1. Merchant / Carrier Definition
This Service Contract "Spot FMC Contract" is made by and between (1) Maersk Agency U.S.A., Inc. as agent for Maersk A/S dba Maersk (hereinafter "Carrier") and (2) the party(ies) identified on the Spot FMC Contract (hereinafter "Merchant")
2.1 This Spot FMC Contract becomes effective upon issuance of booking confirmation following Merchant’s online acceptance.
2.2 This Spot FMC Contract expires when Carrier delivers the last container as outlined in the booking request; if Merchant terminates the booking or does not tender cargo (subject to payment of fees as described herein); or as otherwise expressly set forth herein.
3. Application of Spot FMC terms
3.1 These terms set out the additional conditions, including a mutual two-way commitment on part of Merchant and Carrier, which apply to any booking subject to the Maersk fixed spot rate on a regulated FMC trade (“Spot FMC Terms”).
3.2 Notwithstanding the subsequent issuance by us of any bill of lading (whether or not negotiable), waybill or similar transport document (whether issued in paper or electronic form) and any pre-printed portions thereof, the Spot FMC Terms shall apply and be deemed incorporated to the terms for carriage “Terms for Carriage” and the Spot FMC Terms shall to the extent required, logically amend, vary and supplement the Terms for Carriage, but the validity and enforceability of the other provisions of the Terms for Carriage shall remain in full force and not be effected.
3.3 By placing a booking, on any Maersk online booking platform or any approved third party platforms and irrespective of whether the booking is placed through an agent or not, the Merchant acknowledges, confirms and accept to be bound by these Spot Terms which are available at: https://terms.maersk.com/terms-spot-booking-fmc. The Terms for Carriage can be found at: https://terms.maersk.com/carriage.
3.4 It is a condition of any booking under the Spot FMC Terms that you agree and accept that you will be deemed a “Merchant” as defined in the Terms for Carriage and as such will be responsible for all the obligations and liabilities of the Merchant, whether disclosed or not. Any subsequent nomination of a shipper or other party in relation to the booking shall be subject to our discretionary acceptance. In nominating a shipper or other party in relation to the booking you warrant that you have authority to legally bind the nominated shipper or other party relating to the booking, as applicable, and, should that not be the case, you will assume full liability and shall indemnify us for any and all loss suffered or cost incurred as a consequence of the absence of such authority.
3.5 The definitions in the Terms for Carriage are adopted and shall have the same meaning in the Spot FMC Terms where used, unless otherwise specified.
3.6 Please note that the Carrier may update, revise and change these Spot FMC Terms at any time without prior notice to the Merchant.
4. Rates and charges
4.1 After submitting a booking request and receiving a booking confirmation (“Booking Confirmation”) for a spot booking via our online booking systems or through any third-party platforms approved by the Carrier the rates provided in the Booking Confirmation shall not be subject to change, other than as set out below. Rates offered through our online platforms may differ compared to rates for the same type of trade offered through other sales channels, such as an offline tariff rate which is likely to involve a salesperson analysing the Merchant's request and the availability of space, before tailoring the rate accordingly.
4.2 The rates provided in the Booking Confirmation are conditional upon on the Merchant uploading shipping instructions to Maersk in accordance with the instructions set out in the Booking Confirmation. If the shipping instructions are not submitted in time or submitted in any other manner, Maersk reserves the right to charge the Merchant additional or different charges to those provided in the Booking Confirmation.
FMC filing – No prior gate-in
4.3 In addition, it is a regulatory requirement to file a signed copy of this Spot FMC Contract with the FMC. The containerised Goods must not be gated in prior to receiving a filing confirmation from Carrier. In the event that the filing does not take place or validation or the FMC filling requirements are otherwise not met for whatever reason the Carrier reserves the right to terminate the booking notwithstanding any issuance of Booking Confirmation. Price calculation
4.4 The rates quoted and provided in the Booking Confirmation are calculated based on the rates, charges, surcharges, fees, adjustment factors (including local ones), rules, exceptions, exclusions and exchange rates applicable to the requested services pursuant to the Carrier’s applicable Tariff at the time of booking. The rates will be calculated at the time the Merchant receives the Booking Confirmation. Where in the Booking Confirmation: (i) a rate is reflected in a currency other than USD, and/or (ii) a fee, charge or other amount is reflected in a currency other than the currency it is charged in (i.e. local currency), the Merchant accepts that the amount invoiced may vary due to currency fluctuations. Please note that emergency surcharges and fees for any additional services requested after a booking request has been made may apply. Notwithstanding the foregoing any shipments gated-in prior to Merchant’s receipt of FMC filing confirmation shall be subject to Tariff pricing. The term "Tariffs" means Maersk A/S Transport Document Publication Tariff, Regulated Contract Essential Terms Tariff and any other tariffs (including freight rate increases applicable to the movement of any commodities, charges, surcharges, rules, obligations, indemnities, regulations, arbitraries/additionals or terms in the Tariffs published by Carrier and applicable to the carriage of cargo in the trades covered by this Spot FMC Contract), provided that this Spot FMC Contract shall not be subject to the general rate increases published in the Tariffs. The full texts, including subsequent modifications of such Tariffs, are published at www.maersk.com.
