Unless otherwise specifically agreed in writing by Pan African Airlines (Nigeria) Limited of Old Domestic Wing, Murtala Muhammed Airport, PMB 21054, Ikeja, Lagos, Nigeria (Company) these terms and conditions shall govern the entire transaction between Company and Supplier (Conditions) in relation to the Goods and/or Services.
- 1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Confidential Information: the terms of this Contract and all information and data belonging to or relating to a party to the Contract or its businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed, directly or indirectly (whether in writing, orally or by any other means) by it to the other party before, on or after the date of this Contract.
Contract: the contract between Company and the Supplier for the sale and purchase of the Goods and/or Services in accordance with these Conditions and including the Order and Specification.
Goods: the goods or any part of them set out in the Order.
Intellectual Property Rights: all rights including, without limit, copyright, patent rights, utility models, rights to inventions, domain names, rights in computer software, service marks, trademarks, rights in goodwill or rights to sue for passing off, design rights, database rights, know how, trade secrets, technical information, confidential process information, trade and business names, proprietary information and all similar rights whether registered or not and all rights to apply for such registrations, which subsist now or in the future in any part of the world.
Legislation: all applicable laws, statutory requirements, regulations, standards, codes or conduct and including any other legal requirement.
Order: Company's order for the Goods and/or Services, as set out in Company's purchase order form OR in Company's written acceptance of the Supplier's quotation, as the case may be.
Services: the services or any part of them as set out in the Order.
Sales Tax: VAT, GST or any such other similar sales tax applied to the Goods or Services.
Specification: any specification for the Goods and/or Services, including any related plans and drawings that may be supplied to the Supplier by Company, or produced by the Supplier and agreed in writing by Company.
Supplier: the person, company or firm from whom Company purchases the Goods and/or Services.
- 2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract contains the whole agreement between the parties in respect of the subject matter of the Contract and supersedes all prior written or oral agreements, arrangements and understandings between the parties relating to that subject matter.
2.3 The Order constitutes an offer by Company to purchase the Goods and/or Services in accordance with these Conditions and the Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order quoting the Order number; or
(b) the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.
2.4 The Contract shall be performed according to these Conditions with no amendment, variation, qualification or waiver effective unless in writing and signed by a duly authorised officer of Company.
2.5 If Company makes changes to the Order which would amend the price or delivery dates, the Supplier will notify Company of any such change implications within 7 days and will await Company’s acceptance of the changes to the payment and/or delivery date.
2.6 Company reserves the right to cancel the Order at any time prior to Supplier’s acknowledgement of the Order in writing.
2.7 Where the word “including” is used in this Contract it shall be construed as meaning “including but not limited to”.
2.8 In the event of any conflict of terms between these Conditions and the Order the terms of these Conditions shall prevail.
2.9 The Supplier shall not use Company’s name, trademarks or copyright for the purpose of advertisement or publicity without Company’s prior written consent.
2.10 The Supplier shall at all times act in good faith and in the best interests of Company, not bring Company into disrepute and comply with Company’s reasonable instructions.
- 3. THE GOODS
3.1 The Supplier warrants and undertakes, by accepting the Order that Supplier shall:
(a) perform this Contract, and source, produce and supply the Goods, with all due care and diligence and with the skill expected of a reputable Supplier experienced in performance of the type of services or provision of goods to be provided under this Contract;
(b) comply with all applicable Legislation and any applicable Specification and the Order;
(c) ensure that the Goods supplied by Supplier to Company will be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by Company expressly or by implication and any other purpose in accordance with the best conditions prevalent in the industry;
(d) at all times are store and transport the Goods in conditions that will preserve such Goods in good condition and free from contamination;
(e) ensure that the Goods are, where applicable, free from defects in design, material and workmanship and remain so for at least 15 months after delivery;
(f) obtain and comply in full with all necessary consents, approvals, authorisations, certificates, licences and permissions which it is required to obtain in order to enable it to perform this Contract and its obligations under it;
(g) be responsible for the order, receipt, examination, inspection and approval of all necessary materials, items and components within the timescale required for the supply of all Goods set out in an Order, to ensure that the requirements of this Contract (including without limitation clause 4 (Delivery, Risk and Title)) are complied with in all respects;
(h) ensure that the Goods are delivered free from any security, interest or other lien or encumbrance and Supplier has the right to transfer good title to the Goods to Company; and
(i) ensure the Goods and Services comply in all respects with their description and the Specification and the Order. save as provided in these Conditions
3.2 Company shall have the right to inspect and test the Goods at any time before delivery at the Supplier’s place of business, or that of any sub-contractor who may have been approved under condition 14.1 below, at all reasonable times.
