All transactions entered into by the Company in connection with or arising out of the Company’s business shall be subject to the following terms and conditions (hereinafter the “Conditions”) unless otherwise agreed or stated by the Company in writing.
If any international convention or transport law or other regulation or directive is compulsorily applicable to the Services provided by the Company, these Conditions shall, with regard to such Services only, be subject to such compulsory legislation. However, nothing in these Conditions shall be construed as a waiver by the Company of any of its rights or an increase of any of its responsibilities or liabilities under such legislation. If any part of these Conditions is in any way contrary to such legislation, such part shall, in connection with such Services, be overridden to that extent and no further.
- In these Conditions the following expressions have the following meanings respectively:
a. “Company” includes the Inchcape Shipping Services Group, Inchcape Shipping Services Group associates, subsidiaries and / or affiliated companies within the Inchcape Shipping Services Group of companies (or any company under the management control of one of the Inchcape Shipping Services Group of companies) used to perform the Company’s duties under these Conditions.
b. “Services” means the services which are provided by the Company to the Merchant or Principal, whether or not for reward, whether same be by way of charge, fee, commission or remuneration of any other kind.
c. “Supplier” means the company firm or person who contracts to supply Services or Goods to the Principal or Merchant through the Company.
d. “Merchant” means the company firm or person (or any agent thereof) who ships, receives, owns or forwards Goods or holds the bill of lading in respect of which the Company, whether as agent or principal, has agreed to provide or procure services.
e. “Principal” means the company firm or person who has or whose representatives have instructed the Company and who is the owner or charterer or operator or manager of the vessel represented by the Company and / or the carrier under the bill of lading in connection with which Services are provided by the Company.
f. “Goods” means any goods, merchandise and articles of every kind whatsoever including any container, chassis, trailer or other equipment used for the purpose of carrying cargo.
g. “SDR” means a Special Drawing Right as defined by the International Monetary Fund.
h. “Direct Representative” means the Company acting in the name of and on behalf of the Merchant and/or the Principal.
i. Words importing the singular number shall include the plural and vice versa, words importing the masculine shall include the feminine and neuter and vice versa and words importing persons shall incorporate bodies corporate, unincorporated associations and partnerships.
j. The headings in these Conditions are for convenience only and shall not affect their interpretation.
Transactions with the Principal
The following terms and conditions shall apply to transactions with the Principal:
- The Principal shall indemnify the Company in respect of all liabilities incurred by the Company when acting as a port agent or liner agent or booking agent on the Principal’s behalf and/or when providing any Services to the Principal. This indemnity shall include but not be limited to all third party claims, charges, losses, damages, taxes, duties, costs and expenses (including, without limitation, interest, penalties and legal fees) that the Company may incur during the performance of the Services, notwithstanding any termination of the contract between the Principal and the Company. This indemnity shall not extend to matters arising by reason of willful misconduct of the Company.
- The Principal shall pay forthwith by telegraphic transfer to the Company’s bank account such sums as the Company may request as an advance on port disbursements which the Company estimates will be incurred whilst the Principal’s vessel is in the Company’s agency. If the Principal should fail to comply with the Company’s request, the Company may at any time give notice of the termination of its agency.
- On completion of each of the Services the Company shall provide the Principal with an account of all disbursements incurred in connection with the Principal’s vessel.
a. If there is any outstanding balance to be settled by the Principal, payment shall be due immediately on receipt of the disbursement account, by telegraphic transfer to the Company’s bank account. The Principal shall have 14 days to raise any questions, objections or any other clarifications in relation to the disbursement account, failing which the Principal waives any rights to reject payment and the amount due to the Company shall be treated as a debt.
b. If there is any outstanding balance due to the Principal, the Principal shall provide bank account details and request reimbursement of such amount from the Company. The Company will then arrange for funds to be sent by telegraphic transfer to the Principal’s bank account. If the Principal fails to provide bank account details or request reimbursement of any outstanding balance within 24 months of receipt of a disbursement account from the Company, the Principal hereby waives any rights of recovery of the outstanding balance and the outstanding balance will become the property of the Company.
- The Company shall be entitled to deduct from sums held by the Company for the Principal’s account any amounts due to the Company from the Principal.
- The Company, with the consent of the Principal, shall have authority to appoint sub-agents in its sole and absolute discretion to perform services on behalf of the Principal, including such Services as may be subject to these Conditions. However, the Company shall not be responsible for the actions of any such sub-agent(s).
