Maersk Flexible Terms Version 1

1. CARRIER’S TERMS FOR SERVICE AND CARRIAGE

1.1. The Carrier’s Service Contract Terms available at https://terms.maersk.com/service (“Service Contract Terms”) are incorporated herein for non-U.S. trade lanes, the Contract terms apply for U.S. trade lanes and further the Carrier’s terms for carriage available at https://terms.maersk.com/carriage (“Terms for Carriage”) or otherwise obtainable from the Carrier upon request, are incorporated herein by reference and shall apply to all individual shipments carried under these Maersk Flexible Terms v.1 (hereinafter referred to as “Flexible Terms v.1” or “Terms”). The definitions set out in the Terms for Carriage and Service Contract Terms are adopted for these Flexible Terms v.1. The term “Contract” as used herein means the service contract signed between the parties for filing with the Federal Maritime Commission (“FMC”).

In the event of any conflict, the order of precedence shall be as follows:

1. these Flexible Terms v.1 including Contract Output;
2. the Terms for Carriage; and
3. the Service Contract Terms (for non-U.S. trade lanes) and the Contract (for U.S. trade lanes), as applicable.

1.2 The contract output specifies the geographic scope, commodities and rate related information (”Contract Output”) which forms a part of these Flexible Terms v.1 as set out above. Rates appearing in the Contract Output may be subject to surcharge(s) resulting from congestion, emergency risks, government or supranational mandates, capacity or equipment issues or any other cause whatsoever which causes increased expenditure to the Carrier in carrying the cargo.

2. DURATION AND SCOPE

2.1 These Terms shall come into effect on the Commencement Date as provided in the Contract Output or the earliest date permitted by the U.S. Shipping Act and shall expire on the Expiration Date as stated in the Contract Output (the “Term”), unless terminated earlier in accordance with the termination provisions hereunder. The Shipper’s and Carrier’s respective commitments towards the Weekly Volume Commitment (“Weekly Volume Commitment” or “WVC” as defined at Clause 4.1) under these Terms shall only apply within the scope stated in the Contract Output.

2.2 The commitments covered under these Terms shall not apply to any bookings related to refrigerated cargo.

2.3 Carriage of dangerous and/or hazardous Goods shall be subject to Clause 21 of the Terms for Carriage and acceptance thereof shall be subject to Carrier’s sole discretion. The commitments/promises covered under these Terms shall not apply to any bookings of dangerous and/or hazardous Goods unless such shipments are accepted by Carrier for Carriage.

3. SHIPPER'S FORECAST OF VOLUME

3.1 Shipper forecasts shipment of a minimum quantity of Forty Foot Equivalent Units (“FFEs”) during the Term (the “Total Nomination”). The Total Nomination shall be equally divided by the total number of weeks during the Term, resulting in a weekly nomination of shipment Shipper shall tender to Carrier for carriage (”Weekly Volume Nomination”), plus the percentage of any additional weekly volume agreed to in the Contract Output (“Flexibility”).

For purposes of the WVC calculations, the following equivalencies shall apply:

	20’	40’ HC/NOR	45’
Dry	0.5 FFE	1 FFE	1.266 FFE

“HC” means high cube containers.

“NOR” means non-operating reefer containers.

*Example given for purposes of calculating the WVN:

Total Nomination from Shanghai to Rotterdam = 5200 FFEs

Term: 52 Weeks

Weekly Volume Nomination = 100 FFEs (5200/52)

