TERMS AND CONDITIONS FOR NETWORKING INTERMEDIATION SERVICES
The terms and conditions apply to the access and use of the Networking Intermediation Services (the “Agreement”). This Agreement is applicable from the date of the first access to the Marketplace (“Effective Date”) by and between you (the "Company") and CMA CGM SA, a French limited liability corporation having its registered office at 4 Quai d’Arenc, 13002 Marseille, France ("CMA CGM").
All parties hereto may be referred to individually and collectively as the “Party” or “Parties” as the case may be.
WHEREAS CMA CGM is a worldwide shipping company with a global network of containerized shipping lines and has a large number of contacts who may be interested in purchasing or selling services.
WHEREAS CMA CGM has developed an online platform where purchasers and sellers can conclude transactions for the purchase or sale of products transported by CMA CGM (the “Marketplace”).
WHEREAS the Marketplace can only be used by (i) buyers, (ii) sellers, and freight forwarders acting on behalf of sellers.
WHEREAS CMA CGM offers to provide a list of reliable and serious trade partners to the Company and the Company wishes to use the Marketplace to enter into business with such prospects.
IN CONSIDERATION OF THE ABOVE THE PARTIES AGREE AS FOLLOWS:
PRELIMINARY ARTICLE: DEFINITIONS
“Affiliates” means in respect of a Party, any persons that Control, are Controlled by or are under common control with that Party from time to time. For this purpose, “Control” means the beneficial ownership of any amount of issued share capital of a company, joint venture or other legal entity, or the legal power to direct or cause the direction of the management of a company, joint venture or other legal entity. “Controlling”, “Controlled” and “change of Control” shall be construed accordingly.
“Buyer” means the entity using the Marketplace for the purposes of buying Products and entering into a Transaction with a Prospect.
"Cargo Value" means the value of the Products under a Transaction, as indicated in the commercial invoice issued by the Company or the Prospect.
“Company Data” means all data and other information that the Company provides or makes available to CMA CGM in connection with the Marketplace and the Services.
"Company Requirements" means the requirements made by the Company, on the basis of which CMA CGM will make the NIS Offer leading, if accepted, to a Purchase Order between a Seller and a Purchaser.
“Freight Forwarder” means an entity shipping Products on behalf and in the name of one or several Sellers.
“NIS Offer” means the offer made by CMA CGM upon receipt of Customer Requirements which, if accepted by the Company, will lead to a Purchase Order between a Seller and a Purchaser.
"Products" means the products shipped between a Prospect and the Company on any CMA CGM Group vessel pursuant to a Transaction.
"Prospect" means a Vendor or Seller, which intends to enter into a Transaction .
“Prospect Data” means all data and other information that Prospects provide or make available to CMA CGM for the performance of the Services.
"Purchase Order" or "PO" shall refer to the document by which the Company concludes a Transaction as a result of the use of the Marketplace.[NB1] [PS2]
“Seller” means the entity using the Marketplace for the purposes of selling Products and entering into a Transaction with a Prospect.
"Services" shall refer to the list of services that may be provided by CMA CGM through the Marketplace as set out in Appendix 1.
"Starting Shipping Date" shall mean the date of the first shipment of Products made under a Purchase Order pursuant to a Transaction.
"Success Fee" shall refer to the amount to be paid to CMA CGM for the Services provided under each Purchase Order in connection with a Transaction.
“Term”: shell mean the duration of the Agreement.
“Transaction” shall refer to any commercial agreement for the purchase or sale of Products concluded between the Company and a Prospect through the Marketplace.
- SCOPE OF THIS AGREEMENT
The purpose of this Agreement is to specify the conditions under which the the conditions related to Purchase Orders. This Agreement shall not be construed as a Purchase Order, nor an obligation for the Company to issue any Purchase Order or commit to any volume of business through the Marketplace.
This Agreement , as amended from time to time, constitutes the general conditions for the performance of Services, in accordance with its provisions and the attached Appendix.
