1. Applicability. This Rule applies to all NVOCC Shipping
Arrangements (as hereinafter defined, "NSA") entered into
by Carrier in accordance with 46 C.F.R. § 531.2 and, to the
extent stated herein, is subject to the terms and
conditions of NVOCC's Bill of Lading or Sea Waybill in
effect at the time of receipt of cargo for shipment
("Carrier's Bill of Lading") and Carrier's tariffs of
general applicability and/or Carrier's Essential Terms
Tariffs, as published in accordance with Federal Maritime
Commission ("FMC") regulations. Except as otherwise
expressly agreed in the NSA, all compensation,
assessorials, surcharges, arbitraries and other charges
(including freight, demurrage and detention) as set forth
in Carrier's applicable tariff(s) shall be due and payable
in accordance therewith.
Except as otherwise expressly provided in the NSA, the NSA
Shipper accepts the terms and conditions of Carrier's bills
of lading, waybills and tariffs, as applicable. The term
Shipper shall be the same as the term "Merchant" as defined
in Carrier's bill of lading and includes both shipper and
consignee.
2. Definitions. In the NSA, except where the context
otherwise requires, words and expressions shall have the
same meanings as defined in 46 C.F.R. § 531.5 or Carrier's
bill of lading, or hereby assigned to them as follows:
"Affiliate" means two or more entities, which are under
common ownership or control by reason of being parent and
subsidiary or entities associated with, under common
control with, or otherwise related to each other through
common stock ownership or common directors or officers.
"FMC" means the Federal Maritime Commission.
"Duration" means the term that this NSA is effective which
shall be from the Effective Date set forth in the NSA or
on the date filed with the FMC in accordance with 46 C.F.R.
part 531, whichever is later, to the Expiration Date set
forth in the NSA
"NSA Shipper" means the party set forth the NSA (or its
Affiliate) that is a cargo owner, the person for whose
account the ocean transportation is provided, the person to
whom delivery is to be made, or a shippers' association.
"NSA" means an NVOCC Service Arrangement as defined in 46
C.F.R. part 531.
"Carrier" means the company named as Carrier in the NSA and
on the face of Carrier's Bill of Lading issued for the
transportation of Goods hereunder.
"Goods" is defined in the Bill of Lading.
"Package" is as defined in the Carriage of Goods by Sea
Act, 46 U.S.C. 1300, et seq. and decisions pursuant
thereto.
3. Essential Terms: Subject to the terms and conditions
provided for herein, the NSA contains the provisions
relating to Duration, Commodities, Port Ranges and the
Minimum Quantity of Goods committed by NSA Shipper Minimum-
Quantity Commitment"). These Essential Terms are published
in Carrier's tariff for each NSA.
For purposes of determining and interpreting the Minimum
Quantity Commitment, the following formula shall be used to
determine forty-foot-equivalent units ("FEUs"):
20 - foot container shall equal 0.5 FEU
40 - foot (8'6") container shall equal 1.00 FEU
40 - foot (9'6") container shall equal 1.00 FEU
45 - foot container shall equal 1.00 FEU
4. Rates, Payment and Credit - Carrier shall charge and the
NSA Shipper shall pay for all transportation and related
services with respect to the Goods tendered under this NSA
at the rates set forth in Appendix A to the NSA and such
additional charges as are required by Carrier's governing
tariff or tariffs.
4.1 Unless prior credit or payment arrangements have been
agreed to in writing by Carrier, all transportation and
related charges hereunder shall be paid prior to Carrier
transporting the Commodities.
4.2 NSA Shipper shall remit all payments to Carrier via (i)
good funds, (ii) Automated Clearing House (ACH) or (iii)
wire transfer in lieu of check, whereby such form of
payment shall be determined at Carrier's sole discretion
and shall be paid no later than one (1) day prior to the
Vessel's arrival at the Port of Discharge named on the face
of the Bill of Lading or Sea Waybill covering such shipment
as follows:
Bank Name: ____________
Bank Address: ____________
Account Name: ____________
ABA Number: ____________
Account Number: ____________
NSA Shipper shall provide Carrier remittance details along
with the actual payment. If NSA Shipper has established
credit prior to shipping, NSA Shipper agrees to pay all
transportation and related charges hereunder within thirty
(30) calendar days from the date of Carrier's invoice.