Flexibility = 10% of Weekly Volume Nomination, i.e. 10 FFEs

Weekly Volume Nomination plus Flexibility= 110 FFEs

4. FLEXIBLE COMMITMENTS

4.1 The Flexible commitments prior to the Estimated Date of Departure (“ETD”) are set forth as follows:

	Shipper	Carrier
Greater than (>) seven (7) calendar days prior to the ETD	Weekly Volume Nomination	Weekly Space Allocation
	Weekly Volume Nomination is provided at the time of contracting and is a non-binding indication of the weekly cargo volumes that Shipper may tender for shipment with the Carrier at the contracted rates.	Carrier will provide allocation at the contracted rates agreed for the Weekly Volume Nomination and the Flexibility provided at the time of contracting (“Weekly Space Allocation”).
	The Shipper may book shipments anytime up until seven (7) calendar days in advance of the ETD. The booked volume can be less than the Weekly Volume Nomination or in excess of the WVN, but in any event within the Flexibility offered.
Less than or equal to (≤) seven (7) calendar days prior to the ETD	Volume commitment	Vessel Space commitment
	Any volume booked up until seven (7) calendar days prior to the ETD which is within the Weekly Volume Nomination plus the Flexibility becomes Shipper’s weekly volume commitment (“Weekly Volume Commitment” or “WVC”). Shipper’s failure to meet the WVC is subject to the fees contained in Clause 5.	Carrier shall provide vessel space sufficient to carry the Weekly Volume Commitment, failing which the Compensation Fee set out in Clause 6.1 may apply.
		Carrier shall be free to release the unused Weekly Space Allocation ("Unused Space") in the event: (i) the WVC is less than the Weekly Volume Nomination; or (ii) the booked but not tendered volume is less than the WVC.
Always Space	If Shipper requires any additional space (i) over and above the Weekly Volume Nomination plus the Flexibility; and/or (ii) requires space after release of Unused Space in any week during the Term, then Carrier will exercise reasonable endeavours to accommodate such requests via:
	Maersk.com. as per the rates directly powered by Maersk SPOT; or Always Space option by which Carrier provides additional space for volume(s) not exceeding 20% of the Weekly Volume Nomination in any given week during the Term.
	The applicable floating rates for the Always Space option are published every month by Carrier and, if applicable, are filed with the FMC. Shipper shall be deemed to have accepted such floating rates as published by Carrier by using the Always Space option and booking the cargo for carriage under such option.
	Any volume(s) booked under the Always Space option shall also become a part of the Weekly Volume Commitment and shall be subject to these Terms.

4.2. The weekly calculation stated herein is based on the Proforma Departure Date and not on calendar weeks.

4.3 Freetime terms and conditions under these Terms shall be in accordance with those effective at the time of the Commencement Date and shall be made available to Shipper and/or its affiliates at the time of booking for the Origin/Destination, Container Size/Type and commodity booked.

5. DAMAGES FOR SHIPPER’S NON-PERFORMANCE

5.1 In accordance with the WVC, Shipper agrees to tender the Goods for shipment with the Carrier before the cut-off time(s) as indicated in the booking confirmation.

5.2 Cancellation Fee

Should the Shipper wish to cancel a shipment of a part of or all of the containerised Goods from the WVC at any time after seven (7) calendar days prior to the ETD, then the Shipper shall pay to the Carrier a fee of USD 200 per container that is cancelled (“Cancellation Fee”). The bookings made on the floating rate will only be subject to Cancellation Fee if cancellation is made later than twenty-four (24) hours after booking confirmation.

5.3 No-show Fee

If the Shipper fails to notify the Carrier of a cancellation of a part or all of the containerised Goods in accordance with Clause 5.2 above, or otherwise fails to deliver a part or all of the containerised Goods for shipment from the WVC at any time after seven (7) calendar days prior to the ETD, then the Shipper shall pay a “no-show” fee of USD 200 per container (“No-show Fee”).

5.4 Amendment Fee

If any booking amendment as set out under Schedule I is requested by Shipper any time after seven (7) days prior to the ETD, then such amendment shall be subject to a fee at the rate stated in the Contract Output per container (“Amendment Fee”). The bookings made on the floating rate will only be subject to Amendment Fee if the change(s) are made later than twenty-four (24) hours after booking confirmation.

