Legal terms

These terms and conditions apply to all dealings between You and Aviship and will be effective whenever you request Aviship to provide Services or You respond to Aviship in relation to the provision of Services. These terms and conditions create a legally binding agreement between You and Aviship (You, Aviship and Services are defined below).

Attention is specifically down to the provisions of these terms and conditions that limit Aviship’s liability.

1 – Definitions.

In these terms and conditions the following definitions apply

“Aviship” Any company of Aviship Sarl, Min Bat D3, 135 ave Pierre Semard – 84000 Avignon
“Fixture” A contract or contracts including but not limited to for the sale, purchase, construction, towage or charter of a Ship together with negotiations to enter such contract.
“Negotiations” Exchanges, whether verbal or in writing, in relation to concluding a Fixture.
“Post Fixture Services” Assistance with communications, operational matters and claims arising from the performance of a Fixture.
“Principal” A party to a Fixture including the Owner, seller, buyer, builder or charterer of a ship and party guaranteeing the obligations of such a party. Principal may include You.
“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 on behalf of a Principal.
“Services” The Services referred to in clause 2 of these terms and conditions.
“Ship” Any type of ship, other and/or equipment used or intended to be used for any purpose on, in or over water including but not limited to rigs, jack ups, submersibles, and barges.
“You” The party requesting the Aviship’s services or responding to Aviship in relation to the provision of the Services. Where such party is acting as a Representative reference to You will additionally include the Principal.
The above definitions apply whether the defined words in the singular or plural form.

2 – Services covered by these terms.

2.1 Aviship will act as a shipbroker in relation to Fixtures. The role of Aviship is to introduce Principals. There after Aviship will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing such Post Fixtures Services as may be agreed or provided by Aviship.

2.2 Unless specifically agreed in writing Aviship will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. Aviship is not responsible for the performance or non performance of Fixtures or Principals.

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

2.4 Aviship may also agree to perform other tasks such as providing ship valuations and/or specific marker research. Such tasks 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 Aviship.

3.1 Aviship will perform the Services with the reasonable skill and care expected of a professional shipbroker.

3.2 In dealing with others Aviship will take care to stay within the authority given by You and to avoid misrepresentation

3.3 During negotiations Aviship undertakes to pass on offers, counteroffers and other such communications accurately and in a timely manner. This obligation applies both to passing communications to and from You.

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

3.5 Aviship is acting directly for a Principal then Aviship warrants that Aviship has the authority of that Principal.

3.6 If at any time Aviship provides information in respect of a Principal, including but not limited to information regarding corporate structures or financial standing, it is understood and agreed that in relation to Aviship such information is provided in good faith but without guarantee. It is the sole obligation of the Principal to satisfy themselves of any counterparty risk and decide whether to enter a Fixture with the proposed counterparty and on what terms.

3.7 Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that Aviship may act as a shipbroker for other parties in relation to the same or other Fixtures. In the event Aviship is dealing directly with two Principals in relation to the same Fixture Aviship’s duties will be to pass on offers, counteroffers and other such communications accurately and in timely manner as authorized by each Principal in turn. You recognize that Aviship may be the sole broker in a transaction and agree that Aviship is under no obligation to specifically disclose the fact.

4 – Confidentiality

Where Aviship is given information stated by You to be a confidential basis or it is expressly agreed that a Fixture is confidential (in either case “Confidential Information”) Aviship will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from You. This obligation will not however extend to information which (i) was already or becomes known to Aviship 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 Aviship 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 and 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.

5 – Obligations to Aviship

5.1 If You are a Principal you warrant that you have full legal power to enter into the Fixture brought about by the Services. If You are acting as a Representative You warrant that you have the Principal’s authority (i) to accept these terms and conditions 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 Aviship in relation to any Fixture that arises in connection with those Services whether or not it is concluded via Aviship.

5.3 You will provide Aviship with all 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 Aviship has sufficient time to forward such messages prior to the relevant time limit.

5.4 In relation to Post Fixture Services if Aviship has asked you to use specific e-mail addresses for operational messages or claims then You will use those e-mail addresses. In the event that you do not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from Aviship you undertake to contact Aviship to confirm receipt. Aviship will have no responsibility for a failure to action a message or claims documentation unless it is sent timely to the correct address and acknowledged by Aviship.

5.5 You will take care to avoid misrepresentations occurring in Negotiations. You will carefully review all messages sent or copied to You and promptly advise Aviship of any errors or misrepresentations. Aviship is not responsible for the consequences of a failure by You to review messages.

5.6 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 Aviship in breach of any relevant law, including but not limited to (i) sanctions imposed by the United Nations, European Union, The United Stated of America or any national government having authority over You, Aviship, a Representative or a Principal (ii) laws relating to money laundering, bribery and corruption. You will promptly and fully inform Aviship of any such reason that comes to your attention. In the event that Aviship in their absolute discretion believes that the Fixture or the provision of the Services may infringe such laws they may by written notice terminate the Services immediately. In the event of such termination Aviship will have no liability arising from such termination howsoever arising.

6 – Market Reports.

If Aviship publishes 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 Aviship has no liability for the consequences of any person, including You, purporting to rely on such markets reports.

7 – Aviship’s remuneration.

7.1 On Fixtures Aviship remuneration will (unless otherwise agreed) be in the form of a commission on the freight, hire or purchase price as the case may be. The level of commission payable and the party responsible for the payment will be set out in the Negotiations.

7.2 If the commission payable to Aviship is recorded in a commission clause or in a specific commission agreement then commission will be payable in accordance with that clause or agreement. Aviship 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 promptly. If You are not the party responsible for the 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 Aviship 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 and demurrage as well as on freight. Freight shall include all items that comprise the freight rate. On time charters commission will be payable on the hire paid under the charter and any continuation or extension of the charter. On sale agreements commission is payable on delivery of the vessel and payment of the purchase price. On new building contracts commission is payable as and when each stage payment is made. Commission is payable on sums received by You as and when received and You will not withhold payment pending resolution of unconnected matters. Commission is exclusive of all taxes and duties.

7.6 The tasks in clause 2.4 above will be subject to the agreement of a specific fee between You and Aviship. Aviship 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 days of the date of the invoice.

7.7 If the amount of commission or fee and/or the manner of its payment is not specifically agreed a reasonable commission or fee will be payable in accordance with market practice.

8 – limitation of Liability.

THIS CLAUSE LIMITS AVISHIP LIABILITY TO YOU.

8.1 Nothing in these terms and conditions limits Aviship liability for (i) fraud or fraudulent misrepresentation (ii) death or persona injury caused by the negligence of Aviship.

8.2 Aviship 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 care excepted of o professional shipbroker provided always Aviship will not be liable for:
(i) Loss of profits, business interruption, loss of reputation, indirect or consequential losses.
(ii) Damage caused by any event or cause that Aviship was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence.
(iii) Damage which was not solely caused by the act or omission of Aviship or which would have occurred in any event.

8.3 Aviship’s total liability arising from or in connection with the Services shall in no circumstances exceed the sum of Euro 350.000,00.

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

8.5 Any claim against Aviship must be made in writing and notified to Aviship within 14 days of the date on which You 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. Aviship 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 Aviship within one year of the end of performance of the Fixture or in the absence of a concluded Fixture 1 year from the end of the Negotiations.

9 – Miscellaneous.

9.1 All intellectual property rights in or arising out of the Services belong to Aviship.

9.2 Aviship has a general lien on all documents in its possession or control for all sums due from You to Aviship whether arising out or the Fixture or otherwise.

9.3 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.

10 – Jurisdiction and Law

These terms shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.