Standard Terms & Conditions
All transactions entered into by the Company in connection with or arising out of the Company’s business are subject to the following terms and conditions (hereinafter the “Conditions”) unless otherwise agreed by the Company in writing.
If any law or regulation governs the Services provided by the Company, these Conditions shall, with regard to such Services only, be subject to such law or regulation. However, nothing in these Conditions shall be construed as a waiver by the Company of any of its rights or an increase of any of the Company’s responsibilities or liabilities under such law or regulation. If any provision of these Conditions is invalid or unenforceable under any such law or regulation, there will be added in lieu thereof a provision as similar in terms to such provision as is possible and be valid and enforceable.
I. Defined Terms. As used in these Conditions, the following terms shall have the following respective meanings:
- “Company” includes Norton Lilly International, Inc., an Alabama corporation, its subsidiaries and affiliates (or any company under the management control of one of such entities) used to perform the Company’s duties under these Conditions.
- “Services” means the services which are provided by the Company to the Principal, whether same be by way of charge, fee, commission or remuneration of any other kind.
- “Supplier” means the company, firm or person who contracts to supply Services to the Principal through the Company.
- “Principal” means the company, firm or person who has or whose representatives have instructed the Company and who is the owner or charterer or operator or manager of the vessel represented by the Company and/or the carrier under the bill of lading in connection with which Services are provided by the Company.
- “Direct Representative” means the Company acting in the name of and on behalf of the Principal.
- Words importing the singular number shall include the plural and vice versa, words importing the masculine shall include the feminine and neuter and vice versa and words importing persons shall incorporate bodies corporate, unincorporated associations and partnerships.
- The headings in these Conditions are for convenience only and shall not affect their interpretation.
II. Transactions with the Principal. The following terms and conditions shall apply to transactions with the Principal:
- The Principal shall indemnify the Company in respect of all liabilities incurred by the Company when acting as a port agent or liner agent or booking agent on the Principal’s behalf and/or when providing any Services to the Principal. This indemnity shall include but not be limited to all third-party claims, charges, losses, damages, taxes, duties, costs and expenses (including, without limitation, interest, penalties and legal fees) that the Company may incur during the performance of the Services, not with standing any termination of the contract between the Principal and the Company. This indemnity shall not extend to matters arising by reason of willful misconduct of the Company.
- The Principal shall pay forthwith by telegraphic transfer to the Company’s bank account such sums as the Company may request as an advance on port disbursements which the Company estimates will be incurred whilst the Principal’s vessel is in the Company’s agency. If the Principal should fail to comply with the Company’s request, the Company may at any time give notice of the termination of its agency.
- On completion of each of the Services, the Company shall provide the Principal with an account of all disbursements incurred in connection with the Principal’s vessel.
- If there is any outstanding balance to be settled by the Principal, payment shall be due immediately on receipt of the disbursement account, by telegraphic transfer to the Company’s bank account. The Principal shall have thirty (30) days to raise any questions, objections or any other clarifications in relation to the disbursement account, failing which the Principal waives any rights to reject payment and the amount due to the Company shall be treated as a debt.
- If there is any outstanding balance due to the Principal, the Principal shall provide bank account details and request reimbursement of such amount from the Company. The Company will then arrange for funds to be sent by telegraphic transfer to the Principal’s bank account. If the Principal fails to provide bank account details or request reimbursement of any outstanding balance within twenty-four (24) months of receipt of a disbursement account from the Company, the Principal hereby waives any rights of recovery of the outstanding balance and the outstanding balance will become the property of the Company.
- The Company shall be entitled to deduct from sums held by the Company for the Principal’s account any amounts due to the Company from the Principal.
- The Company shall have authority to appoint sub-agents in its sole and absolute discretion to perform services on behalf of the Principal, including such Services as may be subject to these Conditions. However, the Company shall not be responsible for the actions of any such sub-agent(s).
III. Transactions with the Supplier. The following terms and conditions shall apply to transactions with the Supplier:
- Unless otherwise stated in writing, when the Company is acting as a port agent or liner agent or booking agent it acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Supplier as agent for the Principal. The Company shall not be personally liable to pay any debt or expense due to the Supplier from the Principal.
- The Company shall exercise reasonable care and diligence in providing Services.
- The Company shall perform the Services with due dispatch but shall not be liable for any loss or damage arising from any delay which it could not reasonably prevent. Without prejudice to the foregoing, in the event that the Company is deemed to be liable for any delay, its liability shall in no event exceed the amount of the Company’s charges in respect of the transaction.
