Terms for Less than Container Load (“LCL”)

Definitions

Affiliates - In relation to either Party, Affiliate means an entity in the same group-ownership as that Party.

Agreement – Any reference to the “Agreement” is a reference to these terms and conditions, including any document incorporated herein.

Allocation Variance – The Allocation Variance is a percentage amount by which you may adjust your Weekly Volume Nomination from week to week.

Allocation Week – Each week during the Term is an Allocation Week.

Booking Confirmation – The Booking Confirmation is a document sent by us confirming the details of a booking made under your Agreement with us.

CBM – Means Cubic Metres.

Charges – Charges are any and all freight, costs, fees, expenses, commissions, duties, penalties, compensation, taxes, surcharges, charges, or any other amounts whatsoever payable to us in respect of the services provided to you under this Agreement.

Dangerous Goods - Dangerous Goods are Goods which are or may become dangerous, hazardous, noxious (including radioactive materials), inflammable, explosive or which are or may become liable to damage any property or person whatsoever. Dangerous Goods includes, but is not limited to, any Goods that are specified as dangerous or requiring any particular special handling for the safety of the vessel, crew or Goods under the United Nations IMDG Code.

Dangerous Goods Declaration – A Dangerous Goods Declaration is a declaration in a form acceptable to us in our sole discretion.

ETD – Means the Estimated Time of Departure.

Goods - means the whole or any part of the cargo and any packaging accepted from you including any packing case, pallet, container, flat rack, platform, trailer, transportable tank or other item used for or in connection with the carriage of Goods by any means whatsoever. 

Ocean Base Rates – Ocean Base Rates are the base ocean freight rates agreed by the parties which do not include surcharges, accessorial charges, or any other charges that may otherwise be applicable to the ocean transportation of cargo.

Origin-Destination Group – An Origin-Destination Group is a collection of Port Pairs aggregated by us between origin ports and destination ports within the same region. The Origin-Destination Groups are selected by us in our sole discretion. 

Port Pair - A Port Pair is a load port and a discharge port, between which we may have agreed to carry Goods under this Agreement for a specified rate.

Rates Appendix – The Rates Appendix is the document setting out all of the rates and charges agreed for the various Port Pairs in your Agreement with us.

“Tax or Taxes” – Tax means any public imposition including, but not limited to, federal, state and local taxes, public duties and levies, capital gains tax, freight taxes,  surtax, excise tax, transfer tax, stamp tax, business tax, withholding taxes, customs duties, and any similar public impositions imposed, assessed or collected by or under the authority of any governmental body (whether Federal, State, Cantonal, Municipal or Local body). Tax includes any fine, penalty, interest, and any kind of additional or incidental payments related thereto.

Tendered Volume – The Tendered Volume is the actual amount of cargo properly tendered to us for ocean carriage in accordance with the terms and conditions contained in this Agreement.

Term - The Term is the total period from the commencement to the expiration of your Agreement with us.

Total Nomination - The Total Nomination is the total amount of cargo that you intend to tender for carriage during the Term. The Total Nomination is equal to the Weekly Volume Nomination multiplied by the number of weeks in the Term.

Transport Document – A Transport Document is the house bill of lading issued by us, or by any of our Affiliates.

“VAT” - VAT is value added tax, goods and services tax, turnover tax, sales tax, use tax, and any similar tax. VAT includes any fine, penalty, interest, and any kind of additional or incidental payments related thereto.

Weekly Volume Nomination – The Weekly Volume Nomination is an amount of cargo that you intend to tender in each Allocation Week during the Term and have provided to us at the commencement of the Agreement.

WMU – WMU means Weight and Measure Unit.

Scope of Services

1.    Scope of this Agreement

  • a.    This Agreement sets out the terms on which we agree to provide the services set out in the Rates Appendix. 
  • b.    This Agreement does not set out the parties’ liability for loss or damage to Goods or any liabilities arising during carriage. Carriage of any Goods booked under this Agreement will be governed by our Transport Document which is available at https://terms.maersk.com/HBL.
  • c.    Capitalised terms in this Agreement have the meaning given to them in the Definitions section in this Agreement.

Your responsibilities

2.    The Basics

  • a.    Our LCL product provides you with the ability to adjust your allocation each week against a fixed baseline volume, in order to meet seasonal variance in your volume requirements.

  • b.    This seasonal variance is achieved as follows (subject to the terms of this Agreement):

    • i.    You have provided us with a Total Nomination, being the total volume of cargo that you have agreed to tender during the Term.
    • ii.    Your Total Nomination is divided by the number of weeks in the Term to give your weekly baseline volume of cargo (your “Weekly Volume Nomination”). 
    • iii.    In each Allocation Week, you may apply an Allocation Variance to the Weekly Volume Nomination, so that you can tender more or less than the Weekly Volume Nomination (by a fixed percentage amount).
       
  • c.    Your volumes will be calculated in cubic metres (“CBM”) or Weight and Measure Units (“WMU”).
  • d.    If your volumes are calculated in WMUs, then, the number of WMUs per booking will be based on the gross volume (expressed in cubic metres or “CBM”) or gross weight (expressed in kg) of your cargoes, whichever is higher, provided that 1 CBM equals 1000 kg.
  • e.    If you fail to tender the Weekly Volume Nomination from week to week, the volume of cargo to which the rates in this Agreement apply may be subject to curtailment, or this Agreement may be terminated.
  • f.    In order to benefit from the Allocation Variance we require your forecast of capacity requirement. Your forecast must be provided four weeks in advance of the start of the Allocation Week in which you wish to use the Allocation Variance. If you do not provide a timely forecast, then we will plan on the basis that you intend to tender the Weekly Volume Nomination.

