Terms of Use

GENERAL TRADING TERMS AND CONDITIONS

 

Incorporation to all dealings

These terms and conditions, unless otherwise agreed or stated by the Broker in writing, shall apply to all dealings between You and the Broker and will be effective whenever You request the Broker to provide Services or You respond to the Broker in relation to the provision of Services. These terms and conditions create a legally binding agreement between You and the Broker. By receiving Services from the Broker,  You acknowledge and accept these Terms and Conditions (You, Broker and Services are defined below).

Attention is specifically drawn to the provisions of these terms and conditions that limit the Broker’s liability.

 

1. Definitions

In these terms and conditions, the following definitions apply:

“Broker”: Intermodal Shipbrokers Co, a company organized and existing under the laws of the Republic of Liberia, having its registered address at 80 Broad Street, Monrovia, Liberia including its officers, employees and agents and all of its associated, subsidiary and fellow subsidiary companies, including their officers, employees and agents.

“Fixture”: A contract or contracts including but not limited to for the sale, purchase, construction, demolition, towage, valuation or charter of a Ship, including voyage, time and bareboat charters together with negotiations to enter such contracts.

“Negotiations”: Exchanges, whether verbal or in writing, in relation to concluding a Fixture.

“Post Fixture Services”: Assistance with communications and operational matters arising from the performance of a Fixture.

“Principal”: A party to a Fixture including the owner, seller, buyer, builder or charterer of a ship and any party guaranteeing the obligations of such a party. Principal may include You.

“Representative”: A person or company, including but not limited to a ship manager, chartering department, shipbroker or other agent, who is not a Principal but is involved in Negotiations on behalf of a Principal.

“Services”: The Services referred to in clause 2 of these terms and conditions, whether or not for reward, whether same be by way of charge, fee, commission or remuneration of any other kind.

“Ship”: Any type of ship, other vessel and/or equipment used or intended to be used for any purpose on, in or over water including but not limited to rigs, jack ups, submersibles and barges.

“You”: The party requesting the Broker’s Services or responding to the Broker in relation to the provision of the Services, including such party’s officers, employees, and agents. Where such party is acting as a Representative, references to You will additionally include the Principal.

The above definitions apply whether the defined words appear in the singular or plural form. Any reference to a party includes its successors or permitted assignees. The headings in these Terms and Conditions are for convenience only and shall not affect the interpretation.

2. Services covered by these terms

2.1 The Broker will act as a shipbroker in relation to Negotiations and Fixtures. The role of the Broker is to introduce Principals. Thereafter the Broker will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing such Post Fixture Services as may be agreed or provided by the Broker. The Broker may, at its sole discretion, provide the Services by, through or together with another one of its associated, subsidiary or fellow subsidiary companies. In such circumstances, You agree that such other company shall have the benefit and protection of these Terms and Conditions to the same extent as the Broker.

2.2 Unless otherwise specifically agreed in writing, the Broker will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. The Broker is not responsible for the performance or non-performance of Fixtures or Principals.

2.3 Unless otherwise agreed, the Services are provided on a Fixture by Fixture basis.

2.4 The Broker may also agree to perform other tasks such as providing ship valuations and/or specific market research. Such tasks may be subject to specific provisions (such as the wording of a valuation certificate) in addition to these terms and conditions. In the event of, and only to the extent of, a conflict between these terms and conditions and the specific provisions the latter will prevail. Otherwise, these terms and conditions, including those as to limitation of liability, will apply.

3. Obligations of the Broker

3.1 The Broker will perform the Services with the reasonable skill and care expected of a professional shipbroker.

3.2 When dealing with others, the Broker will take care to stay within the authority given by You and to avoid any misrepresentation.

3.3 During negotiations, the Broker undertakes to pass on offers, counteroffers and other such communications accurately and in a timely manner. This obligation applies both to passing communications to and from You.

3.4 It is understood that the Broker may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases, the Broker is dealing with such Representatives or other intermediaries in good faith as to the authority they possess, but the Broker does not give a warranty as to that authority.

