Forterun Global Resources LIMITED (draft copy) terms and conditions

  • Introduction
    • These terms apply to the delivery of the Services by us to you and document our respective responsibilities, rights and obligation pursuant to the Engagement Letter.
    • If there is any inconsistency between these Terms and the Engagement Letter, the Engagement Letter shall prevail to the extent of the inconsistency.
    • Our services exclude the provision of legal advice or services
    • Any work already performed in connection with the Services before the date of this Agreement shall be governed by these terms
    • You can accept this Agreement by signing the copy of the Engagement Letter where indicated and returning it to us, or by continuing to instruct us in relation to the Services.
    • The Agreement contains the entire understanding between you and us in relation to the delivery of the Services and supersedes and previous agreements, understanding or arrangements [whether written or oral] in respect of the Services. Any change to this Agreement will not be effective unless it is in writing and approved by an authorised representative of both you and us.
  • Your Responsibilities
    • You shall promptly provide us or any Assisting Party with
  1. all relevant information, and
  2. access to appropriate members of your staff (including, if necessary, senior executives), records, facilities, equipment, technology, systems and premises

as are reasonably required for the proper and timely provision of the Services. You shall bring to our attention any changes to the information originally provided to us prior to us providing our advice or Deliverable to you.

  • In relation to any information or equipment provided by you or on your behalf, you warrant that you have given all necessary notifications and obtained all necessary consents and licenses to disclose that information to us or for us to use the equipment. You warrant that our use of any information or equipment provided by you or on your behalf in connection with the Services shall not infringe the property rights, Intellectual Property Rights or privacy rights of any third party.
  • You are responsible for
  1. the management, conduct and operation of your business, interests and affairs
  2. compliance with your regulatory obligations
  3. deciding how you use, choosing to what extent you wish to rely upon, and/or the implementation of advice or recommendations in the Deliverable, and
  4. the delivery, achievement or realisation of any benefits directly or indirectly related to the Services
  • Our Services
    • Unless otherwise specified in the Engagement Letter, any timetable for the provision of the Services is indicative only
    • Unless otherwise specified in the Engagement Letter, the Services have not been undertaken in accordance with any auditing, review or assurance standards.
    • The use of the terms “audit” and “review” in the Engagement Letter or any Deliverable is not intended to convey that our Services will be, or have been conducted in accordance with any auditing, review or assurance standards unless otherwise specified in the Engagement Letter.
    • Information provided by you or on your behalf to, or which is otherwise known by, our partners, principals or employees who are not engaged in the provision of the Services shall not be deemed to have been made available to us or any Assisting Party in the provision of the Services
    • We shall rely upon the truth, accuracy and completeness of any information provided or made available to us in connection with the Services without independently verifying it. This clause 3.5 may not apply where we are providing a financial statement audit to you or if specified in the Engagement Letter.
    • Any advice, recommendation, information or Deliverable provided by us to you is for your sole use and benefit. Unless required by law or by a regulatory authority having jurisdiction over you to do so you shall not provide or make it available to any third party or use our name in any marketing or promotional material without our prior written consent. You agree to provide us a written request for our consent to third party access which must include a statement that you shall hold us free and harmless from any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage that may arise from such access. Any oral presentation is subject to the same terms and conditions as a written report. If you violate this provision clause 9.3 shall apply.
    • If we provide any document to you and changes are made to that document by you, we are not responsible for any loss caused by the changes unless we have specifically approved them.
    • Unless otherwise agreed with you in writing, we shall not update or revise our advice or Deliverable as a result of new information, legislative change or any other event occurring after the Effective Date.
    • We may destroy our files, including information and documents provided by you, at any time three (3) years after the date of our final bill to you in relation to the Services, unless we are aware of any legal proceedings that may be commenced in relation to which the fie or any documents in it may be required or unless otherwise required by law. You should advise us in writing if you would like to make other arrangements. You shall be charged for storage expenses to be made beyond the three (3) year period.
  • Our Fees
    • You agree to pay our Fees and Expenses in full on or before the Due Date
    • If our Fees are based on the time spent by us and charged at hourly rates, we shall notify you of any change to our hourly rates which affects this Agreement
    • Any Expenses incurred shall be charged to you in addition to our Fees
    • All payments to Forterun Global being a professional private company are subject to withholding tax and are liable to paying VAT on services and goods supplied. In this case, VAT is charged to the client, so you shall pay us an additional amount on account of any VAT for which we are liable as a result of the supply of the Services to you unless the amount payable by you is specifically stated to be inclusive of VAT
    • Where we have been engaged by more than one person or entity, each engaging person or entity is jointly and severally liable for the payment of our Fees and Expenses
    • If we comply with an Information Request, you shall
  1. be charged fees based on the time spent by us complying with the Information Request calculated at the then applicable hourly rates
  2. be charged any Expenses incurred by us in complying with the Information Request, and
  3. promptly cooperate with us, including providing any necessary consent, to the extent it is necessary for us to comply with the Information Request.
