TERMS AND CONDITIONS

1. DEFINITIONS 

1.1 “AFP” means Julius Berger Nigeria PLC, operating a  furniture production business arm known as “AFP  Furniture Production.” 

1.2 “Agreement” means these Terms of Sale, the  Quotation and any specification(s) agreed by AFP in  writing.  

1.3 “Client” means the person, firm, company, or entity  named on AFP’s Quotation and that places an order  with Julius Berger - AFP, for the Products and / or  the Services.

1.4 “Force Majeure Event” means circumstances where  AFP is delayed or unable, wholly or in part, to  perform any obligations under the Agreement due to  any cause beyond its reasonable control, including  without limitation natural disasters, war,  Government acts, fire, explosion, nuclear reactions,  electricity and/or water supply failures (except at the  AFP’s facility), high or low tide, sabotage, organized  or unorganized strike, exclusion of worker, accident  (except caused by the AFP’s proven gross  negligence or reckless misconduct), embargo,  labour dispute, community disturbance, civil  commotion, insurrection, terrorism,  pandemic/epidemic, unavailability of materials and /  or items required for manufacturing the Products  and like circumstances.  

1.5 “Product(s)” means the products (or any part of  them) set out in the Quotation. 

1.6 “Quotation” means the quotation provided by AFP to  the Client for delivery of the Products and / or  performance of the Services, and which is accepted  by the Client in accordance with any one or more of  the modes of acceptance defined in clause 3.3  below. 

1.7 “Services” means the installation of the Products  and any other additional works specified in the  Quotation and agreed to be carried out by AFP and  under the Agreement. 

1.8 “Terms of Sale” means this AFP’s Terms and  Conditions of Sale. 

2. GENERAL

2.1 The Client’s order and AFP’s delivery of the  Products and / or performance of the Services shall  be exclusively governed by the Quotation and these  Terms of Sale unless the parties have agreed  expressly and in writing to apply other terms.  

2.2 The Quotation and these Terms of Sale supersede  any previous agreements including without limitation  any quotation or acceptance forms in respect of the  delivery of Products and / or performance of  Services. The terms of the Quotation shall  

2.3 supersede the provisions of these Terms of Sale  only to the extent of a conflict. 

3.  OFFER, CONFIRMATION AND ACCEPTANCE

3.1 Offers of AFP are open for acceptance within the  period stated by AFP in its offer or Quotation, or if  no period is stated, within 14 days from the date of  the offer / Quotation, but any offer / Quotation may  be withdrawn or revoked by AFP at any time prior to  the receipt by AFP of the Client’s order and / or  acceptance thereof. 

3.2 No request / order for the delivery of Products and /  or performance of Services submitted by the Client  shall be deemed accepted by AFP unless and until  such request / order is confirmed in writing by AFP. 

3.3 The Client shall be deemed to have accepted AFP’s  order or Quotation if AFP: 

3.3.1 receives a written acceptance of its offer /  Quotation from the Client; or  

3.3.2 receives the Client’s verbal or written order /  instruction to proceed with the delivery of the  Products and / or performance of the Services;  or 

3.3.3 receives payment of the whole or part of the  Price offered in its Quotation for the Products  and / or Services, or 3.3.4 does not receive the Client’s notice of rejection  of AFP’s order confirmation within twenty-four  (24) hours from the date of issue to the Client. 4. Cancellation  

4.1 The Client shall not cancel a confirmed order made  to AFP for the delivery of Products. In the event AFP  accepts the Client’s cancellation of any confirmed  order by notice, then the Client shall pay, upon the  cancellation of such order, all costs for the Products  manufactured, fabricated and / or delivered prior to  receiving the cancellation notice plus AFP’s  cancellation charges. AFP’s cancellation charges  shall be 20% of the catalog price of AFP’s standard  catalog Products and 100% of the cost of specially  ordered Products, but in no event will any  cancellation charge be less than 20% per order. 