3.5 If the Broker is acting directly for a Principal then the Broker warrants that the Broker has the authority of that Principal and, where so acting for You, You hereby expressly authorise the Broker to warrant that it has the authority of You as Principal.

3.6 If at any time the Broker provides information in respect of a Ship or a Principal, including but not limited to information regarding corporate structures or financial standing, it is understood and agreed that in relation to the Broker such information is provided in good faith but without any guarantee/warranty. It is the sole obligation of the Principal to (a) decide whether to enter a Fixture with the proposed counterparty and if so on what terms, (b) assess and ensure for themselves the validity, binding nature or enforceability of a Fixture or any relevant security, (c) seek or obtain security in connection with a Fixture, if they consider it necessary, (d) assess and ensure the status or standing, creditworthiness, ability to perform and good faith of the proposed counterparty and exercise their due diligence to wholly satisfy themselves of any counterparty risk.

3.7 Unless otherwise agreed in writing, the Services are not provided on an exclusive basis and it is understood that the Broker may act as a shipbroker for other parties in relation to the same or other Fixtures. In the event the Broker is dealing directly with two or more Principals in relation to the same Fixture, the Broker’s duties will be to pass on offers, counteroffers and other such communications accurately and in a timely manner as authorized by each Principal in turn.

4. Confidentiality

Where the Broker is given information stated by You to be on a confidential basis or it is expressly agreed that a Fixture is confidential (in either case “Confidential Information”) the Broker will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from You. This obligation will not however extend to information which (i) was already or becomes known to the Broker through other sources not subject to such an obligation of confidentiality, (ii) is or becomes known to the market generally, other than as a result of a breach of this obligation, or (iii) which the Broker is obliged to disclose pursuant to an order of a court or any other such authority. In all cases, such obligation of confidentiality shall be deemed to end one year after the end of performance of the Fixture in question or in the absence of a concluded Fixture one year from the end of the Negotiations. This clause  shall survive termination of any commission agreement between You and the Broker for the provision of Services.

5. Obligations to the Broker

5.1 If You are a Principal you warrant that you have full legal authority to enter into the Fixture brought about by the Services. If You are acting as a Representative, You warrant that you have the Principal’s authority (i) to accept these terms and conditions on their behalf, and (ii) to make all offers, counteroffers and representations made during negotiations, and (iii) to agree a Fixture on their behalf. The Principal for which You act shall have the same rights and be bound by the same obligations as set out in these Terms and Conditions.

5.2 Where Services are provided, You are deemed to have engaged the Broker in relation to any Fixture that arises in connection with those Services, whether or not it is concluded via the Broker.

5.3 You will provide the Broker with all information and instructions necessary for the performance of the Services. You will take all reasonable care to ensure that any information and instructions provided to the Broker by You or on your behalf is accurate and complete in all respects and You confirm that the Broker can rely upon such information and instructions for the purposes of and in connection with the Services. In the event that there is any change to any information or instructions provided to the Broker, You will notify the Broker immediately. Where actions need to be taken by a certain time (such as reply times during negotiations) You will ensure that the Broker has sufficient time to forward such messages prior to the relevant time limit, taking into account the working hours in the location in which the Broker is located and the working hours in the time zone in which the response, information, instruction or action (as relevant) is required to be received or undertaken.

5.4 If the Broker has asked You to use specific e-mail addresses for messages or claims then You will use those e-mail addresses. In the event that you do not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from the Broker, You undertake to contact the Broker to confirm receipt. The Broker will have no responsibility for a failure to take action in relation to a message or claims documentation unless it is sent timely to the correct e-mail address and expressly acknowledged by the Broker as received.

5.5 You will take care to avoid misrepresentations or inaccuracies occurring in Negotiations. You will carefully review all messages sent or copied to You and promptly advise the Broker of any errors or misrepresentations. The Broker is not responsible for the consequences of a failure by You to review messages.