- Where the Company acts as liner agent and / or booking agent for the Principal, either party shall be entitled to give six months’ written notice of termination of the agency. For the purposes of this Clause “written notice” shall also include notice by post or by electronic means.
- In the event that the Company is required by the Principal to file data with a port facility in compliance with the ISPS Code, the Company will exercise reasonable skill and care to file the data correctly and within the prescribed filing deadlines. However, the Company cannot accept any responsibility or liability for the correctness and accuracy of the information provided by the Principal or if the Principal fails to provide the data in a timely manner or if there are technical problems or human error or for any other reason beyond the Company’s reasonable control. The Company provides the filing process as a data exchange service only. Any losses and/or liabilities resulting from the filing of such data, whether or not the Company was or is claimed to have been negligent or at fault in any way, rest with the Principal. The Principal shall hold harmless, defend and indemnify the Company from the consequences of any and all such losses, or liabilities, including but not limited to any penalties, fines or costs of delay.
Transactions with the Supplier
The following terms and conditions shall apply to transactions with the Supplier:
- Unless otherwise stated in writing, when the Company is acting as a port agent or liner agent or booking agent it acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Supplier as agent for the Principal. The Company shall not be personally liable to pay any debt or expense due to the Supplier from the Principal.
- Where the Company is acting as a forwarding agent, unless it is acting as agent for the Principal in accordance with Clause (8) hereof or otherwise agreed in writing, it acts at all times as agent for and on behalf of the Merchant and has authority to enter into contracts with the Supplier as agent for the Merchant. The Company shall not be personally liable to pay any debt due to the Supplier from the Merchant.
Transactions with the Merchant
The following terms and conditions shall apply to transactions with the Merchant:
- When acting as port agent or liner agent or booking agent, the Company acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Merchant as agent for the Principal. The Company shall not be personally responsible for the Principal’s liabilities.
- The Company may provide Services to the Merchant as its agent or as a principal. The Merchant warrants that it is either the owner of the Goods or the authorised agent of the owner and that it accepts these terms for itself and as agent for and on behalf of the owner.
- Where the Company arranges Services for the Merchant’s Goods which are or will be carried in accordance with a contract with the Principal contained in or evidenced by a bill of lading, charterparty or other contract of affreightment, all Services including forwarding Services are arranged by the Company as agent for and on behalf of the Principal. The provision of such Services shall be subject to the terms and conditions of the Principal’s bill of lading and tariff rules (if any), which may be inspected on request, or other contract between the Principal and the Merchant.
- Where the Company arranges Services for the Merchant’s Goods as a forwarder (whether as principal or agent) the provision of such Services are subject to these Conditions.
- The Company may from time to time issue a house bill of lading covering the transportation of the Merchant’s Goods. In the event of any conflict between these Conditions and the house bill of lading, the latter shall prevail.
- When the Company contracts as a principal for any Services, the Company shall have full liberty to sub-contract the whole or any part of its contracted Services to third parties as may be necessary to fulfil the customer’s instructions and subject to the trading conditions of the sub-contractors.
- The Company shall be relieved of any liability, and the Merchant shall hold the Company harmless, for loss or damage if such loss or damage resulted from:
a. the act or omission of the Merchant or his representative or any other party from whom the Company took charge of the Goods;
b. inherent vice of the Goods, including improper packing, labeling or addressing (except to the extent that the Company undertook to be responsible therefor);
c.handling, loading, stowage or unloading of the Goods by the Merchant or any person acting on his behalf other than the Company;
d. seizure, forfeiture or detention under legal process;
e. riot, civil commotion, strike, lock out, general or partial stoppage or restraint of labour from whatever cause;
f. any consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, acts of terrorism or sabotage, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to any property or Goods by or under the order of any Government or public or local authority.
g. any cause or event which the Company was unable to avoid and the consequences whereof the Company was unable to prevent by the exercise of due diligence.
- The Company shall not arrange insurance for the subject matter of the Services save upon express instructions given in writing by the Merchant in relation to which there shall be a specific agreement as to charge. All insurance arranged by the Company is subject to the conditions of the insurer. If the Company agrees to arrange insurance, it acts as agent of the Merchant in doing so.
- Where the Company agrees to provide or arrange Services for the Merchant’s Goods, the Merchant shall be deemed to have authorised the Company to conclude all and any contracts necessary to provide those Services. The Merchant shall reimburse on demand the Company with all taxes, charges or fines whatsoever incurred by the Company as a result of providing or arranging the Services, or undertaking any liability in connection with the Services, particularly in respect of any bond issued to Customs or any other statutory authority by the Company.