4.2 AFP reserves the right to cancel a confirmed order  or decline the Client’s order prior to the delivery date  and without any liability to the Client whatsoever if: 

4.2.1 AFP has insufficient stock of the materials or  items required to produce and / or supply the  Products ordered by the Client; or 

4.2.2 Any of the Products ordered by the Client was  listed at an incorrect price due to a  typographical error or an error in the pricing  information contained in AFP’s Quotation.  

4.2 Before cancelling the Client’s order, AFP will do its  best to source and offer the Client suitable  alternative products of a similar style and quality, but  the Client is not obliged to accept such alternative  products. 

4.3 If AFP cancels the Client’s order, AFP will notify the  Client as soon as possible and will within thirty (30)  days from the date of such cancellation, credit the  Client’s communicated account with any advance  payment already made to AFP by the Client in  relation to the cancelled order.  

5.   PRICE AND PAYMENT

5.1 The prices in any offer, Quotation or order  confirmation of AFP shall be exclusive of VAT and  Stamp Duties except otherwise stated in the  Quotation. The prices are based on quantities  agreed or indicated in the Quotation and the date  agreed for delivery therein. AFP reserves the right to  adjust the price if the Client fails to take delivery of  the indicated quantity of the Products and / or within  the agreed delivery period. 

5.2 The prices do not include any taxes, duties or similar  levies enacted after the date of any offer, Quotation,  or confirmation of AFP, applicable to the Products  and /or the Services. AFP will add such taxes, duties  and similar levies to the sales price and the Client  shall be bound by such additions. 

5.3 The Client shall pay the prices for the Products and  / or Services on such date or within such period and  in the manner specified in the offer / Quotation (as  may be amended) or order confirmation of AFP. No  discount shall be allowed for early payment unless  agreed to in writing by AFP.  

5.4  If AFP agrees to any payment terms other than  100% advance payment of the prices for any  Products and / or Services, then the Client shall pay  the percentage of advance agreed by AFP and  make all subsequent payments no later than thirty  (30) days from receiving AFP’s invoice. AFP shall be  entitled to charge interest on any moneys overdue  for payment from the Client at a rate of five (5)  percentage points per annum above the Prevailing  Monetary Policy Rate 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, AFP shall at its discretion be  entitled to suspend delivery or terminate the  Agreement in respect of any undelivered Products  and / or unperformed Services. 

5.5 Payments shall be made by the Client to AFP by  bank transfer to the account of AFP specified in the  invoice / Quotation. Unless AFP’s reference number  of the offer / quotation or the order confirmation is  clearly specified when payment is made, AFP shall  be entitled to appropriate any payment made by the  Client as AFP deems fit. 

5.6 The Client shall have no right to withhold or reduce  any payments or to offset existing or future claims  under any other agreement that the Client may have  with AFP or any of its affiliates against any payments  for Products and / or Services, and the Client agrees  to pay the amounts hereunder regardless of any  claimed offset which may be asserted by the Client  or on its behalf. Provided that the Client shall have  the right to offset claims that are undisputed by AFP,  or which have been established through a non-appealable judgment. 

6. DELIVERY OF PRODUCTS AND PERFORMANCE OF SERVICES

6.1 Delivery dates communicated or acknowledged by  AFP shall be treated as being approximate only, and  AFP shall not be liable for, nor shall AFP be in  breach of its obligations to the Client, for any delivery  made within a reasonable time before or after the  communicated / agreed delivery date. AFP agrees  to use commercially reasonable efforts to meet the  delivery dates communicated, acknowledged, or  agreed by it. 

6.2 The place of delivery shall be the place designated  by AFP in the offer, Quotation, or order confirmation  or, if no such place is specified, AFP’s production  facility. 

6.3 The Client or his representative shall sign an  acknowledgement of receipt of the Products and / or  completion of the Services. If the Client specifies  “unexamined” or similar wording, AFP will treat that  as confirmation of receipt of all the Products and the  Client will be deemed to have received and  accepted the Products and / or Services. 

6.4 If the Client fails to take delivery of the Products on  the agreed date for delivery or requests AFP to hold  the Products thereafter, Clause 7 below shall apply  accordingly. 