3.    Tendering the Cargo

Each week, you are required to tender for carriage the Weekly Volume Nomination for that Allocation Week as adjusted upwards or downwards by the Allocation Variance, provided that we have confirmed that we will accept your bookings. 

4.    Requirement for Additional Volume

Any request to carry additional volumes of cargo in excess of the Total Nomination across the Term, or the Weekly Volume Nomination (as adjusted by the Allocation Variance) each week is outside the scope of this Agreement. We may (in our sole discretion) offer to carry such additional volumes at the rates in the Rates Appendix or at different rates and (or) terms.

5.    Free Storage Time

In the event that your storage time exceeds the applicable free storage time, then, storage charges will be payable.

Our responsibilities

6.    Allocation of Capacity

We design our service schedules with the intention to meet the capacity demands of all our customers, but do not guarantee the provision of any less than container load capacity under this Agreement. If we are unable to accept your cargoes for any reason whatsoever, we will not be liable to you.

7.    Rates

This Agreement is a rate agreement. We agree that cargoes carried under this Agreement will be subject to the rates set out in the Rates Appendix.

8.    Service Scope

  • a.    If You have selected Door-to-Door Delivery to be applicable to certain Goods under this Agreement, then , we will seek (without guarantee) to pick up your Goods from a specified pick-up address, and then deliver your Goods to a specified delivery address.
  • b.    If You have selected Door-to-Warehouse Delivery to be applicable to certain Goods under this Agreement, then, we will seek (without guarantee) to pick up your Goods from a specified pick-up address, and then you will be required to pick-up your Goods from the Maersk Destination Warehouse stated in the Booking Confirmation.
  • c.    If You have selected Warehouse-to-Warehouse Delivery to be applicable to certain Goods under this Agreement, then, you shall deliver the Goods to the Maersk Origin Warehouse, and then pick-up the Goods from the Maersk Destination Warehouse stated in the Booking Confirmation.
  • d.    If You have selected Warehouse-to-Door Delivery to be applicable to certain Goods under this Agreement, then, you shall deliver the Goods to the Maersk Origin Warehouse, and then we will seek (without guarantee) to deliver your Goods to a specified delivery address.

9.    Add-On Services

  • a.    Save for as expressly agreed in writing between the parties, the rates in this Agreement do not cover any additional services that may be provided by us beyond the carriage of the goods. Such additional services include but are not limited to: shrink-wrapping, palletisation, repackaging, lashing or any other similar services.
  • b.    If you request additional services, then we may, in our sole discretion, provide these services to you and an additional fee will be payable.

10.    Consolidation

  • a.    We may, in our sole discretion, consolidate the Goods you tender pursuant to any booking with the cargoes of our other customers in one container. We also reserve the right to arrange your boxes or pallets within the container in any order.
  • b.    We may, in our sole discretion, provide space for your Goods through the equipment that we own, operate, charter, lease or subcontract with other carriers or transportation partners.

11.    Change to the Service

We may, in our sole discretion, discontinue any service for any of the Port Pairs referred to in this Agreement. If we discontinue our services, then we shall be under no obligation to carry any Goods affected by such discontinuance. For such time as we discontinue the service, your Weekly Volume Nomination for any affected Port Pairs will be reduced to zero and will not count towards any remedy assessed by reference to your Weekly Volume Nomination.

Making a Booking

12.    Cut-off Times

  • a.    You may make a booking within the booking window applicable to each load port. 
  • b.    The booking window applicable to each load port is determined by that load port. Our web-booking platform provides information as to the cut-off times applicable to the load port for each Port Pair. That information is indicative only and without guarantee. We are not liable if a booking is made late based on that information. 
  • c.    We are not liable for any issues in making a booking through third-party booking platforms. We are not liable for any issues in making a booking through our web-booking platform in the event of malware attack or any outage whatsoever.
  • d.    In case of Warehouse to Warehouse and Warehouse to Door Deliveries, Goods should be delivered to the applicable Maersk Origin Warehouse within the cut off time stated in the Booking Confirmation
  • e.    In case of Door-to-Door Delivery and Door to Warehouse Delivery, Goods should be ready for pick-up on the cargo pick-up date stated in the Booking Confirmation.

13.    Allocation Week

Each booking will be allocated to a specific Allocation Week in our system. The Allocation Week for the purposes of your bookings is the week in which the vessel carrying the Goods under your booking departs the load port.

14.    Geographic Flexibility

  • a.    Each rate is applicable to a Port Pair. We will aggregate each Port Pair into Origin-Destination Groups.
  • b.    Your Weekly Volume Nomination will be in respect of each Origin-Destination Group, meaning that you have the flexibility to make bookings in respect of a different Port Pair within the same Origin-Destination Group (provided that you have an agreed allocation for that other Port Pair).