- The Company is deemed to be appointed as and acts as a Direct Representative in all and any dealings with any other authority, for and on behalf of the Merchant.
- Unless the Company has previously so agreed in writing, the Company will not provide Services for Goods of a dangerous or damaging nature. If such Goods are accepted pursuant to a special arrangement, and, thereafter (in the opinion of the Company) constitute a risk to health or to other goods or property, the Company shall, where reasonably practicable, contact the Merchant in order to require him to remove or otherwise deal with the Goods, but reserves the right, in any event, to do so at the expense of the Merchant. Should the Merchant fail to provide such details at the time of contract the Merchant shall be responsible for all costs, losses and damages whatsoever arising as a result thereof and the Company shall have the right exercisable on behalf of itself or its Principal to rescind the contract.
Liability
- The Company shall exercise reasonable care and diligence in providing Services.
- Unless otherwise agreed in writing, the liability of the Company shall in all circumstances be limited to the lesser of sums calculated in the following manner:-
a. where Goods are lost or damaged:
i. the value of Goods so lost and damaged; or
ii. a sum calculated at the rate of SDRs 2.00 per kilo of the gross weight of any Goods lost or damaged;
b. in all other circumstances the amount of the direct loss or SDRs 75,000.
- The Company will not provide Services in connection with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, pets or plants but if the Company should, in the course of providing the Services, handle or deal with such Goods (otherwise than under special arrangements previously made in writing) the Company shall be under no liability whatsoever for or in connection with such Goods however arising.
- The Company shall perform the Services with due dispatch but shall not be liable for any loss or damage arising from any delay which it could not reasonably prevent. Without prejudice to the foregoing, in the event that the Company is deemed to be liable for any delay, its liability shall in no event exceed the amount of the Company’s charges in respect of the transaction.
- The Company will under no circumstances be liable for:
a. loss of profits, business interruption, loss of business, loss of market, loss of revenue, loss of production or the consequences of delay or deviation, loss of reputation, indirect or consequential losses; or
b. damage caused by any event or cause that the Company was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence; or
c. damage which was not solely caused by the act or omission of the Company or which would have occurred in any event.
- Any claim against the Company must be made in writing and notified to the Company within 14 days of the date on which the Principal or the Merchant (as the case may be) became aware or ought to have become aware of the circumstances giving rise to the claim and any claim not so notified shall be deemed waived and time barred. The Company shall in any event be discharged of all liability arising out of the Services unless suit is brought and written notice of it given to the Company within one year of the end of performance of the Services giving rise to such claim.
Ethics and Bribery
- The Company is subject to the UK Bribery Act 2010 and the US Foreign and Corrupt practices Act 1977, as amended, as well as other applicable international laws or regulations in relation to ethics and bribery. The Company reinforces the application of these laws and regulations through its extensive ethics policy, code of conduct and training programme (details of which are available on request). The Company has a zero tolerance approach to breaches of any laws or regulations relating to ethics or bribery.
- If whilst performing any of the Services or complying with the terms of the Conditions the Company encounters a breach or believes that a breach of the relevant ethics or bribery laws or regulations will occur, the Company will immediately notify the Principal or Merchant and discontinue from carrying out its obligations to the extent that the performance of them relates in any way to the breach and will not be liable to the Principal or the Merchant for any damages arising from the Company’s discontinuance.
- The Company shall have no liability to the Principal or Merchant for any claims, losses, liabilities or expenses related to a breach of ethics or bribery laws or regulations, as described above and will not be required to continue performance of the Services or the Conditions until the breach of the laws or regulations has been fully investigated and measures put in place to prevent any further breaches.
Sanctions
- The Company is legally bound to comply with European Union and United States of America (OFAC) sanctions and export control programmes, as well as any other similar applicable sanctions and export control laws or regulations in other jurisdictions (“Sanctions”). The Principal or Merchant will provide written notification to the Company if any services that it asks the Company to perform relate to vessels that are en route to or from a port that is the subject of comprehensive country-wide Sanctions (at the time of this agreement such ports being located in Crimea, Cuba, Iran, North Korea, Syria and Venezuela. This clause would also apply if the port is located in Sudan) and, if so, certify that an OFAC license or exemption applies to the vessels’ activity and provide a copy of or reference to such license or exemption, or otherwise certify and demonstrate to the satisfaction of the Company that by providing services to or for the vessel activity the Company will not thereby violate Sanctions or risk the imposition of any Sanctions on the Company. If the Principal or Merchant requests the Company to perform any services that the Company reasonably believes would violate Sanctions or risk the imposition of any Sanctions on the Company, the Company will notify the Principal or Merchant and confirm the extent to which the Company is prevented from performing, or due to the risk of a sanctions designation unable to perform, the services requested.
