Maersk Flexible Terms Version 2
1. 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 the legally binding agreement entered into by the parties as well as any other terms incorporated by reference.
Agreement Year – Agreement Year means each twelve (12) month period starting from the Effective Date or from each anniversary of the Effective Date.
Allocation Week – Each week during the Term is an Allocation Week.
Always Space Rates – Always Space Rates are the rates that will apply to cargoes that are not covered by our Service Commitment and cargoes that you seek to book under the Always Space Clause of this Agreement. Always Space Rates will be updated monthly and be valid for one month from the date of receipt of such Always Space Rates by you.
Booking Confirmation – The Booking Confirmation is a document sent by us confirming the details of a booking made under your Agreement with us.
Calendar Quarter – Calendar Quarter means a period of 3 consecutive months ending on the last day of March, June, September, or December respectively. Calendar Quarter as used in this Agreement includes any Part Calendar Quarter.
Cancellation Fee – A Cancellation Fee is a USD amount, agreed between the parties and available upon request, payable per container cancelled in accordance with the “Cancelled Volume” Clause. A Cancellation Fee may also be referred to as an “Amendment Fee” or a “No Show Fee” depending on the circumstances in which the fee is payable.
Cancelled Volume – Cancelled Volume is defined in the “Cancelled Volume” Clause of this Agreement.
Carrier – A Carrier is a party that is responsible for the physical carriage of any goods booked under this Agreement.
Charges – Charges are any and all freight, costs, fees, expenses, commissions, duties, penalties, compensation, surcharges, charges, 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 of this Agreement; (c) the parties’ Affiliates; (d) any applicable payment terms; (e) the agreed space allocation; (f) the Ocean Base Rates; (g) inland rates; (h) the rate review mechanisms; (i) the Port Pairs; (j) the Free Time; (k) the Liquidated Damages Rate and (l) the Bunker Adjustment Factor terms.
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.
Equipment – Equipment refers to a container or containers. The defined term “Equipment” does not include any extra equipment beyond the container itself.
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.
Flexibility – The Flexibility is a percentage amount by which you may adjust your Weekly Volume Nomination from week to week.
Free Time – The Free Time is a period during which you will not be liable to pay us detention and demurrage Charges. 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 any Equipment not provided by us, 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.
Inland Corridor – An Inland Corridor is an inland route between an ocean terminal and an inland location, or between two inland locations.
Inland Documents – The 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 will not be 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. We may request additional documents for inland transportation (in our reasonable discretion) and any such documents shall be Inland Documents.
Inland Rate Review – An Inland Rate Review is an adjustment to the prevailing rates for inland transport in an Inland Corridor.
Liquidated Damages – Liquidated Damages are an amount payable by a party in respect of certain breaches, which the parties have agreed is a genuine pre-estimate of the loss suffered by a party’s failure to perform the underlying obligation.
Liquidated Damages Rate – The Liquidated Damages Rate is a USD amount, against which Liquidated Damages are calculated on a per FFE basis. The Liquidated Damages Rate is contained in the Contract Output.
Minimum Quantity Commitment (“MQC”) – The Minimum Quantity Commitment is a minimum volume of cargo that you have committed to tendering during a part of the Term, as set out in this Agreement. Failure to tender the MQC shall in most cases give rise to a payment obligation in the form of Liquidated Damages, subject in each case to the terms of your Agreement with us.
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.
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.
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.
Part Agreement Year – A Part Agreement Year is a period smaller than an Agreement Year, and which is the duration between the Effective Date and the end of the first Agreement Year, or between the start of the last Agreement Year in the Term and the end of the Term.
Part Calendar Quarter – A Part Calendar Quarter is a period smaller than a Calendar Quarter, and which is the duration between the Effective Date and the end of the first Calendar Quarter, or between the start of the last Calendar Quarter in the Term and the end of the Term.
Port Pair – A Port Pair is a load port and a discharge port, between which we may have agreed to carry certain cargoes under your Agreement with us for a specified rate.
Review Period – A Review Period may be a period of one Calendar Quarter, or one Agreement Year depending on the agreed MQC compliance cycle. For any Part Calendar Quarter or Part Agreement Year, the Review Period will be that Part Calendar Quarter or Part Agreement Year, as applicable.
