Terms and Conditions for Provision of Shipbroking Services

Effective date: 03 May 2024

These Terms and Conditions apply to all dealings between the Client and the Company and will be effective whenever the Client requests the Company to provide Services, or the Client responds to the Company in relation to the provision of Services. These Terms and Conditions create a legally binding Contract between the Client and the Company (Contract, Client, Company, Principal, and Services are defined below).

These Terms and Conditions shall be effective from 03 May 2024 and from that date replaces and supersedes any previous versions.

Attention is specifically drawn to the provisions of these Terms and Conditions that limit the Company’s liability in Clause 9 and the Remuneration payable to the Company in the event of cancellation at Clause 11.

1. Definitions

1.1 In these terms and conditions the following definitions apply:

“Broking Services”: the services rendered by or on behalf of the Company as a shipbroker for the conclusion of contracts (including for the sale, purchase, construction or charter) in respect of a Ship.

“Client”: the party requesting the Services from the Company or responding to the Company in relation to the provision of the Services. Where such party is acting as a Representative, references to the Client will additionally include the Principal.

“Company”: the company of the Group which shall have been requested to provide Services by the Client or to which the Client shall have responded in relation to the provision of Services.

“Contract”: the contract between the Company and the Client for the supply of Services in accordance with these Terms and Conditions.

“Data Protection Legislation”: as they relate to these Terms and Conditions (i) the General Data Protection Regulation (EU/2016/679) (“GDPR”) and the Personal Data Act in Norway and (ii) any successor legislation to the Personal Data Act in Norway.

“Fixture(s)”: a contract or contracts including but not limited in anyway whatsoever to, the sale, purchase, construction or charter (whether on a voyage or time charter basis) of a Ship together with Negotiations to enter such Fixture(s).

“Group”: Fearnleys A/S and its associated and subsidiary companies.

“Negotiations”: communications, whether verbal or in writing, in relation to concluding a Fixture.

“Other Services”: any services other than Broking Services and Post Fixture Services which are agreed in writing to be provided by or on behalf of the Company (including inter alia the provision of market research and studies, specific analyses and market recommendations, offer analyses, Ship valuations, Ship registrations, studies of fleet structures and feasibility studies).

“Post Fixture Services”: advice and assistance with communications and/or operational matters arising after a Fixture has been concluded and/or assistance with claims arising from the performance of a Fixture.

“Principal”: a party to a Fixture including without limitation in any way whatsoever the owner, seller, buyer, builder or charterer of a Ship and any party guaranteeing the obligations of such a party. Principal may include the Client.

“Remuneration”: the remuneration payable to the Company for the provision of the Services, whether by way of commission or as otherwise agreed.

“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 or the conclusion of a Fixture on behalf of a Principal.

“Sanction(s)”: any and all sanctions imposed by Norway, the United Nations, the European Union, the United Kingdom, the United States of America or any other national government or competent authority, as applicable to Group.

“Services”: the Broking Services and/or the Post-Fixture Services and/or the Other Services, as relevant, provided by or on behalf of the Company to the Client and as more fully described in clause 2.

“Ship”: any type of ship, other vessel, platform, and/or equipment used or intended to be used for any purpose on, in or over water including but not limited in any way whatsoever to ocean going vessels, coasters, ferries, yachts, flotels, rigs, jack ups, submersibles and barges or similar.

The above definitions apply whether the defined words appear in singular or plural form.

2. The Services Provided by the Company to the Client

2.1 The Company may, at its sole discretion, provide the Services to the Client by or together with another member of the Group. In such circumstances, the Client agrees that such other member of the Group shall have the benefit and protection of these Terms and Conditions to the same extent as the Company. Where the Client is a Representative, the Principal for which the Representative is acting shall have the same rights and be bound by the same obligations of these Terms and Conditions to the same extent as the Representative.

2.2 The Broker may facilitate solutions for digital signatures for the Client.

2.3 Unless specifically agreed in writing the Company will act as an intermediary in relation to Fixture(s) and will not itself enter any Fixture(s) arising from the Services as a Principal.

2.4 By accepting the Services, the Client agrees to be bound by these Terms and Conditions to the exclusion of all other representations, statements, conditions, terms and warranties, whether express or implied, statutory or otherwise except any implied by law or statute which cannot be excluded by law.

