Terms and Conditions – Next Maritime

Legal Notice

1. Definitions

Affiliate means

In the case of the Agent, NEXT MARITIME S.L.U. or any company owned or controlled by NEXT MARITIME S.L.U. or any company managed by NEXT MARITIME S.L.U. pursuant to a management agreement.

In the case of the Company, any company owned or controlled by the Company or its ultimate parent.

Agency Appointment

Means any relevant legal or natural person entering into any Port Call Appointment with the Agent for the provision of any Services.

Agent means NEXT MARITIME S.L.U. or the Affiliate of NEXT MARITIME S.L.U. that has entered into a Port Call Appointment with a Company for the provision of the Services.

Company

Means any relevant legal or natural person entering into any Port Call Appointment with the Agent for the provision of any Services.

Confidential Information means each item of confidential and proprietary information, and the intellectual property rights therein, disclosed by one party to another, including without limitation any financial information, procurement and purchasing requirements, business forecasts, sales and marketing plans and information and customer lists relating to that party or any of its Affiliates.

Disbursements

Means any and all amounts which the Agent (or a sub agent appointed pursuant to condition 4) pays out to a third party on behalf of the Company in relation to the Services, including, but not limited to any VAT, sales taxes and other applicable taxes and charges.

Final Disbursement Account

Means an account produced by the Agent which describes the disbursements which have been incurred by the Agent in providing of the Services and the related commissions and fees for the Services and other sums owed by the Company to the Agent in relation to the Services.

Proforma Disbursement Account

Means an estimated account produced by the Agent based upon the services initially requested by the Company and which set out the estimated Disbursements which will be incurred by the Agent in providing of the services and the related estimated commissions and fees that will be charged by the Agent for the provision of the Services.

Whilst the Agent does take every care to ensure that the figures and information contained in the PDA are as accurate as possible , the FDA may and often does, for various reasons beyond our control vary from the PDA.

Company is required and liable to pay upon demand the full amount described and shown in the FDA. This duty exists regardless of any difference between the figures in the PDA and the FDA.

Port Call Appointment

Means any agreement for the provision of Services entered into between the Agent and the Company upon these Standard Terms and Conditions as amended from time to time, which is formed following the acceptance of an Agency Appointment by the Agent.

Revised Disbursement Account

Means a revised estimate of Disbursements and the related estimated commissions and fees that will be charged by the Agent for the provision of the Services, which is issued after the Services have commenced, and after the Proforma Disbursement Account due to an increase or other variation to the scope of Services.

2. Appointment and Scope of Work

2.1. Following an initial request for Services by the Company, the Agent will issue a Proforma Disbursement Account (PDA) relating to the Services requested.

2.2. If the Company wishes the Agent to provide the Services, it will issue an Agency appointment. The Port Call Appointment shall be formed when the Agent confirms its acceptance in writing of an Agency Appointment. In such circumstances, the Company appoints the Agent to provide the Services described in the Agency Appointment or otherwise agreed to be provided by the Agent to the Company, in consideration of payment by the Company of the applicable commissions, fees and Disbursements.

2.3. For the avoidance of doubt, each Port Call Appointment forms a separate contract between the Agent and the Company (subject to terms of these Standard Terms and Conditions), and no Agent Affiliate or Company Affiliate shall in any event be jointly and severally liable for any obligations under any Port Call Appointment, unless otherwise is explicitly stated in these Standard Terms and Conditions.

3. Agent's Obligations

3.1. In relation to the Services to be provided by the Agent, the Agent undertakes:

to exercise reasonable skill and care in the performance of its responsibilities.
to use reasonable endeavours to comply with the Company’s reasonable requirements in relation to the performance of the Services
and
in consultation with the Company, to recommend and/or appoint on the Company’s behalf stevedores, watchmen, tallymen, hauliers and other third party suppliers (each a Service Provider and the services to be provided by the Service Provider to Company to be known as ‘Service Provider Services’)

3.2. For the avoidance of doubt, where the Agent appoints a Service Provider on the Company’s behalf, it will do so in the capacity as the Company’s agent and the Agent will not have any responsibility for the performance of or negligent acts or defaults of any such Service Provider.