- The Company shall have no liability to the Principal or Merchant for any claims, losses, liabilities or expenses related to the inability or unwillingness of the Company to perform any services due to Sanctions risks or issues.
Confidentiality and General Data Protection Regulation (“GDPR”)
- The parties agree that any information exchanged between them in connection with or arising out of the Services shall be treated as confidential and shall not be disclosed, released or shared with any third party without the disclosing party’s express written permission, unless required to do so to perform the Services. The obligations contained in this Clause shall be binding on the parties for a period of five years from the date of exchange of the information, save that nothing shall prevent a party form disclosing, releasing or sharing information which: (i) is in its possession prior to receipt from the disclosing party; (ii) is publicly known, otherwise than as a consequence of a breach of this Clause; (iii) is developed independently by the receiving party; (iv) is received from a third party without similar restrictions and without a breach of this Clause.
- The parties hereby agree that they are subject to and accept responsibility under the European Union – General Data Protection Regulation and / or the United Kingdom equivalent legislation (“GDPR”) in accordance with their respective roles in receiving, handling and storing of personal data. Each party agrees to hold harmless and indemnify the other party for a breach of GDPR committed by that party.
- If at any time in the performance of these Services the Company is required to process personal data, the Company agrees that it shall comply with and be bound by the European Union – General Data Protection Regulation and as a Data Processor under GDPR it shall comply with the following requirements in relation to the processing of personal data:
a. Not use a sub-processor without the prior written authorisation of the Principal or the Merchant as the Data Controller;
b. Co-operate with supervisory Data Protection Agencies;
c. Ensure the security of data processed;
d. Keep records of data processing activities;
e. Notify any personal data breaches to the Principal or the Merchant as the Data Controller; and
f. Employ a data protection officer and appoint (in writing) a representative within the EU (DATA.PROTECTION@ISS-SHIPPING.COM).
General
- Fees for the Services to be provided by the Company to the Merchant or Principal and costs of port or other disbursements expected to be incurred shall be provided by the Company to the Merchant or Principal and agreed in advance of the Services being performed. If the Merchant or the Principal, as the case may be, fails to make payment in full of any sums due to the Company on demand or within any period agreed in writing, the Company shall be entitled to recover interest on any sums outstanding with effect from the date of first demand at the rate of 4% per annum above LIBOR applicable during the period when the sums are outstanding. Such interest shall accrue on a daily basis from the due date until payment in full is received by the Company. The Company shall be entitled to claim and recover all costs and expenses, on a full indemnity basis, incurred in the collection of payments due.
- The Company shall have a general lien on all Goods and documents relating to Goods in its possession, custody or control for all sums due at any time from the Merchant or Principal and shall be entitled to sell or dispose of such Goods or documents as agent for and at the expense of the Merchant or Principal and apply the proceeds towards the monies due and the expenses of the retention, insurance, sale and disposal of the Goods. Reasonable notice of 28 days of the intention to sell will be given by the Company to the Merchant or Principal unless the Goods are liable to perish or deteriorate in which case the Company shall have the right to sell or dispose of the Goods immediately. The Company shall, upon accounting to the Merchant or Principal for any balance remaining, be discharged from all liability whatsoever in respect of the Goods.
- Where liability for General Average arises in connection with the Goods, the Merchant shall promptly provide security to the Company or any other party designated by the Company in an amount and form acceptable to the Company.
- It is hereby expressly agreed that no servant, employee or agent of the Company (which for the purpose of this Clause includes every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever under these Conditions for any loss, delay or damage of whatsoever kind arising or resulting directly or indirectly, in whole or in part, from any act, neglect or default on any such party while acting in the course of or in connection with these Conditions. The Principal and/or the Merchant undertake to hold harmless, defend and indemnify the aforementioned parties for any and all debts, claims, demands, actions, proceedings and claims arising as a consequence of any such loss, damage or delay, including reimbursement of any and all reasonable costs and legal fees incurred in defending such actions.
- Without prejudice to the generality of the foregoing provisions, every exemption from liability, limitation, condition and liberty herein contained and every right, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled, shall also be available and shall extend to protect every such servant, employee and agent of the Company acting as aforesaid.