6.5 AFP 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. 

6.6 Where the Products are to be delivered in  instalments, failure by AFP to deliver any one or  more instalments or any claim by the Client under  these Terms of Sale with respect to one instalment  shall not entitle the Client to reject further  instalments or cancel any further order. 

6.7 The Client shall ensure that the following are  provided to enable AFP to perform the Services  included in the scope of works under the Quotation: 

6.7.1  clear access to and on the delivery site  premises suitable for transports with heavy  goods vehicles. 

6.7.2  free of charge provision of water and electricity  at the delivery site premises. 

6.7.3  adequate and secured storage space for the  Products, and 

6.7.4 separate lockable storage facilities for AFP’s  tools and accessories. 

7. VARIATION   

Where the quantity, quality and / or specifications of  the Products and / or Services agreed upon in a  Quotation / order confirmation has to be varied for  any reason not attributable solely to AFP, such  variation shall attract extra fees which AFP shall  draw up in a bill and send to the Client for payment  prior to carrying out such variation. 

 8. STORAGE

 8.1 If the Client fails to give all necessary instructions  and documents for the Products to be delivered, or  the Client, its other contractors / subcontractors of  any tier, officers, employees, representatives,  agents and invitees shall otherwise cause or request  a delay, AFP shall be entitled to put the Products in  storage. 

8.2 AFP shall be entitled to withhold delivery and put the  Products in storage if the Client owes any amounts  or is in arrears with any payment due to AFP.  

8.3 Upon expiry of 180 days from the date the Products  were available for delivery, or a final deadline set by  AFP for the taking of the delivery of the Products,  AFP may, at its sole option: 

8.3.1 keep the Products and return any payment  received (after deducting all storage and other  relevant costs calculated at AFP’s rates), or  

8.3.2 Sell the Products and (after deducting all  storage, selling and other relevant cost and  expenses) charge the Client for any shortfall  below the agreed price(s) for the affected  Products. 

8.4 Where AFP arranges storage on the Client’s behalf  for any of the reasons stated in clauses 6.3, 8.1 or  8.2 above, then the Client shall in addition to the  purchase price for the Products, pay AFP for storage  and other relevant costs at an amount equal to 0.2%  of the price of the Products in storage per calendar  day as lump sum compensation. This Client shall  pay such compensation in full prior to AFP delivering  the Products to the Client. 

9. TITLE AND RISK

9.1 Title in the Products shall pass to the Client when  AFP has received full payment for the Products and  for any other claims in respect of the business  relationship with the Client, including any future  claims. AFP shall be entitled to bring an action for  payment whether or not title in the Products has  passed. 

9.2 The risk of loss in or damage to the Products shall  pass to the Client upon delivery by AFP to the Client  and / or the Client’s nominated agent. If the Client  and / or the Client’s nominated agent fails to take  delivery at the delivery date, the risk of loss shall  nevertheless pass to the Client at the delivery date.  In such case the risk of loss will not vest in AFP by  virtue of AFP providing storage of the Products. 

9.3 Until title passes, the Client holds the Products on  behalf of AFP 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. 

9.4 The Client has the right to resell the Products but not  as AFP’s agent or otherwise in the name of AFP,  and AFP may terminate that right at any time prior  to full payment being made but in any event upon  the insolvency or bankruptcy of the Client.

 

10. WARRANTY

10.1 AFP warrants that the Products shall correspond  with their specification and shall be free from defects  in material and workmanship for a period of six (6)  months after the delivery date. Provided that this  warranty shall not apply to, and AFP shall not be  responsible for: 

10.1.1 any defect in the Products arising from  designs or specifications supplied to AFP by  the Client or any third party at the Client’s  behest. 

10.1.2 any defect arising from the Client’s failure to  store and / or use the Products properly. 

10.1.3 any defect arising from excessive wear and  tear, the Products being incorrectly fitted,  subjected to neglect, carelessness or  abnormal conditions, accident, or  

10.1.4 any attempt at repair, replacement or  modification made to the Products by the  Client and / or any third party at the Client’s  behest, without the prior written agreement of  AFP. 

