Terms and Conditions
Our following below terms and conditions of Handysize Chartering Pool shall apply to all dealings between you as a Client and Handysize Chartering Pool, and will be effective whenever and wherever you as a Client may request Handysize Chartering Pool to provide Services or Client respond to Handysize Chartering Pool in relation to the provision of Services. These Terms and Conditions of Business create a clear legally binding agreement between you as Client and Handysize Chartering Pool (Client, Handysize Chartering Pool and Services are all defined in writing below) and any of the below definitions do also apply whether the defined words appear in the singular or plural form. Please also note that your full attention is specifically to be drawn to the provisions of these Terms and Conditions of Business that limit Handysize Chartering Pool’s liability.
1. Definitions in our terms and conditions
In these below terms and conditions, the following definitions to apply:
“Handysize Chartering Pool” – Meaning the company:
Handysize Chartering LLC
The Seagram Building 375
Park Avenue Suite 2607
New York, NY 10152 USA
“The Freight Exchange” is also being used as our brand name.
“Client” – Meaning the party requesting Handysize Chartering Pool’s services or responding to Handysize Chartering Pool in relation to the provision of the Services. Where such party is acting as a Representative reference to You will additionally also include the Principal.
“Principal” – Meaning a party to a Fixture including an owner, seller, buyer, builder or time- and/or bareboat charterer of a ship and any other party guaranteeing for all the obligations of such a party. Principal may include You.
“You” – Meaning the party requesting Handysize Chartering Pool’s services or responding to Handysize Chartering Pool in relation to the provision of the Services. Where such party is acting as a Representative reference to You will additionally include the Principal too.
“Representative” – Meaning a person or a company, including but not limited to a ship manager, chartering department, shipbroker or other agent, who is not a Principal but is involved in any kind of negotiations on behalf of a Principal.
“Negotiations” – Meaning all exchanges and messages, whether verbal or in writing, in relation to concluding a Fixture.
“Fixture” – Meaning a contract or contracts, including but not limited to, for the sale, purchase, construction or charter of a ship together with negotiations to enter into such contracts.
“Post Fixture Services” – Meaning assistance with communications relating to operational matters arising from the performance during and after a Fixture.
“Services” – Meaning the Services referred to in clause 2 of these terms and conditions.
2. Services covered by our Terms and Conditions of Business
2.1 Handysize Chartering Pool will solely act as a shipbroker in relation to any Fixture concluded. The role of Handysize Chartering Pool is to introduce Principals. After introduction Handysize Chartering Pool will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing such Post Fixture Services as may be agreed or provided by Handysize Chartering Pool after a Fixture.
2.2 Unless specifically agreed in writing Handysize Chartering Pool will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. Handysize Chartering Pool is not responsible for the performance or non-performance of Fixtures or Principals.
2.3 Unless otherwise agreed in writing the Services are provided on a Fixture by Fixture basis only.
2.4 Handysize Chartering Pool may from time to time also agree to perform other tasks such as providing ship valuations and/or specific market research. Such tasks may be subject to specific provisions (as an example such as the wording of a valuation certificate) in addition to these Terms and Conditions of business. In the event of, and only to the extent of, a conflict between these Terms and Conditions of business and the specific provisions the latter will prevail. Otherwise these Terms and Conditions of Business, including those as to limitation of liability, will fully apply.
3. Obligations of Handysize Chartering Pool
3.1 Handysize Chartering Pool will perform the Services with the knowledge, reasonable skill and good care expected of a professional shipbroker, and as per our Terms and Conditions of Business in line with applicable law as per clause 11 below.
3.2 In dealing with others Handysize Chartering Pool will take fully care to stay within the authority given by You and to avoid any kind of misrepresentation.
3.3 During Negotiations Handysize Chartering Pool undertakes to pass on offers, counteroffers and other such communications very accurately and in a proper timely manner. This obligation applies both to passing any communications to and from You.
3.4 It is understood that Handysize Chartering Pool may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases Handysize Chartering Pool is dealing with such Representatives or other intermediaries in good faith as to the authority they possess but Handysize Chartering Pool does not give a warranty as to that specific authority.
3.5 If Handysize Chartering Pool is acting directly for a Principal then Handysize Chartering Pool warrants that Handysize Chartering Pool has the authority of that Principal. If at any time Handysize Chartering Pool provides information in respect of a Principal, including but not limited to information regarding to company structures or financial standing, it is understood and agreed that in relation to Handysize Chartering Pool any such information is provided in good faith only but without guarantee. It is the obligation of the Principal solely to decide whether to enter a Fixture with the proposed counterparty and on what terms.