Service Change – A Service Change is a change to our schedule or service patterns, by which we amend, cancel, disrupt, discontinue or otherwise change our schedule or service patterns for any reason whatsoever.
Service Commitment – The Service Commitment is defined in “The Basics” Clause of this Agreement.
Tariff – The Tariff sets out our tariff rates for all Port Pairs and is available on request. The Tariff is particularised in the Incorporation of Tariff Clause of this Agreement. By entering into this Agreement you confirm that you are aware of the existence of, and how to access, the Tariff and our tariff rates.
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 volume of cargo, measured in FFE, that you intend to tender for carriage during the Term.
Transport Document – A Transport Document is the bill of lading or sea waybill, as the case may be, issued by us, any of our affiliates, or any Carrier.
Weekly Volume Commitment (“WVC”) – The Weekly Volume Commitment is an amount of cargo, measured in FFE, that you are committed to tendering for carriage. Subject always to the terms of your Agreement with us, you may be liable for a failure to tender for carriage the Weekly Volume Commitment to us from week to week.
Weekly Volume Nomination (“WVN”) –The Weekly Volume Nomination is an amount that you have indicated that you intend for us to carry each Allocation Week during the Term.
References to “you” or “your” are references to the shipper. References to “we” or “our” are references to the carrier.
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 agree to provide the services set out in the Contract Output.
c. This Agreement does not set out the parties’ liability for loss or damage to Goods or other liabilities arising during carriage. 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.
d. Capitalised terms in this Agreement have the meaning given to them in the Definitions section in this Agreement.
e. This Agreement and the other provisions incorporated by this Agreement shall prevail over any terms and conditions that are included in any booking sent by you, or in any other communication sent by you in the formation of the Contract Output, this Agreement or any booking made pursuant to the Contract Output and this Agreement.
f. 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 and the terms in the Contract Output.
3. Your responsibilities
3.1 The Basics
a. We have agreed the Total Nomination based on the minimum quantity of cargo that you intend to tender for shipment across the Term.
b. The Total Nomination is divided equally by the number of Allocation Weeks in the Term to give your “Weekly Volume Nomination”. The Weekly Volume Nomination is an indication of the amount of cargo that you may tender for carriage in each Allocation Week at the rates stated in the Contract Output. You may book an amount of cargo each week up to the Weekly Volume Nomination as increased by the Flexibility.
c. You agree to tender the Minimum Quantity Commitment. The Contract Output will confirm whether you have agreed a Quarterly or Annual compliance cycle for your Minimum Quantity Commitment:
Quarterly Compliance Cycle | Annual Compliance Cycle |
Each Calendar Quarter is a Review Period under this Agreement. Your Minimum Quantity Commitment for any Review Period is the cumulative Weekly Volume Nomination during that Review Period. You must tender the Minimum Quantity Commitment in each Review Period. |
Each Agreement Year is a Review Period under this Agreement. Your Minimum Quantity Commitment for any Review Period is the cumulative Weekly Volume Nomination during that Review Period. You must tender the Minimum Quantity Commitment in each Review Period. |
d. Details of your allocation are available at https://www.maersk.com/allocations.
e. For the purposes of volume calculations, the following equivalences apply:
Container Type | 20 | 40 HC / NOR / ’45 |
Equivalency | 0.5 FFE | 1 FFE |
In this table, HC means high cube container, and NOR means non-operating reefer container.
f. If you book cargo within your Weekly Volume Nomination as adjusted by the Flexibility more than seven days in advance of the Estimated Time of Departure (the “ETD”) for the vessel onto which you are seeking to book such cargoes, then the following service commitment will apply (our “Service Commitment”):
i. We will provide you with space and Equipment for your cargo on our “Load as Booked” promise (subject to this Agreement); and
ii. We will charge you the rates in the Contract Output for the carriage of your cargo.
Any such volume becomes your “Weekly Volume Commitment”.
g. If you book your cargo seven days or less in advance of the ETD for the vessel onto which you are seeking to book such cargoes, then:
i. We do not guarantee to accept your cargo or provide any load promise; and
ii. We will charge you our Always Space Rates for any booking.
h. The Weekly Volume Commitment may be less than the Weekly Volume Nomination, and cannot be greater than the Weekly Volume Nomination as adjusted by the Flexibility.