The Agent will provide the Company with reasonable co-operation in relation to any dispute between the Company and the Service Provider.

4. Sub-agents

4.1. The Agent shall be entitled, without prior consultation, to appoint sub-agents to perform any part of the Services and such sub-agents may enter contracts with Service Providers on behalf of the Company as if they were the Agent. The Agent shall remain responsible for the actions of its sub agents in relation to the Services.

4.2. In ports or terminals where the choice of port/terminal agent is restricted by that port or terminal or other applicable governing body, the Agent accepts no responsibility for the actions of said port/terminal agents nor can Agent accept responsibility for their commission, fees or expenses. In such circumstances the port/terminal agent will be appointed by the Agent on behalf of, and for the account of, the Company. The port/terminal agent will not be the sub-agent to the Agent.

5. Company's Obligations

5.1. In relation to the applicable Services, the Company undertakes to (in addition to its other obligations set out herein):

well in advance of the time at which the Services are to be provided, to provide in writing all necessary information and documentation (including as to cargo) to the Agent in order for it to provide the Services on a timely basis;
and
pay the Pre-Funding (as described in condition 6 ) prior to the commencement of the Services and in any case provide the Agent on its request with all necessary funds to cover any fees and Disbursements.

6. Remuneration

6.1. The Company undertakes to pay to the Agent, as consideration for the Services provided by the Agent, the commissions and fees agreed between the parties and a sum equivalent to all Disbursements subject, in the case of Disbursements, to the Agent providing reasonable and documented evidence that such Disbursements have been incurred.

6.2. Subject to local/national legislation and unless expressly agreed otherwise between the parties in writing, the Company must advance to the Agent one hundred percent (100%) of the value of the Pro-forma Disbursement Account 24 hrs prior to vessel’s arrival or Agent commencing the Services (with any sum paid in advance by the Company known as the ‘Pre-funding’) The parties may agree that the Pre-funding should be lower than one hundred percent (100%) of the Pro-forma Disbursement Account value. In any case, the Pre-funding must be paid into a bank account specified by the Agent in cleared funds.

6.3. For the avoidance of doubt, the Agent shall not be required or expected to use or commit its own funds to finance Principal’s interests or obligations. Should the Company fail to pay the Pre-funding to the Agent at the agreed level in cleared funds, the Agent shall be entitled to refuse to provide some or all of the services. Nevertheless, if the Agent does provide some or all of the Services despite the company’s failure to pay the agreed Pre-funding, the Company will remain liable to pay the Agent all fees, commissions and Disbursements in relation to the Services plus a funds advanced charge fee of 1,5% interest (minimum charge 150 eur/ usd) on the total cost of the PDA/SPDA per month or part thereof, until funds are received before FDA issue. Without prejudice to any other rights.

6.4. Should the scope of the Services increase following the formation of the Port Call Appointment, or if it appears that the Pre-funding will be lower than the actual Disbursements and commissions, the Agent shall be entitled to issue one or more Revised Proforma specifying a further sum which is required to be paid by the Company prior to the provision of the relevant Services. The Company shall pay such amounts specified in the Revised Proforma and such sums shall be deemed to be part of the Pre-funding.

6.5. Following the completion of the Services, the Agent shall submit to the Company a Final Disbursement Account, taking into account any Pre-funding which has been received by the Company in cleared funds. The Company shall pay any such balance stated in the Final Disbursement Account. Any commissions, fees, Disbursements and/or other sums owed by the Company which become due following the issue of the Final Disbursement Account shall also be payable by the Company following the Agent providing reasonable and documented evidence that such sums are payable.
If the sums due by the Company to the Agent are lower than the level of Pre-funding obtained in clear funds by the Agent, the Agent shall reimburse such excess to the Company.

The Agent does not undertake any lead time as for the issuance of a final invoice and reserves the right to issue additional invoices for services relating to vessels upon presentation of the relevant voucher.