  • Handling Confidential Information, Personal Information and Other Data
    • In the course of delivering the Services, either party may disclose Confidential Information to the other and the recipient of such information shall keep it confidential except as provided for in these Terms
    • A party is not required to keep Confidential Information confidential
  1. where disclosure is expressly permitted under this Agreement or by written agreement of the parties
  2. to the extent either party is bound to comply with any law, regulation or professional standard
  3. where Confidential Information is already in the possession of the recipient (other than through a breach of any right of the disclosing party) at the time of disclosure as shown by the recipient’s written records in existence at the time of disclosure
  4. where Confidential Information is lawfully obtained by the recipient from a third party without breach of this Agreement
  5. where Confidential Information is independently developed by the recipient without breach of this Agreement, or
  6. where Confidential Information has entered the public domain other than as a result of a breach of this Agreement
    • We can disclose your Confidential Information
  7. to any Assisting Party
  8. to our insurers, legal or other professional advisers, financiers and auditors, or
  9. for internal or external quality assurance and risk management purposes
    • You agree that information relating to our work may be transferred and stored offsite
    • You consent to, and accept the inherent risks of, using electronic mail as a form of communication (including the security risks of interception of, or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices)
    • We may for Business Purposes refer to, use, develop or share within Forterun Global. Confidential Information which may include
  10. your name, contact details and logo
  11. a description of the Services, and
  12. knowledge, experience and skills of general application gained through the provision of the Services
    • If the recipient is served a subpoena or other judicial order requiring it to disclose the other party’s Confidential Information, the recipient shall give the other party prompt notice of such subpoena or judicial order so that such other party may seek an appropriate protective order the recipient may disclose such Confidential Information without liability hereunder.
  • Work Papers and Intellectual Property Rights
    • We own our Work Papers and the Intellectual Property Rights in the Deliverable. We will not hand over our Working Papers in the event of termination of this Agreement
    • We grant to you a non-exclusive, non-transferable, royalty free license to use our Intellectual Property Rights in the Deliverable for any use or purpose set out in the Engagement Letter or as otherwise agreed by us in writing.
  • Working with You and Other Parties
    • We may deliver services to a Competing Party. If we determine that the provision of services to a Competing Party gives rise to a specific and direct conflict of interest, we shall put in place appropriate ethical dividers. In these circumstances, the effective operation of those ethical dividers shall constitute sufficient steps to avoid any real risk of a break of our duty of confidence to you. If you know or become aware that a partner, principal or employee of Forterun Global is advising or proposing to advise a Competing Party, you shall inform us in writing promptly
    • We may engage Assisting Parties to assist in the provision of the Services. We will obtain your written consent prior to such engagement
    • Where we engage an Assisting Party with your written consent
  1. we shall require them to comply with our obligations under this Agreement to the extent reasonably necessary to provide us with the agreed assistance
  2. we may share Confidential Information or Personal Information with them, and
  3. you shall provide the same access to those Assisting Parties as is required to be provided to us
  • Liability
    • The total aggregate liability to you of Forterun Global, our partners, affiliations, principals and employees for any Loss in relation to the Services shall be limited to the amount of fees paid to us for such Services. This limitation shall apply however the Loss is caused, including our negligence, but not our gross negligence, fraud, misrepresentation or wilful default
    • Where there is more than one Beneficiary of the Services, the limitation on our total aggregate liability agreed under clause 8.1 above to each Beneficiary (including you) shall be apportioned by them amongst them. No Beneficiary shall dispute the validity, enforceability or operation of this clause 8.2 on the ground that no such appointment has been so agreed or on the ground that the agreed share of the limitation amount apportioned to any Beneficiary is unreasonably low
    • To the extent permitted by law, we exclude all liability to you for any indirect or consequential loss including without limitation loss of profits or revenue, business interruption or loss of data
    • Subject always to the aggregate limitation on our liability in clause 8.1, the liability of Forterun Global, our partners, principals and employees shall be limited to that proportion of the total Loss after taking into account your own contribution (if any) or the contribution (if any) of any other Beneficiary, which is fair and reasonable. In determining the fair and reasonable proportion, we will consider the extent of responsibility of our partners, principals and employees for the Loss and the extent of responsibility of any other party also liable or potentially liable to you or to other Beneficiaries in respect of the same Loss
    • We shall not be responsible for any Loss to you or any loss, liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage to or of third parties to the extent that these have been caused directly or indirectly, by your or your directors, officers and employees’ negligence, fraud, misrepresentation or wilful default
    • Where we engage an associate firm as an assisting party, the limitation of liability in this clause 8 includes any liability of that associate firm. You agree that any such associate firm may rely on this clause as if they were a party to this agreement
    • You agree not to bring any Claim (including in negligence) against any of our partners, principals and employees personally in connection with the Services, unless
  1. we raise as a defence that your Claim should be directed to such individual and not to Forterun Global or
  2. you are not permitted to bring a Claim against us in our collective (partnership) name under applicable laws