3.2 Volume Commitments
a. You are required to tender the Weekly Volume Commitment for carriage during each Allocation Week.
b. You are required to tender the Minimum Quantity Commitment in each Review Period.
c. The Minimum Quantity Commitment and Weekly Volume Commitment are not cumulative. Any cargo properly tendered will count towards both the relevant Weekly Volume Commitment and Minimum Quantity Commitment.
d. If you fail to tender the Minimum Quantity Commitment in any Review Period, you will be liable to pay us Liquidated Damages.
3.3 Requirement for Additional Space (Always Space)
If you require additional vessel capacity in excess of the Weekly Volume Nomination plus the Flexibility then we may, in our discretion, offer you such space at the Always Space Rates. Any such space shall not count towards your compliance with any MQC.
3.4 Making a Booking
a. Bookings may be made under this Agreement from eight weeks prior to ETD of the intended vessel from the port of loading.
b. All cargoes booked and properly tendered within the Weekly Volume Nomination as adjusted by the Flexibility will count towards your compliance with your MQC.
c. You must deliver the Goods in our custody for shipment before the cut-off times(s) indicated in the Booking Confirmation.
d. 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. 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.
3.5 Cancelled Volume
a. If you cancel or amend any booking within seven calendar days of the ETD stated in the Booking Confirmation, or if you otherwise fail to tender some or all of the cargo under any booking, the number of containers cancelled, amended or not tendered will be a Cancelled Volume.
b. You will be liable to pay us a Cancellation Fee for any Cancelled Volume. Where the cargo is amended or not tendered, the Cancellation Fee may be represented as an “Amendment Fee” or a “No Show Fee” respectively.
c. If you cancel a booking after you have collected some or all of the Equipment relating to that booking, you will be required to pay detention and demurrage charges in the amount stated in the Contract Output in respect of each item of Equipment collected. No Free Time will be applicable to any such bookings, and detention or demurrage (or both, as applicable) shall be calculated from the time of the Equipment pick-up, until the time when the Equipment is returned.
4. Our responsibilities
4.1 Load as Booked
a. For any bookings made more than seven days prior to the ETD (and always within your Weekly Volume Nomination as adjusted by the Flexibility for that Allocation Week), we will carry such cargo subject to our load as booked promise (“Load as Booked”).
b. Under Load as Booked, we may, in our discretion, load the cargo on an alternative vessel, provided that the alternative vessel departs not earlier or later than three days before or after the scheduled ETD (as applicable) as confirmed in the final Booking Confirmation.
c. We will bear no responsibility for refusing to accept a booking or to load cargo if any of the following apply (each an “Extenuating Circumstance”):
i. The late or non-provision of documents or any incorrect declarations by you;
ii. The late gate-in of the Goods;
iii. The containerised Goods being not in compliance with measurement restrictions, including weight restrictions or limitations;
iv. Any default or breach of this Agreement or any other set of terms agreed between us, on your part or anyone acting on your behalf, which may result in or create any hindrance to the compliance with our commitment;
v. any event beyond our reasonable control, which causes or results in us being unable to perform (in whole or in part) or being delayed in performing any of our delivery promises, including, but not limited to, 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; or
vi. any omission of a scheduled call at any relevant port affecting the voyage due to operational reasons or any other reason beyond our reasonable control or anticipation.
d. Your sole and exclusive remedy for our failure to fulfil Load as Booked, is that this will be treated as a failure to fulfil our Service Commitment and Liquidated Damages may be payable in accordance with the terms of this Agreement .
