FleetNG - GENERAL TERMS & CONDITIONS

In consideration for the Contract Sum, Contractor shall perform, provide and/or supply all (Haulage) Services, set forth in the Agreement and perform all other obligations as set out in the terms and conditions of the Agreement (Particulars).

2. CHANGES (applicable to Services only)

2.1 Change definitions
2.1.1 ‘Change’ shall mean any

(1) change in the quality, quantity or nature of the Services including but not limited to additions, increases, decreases, omissions, removal, alterations, location change, sequence changes and/or

(2) Contractor proposed Changes as to accelerate performance of Services and/or achieve efficiency improvements and/or cost reductions and/or

(3) change in Law.

‘Change Order’ shall be done via:

2.2 Each Party can submit a Change Order Request

2.2.1 Company may from time to time, but prior to Completion of the Services and subject to the limitations set in this clause 2, submit to Contractor a Change Order Request in relation to (a) Change(s) in the Services.

2.2.2 Contractor may from time to time, but prior to Completion of the Services, submit to Company a Change Order Request in relation to (a) Change(s) in the Services it has identified.

2.3 Company’s and Contractor right to reject a Change Order Request

2.3.1 Company may reject a Change Order Request submitted by Contractor if and to the extent the Change is necessary to overcome or correct: (i) the adverse consequences of a breach by Contractor of its obligations under the Agreement and/or defect in the Services caused by Contractor; and/or (ii) the adverse consequences of a negligent act or omission of Contractor in relation to the Services.

2.3.2 Contractor may reject a Change Order Request submitted by Company if and to the extent the scope of the Change falls outside the scope of Contractor’s normal business activities and/or if other projects of Contractor or its (Sub)contractors will be delayed unreasonably at the sole discretion of Contractor.

3. SCHEDULE, SCHEDULE CHANGES AND DELAY

3.1 General

3.1.1 Contractor shall commence and proceed with performance of the (Haulage) Services in accordance with the Time Schedule, agreed Mobilization date(s) and/or Haulage Period and (in case of Services) shall complete/provide the Services (or any specified part thereof) on or before the date(s) as specified in the Time Schedule (including the overall Completion Date), subject to extension of time pursuant to clauses 3.3 (Delay or schedule changes not caused by Contractor) and 6.4 (Force Majeure).

3.2 Company’s right to suspend Services or Amend Time Schedule for its convenience

3.2.1 Company may, at any time, instruct Contractor to suspend the Services or part thereof and/or amend the Time Schedule, for any reason whatsoever by giving notice in writing to Contractor indicating the effective date(s) of suspension. Contractor shall cease the Services on the effective date of suspension as instructed, and in the case of services which cannot be ceased immediately, Contractor shall use reasonable endeavours to cease services as soon as possible.

3.2.2 Company may at any time instruct Contractor to resume the Services by giving written notice to Contractor specifying the effective date of resumption, however subject to a notice period of at least ten (10) days within which Company shall provide an updated Time Schedule to Contractor.

4. PRICE, PAYMENT AND TAX

4.1 Contract Sum

4.1.1 The Trips Sum to be paid for the (Haulage) Services, the breakdown of the Contract Sum and the relevant payment terms and conditions are recorded based on the driver’s acceptance and completion of trips.

4.2 Payment

4.2.1 Company shall pay:
(a) the (agreed parts of) the Contract Sum plus any applicable taxes, duties etc. as defined in clause 4.2(c) in accordance with the payment (milestone) schedule and within the payment period(s) set out in the Agreement Particulars,

4.3 Tax

4.3.1 The Contract Sum is exclusive of VAT and all other taxes, duties and/or penalties etc. levied by government and/or other authorities in respect of and/or in connection with the Agreement or the Services, except for corporate income tax and/or other tax on income to the extent due by Contractor in accordance with applicable law.

4.4 Inflation

4.4.1 The Contractor may increase the Contract Sum at any time by giving the current service cost considering diesel and location distance.

5. OTHER (HAULAGE) SERVICES RELATED CONDITIONS & PRICE ASSUMPTIONS

5.1 Information and documents

5.1.1 A Party may fully rely on the information and documentation provided by or on behalf of the other Party. Each Party is responsible for the accuracy, correctness and completeness of the information and documentation it has provided or has caused to be provided to the other Party. The providing Party shall indemnify the other Party for any damages, losses, claims, costs etc. which result from the inaccuracy, incorrectness and / or incompleteness of the information and documentation of the providing Party.