Failure to pay invoices in a timely manner may result in
NSA Shipper being placed on a prepaid cash basis.
5. Liquidated Damages - If NSA Shipper fails to timely book
and deliver the Minimum Quantity Commitment set forth in
the NSA, it shall be liable to the NVOCC for liquidated
damages in the amount of $100 per FEU. Unless otherwise
expressly agreed in an NSA, a timely booking shall be not
less than ten (10) days prior to vessel arrival at the port
of loading and timely delivery will be delivery to a
designated ocean common carrier prior to vessel cutoff with
complete and accurate documentation. This amount shall be
in lieu of actual damages, if any, which would be
difficult, if not impossible, to ascertain to a reasonable
certainty. Bills of Lading, or Sea Waybills as may be
issued in lieu thereof, covering shipments of Goods moving
under the terms of this NSA shall be annotated by the NSA
Shipper or its agent(s) with the NSA Number of the
Arrangement. Shipments moving on Bills of Lading not so
annotated shall not be counted toward the NSA Shipper's
Minimum Quantity Commitment; provided however, that the NSA
Shipper shall have reasonable time within which to remedy
such omission after the fact. For the purpose of
determining whether movement of Goods took place during
this NSA, the pertinent date shall be the date of receipt
of Goods by Carrier or its agent. The total of any amounts
owed pursuant to this sub-clause 4.2 shall be paid directly
to Carrier within thirty (30) days following the date of
Carrier's invoice. If there is a disagreement as to the
volume of Goods transported under this NSA, the parties
shall grant each other access to their records relating to
this Arrangement.
6. Carrier's Service Commitment: Carrier shall accept
Shipper's timely bookings, provide the transportation as
required by the Shipper and deliver the shipments to
Shipper in accordance with the terms and conditions of
Carrier's bill of lading. Failure of Carrier to provide
such service shall result in a reduction in the Shipper's
minimum quantity commitment for each container on which
Carrier has not provided the agreed service.
7. Terms Covering Additional or Special Services. In
addition to providing ocean common carrier services in the
U.S. and foreign trade, Carrier may provide additional
and/or other related logistics services as may be agreed in
Box 5.6 of Part I, the terms of which, when referred to in
Box 5.6, shall be incorporated herein by such reference to
the extent not inconsistent with this NSA and, in the event
of a conflict of conditions between this NSA and all
documents incorporated by reference. The terms of this NSA
and its schedules shall control to the extent of such
conflict but no further. Any terms covering additional or
special services, if not expressly stated herein or
attached hereto, shall be made available upon request as
described in this NSA.
8. Amendment and Cancellation.
8.1 The NSA may be amended at any time to any extent and in
the manner prescribed by applicable FMC regulations by
agreement between the parties. Unless otherwise
specifically indicated in the NSA, Goods not shipped shall
be subject to Liquidated Damages as provided for in Clause
4.2.
8.2 Carrier may terminate this NSA upon written notice in
accordance with Clause 13 as follows:
(i) NSA Shipper becomes insolvent, is unable to pay
its debts when due, files for bankruptcy or
reorganization, is the subject of involuntary
bankruptcy, has a receiver appointed, or
assigns all or substantially all of its assets
to an unaffiliated third party; or
(ii) NSA Shipper is in breach of its payment
obligations pursuant to the terms of the NSA or
any other agreement between Carrier and NSA
Shipper.
(iii)NSA Shipper has fulfilled its MQC.
Any such termination of the NSA shall be without prejudice
to all rights accrued between the parties prior to the date
of termination.
8.3 AMENDMENT VIA ELECTRONIC SIGNATURE / E-MAIL
After the parties have signed this NSA and it has been
filed with the Federal Maritime Commission (FMC), the
parties may enter into subsequent amendments in an
electronic mail format (e-mail), transmitted via the
Internet and executed, modified or amended by the parties
with an electronic signature. In the event that this NSA
is amended in an electronic mail format and executed with
an electronic signature, all terms and conditions contained
in the NSA shall have full legal effect, validity and
enforceability. The term “electronic signature” means an
electronic symbol attached to or logically associated with
the NSA and executed or adopted by a person with the intent
and authorization to sign this NSA, including the person’s
name typed on the signature line of the NSA, followed by
the signature designation(s), or an exchange of e-mails
between the parties to which the parties attach this NSA
and such amendment and in which such parties state that
they AGREE or ACCEPT its terms and conditions.
