Ocean Block Space Flat
1. Definitions
Affiliate - In relation to either Party, Affiliate means an entity in the same group-ownership as that Party.
Agreement - Means this legally binding agreement entered into by the Parties, together with all terms incorporated by reference.
Allocation Week - Each seven calendar day period during the Term is an Allocation Week. Allocation Weeks do not necessarily follow calendar weeks. Allocation Weeks can be found in the Contract Output, in the tab “Rate validity - Weeks to Months”, or otherwise available from us upon request.
Allocation Portal - Our online application also known as “Customer Hub”, where you have access among other functionalities to a view of your allotted capacity to cover the Volume Nomination, including any seasonality or tolerances.
Booking Confirmation - The Booking Confirmation is a document sent by us confirming the details of a booking made under this Agreement.
Charges - Charges are any and all freight, detention and demurrage, costs, fees, expenses, commissions, duties, penalties, compensation, surcharges, or any other amounts whatsoever payable to us in respect of the services provided to you under this Agreement.
Contract Output - The Contract Output is a document containing the key commercial terms of this Agreement, including: (a) the Parties’ contact details (b) the Term; (c) the Parties’ Affiliates; (d) any applicable payment terms; (e) the agreed space allocation; (f) the Ocean Base Rates; (g) inland rates; (h) rate review mechanisms; (i) the Port Pairs; (j) Free Time; (k) the Liquidated Damages Rate; and (l) the Bunker Adjustment Factor terms, as applicable.
Dangerous Goods - Dangerous Goods are any 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 include, but are 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.
Dead Freight Fee - Means the dead freight payable per FFE, as set out in the Contract Output.
Equipment - Equipment refers to a container or containers. The defined term “Equipment” does not include any extra equipment beyond the container itself or any special equipment, including but not limited to flat racks, open tops or open sides, tanks, and chassis.
Equipment Drop Off Point - The Equipment Drop Off Point is the place set out in the Booking Confirmation as the place at which you will return the Equipment.
Equipment Pick Up Point - The Equipment Pick Up Point is the place set out in the Booking Confirmation as the place at which you will pick up the Equipment.
Force Majeure Event - Means any and all events beyond our reasonable control including, without limitation, strikes, work stoppages, lockouts or circumstances arising from the threat thereof; acts of God, states or a public enemy, terrorism, cyber-attack, war, hostilities, riots, civil disorder, insurrection, embargo, pandemic, governmental actions (whether informal or formal government acts) or other similar disruptions or interference with trade, marine disaster, fire and/or other casualty.
Free Time – Free Time is a period during which you will not be liable to pay us detention and demurrage. Your Free Time entitlement is set out in the Contract Output.
Goods - Means the whole or any part of the cargo and any packaging accepted from you, including but not limited to any Equipment not provided by us, packing case, pallet, flat rack, platform, trailer, transportable tank or other item used for or in connection with the carriage of Goods by any means whatsoever.
Inland Corridor - An Inland Corridor is an inland route between an ocean terminal and an inland location, or vice versa.
Inland Documents - Inland Documents are all documents and information that are required or desirable for us to arrange inland transportation. The Inland Documents will at all times include but are not limited to: (a) any VGM documentation; (b) inland shipping instructions; (c) an inland dispatch order (including customer facility address, operation window, etc.); and (d) MSDS, if required. In our reasonable discretion, we may request additional documents for inland transportation and any such documents shall be Inland Documents.
Inland Rate Review - An Inland Rate Review is an adjustment to the prevailing rates for transport in an Inland Corridor.
LAB Compensation - Means the compensation payable to you if we fail to load Goods within the number of calendar days stated in the Contract Output (for example, LAB3 means we have 3 (three) calendar days from the loading date in the final Booking Confirmation to load your containers on our vessel).
LAB Compensation Rate - Means the USD compensation amount payable per FFE, as set out in the Contract Output.
Liquidated Damages Rate - Means the USD liquidated damages amount payable per FFE, as set out in the Contract Output.