6.6. All invoices issued by the Agent shall be payable by the Company within fifteen (15) days of the date of the invoice, unless otherwise agreed by the parties. Each Pro-forma Disbursement Account, Revised Disbursement Account and Final Disbursement Account shall be deemed to be invoiced and therefore payable as described in this condition 6.

Without prejudice to any other right or remedy under these general conditions, if the Company fails to comply with any of its financial obligations the Agent shall be entitled to:

Inform any suppliers, service providers or authorities that the Agent has not been put in funds
take any necessary measures to detain the vessel(s) in port until such funds are received
retain any documents that the Agent has in its possession pending receipt of funds and
end his missions set out in the appointment with immediate effect by giving written notice to the Principal.

6.7. Except for taxes on the Agent’s own income, the Company is responsible for all taxes, charges, imposts, customs duties, levies, and other fees or charges of any kind payable to any governmental, fiscal or taxing Authority anywhere in relation to the provision of the Services (‘Taxes’). The Company shall fully indemnify the Agent in respect of any claims or expenses Incurred in connection with such Taxes, including, but not limited to, any sum which is paid to a relevant authority on the Company’s behalf by the Agent.

6.8. The Agent shall be entitled to claim and recover interest of four percent (4%) per annum (before as well as after judgement) on any overdue payment. Such interest shall accrue on a daily basis from the due date until payment in full is received by the Agent. The Agent shall be entitled to claim and recover all costs and expenses, on a full indemnity basis, incurred in the collection of payments due.

6.9. In the event that:

any fees, commission, Disbursements or expenses due from the Company to the Agent under any Port Call Appointment remain outstanding following the expiry of the period for settlement of such invoices; and
the Agent or any Affiliate of the Agent is in possession of funds belonging to the Company in any jurisdiction regardless of whether such funds were paid to the Agent or the relevant Affiliate of the Agent in connection with the relevant Port Call Appointment, then the Agent and such Affiliate of the Agent may, at any time, set off such funds against the due and unpaid fees, commission, or Disbursements outstanding under the Port Call Appointment.

6.10. In the event that:

the Agent or any Affiliate of the Agent is in possession of funds paid by the Company to the Agent or any Affiliate of the Agent under or in connection with a Port Call Appointment; and
any sums, fees, payments, commissions, disbursements or expenses due from the Company to the Agent or any Affiliate of the Agent under any other contractual arrangement are outstanding, then the Agent and / or such Affiliate of the Agent may, at any time, set off such funds against the due sums, fees, payments, commission, disbursements or expenses outstanding under the other contractual arrangement. Where the use of the funds for such set off results in insufficient cleared funds being available to the Agent to pay for actual or anticipated Disbursements, the Agent shall be entitled to refuse to provide some or all of the Services until such shortfall is made good by the Company (by additional Pre-funding or otherwise).

7. Limitation of Liability

Liability to Principal

The Agent 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 arising out of or in connection with detention of or delay to the Vessel) and howsoever arising in the course of performance of this Agreement, unless same is proved to have resulted solely from the negligence or wilful default of the Agent.

Save where loss, damage, delay or expense has resulted from the Agent’s personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result, the Agent’s liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a total of ten (10) times the Remuneration agreed which shall be deemed earned in any event.

Himalaya
It is hereby expressly agreed that no employee of the Agent (including every sub-contractor from time to time employed by the Agent) shall in any circumstances whatsoever be under any liability whatsoever to the Principal for any expense, loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect, or default on its part while acting in the course of or in connection with its employment and, without prejudice to the generality of the foregoing provisions in this clause every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Agent or to which the Agent is entitled hereunder shall also be available and shall extend to protect every such employee or sub-contractor acting as aforesaid and for the purpose of all the foregoing provisions of this Clause 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 sub-contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to this Agreement.
Except to the extent and solely for the amount therein set out that the Agent would be liable under this Clause, 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.

