These terms and conditions apply to all dealings between the Client and the Broker and will be effective whenever the Client requests the Broker to provide Services or the Client responds to the Broker in relation to the provision of Services. These terms and conditions create a legally binding agreement between the Client and the Broker (Client, Broker and Services are defined below).
Attention is specifically drawn to the provisions of these terms and conditions that limit the Broker’s liability.
- Definitions
In these terms and conditions the following definitions apply:
“Broker” Optima Shipping Services S.A., its branch offices, associated and subsidiary companies.
“Fixture” A contract or contracts for, including but not limited to, the sale, purchase, construction, repair, demolition, towage or charter of a Ship together with negotiations to enter such contracts.
“Negotiations” Exchanges, whether verbal or in writing, in relation to concluding a Fixture.
“Post Fixture Services” Assistance with communications, operational matters and claims arising from the performance of a Fixture.
“Principal” A party to a Fixture including the owner, seller, buyer, builder or charterer of a Ship and any party guaranteeing the obligations of such a party. Principal may include Client.
“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.
“Contract” The contract between the Broker and the Client for the supply of Services in accordance
with these terms and conditions.
“Ship” Any type of ship, other vessel and/or equipment used or intended to be used for any purpose on, in or over water including but not limited to yachts, rigs, jack ups, submersibles and barges.
“Client” 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 Client will additionally include the Principal.
The above definitions apply whether the defined words appear in the singular or plural form.
2. Services Covered
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 or other 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 into any Fixtures arising from the Services as a 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 or services such as providing ship valuations and/or specific market Such tasks or services may be subject to specific provisions (such as the wording of a valuation certificate) in addition to these terms and conditions. In the event of, and only to the extent of, a conflict between these terms and conditions and the specific provisions the latter will prevail. Otherwise these terms and conditions, including those as to limitation of liability, will apply.
- Obligations of the Broker
3.1 The Broker will perform the Services with the reasonable skill and care expected of a professional shipbroker.
3.2 In dealing with others the Broker will take care to stay within the authority given by the Client and to avoid misrepresentation.
3.3 During negotiations the Broker undertakes to pass on offers, counteroffers and other such communications accurately and in a timely This obligation applies both to passing communications to and from the Client.
3.4 It is understood that the Broker may be dealing with Representatives or other intermediaries rather than directly with a 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 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.
- Confidentiality
Where the Broker is given information stated by the Client to be on a confidential basis or it is expressly agreed that a Fixture is confidential (in either case “Confidential Information”) the broker will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from the Client. This obligation will not however extend to information which (i) was already or becomes known to the Broker through other sources not subject to such an obligation of confidentiality (ii) is or becomes known to the market generally other than as a result of a breach of this obligation or (iii) which the Broker is obliged to disclose pursuant to an order of a court or other such authority. In all cases such obligation of confidentiality shall be deemed to end three (3) years after the end of performance of the Fixture in question or in the absence of a concluded Fixture three (3) years from the end of the Negotiations.
- Obligations to the Broker
5.1 If the Client is a Principal, the Client warrants that it has full legal power to enter into the Fixture brought about by the If the Client is acting as a Representative, the Client warrants that it has the Principal’s authority (i) to accept these terms and conditions on their behalf and (ii) to make all offers, counteroffers and representations made during negotiations and (iii) to agree a Fixture on their behalf.
5.2 Where Services are provided, the Client is 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.
5.3 The Client 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), the Client will ensure the Broker has sufficient time to forward such messages, information and documents or take such action as may be required prior to the relevant time limit.
5.4 In relation to Post Fixture Services, if the Broker has asked the Client to use specific e-mail addresses for operational messages or claims then the Client will use those e-mail addresses. In the event that the Client does not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from the Broker, the Client undertakes 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.
5.5 The Client will take care to avoid misrepresentations occurring in Negotiations. The Client will carefully review all messages sent or copied to the Client and promptly advise the Broker of any errors or The Broker is not responsible for the consequences of a failure by the Client to review messages.
5.6 The Client warrants that neither the Services requested nor the Fixture are unlawful and are not of a nature that could render the provision of the Services by the Broker or performance of the Fixture 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 the Client, the Broker, a Representative or a Principal (ii) laws relating to money laundering, bribery and corruption. In the event that the Client becomes aware that the Services or the Fixture may be unlawful or that the provision of the Services by the Broker or the performance of the Fixture may be in breach of any such relevant law, the Client will promptly and fully inform the Broker of any such reason that comes to the Client’s 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.