2. ACCESS AND USE OF THE MARKET PLACE
2.1 In order to provide a list of reliable and serious trade partners, CMA CGM will limit the access and use of the Marketplace by Prospects fulfilling the following criterion:
- The Prospect must have had a commercial relationship with CMA CGM for a minimum of 2 years;
- The Prospect must have bought/sold Products shipped on CMA CGM Group vessel corresponding to a minimum of 4 TEUs / week ;
- The Prospect must not have had any payment incident: in the last two (2) years;
- The Prospect must have a diversified portfolio.
2.2 During the Term of this Agreement, CMA CGM will ensure that the access and use of the Marketplace is provided to the Company without interruption and that the Services are provided in accordance with good industry standards.
2. In the event of any conflict between the particular provisions of the Purchase Order and the provisions of this Agreement, the latter shall prevail, unless expressly stated otherwise.
2.3 CMA CGM will provide, in a timely manner, such information as the Company may require in connection with the Transaction.
3. ISSUANCE OF PURCHASE ORDER
3 . 1 In order to conclude a Transaction, the Company will provide CMA CGM with the Company Requirements, upon receipt of which CMA CGM shall make a NIS Offer.
3. 2 The NIS Offer will specify all the information necessary for the Company and the Prospect to conclude a Transaction, and in particular the following points:
- the type of Products under the Transaction,
- the particular specifications of the Transaction,,
- the region where the Products will be delivered,
- the names of the Company's and CMA CGM's contact persons,
- the duration of the Purchase Order (from the Starting Shipping Date).
- the Success Fee to be paid by the Company for the Services for each Transaction ; and [NB3]
- the duration of the payment of the Success Fees paid to CMA CGM from the Starting Shipping Date.
3.3 CMA CGM will use its best efforts and deploy all the necessary steps and actions to present to the Company sufficient Prospects meeting the Company Requirements, but without any guarantee that the Prospect will meet all Company Requirements.[NB4]
3.4 The NIS Offer will come into force once expressly accepted by the Company.
3.5 Upon acceptance of the NIS Offer, The Company will, issue a Purchase Order for each Transaction, pursuant to the terms and conditions stated in the NIS Offer.
3.6 Once the Purchase Order has been signed by the Prospect, the Transaction will be deemed concluded. Customer acknowledges that the Purchase Order will entitle CMA CGM to request payment of the Success Fees.
4. SUCCESS FEES
4.1 For each Transaction resulting from the use of the Marketplace, CMA CGM will be entitled to the Success Fees specified hereunder:
The above-mentioned Success Fees must be stated in each Purchase Order resulting from a Transaction made on the Marketplace.
4.2 No increase in the Success Fee will be made for the duration of a Purchase Order.
4.3 Success Fee will be due by the Company upon the first shipment of Products between the Company and the Prospect (Starting Date of the associated Purchase Order).
4.4 Success fees will be due for all subsequent Transactions concluded between the Company and the Prospect for a period of one (1) year.
4. 5 In the event the Company is a Freight Forwarder acting on behalf of a Seller, the Success Fees will be directly invoiced to the Seller. As such, when accepting the NIS Offer, the Freight Forwarder acknowledges that it has been duly authorized by the Seller to accept the NIS Offer in its name and on its behalf. Should the Seller fail to pay the Success Fees, the Company shall be jointly liable to pay such Success Fees.
5. INVOICING TERMS
5.1 When applicable and unless otherwise agreed by the Parties in the Purchase Order, Success Fee will be included in the invoice for the transport of the Products, and paid pursuant to the invoicing terms applicable to the Purchase Order.
5.2 When Success Fees are invoiced separately from the transport, payments shall be made within thirty (30) days from the invoice date.
5.3 Success Fees do not include taxes (including any sales or value added tax at the appropriate rate from time to time), duties and other regulatory fees or charges due under any applicable law or by the tax authorities in any applicable jurisdiction.