5.6 You warrant that You do not know of any reason why the Services requested or the Fixture could be unlawful or which could render the provision of the Services by the Broker in breach of any relevant law, including but not limited to (i) sanctions imposed by the United Nations, European Union, The United States of America or any national government having authority over You, the Broker, a Representative or a Principal (ii) any laws relating to money laundering, bribery and corruption. You will promptly and fully inform the Broker of any such reason that comes to your attention. In the event that the Broker in their absolute discretion believes that the Fixture or the provision of the Services may infringe such laws, they may terminate the Services immediately by written notice. In the event of such termination, the Broker will have no liability arising from such termination howsoever arising.

6. Market Reports

If the Broker publishes market reports or commentary, these are provided for general information only, without any statement, representation or warranty as to their accuracy and not for use in relation to specific Fixtures. Such market reports do not constitute advice and nothing contained in such documents amounts to a recommendation to enter or not to enter a Fixture and the Broker has no liability for the consequences of any person, including You, purporting to rely on such market reports.

7. The Broker’s remuneration.

7.1 On Fixtures the Broker’s remuneration will (unless otherwise agreed) be in the form of a commission on the freight, hire or purchase price, as the case may be. The level of commission payable and the party responsible for payment will be set out in the Negotiations.

7.2 If the commission payable to the Broker is recorded in a commission clause or in a specific commission agreement, then commission will be payable in accordance with that clause or agreement. The Broker will be deemed to have acted in reliance on the insertion of that clause and assented to the terms of the commission clause governing their right to commission.

7.3 If You are the party agreed to be responsible for paying the commission, You undertake to make the payment or payments promptly. If You are not the party responsible for making the commission payment, You expressly agree to the making of provision for such commission in the Fixture and you further agree to provide all necessary assistance and co-operation to the Broker in respect of its attempts to obtain the payment of the commission by the responsible party.

7.4 Nothing in these terms will prevent the Broker from enforcing a commission clause or other clause conferring a benefit on them as a third party in accordance with the terms of the Fixture.

7.5 In the absence of any specific provisions in the commission clause or in a specific commission agreement, on voyage charters commission is payable on deadfreight and demurrage as well as on freight. Freight shall include all items that comprise the freight rate. On time charters commission will be payable on the hire paid under the charter and any continuation or extension of the charter. On sale and purchase agreements, commission is payable on delivery of the vessel and payment of the purchase price. On new building contracts, commission is payable as and when each stage payment is made. On valuations, the Broker’s remuneration is payable on tendering of the valuation certificate. Unless otherwise agreed, commission is payable on sums received by You as and when received exclusive of any right of set-off and You will not withhold payment pending resolution of unconnected matters. Commission is exclusive of all taxes and duties which will, where required, be payable in addition. Any sumps paid in advance, shall be paid into the Broker’s general trading account and shall not be trust monies.

7.6 The tasks in clause 2.4 above will be subject to the agreement of a specific fee between You and the Broker. The Broker will invoice You at the completion of the Services or at such other times and in such stages as may have been agreed. You will pay that fee in full and in cleared funds within 30 days of the date of the invoice. Any sums invoiced shall be payable and recoverable as debts due and without set-off, deduction or counterclaim.

7.7 If the amount of commission or fee and/or the manner of its payment is not specifically agreed, a reasonable commission or fee will be payable in accordance with market practice.

7.8 Without limiting any other right or remedy of the Broker, if You fail to make any payment due to the Broker by the due date for such payment (Due Date), the Broker, at its sole discretion, shall have the right to charge interest on the overdue amount at the rate of three per cent (3%) per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement and compounding quarterly.

8. Limitation of Liability

THIS CLAUSE LIMITS THE BROKER’S LIABILITY TO YOU.

8.1 You and the Broker agree that the limits and exclusions of liability found in this clause 8 are fair and reasonable taking into consideration the nature of the Services, the fees and/or commission paid for the Services and all other circumstances known to You and the Broker relating to the Services at the time these Terms and Conditions are agreed.