15.    Cancellation

  • a.    If you cancel a booking after the cut-off time for delivery of Goods at the Maersk Origin Warehouse or cargo pick-up date stated on the Booking Confirmation, you will be liable to pay us the total amount of freight for that booking.
  • b.    No cancellation fee will be payable for any cancellation under this Agreement made before the cut-off time for the Maersk Origin Warehouse or cargo pick-up date stated on the Booking Confirmation.

Remedies

16.    Your Remedies

  • a.    This is a rate agreement only and we do not guarantee that we will make available the capacity adequate to meet the Weekly Volume Nomination as adjusted by the Allocation Variance.
  • b.    If we do not make adequate capacity available to meet the Weekly Volume Nomination as adjusted by the Allocation Variance, or in the event that we do not provide any capacity whatsoever, you shall have no claim against us, including in damages or in any other remedy.

17.    Our Remedies – Review, Volume Adjustment and Termination

  • a.    We may, at any time after the first eight (8) weeks of the Term, review the Tendered Volume as compared to the cumulative Weekly Volume Nominations (as adjusted by the Allocation Variance) across all Origin Destination Groups. Such review may be conducted on a periodic basis provided there is a difference of one month between two consecutive reviews (the first review and each subsequent review is defined as a “Review Period”). 
  • b.    If the Tendered Volume is less than the cumulative Weekly Volume Nominations for that Review Period, we may, in our sole discretion, reduce the Weekly Volume Nominations across the remainder of the Term by an amount equal to the percentage of the shortfall between the Tendered Volume and the Weekly Volume Nomination across the Review Period.
  • c.    If at any time a review shows that the Tendered Volume is less than 51% of the cumulative Weekly Volume Nomination for the Review Period, then we shall have a right to terminate this Agreement, effective immediately.
  • d.    If you have placed a valid booking for space within your Weekly Volume Nomination (as adjusted by the Allocation Variance), which we have been unable to meet, any such bookings shall be deemed to have been a part of the Tendered Volume.

18.    Our Remedies – Claims

  • a.    We will not charge you any fee or claim any damages for your failure to tender for carriage the Weekly Volume Nomination from week to week, provided that you have exercised reasonable endeavours to tender the Weekly Volume Nomination.

19.    Claims under the Transport Document

The remedies expressed in these terms and conditions are without prejudice to any other rights or claims that may arise out of or in connection with the carriage of any specific bookings under this Agreement, including without limitation any rights or claim that may arise in connection with or in relation to the carriage of any Goods booked and loaded pursuant to this Agreement, including under any Transport Document. Any such claims will be governed by the relevant Transport Document.

20.    Effects of Termination

The termination of this Agreement shall be without prejudice to any liabilities, rights and remedies of either party arising under this Agreement if and to the extent such liabilities, rights or remedies arose or accrued prior to or as a result of such termination.

General Terms and Conditions

1.    Entire Agreement

This Agreement (including Part 1, Part 2 and Part 3) and any other terms expressly incorporated into or prescribed by this Agreement to apply to any service rendered under this Agreement, represent the entire agreement of the parties which supersedes all prior agreements, representations, and understandings of the parties and which may not be modified except by written amendment signed by both parties.

2.    Term  

This Agreement commences on the Effective Date set out in Part 1, and will terminate on the Expiry Date set out in Part 1, unless terminated earlier in accordance with this Agreement.

3.    Inclusion of Transport Document

The Transport Documents shall be issued by us or by any of our Affiliates for the carriage of the cargo under this Agreement, and you shall be bound by the terms of any such Transport Document. The terms of the Maersk Transport Document will apply to any and all shipments and bookings that are arranged pursuant to this Agreement. 

4.    Execution

This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed to be an original, but all of which taken together shall form the same contractual agreement. This Agreement may be executed on behalf of either party with physical 'wet ink' signatures or by e-signature or docusign.

By signing this Agreement you warrant that you have all due authority to enter into this Agreement and to bind any named Affiliate (or any of your or their parent companies) in Part 1 of this Agreement.

5.    Qualification for Contract Rates

Any rate set out under this Agreement is intended only for the benefit of you and any of your named Affiliates. The rates in this Agreement may not be extended by you to any third party, whether directly or indirectly. If you seek to pass on these rates to any third party without our prior consent in writing, that will be a material breach of this Agreement entitling us to terminate.

6.    Surcharge

Rates appearing in the Rates Appendix of this Agreement may be subject to any surcharge(s) resulting from energy price fluctuations, strikes, labour issues or disputes, congestion, emergency risks, government or supra-national mandates, capacity or equipment issues or any other cause whatsoever outside of our reasonable control which causes increased expenditure to us or any of our Affiliates in carrying any shipments booked under this Agreement.

7.    Incorporation of Tariff

This Agreement is subject to our tariff, available at https://www.maersk.com/lcl/ocean. If you request Services that are not addressed in the Agreement, we will charge you in accordance with the tariff.

8.    BAF or FFF

Either a Bunker Adjustment Factor (“BAF”) or a Fossil Fuel Fee (“FFF”) (“ each a “Fuel Adjustment Factor”) shall be applied to this Agreement in accordance with the applicable Fuel Adjustment Factor available at Terms | Maersk Terms. We reserve the right to carry out any ad-hoc reviews of the applicable Fuel Adjustment Factor in case of any exceptional event(s) and in such cases the revised Fuel Adjustment Factor shall come into effect by one months’ pre-notice to you.