You agree that each of our partners, principals and employees may rely on this clause as if they were a party to this Agreement

  • Indemnity
    • You shall indemnify, compensate and hold harmless Forterun Global, our partners, principals and employees against any loss, liability, cost, expense (including legal costs on a full indemnity basis), proceeding, action, demand or damage incurred or suffered by or asserted against us, our partners, principals and employees arising out of or in connection with the Services, except in case of our gross negligence, fraud, misrepresentation or wilful default
    • If you breach any of your obligations under this Agreement (as it may be amended or supplemented from time to time) and there is any Claim made or threatened against us, you shall indemnify, compensate, hold harmless Forterun Global, our partners, principals and employees against any loss, liability, cost, expense (including legal costs on a full indemnity basis), proceeding, action, demand or damage incurred or suffered in connection with such breach and any such Claim
    • You shall indemnify, compensate and hold harmless Forterun Global, our partners, principals and employees against any loss, liability, cost, expense (including legal costs on a full indemnity basis), proceeding, action, demand or damage incurred or suffered by or asserted against us, our partners, principals and employees in connection with a third party Claim to the extent resulting from such party’s use or possession or reliance upon any of our advice, recommendation, information or Deliverables as a result of your disclosure in violation of clause 3.6.
  • Termination of Agreement and suspension of Services
    • Either party may terminate this Agreement immediately in whole or in part by written notice to the other if
  1. the other commits a material breach of a provision of this Agreement and does not remedy such material breach within fifteen (15) days from the date on which it receives written notice identifying the breach and requesting that it be remedied
  2. the other becomes insolvent, or
  3. the Services are suspended under clause 10.6 for more than thirty (30) days
    • Either party may terminate this Agreement by written notice to the other party to take effect no earlier than five (5) business days after receipt of the notice. However, if we engaged any Assisting Party and have, before your written termination notice is served, provided a copy of terms under which we may terminate will, if necessary be extended so as to expire five (5) business days after Assisting Party’s engagement could have been terminated under such terms. We will immediately send a written notice of termination to any Assisting Party upon receipt of a written notice of termination from you under this clause 10.2
    • We may terminate this Agreement immediately by giving you written notice if, in our reasonable opinion, the continued provision of the Services by us would
  4. breach any applicable law, rule, regulation or professional standard
  5. bring our reputation into disrepute
  6. prejudice our ability to comply with any applicable independence requirement, or
  7. expose individuals providing the Services to unreasonable physical or personal risk
    • Where you have a right to terminate this Agreement and we have been engaged by more than one (1) person or entry termination will only be effective if all parties contracting with us have consented to the termination
    • You agree to pay our Fees and Expenses incurred up to the date of termination of this Agreement Suspension of services will not affect your obligation to pay us for Services rendered up to the date of suspension
    • We may suspend the provision of the Services
  8. in the event of a Dispute with you
  9. where our Fees are not paid by the Due Date or
  10. where after a reasonable request you do not provide, or make available to us information or personnel necessary for us to perform the Services

