Business Terms & Conditions
The below terms and conditions apply to transactions between your company or yourself and us as Brokers and will be effective whenever you request the Broker to provide Services or you respond to the Broker in relation to the provision of Services. These terms and conditions create a legally binding agreement between You and us as Brokers as defined by below conditions which limit the Broker’s liability.
1. Definitions
“Broker” - Atlantic Shipping and Trading S.A. and all subsidiaries and affiliated companies.
“Principal” - A party to a Fixture including the Charterer, Owner, Seller, Buyer of a vessel.
“Ship” - Any type of vessel used or intended to be used for any purpose related to transportation of cargoes.
“You” - The party requesting the Broker’s services or responding to the Broker in relation to the provision of the Services. Where such party is acting as a Representative references to You will additionally include the Principal.
“Fixture” - A contract including but not limited to the charter of a Ship for the carriage of any cargo, or for the Sale or Purchase, of a Ship together with any negotiations, verbal or written, to enter such contracts.
“Negotiations” - Exchanges, whether verbal or in writing, in relation to concluding a Fixture.
“Post Fixture Services” - Assistance with operatinal matters, communications, and problem solving arising from the performance of a Fixture.
“Representative” - A person or company, including but not limited to a ship manager, chartering department, shipbroker or other agent, who is not a Principal but is involved in negotiations on behalf of a Principal.
“Services” - The Services referred to in Clause 2 of these terms and conditions.
The above definitions apply whether the defined words appear in the singular or plural form.
2. Services covered by these terms
2.1
The Broker will act as a shipbroker in relation to Fixtures. The role of the Broker is to introduce Principals. Thereafter the broker will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing such Post Fixture Services as may be agreed or provided by the Broker.
2.2
Unless specifically agreed in writing the Broker will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. The Broker is not responsible for the performance or non-performance of Fixtures or Principals.
2.3
Unless otherwise agreed the Services are provided on a Fixture by Fixture basis.
2.4
The Broker may also agree to perform other tasks such as providing market research, analysis, reports or valuations.
3 Obligations of the Broker
3.1
The Broker will act with the reasonable skill and care expected of a professional shipbroker.
3.2
In dealing with others, the Broker will always act within the authority given by You and received from others.
3.3
The Broker undertakes to pass on offers, counteroffers and other such communications both from and to You accurately and in a timely manner, using best endeavours to avoid misunderstandings and misrepresentations.
3.4
It is understood that the Broker may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases the Broker is dealing with such Representatives or other intermediaries in good faith as to the authority they possess but the Broker does not give a warranty as to that authority.
3.5
If the Broker is acting directly for a Principal then the Broker warrants that the Broker has the authority of that Principal.
3.6
If at any time the Broker provides information in respect of a Principal, including but not limited to information regarding corporate structures or financial standing, it is understood and agreed that in relation to the Broker such information is provided in good faith but without guarantee. It is the sole obligation of the Principal to satisfy themselves of any counterparty risk and decide whether to enter a Fixture with the proposed counterparty and on what terms.
3.7
Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that the Broker may act as a shipbroker for other parties in relation to the same or other Fixtures. In the event the Broker is dealing directly with two Principals in relation to the same Fixture the Broker’s duties will be to pass on offers, counteroffers and other such communications accurately and in a timely manner as authorised by each Principal in turn.
3.8
Where the Broker is given information stated by You to be on a confidential basis or it is expressly agreed that a Fixture is confidential, the broker will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from You.
4 Obligations to the Broker
4.1
You warrant that you have full legal power to enter into the Fixture brought about by the Services.
4.2
Where Services are provided, You are deemed to have engaged the Broker in relation to any Fixture that arises in connection with those Services whether or not it is concluded via the Broker.
4.3
You will provide the Broker with all information and instructions necessary for the performance of the Services. Where actions need to be taken by a certain time (such as reply times during negotiations) you will ensure the Broker has sufficient time to forward such messages prior to the relevant time limit.
4.4
In relation to Post Fixture Services, if the Broker has asked you to use specific e-mail addresses for operational messages or claims, then You will use those e-mail addresses. In the event that you do not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from the Broker, you undertake to contact the Broker to confirm receipt. The Broker will have no responsibility for a failure to action a message or claims documentation unless it is sent timely to the correct address and acknowledged by the Broker.
4.5
You will take care to avoid misrepresentations occurring in Negotiations. You will carefully review all messages sent or copied to You and promptly advise the Broker of any errors or misrepresentations. The Broker is not responsible for the consequences of a failure by You to review messages. Due to the prevalence of email interception frauds You must not act upon any messages amending bank account details without checking these with us by telephone on publicly available telephone numbers. We cannot be held responsible for your failure to make such checks
4.6
You warrant that You do not know of any reason why the Fixture could be unlawful or which could render the provision of the Services by the Broker in breach of any relevant law, including but not limited to (i) sanctions imposed by the United Nations, European Union, The United States of America or any national government having authority over You, the Broker, a Representative or a Principal (ii) laws relating to money laundering, bribery and corruption. You will promptly and fully inform the Broker of any such reason that comes to your attention. In the event that the Broker in their absolute discretion believes that the Fixture or the provision of the Services may infringe such laws they may by written notice terminate the Services immediately. In the event of such termination the broker will have no liability arising from such termination howsoever arising.
4.7
On Fixtures the Broker’s remuneration will (unless otherwise agreed) be in the form of a commission on the freight/deadfreight/demurrage/detention, hire or purchase price as the case may be. The level of commission payable and the party responsible for payment will be set out in the Negotiations. . If You are the party agreed to be responsible for paying the commission you undertake to make the payment or payments promptly.
5 Limitation of Liability
THIS CLAUSE LIMITS THE BROKER’S LIABILITY TO YOU.
5.1
Nothing in these terms and conditions limits the Broker’s liability for (i) fraud or fraudulent misrepresentation (ii) death or personal injury caused by the negligence of the Broker.
5.2
The Broker will, subject to the provisions of this clause 8, be liable to You for damage directly caused by the failure to perform the Services with the reasonable skill and care expected of a professional shipbroker provided always the Broker will not be liable for: (i) Loss of profits, business interruption, loss of reputation, indirect or consequential losses. (i) Damage caused by any event or cause that the Broker was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence. (i) Damage which was not solely caused by the act or omission of the Broker or which would have occurred in any event.
5.3
The Brokers total liability arising from or in connection with the Services shall in no circumstances exceed the sum of USD 1,000,000.00 (one million united states dollars)
5.4
The exclusions and/or limitations set out in this clause shall apply whether the claim against the Broker is brought in contract, tort (including for negligence) breach of statutory duty or for any other cause whatsoever.
5.5
Any claim against the Broker must be made in writing and notified to the Broker within 14 days of the date on which You became aware or ought to have become aware of the circumstances giving rise to the claim and any claim not so notified shall be deemed waived and time barred. The Broker shall in any event be discharged of all liability arising out of the Services unless suit is brought and written notice of it given to the Broker within one year of the end of performance of the Fixture or in the absence of a concluded Fixture 1 year from the end of the Negotiations.
6 Miscellaneous
6.1
All intellectual property rights in or arising out of the Services belong to the Broker.
6.2
The Broker has a general lien on all documents in its possession or control for all sums due from You to the Broker whether arising out of the Fixture or otherwise.
6.3
If a court finds that any provision of these terms and conditions is invalid, illegal or unenforceable, that provision shall, to the minimum extent required, be deemed deleted and the validity, legality and enforceability of the remainder of that and all other provisions of these terms and conditions shall not be affected.
7 Jurisdiction and Law
These terms shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.