4.5 Inland rates are quoted on the basis of the net cargo weight as provided and indicated by Merchant in the booking request. In the event the actual net cargo weight is different from the indicated net cargo weight then we reserve the right to change the price. We also reserve the right to decline such booking notwithstanding any issuance of Booking Confirmation, transport documents or receipt of the Goods, if the cargo weight may exceed any regulatory or other restrictions in any applicable country location.
5.1 Whilst the Booking Confirmation provides indication of the supply, release and pickup of equipment and containers the availability thereof does not apply for:
- Special grade containers, including but not limited to: food/dairy, flexitank and scrap-grade containers;
- Equipment picked up at a different location from the default ‘Empty Container Depot’ stated in the Booking Confirmation; and / or
- Equipment picked up on a date earlier than the equipment ‘Release Date’ stated in the Booking Confirmation.
5.2 Some equipment grades shall also be subject to additional charges, details of which can be found on https://www.maersk.com/local-information under country specific local information or by contacting the relevant local Maersk office.
5.3 Additional charges may apply if the location for equipment pick up / drop off requested by the Merchant is different from the origin/destination locations stated in the Booking Confirmation.
6. Detention and Demurrage
6.1 Applicable detention, demurrage, free time and per diem rates depend on the import and export locations. The applicable detention, demurrage, free time and per diem rates for spot bookings are displayed and presented at the time of placing the booking and these shall apply, replace and supersede any separately agreed detention, demurrage, free time and per diem rates. All other terms shall be as per the Terms for Carriage and the Detention and Demurrage terms available at: https://terms.maersk.com/dnd
7.1 Please note that some countries may follow different payment terms for certain charges and the Merchant should refer to the local country website https://www.maersk.com/local-information/ for detailed information on exceptional payment terms which may apply.
Unless otherwise indicated within this Spot FMC Contract, rates set forth in this Spot FMC Contract do not apply to:
8.1 Any cargo being moved pursuant to an US government-related program, which includes but is not limited to US Military, USAID, International Department of Development, US State Department, US Department of Agriculture, US Government Household Goods and US Foreign Military Sales cargo.
8.2 Project Cargo which is construction, building, manufacturing materials or supplies or any other materials for a Government-impelled named project.
8.3 Any cargo that must be carried on an US Flagged vessel as required by Cargo Preference Laws.
9. Supporting Shipment Records
9.1 Carrier's bills of lading/manifest Data and Electronic Data Processing reports, the records of the electronic signatures, files available on Carrier’s platforms, the Merchant's statements of cargo shipped under this Spot FMC Contract, and written communications issued by Carrier regarding such statements shall constitute the records supporting performance under this Spot FMC Contract. The address, telephone number and title of the Carrier representative who will respond to request under 46 CFR, 530.15 is provided under the Section titled "Written Notice".
10. Merchant Commitment
10.1 For any CY or SD booking the commitment on part of Merchant is to deliver the containerised Goods for shipment by the Carrier before the cut-off time(s) as indicated in the Booking Confirmation, subject to the conditions of these Spot FMC Terms.
10.2 If the Merchant wishes to cancel shipment of part of or all the containerised Goods set out in the booking (except by combining bookings without impacting on the TEU volume originally booked) after the Booking Confirmation has been issued, then a cancellation notice must be provided by the Merchant to the Carrier no less than seven (7) days before the scheduled estimated time of departure (“ETD”) and the Merchant shall also pay the Carrier a fee per container cancelled (“Cancellation Fee”).
10.3 If the Merchant fails to notify the Carrier of cancellation of part or all containerised Goods in accordance with clause 10.2 above or fails to deliver part or all of the containerised Goods for shipment, then the Merchant shall instead pay a no-show fee (“No-show Fee”) which is charged per container.