4.2 Origin-Destination Groups
a. Your Total Nomination and our Service Commitment may be split by us into Origin-Destination Groups. This will often be on a ‘route code’ basis.
b. We may, in our sole discretion and including but not limited to where there is a blank sailing, offer you to reallocate a portion of your Total Nomination from one Port Pair to a different Port Pair, provided that the new Port Pair is a part of the same Origin-Destination Group as the original Port Pair. If we do so we will be under no obligation to carry any cargoes provided for by this Agreement between the original Port Pair and will not be liable in any other way whatsoever for cancelling any bookings where such an alternative is offered .
c. The provision of availability between Port Pairs and provision of Origin-Destination Groups 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 change. In such cases, the parties shall seek to agree to reallocate the impacted volumes to an unaffected Port Pair(s) within the same or different Origin-Destination Group for the relevant period. In any event and failing feasible alternatives, we reserve the right to reduce the Total Nomination in an amount equal to the impacted volume for the affected time period without any further liability for damages from either party.
d. The carriage of any volumes reallocated pursuant to this Origin-Destination Group Clause is subject to the rates stated in the Contract Output.
4.3 Schedule / Service Pattern Changes
a. Our provision of the services to or from the origins/destinations set out in this Agreement is subject to any Service Change. If there is a Service Change, we will not be required to continue to carry your Goods under this Agreement, whether within the Minimum Quantity Commitment or not, from or to that origin/destination.
b. If there is a Service Change, the parties will negotiate in good faith to agree an amendment to this Agreement reflecting the Service Change. If the parties are unable to reach agreement on an amendment within thirty (30) days from the Service Change, then either party shall have the right to cancel, by written notice, the part of this Agreement relating to the route code / trade affected by the Service Change.
5. Equipment
5.1 Our Responsibility to Provide Equipment
a. We shall provide you with the Equipment indicated in the Booking Confirmation or a reasonable alternative, subject to the following:
b. Save for as expressly agreed in writing between the parties, we are under no obligation to provide:
i. any special grade containers, including: food/dairy, flexitank, Open Tops, Flat Racks and scrap-grade containers;
ii. any Equipment from any location other than the default ‘Empty Container Depot’ stated in the Booking Confirmation; and / or
iii. any Equipment on a date earlier than the Equipment ‘Release Date’ stated in the Booking Confirmation.
c. Some Equipment grades are subject to additional charges. By making a booking to include such Equipment grades, you agree to pay the additional amount. Details of those charges can be found at https://www.maersk.com/local-information under country specific section or by contacting our relevant local office.
d. 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, you agree to pay any additional charges that may apply to that revised Pick Up/ Drop Off Point.
e. We only commit to providing 45’ equivalent units and non-operating reefer containers (NORs) if it is expressly confirmed in the Booking Confirmation. We reserve the right to substitute 45’ equivalent units and NORs with FFE and/or 40’HC equivalent units.
f. Your sole and exclusive remedy for our failure to provide the Equipment indicated in the Booking Confirmation or a reasonable alternative, is that this will be treated as a failure to fulfil our Service Commitment and Liquidated Damages may be payable in accordance with the terms of this Agreement.
5.2 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 indicated in the Booking Confirmation.
b. You shall return the Equipment to the Equipment Drop Off Point within the applicable dates for collection of Equipment indicated in the Booking Confirmation.
c. You may nominate an Equipment Drop Off point of your choice, from which we will collect the Equipment if agreed in our sole discretion and an additional fee may be payable.
d. If you fail to pick up the Equipment in accordance with this Equipment Clause, we reserve the right to cancel any bookings affected by such failure on your part. Any such cancellations shall not count towards your Minimum Quantity Commitment.
6. Remedies
6.1 Your Remedies – Liquidated Damages
a. If we fail to meet the Service Commitment for volumes that you properly seek to book, we will be liable to pay you Liquidated Damages at the Liquidated Damages Rate multiplied by:
i. the amount of cargo (measured in FFE) for which we fail to provide the Service Commitment or the Equipment as per the Equipment Clause; LESS
ii. the amount of cargo (measured in FFE) that we have accepted and carried under this Agreement under the “Requirement for Additional Space” clause.
b. The payment of Liquidated Damages shall be your sole remedy for our failure to provide the Service Commitment. We shall not be liable to you for any other remedy whatsoever, including but not limited to direct or indirect damages.
c. We shall not be liable to pay Liquidated Damages if our failure to provide the Service Commitment is due to a Force Majeure Event or a blank sailing.