5.5 Subject to Clause 6.3, in case Carrier fails to make available the equipment agreed and indicated in the booking confirmation or a suitable alternative, the Shipper shall not be liable for any Cancellation and/or No-show Fee.

5.6 Notwithstanding the foregoing, if the failure by the Shipper to properly tender the Goods to Carrier is due to:

1. any Force Majeure event, (the term "Force Majeure" as used herein shall mean any and all events beyond the reasonable control of a party including, without limitation, strikes, work stoppages, lockouts or  circumstances arising from threats thereof; acts of God, states or a public enemy, terrorism or threats thereof, 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); or
2. the unavailability of a vessel or alternative vessel due to blank sailing

then Shipper shall not be liable for the payment of any fee(s) set out in this Clause 5, provided that evidence thereof is demonstrated to the satisfaction of the Carrier.

6. CARRIER’S SERVICE COMMITMENT

6.1 Carrier’s service commitment shall be as set out in the below table:

Scope
Delivery Promise	Standard Delivery Promise	Essential Delivery Promise
	Carrier commits that the vessel arrival time at final discharge port shall be no later than three (3) days after the scheduled Estimated Date of Arrival (“ETA”) as booked and confirmed in the initial booking confirmation.	Carrier commits that the vessel arrival time at final discharge port shall be no later than ten (10) days after the scheduled Estimated Date of Arrival (“ETA”) as booked and confirmed in the initial booking confirmation.
Load as Booked	If a given port pair is not listed here, or the specified Delivery Promise has been disapplied by Carrier, then Carrier agrees to load the tendered volume within the WVC aboard the original first leg ocean going vessel listed in the booking confirmation. If Carrier requires to load the container on an alternative vessel, then Carrier shall load the container aboard an alternative vessel no earlier or later than three (3) days before or after the scheduled ETD as confirmed in the booking confirmation.
Allocation Grouping(s)	The Shipper’s Weekly Volume Commitment and Carrier’s space commitment may be split into allocation grouping(s) as may be separately agreed. Such allocation grouping(s) indicates the geographical distribution of the Weekly Volume Commitment. Shipper acknowledges that the allocation grouping(s) may be impacted by network and/or operational constraints (including but not limited to reduced capacity to or from any port) and may therefore be subject to changes. In such event, Carrier will exercise reasonable endeavours to reallocate the impacted volume to the unaffected port pair(s) from the same or different allocation grouping(s) for the relevant period. In any event and failing feasible alternatives, Carrier reserves the right to reduce the Weekly Volume Commitment equal to the impacted volume for the affected time period without any further liability by either party.
Exceptions	In the event Shipper requests any changes to the confirmed initial booking, the scheduled ETA (Standard/Essential Delivery Promise) or ETD (Load as Booked) in the subsequent revised booking confirmation will apply in those cases. Carrier’s commitment shall automatically extend as per the rescheduled ETA or ETD in such subsequent revised booking confirmation. In the event Carrier initiates any service changes resulting in a revised ETA or ETD, the original scheduled ETA or ETD as confirmed in the initial booking confirmation shall nevertheless apply.
Equipment Availability	Subject to Clause 6.3, Carrier shall provide the equipment indicated in the booking confirmation or a reasonable alternative to the Shipper.
Damages	Subject to the contingencies specified in Clause 6.2, Carrier shall pay USD 200 per container (“Compensation Fee”) for failure to comply with its delivery or loading commitments (as the case may be), as further set forth below. The Carrier shall only be liable for one Compensation Fee in total for the same FFE.