5.1.2 (applicable to Services only) Contractor shall, if required by or pursuant to the Agreement and subject to its professional knowledge as a heavy lifting and transport company and subject the scope of the Services, review all documents, drawings, specifications, and instructions relating to the Services for discrepancies and errors. However, Company is and shall remain responsible for any and all consequences resulting from such discrepancies and errors in the trip details.

5.2 Permits, compliance with law, quarantine requirements

5.2.1 Unless specified otherwise in the Agreement, Company is responsible for obtaining, at its own expense, all permits, licences, customs clearance and other approvals required for performance of the Project and/or the (Haulage) Services and for getting access to the Site.

5.2.2 Contractor and Company shall comply with all applicable laws, regulations, ordinances and/or other regulatory requirements and instructions of governments.

5.2.3 For the avoidance of doubt, to the extent that Contractor is obliged to comply with any applicable quarantine requirements, this shall qualify as a Change entitling Contractor to a Change Order.

5.3 Site accessibility & conditions

5.3.1 Company shall ensure that the Site is properly accessible, that Contractor’s equipment/Trucks can be mobilised and/or assembled properly and safely to, on and from the Site and that the (Haulage) Services can start on the agreed date and can be performed without interruption or hindrance.

5.3.2 Company shall further provide good working conditions at the Site (in particular about health and safety) and ensure that such conditions comply with all local regulations and requirements.

5.4 Professional / independent performance of Services (applicable to Services only)

5.4.1 Contractor shall exercise all reasonable skill, care and diligence in the performance of the Services and shall carry out all its responsibilities in accordance with recognized professional standards.

5.4.2 Contractor shall have the sole control over the means and methods required for performance of the Services. Contractor shall plan and execute the Services as it suits the Contractor best, provided that the Contractor complies with the Time Schedule and reasonable instructions of the Company in accordance with the provisions of the Agreement.

5.5 Safety First

5.5.1 Notwithstanding anything to the contrary in the Agreement the Contractor shall in any event not be required to undertake any activities or comply with any instruction or direction, which are reasonably deemed by the Contractor to be unsafe or potentially hazardous to life or property.

5.6 Warranty and defects (applicable to Services only)

5.6.1 Contractor warrants that it shall use good workmanship and perform the Services in accordance with the provisions of the Agreement. Notwithstanding and due to the nature of the Services it is expressly agreed that Contractor is not responsible for works of repair, reconstruction, re-testing, and rectification and shall not make good defects, imperfections or other faults as may occur after completion of (an intermediary milestone of) the Services.

6. SUSPENSION / TERMINATION / CANCELLATION

6.1 Termination by Company for its convenience

6.1.1 Company may, at any time, cancel or terminate the Agreement, for any reason whatsoever and at its own convenience by giving notice in writing to Contractor indicating the effective date of the termination.

6.1.2 In the event of termination or cancellation of the Agreement in accordance with this clause 6.1 Company shall pay to Contractor
(a) the value of the (Haulage) Services performed up to and including the effective date of the termination,

(b) agreed demobilisation fees plus all reasonable cost incurred by Contractor as a result of the termination/cancellation and

(c) a fee of 25% of the remaining terminated non-performed value of the Services or, in case of Haulage Services, the sum as specified in the Agreement Particulars to be paid by Company for the remaining terminated part of the agreed minimum Haulage Period. To the extent applicable and possible such value and costs shall be calculated by applying the pricing/rates included in the Agreement.

6.2 Termination by Company for Cause (Contractor’s default/breach)

6.2.1 If Contractor breaches any material obligation it has assumed in the Agreement and does not cure such violation within thirty (30) days (‘Cure Period’) following written notice of such breach from Company to Contractor to be issued within 10 days of the date of the breach, then Company may terminate the Agreement by giving ten (10) days’ written notice to Contractor. ln the event that such breach is not reasonably susceptible to cure within thirty (30) days, Contractor’s Cure Period shall be extended to a maximum of ninety (90) days, unless otherwise agreed to by Company in writing.

6.2.2 In the event of termination for cause Company shall pay Contractor the value of (Haulage) Services performed less any direct and reasonable costs incurred because of having the (Haulage) Services performed by a replacement Subcontractor.

6.3 Suspension / Termination by Contractor for Cause (Company’s default/breach)

6.3.1 If:
(a) Company has failed to pay Contractor for the (Haulage) Services for a period of fifteen (15) days after the date such payment is due under the Agreement, and/or

(b) Company is in breach of any of its other material obligations assumed under the Agreement and it does not cure such breach within thirty (30) days following written notice of such breach from Contractor to Company, and/or

(c) the Services or the Project, in whole or substantial part, is stopped for a period of sixty (60) consecutive days through no act or fault of Contractor, then without prejudice to any other rights and remedies that Contractor may have under or pursuant to the Agreement (provided by law or in equity), the Contractor may give Company ten (10) days' written notice’ (‘Suspension Notice’) of such breach or default and, in the event such breach, failure or default is not cured within such ten (10) day time period, Contractor may suspend performance under the Agreement.

