1.1 These Terms and Conditions of Port Agency (the “Terms”) govern the appointment of the Agent by the registered owner, disponent owner, manager, managing agent, master of other person in charge of the vessel, including any charterer appointing the Agent for only and on behalf of the vessel owner under the terms of a Charter-Party (the “Principal”); and the “Agent” means that PanU Harmony Pte Ltd that is operating at the port 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 email, facsimile or other forms of communication (the “Commercial Terms”). The Commercial Terms and these Terms will together form the PORT AGENCY SERVICES AGREEMENT between the Agent and the Principal (the “Agreement”). If there any conflict between the Commercial Terms and the provisions contained herein, the Commercial Terms shall prevail over those of provisions to the extent of such conflict.
2.1 Additional Port Disbursement means any Charges which the Agent pays or is to pay out to a third party on behalf of the Principal in relation to any of it’s Services which Charges have not been accounted for in the Estimated Port Disbursement and which sums may arise from time to time in the Provision of Services.
2.2 Agency Appointment means the Principal’s appointment of PanU Harmony Pte Ltd of Company Registration Number 199704038Z as agents only for and on behalf of the Principal.
2.3 Agreement means any contract or agreement whether verbal or in writing (including but not limited to email and facsimile) for the provision of the Services between the Agent and the Principal to which these Terms and Conditions shall apply.
2.4 Charges shall mean the Agent’s fee and any other charges and expenses (including commissions if any) payable for the Services as set out in any Agreement between the Agent and Principal or which may be payable by custom of the trade or by reference to a course of dealings between the Agent and the Principal.
2.5 Estimated Port Disbursement means the Agent’s estimated Charges for Services which shall be provided by the Agent to the Principal prior to arrival of the vessel into the port.
2.6 Final Port Disbursement means an account (inclusive of GST, if any) produced by the Agent which describes the disbursements which have been incurred by the Agent in providing the Services and other sums owned by the Principal to the Agent in relation to the Services.
2.7 GST means the Goods and Services Tax imposed under the Goods and Services Tax Act (Chapter 117A) in Singapore.
2.8 Nominated Bank Account means the Agent’s bank account, specified in writing to the Principal, into which the Principal must deposit all Charges and any other sums of money payable to the Agent.
3.1 Unless agreed otherwise by the parties, the Agent shall:
(a) Carry out the Agency Services in respect of the vessel those a port agent would ordinarily provide in the course of good industry practice (the “Services”) as agents only for and on behalf of the Principal in consideration for the Charges;
(b) Have the authority to take such actions as they may from time to time in their absolute discretion consider to be necessary to enable them to perform the Services in accordance with sound management practice, including but not limited to compliance with all relevant shipping laws, rules and regulations;
(c) Have the 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 the authority to appoint sub-agents to perform services on behalf of the Principal. 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.
4.1 The Principal shall at all time during the continuance of the Agreement act in good faith and in accordance with the terms and conditions of the Agreement which shall include, but not limited to, the following:
(a) Making payments when such payments are due and payable;
(b) Providing in an accurate and timely manner all documents, information and assistance required by the Agent may require in order to fulfill its Services;
(c) Providing any other support or assistance that the Agent may require in order to fulfill the performance of its Services under the Agreement.
5.1 The Principal shall pay by telegraphic transfer to the Agent the full amount specified in the Estimated Port Disbursement which the Agent estimates will be incurred on the Principal's behalf into the Nominated Bank Account no later than three (3) days prior to the arrival of the vessel at port.
5.2 The Principal shall pay all monies due and payable to Agent, in cash or as otherwise agreed, all sums within 30 calendar days of the receipt of an invoice from the Agent without deduction, discount or deferment on account of any claim, counterclaims or set-off.
5.3 Any service which is not provided for in the Estimated Port Disbursement shall be charged at the rate fixed by the Agent at the time of providing such service.
5.4 The Agent shall 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 the scope of the Agreement.
5.5 On all and any amounts overdue to the Agent, the Agent shall be entitled to impose interest at the rate notified to the Principal from time to time.
5.6 If the Principal fails to make any payment in accordance with Clauses 5.1 and 5.2, the Agent may either:
(a) suspend the performance of its Services under this Agreement;
(b) serve notice of the immediate termination of the Agreement; or
(c) take any necessary measures to detain the vessel in port,until such payment has been received by the Agent.
5.7 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.
5.8 The Agent shall use reasonable efforts to ensure that the Estimated Port Disbursement is as accurate as possible. The Estimated Disbursement Port is, however, only an estimate and the actual disbursements that are incurred by Agent and set out in the Final Port Disbursement at the end of the Services may for various reasons beyond the Agent's control vary from the Estimated Disbursement Port. 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 Port Disbursement.
5.9 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 legal fees) and interest on such sums outstanding at the rate notified to the Principal from time to time on all invoices which remain unpaid after the 30 days from the date of the invoices up to the date of payment in full, without prejudice to the Principal’s obligation to settle al invoices as provided in clause 5.2.
5.10 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 5.11 shall mean that the whole of such invoice shall be deemed undisputed.
5.11 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.
6.1 Notwithstanding anything hereinbefore contained, the Agent shall under no circumstances whatsoever be responsible for or be liable for any loss or damage caused by or contributed to or arising out of any delay or detention of the Principal's vessel or of the cargo on board or being loaded on board or discharged or intended to be loaded on board or discharged from the Principal's vessel.
6.2 The Principal shall defend, indemnify and hold harmless the Agent against all liability, loss, damage, costs and expenses arising out of the Agent acting in accordance with the Principal’s instructions or arising from a breach of warranty or obligation by the Principal or arising from the negligence of the Principal.
6.3 The Principal shall be liable for and shall defend, indemnify and hold harmless the Agent in respect of all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any governmental authority and all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Agent in connection therewith.
6.4 Advice and information, in whatever form as may be given, are provided by the Agent for the Principal only and the Principal shall defend, indemnify and hold harmless the Agent for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information.
6.5 The Agent shall not be liable for any loss or damage whatsoever arising from:
(a) the act or omission of the Principal or any person acting on their behalf; or
(b) compliance with the instructions given to the Agent by the Principal or any other personentitled to give to them;
6.6 The provisions contained in these conditions shall remain in force at all times notwithstanding any deviation or interruption or failure in the performance of the Services or in the rendering of assistance of whatsoever nature at the request of the Principal either express or implied.
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 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.
8.1 The Agent shall not in any event be responsible or liable for delays of any description or for loss or damage occasioned or caused by force majeure, which shall include but not be limited to acts of God, action of elements, war, strikes, lock-outs, labour disturbances, riots, civil commotion (whether or not it is a party thereto) acts of the public enemy, rules or regulations of any governmental authority having jurisdiction or control in the area of operation, compliance with which makes continuance of operation impossible, or any other cause beyond the reasonable control of the Agent and the consequences thereof whether or not the Pilot, the Agent, its servants or sub-agents shall have been negligent.
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.
10.1 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.
11.1 The Agreement may be varied only by a document signed by both of the parties.
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.
13.1 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.
14.1 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.
15.1 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.
16.1 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.
17.1 This Agreement shall be governed by and constructed in accordance with Singapore law and any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (“SMCA Rules”) for the time being in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this clause.
Updated on 30 November 2016