- Market Reports
If the broker publishes market reports or commentary these are provided for general information only and not for use in relation to specific Fixtures. Such market reports do not constitute advice and nothing contained in such documents amounts to a recommendation to enter or not to enter a Fixture and the Broker has no liability for the consequences of any person, including the Client, purporting to rely on such market reports.
- The Broker’s Remuneration
7.1 In relation to Fixtures the Broker’s remuneration will (unless otherwise agreed) be in the form of a commission on the freight, hire, purchase price or contract price as the case may The level of the commission payable and the party responsible for payment will be set out in the Negotiations.
7.2 If the commission payable to the Broker is recorded in a commission clause or in a specific commission agreement then commission will be payable in accordance with that clause or The Broker will be deemed to have acted in reliance on the insertion of that clause and assented to the terms of the commission clause governing their right to commission.
7.3 If the Client is the party agreed to be responsible for paying the commission, it undertakes to make the payment or payments If the Client is not the party responsible for making the commission payment, the Client expressly agrees to procure the payment of such commission by any relevant Principal and to render all necessary assistance to the Broker in respect of its attempts to obtain payment of such commission by the relevant Principal.
7.4 Nothing in these terms will prevent the Broker from enforcing a commission clause or other clause conferring a benefit on them as a third party in accordance with the terms of the Fixture.
7.5 Unless otherwise agreed and in the absence of any specific provisions in the commission clause:
(i) on voyage charters commission is payable on dead freight and demurrage as well as on freight, freight shall include all items that comprise the freight rate, (ii) on time charters commission will be payable on the hire paid under the charter and any continuation or extension of the charter, (iii) on sale agreements commission is payable on delivery of the vessel and payment of the purchase price, (iv) on new building contracts commission is payable as and when each stage payment is Commission is payable on sums received by the Client as and when received and the Client will not withhold payment pending resolution of unconnected matters. Commission is exclusive of all taxes and duties.
7.6 Unless otherwise agreed, the tasks in Clause 2.4 will be subject to the agreement of a specific fee between the Client and the The Broker will invoice the Client at the completion of the Services or at such other times and in such stages as may have been agreed.
7.7 If the amount of commission or fee and/or the manner of its payment is not specifically agreed a reasonable commission or fee will be payable in accordance with market
- Limitation of Liability
THIS CLAUSE LIMITS THE BROKER’S LIABILITY TO THE CLIENT
8.1 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.
8.2 The Broker will, subject to the provisions of this Clause 8, be liable to the Client 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.
(ii) 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
(iii) Damage which was not solely caused by the act or omission of the Broker or which would have occurred in any event.
8.3 The Brokers total liability arising from or in connection with the Services shall in no circumstances whatsoever exceed the lower of (i) the amount of commission in fact paid to the broker by the Client in respect of the Services or Fixture in connection with which the claim arises or (ii) the sum of US$ 100,000 (United States Dollars One Hundred Thousand).
8.4 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 whatsover
8.5 Any claim against the Broker must be made in writing and notified to the Broker within fourteen (14) days of the date on which the Client 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 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 (1) year of the end of performance of the Fixture or in the absence of a concluded Fixture one (1) year from the end of the Negotiations.
- Miscellaneous
9.1 All intellectual property rights in or arising out of the Services belong to the Broker.
9.2 The Broker has a general lien on all documents in its possession or control for all sums due from the Client to the Broker whether arising out of the Fixture or otherwise.
9.3 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 affeted.
- Jurisdiction and Law
This Contract and any dispute or claim arising out of or in connection with it including its subject matter or formation (including any non-contractual obligations dispute or claims) shall be governed by and construed in accordance with the laws of England and Wales.
All disputes arising out of or in connection with this Contract shall, after an attempt to resolve such disputes amicably shall have been made in good faith, be finally settled by arbitration to be held in London in accordance with the terms of the Arbitration Act 1996.
Any arbitration shall be conducted in accordance with the London Maritime Arbitrators’ Association (LMAA) Terms current at the time when the arbitration proceedings are commenced. In cases where the value of the claim does not exceed the sum of USD 100,000 (or such other sum as the Parties may otherwise agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time the arbitration is commenced.
The arbitral tribunal shall, unless the parties agree to the nomination of a sole arbitrator and/or to the arbitration being conducted in accordance with the LMAA Small Claims Procedure, be constituted of three arbitrators, one to be appointed by each of the Client and the Broker and the third by the two so appointed. In the event that the Client is a Representative, it is agreed that the Representative and any Principal on behalf of which it is acting shall, together, constitute the Client for the purposes of the appointment procedure.