6.2 Notwithstanding the foregoing, the commitments described in Clause 6.1 shall not apply in the following cases:

1. Shipper’s untimely provision or failure to provide documents necessary for the transportation of Goods or incorrect declarations by Shipper;
2. The late gate-in of the Goods;
3. Laden containers which do not comply with weight restrictions or limitations under applicable law e.g., overweight containers) or containers that are damaged by inadequate loading and stowage of the Goods;
4. Any default or breach of these Terms or any other set of terms agreed between the parties, on the part of the Shipper or anyone acting on Shipper’s behalf, which may result or create any hindrance to Carrier’s ability to perform hereunder;
5. Carrier’s inability to perform (in whole or in part), or delay in performance due to a Force Majeure event; or
6. Any omission of a scheduled call at any relevant port affecting the voyage due to operational reasons or any other reason beyond Carrier’s reasonable control or anticipation.

6.3(A) Carrier shall provide Shipper with the equipment indicated in the booking confirmation or a reasonable alternative. Except as expressly agreed in writing between the parties, Carrier is under no obligation to provide:

1. Any special grade containers, including: food/dairy, flexitank, open tops, flat racks and scrap-grade containers;
2. Any equipment from any location other than the default ‘Empty Container Depot’ stated in the booking confirmation; and/or
3. Any equipment on a date earlier than the equipment ‘Release Date’ stated in the booking confirmation.

6.3(B) Some equipment grades are subject to additional charges. By making a booking to include such equipment grades, Shipper agrees to pay the additional amount. Details of those charges can be found at https://www.maersk.com/local-information under the country specific section or by contacting Carrier’s relevant local office.

6.3(C) If the parties have agreed on an equipment pick up/drop off point which is different from the origin/destination locations stated in the booking confirmation, Shipper agrees to pay any additional charges that may apply to that revised pick up/drop off point.

6.3(D) Carrier shall only provide 45’ equivalent units and NORs if it is expressly confirmed in booking confirmation. Carrier reserves the right to substitute 45’ equivalents unit and NORs with 40’ equivalent units and/or 40’HC equivalent units.

7. DAMAGES FOR CARRIER’S NON-PERFORMANCE

7.1 Notwithstanding any separate agreement between Shipper and Carrier, Shipper hereby explicitly agrees and accepts that the Compensation Fee stated under Clause 6.1 above shall constitute its sole and exclusive remedy for Carrier's failure meet its commitments stated under these Flexible Terms.

7.2     Notwithstanding any other provision to the contrary in these Terms or any separate agreement between Shipper and Carrier, Carrier shall in no event be liable whether directly or indirectly to the Shipper for any special, consequential, indirect (including, but not limited to, lost profits, lost sales, 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 damages claimed by the Shipper. The foregoing limitation shall apply regardless of the form of action, whether the damages or other relief sought are based on a theory of breach of warranty, breach of contract, tort (including negligence), strict product liability or any other legal or equitable theory, even if the Carrier has been advised of the possibilities of such damages. The prohibition on the foregoing types of damages shall also apply whether the damages are characterized as "contract damages", "tort damages" or otherwise.

8. REVIEW, INVOICING AND PAYMENT

8.1 The Carrier shall conduct the quarterly review of performance under these Terms and ascertain the liabilities of each party.

8.2 Following the quarterly review, the invoice procedure set forth below shall apply to all invoices generated pursuant to these Terms:

1. Invoices for Cancellation Fee, No-Show Fee and Amendment Fee will be submitted quarterly in arrears by Carrier to Shipper in an agreed format.
2. The invoiced amount would be the result of the total amount of any Cancellation Fee, No-Show Fee and Amendment Fee owed by Shipper, less the amount of any Compensation Fee owed by Carrier.
3. In the event that the amount of any Compensation Fee payable by the Carrier is more than the total amount of any Cancellation Fee, No-Show Fee and Amendment Fee payable by the Shipper during any quarter, the Carrier shall follow a self-billing process and at its sole discretion (i) issue a credit note in the name of the Shipper for the difference in amount; or (ii) if at the request of the Carrier, Shipper has provided its banking details to the Carrier prior to the Commencement Date of these Terms, refund the difference in amount to the designated bank account.
4. Shipper shall not claim any credit from Carrier until the credit note is issued in Shipper’s favor after the quarterly review.
5. A credit note shall not be issued in favor of Shipper and Shipper shall waive its right to any Compensation Fee from Carrier whatsoever if Shipper has overdue invoices outstanding in an amount of more than 10% of the Shipper’s total outstanding invoice amounts.