The Fuel Adjustment Factor is an additional cost that will be applied to all bookings under this Agreement. The Fuel Adjustment Factor reflects the adjustment in bunker prices between: (a) the baseline bunker prices on which the rates in this Agreement are calculated; and (b) the prevailing bunker prices at the time of calculating the applicable Fuel Adjustment Factor. 

9.    Low Sulphur Surcharge

This clause shall not apply if the Parties have agreed to apply FFF.

The parties may agree that the rates in this Agreement are subject to a Low Sulphur Surcharge (“LSS”). Where that is the case, this will be reflected in the Rates Appendix. The LSS may change from time to time at our reasonable discretion. We will notify you of any changes to the LSS in advance.

If the parties have separately entered into a written agreement relating to LSS, then that agreement shall apply to this Agreement.

10.    Tendering as Acceptance

If we send you a written offer to add a new rate, or replace an expiring rate to this Agreement for any Port Pair, you will be deemed to have accepted such offer by: (i) providing us written acceptance of such offer; or (ii) the action of you tendering any Goods to us after the date of our offer for that Port Pair.

11.    Dangerous Goods 

  • (a)     Unless previously agreed in writing with respect to each specific booking or service, you shall not deliver to us, any of our Affiliates or any person acting as a carrier in performance of this Agreement, or cause us, any of our Affiliates, or any carrier to deal with or handle Dangerous Goods.
  • (b) If we agree to accept Dangerous Goods, you or someone acting on your behalf, shall give us written notice of the nature of the Dangerous Goods prior to receipt of the Goods by us, any of our Affiliates or any carrier. The written notice shall include all information necessary for us, any of our Affiliates or any carrier to perform its obligations in connection with the Dangerous Goods in accordance with all applicable laws, regulations, requirements or recommendations (or any combination of the foregoing), including information about the characteristics of the Dangerous Goods, the appropriate manner and method of storage, handling and transportation of the Dangerous Goods. The Dangerous Goods must be distinctly marked with placards on the outside so as to indicate the nature and characteristics of the Dangerous Goods and so as to comply with all applicable laws, regulations, requirements or recommendations. 
  • (c)     Additional charges may apply to the handling of Dangerous Goods.
  • (d)     Dangerous Goods which have been tendered to us, any of our Affiliates or any carrier in breach of this Clause or which, in our opinion or in the opinion of any of our Affiliates or any carrier, constitute a risk to other goods, property, life or health may, at our sole discretion or at the sole discretion of any other person in whose custody they may be at the relevant time and without notice to you, be destroyed or otherwise dealt with at your expense and risk and without any liability on our part.
  • (e)     If any of the Goods are likely to taint or affect other goods, or liable to cause contamination, soiling and remedial cleaning expenses to be incurred, or likely to harbour or encourage vermin or other pests, they may, without notice to you, be destroyed or otherwise dealt with at your expense and risk and without any liability on our part.
  • (f)     In order to provide the information required by us under this Clause, we require that you prepare and send to us a Dangerous Goods Declaration in respect of each shipment that contains or may contain Dangerous Goods. 

12.    FMC

  • (a)  It may be necessary for this Agreement to be filed with the United States Federal Maritime Commission (the “FMC”). If we, in our sole discretion, consider that it is necessary for this Agreement to be filed with the FMC, the following terms of this FMC Clause shall apply. If we do not determine that a filing with the FMC is necessary, the remainder of this FMC Clause shall not apply.
  • (b)     Notwithstanding anything to the contrary in this Agreement, you shall be obliged to tender for carriage and we shall be obliged to accept a minimum cargo quantity of 1 WMU under this Agreement.
  • (c)     If, for any reason whatsoever, this Agreement (including, if there is an amendment agreed by the parties to this Agreement, any such amendment) is not filed with the FMC, we reserve the right to terminate this Agreement, effective immediately. This Agreement shall automatically terminate if it is not filed with the FMC in accordance with FMC guidelines.
  • (d)     Any of the following may constitute records supporting performance of this Agreement and may be shared with the FMC if requested:
    • (i)     Any Transport Document;
    • (ii)     Any manifest data;
    • (iii)     Any statements prepared by you relating to the cargo shipped under this Agreement or any booking made pursuant to this Agreement; and
    • (iv)     Any written communications issued by us regarding any of the above.
  • (e)    Our representatives who will respond to a request made pursuant to 46 CFR §530.15 are available at: Regulatory Affairs, Maersk Agency U.S.A. Inc. 180 Park Avenue, Florham Park, NJ 07932, fax: 973-514-5214.
  • (f)     In respect of any shipments to or from the U.S., this Agreement is subject to the U.S. Shipping Act of 1984 as amended by the Ocean Shipping Reform Act of 2022 and shall otherwise be construed and governed exclusively by the statutory and general maritime law of the United States and, to the extent not inconsistent therewith, the laws of the State of New York without regard to the choice of law rules of either. Any provision to the contrary (including any other law and jurisdiction clause in this Agreement) shall be disregarded.
  • (g)     In case of a dispute relating to any shipments to or from the U.S. arising under this Agreement and other than disputes related to the payment of freight, which shall be handled pursuant to the law and jurisdiction clause in our or in our Affiliate's Transport Document or (if applicable) the credit agreement:
    • 1.    the dispute shall be subject to the jurisdiction of the United States District Court for the Southern District of New York;
    • 2.    The costs and expenses of the litigation (including reasonable attorneys' fees and costs) shall be borne by the non-prevailing party; and
    • 3.    if a Party starts an action in any other forum, such party shall be liable for any and all reasonable attorneys' fees and costs incurred by any other Party defending that action.
  • (h) To the extent FMC regulations are applicable, the Parties agree that this clause will apply. 