3.6 Unless otherwise agreed in writing the Services are not provided on an exclusive basis and thereby it is understood that Handysize Chartering Pool may act as a shipbroker for other parties in relation to the same or other Fixtures. In the event Handysize Chartering Pool is dealing directly with two Principals in relation to the same Fixture Handysize Chartering Pool’s duties will be to pass on offers, counteroffers and other such communications very accurately and in a proper timely manner as authorized by each Principal in turn. You recognize that Handysize Chartering Pool may be the sole broker in a transaction and agree that Handysize Chartering Pool is under no obligation whatsoever to specifically disclose that fact.
Where Handysize Chartering Pool is given information stated by You to be on a private and confidential basis or it is expressly agreed that a Fixture is private and confidential (in either case “Private and Confidential Information”) Handysize Chartering Pool will hold that Private and Confidential Information in confidence and will not disclose it to any other party without any prior permission from You. This obligation will not however extend to information which (I) was already or becomes known to Handysize Chartering Pool 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 Handysize Chartering Pool is obliged to disclose pursuant to an order of a court or other such authority, or (IV) is given by you in confidence but on the understanding that it is passed on to a third party. In all cases such obligation of confidentiality shall be deemed to end 3 years after the end of performance of the Fixture in question or in the absence of a concluded Fixture 3 years from the end of the Negotiations done.
5. Obligations to Handysize Chartering Pool
5.1 If You are a Principal you warrant that you have full legal power to conclude or enter into the Fixture brought about by the Services. If You are acting as a Representative You clearly warrant that you have the Principal’s authority (I) to accept these terms and conditions of business 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 You are deemed to have engaged Handysize Chartering Pool in relation to any Fixture that arises in connection with or via those Services whether or not it is concluded via Handysize Chartering Pool. You will provide Handysize Chartering Pool with all the 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) you will ensure Handysize Chartering Pool has sufficient time to forward such messages prior to the expiration of the relevant time limit.
5.3 In relation to Post Fixture Services if Handysize Chartering Pool has asked you to use specific e-mail addresses for any operational messages or claims then You will use those e-mail addresses given. In the event, that you do not receive a prompt acknowledgement of receipt of any time sensitive messages or claims documentation from Handysize Chartering Pool, then you in writing to undertake to contact Handysize Chartering Pool to confirm the receipt. Handysize Chartering Pool will have no responsibility for a failure to any action a message or claims documentation unless it is sent to the correct address and clearly acknowledged in writing by Handysize Chartering Pool.
5.4 You will take good care to avoid any misrepresentations occurring in Negotiations. You will carefully review all messages sent or copied to You and promptly advise Handysize Chartering Pool of any errors or misrepresentations. Handysize Chartering Pool is not responsible for the consequences of a failure by You to review the messages.
5.5 You warrant that You do not know of any reason why the Fixture could be unlawful, or which could render the provision of the Services by Handysize Chartering Pool in breach of any possible relevant law, including but not limited to (I) sanctions imposed by the United Nations, European Union, The United States of America, China, Russia or any national government having authority over You, Handysize Chartering Pool, a Representative or a Principal (II) laws relating to any money laundering, bribery and corruption. You will promptly and fully inform Handysize Chartering Pool of any such reason that comes to your attention and at hands. In the event, that Handysize Chartering Pool in their absolute discretion believes that the Fixture or the provision of the Services may infringe any such laws they may by written notice terminate the Services immediately and instantly without warning. In the event of such termination Handysize Chartering Pool will have no liability arising from such termination howsoever arising.
6. Market Reports
In the possible event that Handysize Chartering Pool publishes any 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 Handysize Chartering Pool has no liability whatsoever for the consequences of any person, including You, to fully rely on such market reports.
7. Revenue of Handysize Chartering Pool
7.1 On all Fixtures the revenue of Handysize Chartering Pool will (unless otherwise specifically agreed in writing) be in the form of a commission on the freight, on the time charter hire or on the purchase price as the case may be. The level of commission payable and the party responsible for payment will be set out specifically during the Negotiations and in the Fixture.
7.2 If the commission payable to Handysize Chartering Pool is recorded in a commission clause in a charter party or other agreement then commission will be payable in accordance with that clause. Handysize Chartering Pool 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 You are the party agreed to be responsible for paying the commission you undertake to make the payment or payments. If You are not the party responsible for making the commission payment You expressly agree to the making of provision for such commission in the Fixture.
7.4 Nothing in these terms will prevent Handysize Chartering Pool 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 In the absence of any specific provisions in the commission clause on voyage charters commission is payable on dead freight, detention and demurrages as well as on the freight. Freight shall include all items that comprise the freight rate. On time charters commission will be payable on the hire paid under the time charter and any following additional continuation or extension of the time charter. Commission is payable on sums received by You as and when received and You will not withhold payment pending resolution of any unconnected matters. Commission is exclusive of all taxes and duties. Where freight is adjusted, as an example as the result of a bunker escalation clause, the commission is payable on the total final (and adjusted) freight.