10.4 Notwithstanding the foregoing, if the failure by the Merchant to deliver the Goods is due to:
(i) Force Majeure; or
(ii)late gate-in and/or late release of the Goods arising from customs inspections delay,
then the fees set out in this clause 10 (whichever is applicable), shall not be payable provided the Merchant provides evidence thereof to the satisfaction of the Carrier.
“Force Majeure “ means any circumstances beyond the reasonable control of a Party which, by the exercise of due diligence, such Party is unable to provide against, such as but not limited to war (whether declared or not), warlike or belligerent acts or operations, hostilities or the imminence thereof, act of public enemies, terrorism or terrorist acts, restraint of princes, rulers or people, compliance with any compulsorily applicable law or governmental directive, boycott against flag, political ban, epidemic, port congestion which is reasonably anticipated to incur delay of 48 hours or more, act of God, strikes, lockouts, labor disputes, stoppages or unrest (whether or not involving the employees of the affected Party), accidents, invasion, rebellion or sabotage, train wagon disconnected, train cancelled by rail company, full inland terminal/port and unloading of train delayed, lack of labour to unload the train, or any other events whatsoever beyond the reasonable control of the affected Party
11. Carrier Commitment
Carrier’s commitment is to load and ship the containerised Goods as provided in the Booking Confirmation, subject to the conditions of these Spot FMC Terms. The booking cancellation details are provided under Schedule 1.
11.1 Except if arising from Force Majeure as defined in clause 10, if the containerised Goods are not loaded either onboard the original first leg ocean going vessel listed in the Booking Confirmation or onboard an alternative vessel no earlier or later than three (3) days before or after the scheduled ETD as confirmed in the Booking Confirmation, then the Carrier shall pay the Merchant a compensation fee (the “Compensation Fee”) per container not so loaded if: (i) the conditions for payment are met in full; (ii) the claim for the Compensation Fee is lodged by the Merchant within 90 calendar days of the conditions for payment being met in full. The Carrier shall only be liable for one Compensation Fee per container per spot booking.
11.2 For any SD origin service mode bookings, with an inland origin leg arranged by Carrier (“Carrier Haulage) please note that the pick-up time in the Booking Confirmation is an indication only. The Compensation Fee only applies to Carrier Haulage if delay on part of Carrier or its subcontractors performing the Carrier Haulage causes, without any default on part of the Merchant including any non-compliance with waiting/loading time limits, the containerised Goods not to be loaded as provided in clause 11.2.
11.3 Notwithstanding the foregoing, if the Carrier fails to load and ship the containerised Goods in accordance with its commitments under clause 11 due to either
(i) Force Majeure; or
(ii) Port Omission
then the Compensation Fee shall not be payable, provided the Carrier provides reasonable evidence thereof. For the purpose of these terms ‘Port Omission’ shall mean the omission of a scheduled call at the relevant port due to operational reasons beyond the reasonable control or anticipation of the Carrier.
11.4 Further, the Compensation Fee shall not be payable by the Carrier if it becomes payable due to any default or breach of these terms or the Maersk Terms for Carriage on part of the Merchant, including but not limited to:
(i) late or non-provision of documents or incorrect declarations;
(ii) late gate-in of the Goods; or
(iii) containerised Goods not in compliance with weight restrictions or limitations.
12.1 Upon choosing the Rollable option, should the containerised Goods not be loaded, either onboard the original vessel/voyage or onboard an alternative vessel (chosen at Carrier’s discretion) within three (3) days earlier or after the scheduled ETD as confirmed in the Booking Confirmation, then the Carrier shall pay the Compensation Fee as set out in the link in clause11.1 per container not so loaded, without the Merchant having to comply with the requirement set out in clause 10.4 (ii).
12.2 Notwithstanding the foregoing, if the failure by the Carrier to ship the Goods as aforementioned in clause 11.1 is due to either (i) Force Majeure; or (ii) Port Omission, then the Compensation Fee shall not be payable, provided that the Carrier provides reasonable evidence thereof.
13.Fees and Charges
13.1 The applicable fees and charges are those which are accepted by Merchant set out in the rate sheet and displayed during the online Spot FMC contract process.
14. Applicable Law
14.1 This Spot FMC Contract shall be subject to the Shipping Act of 1984 as amended by the Ocean Shipping Reform Act of 1998 and shall otherwise be construed and governed exclusively by the laws of the State of New York without regard to principles of conflicts or choice of law.
