1. GENERAL
1.1 These general terms of port agency (the "Terms")
govern the appointment of the Agent by the registered owner, disponent owner,
manager, managing agent, master or other person in charge of the vessel,
including any charterer appointing the Agent on behalf of the vessel owner under
the terms of a charter party (the "Principal"); and the "Agent" means that
affiliate of Neptune Fleet Managers Pte Ltd that is operating at the port at
which the Principal's vessel is berthed.
1.2 The Agent and Principal shall agree the commercial
terms of the Agent's appointment and record this in writing, including
confirmation by electronic mail, facsimile or other forms of communication (the
"Commercial Terms"). The Commercial Terms and these Terms will together form the
port agency agreement between the Agent and the Principal (the "Agreement"). If
there is any conflict between the Commercial Terms and the provisions contained
herein, the Commercial Terms shall prevail.
1.3 These Terms supersede any earlier terms of
business the Agent may have provided previously.
2. APPOINTMENT
2.1 From the date of agreement of the Commercial Terms
referred to in Clause 1.2 above (the "Appointment Date"), the Principal formally
appoints Agent as its port agent to act on its behalf in relation to the vessel
in accordance with the terms and conditions of the Agreement.
3. AGENT'S DUTIES
3.1 Unless
agreed otherwise by the parties, the Agent shall:
(a) Provide
those services a port agent would ordinarily provide in the course of good
industry practice (the "Services");
(b) Exercise
due care and diligence in performing the Services in accordance with the terms
and conditions of the Agreement;
(c) Have
authority to place orders with suppliers and contractors on the Principal's
behalf, however in no circumstances shall the Agent become liable in respect of
the negligent performance of such suppliers and contractors nor in any respect
for any payment due to such suppliers and contractors;
(d) Have
authority to appoint sub-agents to perform services on the Principal's behalf.
However, the Agent will not be responsible for the negligent acts or defaults of
sub-agents unless the Agent has failed to exercise due care in the appointment
and supervision of such sub-agents. Notwithstanding the foregoing, the Agent
shall be responsible for the acts of his subsidiary companies appointed within
the context of this sub-clause 3.1(d); and
(e) Strictly
observe the shipping laws and regulations of the country in which the Services
are being carrying out.
4. PRINCIPAL'S DUTIES
4.1 The Principal shall at all times during the
continuance of the Agreement act dutifully and in good faith in accordance with
the terms and conditions of the Agreement which shall include, but not be
limited to, the following:
(a) Making
payments when such payments are due and payable;
(b) Promptly
providing all documentation that the Agent may require in order to fulfil its
Services;
(c) Giving
full, timely and accurate information regarding the vessel's schedules, ports of
call and line policy insofar as it affects the Agent's Services; and
(d) Providing
any other support or assistance that the Agent may require in order to fulfil
the performance of its Services under the Agreement.
5. REMUNERATION
5.1 In consideration of the Services performed by the
Agent in respect of a vessel's call at port, the Principal shall pay the Agent a
fee (the "Fee") in the amount and in the manner set out in the Commercial Terms
that form part of the Agreement.
5.2 The Agent shall also be entitled to reimbursement
by the Principal of all reasonable out of pocket expenses incurred by the Agent
in performing the Services and shall be entitled to payment by the Principal of
an additional fee in the event of:
(a) unexpected
occurrences creating additional work or delay to the vessel; or
(b) if the
Principal requires the Agent to perform duties that are outside of the scope of
the Agreement.
until such
payment has been received by the Agent.
5.3 The Principal shall pay all monies due and payable
to Agent within 30 calendar days of the receipt of an invoice from the Agent.
5.4 The Principal shall pay by telegraphic transfer to
the Agent's bank account no later than one week prior to the arrival of the
vessel at port such sum as the Agent may request as an advance on port
disbursements which the Agent estimates will be incurred on the Principal's
behalf.
5.5 If the Principal fails to make any payment in
accordance with Clauses 5.3 and 5.4, the Agent may either:
5.6 The Agent shall be entitled to deduct from any
monies held by the Agent on behalf of the Principal as part of its Services,
such amounts as are required to cover all past and current payments due to the
Agent from the Principal.
5.7 The Agent shall use reasonable efforts to ensure
that the proforma disbursement account is as accurate as possible. The proforma
disbursement account is, however, only an estimate and the actual disbursements
that are incurred by Agent and set out in the final disbursement account at the
end of the Services may for various reasons beyond the Agent's control vary from
the proforma disbursement account. The Principal hereby agrees to be liable for
and to pay in accordance with these Terms the full amount described and shown in
the final disbursement account.