6.3.2 If such breach, failure or default is not cured by Company within twenty (20) days from the date of the Suspension Notice, Contractor may terminate from the Agreement and shall be paid, in each case without duplication:
(i) the amounts, fees and costs as specified in clause 6.1 (Termination for Company’s convenience) plus
(ii) any further losses or damages incurred by Contractor and not expressly waived pursuant to the Agreement.

6.4 Force Majeure

6.4.1 Force Majeure’ shall mean circumstances, conditions and/or events, which are beyond the reasonable control of either Party and that could not be foreseen at the time the Agreement was entered into, occurring in the absence of any fault of negligence of any Party and which cannot be avoided or prevented through the adoption of reasonable measures, which temporarily or permanently prevent the performance of any obligation (with the exception of payment obligations) under the Agreement, including but not limited to industry wide or regional strikes, substantial supply chain disruptions and labour disturbances, (not including the personnel of the Group of the affected Party), cyber security related events, mutinies, quarantines, epidemics, pandemics, wars (whether declared or undeclared), acts of terrorism, blockades, embargo’s, riots, civil disturbances, civil wars, fires, storms and/or other weather conditions and/or other acts of nature. Inclement Weather that is not abnormal for the Site shall not qualify as Force Majeure.

7. LIABILITY & INDEMNITY

7.1 General liability basis

7.1.1 Contractor shall only be liable for any damage, loss, injury, expense and/or cost of any kind if and to the extent such damage, loss, injury, expense and/or cost is caused by negligent errors, acts, omissions or breach of contract by Contractor and/or any of its Subcontractors.

7.2 Limitation of aggregate liability

7.2.1 Except for the gross negligence or wilful misconduct on the part of Contractor and further to the fullest extent permitted by applicable law, Contractor’s total aggregate liability whether in contract, in tort (including but not limited to negligence), for breach of statutory duty, in restitution, in law or in equity or for any cause of action whatsoever arising under or in connection with the Agreement for loss, damage, damages, cost, expense, expenses, disbursements, liability (including in respect of any fine or penalty) interest and costs, whether direct or indirect, present or future, actual or contingent, fixed or unascertained shall be limited to 50% of the Original Contract Sum. Company shall indemnify, defend, and hold harmless Contractor Group for all damages, losses, claims, costs, liability etc. of Company Group exceeding the above-mentioned limitation.

7.3 Exclusion consequential loss liability

7.3.1 Notwithstanding any of the indemnities and liabilities specifically referred to elsewhere in the Agreement, neither Party shall be liable, whether in contract, in tort (including but not limited to negligence), for breach of statutory duty, in restitution, in law or in equity or for any cause of action whatsoever arising under or in connection with the Contract, for any loss of profit or anticipated profit, loss of revenue, loss of turnover, loss of opportunity, loss of production, loss of use, loss of business, or any consequential or indirect losses whatsoever. Any loss or damage, as mentioned in this article, of Company Group shall be deemed loss or damage of Company. Any loss or damage, as mentioned in this article, of Contractor Group shall be deemed loss or damage of Contractor. Each party shall indemnify, defend, and hold the other party harmless accordingly.

8. INSURANCES

8.1 Contractor and Company provided standard insurance

8.1 Contractor and Company provided standard insurance 8.1.1 Each Party shall at its sole cost take out and maintain during the existence of the Agreement and the Services the following insurances:
(a) Workers’ Compensation and Employer’s Liability Insurance for its own personnel as prescribed by applicable laws.

(b) Commercial General Liability (third party bodily injury and third-party property damage) insurance with a coverage is accepted

(c) any other insurance required by the applicable law.

8.2 All-risk insurance provided by Company (CAR/Cargo insurance)

8.2.1 Company shall take out and maintain, at its/their sole cost, or shall procure that any other member of the Company Group shall take out and maintain, for the duration of the Agreement and the Project, insurance(s) adequately covering at least physical loss or damage caused to or respectively caused by the Cargo at the Site and/or during transportation and/or (temporary) storage. Company shall also maintain (or arrange that its Group shall maintain) appropriate insurance covering damage to or loss of any other Site installations or other property owned by or otherwise in the care custody and control of Company Group such as but not limited to permanent construction and/or existing facility. These insurances shall in any event be primary to the insurances taken out by Contractor Group. The insurance policy provided by Company and/ any member of the Company Group shall be endorsed to waive subrogation against the Contractor Group. All policies of insurance provided by Company or Company Group shall name the Contractor and Contractor Group as additional insured.

