These terms and conditions (the “Terms and Conditions”) shall apply to all Agency Services provided by the Agent to the Principal (as defined below) and form part of any agreement between the Agent and the Principal. These Terms and Conditions shall not be amended without the prior written approval of the Agent.
i. the “Agent” means Fednav Agency, a registered brand name of Fednav International Ltd. when services are rendered in Canada, and Federal Marine Terminals, Inc. when services are rendered in the United States of America;
ii. the “Principal” means the party with whom the Agent has contracted for Agency Services, as defined herein;
iii. “Agreement” means these terms and conditions supplementing the agreement concluded by Agent and Principal;
iv. “Agent Operations” includes all port and husbandry operations required to service the Principal’s vessel during its call on a port or series of ports covered by this Agreement, and without limitation includes: the coordination of ship supplies and repairs, attending to third parties (such as classification societies, flag state representatives and surveyors), and local customs requirements;
v. “Cargo Operations” includes, where required, all activities relating to cargo, including without limitation: coordination of stevedores and terminal operators; reporting to local customs authorities; documentation; and forwarding advice notes to shippers, receivers, customs brokers and freight forwarders; and
vi. “Agency Services” shall mean all Agent Operations and Cargo Operations performed by the Agent pursuant to the Agreement.
3. Principal’s Warranty: The Principal warrants that it has the authority to bind the vessel, its owners, and its charterers (including voyage charterers and their agents acting on their behalf) to this Agreement.
4. Authorization: The Agent shall perform all Agency Services for the Principal as agent only, and not as an independent contractor. During the performance of Agency Services, the Agent is authorized to contract on behalf of the Principal on any terms.
5. Unexpected Occurrences: Where the Agent has spent time and incurred costs due to unexpected occurrences that create additional necessary work or delay to the vessel, whether or not at the request of the Principal, the Agent shall be reimbursed the actual expenses and paid a reasonable fee for the additional work.
6. Cancellation: The Agent may refuse to render Agency Services to the Principal at anytime if the Agent, in its sole discretion, determines that rendering Agency Services would be or could become unsafe, illegal, unreasonable or otherwise adverse to the Agent’s legitimate interests. The Agent shall not liable to the Principal for any loss, damage, delay or expense of whatsoever nature (including claims for breach of contract and/or negligence), whether direct or indirect (including but not limited to loss of profit and/or consequential losses), arising out of or in connection with Agent’s termination of Agency Services in accordance with this Clause 6.
Where the Agent has spent time and incurred costs in anticipation of the vessel’s call which is subsequently cancelled (whether by the Agent or otherwise), the Agent shall be reimbursed its expenses and paid a reasonable fee for the work.
7. Disbursements: Any proforma disbursements account is a non-binding estimate for which an advance of funds is required from the Principal. The final disbursements account may vary from the proforma disbursements account, and the Principal is liable to pay the actual disbursements incurred by the Agent, net of any advances of funds. The Agent must receive funds for all expected expenses prior to the vessel’s departure, and the Agent is not responsible for late fees or penalties.
8. Information: The Principal warrants the accuracy and correctness of the information it provides to the Agent. The Agent has no responsibility to verify the same and may act on such information and pass on that information without any warranty in connection with the performance of this Agreement.
9. Liability to Principal: The Agent shall not be liable to the Principal for any loss, damage, delay or expense of whatsoever nature (including claims for breach of contract and/or negligence), whether direct or indirect (including but not limited to loss of profit and/or consequential losses arising out of or in connection with detention of or delay to the vessel), and howsoever arising in the course of the performance of this Agreement, unless such loss, damage, delay or expense is proved to have resulted solely from the gross negligence or willful default of the Agent. In any event, the Agent’s liability shall not exceed an amount equal to five (5) times the Agent’s fee.
10. Indemnity: Except to the extent the Agent would be liable under Clause 9, the Principal hereby undertakes to defend, indemnify, and hold harmless the Agent (including its employees, subagents and subcontractors) from and against all actions, proceedings, claims, lawsuits, demands or liabilities of any nature, including its negligence, brought against the Agent in any way related to Agency Services provided hereunder, including reasonable attorney fees and costs. The Principal’s obligation to defend, indemnify and hold the Agent harmless shall include, without limitation, claims for personal injury, death, environmental claims, governmental, regulatory, or penal citations, and property damage, howsoever arising. In the event the Agent is found liable to any third party to this Agreement for an amount exceeding the limitation stipulated in its favor in Clause 9, the Principal will indemnify the Agent for the excess amount, including reasonable attorney fees and costs incurred to enforce this indemnity.
11. Security: In the event charges or penalties are assessed against bonds provided by the Agent (including its employees, subagents or subcontractors) on behalf of the vessel or cargo, the Principal shall promptly arrange collateral security to cover the bonding exposure.