10.1.5 models or samples which are furnished to the  Client as illustrations only of the general  properties of AFP's workmanship; or 

10.1.6 any Product that is normally consumed in  operation or that has a life span that is  shorter than the applicable warranty period  specified by AFP. 

10.2 AFP shall be under no liability under clause 

10.1  where the terms of payment set out herein have not  been complied with by the Client. 10.3 Upon delivery of the Products, the Client shall  thoroughly examine the Products for defects and  any other non-compliance with the Agreement. Any  defect or other non-compliance of the Products  found, whether upon delivery or later, must be  notified to AFP immediately and in writing. The  Products and associated packaging should be  retained for examination. If the Client does not so  notify AFP of a defect or other non-compliance with  the Agreement, it shall be deemed that the Products  are in accordance with the Agreement, unless a  defect or other non-compliance is of such nature that  it could not be found when exercising best  endeavours when examining the Products upon  delivery.

10.4 AFP does not give any warranty of fitness for a  particular purpose or of merchantability. 

10.5 If the Client notifies AFP that it has a claim and if  AFP reasonably agrees that the claim is valid, AFP  has the option to refund the price paid to it by the  Client for the affected Products, or repair or replace  the affected Products. 

11.  REMEDIES AND LIMITATION OF LIABILITY

11.1 The following sets out AFP’s liability to the Client  arising out of or in connection with the delivery or  any failure to deliver Products and / or performance  of the Services under these Terms of Sale, whether  in contract or tort, including negligence, and are the  Client’s sole remedies in respect of any act or default  on the part of AFP. 

11.2 AFP will only accept liability for delayed delivery of  the Products and / or performance of the Services  caused solely by AFP’s gross negligence or willful misconduct and pay the Client liquidated damages  for such delays. The liquidated damages shall be  calculated at 0.001% of the Quotation value for the  affected Product and / or Service for each day of  delay up to a maximum limit of 1% of that Quotation  value. 

11.3 AFP will accept liability for death or personal injury  resulting from its negligence, fraud or fraudulent  misrepresentation, and any other liability which  cannot be excluded by law. 

11.4 AFP will accept liability for direct physical damage to  the tangible property of the Client to the extent that  it is caused by the gross negligence of AFP, subject  to the exclusions set out in this clause 11 below and  up to a maximum limit of 100% of the Product price  paid to AFP by the Client in aggregate. 

11.5 AFP will not be liable for any defect or other noncompliance of any Product with the Agreement,  notified by the Client after the expiry of three (3)  months after the agreed delivery date. 

11.6 AFP’s total aggregate liability in respect of any  default will not exceed 100% of the total purchase  price paid by the Client for the Products in respect  of which AFP is in default. If a number of defaults  give rise to substantially the same loss or are  attributable to the same or similar cause, then they  will be regarded as giving rise to only one claim. AFP  will be given a reasonable opportunity to remedy any  default. 

11.7 Notwithstanding any clause provision herein to the  contrary, AFP will not be liable for special, indirect or  consequential loss including but not limited to loss of  business, revenue, profits, anticipated savings  (even where the same arise directly from a breach  of these Terms of Sale) and goodwill, even if such  loss is foreseeable by or in the contemplation of  AFP, or for any claim made against the Client by any  other person. 

11.8 Except as expressly stated under this clause 11, all  other conditions and warranties, whether implied,  statutory, or otherwise, are excluded to the  maximum extent permitted by law. 

12. PATENTS AND COPYRIGHT

12.1 All descriptions, drawings, software, or other  information supplied by AFP will remain the property  of AFP together with the copyright in them. AFP  warrants that no patent infringement shall arise from  the design (if any) and manufacturing of the  Products by AFP, provided that AFP shall not be  liable for any patent right infringement arising from: 

12.1.1 compliance with the Client’s design,  specification, or instruction; or 

12.1.2 the Client’s use of AFP’s Products in  combination with products or services not  provided by AFP. 