15. US Trade Control Compliance
15.1 The Merchant shall comply with all applicable laws, rules and regulations, including, but not limited to, the export laws and government regulations of any country (“Laws”) to, from, or through which the Goods may be carried. The Merchant hereby also warrants that the Goods do not require Carrier to obtain any special license or permit for transportation, exportation or importation of the Goods and, to the extent required by law or regulation, the Merchant has obtained all necessary export, reexport, and/or import licenses or permits. The Merchant also warrants that transportation, importation or exportation of the goods is not prohibited by any applicable law or regulation, including comprehensive economic and/or trade sanctions maintained by the United States. To the extent applicable, the Merchant further warrants that it or any party that the Merchant trades with is not a party identified on the U.S. Commerce Department's Denied Persons List or Entity List; the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons; The U.S. State Department's Debarred List; or any other similar list of prohibited or denied parties maintained by any other country.
15.2 The Merchant shall indemnify and hold Carrier harmless to the full extent of any loss, damage, cost, expense, or liability to Carrier including attorney's fees and court costs for any failure or alleged failure of Merchant to comply with Laws and regulations of any country or specially granted licenses from relevant authority permitting export of the Goods supplied to Carrier for transportation. Carrier assumes no liability to Merchant or any other person for any loss or expense - including, but not limited to, fines and penalties – in connection with the Merchant's failure to comply with Laws or licenses granting the transaction.
16.1 Except upon written consent of the other party, or 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, neither party shall disclose the terms and conditions of this Spot FMC Contract to third parties other than to affiliates who agree to be bound by the same confidentiality provisions. Carrier may disclose to a third party terms and conditions of this Spot FMC Contract for the purposes of performing this Spot FMC Contract or collecting outstanding charges related hereto, including, but not limited, to ocean freight, demurrage and detention. In the event Merchant breaches its confidentiality obligations hereunder, Carrier shall be entitled (but not required) to terminate this Spot FMC Contract with immediate effect by providing written notice of termination to Shipper.
17.1 This Spot FMC Contract may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement, and all signatures need not appear on any one counterpart.
18.1 In case of a dispute arising under or relating to this Spot FMC Contract (other than disputes related to the payment of freight, which shall be handled pursuant to the law and Jurisdiction clause in the Carrier's Terms for Carriage). The Shipper and Carrier each agree to submit the matter under dispute to arbitration in the City of New York. Either party hereto may call for arbitration by giving notice as provided below. The arbitration shall be before a single arbitrator to be appointed by the parties. If the parties are unable to agree on a sole arbitrator within 30 days after notice of the dispute, either party may apply to the President of the Society of Maritime Arbitrators, Inc. ("SMA") at New York for the appointment of the arbitrator, and the SMA President shall select the arbitrator from the SMA roster of members.
18.2 The decision of the arbitrator shall be binding on the parties. The arbitration shall be held under and pursuant to the terms and procedures of the United States Arbitration Act and in accordance with the rules of the SMA. The award made in pursuance to this Section may include attorney's fees and expenses and judgment may be entered upon any award hereunder in a court of competent jurisdiction. The failure to proceed with any dispute in accordance with this arbitration clause shall constitute a breach of this Spot FMC Contract and all costs, expenses and fees, including attorney fees, incurred in enforcing compliance with the arbitration clause shall be fully recoverable in the arbitration.
19. Entire Contract
19.1 This Spot FMC Contract, including any FMC validation records, and any Letter of Authority (if applicable), the current bills of lading and the Tariff together constitute the full agreement of the parties and the complete and exclusive statement of the terms of the Spot FMC Contract.
19.2 Except for technical corrections and revisions reflecting adjustments provided for in this Spot FMC Contract, no modifications of the Spot FMC Contract or waiver of any of its terms or conditions shall be of any force or effect unless made in writing expressly stating that it is intended by both parties to modify this Spot FMC Contract and signed by the parties. Shipper hereby consents to a maintenance amendment to the Spot FMC Contract without Shipper's approval for the purposes of reflecting non-substantive change.
20.1 Neither party shall be liable to the other party for any consequential, indirect or punitive damages or loss of profits in connection with this Spot FMC Contract, the bill of lading or the Tariff, if applicable.
21.1 Any provision hereof which is prohibited or unenforceable in any jurisdiction shall not invalidate or render unenforceable any other provision of this Spot FMC Contract.