3.3 If following any inspection or testing Company considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, Company shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.4 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.5 Supplier shall not make any variation or substitution to the Goods without first obtaining Company’s prior written consent and having provided Company with independent documented evidence supporting direct interchangeability between the Goods specified in the Order and the substituted goods.
3.6 It is incumbent upon the Supplier to notify Company in writing if Supplier becomes aware of any non conforming product or part of the Goods, whether in production or after delivery to Company.
3.7 The Supplier will retain records of all Goods manufactured and/or supplied to Company by Supplier or any sub-contractor and shall maintain these records for a period of 6 years after each Order is placed. Company will have a right of inspection of these records upon reasonable notice to Supplier.
3.8 The Supplier shall maintain a minimum amount of Goods in stock at a location as notified in writing by Company from time to time.
3.9 Where applicable, the Supplier shall ensure it has sufficient stocks of Goods or parts which comprise of the Goods such that there is no delay in the delivery of the Goods.
- 4. THE SERVICES
4.1 The Supplier warrants and undertakes, by accepting the Order that Supplier or duly appointed sub-contractor shall:
(a) perform the Services in a good and workmanlike fashion and with all due speed, care, skill and diligence; and
(b) carry out the Services in accordance with the Contract, with current industry standard code of practice and the highest standards prevailing in the Supplier’s industry.
4.2 Supplier shall ensure that all of its personnel and sub-contractors are suitably qualified to perform the Services and that all necessary licences, work permits or other authorisations have been obtained.
4.3 If any materials which are required by Supplier for the provision of the Services are not delivered fully in accordance with any stipulations in the Contract, Supplier shall immediately effect correct delivery and shall be responsible for any additional costs and expenses incurred by either party in doing so.
4.4 Company shall have the right during the performance of the Services to suspend any payment obligation in respect of the Services if the performance does not conform in quality with any stipulations in the Contract, Order or Specification or if the performance is delayed or the Srevices are not being performed to the reasonable satisfaction of Company.
- 5. DELIVERY, RISK AND TITLE
5.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition and in accordance with any applicable Legislation;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered;
(c) if the Supplier requires Company to return any packaging material to the Supplier, that fact shall be clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
5.2 The Supplier shall deliver the Goods and/or Services during normal business hours unless otherwise agreed:
(a) on the date and time specified in the Order, or, if no such date is specified, within 28 days of the date of the Order;
(b) to Company's premises at the address stated on the Order or such other location as is set out in the Order, or as instructed by Company prior to delivery.
5.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the delivery location.
5.4 If the Supplier delivers more than the quantity of Goods ordered, and Company accepts the delivery, Company will not be obliged to pay for any quantities in excess of those stated on the Order. Any such excess may be dealt with as Company deems necessary at the time and may be returnable at the Supplier’s risk and expense.
5.5 If the Goods or Services are incorrectly delivered the Supplier shall be responsible for additional expenses incurred in delivering or supplying them to the correct point specified in the Contract or as subsequently advised by Company.
5.6 The Supplier shall not deliver the Goods and/or Services in instalments without Company's prior written consent. Where it is agreed that the Goods and/or Services are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Company to the remedies set out in clause 6.
5.7 Company shall inspect all Goods within seven (7) days of delivery (or within a reasonable period after any latent defect in the Goods becomes apparent) and any found to be damaged or in any way failing to meet the Contract, Order or Specification will not be deemed to have been accepted and will be returned to Supplier for replacement at Supplier’s risk and expense, without prejudice to any other rights Company may have.