8.3 If Shipper believes that there is any discrepancy in Carrier’s invoice, Shipper must notify Carrier of such, outlining the basis for contesting the invoice within seven (7) days from the date of the invoice. Any invoices that are not contested in accordance with this provision shall be deemed to be valid and undisputed.

8.4 Shipper shall make its payments for any invoice issued by Carrier pursuant to this Clause on the payment due date indicated on the invoice, or in accordance with the separate credit agreement agreed to between the parties.

8.5 Any and all costs related to tax or any other mandatory charges, fines, penalty, fees, etc. as required by law or regulation shall be borne by the party legally liable to pay for such costs.

8.6 The invoices generated pursuant to section will be issued as per the details mentioned on the invoice. Shipper shall wire transfer the amount invoiced to the bank account stated in the invoice. 

9. FAILURE TO PAY INVOICES

Shipper shall settle all payments in accordance with the credit agreement. In the event that Shipper does not settle any outstanding amounts accordingly, Carrier reserves the right to take any or all of the following actions:

1. Withhold original documents including transport documents and/or cargo until all outstanding amounts due under these Terms, including the costs of collection efforts are settled.
2. Suspend or terminate the provision of credit privileges and/or immediately withdraw from or terminate any and all agreements existing with Shipper including but not limited to these Terms and also cancel all negotiations with Shipper without any consequence.
3. Suspend or terminate any special benefit and/or privilege whatsoever provided to the Shipper under these Terms and/or any other agreement with the Carrier or with any company or other entity within the A.P. Moller Maersk Group.
4. Exercise any applicable right of lien over any cargo and discontinue any services.
5. Upon notice, assess a fixed charge and/or interest permissible under applicable law on the outstanding overdue amounts.
6. Commence collections proceedings to recover all amounts due and owing to Carrier. Any expenses and fees incurred in collection efforts shall be recoverable from Shipper.

10. SCHEDULE/SERVICE PATTERN CHANGES

The provision of the services from or to the origins/destinations set forth in the Contract Output and/or here is subject to changes in Carrier's schedules and service patterns. Should Carrier for any reason discontinue service to/from any origin/destination referenced in the Contract Output and/or here, it shall not be required to continue to carry the cargo, whether within the WVC or not, from or to such origin/destination. In such event, Shipper and Carrier shall negotiate in good faith regarding an amendment to these Terms reflecting the change in service. If the parties are unable to reach agreement on such amendment within thirty (30) days from such service change, then either party shall have the right to cancel, upon written notice to the other, the part of these Terms relating to the specific origin/destination which is affected by the service change.

11. EMISSIONS REGULATION CLAUSE

11.1 Shipper accepts and acknowledges that during the Term the Carrier may 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 Carrier emissions, or any other regulation whatsoever relating to decarbonisation or any other environmental concern (each an “Emissions Regulation”).

11.2 Shipper accepts and acknowledges that an Emissions Regulations may arise in any jurisdiction in which Carrier performs activities with any of its customers and that an Emissions Regulation may not yet be envisaged, implemented or in full force and effect as of the date of agreeing to these Terms. Specifically and without limitation, you agree that each of the following will be considered to be an Emissions Regulation under these Terms:

11.2.1  Amendments to MARPOL Annex VI, introducing an Energy Efficiency Design Index for existing ships (EEXI) and Carbon Intensity Indicator (CII), anticipated to enter force in 2022 and 2023, respectively, and known in the industry as “the IMO 2023 regulations”;

11.2.2  The expansion of the European Union Emissions Trading System (ETS) to include the shipping industry, and to be phased in beginning in the year 2024; and

11.2.3  The FuelEU Maritime Initiative, which is proposed to be phased in beginning in the year 2025.

11.3 Where Carrier is subject to one or more Emissions Regulation(s), Shipper shall pay to Carrier an amount assessed by the Carrier in the Carrier's sole discretion as being the Carrier's business cost of complying with that or with those Emissions Regulation(s) in performing these Terms.