8. Indemnities

8.1. If the Agent (or a sub-agent appointed) at any time provides any bond, guarantee or other form of security to any customs or other local authorities in any country in connection with the Services provided, the Company shall indemnify the Agent and hold it harmless from any claims made in relation to such bond, guarantee or other form of security, unless any such claim arises directly by reason of the misconduct, negligence or default of the Agent.

8.2. Without limiting the foregoing terms, if the Agent (or a sub-agent appointed) finds itself, whether by law or otherwise in any country, jointly or severally liable for any liabilities of the Company or any other party seeks to hold it liable for any liabilities of the Company, then the Company shall indemnify the Agent and hold it harmless for any claims made in respect thereof and shall not in any way assert any claim for a contribution from the Agent.

9. Insurances

9.1. The liabilities assumed by the Agent on the provision of the Services shall be covered by a liability insurance policy on such terms with such insurers and in such amount as may reasonably be regarded as customary in the industry by a prudent provider of such services.

9.2. Without limitation to its general obligation to maintain insurances, the Company shall ensure that each of its ships, vessels and cargo and other items which are placed in the Agent’s or any Service Provider’s possession or control in relation to the Services, are fully insured on an indemnity basis against loss, damage and destruction.

The Company will provide the Agent with details of the relevant insurance Policies upon request.

10. Confidentiality

10.1. The parties agree to keep any Confidential Information confidential, not to use it for any purpose (other than in the context of the Services to be provided) and not to disclose it without the prior written consent of the other party to any third party, unless:

the information was public knowledge at the time of the disclosure;
the information becomes public knowledge other than by breach of the confidentiality undertaking contained in this condition 10.1;
the information subsequently comes lawfully into its possession from a third party; or
Required to do so by any laws or regulations to which the disclosing party is subject.

10.2. Notwithstanding condition 10.1., each party shall be entitled to disclose Confidential Information to its directors, shareholders, officers, employees, advisers and consultants having a need to know the same. The Agent may also disclose confidential information to potential assignees or transferees and may disclose information for the purposes of performing its obligations under the Port Call Appointment (such as disc losing information to any sub-agents Service Providers, Affiliates or representatives of the Agent).

11. Assignment

Neither party may assign or transfer any of its rights and obligations under any Port Call Appointment without the prior written consent of the other party, except that the Agent shall be entitled to assign or factor any debt owed to it from the Company under any Port Call Appointment to any Affiliate without further formality.

12. Termination

12.1. Either party may terminate any Port Call Appointment with immediate effect if the other party to such Port Call Appointment has committed a material breach of its obligations under such Port Call Appointment. If such breach can be remedied, termination may only take place if the party in breach has been given thirty (30) days’ written notice of the breach and the breach remains unremedied. For the avoidance of doubt, non-payment of fees, commission or Disbursements due from the Company to the Agent shall amount to a material breach of a Port Call Appointment.

12.2. Any Port Call Appointment may be terminated with immediate effect by either party if the other party to such Port Call Appointment is declared bankrupt, becomes insolvent or is unable to pay debts as they fall due or, where the terminating party is the Agent, where the Agent reasonably believes that the Company will be declared bankrupt, become insolvent or be unable to pay debts as they fall due In addition, either party may terminate the affected Port Call Appointment pursuant to the terms of Condition 13 and Condition 17.

12.3. Notwithstanding the foregoing, the Agent shall be entitled to suspend its performance under all outstanding Port Call Appointments placed pursuant to these Standard Terms and Conditions if any sum due by the Company under any Port Call Appointment is outstanding beyond the relevant due date.

12.4. Upon early termination of any Port Call Appointment, all disbursements and commissions accrued to that date shall become payable. If the sums due by the Company to the Agent are lower than the level of Pre-funding obtained in clear funds by the Agent, the Agent shall reimburse such excess to the Company.