Ocean Base Rates - Ocean Base Rates are the freight rates agreed for ocean transportation which do not include surcharges, accessorial charges, or any other Charges that may otherwise be applicable to the ocean transportation of cargo.
Ocean Contract Product General Terms and Conditions - The Ocean Contract Product General Terms and Conditions are standard terms and conditions applicable to this Agreement, which are available at https://terms.maersk.com/GTC.
Port Pair - A Port Pair is a load port at origin and a discharge port at destination, between which we may have agreed to carry Goods under this Agreement for a specified rate.
Tariff - Means our applicable tariff, including but not limited to the tariff prevailing in the market generally, or the tariff applicable to the services provided to you, as the case may be. Copies of the Tariff are available from us on request.
Term - The Term is the total period from the commencement to the expiration of your Agreement with us, as set out in the Contract Output.
Trade - A Trade is a group of certain Port Pairs to which this Agreement applies.
Volume Nomination - The Volume Nomination is the total volume of cargo that you are required to tender for us to carry during the Term, as per the Contract Output.
Weekly Allocation - The Weekly Allocation is the Volume Nomination, split per Allocation Week.
References to “you” or “your” are references to the shipper. References to “we” or “our” are references to Maersk A/S. References to a “Party” are references to either the shipper or Maersk A/S and references to the “Parties” are references to both the shipper and Maersk A/S.
2. Scope of this Agreement
a) This Agreement incorporates: (i) the Contract Output; and (ii) the Ocean Contract Product General Terms and Conditions.
b) This Agreement sets out the terms on which we have agreed rates and volumes for ocean carriage and (if applicable) ancillary value-added services. This Agreement applies and shall be valid for the duration of the Term.
c) Capitalised terms in this Agreement have the meaning given to them in this Agreement.
d) This Agreement, including the provisions incorporated by this Agreement, represent the entire agreement between the Parties. Any terms and conditions that are included in any booking sent by you, or in any other communication sent by you in connection with this Agreement or its formation, shall be of no effect in construing this Agreement or any booking made pursuant to the Contract Output.
e) In the absence of any express prior acceptance, the act of making a booking under the Contract Output and this Agreement shall be deemed to be your irrevocable acceptance of this Agreement.
3. Your responsibilities
3.1 The Basics
a) Each Allocation Week, you are required to tender for carriage a volume of cargo equal to the applicable Weekly Allocation, in relation to each Trade (including any tolerance we may choose to apply in our sole discretion). Your Weekly Allocations are available for you to view in the Allocation Portal.
b) If you consider that the Weekly Allocations for the Port Pairs set out in the Allocation Portal are incorrect, you must refrain from tendering any cargo and inform us of the perceived error within 5 (five) calendar days of the date of this Agreement. If you tender no cargo and inform us of any perceived error within 5 (five) calendar days, this Agreement shall be of no effect until the Weekly Allocations are correctly reflected in the Allocation Portal. If you tender any cargo under this Agreement or fail to provide notice of any perceived error within 5 (five) calendar days, your Volume Nomination and Weekly Allocations as set out on the Allocation Portal shall be final and binding, save for as they may be varied under this Agreement.
3.2 Additional Volume
Any request to carry additional volumes in excess of the Weekly Allocation is outside the scope of this Agreement. If you require any additional allocation from week to week, we are under no obligation to accept such volumes. However, in our sole discretion, we may accept additional volumes under this Agreement, offer you a separate agreement, offer capacity via one of our spot platforms (ex. Maersk Spot or Maersk Go), or a combination of all the above.
3.3 Dead Freight
a) If for any reason whatsoever you do not tender a volume of cargo readily available for carriage equal to the applicable Weekly Allocation, you will pay dead freight. Dead freight shall be assessed at the Dead Freight Fee multiplied by the difference in FFE between: (i) 90% of the cumulative Weekly Allocations during any given month in the Term; and (ii) the volumes actually tendered in accordance with this Agreement during such month. For the purposes of this assessment, months and weeks to be assessed are as per the respective tab in the Contract Output.
b) Dead freight will be payable immediately once assessed. Unless otherwise agreed, it will be invoiced and paid by the same entity responsible for paying the freight or, at our discretion, the entity identified by the SCV code in the Contract Output.