5.8 Company shall be under no responsibility to accept delivery or supply of the Goods and/or Services for which an Order has not been properly provided or accepted by Company. Deliveries of the Goods and/or Services other than in accordance with an Order may (at Company’s option) be returned to the Supplier at the Supplier’s expense and risk.
5.9 Title in the Goods shall pass to Company on the earlier of payment or delivery.
5.10 Risk in the Goods shall pass to Company on completion of delivery.
5.11 The Supplier will repair or replace Goods damaged or lost in transit or during off-loading or stacking free of charge provided Company gives written notice to the Supplier of the damage or loss within a reasonable time after receipt of a despatch note.
- 6. REMEDIES
6.1 If the Goods and/or Services are not delivered on the date they are due or do not comply, however slight, with the undertakings set out in clauses 3 and 4, then, without limiting any of its other rights or remedies, Company shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods and/or Services:
(a) to terminate the Contract;
(b) to reject the Goods and/or Services (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods and/or Services;
(d) to require the Supplier to provide a full refund of the price paid for the rejected Goods and/or Services;
(e) to refuse to accept any subsequent delivery of the Goods and/or Services which the Supplier attempts to make;
(f) to recover from the Supplier any costs incurred by Company in obtaining substitute goods or services from a third party; and
(g) to claim damages for any other costs, loss or expenses incurred by Company which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract including late deliveries.
6.2 The Supplier shall keep Company indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by Company as a result of or in connection with:
(a) any claim made against Company for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the supply or use of the Goods and/or Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against Company by a third party arising out of, or in connection with, the supply of the Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors;
(c) any claim made against Company by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods and/or Services, to the extent that the defect in the Goods and/or Services is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(d) any other act or omission of the Supplier or its employees, agents or sub-contractors in supplying, delivering or installing the Goods and/or Services in accordance with the Contract.
This clause 6.2 shall survive termination of the Contract.
6.3 Company's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
- 7. PRICE AND PAYMENT
7.1 The price of the Goods and/or Services shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods and/or Services shall be fixed for the duration of the Contract and inclusive of all charges including, but not limited to, packaging material, packing, shipping, loading, carriage, insurance and delivery of the Goods and/or Services to the delivery address and any wages, duties, imposts, levies or taxes other than Sales Tax. No extra charges shall be effective unless agreed in writing and signed by Company.
7.3 Company shall, on receipt of a valid tax invoice from the Supplier, pay to the Supplier such additional amounts in respect of Sales Tax as are chargeable on the supply of the Goods and/or Services.
7.4 Unless stated otherwise in the Order, the Supplier may invoice Company for the Goods and/or Services on, or at any time after the completion of the Services or delivery of the Goods.
7.5 Company shall pay correctly rendered invoices within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 If Company, acting reasonably, disagrees with an invoice submitted by the Supplier Company shall be entitled to withhold payment of the disputed amount (without prejudice to any other rights or remedies it may have) pending resolution of the dispute between the parties (each acting in good faith).
7.7 If a party fails to make any payment due to the other under the Contract by the due date for payment (due date), then the defaulting party shall pay interest on the overdue amount at the rate of 3% per annum above LIBOR from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
7.8 Company may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier under the Contract against any amounts payable by it to the Supplier under the Contract.
- 8. INTELLECTUAL PROPERTY
8.1 Subject to the provisions of clause 7.2, all Intellectual Property Rights in the Goods and/or Services and any documents, materials, data or information in whatever form provided by Supplier to Company in connection with the Goods and/or Services, shall belong to Supplier. Supplier shall grant Company a royalty free, non-exclusive licence to use any such rights in connection with the Good and/or Services as contemplated in this Contract.
8.2 The Supplier acknowledges that should any materials, equipment and tools, drawings, specifications, or data be supplied by Company to the Supplier for the Goods and/or Services and their Specifications (Company Materials), all Intellectual Property Rights in Company Materials are and shall remain the exclusive property of Company. The Supplier shall keep Company Materials in safe custody at its own risk, maintain them in good condition until returned to Company, and not dispose or use the same other than in accordance with Company's written instructions or authorisation.
8.3 The Supplier guarantees compliance of all Goods and/or Services with all patent, trade mark, registered design, copyright or similar law, for use or operation by Company without restriction in any part of the world.