Broking Services

2.5 The Company will act as a shipbroker in relation to Fixture(s). The role of the Company is to introduce Principals to each other or the Fixture(s) assisting the Principals, and in particular, where so agreed, to act as an agent for and on behalf and in the interest of the Client for the purpose of permitting the conclusion of Fixture(s) between the Client and another Principal in accordance with the Client’s instructions. The Company will assist the Principals and/or their Representatives as a channel for Negotiations.

2.6 Where the Company agrees to provide Broking Services as an agent for and on behalf and in the interest of a Client, the Company shall not be obliged to act in a manner contrary to or inconsistent or incompatible with its professional obligations or code of conduct as a maritime shipbroker, and the Client expressly consents to the Company not complying with its instructions to the extent that this is reasonably necessary for the purpose of permitting the Company to comply fully and completely with its professional obligations or code of conduct as a maritime shipbroker.

2.7 Unless specifically agreed in writing the Company will act only as an intermediary in relation to Fixture(s) and will not enter into any Fixture(s), arising from the Services, as a Principal, nor as an agent for an undisclosed Client.

2.8 The Company is not responsible for the performance or non-performance of Fixture(s) or Principals.

2.9 Unless otherwise agreed the Services are provided on a Fixture-by-Fixture basis.

2.10 The Company will, where so agreed, provide such Post Fixture Services as may be agreed in writing between the Company and the Client.

Other Services

2.11 The Company may also agree to perform Other Services.

2.12 Other 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.

3. Obligations of the Company

3.1 The Company will perform the Services with the reasonable skill, care and diligence expected of a professional shipbroker.

3.2 It is understood that the Company may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases the Company deals with such Representatives or other intermediaries in good faith as to the authority they possess but the Company does not give any warranty as to that authority.

3.3 In dealing with others the Company will stay within the authority given by the Client and exercise diligence to avoid misrepresentation.

3.4 During Negotiations the Company shall pass on offers, counteroffers and other such communications accurately and in a timely manner. This obligation applies to passing communications both to and from the Client accurately and with reasonable promptness.

3.5 It is understood that the Company may be dealing with Representatives or other intermediaries rather than directly with a Principal. In such cases the Company is dealing with such Representatives or other intermediaries in good faith as to the authority they possess but the Company does not give a warranty as to that authority.

3.6 If the Company is acting directly for a Principal then the Company warrants that the broker has the authority of that Principal. If the Company is acting for the Client, the Client hereby expressly authorizes the Company to warrant that it has the authority of the Client as Principal.

3.7 The Company will, where requested, provide information in respect of a Principal, including information regarding corporate structures or financial standing, but it is understood and agreed that where it does so, it provides such information in good faith but without guarantee. It is the obligation of the Principal to decide whether to enter into a Fixture with the proposed counterparty and on what terms and, where necessary, to verify by independent means the information so provided by the Company.

3.8 Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that the Company may act as a shipbroker for other parties in relation to the same or other Fixture(s)/Services. In the event the Company is dealing directly with more than one Principal in relation to the same Fixture the Company’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. You recognize that the Company may be the sole broker in a transaction and agree that the Company is under no obligation to specifically disclose that fact.

3.9 The Company will take reasonable steps to implement and maintain relevant anti-virus and computer system protection but will not be liable should such software fail for reasons beyond the Company’s reasonable control.

4. Confidentiality

4.1 Where one of the Client or the Company (the “Receiving Party”) is given information stated by the other party (the “Disclosing Party”) to be on a confidential basis or it is expressly agreed that a Fixture is confidential (in either case “Confidential Information”) the Receiving Party will hold that Confidential Information in confidence and will not disclose it to any other person without prior permission from the Disclosing Party. This obligation will not however extend to information which:

4.1.1 was already or becomes known to the Receiving Party through other sources not subject to such an obligation of confidentiality;

4.1.2 is or becomes known to the market generally other than as a result of a breach of this obligation; or

4.1.3 which the Receiving Party 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 one (1) year after the end of performance of the Fixture/Services in question or in the absence of a concluded Fixture one (1) year from the end of the Negotiations. This clause 4 shall survive termination of the Contract.

5. The Obligations of the Client

5.1 You will pay the Remuneration due to the Company in a timely fashion and in accordance with clauses 8 and 9 below.

5.2 If the Client is a Principal, you warrant that you have full legal power to enter into the Fixture brought about by the Services. If the Client is acting as a Representative, the Client warrants that it has the Principal’s authority to:

5.2.1 accept these Terms and Conditions on the Principal’s behalf; and

5.2.2 make all offers, counteroffers and representations made during Negotiations; and

5.2.3 agree a Fixture on the Principal’s behalf.

