MEMORANDUM OF AGREEMENT
BETWEEN RMH LIMITED AND
This Agreement is made this day ________________(dd/mm/yyyy) (“Effective Date”)
RMH LIMITED, a power and energy service provider platform incorporated under the laws of the Federal Republic of Nigeria with its registered office at 6 Raymond Njoku Street, Ikoyi, Lagos. (hereinafter referred to as “RMH” which expression shall where the context so permits include its successors in title and assigns) of the one part,
The company stated above, incorporated under the laws of the Federal Republic of Nigeria hereinafter referred to as “the Merchant” which expression shall where the context so permits include its successors in title and assigns) of the other part.
RMH Limited and the company stated above shall collectively be referred to as the “Parties” and individually as a “Party”.
The Merchant is an authorized supplier of any power and energy products (the products) and is desirous of selling its products to end users via the Platform.
RMH has agreed to onboard the Merchant on the Platform and the Parties have agreed to enter the relationship on the terms and conditions set out hereunder.
NOW THIS AGREEMENT witnesses as follows:
a. “Effective date” -means the date specified herein above.
b. “This Agreement” – means the agreement set out herein whereby the Merchant agrees to provide services in furtherance of the desired purpose.
c. “Customer” or “end user” or “purchaser”- means person(s) who buys products from the Merchants or person(s) who maintain an account with RMH, as applicable in the context used.
d. “Parties” – RMH Limited and the company stated above
e. “Oil and Gas Products” or “Products”- means any power and energy product which include Automotive Gas Oil (AGO also known as Diesel), Dual Purpose Kerosene (DPK also known as Kerosene) Aviation Turbine Kerosene (ATK also known as Jet Fuel) Liquified Petroleum Gas (LPG also known as cooking gas), Solar Power Systems, Inverters and Batteries and Generators.
f. “The Confidential Information” – means all information, know-how, ideas, concepts, technology, manufacturing processes, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with/or in support of the business of the Merchant or RMH Limited, including the terms and conditions of this agreement and any matter concerned with or arising out of this Agreement excluding information which is or has come into public domain other than pursuant to a breach of this agreement by either party.
g. “Force Majeure Event” shall mean any act of war (whether war be declared or not), governmental decision, policy, act or omission (e.g. delay or failure to issue, or withdrawal, of any license, permit or authorization), embargo, hostilities, riots, civil commotion, sabotage, emergency, strike, industrial or labor dispute, disturbance in supplies from normally reliable sources (e.g. electricity, water, fuel and the like), lockout, delay or failure from a subcontractor or supplier due to Force Majeure as defined herein, accident, fire, earthquake, flood, storm, tempest, natural disasters, lightening, hurricanes, explosion, epidemics, quarantine restrictions, any act of God or any other cause beyond the reasonable control of the Affected Party.
h. Reference to a gender includes any other gender.
i. The singular includes the plural and vice versa.
j. Headings and clauses are for reference purposes only and shall not affect the construction or interpretation of this agreement.
2. COMMENCEMENT AND DURATION:
This Agreement shall commence on the date above written and shall remain in force for a period of ONE year, unless earlier terminated by either Party in accordance with the provisions herein contained.
The Agreement may be extended upon mutual Agreement of the parties.
3. PARTIES OBLIGATIONS:
a. RMH will:
i. Manage and oversee the effective operation of the Platform with the objective of ensuring seamless transactions on the platform.
ii. Grant access to the Merchant to display its approved products on the Platform.
iii. Accept sales request on behalf of the Merchant and pass request to the Merchant with details of customer for ease of identification and delivery.
iv. Ensure payment is made to the Merchant within the specified time for products purchased from the platform by customers.
v. Receive and warehouse the price paid by the customers for purchase of the product and credit the Merchant’s account upon confirmation of receipt of the product(s) by the customer.
vi. Inform the Merchant of any adjustment to the repurchase price for defaulting products set out in clause 2 (b)(xvi) below.
b. The Merchant shall:
i. Ensure that accurate detailed description of available services is submitted to RMH who uploads on the platform. Only products approved by RMH “authorized products” with appropriate details which include price, quantity, available services, pictures, and description will be uploaded.
ii. Ensure that appropriate prices are attached to products to be displayed on the Platform and that they are readily available in its store/warehouse for immediate delivery. Repeated stock-outs or customer dispute of service or product for two times consecutively, will result in the removal of the Merchant and all its products from the Platform
iii. Notify RHM of any changes to the detail of its listings while uploaded on the Platform.
iv. Keep an up-to-date inventory of all its products listed on the Platform.
v. Provide a product warranty to cover its products, stating that the products are fit for purpose and within the general merchantability and regulatory standards.
vi. Introduce its customers to the Pawa2u platform.
vii. Have a corporate account for all payments related to the services on the platform as indicated in this agreement.
viii. Ensure that Products ordered are delivered to designated drop off locations within 24 hours or agreed SLA after order placement, failing which order will be cancelled and replaced. Orders must be picked up within 1 hr of order by customer for processing.
ix. Accept return of products purchased which was rejected by the customer for falling below merchantability and regulatory standards, in accordance with the return policy.