- The Company will under no circumstances be liable for loss of profits, business interruption, loss of business, loss of market, loss of revenue, loss of production or the consequences of delay or deviation, loss of reputation, indirect or consequential losses or damage caused by any event or cause that the Company was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence or damage which was not solely caused by the act or omission of the Company or which would have occurred in any event.
- Any claim against the Company must be made in writing and notified to the Company within 14 days of the date on which the Principal 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 Company 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 Company within one year of the end of performance of the Services giving rise to such claim.
V. Ethics and Bribery.
- The Company is subject to the US Foreign and Corrupt practices Act 1977, as amended, as well as other applicable international laws or regulations in relation to ethics and bribery. The Company adheres to these laws and regulations through its ethics policy and codes of conduct. The Company has a zero-tolerance approach to breaches of any laws or regulations relating to ethics or bribery.
- If in performing any of the Services or complying with the terms of the Conditions the Company encounters a breach or believes that a breach of the relevant ethics or bribery laws or regulations will occur, the Company will immediately notify the Principal and discontinue from carrying out its obligations to the extent that the performance of them relates in any way to the breach and will not be liable to the Principal for any damages arising from the Company’s discontinuance.
- The Company shall have no liability to the Principal for any claims, losses, liabilities or expenses related to a breach of ethics or bribery laws or regulations, as described above and will not be required to continue performance of the Services or the Conditions until the breach of the laws or regulations has been fully investigated and measures put in place to prevent any further breaches.
- The Company is legally bound to comply with United States of America (OFAC) sanctions and export control programs, as well as any other similar applicable sanctions and export control laws or regulations in other jurisdictions (“Sanctions”). The Principal will provide written notification to the Company if any services that it asks the Company to perform relate to vessels that are in route to or from a port that is the subject of comprehensive country-wide Sanctions and, if so, certify that an OFAC license or exemption applies to the vessels’ activity and provide a copy of or reference to such license or exemption, or otherwise certify and demonstrate to the satisfaction of the Company that by providing services to or for the vessel activity the Company will not thereby violate Sanctions or risk the imposition of any Sanctions on the Company. If the Principal requests the Company to perform any services that the Company reasonably believes would violate Sanctions or risk the imposition of any Sanctions on the Company, the Company will notify the Principal and confirm the extent to which the Company is prevented from performing, or due to the risk of a sanctions designation unable to perform, the services requested.
- The Company shall have no liability to the Principal for any claims, losses, liabilities or expenses related to the inability or unwillingness of the Company to perform any services due to Sanctions risks or issues.
- The parties agree that any information exchanged between them in connection with or arising out of the Services shall be treated as confidential and shall not be disclosed, released or shared with any third party without the disclosing party’s express written permission, unless required to do so to perform the Services. The obligations contained in this Section shall be binding on the parties for a period of five years from the date of exchange of the information, save that nothing shall prevent a party form disclosing, releasing or sharing information which: (i) is in its possession prior to receipt from the disclosing party; (ii) is publicly known, otherwise than as a consequence of a breach of this Section; (iii) is developed independently by the receiving party; (iv) is received from a third party without similar restrictions and without a breach of this Section.
- Fees for the Services to be provided by the Company to the Principal and costs of port or other disbursements expected to be incurred shall be provided by the Company to the Principal and agreed in advance of the Services being performed. If the Principal, as the case may be, fails to make payment in full of any sums due to the Company on demand or within any period agreed in writing, the Company shall be entitled to recover interest on any sums outstanding with effect from the date of first demand at the rate of 18% per annum during the period when the sums are outstanding. Such interest shall accrue on a daily basis from the due date until payment in full is received by the Company. The Company shall be entitled to claim and recover all costs and expenses, on a full indemnity basis, incurred in the collection of payments due.
- It is hereby expressly agreed that no servant, employee or agent of the Company (which for the purpose of this Section includes every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever under these Conditions for any loss, delay or damage of whatsoever kind arising or resulting directly or indirectly, in whole or in part, from any act, neglect or default on any such party while acting in the course of or in connection with these Conditions. The Principal undertakes to hold harmless, defend and indemnify the aforementioned parties for any and all debts, claims, demands, actions, proceedings and claims arising as a consequence of any such loss, damage or delay, including reimbursement of any and all reasonable costs and legal fees incurred in defending such actions.