- The Company shall be entitled to retain and be paid any brokerages, rebates, volume discounts, commissions, allowances or other similar payments from any parties. The Company actively sources Suppliers to support its Merchants’ and Principals’ vessels and service requirements. In some cases, the Company’s choice of Suppliers may result it in benefitting from certain economic incentives. These include: (i) the receipt of discounts from vendors based on the total volume of business which the Company provides to such vendors; (ii) the receipt of economic incentives for marketing the services of vendors; (iii) ad-hoc economic incentives earned by the Company for providing administrative support to vendors, and (iv) prompt payment discounts. The existence or absence of such incentives does not affect the prices paid by the Merchants or Principals, save that, to the extent agreed with its Merchants or Principals, the Company passes economic incentives through to its Merchants or Principals.
- In order to generate business, the Company may also provide incentives to intermediaries. This includes the payment of fees. The existence or absence of such arrangements with intermediaries does not affect the prices paid by the Merchants or Principals. Where the Company provides incentives to intermediaries, the Company requires the intermediaries to confirm that: (i) the nature and amount of such incentives are disclosed to the intermediaries’ principals; and (ii) in engaging the Company to perform the services, the intermediaries have done so in compliance with all applicable anti-bribery and corruption laws.
- All business conducted by the Company, including its interaction with the Merchant, Principal, Suppliers and intermediaries, is subject to its Code of Conduct and Ethics. The Code of Conduct and Ethics is designed to identify a set of aims, values and rules which govern how the Company and its employees will conduct business on behalf of the Company. A copy of the Code of Conduct and Ethics is available on request.
- Where the Merchant or the Principal are acting on behalf of a third party, in the capacity of an agent or intermediary, the Merchant or the Principal confirm: (i) that the nature and amount of any brokerages, rebates, volume discounts, commissions, allowances or other similar payments negotiated with the Company are disclosed to their principals; and (ii) in engaging the Company to perform the Services they have done so in compliance with all applicable anti-bribery and corruption laws.
- The Merchant, the Supplier and the Principal each undertake with the Company that no claim or allegation of any kind shall be made against any of the Company’s directors officers employees servants or agents (herein collectively called “the Beneficiaries”) for any loss damage or delay of whatsoever kind arising or resulting directly or indirectly from any negligent act error or omission of the Beneficiaries in the performance of the Services the subject of these Conditions. The Beneficiaries shall have the benefit of this undertaking and in entering into this contract the Company, to the extent of this provision, does so not only on its own behalf but also as agent or trustee for the Beneficiaries, who shall to the extent of this Clause only be or be deemed to be parties to this contract.
- The Principal shall arrange for the Company to be added to its P&I entry as a co-insured, without any obligation to pay premium, providing the Company with protection against any claims that are traditionally the responsibility of the Principal but is made against the Company in its capacity of the Principal’s agent or due to the local laws making the Company responsible for the liabilities of the Principal or the vessel whilst under the agency of the Company.
- The right, title and interest (including any intellectual property rights) in and to any data collected as part of the services performed by the Company for the Principal or Merchant, where it can be, is vested in the Principal or Merchant. The Principal or Merchant grants the Company a non-exclusive royalty-free worldwide license to use, copy, store, transmit or modify such data to develop and improve its products & services and to create and distribute reports and other materials for its principals and customers (this includes the right to publicly display the same). Any Principal or Merchant data will only be used in aggregation with other data and the results will not be personally identifiable to the Principal or Merchant.
- The Company may assign, in its sole discretion, any of or all its rights, interests and obligations under these Conditions to any company within the Inchcape Shipping Services Group of companies.
- The exclusions and/or limitations set out in these Conditions shall apply whether a claim against the Company is bought in contract, tort (including for negligence) breach of statutory duty or for any other cause whatsoever.
- These Conditions and any act or contract to which they apply shall be subject to that laws of the England and Wales. Any dispute arising in connection with the Company’s business shall be determined by arbitration in London pursuant to the London Maritime Arbitrators Association (LMAA) Terms current at the time when arbitration proceedings are commenced. The reference shall be to three arbitrators, one to be appointed by each party and the third, subject to the provisions of the LMAA Terms, by the two so appointed.
- If a court or tribunal finds that any provision of these terms and conditions is invalid, illegal or unenforceable, that provision shall, to the minimum extent required, be deemed deleted and the validity, legality and enforceability of the remainder of that and all other provisions of these terms and conditions shall not be affected.
- If there is any conflict between these Conditions and any other terms and conditions agreed between the parties these Conditions shall prevail unless the Company specifically agrees otherwise in writing.