4. Our responsibilities
4.1 Capacity, Liquidated Damages, LAB Compensation
a) We design our service schedules with the intention of meeting the ordinary capacity demands of all our customers. In doing so we consider Equipment, vessel capacity and inland capacity to meet your Volume Nomination, operating under normal circumstances. If, despite our efforts, we are not able to fulfill your Volume Nomination, we may be liable to you for liquidated damages (“Liquidated Damages”).
b) Liquidated Damages shall be due when we materially fail to accept bookings within your Volume Nomination. Liquidated Damages shall be assessed over the Term of this Agreement, at the Liquidated Damages Rate multiplied by the difference in FFE between: (i) 90% of the volumes booked and actually tendered in full compliance with all of your obligations; and (ii) the volumes in bookings requested by you in full compliance with all of your obligations and confirmed by us. If we cancel any bookings before volumes are tendered (except in accordance with this Agreement), the volume for the purpose of this Liquidated Damages calculation shall include any cancelled volumes which in our reasonable opinion would have been tendered in full compliance with all of your obligations.
c) If a “Carrier Commitment” is not agreed in the Contract Output or if agreed as “Allocation” only, any Liquidated Damages payable shall be your only remedy. However, if the “Carrier Commitment” in the Contract Output is set out as “LAB” followed by a number, we may be liable to you for LAB Compensation.
d) LAB Compensation shall be assessed at the LAB Compensation Rate, multiplied by the number of containers (in FFE), which have been loaded on our vessels after the number of calendar days agreed in the Contract Output.
e) Liquidated Damages and any LAB Compensation are self-excluding remedies. If you choose one, you automatically and irrevocably waive your rights to the other.
f) You agree and accept that the Liquidated Damages or any LAB Compensation (as applicable) are your sole and exclusive remedy for any and all failures by us to meet your Volume Nomination. In no case shall we be liable for any further damages or any other types of compensation whatsoever, including direct, indirect, or consequential damages arising from or connected to non-acceptance, non-carriage or delayed carriage of Goods under this Agreement.
g) We may reject, amend or cancel your bookings, curtail Weekly Allocations and the Volume Nomination, roll, postpone, or otherwise change our cargo plans in any way, at any time and by any amount, without any liability whatsoever (including liability for any Liquidated Damages or LAB Compensation), in any of the following circumstances:
- 1. A material change in the political, operational, economical or commercial environment during the Term, which, in our reasonable opinion, affects our capacity in view of anticipated ordinary market demand;
- 2. In the event of any blank sailings or omissions for any reason whatsoever, in which case the Weekly Allocation shall be curtailed in an amount that we (in our reasonable opinion) consider commensurate with the volume that would have been carried had the blank sailing or omission not occurred;
- 3. In the event of any Equipment shortages of any nature and for any reason whatsoever;
- 4. Any Force Majeure Event; or
- 5. In the event of any default or breach of your obligations, under this Agreement or any other set of terms agreed between us, including late gate-in of Goods, delayed or non-provision of any documents requested by us in connection with the services (including Inland Documents).
h) Unless otherwise agreed, Liquidated Damages and LAB Compensation will be invoiced and paid by the same entity responsible for paying the freight or, at our discretion, the entity identified by the SCV code in the Contract Output.
4.2 Rates
a) We agree that cargo booked for carriage will be subject to the rates and Charges set out in this Agreement or, whenever not defined here, in the Tariff. Such rates and Charges may be agreed directly in the Contract Output (in the form of a Contract Rate Card or otherwise) or linked to an Index, in which case the provisions below shall apply.
b) In case of index-linked rates and Charges, each Port Pair is subject to an Ocean Base Rate that will vary throughout the Term in accordance with an index selected by the Parties in the Contract Output (the “Index”).
c) Port Pairs are grouped into Trades, as per Appendix 1. Each Trade has a reference Port Pair as per Appendix 1 (the “Reference Port Pair”). The Ocean Base Rates for all Port Pairs within a Trade shall be the same as the Ocean Base Rate for the Reference Port Pair.