5.3 Where Broking Services are provided to the Client, the Client is deemed to have engaged the Company in relation to any Fixture that arises in connection with those Broking Services whether or not it is concluded via the Company.

5.4 The Client will provide the Company with all information and instructions necessary for the performance of the Services and the Client will be responsible for the accuracy of such information and instructions. Where actions need to be taken by a certain time (such as reply times during Negotiations) the Client will ensure the Company has sufficient time prior to expiry of the relevant time limit to process and forward such messages as required.

5.5 If the Company has asked the Client to use specific e-mail addresses for messages then the Client undertakes to use those e-mail addresses. In the event that the Client does not receive a prompt acknowledgement of receipt of time sensitive messages from the Company, the Client undertakes to contact the Company to confirm that such messages have been received by the Company. The Company will have no responsibility for a failure to take action in relation to information or instructions contained in a message unless it is sent to the correct address and has been acknowledged as received by the Company.

5.6 The Client will take care to avoid misrepresentations occurring in Negotiations. The Client will carefully review all messages and documents sent by, or copied to, the Client and promptly advise the Company of any errors or misrepresentations. The Company is not responsible for the consequences of a failure by the Client to review messages or correct misrepresentations which originate from your instructions or documents or other information provided by the Company.

5.7 You recognize and expressly acknowledge that internet fraud and other fraud including but not limited to the unlawful interception, diversion and unauthorized amendment of legitimate email messages, attachments, payment instructions, remittance details and other instructions and information is a real danger and the Client warrants that the Client will implement and maintain appropriate anti-virus and computer system protection.

5.8 The Company does not warrant the accuracy of any invoice, amended invoice, payment demand, bank account, other remittance details or any amended details that it sends or forwards to the Client in the context of the Services, Post Fixture Services or otherwise and it is your obligation to carry out appropriate checks and conduct all necessary due diligence to verify that such invoice, amended invoice, payment demand, bank account or other remittance details are accurate and contain the correct payment information. The Company will have no liability for any failure by the Client to take the due diligence and verification steps required by this sub clause 5.8.

5.9 The Client will indemnify the Company and hold the Company harmless against the consequences of any breach by the Client of any of your obligations as set out in these Terms and Conditions.

6. Sanctions, Money Laundering, Bribery and Anti-Corruption

6.1 In addition to your obligations as set out in clause 5 of these Terms and Conditions, the Client warrants that at the date of the Fixture and throughout its duration:

6.1.1 The Client (which for this purpose of this clause 6 includes any affiliated company, owning company, group company, associated entity, or subsidiary) and any party to the Fixture are not subject to or in breach of any Sanctions; and

6.1.2 The Client does not know of any reason why the Fixture could be unlawful or which could render the provision of the Services by the Company in breach of any law, including but not limited in any way whatsoever to Sanctions and/or any legal provision relating to money laundering, bribery and/or corruption.

6.2 In the event the Client becomes aware of any circumstances or occurrence which renders the Client and/or any other party and/or the Fixture in breach of this clause 6 the Client will forthwith advise the Company and take all available steps to rectify the breach.

6.3 In the event that the Company in its absolute discretion believes that the Services or the provision of the Services (or the Fixture or the performance of the Fixture) or should any of the parties and/or corresponding ultimate beneficial owners, vessels, places or cargoes named or listed or otherwise involved in the Fixture(s) be or become sanctioned by any regime that may affect the Company and/or the Group, the Company reserves the right to withdraw and cease all work, in all forms, from the subject fixture, and may by written notice terminate the provision of the Services immediately without any liability howsoever arising from such termination. For the avoidance of doubt, “withdraw and cease all work” includes, but is not limited to, negotiations, drafting, handling of correspondence, post box services, post fixture services, general broking advice and demurrage claims.

7. Market Reports

7.1 If the Company or the Group publishes market reports, commentary or other catalogues, circulars or literature, these are provided for general information only and not for use in relation to specific Fixture(s) nor as a substitute for Other Services. Such documents do not constitute an offer, solicitation, advice and nothing contained in such documents amounts to a recommendation to enter or not to enter into a Fixture or for any other purposes whatsoever and the Company has no liability for the consequences of any person, including the Client, purporting to rely on such documents.