13. Force Majeure

13.1. In relation to the provision of the Services, the obligations of the parties shall be suspended during the period and to the extent that that party is prevented or hindered from complying with them by any cause beyond its reasonable control including (but not limited to) strikes, lock-outs, labour disputes,(except where such strikes, lock-outs and labour disputes relate to that party’s own personnel) act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, port security, port authorities and security restrictions in ports, accident, breakdown of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen(except where such failure to obtain workmen relates to that party’s own personnel), materials, goods or raw materials in connection with the provision of the Services.

13.2. In the event of any such party being so hindered or prevented, the party concerned shall give notice of suspension as soon as reasonably possible to the other party stating the date and extent of the suspension and its cause and the omission to give such notice shall forfeit the right of that party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other party. However, if the suspension lasts for more than thirty (30) days, either party may terminate the relevant Port Call Appointment.

14. Third Party Rights

With the exception of any Affiliate of the Agent, who shall take the benefit of any right expressly stated to be for the benefit of an Affiliate of the Agent together with any protection and limitation afforded to the Agent pursuant to a Port Call Appointment (including, but not limited to, those set out in these Standard Terms and Conditions), a person who is not a party to a Port Call Appointment has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of such Port Call Appointment. However, the terms of the Port Call Appointment (including, but not limited to, these Standard Terms and Conditions) may be varied, amended or modified without the consent of any such third party.

15. Notices

15.1. In general, communications between the parties can be undertaken electronically via electronic mail. However, any notice from one party to the other which is stated as requiring to be ‘written’ or undertaken ‘in writing’ must be sent in hard copy to the recipient to be valid.

15.2. Unless the contrary is proved, each such notice or communication shall be deemed to have been given or made and delivered, if by letter on the second working day after posting.

16. Miscellaneous

16.1. No amendment or variation of these Standard Terms and Conditions or any Port Call Appointment shall be effective unless in writing.

16.2. Any consent given by a party shall operate as a consent only for the particular matter to which it relates and in no way shall be construed as a waiver or release of any provision of any Port Call Appointment nor shall it be construed as dispensing with the necessity of obtaining the specific written consent of the relevant party in the future unless expressly so provided.

16.3. The failure of a party to exercise or enforce any right under any Port Call Appointment shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any times thereafter.

16.4. If any part of any Port Call Appointment (including these Standard Terms and Conditions) becomes invalid, illegal or unenforceable the parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, illegal or unenforceable provision which as nearly as possible gives effect to their intentions as expressed in that Port Call Appointment. Failure to agree on such a provision within six (6) months of commencement of those negotiations shall result in automatic termination of that Port Call Appointment.

17. Ethical Standards

17.1. Compliance The parties agree that neither party shall:

1. offer or agree to give any person working for or engaged by the other party any gift or other consideration, which could act as an inducement or a reward for any act or omission to act in connection with this Port Call Appointment, or any other agreement between the parties;

1. enter into this Port Call Appointment, or any other agreement with the other party if it has knowledge that, in connection with it, any money has been, or will be, paid to any person working for or engaged by the other party or that an agreement has been ached to that effect unless (i) details of any such arrangement have been disclosed in writing to the other party prior to the execution of the agreement and (ii) approval of such arrangement by an authorised representative of the other party has been obtained;

offer, pay or promise to pay either directly or indirectly, anything of value to a Public Official in connection with any Port Call Appointment. The parties further agree that in the performance of their respective obligations under the Port Call Appointment, the parties and their respective Affiliates, sub-contractors and employees shall comply with all applicable anti-corruption laws, rules, regulations and orders of any applicable jurisdiction. Each party shall notify the other immediately in writing with full particulars in the event of that party receives a request from any Public Official requesting illicit payments in connection with a Port Call Appointment; or
take any other action which results in a breach by either party of any applicable anti-corruption legislation.

17.2. Breach of Ethical Standards

If either party breaches condition 17.1, the other party may terminate the Port Call Appointment by written notice with immediate effect. Any termination pursuant to this condition 17.2 shall be without prejudice to any right or remedy that has already accrued, or subsequently accrues to the terminating party.
Notwithstanding anything to the contrary in these Standard Terms and Conditions or any Port Call Appointment, under no circumstances shall either party or any of their Affiliates be liable to the other for any delay or failure to perform its obligations under these Standard Terms and Conditions or any Port Call Appointment to the extent that such failure or delay arises out of or in connection with that party complying with its obligations under condition.