12. Oil Spill: In the event of an oil spill requiring notice to governmental authorities under applicable law, the Agent is authorized by the Principal and the vessel to make such required notification. The Agent shall have a lien against the vessel for all non-reimbursed expenses incurred on the vessel’s behalf in any way related to such oil spill.
13. Hazardous Materials: The Agent will not render Agency Services for cargo of a dangerous or damaging nature unless agreed to in writing prior to arrival of the cargo or vessel. If the before-mentioned cargo is accepted pursuant to a written agreement, and according to the opinion of the Agent, creates a risk to health, goods, or property, the Agent shall notify the Principal and the Principal shall remove or otherwise remedy the dangerous situation as soon as reasonably practicable. If the Principal does not remove or otherwise remedy the dangerous situation to the reasonable satisfaction of the Agent, the Agent reserves the right to remedy the dangerous situation. The Agent shall be reimbursed the actual expenses and paid a reasonable fee for the additional work.
14. Himalaya Clause: All officers, directors, employees, servants, agents, contractors, and sub-agents or sub-contractor of the Agent shall have the benefit of any and all limitations, indemnities, exceptions and conditions in these Terms and Conditions benefiting the Agent as if such provision was made expressly for such officers, directors, employees, servants, agents, contractors and sub-agent or sub-contractor of the Agent. It is further expressly understood and agreed that the Principal will include the Agent as an express beneficiary, to the extent of the services to be performed hereunder, of all rights, immunities, and limitation of liability provisions of all contracts of carriage whether or not it is evidenced by its standard bill of lading or passenger tickets, issued by the Principal or otherwise during the effective period of this Agreement. Whenever the customary rights, immunities or limitations of liability are waived or omitted by the Principal, as in the case of ad valorem cargo, the Principal agrees to include the Agent as an assured party under its insurance protection and ensure that the Agent is indemnified against any resultant increase in liability. For the purpose of all the foregoing provisions of this Clause 13, the Agent is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be its servants or agents from time to time (including contractors and sub-contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to this Agreement.
15. Confidentiality: The Agent and the Principal agree to keep confidential and will follow general norms with respect to general data protection and shall not disclose, directly or indirectly, any information regarding the other party’s business, including without limitation, information with respect to operations, procedures, methods, accounting, technical data or existing or potential customers, or any other information which the other party has designated as confidential, without the prior written consent of the other party to any third party except:
i. as necessary for the performance of this Agreement;
ii. if the information was public knowledge at the time of disclosure;
iii. if the information becomes public knowledge other than by breach of this Clause;
iv. if the information subsequently comes into the lawful possession of the third party; or
v. if the disclosure is required pursuant to any laws or regulations to which the disclosing party is subject.
16. Force Majeure: Subject to Clauses 5 and 6, neither the Agent nor the Principal shall be liable to the other in damages, nor shall it have the right to terminate this Agreement, for any failure to perform or delay in the performance of its obligations if and then to the extent that such performance is delayed or prevented by the other's acts or omissions, or by circumstances beyond its reasonable control and that could not have been prevented by the other’s due diligence, including but not limited to government restrictions, port authorities and security restrictions in ports, strikes, lock-outs or labor disputes of any kind (whether relating to its own employees or others), acts of God, fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, insurrection, war or civil war, local epidemic or pandemic, adverse weather conditions or prolonged power failure.
17. Communications: All communications shall be confirmed in writing whether by electronic means, messenger service or public post.
18. Invoices: All Agent’s invoices are due and payable on the date of presentation to the Principal, failing which interest shall be payable at the rate of 2% per month (24% per year), and in the event the Agent must retain legal counsel to collect any unpaid invoice, then all attorneys’ fees charged shall be payable by the Principal as an additional debt to the Agent.
19. Time for Claims: It is a condition precedent that the Agent shall not be liable for any loss or damage unless it has received a notice of claim within thirty (30) days of the completion of Agency Services. The Agent shall be discharged from all liability howsoever occurring hereunder unless suit is brought within nine (9) months of the completion of Agency Services.
20. Law and Jurisdiction: If Agency Services are rendered in Canada, the governing law shall be Canadian Maritime Law and any dispute shall be brought exclusively in the Federal Court in Canada, or, failing jurisdiction, in the Quebec Courts. If Agency Services are rendered in the United States of America, the governing law shall be the general maritime law of the United States and any dispute shall be brought exclusively in the United States District Court having admiralty jurisdiction at the USA port. However, if and only if the appropriate United States District Court does not have jurisdiction over the dispute, then such action shall be brought exclusively in the Circuit Court of Cook County, Illinois.
21 December 2021