8. The Broker’s Remuneration, Payment and Interest

8.1 In relation to Fixture(s), the Company’s Remuneration will (unless otherwise agreed) be in the form of a fee calculated on the basis of an agreed percentage of the freight, hire or purchase price as the case may be. The level of the fee payable and the party responsible for payment will be agreed in writing by the Company with one or more of the Principals or be set out in the Negotiations and the Fixture.

8.2 If the fee payable to the Company is recorded in a clause in the contract or document evidencing the Fixture then the fee will be payable in accordance with that clause. The Company will be deemed to have acted in reliance on the insertion of such clause and assented to the terms of the clause governing its right to fees.

8.3 If the Client is the party agreed to be responsible for paying the fee, it undertakes to the Company that it shall make the payment or payments. If the Client is not the party responsible for making payment of the fee, the Client expressly agrees to procure the payment of such fee by any relevant Principal and further to provide all necessary assistance and co-operation to the Company in respect of its attempts to obtain the payment of such fee by the relevant Principal.

8.4 Nothing in these terms will prevent, limit or restrict the Company from enforcing a clause or other clause conferring a benefit on it as a third party in accordance with the terms of the Fixture, if permitted by law to do so.

8.5 In the absence of any specific provisions in the Fixture(s) Remuneration is payable:

8.5.1 Voyage charters is due and payable as a percentage of sums due for dead freight and demurrage as well as on freight. Freight shall include all items that comprise the freight rate.

8.5.2 On time charters, any fee will be due and payable on the hire payable under the charter throughout its duration, including any period of continuation or extension of the charter.

8.5.3 On sale agreements: on delivery of the Ship and payment of the purchase price.

8.5.4 On new building contracts: as and when each stage payment is made.

8.6 Fees due and payable as a percentage of sums which are, as relevant, received or payable by the Client are payable as and when such sums are, as relevant, received or paid, exclusive of any right of set-off, and the Client will not withhold payment pending resolution of unconnected matters. Fees are exclusive of all taxes and duties, which will, where required, be payable in addition.

8.7 Post Fixture Services and Other Services will be subject to the agreement of a specific fee between the Client and the Company. The Company will invoice the Client at the completion of the Services or at such other times and in such stages as may have been agreed. The Client will pay any fee so agreed within 30 days of the date of the invoice.

8.8 If the amount of Remuneration and/or the manner of its payment is not specifically agreed Remuneration and manner of payment will be on a quantum merit basis and in accordance with market practice.

8.9 Where payment of the Company’s remuneration is not made on the due date, the Company, at its sole discretion, reserves the right to charge interest on the overdue amount at the annual rate of three per cent (3%) per annum above the current Company’s bank’s base rate accruing on a daily basis due date until the date of actual payment of the overdue amount, compounding quarterly.

9. Limitation of Liability


9.1 This clause 9 is paramount and takes precedence over any and all terms agreed or purportedly agreed between the Company and the Client. Any and all Services provided by the Company are in all circumstances always provided in accordance with this clause 9.

9.2 The Company and the Client agree that the limits and exclusions of liability found in this clause 9 are fair and reasonable having regard of the nature of the Services, the fees paid for the Services by the Client and all other circumstances known to the Client and the Company relating to the Services at the time these Conditions are agreed.

9.3 Nothing in these Terms and Conditions limits the liability of the Company for (i) fraud or fraudulent misrepresentation (ii) death or personal injury caused by the gross negligence of the Company.

9.4 The Company will subject to the provisions of this clause 9, 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 that the Company will not be liable for:

9.4.1 loss of profits (whether direct or indirect loss), or interruption to business, loss of reputation and/or goodwill, loss of data, loss of use or indirect or consequential losses.

9.4.2 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.

9.4.3 damage which was not solely caused by the act or omission of the Company or which would have occurred in any event.

9.4.4 Any legal or other costs incurred in connection with any ancillary action the Client takes against any third party as a result of the Company’s breach and/or alleged breach of these Terms and Conditions.

9.5 The total liability of the Company arising from or in connection with the Services shall in no circumstances exceed the lower of:

9.5.1 the amount of fees in fact paid to the Company by the Client in respect of the particular Services (or, as relevant, the particular Fixture) in connection with which the claim arises, or

9.5.2 the maximum cap of the sum of USD 1,000,000 (one million United States dollars).

9.6 The exclusions and/or limitations set out in this clause shall apply whether the claim against the Company is brought in contract, tort (including for negligence) breach of statutory duty or for any other cause whatsoever.