- 9. BUSINESS ETHICS
9.1 Both Company and Supplier insist on honesty, integrity and fairness in all aspects of their business and expect the same in their relationships with all those with whom they do business. Both Company and Supplier accept, agree and warrant that the direct or indirect offer, payment, soliciting and acceptance of bribes in any form are unacceptable practices. Further details of Company’s code of business ethics may be found at the Company’s head office.
9.2 Notwithstanding the provisions of Clause 14 (Termination), either Party shall be entitled to terminate this Contract immediately if the other Party or any of its affiliates shall, in relation to the Contract, have committed any act on or after the effective date of commencement of the Contract which is an offence under any relevant applicable legislation relating to proper business practices and payment of inducements from time to time in force in the countries where the Products are to be carried out.
- 10. HEALTH AND SAFETY
10.1 The Supplier agrees prior to delivery to provide Company in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in the Goods supplied whether in use or otherwise and thereafter information concerning any changes in such properties or ingredients.
10.2 The Supplier shall, and shall ensure that its staff and those of any sub-contractor shall, when working on any site in connection with the Contract, comply with all relevant environmental, occupational health and safety legislation and any other appropriate standards, policies and procedures notified by Company from time to time.
- 11. RECORDS AND AUDIT RIGHTS
11.1 Supplier will keep accurate records of its activities regarding the sourcing, production and/or supply of the Goods and/or Services and will provide copies of these to Company upon request.
11.2 Supplier will permit Company (or its authorised agent/adviser) for the duration of the Contract and 2 years afterwards, to enter its premises and inspect and audit the premises and the Goods in stock as well as any relevant books, records and computer programs relating to the Goods and/or Services, at any time.
- 12. INSURANCE
During the term of the Contract and for a period of 2 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, employers liability insurance, workers compensation insurance, product liability insurance and public liability insurance to cover such heads and amount of liability as may arise under or in connection with the Contract, and shall, on Company's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance
- 13. CONFIDENTIAL INFORMATION
A party (receiving party) shall keep in strict confidence all Confidential Information which is disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors,. The receiving party shall only disclose such Confidential Information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.
- 14. TERMINATION
14.1 Company may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Company shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
14.2 Either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party: is in material breach of any of these Conditions; ceases to carry on its business or has a liquidator, receiver or administrative receiver appointed over it or any part of its undertaking or assets or passes a resolution for its winding up or a court of competent jurisdiction makes an administration or liquidation or similar order or it enters into a voluntary arrangement with its creditors or is unable to pay its debts as they fall due or the Buyer reasonably apprehends that any of the events aforementioned is about to occur in relation to the Supplier.
14.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
- 15. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than 30 business days, Company may terminate this Contract immediately by giving written notice to the Supplier.
- 16. GENERAL
16.1 Assignment and subcontracting.
(a) Company may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
(b) The Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without Company's prior written consent.
(c) When Company has consented to the placing of sub-contracts, the Supplier shall remain responsible for all work done, Goods supplied and Services provided by all sub-contractors and Supplier shall ensure that its contract with the sub-contractor shall contain reciprocal terms and obligations to those contained in these Conditions.
(a) Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing, in English, signed by or on behalf of the party giving it and addressed to that other party at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice and shall be delivered personally, or sent by pre-paid registered or recorded delivery, commercial courier or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2(a); if sent by pre-paid registered or recorded delivery, 48 hours after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, 24 hours after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
If any provision of this Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Contract which shall remain in full force and effect.
16.4 Waiver. Delay in exercising, or a failure to exercise, any right or remedy in connection with this Contract shall not operate as a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy, or the exercise of any other right or remedy. A waiver of a breach of this Contract shall not constitute a waiver of any subsequent breach.
16.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.6 Variation. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Company.
16.7 No partnership. Nothing in the Contract shall create or be deemed to create a partnership, joint venture or other relationship between the parties other that the contractual relationship expressly provided herein.
16.8 Time of the essence. Time is of the essence in relation to the performance of any and all of the Supplier’s obligations under this Contract
16.9 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Nigeria, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Nigeria.