until the Dispute is resolved, the Fees are paid or the personnel are made available or the information is provided

  • Complaint Handling
    • If at any time, you wish to discuss the Services if you have a complaint about them, you are invited to telephone any partner, principal or director identified in the Engagement Letter. If your problem is not resolved please contact our Support team by sending an email to support@forterun.com. We will investigate any complaint promptly and we would do what we can to resolve the difficulties.
  • Dispute Resolution
    • Nothing in this clause 12 shall prevent either party from instituting court proceedings limited to the determination of an application for Urgent Relief
    • If a Dispute between you and us arises, before commencing a Proceeding in respect of a Dispute
  1. the person raising the Dispute shall provide the other party with a Dispute Document which both parties acknowledge and agree is not a notice of arbitration and
  2. the parties shall engage in confidential senior level negotiations within fifteen (15) days of provision of the Dispute Document with a view to resolving the Dispute. And
  3. should such negotiations not be successful in resolving the Dispute within a further fifteen (15) days, you agree to participate in mediation as soon as is practicable.
    • To the extent permitted by law, this clause 12 will apply notwithstanding any other dispute resolution procedure set forth in law or regulations
  • Anti-Bribery
    • In providing the Services, we shall comply with applicable Nigerian laws, rules and regulations that prohibit corruption and bribery
  • Governing Law and Jurisdiction
    • This Agreement shall be construed in accordance with and governed by the laws of the Federal Republic of Nigeria.
    • Without limiting the application of clause 12, each party unconditionally submits to the exclusive jurisdiction of the Nigerian Judicial System.
  • Miscellaneous
    • This Agreement does not create a fiduciary relationship or a relationship of employment, agency or partnership between the parties
    • The obligations in clauses 1, 2.2, 2.3, 3.6, 3.7, 3.8, 3.9, 4, 5, 6, 7, 8, 9, 10.4, 11, 12, 14 and 15 are continuing obligations and those clauses and the Definitions in clause 16 survive this Agreement’s rescission, termination, completion or expiry
    • If any provision of this Agreement is, or becomes unenforceable, illegal or invalid for any reason, the relevant provision is to be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible, then such provision must be severed from this Agreement, without effecting the enforceability, legality or validity of any other provision of this Agreement.
    • If a party’s performance of this Agreement is prevented or restricted by reason of Force Majeure, then that party is, for the period in which the Force Majeure, then that party is, for the period in which the Force Majeure, operates and only to the extent they are prevented or restricted at that time, excused from their obligation to perform the Agreement any obligation to avoid or remove the causes of non-performance within a previously agreed timeframe
    • A power, remedy or right arising from any provision of this Agreement can only be waived, qualified, restricted, modified or amended specifically in writing by the party with that power, remedy or right
    • A reference to law or to a provision of law includes a modification or re-enactment of it, a legal provision substituted for it and a rule or regulation issued under it
    • This Agreement sets forth the entire agreement of the parties in respect of the Services and supersedes all prior proposals, statements, discussions and agreements, whether oral or written
    • No modification or amendment of this Agreement shall be binding unless executed in writing by all parties hereto
  • Definitions

The following words and phrases used in these Terms have the meanings set out in this clause 16

Agreement means these Terms and the Engagement Letter, including any other appendices to the Engagement Letter

Assisting Party (ies) means any party that is engaged to assist with the provision of the Services, other than the parties to the Engagement Letter

Beneficiary means you and any other person or entity identified in the Engagement Letter as a beneficiary of the Services