12. TERMINATION

12.1 After carriage of at least 1 FFE, these Terms, the Contract Output and the Contract (for U.S. trade lanes) may be terminated at any time during the Term by mutual agreement in writing between the parties. Save and except that, in case either 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 enters into an arrangement with its creditors or takes or suffers similar action the other party may terminate these Terms and the Contract (for U.S. trade lanes) with notice immediately.

12.2 In the event of termination, the accrued rights and liabilities of the parties as at termination and the continuation of any provision surviving termination, shall not be affected.

13. ENTIRE AGREEMENT

Notwithstanding anything herein to the contrary, these Terms, including the Contract Output, Carrier’s Terms for Carriage and the Tariff together constitute the entire agreement and understanding between the parties pertaining to the subject matter contained in these Terms, and these Terms supersede all prior agreements, representations, and understandings of the parties pertaining to the subject matter. It is agreed by the parties that, the Carrier reserves the right to update, revise and change these Terms for non-U.S. trade lanes by way of public notice or any other way informing the Shipper. Any update, revision and change to these Terms for U.S. trade lanes shall be subject to mutual agreement and effective once filed with the FMC.

14. WAIVER

Any failure by either party in exercising any right, power or privilege under these Terms and/or the Contract shall not constitute a waiver, nor shall any single or partial exercise preclude any further exercise of any such right, power or privilege.

15. LAW AND JURISDICTION

For shipments to or from the U.S., any dispute relating to the Contract (for U.S. trade lanes) and these Terms shall be subject to the U.S. Shipping Act of 1984, as amended, and shall otherwise be construed and governed 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, except for the choice of law rules of either. The United States District Court for the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, Flexible Terms shall be governed by and construed in accordance with English law and any dispute arising shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association Terms current at the time of commencement of arbitration proceedings.

SCHEDULE 1: BOOKING CANCELLATION AND AMENDMENT DETAILS

Sr. No.	Booking Amendment/Cancellation	Description	Fee Details
1	Cancellation	If the Shipper wishes to cancel shipment of part of or all the goods (except by combining bookings without impacting on the FEE volume originally booked) after the booking confirmation has been issued.	Cancellation Fee applies.
2	No-show (part or all)	If the Shipper fails to notify the Carrier of cancellation of part or all goods in accordance with Clause 5 or fails to deliver part or all of the goods for shipment.	No-show Fee applies.
3	Change of Destination (COD) Pre-gate in	Shipper requests to amend the destination/delivery before a container is gated in at the port of origin	Subject to repricing for ocean and inland. Amendment Fee applies.
4	Change of Destination (COD) Post-gate in	Shipper requests to amend the destination/delivery after a container is gated in at the port of origin	Subject to repricing. COD Fee applies. DIT follows COD on water process.
5	Change of Origin (COO)	Shipper requests change of origin to an origin stated at the time of contracting.	Subject to repricing for ocean and inland. Amendment Fee applies.
6	Change of Vessel (COV)	Shipper requests to change shipment to a different vessel/voyage than the one on the original booking confirmation.	Subject to repricing.  Amendment Fee applies. DIT follows COD on water process
7	Equipment amendment	Shipper requests change to equipment size/type	Subject to repricing of the amended equipment. Amendment Fee applies.
8	Equipment addition or amendment resulting in booking total FFE unchanged, or increasing	Shipper requests to add same size/type equipment, or to change equipment size/type which as a result doesn’t change, or increases the booking total FFE	Subject to repricing of the amended and/or added equipment.