8.2 Nothing in these terms and conditions limits the Broker’s liability for (i) fraud or fraudulent misrepresentation, (ii) death or personal injury caused by the gross negligence of the Broker.

8.3 The Broker will, subject to the provisions of this clause 8, be liable to You for damage directly caused by the failure to perform the Services with the reasonable skill and care expected of a professional shipbroker provided always that the Broker will not be liable for:

(i) Loss of profits, loss of or interruption to business, loss of reputation, indirect or consequential losses;

(ii) Damage caused by any event or cause that the Broker was unable to avoid and/or the consequences of which could not have been prevented by the exercise by the Broker of reasonable diligence;

(iii) Damage which was not solely caused by the act or omission of the Broker or which would have occurred in any event.

8.4 The total liability of the Broker arising from or in connection with the Services shall in no circumstances exceed the lower of (i) the amount of fees or commission in fact paid to the Broker in respect of the particular Services (or, as relevant, the particular Fixture) in connection with which the claim arises or (ii) the sum of USD 1,000,000 (one million United States dollars).

8.5 The exclusions and/or limitations set out in this clause shall apply whether the claim against the Broker is brought in contract, tort (including for negligence), breach of statutory duty or for any other cause whatsoever.

8.6 Any claim against the Broker must be made in writing and notified to the Broker within 14 days of the date on which You 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 absolutely barred. The Broker 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 Broker within one year of the end of performance of the Fixture or in the absence of a concluded Fixture one year from the end of the Negotiations.

9. Termination

9.1 The Broker shall be entitled to terminate any agreement for Services with You with immediate effect and without liability by giving written notice to You if:

9.1.1 You commit any material breach of any term of the agreement (or, if such breach is capable of remedy, if You fail to remedy such breach within fourteen (14) days of receipt of a written request from the Broker);

9.1.2 You fail to pay any amount due under the agreement on the due date for payment; or

9.1.3 You are unable to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or any equivalent or similar act, process or proceedings under any applicable law.

9.2 Upon termination, for any reason whatsoever, You shall pay the Broker all fees and/or commissions earned and costs incurred in respect of the Services performed up to the date of the termination of the Services, together with such reasonable costs and/or expenses incurred by the Broker as a result of the termination of the Services. You will thereafter remain liable to pay to the Broker any fees which become due and payable after the date of termination of the Services in respect of any Fixtures which were concluded on or before the date of termination and/or which arise after the date of termination of the Services following performance of the Services prior to the date of termination of the Services. Any accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

10. Miscellaneous

10.1 All intellectual property rights in or arising out of the Services belong to the Broker.

10.2 The Broker has a general lien on all documents in its possession or control for all sums due from You to the Broker whether arising out of the Fixture or otherwise.

10.3 If a Court 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.

10.4 The Broker shall not be liable to You for any delay or failure to perform its obligations resulting from a Force Majeure Event. A Force Majeure Event means an event beyond the reasonable control of the Broker including but not limited to strikes, lock-downs, failure of a utility service or transport network, act of God, war (whether declared or not), threat or preparation for war, riot, civil commotion, malicious damage, epidemic or pandemic, imposition of sanctions, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake or default of any of Your subcontractors.

10.5 A waiver of any right under these terms and conditions is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.

10.6 Unless specifically provided otherwise, rights arising under these terms and conditions are cumulative and do not exclude rights provided by law.

10.7 By accepting the Services, You agree to be bound by these Terms and Conditions to the exclusion of all other representations, statements, conditions, terms and warranties, whether express or implied, statutory or otherwise except any implied by law or statute which cannot be excluded by law.

11. Jurisdiction and Law

These terms and any agreement for the provision of Services shall (unless otherwise specifically agreed) be governed by and construed in accordance with the laws of England and Wales and any dispute arising out of or in connection with these Terms and Conditions and/or the provision of Services shall be subject to the exclusive jurisdiction of the English Courts.