12.1.3 unauthorized additions or modifications to  the Products; or 

12.1.4 the Client’s use of the Products in a manner  that does not correspond to AFP’s published  standards or specifications. 

12.2 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 design to  the Client but shall only imply a non-exclusive and  non-transferable license under AFP’s intellectual  property rights to use the same with, and as  embedded in or delivered with, the Products as  supplied by AFP. 

13. TERMINATION 

13.1 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 in the case of AFP, bring action in accordance  with clause 9.3 above if: 

13.1.1 the other 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 non-breaching party  (however, late payment requires no such  notice for there to be such a breach); or 

13.1.2 the other Party does not pay the Fees or any  other monies due in accordance with the  Agreement; or 

13.1.3 the other party 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 

13.1.4 an encumbrancer takes possession, or an  administration receiver or receiver is    appointed of the whole or any part of the  undertaking or property of the other party; or 

13.1.5 the other party ceases to pay its debts or  becomes unable to pay its debts within the  meaning of applicable laws or becomes the  subject of any petition, order or other  proceedings under any applicable laws or  any analogous provision of the law of any  other jurisdiction to which the party is subject;  or 

13.1.5 the other Party disposes of the whole or any  substantial part of its undertaking or assets  or ceases or threatens to cease to carry on  all or any substantial part of its business. 

13.1.6 the Client’s financial position deteriorates to  such an extent that in AFP’s opinion the  Client’s capability to adequately fulfil its  obligations under the Agreement has been  placed in jeopardy. 

13.2 Any termination of the Agreement howsoever  caused shall be without prejudice to any of the  Parties' respective rights and liabilities which have  accrued on or before the date of termination, but  subject to Clause 

13.3  Below, neither the Client nor  AFP shall have rights to require performance of or  liabilities to perform the Agreement after such date. 

13.3 Upon the termination of the Agreement for any  reason, all prices, fees, and charges accrued (but  unpaid) pursuant to the Agreement shall forthwith  become due and payable to AFP by the Client within  seven (7) days from the termination date. The Client  shall also be liable to within the same seven (7) days  period, pay all costs and expenses incurred by the  AFP if the Agreement is terminated by AFP for the  Client’s breach or for any reason attributable to the  Client. 

14.  INDEMNITY

14.1 The Client shall indemnify and hold AFP and its  Group harmless from and against all claims, losses,  damages, expenses and costs (on a full indemnity  basis and whether incurred by or awarded against  any of them) that any of them may sustain or incur  as a result of, whether directly or indirectly, whether  in contract or tort or otherwise arising under  common law, statute or otherwise:  

14.1.1 any breach of the Agreement by the Client  and /or any member of the Client’s Group.  

14.1.2 Any negligence of a member of the Client’s  Group arising out of, in relation to, or in any  way concerning the subject matter of the  Agreement.  

14.1.3 Death or personal injury to any member of the  Client’s Group. 

14.1.4 Damage / loss of property belonging to any  member of the Client’s Group.  

14.1.5  death or personal injury to any member of the  AFP’s Group and / or damage to property  belonging to any member of AFP’s Group  due to the act omission of any member of the  Client’s Group. 

14.1.6   Any Third-Party Claim; and  14.1.7 AFP’s performance of any of the Services or  in connection with the handling, destruction,  or other dealings with any Products pursuant  to the Agreement, except in the case of the  grossly negligent act or wilful default of AFP  and / or AFP’s representatives and agents. 

15.  CONFIDENTIALLY

Both parties agree that all communication,  information and data disclosed and / or arising out  of the Agreement shall be treated as confidential  and shall not be disclosed by either party to any third  party or used in any public manner without the prior  written consent of the other party (such consent not  to be unreasonably withheld. Provided always that  AFP is at liberty to file reports to relevant  government monitoring agencies as and when due. 

16.  ASSIGNMENT

The Client shall not assign, encumber, dispose of,  or otherwise transfer any of the Client's rights under  the Agreement without prior written consent of AFP,  which AFP shall be fully entitled to withhold.