In accordance with Federal Maritime Commission ("FMC") Regulation 46 CFR Section 532, we notify you as follows:

    • 1.    This Agreement constitutes a Negotiated Rate Arrangement ("NRA”), as defined in Regulation 46 CFR Section 532.3(a) offered by Maersk Logistics & Services International A/S (OTI license 029536);
    • 2.    By this notice, we indicate our intention to invoke an exemption under Section 532.2;
    • 3.    Additional surcharges and assessorial charges shall apply as included in the Maersk rules tariff which can be accessed at https://rates.descartes.com
    • 4.    For any applicable pass-through charge for which a specific amount is not included in this Agreement or in the Maersk rules tariff, we will invoice you for charges we incur, with no markup;
    • 5.    Shipper confirms that it is either a beneficial cargo owner or a lawful NVOCC under the U.S. Shipping Act.
    • 6.    THE SHIPPER'S BOOKING OF GOODS AFTER RECEIVING THE TERMS OF THIS NRA OR NRA AMENDMENT CONSTITUTES ACCEPTANCE OF THE RATES AND TERMS OF THIS NRA OR NRA AMENDMENT.

13.    Assignment and Sub-Contracting 

You may only assign any or all of your rights under this Agreement, or novate this Agreement, with our prior written consent.

We may assign or novate this Agreement, including any or all of our rights and/or liabilities under this Agreement to any Affiliate by giving public notice or informing you in any other way whatsoever.

We shall be entitled to sub-contract on any terms whatsoever the whole or any part of any services that we may provide pursuant to this Agreement.

14.    Termination

  • (a)     This Agreement may be terminated at any time during the Term by mutual consent in writing between the parties.
  • (b)     This Agreement may be terminated immediately by either party if:
    • (i)     the other party becomes insolvent, enters into liquidation (apart from solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or a substantial part of its assets, or makes a general assignment for the benefit of or enters into an arrangement with its creditors in lieu thereof, or takes or suffers similar action; or
    • (ii)     performance of this Agreement would be in breach of the sanctions laws of the European Union, United States, or any sanctions as promulgated by the United Nations Security Council and of any country to, from or through which the goods may be carried.
  • (c)     We may terminate this Agreement immediately on written notice to you in the event you fail to pay any outstanding Charges when due in accordance with terms of this Agreement or our performance under this Agreement may, in our reasonable opinion, cause us to suffer reputational harm.
  • (d)     Either party may terminate this Agreement in the event of a material breach by the other party which is not capable of immediate remedy or which is not remedied within reasonable time upon a party’s notice to the other party including any breach of confidentiality obligations.
  • (e)     The termination rights provided for in this Termination clause are without prejudice to the accrued rights and liabilities of the parties as at termination and the continuation of any provision intended to survive termination.

15.    Renewal

The parties may enter into discussions in the final three months of the Term, with a view to agreeing terms for a renewal of this Agreement. 

16.    No Third-Party Rights

This Agreement is intended solely for the benefit of the parties, and nothing in this Agreement shall be construed as conferring any benefit, right or remedy on any other person, whether under the Contracts (Rights of Third Parties) Act 1999, any other statute, at common law or in equity.

17.    Emissions Regulation

  • (a) During the Term we may directly or indirectly be subject to regulatory or other industry-wide requirements relating to emissions, fuel bunker content requirements or a requirement to purchase allowances or otherwise make payments calculated by reference to our emissions, or any other regulation whatsoever relating to decarbonization or any other environmental concern (each an “Emissions Regulation”)
  • (b)     You acknowledge that Emissions Regulations may arise in any jurisdiction in which we perform activities with any of our customers and an Emissions Regulation may not yet be envisaged, implemented or in full force and effect as of the date of this Agreement. 
  • (c)     Specifically and without limitation, you agree that each of the following will be considered to be an Emissions Regulation under this Agreement:
    • (i) Amendments to MARPOL Annex VI, introducing an Energy Efficiency Design Index (EEDI), Energy Efficiency Existing Ship Index (EEXI) and Carbon Intensity Indicator (CII), known in the industry as “the IMO 2023 regulations”;
    • (ii)     The European Union Emissions Trading System (ETS) as applicable to the shipping industry; and
    • (iii)     The FuelEU Maritime Initiative.
  • (d)     If at any time during the Term we become subject to one or more Emissions Regulation(s), whether in force as of the date of this Agreement or not, you shall pay to us an amount assessed by us in our sole discretion as being our business cost of complying with that or with those Emissions Regulation(s) in performing this Agreement.

18.    No Waiver

Any failure by either party in exercising any right, power or privilege under this Agreement shall not constitute a waiver, nor shall any single or partial exercise preclude any further exercise of any such right, power or privilege.