- Without prejudice to the generality of the foregoing provisions, every exemption from liability, limitation, condition and liberty herein contained and every right, defense and immunity of whatsoever nature applicable to the Company or to which the Company is entitled, shall also be available and shall extend to protect every such servant, employee and agent of the Company acting as aforesaid.
- The Company shall be entitled to retain and be paid any brokerages, rebates, volume discounts, commissions, allowances or other similar payments from any parties. The Company actively sources Suppliers to support its Principals’ vessels and service requirements. In some cases, the Company’s choice of Suppliers may result it in benefitting from certain economic incentives. These include: (i) the receipt of discounts from vendors based on the total volume of business which the Company provides to such vendors; (ii) the receipt of economic incentives for marketing the services of vendors; (iii) ad-hoc economic incentives earned by the Company for providing administrative support to vendors, and (iv) prompt payment discounts. The existence or absence of such incentives does not affect the prices paid by the Principals, save that, to the extent agreed with its Principals, the Company passes economic incentives through to its Principals.
- In order to generate business, the Company may also provide incentives to intermediaries. This includes the payment of fees. The existence or absence of such arrangements with intermediaries does not affect the prices paid by the Principals. Where the Company provides incentives to intermediaries, the Company requires the intermediaries to confirm that: (i) the nature and amount of such incentives are disclosed to the intermediaries’ principals; and (ii) in engaging the Company to perform the services, the intermediaries have done so in compliance with all applicable anti-bribery and corruption laws.
- All business conducted by the Company, including its interaction with the Principal, Suppliers and intermediaries, is subject to its Code of Ethics. The Code Ethics is designed to identify a set of aims, values and rules which govern how the Company and its employees will conduct business on behalf of the Company. A copy of the Code of Conduct and Ethics is available on request.
- Where the Principal are acting on behalf of a third party, in the capacity of an agent or intermediary, the Principal confirm: (i) that the nature and amount of any brokerages, rebates, volume discounts, commissions, allowances or other similar payments negotiated with the Company are disclosed to their principals; and (ii) in engaging the Company to perform the Services they have done so in compliance with all applicable anti-bribery and corruption laws.
- The Supplier and the Principal each undertake with the Company that no claim or allegation of any kind shall be made against any of the Company’s directors officers employees servants or agents (herein collectively called “the Beneficiaries”) for any loss damage or delay of whatsoever kind arising or resulting directly or indirectly from any negligent act error or omission of the Beneficiaries in the performance of the Services the subject of these Conditions. The Beneficiaries shall have the benefit of this undertaking and in entering into this contract the Company, 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 Section only be or be deemed to be parties to this contract.
- The Principal shall arrange for the Company to be added to its P&I entry as a co-insured, without any obligation to pay premium, providing the Company with protection against any claims that are traditionally the responsibility of the Principal but is made against the Company in its capacity of the Principal’s agent or due to the local laws making the Company responsible for the liabilities of the Principal or the vessel while under the agency of the Company.
- The right, title and interest (including any intellectual property rights) in and to any data collected as part of the services performed by the Company for the Principal, where it can be, is vested in the Principal. The Principal grants the Company a non-exclusive royalty-free worldwide license to use, copy, store, transmit or modify such data to develop and improve its products & services and to create and distribute reports and other materials for its principals and customers (this includes the right to publicly display the same). Any Principal data will only be used in aggregation with other data and the results will not be personally identifiable to the Principal.
- The Company may assign, in its sole discretion, any of or all its rights, interests and obligations under these Conditions to any company within the Norton Lilly International, Inc. group of companies.
- The exclusions and/or limitations set out in these Conditions shall apply whether a claim against the Company is bought in contract, tort (including for negligence) breach of statutory duty or for any other cause whatsoever.
- These Conditions and any act or contract to which they apply shall be subject to that laws of the State of Alabama without regard to conflicts of laws principles. Any and all claims, disputes, controversies, suits or actions arising out of or relating to the provisions of these Conditions, any act or contract to which they apply, or the subject matter hereof, shall be adjudicated exclusively in either the Circuit Court or District Court for Mobile County, Alabama, or the Federal District Court for the Southern District of Alabama, which courts shall have the exclusive jurisdiction and venue for any and all said claims, disputes, controversies, suits or actions.
- If a court or tribunal 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. If there is any conflict between these Conditions and any other terms and conditions agreed between the parties these Conditions shall prevail unless the Company specifically agrees otherwise in writing.