominated by the Company;
d. Not admit liability or settle the matter without the Company written consent.
The Customer shall not:
a. Act as, or represent itself as, an agent of the Company for any purpose;
b. Pledge the Company’s credit;
c. Give any condition or warranty on the Company behalf;
d. Make any representation on the Company behalf; or
e. Attempt to commit the Company to any sales contracts or any other legally binding contract.
9. ANTI-BRIBERY COMPLIANCE
9.1. The Contract shall be transacted in line with the Company’s policies on fraud and corrupt practices already in existence and as the Company may from time to time recommend. The Customer acknowledges that fraud is characterized by acts of guile, deceit, trickery, concealment, or breach of confidence, which are used to gain some unfair or dishonest advantage. Fraud may occur at any further stage of the transaction process.
9.2. The Customer agrees to refrain from any involvement whatsoever, whether directly or indirectly corruption or bribery of any description, whether active or passive with any third party entity or individual in the execution of the Contracts;
9.3. The Customer agrees that in relation to this transaction, it shall at all relevant times comply with the provisions of all applicable laws, including but not limited to the Independent and Corrupt Practices Commission Act 2000 (ICPCA) of the Federal Republic of Nigeria and any relevant local anti-bribery laws and regulations;
9.4. The Customer shall not under any circumstances, and at all relevant times, make, or cause or authorize any third party acting on its behalf to make, directly or indirectly any prohibited offers, promises or payments of money, or anything of value, to any employee of Lafarge or any other third party, for the purpose of influencing such party’s acts or decisions or in order to obtain or retain business or in connection with the performance of their duties and obligations pursuant to this Contract.
10. LIMITATION OF LIABILITY
The Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
a. Any loss of profit, revenue, or anticipated savings; or
b. Any loss that is an indirect or secondary consequence of any act or omission of the Customer.
11. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
11.1. The Company's logos, product names, service names, and icons list of other Company’s trademarks - tool names (the "Company Marks") are trademarks of the Company and its affiliates and subsidiaries. You agree not to display or use in any manner the Company Marks without Company’s prior consent. Any unauthorized use of the Company’s Marks is strictly prohibited.
11.2. The Customer will keep strictly confidential all information which it learns about the Company or its customers, and use that information only for the performance, in good faith, of its contractual obligations to the Company. By way of illustration only, the Customer may not use such information to help the Company’s competitors, poach its staff or disparage its reputation. This restriction will apply until the fifth anniversary of the contract date, and does not apply to information which was demonstrably public knowledge at the time of usage by the Customer
12. FORCE MAJEURE
The Company shall not be liable for any expense, loss or damage due to its failure to perform or its delay in manufacturing, shipping or delivering Products caused by acts of God; acts of war; acts of public enemy; fire; floods; labour disputes, strikes or lockouts; breakdowns or accidents; inability to secure rail cars, trucks or barges or other delays in transportation; inability to procure supplies or other materials; government actions, regulations, orders or rulings; acts or omissions of the Customer; or any other events or other conditions beyond the Company’s control, whether similar or dissimilar to the foregoing acts or occurrences. During times of shortage, the Company shall have the right to allocate the Products among its customers.
No amendment or variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
14. NO PARTNERSHIP OR AGENCY
Except as expressly provided, nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
15. DATA PROTECTION
15.1. You hereby agree to comply with the requirements of the Nigeria Data Protection Regulation 2019 and other applicable data protection legislation (“Data Protection Legislation”). All capitalised terms in this clause shall be as defined in the Nigeria Data Protection Regulation 2019.
15.2. You hereby confirm and acknowledge that for the purpose of complying with the applicable Data Protection Legislation and regulations, you will ensure that you has all necessary appropriate consents and notices in place to enable the lawful transfer, use and processing of the Personal Data by the Company which may come to the possession of the Company pursuant to the transaction covered by this Terms and Condition
16. GOVERNING LAW AND JURISDICTION
16.1 These Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria.
16.2 The courts of Nigeria shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract under these Conditions or its subject matter or formation (including non-contractual disputes or claims).