x. Receive payment 48hrs after delivery. Payment is held if customer disputes delivery and released after resolution or return of product.
xi. Notify RMH immediately it receives an order, if it cannot deliver the products within agreed SLA.
xii. Submit to a quality assurance (QA) in any case where the interest of RMH and this agreement so requires
xiii. Not lift (i.e. copy and paste) images of products to be showcased on the Platform from other websites, images to be used must be original images and not contents that are subject of copyright infringement, whether actual or otherwise. The Merchant hereby indemnifies RMH against any third-party claim of infraction in this regard.
xiv. Not advertise or solicit users of the Platform to buy or sell products or services not listed on the Platform or related to the Platform and will not contact the customer/users for any other purpose other than is required for providing the services referred by RMH.
xv. Ensure that it complies with all Standard Organization of Nigeria (SON) regulations in respect of the product listed on the platform and all regulatory authorities governing purchase and sales of the products and its distribution in Nigeria
xvi. Ensure Tax compliance according to Tax laws governing businesses and companies in Nigeria.
xvii. Not upload items patently offensive to the online community, such as sexually explicit content, or content that promotes obscenity, pedophilia, racism, bigotry, hatred or physical harm of any kind against any group or individual.
xviii. Not solicit for personal information from any customer/purchaser/individual unless as will be required for order placement on the platform and delivery purposes.
xix. Not falsify headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmission forwarded to the Platform or RMH on or through the Website or any service offered on or through the Website.
xx. Promptly respond within one (1) hour to distress calls made by RMH in the event of emergency maintenance checks
xxi. Ensure that all its personnel, subcontractors and/or agents who are required to demonstrate specific skills or qualifications possess such skills and execute their activities in line with good industry practice and applicable laws and regulations.
xxii. Notwithstanding any other provision of this agreement, the Merchant shall comply with the law and all relevant regulatory requirements and directives. In the event that any of its obligations under this agreement are affected by an overriding government or regulatory action, the Merchant shall perform its obligations in such a manner as to comply with the relevant law or regulatory requirement as far as possible and will not thereby be liable for non-compliance with any such regulation.
a. In consideration of RMH granting the Merchant access to display and sell its products on the Platform, RMH shall charge a 15% commission or remove its markup amount on every sale transaction before remittance of purchase price to the Merchant.
b. The Bank reserves the right to increase the commission percentage and would give the Merchant 2 weeks’ prior notice of any changes in the commission.
c. The commission shall be deducted by RMH before remittance of the sale price into the Merchant’s account.
d. Payment/remittance for sale on the Platform that has become due shall be made to the Merchant 48hrs after delivery has been accepted by the customer.
5. MODE OF DELIVERY:
a. Self-fulfill Option: With the self-fulfill option, the Merchant shall ensure delivery of purchased Products to the purchaser by hand delivery within 24 hours after order has been placed.
b. Shipping with logistics providers: The Merchant must drop off Products to be delivered with delivery logistics providers within 24 hours after order has been placed.
c. The parties agree that best mode of transportation as the method of consignment of the Products.
6. TRANSFER OF TITLE
Title to and risk of loss of the Product shall stand transferred and will pass to the Purchaser and delivery will be considered to have been made when the product is successfully unloaded at the Purchaser’s location to the Purchaser’s container/storage option.
7. RETURNS AND REFUNDS
Request for refund or return needs to be made within 48 hrs after delivery.
a. This Agreement may be terminated by either Party upon the issuance of a thirty (30) days’ notification to the other of its intention to terminate. Termination shall be without prejudice to existing rights and obligations of the Parties under this Agreement.
b. RMH reserves the right to terminate this Agreement forthwith where the Merchant’s line of business and standard of service falls below the standard set by RMH, or the Merchant fails to comply with its obligations as set out in Clause 2(b) above.
c. Either party shall have an immediate right to terminate this Agreement if the other party becomes or is declared insolvent or bankrupt, becomes the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a Receiver or similar officer over or in respect of its assets, or compounds or makes an assignment for all, or substantially all, of its creditors, or enters into an agreement for the composition, extension or readjustment of all, or substantially all, of its obligations.
d. RMH may terminate this Agreement forthwith, if it discovers that the Merchant is involved in any activity that is likely to bring disrepute to RMH in anyway.
9. FORCE MAJEURE
a. Neither Party shall have responsibility or liability with respect to any failure or delay in the performance of any term or condition of this Agreement or any supplementary to it if such failure or delay in performance is due in whole or in part to a Force Majeure Event.
b. This Agreement shall be suspended until the removal of such circumstances and the time for performance extended for an adequate period.
c. In the event that the Force Majeure Event shall exceed thirty (30) days in duration, the unaffected Party shall have the right to terminate this Agreement upon notifying the affected Party
Notice to the Parties shall be duly served if issued in writing and addressed to the Parties and is delivered at the addresses stated herein:
To RMH Limited:
6 Raymond Njoku Street, Ikoyi, Lagos.
The Managing Director
If any notice is to be sent by email it shall be deemed received upon delivery confirmation/successful transmission; and where sent by courier services, it shall then be deemed received upon provision of delivery receipt.