6. INTELLECTUAL PROPERTY
6.1 Except for the limited rights expressly granted to Company under this Agreement, CMA CGM owns and retains all right, title, and interest in and to the Marketplace and Services, and any material provided by CMA CGM under this Agreement. No rights are granted to Company under this Agreement other than expressly set forth in this Agreement.
6.2 CMA CGM hereby grants the Company a non-exclusive, worldwide, license to use the Services during the Term of the Agreement for the purposes of concluding a Transaction.
6.3 The Company hereby grants to CMA CGM and its affiliates a worldwide, non-exclusive, transferable, sublicensable, royalty-free license (i) to host, copy, transmit, display, and process Customer Data as reasonably necessary for the use of the Marketplace and to provide the Services and (ii) to monitor, modify, and improve (including develop) the Marketplace, provided, however, that with respect to any Company Data that include personal data, such Company’s Personal Data be anonymized.
7.1 CMA CGM will indemnify the Company against any third party claims brought against the Company alleging that the Marketplace, or any component thereof, infringes any legally valid patent, or copyright, or misappropriates the trade secrets of a third party, but only to the extent that such allegation of infringement or misappropriation (hereafter, collectively, “Infringe,” “Infringing” or “Infringement” as the context requires) arises from Company’s lawful use of the Marketplace as described hereunder.
7.2 If the Marketplace is determined by a court of law to be infringing and CMA CGM is unable, after best efforts, to procure for the Company the right to (i) continue using the Marketplace or (ii) replace the disputed element, CMA CGM will be able to terminate the Agreement without notice.
7.3 Except as expressly provided under this Agreement and to the maximum extent permitted by applicable law, CMA CGM makes no warranties of any kind, whether express, implied, statutory, or otherwise, and specifically disclaims all warranties of fitness for a particular purpose, merchantability, accuracy of informational content, systems integration, non-infringement, non-interference with enjoyment or otherwise. CMA CGM does not warrant that the Marketplace will be error free or uninterrupted. The limited warranties provided hereunder are the sole and exclusive warranties provided to Compant in connection with the subject matter of this Agreement.
8. TERM & TERMINATION
8.1 This Agreement shall come into force at its Effective Date and shall continue for a period of one (1) year from the date of the last connection to the Marketplace, unless terminated earlier in accordance with this Article.
8.2 Either Party may terminate this Agreement for convenience at any time by giving a thirty (30) days’ prior written notice to the other Party.
8.3 Purchase Orders in progress at the date of termination of this Agreement shall remain subject to the provisions of this Agreement.
8.4 Either Party may terminate this Agreement and any Purchase Order with immediate effect on the occurrence of any of the following events:
a - the other Party seeks relief under any provision of the bankruptcy or insolvency laws, or is adjudicated bankrupt or insolvent, or in the event a receiver is appointed for all or substantially all of its property;
b - the other Party ceases, or threaten to cease, to carry on a substantial part of its business or changes or the other Party disposes of or threaten to dispose of or any governmental or other authority expropriates or threatens to expropriate any substantial part of the other Party’s business or assets or displaces or threatens to displace the management of the other Party;
c - the other Party is in default of any duty or obligation under this Agreement or any Purchase Order and has failed to remedy such default within thirty (30) days of the non-defaulting Party’s written request demanding to remedy the default.
9.1 CMA CGM is solely responsible for providing the Services. in no event CMA CGM shall be liable in any manner whatsoever, in particular towards the Company, of any liability whatsoever, regarding the Transaction or the business relationship between the Company and the Prospect. In no event shall CMA CGM be liable for the defectiveness of the Products and/ or services purchased or sold by/from the Company under a Transaction with a Prospect.
9.2 CMA CGM shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorized to bind the Company or a Prospect in any way and/or negotiate any terms of the Transaction or sign a Transaction on their behalf, and shall not do any act which might reasonably create the impression that CMA CGM is so authorized.