6.2 Our Remedies – Liquidated Damages
a. You will be liable to pay Cancellation Fees on cancelled bookings within your Weekly Volume Commitment as set out in this Agreement.
b. We will review your Tendered Volumes at the end of each Review Period. Liquidated Damages will be payable per FFE on the FFE number of:
i. Ninety percent (90%) of the Minimum Quantity Commitment for the Review Period; LESS
ii. The number of FFEs properly tendered for carriage during the Review Period, provided always that such cargoes fall within the Weekly Volume Nomination as adjusted by the Flexibility (the “Tendered Volume”).
By way of example for guidance purposes only, we set out the following hypothetical situation:
The Minimum Quantity Commitment is 1,000 FFE;
90% of 1,000 FFEs equals 900 FFE; and
The Tendered Volume is 600 FFE.
In this example, Liquidated Damages will be charged on the difference between 90% of the MQC (900FFE) and the Tendered Volume (600FFE), being 300FFE.
c. To the extent that your failure to tender the Minimum Quantity Commitment or Weekly Volume Commitment, whichever is applicable, is due to:
i. any and all events beyond the reasonable control of a party 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 formal or informal) or any similar disruptions or interference with trade, marine disaster, fire or any other casualty (each a “Force Majeure Event”); or
ii. the unavailability of a vessel due to a blank sailing,
you shall not be liable to pay us Liquidated Damages.
7. Inland Transportation
7.1 Inland Transportation
a. Any request for inland transportation that differs in any way from the inland transportation that we have provided rates for as set out in the Contract Output will be considered a request for additional transportation services and this Agreement will not apply.
b. You must provide the Inland Documents at the time of making any booking that requires inland transportation.
7.2 Inland Rate Review
a. Inland rates may increase or decrease throughout the Term. Inland rates may be increased or decreased to reflect pricing issues related to congestion premiums or line haul changes based on the condition of the respective inland operating environments or for any other reasons whatsoever. If there is an increase or decrease in inland rates for any Inland Corridor appliable to this Agreement, we will provide written notice to you setting out any cost increases (an “Inland Rate Review”).
b. Within thirty (30) calendar days 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 Tariff Inland Rate shall apply and each party shall have the right to cancel the affected Inland Corridor(s) on not less than 30 days written notice. This cancellation shall not extend to any ocean carriage under this Agreement.
8. Review, Invoicing and Payment
8.1 Reconciliation of Liquidated Damages
a. At the end of each Review Period, we will calculate each party’s liability for any Liquidated Damages due under this Agreement.
b. We will send you invoices for any Liquidated Damages due to us within a reasonable time after each review, or at such intervals as we may determine in our sole discretion.
c. We will follow a self-billing process for any Liquidated Damages due to you under this Agreement. This self-billing process shall involve either, in our sole discretion:
i. us offsetting against any Liquidated Damages due to us an equivalent amount of Liquidated Damages due to you;
ii. us issuing a credit note in your name for the amount of Liquidated Damages due to you; and / or
iii. us refunding any amounts due to you, provided that:
1. You have provided your bank account details to us in accordance with our request, prior to the date on which this Agreement was entered into; and
2. The amount of Liquidated Damages due to you exceeds the amount of Liquidated Damages due to us.
d. Even if you would otherwise be entitled to Liquidated Damages, no credit note will be issued to you and no refund shall be processed if:
i. You owe us an amount of freight, Liquidated Damages, or any other amount (whether under this Agreement or any other agreement); and
ii. That amount is overdue; and
iii. The total overdue amount is more than 10% of the total aggregate invoiced amount payable by you to us under all of your agreements with us.
9. Suspension of Performance in case of a Force Majeure Event
a. If a Force Majeure Event occurs during the Term, we may suspend the provision of services to you under this Agreement, including the fulfilment of our Service Commitment, for the duration of and to the extent of any such Force Majeure Event.
b. If your MQC for a specific Port Pair is affected by a Force Majeure Event, that MQC will be reduced by a percentage equal to the (i) duration of the Force Majeure Event in calendar days divided by (ii) the duration of the Term in calendar days.
c. The occurrence of a Force Majeure Event is without prejudice to your obligations with respect to any MQC and payment of any Charges due under this Agreement, save for as provided by this Clause.