10. Time Bar in Respect of Claims by the Client

10.1 Any claim against the Company must be made in writing and notified to the Company within 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 absolutely barred. The Company shall in any event be discharged of all liability arising out of the Services, and any claim in respect thereof shall be extinguished, unless suit is brought and served upon the Company in accordance with clause 16 below within one (1) year of the end of performance of the Services or, if later, within one (1) year of the end of performance of the Fixture (or in the absence of a concluded Fixture within one (1) year from the end of the Negotiations).

11. Termination

11.1 The Company shall be entitled to terminate the Contract with immediate effect and without liability by giving written notice to the Client if:

11.1.1 the Client commits any material breach of any term of the Contract (or, if such breach is capable of remedy, if the Client fails to remedy such breach within fourteen (14) days of receipt of a written request from the Company);

11.1.2 the Client has a change of control (as control is defined by section 840 of the Income and Corporation Taxes Act 1988); or

11.1.3 the Client calls a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to a voluntary arrangement, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking or income, has passed a resolution for its winding-up, is subject to a petition presented to any court for its winding up, has a provisional liquidator appointed, has a proposal made for a scheme of arrangement under part 6 of the Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator is given by any person or is the subject of a notice to strike off the register or carries out or undertakes or is subject to or undergoes any analogous act, process or proceedings under any applicable law.

11.2 Immediately upon termination, for any cause whatsoever, the Client shall pay the Company all fees earned and recoverable costs incurred in respect of the Services performed up to the date of the termination of the Services, together with such reasonable costs and/or expenses incurred by the Company as a result of the termination of the Services. The Client will thereafter remain liable to pay to the Company any fees which become due and payable after the date of termination of the Services in respect of any Fixture(s) which were concluded on or before the date of termination and/or which arise after the date of termination of the Services following performance of the Services prior to the date of termination of the Services.

12. Force Majeure

12.1 No party shall be liable to another party for the provision of Services for any failure to perform or delay in performance of its obligations if and in so far as and for so long as such performance is delayed or hindered by the other’s acts or omissions or for an event reasonably beyond the control of that party including wars whether or not declared, threat or preparation for war, armed conflict, imposition of sanctions, embargo, terrorist attacks, civil war, civil disturbances, riots, public disorder, acts of God including fire, flood, earthquake, windstorm or other natural disaster, epidemic or pandemic, any labour dispute including strike, lockout or industrial action (whether relating to its own employees or others), abnormally adverse weather conditions, natural disasters, destruction of machines, equipment or factories (“Force Majeure”).

12.2 Notwithstanding clause 12.1, an event of Force Majeure shall not, under any circumstances, excuse a payment obligation.

12.3 In the event that the circumstances constituting Force Majeure continue for an uninterrupted period of ninety (90) days, either party may terminate the Services immediately by giving written notice to the other party.

13. Notices

13.1 Any notice or other communication given to a party under or in connection with the provision of Services shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at such address as the party may from time to time notify in writing or to the correct facsimile number or electronic mail address (as notified by the parties) and shall be deemed to have been served :

13.1.1 if sent by courier or by recorded delivery letter, upon the date of presentation of the notice at the recipient’s address,

13.1.2 if sent by ordinary post, 48 hours after posting, and

13.1.3 in the case of a facsimile or electronic transmission, on the following day or in the case of electronic mail on the same day, if receipt is acknowledged.

14. Data Protection

14.1 Processing of personal data is described in the Company’s Privacy Policy on the homepage.

15. Miscellaneous

15.1 All intellectual property rights in or arising out of the Services belong to the Company.

15.2 The Company has a general lien on all documents in its possession or control for all sums due from the Client to the Company whether arising out of the Fixture or the Services or otherwise.

15.3 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 affected.

15.4 A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

15.5 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16. Jurisdiction and Law

16.1 The Contract between the Company and the Client and any dispute arising out of or in connection with the Contract or these Terms and Conditions or the Services shall be governed by and construed in accordance with the laws of England and Wales.

16.1.1 Any dispute arising out of or in connection with the Contract or these Terms and Conditions or the Services shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of clause 16.

16.1.2 The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.

16.1.3 The reference shall be to three (3) arbitrators, with each party appointing its own arbitrator and with the arbitrators so appointed appointing the third arbitrator save that where the dispute is for an amount less than USD100,000 it shall be resolved in accordance with the LMAA Small Claims Procedure.