7.6 Unless otherwise agreed in writing, the Client shall pay all invoices submitted by Handysize Chartering Pool within 30 (thirty) running days of each invoice date without set-off, deduction, counterclaim or discount and notwithstanding the existence of any claim or dispute including but not limited to any disputes in respect of off-hire, demurrage and breach of contract claims between the Client and any Principal or any other party. if the Client fails to make any payment due to Handysize Chartering Pool under the Fixture by the due date for payment, Handysize Chartering Pool shall have the right to charge interest on the overdue amount at the rate of 5% (per cent) per annum above the then current Sydbank A/S base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount.
7.7 Handysize Chartering Pool has a general lien on all documents in its possession or control for all sums due from You to Handysize Chartering Pool whether arising out of the Fixture or otherwise.
7.8 The tasks in clause 2.4 above will be subject to the agreement of a specific fee and/or reasonable commission between You and Handysize Chartering Pool in accordance with market practice. Handysize Chartering Pool will invoice You at the completion of the Services or at such other times and in such stages as may have been agreed. You will pay that fee within 30 (thirty) running days of the date of the invoice.
8. Limitation of Liability
This clause specific limits Handysize Chartering Pool’s liability towrds you, so the attention of the client is particularly drawn to same.
8.1 Nothing in these Terms and Conditions of Business is limiting Handysize Chartering Pool’s liability for (I) fraud or fraudulent misrepresentation (II) death or personal injury caused by the negligence of Handysize Chartering Pool.
8.2 Handysize Chartering Pool will, subject to the provisions of this clause 8, be liable to You for damage directly caused by the failure to perform the Services with the reasonable skill and good care expected of a professional shipbroker provided Handysize Chartering Pool will never be liable for:
(I) Any possible loss of profits, loss of anticipated savings, business interruption or therefrom arising losses, loss of reputation, loss of goodwill, indirect or consequential losses.
(II) Any possible damage caused by any event or cause that Handysize Chartering Pool was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable good diligence.
(III) Any possible damage which was not solely caused by the act or omission of Handysize Chartering Pool or which would have occurred in any event.
8.3 Handysize Chartering Pool’s total liability arising from or in any connection with the Services shall in no circumstances exceed the sum of USD 25,000.
8.4 The exclusions and/or limitations set out in this clause shall apply whether the claim against Handysize Chartering Pool is bought in contract, tort (including for possible negligence), breach of statutory duty or for any other cause whatsoever.
8.5 For the purposes of these Terms and Conditions of Business, any Force Majeure event means an event beyond the reasonable control of Handysize Chartering Pool including, but not limited to, strikes, lock-outs or other industrial disputes (whether involving the workforce of Handysize Chartering Pool or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Handysize Chartering Pool’s Clients, or Principals. Handysize Chartering Pool shall not be liable to the Client as the result of any delay or failure to perform its obligations under these Terms and Conditions of Business as a result of a Force Majeure event.
8.6 Any claim against Handysize Chartering Pool must be made in writing and notified to Handysize Chartering Pool within 14 days of the date on which You became aware or thought 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. Handysize Chartering LLC 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 Handysize Chartering LLC within 183 running days of the end of performance of the Fixture or in the absence of a concluded Fixture 183 running days from the end of the Negotiations.
9. Meaning of writing or written
In the Terms and Conditions of Business any reference to writing or written includes e-mails, faxes, and other electronic communications including, but not limited to, SKYPE + WhatsApp + ICQ + Yahoo Messenger + QQ + MSN + SMS messaging via mobile phone + Linkedin + Facebook and social network media.
The entire access to and use of the Handysize Chartering Pool website www.handysize.net is subject to these Terms and Conditions of Business. By You accessing and browsing on the Handysize Chartering Pool website or downloading data, material, text, images, video or audio etc. from the Handysize Chartering Pool website you accept without limitation or qualification to be bound by the Terms and Conditions of Business. Handysize Chartering Pool may at any time revise these Terms and Conditions of Business. You are bound by such revisions and should therefore periodically visit the Handysize Chartering Pool website to review the current Terms and Conditions of Business.
12. Jurisdiction and Law
These terms shall be governed by and construed in accordance with US law, and any dispute between a Client and Handysize Chartering Pool shall be decided by the court of Newyork in accordance with US law only.
13.1 Any and all intellectual property rights in or arising out of the Services belong to Handysize Chartering Pool and unless otherwise stated all contents of this website is © 2018 Handysize Chartering Pool (see also point 9.).
13.2 If a court or any other competent authority finds that any provision of the terms and conditions of business (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the terms and conditions of business shall not be affected. If any invalid, unenforceable or illegal provision of the terms and conditions of business would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it fully legal, valid and then enforceable.
This version of Handysize Chartering Pool Terms and Conditions of Business is dated 25.05.2018.