If any notice is delivered by hand it will be deemed to have been received where acknowledgement is evident.
a. All information and documents (whether financial, technical or otherwise) obtained by any Party (Receiving Party) or its employees, contractors, consultants or agent which are of a confidential nature, not published or otherwise publicly available shall be kept confidential and not disclosed to third parties or the public except with the prior written approval of the disclosing Party (Disclosing Party) or as required by laws of the Federal Republic of Nigeria. This prohibition shall not prevent the Receiving Party, with the consent of the Disclosing Party, from issuing press releases containing non-sensitive information in relation to the progress of the Platform. This covenant shall survive the termination of this Agreement. The provision of this section shall be read and construed alongside any signed non-disclosure/non-compete agreement between the Parties.
The Merchant hereby indemnifies and undertakes to hold RMH harmless and free from any liability arising out of all claims:
a. for negligence, damages, breach of intellectual property, arising out of the Merchant’s breach of the terms of this Agreement.
b. arising in relation to matters outside RMH’s control, including but not limited to the quantity and quality of products provided by the Merchant.
c. resulting from any violation of laws and regulations by the Merchant.
13. REPRESENTATIONS AND WARRANTIES
a. Each Party warrants that it has full power, authority and legal right to execute, deliver and perform its obligations under this Agreement.
b. Each Party agrees that the execution, delivery and performance of this Agreement has been authorized by all necessary action on the part of such party and does not contravene any law, regulation, rule, order, Agreement or commitment binding on such party.
c. The Merchant further warrants that information listed on the Platform relating to its products satisfies all legal requirements and satisfies information requirements for consumer protection.
d. The Products to be delivered under this Agreement shall be delivered to the Purchaser free and clear from any covenants, restrictions, liens or other encumbrances of any nature upon delivery to the Purchaser.
e. The Merchant warrants that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to the products it sells through the platform.
f. The Merchant represents and warrants to RMH that:
i. it has good transferable title to the products and all necessary licenses required for the sale of the product.
ii. the product will perform in conformity with specifications and documentation supplied by Merchant.
14. INTELLECTUAL PROPERTY AND LICENSING
i. RMH shall retain all title, right, and interest to its own intellectual property and no implied license of any kind, nor rights under any patent, trademark, trade-secret, copyright or any other proprietary rights of RMH shall be deemed to have been granted by RMH to the Merchant under this Agreement, unless expressly stated in writing.
ii. RMH may publish online the Merchant’s products, logos and other materials required. The Merchant grants to RMH a royalty- free, perpetual, unrestricted license to use and distribute any product provided by it, for the purpose of advertising the Platform.
i. Notwithstanding anything to the contrary contained in this Agreement neither Party shall be liable to the other for any indirect or consequential loss or damage, including and without limitation to loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts.
ii. Save for damages and liabilities arising from intellectual Property Rights, gross negligence or fraud which is judicially determined to have been committed by RMH, in no event shall RMH be liable to the Merchant or any third party as it relates to this Agreement.
iii. RMH shall use it best effort to ensure that its services to the Merchant will be free from malfunctions and will exercise all reasonable care and skill to resolve any such case of malfunction.
iv. Notwithstanding anything to the contrary contained in this Agreement, the Merchant shall be liable to pay all taxes and rates due on the services it renders in respect of its products.
16. SETTLEMENT OF DISPUTES
All disputes and disagreements that may arise from this Agreement shall be settled amicably in good faith failing which they shall be referred to and settled by Mediation. Any such dispute shall be referred for Mediation under the provisions of the Lagos Multi-Door Court House Rules in force, or any statutory modifications or reenactment thereof for the time being in force in Nigeria.
17. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the Federal Republic of Nigeria.
a. No alteration, amendment, variation or agreed cancellation of any part of this Agreement shall be of any effect, unless made in writing and signed by both Parties.
b. This Agreement constitutes the whole agreement between the parties with regards to the subject matter thereof and no warranties or representations of any nature whatsoever other than set out in this Agreement have been given by any of the Parties.
c. No relaxation or indulgence which either party may show to the other Party in any way shall prejudice or be deemed to be a waiver of its rights hereunder.
d. Every provision of this Agreement (excluding only those provisions, which are essential at law for a valid binding Agreement to be constituted) shall be deemed separate and severable from the remaining provisions of this Agreement. If any of the provisions of this Agreement (excluding only those provisions, which are essential at law for a valid and binding Agreement to be constituted) is found by any court of competent jurisdiction to be invalid and/or unenforceable then, notwithstanding such invalidity and/or unenforceability, the remaining provisions of this Agreement shall be and remain of full force and effect.
e. Any substantive provision appearing in, or as a part of any interpretative provision of this Agreement shall have effect in accordance with its tenor, notwithstanding the context in which it appears.
f. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original, and when put together constitute the one valid and binding agreement.
IN WITNESS, OF WHICH the parties have executed this agreement, in the manner below, the day and year first above written
Signed by the duly authorized representatives of RMH lIMITED (Trading under Pawa2U)