19.    Time Bar 

Any and all claims by you or any of your Affiliates arising under this Agreement shall be time barred, extinguished and deemed waived unless suit is brought within twelve months of the date on which the alleged cause of action arose. For any disputes relating to the loss or damage of any Goods, the applicable time bar shall be the time bar in the Maersk Transport Document.

20.    Sanctions

  • (a)     With respect to any booking made under this Agreement, you shall be responsible for and you warrant compliance with all applicable laws, rules and regulations, including, but not limited to, the sanctions laws of the European Union, United States, any sanctions as promulgated by the United Nations Security Council and of any country to, from or through which the goods may be carried, and the export control laws of any country to, from or through which the goods may be carried.
  • (b)     You warrant that you have obtained all necessary export, re-export, and/or import licenses or permits and that we or any of our Affiliates are not required to obtain any special license or permit in connection with our or any of our Affiliates' performance hereunder.
  • (c)     You warrant that you or any party that you endorse any Transport Document to is not a party subject to any prohibition or restriction pursuant to the sanctions laws of the European Union, United States, any sanctions as promulgated by the United Nations Security Council and of any country to, from or through which the goods may be carried, including any party identified on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or any other list of prohibited or denied parties maintained by the European Union, United States, United Nations Security Council  or any other country. You also warrant that the goods are not intended to be used in the design, development or production of nuclear, chemical or biological weapons or in violation of the arms control laws of any country to, from or through which the goods may be carried. You shall indemnify and hold us and any of our Affiliates harmless to the full extent of any loss, damage, cost, expense, or liability to any person or governmental authority including lost profits, attorney’s fees and court costs for any failure or alleged failure of you to comply with any applicable export and import laws and regulations of any country.
  • (d)     You agree that we and any of our Affiliates may take any action under Article 22 of the Transport Document or return any cargo carried pursuant to this Agreement to the Port of Loading at full cost to you in the event of any risk that you are in violation of the provisions of this Sanctions Clause.
  • (e)     We and any of our Affiliates assume no liability to you or any other person for any loss or expense arising from your failure to comply with the provisions of this Sanctions Clause.

21.    Jurisdiction

Except as set forth in the clause titled, “FMC”, this Agreement and any non-contractual matters arising in connection with this Agreement shall be governed by and construed in accordance with English law and any and all disputes arising under or in connection with this Agreement, or any non-contractual matters arising in connection with this Agreement, shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of any other country. Alternatively, and at our sole option, we may commence proceedings against you in any other court of competent jurisdiction.

22.    Severability

The terms and conditions of this Agreement are severable. The invalidity or unenforceability of any one or more of the provisions of this Agreement shall not affect the validity or enforceability of any other provisions.  If any provision of this Agreement is prohibited or invalid under applicable law, that provision will be ineffective only to the extent of that prohibition or invalidity.

23.    Information

Information, in whatever form or manner it may be given, is provided by us:

  • (a)     in good faith, but is not held out to be, nor to be taken as guaranteed, complete, accurate or timely, and no warranty, representation or undertaking whatsoever is given in respect of any information;
  • (b)     for you only, and you shall defend, indemnify and hold us harmless for any liability, loss, damage, cost or expense arising out of any other person relying on such information.

24.    Information Systems and Electronic Data Interchange

  • (a) The parties may agree in a separate agreement to enable electronic exchange of Information via their or a third-party’s information system.
  • (b) Unless otherwise expressly agreed in writing, we shall not be liable for and you shall indemnify us in respect of any loss, damage, cost or expense arising out of or in connection with us:
    • (i) entering or sending incorrect Information (or failing to enter or send Information) to your or any third party’s information systems;
    • (ii) using, damaging, corrupting, losing or disclosing your or any third party’s information or information system; or
    • (iii) using your or a third party’s information system that is defective or malfunctioning.

25.    Written Notices to Maersk

Other than as stated in this Notices provision, any written notice relating to this Agreement shall be sent to us at the contact addresses and contact details listed in Part 1 of this Agreement.

The contact addresses and contact details listed in Part 1 shall not in any circumstances constitute an address for service of process, or for any formal notification of any claim, to the extent permitted by law.

For details of how to notify us of any claim, please follow our guidance at https://www.maersk.com/support/faqs/how-to-file-a-claim. Any notification given to us other than in accordance with the guidance at this link will be void.

26.    Written Notices to You

We shall be deemed to have satisfied all requirements relating to service of any written notice including service of process, provided that such notice is sent to you at any of the email or physical addresses listed in Part 1 of this Agreement, or to any email address used by you in negotiating and agreeing this Agreement. 

If any such physical or email address has been changed after the execution of this Agreement, service may be made to the last business address provided to us and to any email address used by you in negotiating, performing or administering this Agreement. 

27.    Confidentiality

All information provided or obtained in connection with the negotiation or performance of this Agreement is and shall remain confidential and not be disclosed without the prior written consent of the other party. The parties shall use reasonable endeavours to ensure that such information shall not be disclosed to any third party by any of their sub-contractors, employees and agents. This Confidentiality Clause shall not apply to any information or data that has already been published, is in the public domain or otherwise is or has come into the other party's possession lawfully, including production data created or derived in the performance of the Agreement. All information and data provided by a party is and shall remain the property of that party.