The following parties are the only ones representing the
CARRIER who may sign electronically and the e-mails may
only be sent from the following e-mail addresses:
Name & Title E-mail Address
XXXX XXXXXXX
The following parties are the only ones representing the
SHIPPER who may sign electronically and the e-mails may
only be sent from the following e-mail addresses:
Name & Title E-mail Address
XXXX XXXXXXX
9. Carrier's Right to Assignment or Sub-Contract. Carrier
shall have the right to assign or sub-contract any of its
obligations hereunder without the prior written consent of
NSA Shipper; provided, however, that in the event of such
an assignment or a sub-contract, Carrier shall remain fully
liable for the due performance of its obligations under
this NSA.
10. Responsibilities.
10.1 Force Majeure - Notwithstanding any other provision of
the NSA or the applicable bill of lading or tariffs,, to
the extent Carrier or the NSA Shipper fails to meet any
obligation imposed by the terms of the NSA owing to Force
Majeure, performance of the NSA shall, to that extent, be
deemed to have been frustrated and no cause of action for
breach or liability shall arise as a consequence thereof.
For the purpose of the NSA, "Force Majeure" means and
includes without reservation or restriction, strikes,
lockouts, labor disputes or exceptional circumstances
arising from the threat thereof; acts of God, State, or the
public enemy, including but not limited to, war, terrorism,
riots, civil disorder or insurrection, embargo or other
disruption or interference with trade including without
limitation any interference with land (including rail) or
water transportation beyond Carrier's control; natural
disaster, inclement weather, marine disaster, perils of the
sea, including but not limited to, fire or other casualty
which materially frustrates the ability of either party to
perform under this NSA. The party declaring Force Majeure
must give written notice in accordance with Clause 13
within thirty (30) days of the event giving rise to the
Force Majeure and NSA Shipper's Minimum Quantity Commitment
or requirements, as the case may be, shall be reduced by a
percentage calculated by dividing the number of days that
the Force Majeure circumstance existed by the number of
days the NSA will be in effect, rounded upward to the next
volume unit.
10.2 Indemnity - NSA Shipper shall indemnify, defend and
hold Carrier harmless from and against any and all
liabilities, including but not limited to suits, demands,
causes of action, damages adjusted due or claims reasonably
settled, penalties, costs and expenses (including
reasonable attorneys' fees) arising from or in connection
with the negligence, gross negligence or willful misconduct
or breach of this NSA, any other agreement between Carrier
and NSA Shipper or violation of any applicable law or
regulation by NSA Shipper in connection with the NSA or any
other agreement between Carrier and NSA Shipper. Except
with respect to claims for loss of or damage to Goods which
shall be handled in accordance Carrier's bill of lading and
the Carriage of Goods by Sea Act, Carrier shall indemnify,
defend and hold NSA Shipper harmless from and against any
and all liabilities, including but not limited to suits,
demands, causes of action, damages adjudged due or claims
reasonably settled, penalties, costs and expenses
(including reasonable attorneys' fees) arising from or in
connection with the negligence, gross negligence or willful
misconduct or breach of this NSA or violation of any
applicable law or regulation by Carrier in connection with
the NSA.
10.3 Consequential Loss - In no event shall any claim for
loss of profits or incidental, special, consequential, or
liquidated damages of any nature whatsoever be made by NSA
Shipper against Carrier in any way arising from or in
connection with the NSA or any other agreement between
Carrier and NSA Shipper.
10.4 Vessel Operator Responsibility - NSA Shipper
acknowledges that Carrier is a non-vessel operating common
carrier and that its ability to act as a common carrier by
water is dependant on vessel operating ocean common
carriers from whom Carrier purchases ocean transportation
services. NSA Shipper agrees that Carrier will not be
liable to NSA Shipper for any failure to provide space or
equipment, if such failure is caused by the ocean common
carrier from whom Carrier purchases such ocean
transportation services.
11. General Provisions.
11.1 Headings - Captions used in the NSA or in this section
of the tariff are for convenience of reference only and
shall have no legal effect or meaning in the construction
or enforcement of the NSA.