18. Compliance with Asset Control Laws and Financial Sanctions

18.1. The parties will comply with any applicable anti-terrorist financing and asset control laws, regulations, rules and orders, including but not limited to, the U.S. Department of Treasury, Office of Foreign Assets Control (‘OFAC’) regulations and the European Union sanctions or restrictive measures.

18.2. Pursuant to OFAC regulations respecting United States Dollar («USD») payments, neither party can facilitate USD payments in any transaction related to OFAC sanctioned entities, either directly or indirectly. Either party may be required to request information from the other which supports a verification statement which New York intermediary banks may require according to the OFAC regulations, including whether a person is a ‘specially designated national’ listed by OFAC or any executive order, or a ‘national’ of any country with which transactions are regulated by OFAC. Both parties shall provide timely and truthful responses to any such reasonable enquiries either party may make to the other to support any required verification statements.

19. Governing Law and Disputes

19.1. These Standard Terms and Conditions and (unless otherwise agreed by the parties in writing) each Port Call Appointment shall be governed by and construed in accordance with English law.

19.2. The parties shall first attempt to resolve any dispute arising out of or in connection with a Port Call Appointment to which these Standard Terms and Conditions apply by negotiation. If the parties are unable to resolve such dispute within thirty (30) days of commencing negotiations, such dispute may, upon the application of either party, be referred to and finally resolved by arbitration under the London Maritime Arbitrators Association («LMAA»).

20. Antifraud and Ofac Alerts

ANTI-FRAUD ALERT

Recently, it has been noticed an increase in fraud attempts carried out by individuals whose method is to steal the corporate identities of shipping agents. As part of the fraud attempt, the perpetrators register a domain address mimicking a particular agency, misspelling the domain address slightly to make it look like the genuine one, then sending fraudulent emails using the new domain address. Using the fraudulent email address, the perpetrators change the agency’s bank account with the aim to steal the advance payment for a port call. The perpetrators appear to be knowledgeable of the shipping industry and, in some cases, may even have access to genuine or at least genuine-looking documents originating from agencies.

Please, if you receive any unusual messages, or any messages advising that our bank account details have changed verify these with your usual contact at Next Maritime. Rather than replying to a suspicious email, we kindly request you to contact us by phone to verify that the sender is in fact Next Maritime. Please bear also in mind that funds should only be transferred to bank accounts advised in our original PDAs (proforma disbursement account) and our communications will come only from our official domain nextmaritime.com.
We wish to place on record that if any remittance favouring us is claimed to have been made to another account, we would not accept responsibility for the same.

It has also been noticed and reported that some companies are also invoicing non existing or fake services. Fake invoice scams happen when fraudsters send an invoice or bill to a company, requesting payment for services. In fact, the invoice is fake and is for goods and services that haven’t been ordered or received. These invoices (and any covering letters) may appear to be printed on company headed paper but are more likely scanned copies from an original document and printed onto paper using a domestic printer so the company logo may appear less sharp and slightly blurred. Please be aware and always verify that the invoice is legitimate.

Kindly instruct staff with responsibility for paying invoices to be cognizant of checking invoices for irregularities and checking out their suspicions with us, being mindful that contact details on the invoice may not be genuine.

OFAC ALERT
We have encountered delays on receipt of funds from our customers caused by an increasing of the OFAC (Office of Foreign Assets Control) activity over the US. (clearing) banks. Unfortunately this increasing activity may lead to delays on your remittances to our account.

It is highly recommended NOT to mention any vessel name/IMO number, name of ship owners, etc. in your remittance details. You should in any case refer to your job or appointment number. This will allow us to identify your payment to us. Secondly, we recommend you to remit the funds as early as possible with value date not later than two banking days prior to your vessels arrival.