d) The Ocean Base Rates for all Port Pairs shall be adjusted at the frequency set out in the Contract Output. On the date of each adjustment, the Ocean Base Rates shall be adjusted to match the average of the Index recorded for each Reference Port Pair, between the date of the last review and the date of the current review. We reserve the right to choose when (date and time) we will extract data from Index providers to assess Index values, always respecting the agreed frequency for reviews.
e) The Ocean Base Rates may be subject to adjustment factors (for example specific discounts, shown as negatives, or additions, shown as positives) as per Appendix 1, which apply to each Trade and the respective Ocean Base Rates. Furthermore, if we have agreed a partial floating mechanism by reference to a floor and ceiling for Ocean Base Rates , that floor and ceiling represent respectively the absolute minimum and maximum Ocean Base Rates so that no rate (including any additions and discounts) shall cause Ocean Base Rates to exceed or drop below such limits.
f) We may, but do not guarantee that we will, inform you of an index-based adjustment to the Ocean Base Rates before such adjustment takes effect.
g) If you consider that the rate review is inaccurate, then you may contact us within 5 (five) calendar days of your receipt of notice of the revised rates. If you do not contact us within 5 (five) calendar days of notice of the rate review, then the revised rates shall be binding on you. If we subsequently notice that there is an error in the calculation of the revised rates, we may amend any such calculation at any time, in our sole discretion.
h) Certain surcharges have already been considered as part of the Ocean Base Rates and captured by the Index review (the “Indexed Surcharges”). The Indexed Surcharges are set out in the respective column of the Index-linked Rates tab. If, in our reasonable opinion, the Index no longer accurately reflects the prevailing Indexed Surcharges, we may, on immediate written notice: (i) add the amount corresponding to an Indexed Surcharge to the Ocean Base Rates; (ii) use a different index to adjust the Ocean Base Rates; or (iii) implement new or adjust existing Ocean Base Rates to match the new market reality.
i) All rates, surcharges and fees outside of the Indexed Surcharges shall apply as per Ocean Contract Product General Terms and Conditions, including additional costs for outer ports (OPA/DPA).
j) The Ocean Base Rates and periodic adjustments as per the Index-linked methodology as set out in this Agreement reflect rates for 40-foot standard dry units. Equivalences for containers which are not 40-foot standard dry units may be obtained from us upon request. If Appendix 1 displays the equivalence between 40-foot containers and 20-foot containers, this is valid at the start of the Agreement, yet subject to change without notice and at our sole discretion.
k) If a “trigger” is agreed in Appendix 1 and the Index reaches or exceeds that trigger, the Parties agree to renegotiate the adjustment amount. If the Parties fail to reach agreement on a new adjustment amount within 30 (thirty) calendar days, we will be entitled to either (i) cancel the adjustment, with immediate effect; or (ii) terminate this Agreement.
4.3 Change to the Service
We may, in our sole discretion, discontinue any service for any of the Port Pairs. If we discontinue our services, then we shall be under no obligation to carry any Goods affected by such discontinuance and you shall not be entitled to any Liquidated Damages, LAB Compensation or any other compensation whatsoever. For such time as we discontinue the service, your Volume Nomination for any affected Port Pairs will be reduced to zero and will not count towards any remedy assessed by reference to your Volume Nomination.
5. Making a Booking
5.1 Cut-off Times
a) Bookings must be made within the booking window allowed by us.
b) Ordinarily, and without guarantee, the booking window will be a period between eight and two weeks prior to the estimated time of departure from the load port of the first ocean going vessel intended to carry the relevant Goods.
c) The relevant cut off time 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 to you if a booking is made late based on that information.
d) We are not liable to you for any issues in making a booking through third-party booking platforms. We are not liable to you for any issues in making a booking through our web-booking platform in the event of malware attack or any outage whatsoever.