11.2 Drafting - Whenever used in the NSA, the singular
shall include the plural and the plural shall include the
singular, and the neutral gender shall include the male and
female as well as a trust, firm, company, or corporation,
all as the context and meaning may require.
11.3 Severability - If, in any legal proceeding, it is
determined that any provision of the NSA or this tariff is
unenforceable under applicable law, then the unenforceable
provision shall automatically be amended to conform to that
which is enforceable under the law. In any event, the
validity or enforceability of any provision shall not
affect any other provision of the NSA, and the NSA shall be
construed and enforced as if such provision had not been
included.
11.4 Third Party Beneficiaries - Except as specifically
provided for elsewhere in the NSA, the NSA shall not be
construed to confer any benefit on any third party not a
party to it nor shall the NSA provide any rights to such
third party to enforce its provisions. NSA Shipper shall
keep Carrier informed regarding any incident of which NSA
Shipper becomes aware, which gives or may arise to claims
or disputes involving third parties.
11.5 Waiver - No benefit or right accruing to either party
under the NSA shall be waived unless the waiver is reduced
to writing and signed by both Carrier and NSA Shipper. The
failure of either party to exercise any of its rights under
the NSA, including but not limited to either party's
failure to comply with any time limit set out in the NSA,
shall in no way constitute a waiver of those rights, nor
shall such failure excuse the other party from any of its
obligations under the NSA.
11.6 Integration - Upon the request of NSA Shipper, Carrier
shall make the Carrier's Bill of Lading available to NSA
Shipper. The NSA and all documents attached hereto or made
available upon request as described in this Arrangement,
all tariff providiond incorporated by reference herein,
represent the final and complete agreement of the parties
for the NSA.
12. Dispute Resolution. The NSA, as it is maritime in
nature, shall be governed and construed in accordance with
the general maritime law of the United States of America,
the U.S. Federal Arbitration Act (Title 9 of the U.S.
Code), the Shipping Act of 1984, as amended by the Ocean
Shipping Reform Act of 1998, the regulations of the FMC
and, to the extent such laws are inapplicable, the laws of
the State of New York, excluding its conflict and choice of
law rules.
Any dispute arising out of or in connection with the NSA or
in any way connected with the shipment of Goods thereunder
(save for a dispute arising from or in connection with
general average) shall be referred to arbitration in New
York, NY, which shall be conducted by a panel of three
arbitrators whereby such arbitrators shall be chosen as
follows: one to be appointed by Carrier, one by NSA Shipper
or its Affiliate as applicable, and the third chosen
jointly by the arbitrators so selected. The decision of
such arbitrators, or that of any two of them, shall be
final, and for the purposes of enforcing any award
resulting from such arbitration, the parties consent and
agree that the United States District Court in the Southern
District of New York has personal jurisdiction over each of
them in any action to enforce an arbitration award entered
hereunder, concurrently with any other court of competent
having jurisdiction. The parties further agree that venue
is proper in the aforementioned court. Any and all
arbitration proceedings carried out pursuant to this Clause
13 shall be conducted in accordance with the rules of the
Society of Maritime Arbitrators, Inc. Awards made pursuant
hereto shall include costs, attorney's fees, interest and
expenses but shall exclude punitive damages. Any arbitral
award issues pursuant hereto may be enforced pursuant to
either the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards on June 10, 1958 or
the Inter-American Convention on International Commercial
Arbitration.
13. Notices.
13.1 Any notice to be given by either party to the other
party shall be in writing and may be sent by facsimile,
email (providing for electronic confirmation), registered
or recorded mail or by personal service.
13.2 The address of the parties for service of such
communication shall be as stated in the NSA and in effect
at the time of shipment in Carrier's governing tariffs(s)
shall be applied to shipments hereunder.
14. CONFIDENTIALITY: Unless authorized by the other party,
neither party will disclose the NSA terms and conditions
other than to its employees, agents, tariff filers, or
auditors, except for the NSA terms, conditions or
information that are:
(a) Required by law or legal process to be
published or disclosed;
(b) Incorporated herein by reference from a
published tariff;
(c) Disclosed to any person participating with the
Carrier in the transportation under the NSA or
receiving copies of the bill of lading for NSA
shipments;
(d) Previously disclosed to an unauthorized third
party.
Carrier and Shipper agree that in no case will either
disclose NSA terms and conditions to any shipper or
carrier, except as under (a) or (b) above.
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