22. Shipper's Warranty
22.1 The Shipper warrants that it has all due authority to enter into this Spot FMC Contract and to bind such affiliates to the Spot FMC Contract terms and that such affiliates shall be jointly and severally liable for the Shipper's obligations under this Contract.
22.2 Shipper hereby certifies it and the entity(ies) declared in this Spot FMC Contract as affiliate(s) have either (a) a common entity that directly or indirectly owns at least one (1) percent of both Shipper and such affiliate(s) or (b) Shipper directly or indirectly owns at least one (1) percent of such affiliate(s). If not otherwise provided in this Spot FMC Contract, Shipper hereby agrees that it will provide the business addresses of each of the contract listed affiliates to Carrier five (5) business days of a written request for the same from Carrier.
22.3 By agreeing to these Spot FMC Terms, the Merchant certifies that they are an Owner of Cargo. If they are not an Owner of Cargo, the Merchant understands that the Carrier may ask for further proof of Merchant status. In the event the Merchant is not authorized to act as a “Merchant” or an “NVOCC” for any reason whatsoever, due to which the FMC filing of the Spot FMC Contract is not possible, then this Spot FMC Contract shall be rendered null and void, without the application of any Cancellation fee.
23.1 All changes requested by the Merchant after Booking Confirmation has been issued are subject to and conditional upon: (i) available space, (ii) approval by the Carrier and (iii) payment of all applicable Freight.
23.2 The Merchant warrants that the shipment does not include refrigerated goods, or hazardous goods, and that all information provided to the Carrier is complete and accurate.
23.3 This Spot FMC Contract shall only apply to the booking made at the time of the execution and filing of the Spot FMC Contract. Any and all subsequent bookings or amendments will be subject to a new contract with revised terms and conditions.
24. Written Notice
24.1 Written notice shall be deemed to have been duly served on the Merchant if delivered in person or by registered mail, courier or by facsimile (fax) or e-mailed to the Merchant's address on the signature page of this Spot FMC Contract or, if such has been changed subsequent to the execution of this Spot FMC Contract, to the last business address provided to Carrier. Written notice shall be deemed to have been duly served on Carrier if delivered in person or by registered mail, courier or by facsimile (fax) or e-mailed to Regulatory Affairs, Maersk Agency U.S.A. Inc. 180 Park Avenue, Florham Park, NJ 07932, fax: 973-514-5214.
Schedule 1: Booking Cancellation and Amendment Details
|Sr. No.||Booking Amendment||Description||Fee Details|
(part including inland leg or all)
|If the Merchant wishes to cancel shipment of part of or all the Goods (except by combining bookings without impacting on the TEU volume originally booked) after the booking confirmation has been issued, then a cancellation notice must be provided by the Merchant to the Carrier no less than seven (7) days before the scheduled estimated time of departure (“ETD”) and the Merchant shall pay the Carrier a fee per container cancelled.||Cancellation Fee applies.|
(part or all)
|If the Merchant fails to notify the Carrier of cancellation of part or all Goods in accordance with clause 10 or fails to deliver part or all of the Goods for shipment, then the Merchant shall instead pay a no-show fee (“No-show Fee”).||No show Fee applies.|
Change of Destination including inland leg (COD) Pre-gate in
*Except for Chinese exports
|Merchant requests to amend the destination/delivery before a container is gated in at the port of origin||
Subject to repricing.
Amendment Fee applies.
Change of Destination (COD) including inland leg Pre-Loading
*Only for Chinese exports
Merchant requests to amend the destination/delivery before a container has been loaded onboard the vessel.
Subject to repricing.
Amendment Fee applies.
|5||Change of Origin including inland leg (COO)||Merchant requests change of origin to an origin available in Spot Booking platform.||
Subject to repricing.
Amendment Fee applies
|6||Change of Vessel (COV)||Merchant requests to change shipment to a different vessel/voyage than the one on the original booking confirmation.||
Subject to repricing.
Amendment Fee applies.
Equipment amendment resulting in booking total TEU decreasing
|Merchant requests change to equipment size/type which as a result decreases the booking total TEU||
Subject to repricing of the amended equipment,
Cancellation Fee applies if the change is provided seven (7) days or more prior to Estimated Time of Departure.
No Show Fee applies if the change is provided less than seven (7) days prior to Estimated Date of Departure.
|8||Equipment addition or amendment resulting in booking total TEU unchanged, or increasing||Merchant 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 TEU||
Subject to repricing of the amended and/or added equipment.