8.3 All-risk insurance provided by Contractor (Equipment insurance)

8.3.1 Contractor shall at its sole cost take out and maintain during the existence of the Agreement and the Services Equipment insurance for the Equipment that is owned, leased, or hired by the Contractor in an amount of the full replacement value

9. GOVERNING LAW AND DISPUTE RESOLUTION

9.1 Governing law

9.1.1 The Agreement will be governed by and construed in accordance with Nigerian laws.

9.2 Disputes

9.2.1 A Party may notify the other Party in writing that a Dispute has arisen. The Parties will, in the first instance, attempt to resolve the Dispute by entering good faith negotiations. If, within thirty (30) days from the date of notification, the Parties do not reach agreement on the resolution of the dispute, each Party may refer such dispute to arbitration as set out in clause 9.2.2. The seat, or legal place, of arbitration shall be Lagos, Nigeria.

9.2.2 Nothing contained in the clauses 9.2.1 shall be construed to prohibit any Party from making an application to any court of competent jurisdiction for an order of specific performance, including but not limited to payment for undisputed invoices owed by Company to Contractor, or for other injunctive or equitable relief if the arbitral tribunal contemplated in this Section 9.2.1 has not yet been formed.

10. MISCELLANEOUS

10.1 Notices

10.1.1 All notices, demands, claims or other communication under the Agreement to the Parties shall be in the English language and shall be considered to have been duly given or made when delivered in writing by registered mail, email or a courier to the Party and addressed to the person(s) and address(es) specified in or pursuant to the Agreement or, in the absence thereof, when delivered via courier to the Party’s registered office address or another address specified by the receiving Party in writing.

10.2 Business ethics and anti-bribery

10.2.1 Each Party agrees, in its performance of its obligations under the Agreement, to comply, and to cause its affiliated companies to comply, with all applicable laws, including all National rules and regulations related to bribery.
10.2.2 Neither Party shall knowingly take any action that would cause the other Party to be in violation of any applicable laws. Further, each Party shall immediately notify the other Party if such Party has any information or suspicion that there may be a violation of any applicable laws in connection with the performance of activities under the Agreement.

10.3 Intellectual Property

10.3.1 All documentation is and will remain the property of the Party that has supplied it to the other Party.

10.3.2 All intellectual property rights related to information and/or documents provided in relation to the Project or Services and as may be further defined in the Agreement Particulars (‘Intellectual Property’), if any, are and will remain vested in the Party that has supplied the documents and/or information to the other Party.

10.3.3 Any concept, product, process (patentable or otherwise), copyrightable material (including without limitation documents, specifications, calculations, maps, sketches, notes, reports, data, models, samples, drawings, designs, videos and electronic software) or other information first conceived, reduced to practice or created by any member of Contractor Group in the performance of the Services (and with respect to any subcontractors, their respective scope) under this Agreement (collectively, ‘Work Product’) shall be the property of the Contractor. Title shall have passed principally upon the earliest of conception, reduction to practice or creation, as applicable, whether delivered to the Contractor at the time of conception, reduction to practice or creation.

10.3.4 Each Party shall indemnify, protect, defend and hold harmless the other Party for any and all damages, losses, claims, actions or proceedings arising out of any patent infringement by that Party and in relation to the Services, including but not limited to reimbursement of royalties or similar charges paid by the other Party.

10.4 Confidential Information

10.4.1 ‘Confidential Information’ shall mean any and all information disclosed (whether orally, in writing or by any other means) by the disclosing Party to the receiving Party, whether before or for a period of 5 years after the date of the Agreement, whether marked confidential or by its nature to be reasonably deemed confidential, including but not limited to information relating to that Party’s operations, processes, plans or intentions, production information, know-how, copyrights, design rights, trade secrets, market opportunities, business affairs, but shall not include any part of such information which:
(a) is in or comes into the public domain in any way without breach of the Agreement by a receiving Party or any person to whom it makes disclosure; or

(b) the receiving Party can show:

10.4.2 In relation to Confidential Information received from the other Party or from a third party on behalf of the other Party, the disclosing Party and the receiving Party agree as follows:


10.4.3 Subject to applicable data preservation law, at the request of the disclosing Party the receiving Party shall promptly return all documents, materials and records and all copies of the Confidential Information to the disclosing Party and permanently delete any such. Confidential Information from any electronic storage media or memory.