This Agreement may be disclosed to third parties, to the extent required by law, or by request of a competent government entity, agency, court or tribunal thereof, or as otherwise necessary to comply with governmental requirements or as agreed between the parties.  

We may disclose this Agreement to: 

  • (a)     any of our Affiliates as necessary for the performance of this Agreement; 
  • (b) any of our Affiliates who agree to be bound by the same confidentiality provisions; 
  • (c)     any of our sub-contractors, agents, employees or any other person for the performance of this Agreement; or 
  • (d)     any other person for the purpose of collecting outstanding Charges payable under this Agreement.

You may disclose confidential information pertaining to this Agreement to any of your Affiliates, solely to the extent necessary for the performance of this Agreement

28.    Joint & Several Liability

Any Affiliates named by you in Part 1 of this Agreement and any of your or their parent companies shall be jointly and severally liable for your obligations under this Agreement, or any obligations or liabilities arising from any services provided pursuant to this Agreement.

29.    General Indemnity

  • (a)     You shall defend, indemnify and hold harmless us, our subcontractors and any of our Affiliates against all liabilities, losses, damages, costs (including the costs of investigating and defending any claims), expenses, awards and fines of whatever nature and howsoever assumed, invoked, suffered, related to or arising from or out of:
    • (i)     the nature of the Goods;
    • (ii)     us acting in accordance with your instructions;
    • (iii)     any breach of any of the warranties or undertakings given or obligations undertaken by you under this Agreement;
    • (iv)     your negligence; 
    • (v)     any duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in respect of the Goods or performance of this Agreement, and for all liabilities, payments, fines, costs, expenses, loss and damage sustained by us in connection therewith, unless caused by our negligence;
    • (vi)     us incurring any liability in excess of our liability under the provisions of this Agreement unless such liability arises from the negligence or wilful misconduct of us, our agents, servants or subcontractors.
  • (b)
    • (i)     You undertake that no claim shall be made against any of our Affiliates, subcontractors, agents, employees or servants which imposes or attempts to impose upon any of them any liability whatsoever in connection with the services provided under this Agreement or the Goods or both, and if any such claim should nevertheless be made, to indemnify, defend and hold us harmless against all consequences thereof including any costs incurred by us therefrom.
    • (ii)     Without prejudice to the foregoing, all such Affiliates, subcontractors, agents, employees or servants, together with all their respective subcontractors, employees, directors, officers and agents ("Relevant Third Parties") shall have the benefit of all provisions herein, as if such provisions were expressly for their benefit. In entering into this Agreement, we do so (to the extent of such provisions) not only on our own behalf, but also as agent and trustee for Relevant Third Parties.

30.    Consequential Loss

We shall in no circumstances whatsoever be liable, directly or indirectly to you for any special, consequential, indirect (including, but not limited to, loss of production, deferral of production, lost profits, lost sales, lost benefit of utilization, loss of reputation, loss of market share, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and lost opportunity costs etc.), multiple, exemplary, liquidated or punitive and/or other extraordinary damage suffered by you. This limitation shall apply regardless of the form of action, whether the damages or other relief sought are based on breach of warranty, breach of contract, tort (including negligence), strict product liability or any other legal or equitable theory, even if we have been advised of the possibilities of such damages.

31.    Lien

We shall have a lien on any and all Goods carried by us under this Agreement for all sums payable to us under this Agreement and for general average and salvage contributions to whomsoever due. We shall also have a lien against you on any Goods for all sums due by you to us under any other contract whether or not related to this Agreement. We may exercise our lien at any time and any place in our sole discretion, whether this Agreement has terminated or not. In any event any lien shall extend to cover the cost of recovering any sums due, and for that purpose we shall have the right to sell your Goods by public auction or private treaty, without notice to you. Our lien shall survive the termination or expiration of this Agreement, whichever is applicable.

32.    Force Majeure

Without prejudice to the terms of the Agreement, we shall not in any event be liable for any delay, loss, damage or failure in performance if such delay, loss, damage or failure has been caused due to events beyond our reasonable control, including, without limitation, lockouts, strikes or circumstances arising from the threat thereof; acts of God, terrorism, war, hostilities, riots, civil disorder, insurrection, embargo, governmental actions (whether informal or formal government acts), acts or omissions of terminal operators, customs authority or any entity not under our direct control, pandemic, epidemic or other similar disruptions or interference with trade, marine disaster, fire and or other casualty.

33.    Finance

  • (a)     We will send you invoices for any Charges due under this Agreement on a weekly basis, or at such intervals as we may determine in our sole discretion.
  • (b)     You shall pay to us, in cash or as otherwise agreed, all Charges immediately when due, in the currency of the invoice, without deduction or deferment on account of any claim, counterclaim or set-off.
  • (c)     With our prior written consent you may appoint a third party to settle Charges on your behalf (a “Freight Agent”). This Finance Clause shall apply to any Freight Agent.  You shall remain responsible for payment of any Charges. You agree and undertake to indemnify, defend and hold us harmless for all Charges in the event of default, claim or non-payment by any Freight Agent.
  • (d)     Charges are payable based on particulars furnished by you. If such particulars are incorrect, you shall be liable for the correct Charges, as well as any expenses incurred in connection with such correction, including examining, weighing, measuring or valuing the Goods.
  • (e)     Payment of Charges to any party other than us shall not be deemed payment to us, and shall be made at your own risk.
  • (f)     No credit is granted to you unless expressly agreed in writing by us in a separate credit agreement. 