17. FORCE MAJEURE

17.1   AFP will be released from its obligations under the  Agreement to the extent and for the duration that it  is delayed, hindered, or prevented from delivering  the Products and /or providing the Services to the  Client by reason of a Force Majeure event occurring. This Clause 

17.1  Shall not apply to payments due to  be made to AFP by the Client. 

17.2  If a Force Majeure Event occurs, AFP shall give  notice of the event to the Client and give details of  any action being taken to overcome the effects of  the event on the affected Products and / or Services.  The Client shall provide reasonable assistance to  AFP upon receiving such notice. 

17.3  AFP shall resume its obligations under the  Agreement within a reasonable time as soon as it is  no longer affected by the Force Majeure event. 

17.4  In the event that the Force Majeure event exceeds a  period of thirty (30) days, then the AFP may give  notice of termination of the Agreement to the Client.  

18. GOVERNING LAW

The Terms of Sale, the Quotation and all documents  forming the Agreement between the Client and AFP  shall be construed and interpreted in all respects in  accordance with the laws of the Federal Republic of  Nigeria. 

19. DISPUTE RESOLUTION 

19.1 All disputes arising out of or in connection with the  Agreement shall in the first instance be resolved  amicably by the authorised representatives of the  parties who shall endeavour in good faith to reach  an agreement. 

19.2 Failing which the dispute shall be finally settled in  accordance with the Arbitration and Mediation Act,  2023 by three Arbitrators jointly appointed in  accordance with the provisions of the Act. The  appointing authority for the chair arbitrator shall be  the Chairperson of the Chartered Institute of  Arbitrators, UK, Nigeria Chapter. 

19.3 The venue of the Arbitration shall be Abuja, Nigeria  and the language of the proceedings shall be  English. The law of evidence applicable to the  arbitration shall be the Evidence Act 2011. 

19.4 The decision of the Arbitrator shall be final and  binding on the Parties. The Arbitrator shall make  his/her decision(s) based on the provisions of this  contract created pursuant to the Agreement. Each  party shall bear the cost and expenses (including  legal and expert fees) incurred by it in connection  with the arbitration. The fees of the arbitral tribunal  shall be borne equally by the parties. 

20. MISCELLANOUES 

20.1 These Terms of Sale, AFP’s offer / Quotation, and  the Client’s acceptance respectively, the Client’s  order and AFP’s order confirmation (all excluding  any Client terms and conditions, and excluding  terms implied by law to the extent legally possible)  constitute the entire agreement and understanding  of the parties with respect to its subject matter. 

20.2 Any description, illustration, particular of weights  and dimensions, and performance criteria issued by  AFP in catalogues, price lists, advertising matter and  specifications are by way of general descriptions  and approximates only. They shall not form part of  any contract with AFP. 

20.3 If any provision of these Terms of Sale and / or the  Quotation 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. 

20.4 Notices by the Client, arising from these Terms of  Sale, must be delivered by registered post, by the  Client or by a recognized staff / representative of the  Client or by electronic means, which includes faxes  and emails. Such notices must be official and written  otherwise AFP shall disregard them. 

20.5 No delay or failure by a party to exercise any of the  powers, rights or remedies under the Agreement  shall operate as a waiver of them, nor shall any  single or partial exercise of such powers, rights or  remedies preclude any other or further exercise of  them. The remedies provided in the Agreement in  favour of AFP are cumulative and not exclusive of  any provided by law.

20.6 The provisions of these Terms of Sale which by their  nature should survive the termination of the  Agreement shall so survive. 

20.7 These Terms of Sale are not intended to be for the  benefit of and shall not be enforceable by any  person who is not named on the Quotation and / or  at the date at which the order is placed and / or  confirmed. Neither party can declare itself a trustee  of the rights under these terms of Sale for the benefit  of any third party. 

20.8 Each of the parties acknowledges that, in entering  into the Agreement, it has not relied on any oral or  written representation, warranty, or other assurance  (except as provided for or referred to in these Terms  of Sale) and waives all rights and remedies which might otherwise be available to it.