10.4.4 Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent required by law or court order, provided that the originally disclosing Party receives written advance notice of the requested disclosure promptly and has a reasonable opportunity to object to the disclosure and seek a protective order prior to the receiving party making such disclosure. The obligations of this paragraph

10.4.5 shall survive the termination of the Agreement.

10.5 No assignment / transfer

10.5.1 The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. No party shall have the right to assign, transfer, pledge, encumber or otherwise affect its obligations and rights under the Agreement (hereafter, collectively, ‘Assign’) without the written consent of the other party, which may be granted or withheld in its sole discretion.

10.5.2 Any attempt by any of the parties to assign any of its obligations and rights hereunder, without such consent, shall be void and without effect and shall not affect its obligations under the Agreement.

10.6 Entire agreement

10.6.1 The Agreement constitutes the entire agreement and understanding of the Parties and supersedes all prior written or oral agreements or understandings with respect to the subject matter hereof.

10.7 Partial invalidity

If any term, covenant, condition, or provision of the Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of the Agreement or application of such term or provision to persons or circumstances other than those as to which it is held to be invalid or unenforceable shall not be affected thereby and each term, covenant, condition, or provision of the Agreement shall be valid and shall be enforceable to the fullest extent permitted by law.

1.1 Condition of Trips upon delivery and return

1.1.1 Upon delivery, the Equipment/Trucks will be of good quality, in good working order, properly serviced and in good maintenance, free of defects and fit to operate within its Specifications and Capacity.

1.1.2 Parties will jointly inspect the condition of the Equipment immediately upon delivery on Site after which a written inspection report will be confirmed between Parties in writing. Any visible defects must be reported to Contractor during the inspection, failing which Company shall be deemed to have received the Equipment without any visible defects.

1.1.3 Company shall return the Equipment in the same condition that existed at the time of delivery to Company, ordinary wear and tear Excepted, failing which Company shall compensate Contractor for all reasonable costs or damages incurred due to non compliance with this clause 1.1.3

1.2 Equipment/Trucks use

1.2.1 Company may only use the Equipment/Trucks on the Site and in accordance with the Equipment/Trucks Specifications and Capacity and (if provided by Company) only by use of properly qualified and trained personnel.

1.2.2 Company may not in any way rent or sub-rent the Equipment/Trucks and/or grant any rights, of whatever nature, to or in the Equipment to any Third Party or any other member of Company Group.

1.3 Equipment ownership rights

1.3.1 All Trucks are own by Merchant/Company.

1.3.2 Merchant/Company is always entitled to replace Equipment (pieces) provided the replacement Equipment is of equal or better quality and further provided that such replacement shall not materially (adversely) impact Company’s work schedule.

1.5 Consumables, maintenance, and repair

1.5.1 Unless otherwise agreed in the Agreement Particulars:

1.6 Liability and indemnity

1.6.1 Company shall be liable for any damage, loss, injury, expense and/or cost of any kind if and to the extent such damage, loss, injury, expense and/or cost is caused by negligent errors, acts, omissions, or breach of contract by Company and/or any of its Subcontractors.

1.7 Insurance

1.7.1 Company shall at its sole cost take out and maintain during the Haulage Period, for the Equipment that is leased or hired by the Company, all risk insurance in an amount of the full replacement value. The insurance shall name Contractor as loss payee, be endorsed to waiver subrogation against the Contractor Group and name the Contractor Group as additional insured. The Company shall issue a certificate of insurances to evidence the existence of the insurance.

2 PERSONNEL HAULAGE SPECIFIC CONDITIONS

2.1 Personnel – Company provided.

2.1.1 If and to the extent operation of the Equipment will be undertaken by Company Group, Company shall ensure that the personnel operating the Equipment is fully qualified, licensed, and skilled to do so. Company shall indemnify and hold harmless Contractor Group from claims, liabilities, costs, damages and expenses of every kind and nature resulting from all acts and omissions of such personnel, whether employed by Company or not.

2.2 Personnel/Driver – Contractor provided.

2.2.1 If and to the extent operation of the Equipment will be undertaken by Personnel, Contractor shall ensure that the Personnel is fully qualified, licensed, and skilled to do so. Such Personnel shall always however be deemed borrowed servants and shall perform any work under the supervision, direction, and control and on behalf of Company. Contractor’s responsibility is explicitly limited to providing fully qualified, skilled, and licensed Personnel.