5.8 If the Principal fails to make payment in full on
the relevant due date of any sums due and payable to the Agent in accordance
with the Agreement, the Agent shall be entitled to recover all costs of
collection (including reasonable attorney's fees) and interest on such sums
outstanding at the rate per annum of 2% above LIBOR applicable during the period
from such due date up to and including the date of payment.
5.9 If the Principal disputes all or part of any
invoice, it shall return the invoice to the Agent specifying in writing the
reasons for the Principal's rejection within seven (7) calendar days of receipt
of such invoice. The Agent may then either:
(a) send an
amended invoice to the Principal; or
(b) issue a
credit note to the Principal; or
(c) send the
Principal an invoice covering the undisputed part. The invoice for the disputed
part may be sent, as the case may be, after the settlement of the dispute.
The Principal
shall be obliged to pay only the undisputed part of a disputed invoice. The
Principal's failure to reject an invoice within the seven (7) day period
referred to in this clause 5.9 shall mean that the whole of such invoice shall
be deemed undisputed.
5.10 Where the Agent has incurred costs in
anticipation of a vessel's call which is subsequently cancelled, or for which
the Agent is not appointed, then the Agent shall be reimbursed by the Principal
in respect of all such costs incurred.
6. LIABILITY AND INDEMNITIES
6.1 The Principal agrees that the Agent's total
aggregate liability to the Principal, whether for breach of contract, tort
(including negligence and misrepresentation), breach of statutory duty or
otherwise arising out of or in connection with the Agreement and whether related
to any act, error, omission, statement or delay in acting committed by the
Agent, its directors or employees shall not exceed the amount equal to ten (10)
times the Fee. In no circumstances shall the Agent be liable for any indirect or
consequential losses suffered by the Principal arising out of or in connection
with the Agreement.
6.2 The Principal shall protect, defend, indemnify and
hold the Agent harmless from and against any and all claims, liabilities,
charges, losses, damages and expenses of every kind and nature in respect of:
(a) personal
injury or death of any member of the Principal Group or of any third party;
(b) loss or
damage to any property of the Principal Group or of any third party,
arising in
connection with the Agent's performance of its Services under the Agreement; and
"Principal Group" means the Principal, the crew, owners, operators, charterers,
all of Principal’s affiliates, contractors and their contractors and
subcontractors of any tier and the respective agents, officers, directors and
employees of all the above. This indemnity shall not extend to matters arising
by reason of the negligence or wilful misconduct of any member of Agent Group.
6.3 The
Agent shall protect, defend, indemnify and hold the Principal harmless from and
against any and all claims, liabilities, charges, losses, damages and expenses
of every kind and nature in respect of:
(a) personal
injury or death of any member of the Agent Group or of any third party;
(b) loss or
damage to any property of the Agent Group or of any third party,
arising in
connection with the Agent's performance of its Services under the Agreement; and
"Agent Group" means the Agent, its affiliates, contractors, officers, directors
and employees. This indemnity shall not extend to matters arising by reason of
the negligence or wilful misconduct of any member of Principal Group.
6.4 The Principal hereby agrees that no claim or
allegation of any kind shall be made against any of the Agent's directors,
officers or employees (hereinafter collectively called the "beneficiaries") for
any loss, damage or delay of whatsoever kind arising directly or indirectly from
any negligent act, error or omission of the beneficiaries in the performance of
the Services the subject of the Agreement. The beneficiaries shall have the
benefit of this clause and in entering into the Agreement the Agent, to the
extent of this provision, does so not only on its own behalf, but also as agent
or trustee for the beneficiaries, who shall to the extent of this clause only be
or be deemed to be parties to the Agreement.
6.5 The Agent shall perform its Services with due
dispatch but shall not be liable for any loss or damage arising from any delay
which the Agent could not reasonably prevent.
6.6 The Agent shall be discharged from all liability
whatsoever to the Principal unless a claim is submitted within one year of the
occurrence of the originating event upon which the claim is made.
7. PROVISION OF INFORMATION
7.1 The
Principal agrees to provide the Agent with all information that is reasonably
required for the Agent to perform its Services and to ensure that such
information is, and remains, true and accurate in all material respects and is
not misleading. Unless agreed otherwise, the Agent will not check the accuracy
or completeness of such information. .