5.2 Cancellation
a) If you cancel a booking after we have accepted such booking and you have collected Equipment, you will be required to pay detention and demurrage charges at the rates stated in the applicable free time appendix (the “Free Time Appendix”) in respect of each item of Equipment collected, and Free Time will be reduced to zero. Copies of the Free Time Appendix are available from us on request.
b) Any costs actually incurred by us in connection with any cancelled booking or the cancellation shall be payable by you against reasonable evidence of the costs incurred and with the application of a 10% management fee.
6. Equipment
6.1 Our responsibility to provide Equipment
a) We will provide the Equipment indicated in the Booking Confirmation, or a reasonable alternative. You will not be charged for any booking where we are unable to provide Equipment or a reasonable alternative, having previously confirmed that we would do so.
b) Unless otherwise agreed in writing, we are not obliged under this Agreement to provide any special grade containers, including but not limited to reefer, food/dairy, flexitank, open tops, flat racks, scrap-grade containers or any premium containers. If such containers are requested, we may provide them at our sole discretion, and an additional fee will be payable.
c) The Equipment shall be made available to you for pick-up at the Equipment Pick Up Point on the “Release Date” stated in the relevant Booking Confirmation. You may not pick up the Equipment before that “Release Date”.
6.2 Your responsibilities with respect to the Equipment
a) You shall pick up the Equipment at the Equipment Pick Up Point within the applicable dates for collection of Equipment as per the Booking Confirmation.
b) If you fail to pick up the Equipment in accordance with this Agreement or the Booking Confirmation, we reserve the right to cancel any bookings affected without any liability to us.
c) You shall return the Equipment to the Equipment Drop Off Point within the applicable dates for the return of Equipment as per the Booking Confirmation. The Equipment must be returned clean, dry, empty, odorless and free from any stains or damages, save for (i) what has been identified by you and acknowledged by us upon pick up; and (ii) normal wear and tear.
d) You may request an alternative Equipment Drop-Off Point. We may, in our sole discretion and subject to payment of additional charges, collect the Equipment.
7. Remedies
7.1 Your Remedies
a) This Agreement does not set out the Parties’ liability for loss or damage to Goods or other liabilities arising during carriage. The carriage of any Goods booked under this Agreement will be governed by our Terms for Carriage which are available at Terms for Carriage | Maersk Terms (our “Terms for Carriage”). Notwithstanding this clause, nothing in our Terms for Carriage shall in any way restrict us from relying on the full effect of the limitations of liability in this Agreement (including the Ocean Contract Product General Terms and Conditions) in respect of any booking made in connection with this Agreement.
b) Except as provided otherwise in this Agreement, we shall, under no circumstance whatsoever, be liable under this Agreement for: (i) any direct, indirect, consequential, special or punitive damages; or (ii) whether direct or indirect, any: loss of profit or revenue; loss of use; loss of business, goodwill or reputation, delay or any other similar losses whatsoever.
8. Inland Transportation
8.1 Inland Transportation
a) Any request for inland transportation that differs in any way from the inland transportation that we have provided rates for in the Contract Output, will be considered a request for additional transportation services and this Agreement will not apply for such additional inland transportation.
b) You must provide the Inland Documents at the time of making any booking that requires inland transportation.
8.2 Inland Rate Review
a) Inland rates may increase or decrease throughout the Term. Inland rates may be increased or decreased by us to reflect pricing issues related to congestion, premiums, line haul changes based on the condition of the respective inland operating environments, or for any other reasons whatsoever.
b) If there is an Inland Rate Review in accordance with this Agreement, we will provide written notice to you setting out any cost increases.
c) Within 30 (thirty) calendar days of our notice of an Inland Rate Review, the Parties agree to review the proposed increase or decrease to the inland rates. If the Parties do not mutually agree to the proposed changes in the Inland Rate Review, the applicable inland rate as set out in the Tariff shall apply and each Party shall have the right to cancel the affected Inland Corridor(s) on not less than thirty (30) calendar days written notice. This cancellation shall not extend to any ocean carriage under this Agreement.
9. Local Information
Unless otherwise specifically provided for under this Agreement, you are aware of and will comply at all times with the local service delivery rules available at Local Information | International shipping | Maersk.