These terms and conditions shall form part of any agreement entered into between the Agent and the Principal and shall not be amended without the prior written approval of the Agent.
“Agent” means Fednav Agency, a registered brand name of Fednav International Ltd.
“Principal” means the party with whom the Agent has contracted, who warrants that it has the authority to bind the vessel, its owners, charterers, inclusive of voyage charterers and their agents acting on their behalf, to these terms and conditions herein;
“Agreement” means these terms and conditions supplementing the agreement concluded by Agent and Principal;
“Agent Operations” includes all port and husbandry operations required to service the 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 and attending to third parties such as classification societies and flag state representatives and surveyors and local customs requirements; and
“Cargo Operations” includes, where required, activities relating to cargo, including without limitation, coordination of stevedores and terminal operators, reporting cargo to local customs authorities, documentation, and forwarding advice notes to shippers, receivers, customs brokers and freight forwarders.
Agent Standard of Care: The Agent shall perform diligently and with due dispatch all Agency Operations and Cargo Operations for the Principal as agent only, not as independent contractor, and during such performance shall contract on behalf of the Principal on any terms, but shall not be liable for any loss or damage arising from any delay which the Agent could not reasonably prevent.
Unexpected Occurrences: Where the Agent has spent time and incurred costs due to unexpected occurrences creating 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 an appropriate fee for the additional work.
Cancellation: Where the Agent has spent time and incurred costs in anticipation of the Vessel’s call which is subsequently cancelled, the Agent shall be reimbursed its expenses and paid an appropriate fee for the work.
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 and the Principal is liable to pay the actual disbursements incurred by the Agent, net of any advances of funds.
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.
Liability to Principal: The Agent shall exercise reasonable care and diligence in providing services hereunder and shall not be liable to the Principal for any loss, damage, delay or expense of whatsoever nature, 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 same is proved to have resulted solely from the negligence or willful default of the Agent. In any event, the Agent shall not be liable for more than an amount equal to five (5) times the Agent’s fee.
Indemnity: Except to the extent and solely for the amount therein set out that the Agent would be liable under Clause 8, the Principal hereby undertakes to keep the Agent and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities, whatsoever or howsoever arising, which may be brought against them or incurred or suffered by them arising out of or in connection with the performance of this Agreement, and against and in respect of all costs, loss, damage and expenses (including legal costs and expenses on a full indemnity basis) which the Agent may suffer or incur (either directly or indirectly) in the course of the performance of this Agreement. In the event the Agent is found liable to any third party to this Agreement for an amount exceeding the limitation stipulated in its favour in Clause 8, the Principal will indemnify the Agent for the excess amount.
Himalaya Clause: All officers, employees, servants, agents, contractors and sub-contractors 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, employees, servants, agents, contractors and sub-contractors 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 passengers tickets, issued by the Principal or otherwise during the effective period of this Agreement. Whenever the customary rights, immunities and/or liability limitations 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 it is indemnified against any resultant increase in liability. For the purpose of all the foregoing provisions of this Clause 10, 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.
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:
as necessary for the performance of this Agreement;
if the information was public knowledge at the time of disclosure;
if the information becomes public knowledge other than by breach of this clause hereto;
if the information subsequently comes into the lawful possession of the third party; or
if the disclosure is required pursuant to any laws or regulations which the disclosing party is subject to.
Force Majeure: Subject to Clauses 4 and 5, neither the Agent nor the Principal shall be liable to the other in damages or 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, including but not limited to government restrictions, port authorities and security restrictions in ports, strikes, lock-outs or labour 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.
Communications: All communications shall be confirmed in writing whether by electronic means, messenger service or public post.
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 that the Agent must retain legal counsel to collect any unpaid invoice, then all legal fees charged shall be payable by the Principal as an additional debt to the Agent.
Law and Jurisdiction: All disputes shall be governed by Canadian Maritime Law and shall be decided exclusively in the Federal Court in Canada.