7.2 The
Principal is responsible for ensuring that it has all necessary rights to supply
the Agent with the information it provides and that the Agent's use of that
information will not infringe the rights of any third party or result in a
breach of any law, rule or regulation. The Principal shall indemnify and hold
harmless the Agent (and any of its affiliates) from and against all loss or
damage arising from claims, actions, proceedings or demands due to such
infringement of third party rights or breach of law, rule or regulation.
7.3 The
Agent's primary duty in respect of the exchange of ISPS Code compliance
information between the vessel and the shore authorities is limited to correctly
notifying the Principal of the information required, the date by which it is
required and the address to which it must be sent. If the Agent is additionally
required to pass the information on, its liability is extended to include
ensuring the information provided by the vessel is correctly lodged with the
relevant shore authority within the required time limit, provided the
information is provided by the Principal to the Agent within a reasonable time
prior to such time limit. Any failure by the Agent to undertake these duties
with the utmost skill and care can render it liable for any delay resulting
therefrom. Under no circumstances, however, will the Agent be liable for the
accuracy of the information provided by the Principal, or if it fails to make
the information available to the Agent within the required time limit or for any
other error or failure that may occur which is beyond the Agent's reasonable
control.
7.4 All
communications between the Agent and the Principal will be treated by the
parties as confidential and will be disclosed to third parties only with the
written consent of the other party or if required by law.
8. FORCE MAJEURE
8.1 Except for obligations to pay any amount due,
neither the Agent nor the Principal shall be liable in any way for failure to
perform its respective obligations under the Agreement if the failure is due to
causes outside the reasonable control of the party which has failed to perform.
9. TERM
9.1 The
Agreement shall commence on the Appointment Date and shall, unless terminated at
an earlier date pursuant to the Agreement, terminate automatically without
notice on the date the vessel leaves the port.
9.2 Either
party has the right at any time after the Appointment Date to terminate the
Agreement provided it shall give thirty (30) calendar days written notice to the
other party.
9.3 Upon
termination of the Agreement for whatever reason, the Principal will pay to the
Agent all outstanding fees and disbursements due and payable as at the date of
termination. All accrued rights and liabilities under the Agreement shall
survive and remain in full force and effect notwithstanding termination.
10. ENTIRE AGREEMENT
The Agreement
represents the entire understanding between the parties and supersedes any and
all previous discussions correspondence understandings and communications
(whether written or oral) between the parties with respect to the subject matter
hereof.
11. VARIATION
The Agreement
may be varied only by a document signed by both of the parties.
12. WAIVER
12.1 A
waiver of any term, provision or condition of, or consent granted under, the
Agreement shall be effective only if given in writing and signed by the waiving
or consenting party and then only in the instance and for the purpose for which
it is given.
12.2 No
failure or delay on the part of any party in exercising any right, power or
privilege under this agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
12.3 No
breach of any provision of the Agreement shall be waived or discharged except
with the express written consent of the parties.
12.4 The
rights and remedies herein provided are cumulative with and not exclusive of any
rights or remedies provided by law.
13. COSTS
Each of the
parties shall bear its own legal, accountancy and other costs, charges and
expenses connected with the negotiation, preparation and implementation of the
Agreement and any other agreement incidental to or referred to in the Agreement.
14. ASSIGNMENT
No party may,
without the prior written consent of the other, assign the benefit of all or any
of its obligations under the Agreement, nor any benefit arising under or out of
the Agreement.
15. SEVERABILITY
If any
provision in the Agreement is or becomes invalid, illegal or unenforceable then
it shall, to the extent required, be severed and shall be ineffective and the
validity of the remaining provisions shall not be affected in any way.
16. NO PARTNERSHIP
Nothing in the
Agreement and no action taken by the parties pursuant to the Agreement shall
constitute, or be deemed to constitute, the parties a partnership, association,
joint venture or other co-operative entity.
17. DISPUTE RESOLUTION AND GOVERNING LAW
17.1 The Agreement shall be governed by and construed
in accordance with the laws of Singapore.
17.2 Any
dispute arising out of or in connection with the Agreement, including any
question regarding its existence, validity or termination, shall be referred to
and finally resolved by arbitration in Singapore in accordance with the
Arbitration Rules of the Singapore International Arbitration Centre ("SIAC
Rules") for the time being in force, which rules are deemed to be incorporated
by reference in this clause. The Tribunal shall consist of three arbitrator(s)
and the language of the arbitration shall be English.