Business Purposes means

  1. providing the Services or any other services to you
  2. communicating with you
  3. tendering promotional, marketing and publicity purposes
  4. to enhance and facilitate the delivery of services to clients
  5. quality assurance and risk management purposes
  6. to enable other clients to be aware of the nature of services we have performed, and
  7. in connection with thought leadership projects

Claim includes any claim or ability of any kind (including one which is prospective or contingent and the amount of which is not ascertained) arising from or connected with the Services and costs {whether or not the subject of a court order}

Competing Party means any person or entity including without limitation an individual, partnership, company, body corporate, joint venture, trustee, government department or agency or any regulator or disciplinary body or tribunal

  1. who may be in competition with you or your affiliates, or
  2. who may be involved as a bidder, vendor, financier, regulator, government stakeholder or other interested party in the same or related manner in which we have been retained to provide the Services to you.

Confidential Information means any information in any form whatsoever (including oral, written and electronic information) of a technical, business, corporate or financial nature (including without limitation business requirements, evaluation requirements, information technology, infrastructure, security and application topology, technology platforms and standards management or service delivery/support procedures or any other information relating to research, products, software, services, development, inventions, processes, engineering, marketing, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, proposals, proof of concepts, finances, employees and business opportunities, technical data or know-how disclosed by one party to the other

  1. that has been marked as confidential
  2. whose confidential nature has been made known by the disclosing party to the recipient, or
  3. which due to its character or nature, a reasonable person in the circumstances would treat as confidential

For the avoidance of doubt, our proposal for the Services and this Agreement are considered Confidential Information.

Deliverable(s) means any dispute controversy or Claim arising out of, relating to or connected with this Agreement (including any questions regarding its existence, validity or termination), or the Services.

Dispute means any dispute controversy or Claim arising out of, relating to or connected with this Agreement (including any question regarding its existence, validity or termination), or the Services.

Due Date means the day which is seven (7) days from the date of receipt of any invoice for the provision of the Services.

Effective Date means

  1. where the advice or Deliverable specifies that it is based on information provided or made available to us up to a specified date, or
  2. the date of the advice or Deliverable

Engagement Letter means the letter incorporating these Terms by reference which records the details of the engagement including the scope, timing and Fees.

Expenses means any actual and reasonable out-of-pocket costs incurred by us in the delivery of the Services in complying with an Information Request.

Fee means the amount payable to us for performing the Services as detailed in our Engagement Letter.

Force Majeure means fire, storm, flood, earthquake, war, riot, civil disturbance, labour, dispute, transportation embargo, law, order or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of a party.

Forterun Global is a Nigerian private company with a global focus to help businesses and decision makers to TRANSFORM and DOMINATE their MARKET.

Information Request means other than where a request is made in respect of a claim or regulatory action against us any order or request that we produce documents provide information or give evidence in relation to the Services as required by any applicable law or by reason of any judicial regulatory, professional or administrative process.

Intellectual Property Rights means all and any patents, patent applications, trademarks, service marks, trade names, registered designs, unregistered design rights, copyrights, know how, trade secrets, domain names, internet addresses, rights in Confidential Information, and all and any other intellectual property rights, whether registered or unregistered and including all applications and rights to apply for any of the same now or in the future.

Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding action, demand or damage suffered by you in connection with the Services

Personal Information has the meaning given to that term in

Proceeding means any judicial, regulatory, professional or administrative proceeding instituted by a party or on behalf of a party to this Agreement, other than court proceedings to seek Urgent Relief in respect of a Dispute

Services means the services to be provided by us under the Engagement Letter including but not limited to any Deliverable

Terms means these Terms and Conditions of Business

Urgent Relief means urgent injunctive, interlocutory or declaratory relief in respect of a Dispute or the enforcement of a payment due under the Agreement

Us or we (and derivatives) means Forterun Global Resources Limited contracting party as identified in the Engagement Letter

VAT means the value-added tax as defined in the Federal Inland Revenue Service of the Federal Republic of Nigeria

Work Papers means our internal working documents produced in the performance of the Services which may contain copies of extracts from or references to your Confidential Information or Personal Information

You (and derivatives) means the person and/or entity to which the Engagement Letter is addressed.