34.    Receipt

Payment of any Charges shall not be effective until the amount of the payment is unconditionally and irrevocably transferred to us and at our effective disposal in cleared funds.

35.    Taxation

Except as otherwise stated:

  • a.    The Charges payable pursuant to this Agreement exclude VAT and Taxes payable in respect of or in connection with the services to be provided pursuant to this Agreement.  Such sums shall be paid without deduction/withholding, unless required by law and provided documentation relating to the deduction/withholding (or its remission to the relevant authority) is provided within ten business days (or as required by law) to enable the us or any of our Affiliates to obtain any available credit for that amount. If such documentation is not provided, then the deducted/withheld amount shall be regarded an unpaid.
  • b.    Where we or any of our Affiliate is required to account for VAT in respect of the services, you shall, subject to receiving a valid VAT invoice, pay to us an amount equal to such VAT in addition to the consideration for that supply.
  • c.    Each party shall pay all Taxes properly and lawfully assessed or imposed on its by competent authorities relating to this Agreement or the transactions contemplated herein and shall indemnify and keep indemnified the other party against all liabilities, claims or proceedings resulting from failure to pay such Taxes.
  • d.    Each party shall seek to obtain, and each party shall provide reasonable assistance to the other with obtaining, any exemption or relief from Taxes or deductions/withholding which is available to the parties.

36.    Change in Taxation, Laws and Regulatory Requirements

We may at any time change the Charges to be paid pursuant to this Agreement to reflect any change in the cost of providing services pursuant to this Agreement resulting from any change in the manner or rate of taxation, law or regulatory requirement.

37.    FX Rates

Any sum payable to us shall be paid in the currency provided for in the invoice prepared by us and sent to you. 

Where the invoiced amount has been converted from another currency or other currencies, we will convert those sums as follows: 

  • (a)     We will convert the currency at the prevailing conversion rate at the applicable date for the service provided under the invoice. The applicable conversion date will be determined based on the billing cycle agreed between the parties; and 
  • (b)     We may apply, in our discretion, a conversion adjustment, which is calculated as a percentage of the converted sum at the percentage value set out in the table available at the following link for the relevant currency pair (see: Link to Markups table).

The conversion rates used by us are based on benchmark rates provided by third party suppliers. You hereby waive any right to contest those benchmark conversion rates.

38.    Disputed Invoices

If you believe that there is any discrepancy in any invoice raised by us, you must raise this discrepancy with us in writing within thirty calendar days from the date of the disputed invoice. The invoice raised shall be deemed to be valid, undisputed and correct unless you raise any dispute within the above thirty calendar day period.

Any undisputed part of an invoice must be settled in accordance with this Agreement. A disputed part of an invoice is exempted from the standard payment terms until the dispute has been settled. Once the dispute is resolved, payment, as applicable, must be made in accordance with the original due date.

39.    Outstanding Invoices

If you or your Affiliates do not settle outstanding amounts by the due date, we reserve the right to take any or all of the following actions:

  • (i)    Withhold original documents including Transport Documents or Goods  (or both) until all overdue Charges, including collection and reminder fees and expenses, are settled;
  • (ii)    Suspend or terminate the provision of any credit that we have granted to you, howsoever arising;
  • (iii)    Exercise any applicable right of lien over any Goods;
  • (iv)    Stop providing or arranging services;
  • (v)    Apply automatically and without prior notice a fixed charge on the outstanding overdue amounts; 
  • (vi)    Apply on any outstanding sum at the rate advised by us, or if no such rate is advised, at the annual rate of 3 (three) per cent above the minimum lending rate set by the national or central bank, as applicable, of the country or territory of the relevant currency for any period after each amount had become overdue, plus reasonable attorneys’ fees and expenses incurred in collecting any sums due; and
  • (vii)    Commence collection proceedings, in which case any related costs, expenses and fees shall be payable by you.

40.    Remittance Advice

If settlement of any Charges is done via bank transfer or cheques, you will forward a separate remittance advice outlining which invoices are included in each payment.

In the absence of your advice to the contrary, any payment shall be applied to the oldest outstanding invoice(s).

41.    VAS Products

  • (a)    You may request any available value-added services that are offered through our booking platform (the “VAS Products”). The VAS Products may be available via our online portal or by contacting our customer support team.
  • (b)    You may request that your selected VAS Product(s) apply to all of the Goods on particular Port Pairs as set out in the Rates Appendix. On each occasion that you wish to use your selected VAS Product(s), you must notify us of your request to do so at the time of making a booking.
  • (c)    If we are able to provide the requested VAS Product(s), we will confirm this in the Booking Confirmation.
  • (d)    We do not guarantee the availability of the VAS Products. If we cannot provide the VAS Product(s) you requested, this will not be considered a breach or non-performance of this Agreement whatsoever.
  • (e)    The relevant VAS Product(s) will be available at the Tariff rate applicable at the time of booking. The Tariff rate will be payable on top of and on the same terms as the Ocean Base Rates.
  • (f)    The provision of the VAS Products is at all times subject to this Agreement, the Transport Document and VAS terms (if any).


 

Chapters