9.3 CMA CGM does not conduct a detailed compliance due diligence of the Prospects prior to onboarding them on the Marketplace. As such, CMA CGM does not make any representations or guarantees of any nature whatsoever including but not limited to representation or guarantees regarding the financial solvency of the Prospects. [NB5] [PS6]
9.4 CMA CGM’s liability is strictly limited to the amount of Success Fees under the relevant Purchase Order.
9.5 In no event shall either Party be liable for any incidental, indirect, special, punitive or consequential damages, such as but not limited to loss of profits, loss of revenues, loss of opportunity, loss of good will, loss of savings or loss of data, regardless whether this liability arises from tort, breach of contract or contract.
10. PERSONAL DATA
10.1 For the purposes of this Agreement, the Parties agree that the Company is a Controller and CMA CGM is a processor for the purposes of providing the Services. The collection, the processing and the transfer of personal data shall be lawful in accordance with E.U. General Data Protection Regulation
10. 2 CMA CGM will transfer Commercial Data, including personal data, to Prospects located in another country in which or from which it is agreed that the Order will be performed.
10. 3 When the Company is a Freight Forwarder, the Company undertakes not to use Prospect’s data for another purposes than entering into a Transaction in and on behalf of Sellers.
11. COMPLIANCE WITH LAWS AND BUSINESS ETHICS AND SUSTAINABILITY
Each Party shall comply with all laws and regulations relating to its activities under this Agreement and any associated Purchase Orders, as they may change from time to time, and with any conditions binding on it in any applicable licenses, registrations, permits and approvals.
11.2 Sustainability and Business Ethics
The Parties undertake to comply with all applicable laws, regulations and rules including, but not limited to, those relating to competition matters, applicable customs regulations and compliance and ethics mandates set forth below. The Parties shall assure that all of their owners, directors, officers, employees, agents, subcontractors and representatives shall likewise comply with such applicable laws, regulations and rules. The Parties further warrant that they, and all of their representatives shall at all times fully comply with the CMA CGM Third Party Code of Conduct, receipt of which is hereby acknowledged[NB7] .
CMA CGM Third Party Code of Conduct is available on CMA CGM website, please visit https://www.cma-cgm.com/the-group/corporate-social-responsibility/ethics.
11.3 Anticorruption and Bribery.
The Parties represent and warrant that they and all of their representatives are and will continue to be in compliance with the provisions of all applicable anti-corruption laws, including but not limited to French anticorruption laws, the United Nations Convention against Corruption (2005), the U.S Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010.
The Parties represent, warrant, and undertake that neither they nor any of their owners, directors, officers, employees, agents, subcontractors and representatives will:
- give or offer to give, directly or indirectly, money or anything else of value in any form to any legal or physical person to secure a business advantage, to obtain or retain business or to direct business to or away from any person/entity to its benefit;
- accept, receive or agree to accept or receive, directly or indirectly, any money, or anything else of value in any form, from any legal or physical person, to secure a business advantage, to obtain or retain business or to direct business to any person/entity or away from any person/entity to its benefit; and
- provide any facilitation ("grease") payment to any government official or employee of a government agency (including government-owned businesses) to expedite routine government actions that the official or employee is already bound to perform.
12. OBLIGATIONS OF CONFIDENTIALITY
12.1 As used in this Agreement, “Confidential Information” means all proprietary, non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the Receiving Party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, or (c) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself, including the Company Data, the terms of this Agreement and each Order.
12.2 The Recipient will (i) keep confidential and shall not disclose any and all Confidential Information that it may acquire from the Discloser and any of its Affiliates and (ii) not use the Confidential Information of the Discloser and any of its Affiliates for any purpose other than to perform its obligations under this Agreement and any relevant Purchase Order.
12.3 The Recipient is only permitted to disclose Confidential Information to its officers and employees and professional advisors (who are under a duty of confidentiality) who need access to that Confidential Information for the purposes of this Agreement or a relevant Purchase Order, provided the Recipient undertakes to ensure that its employees and subcontractors comply with the provisions of this Article.
12.4 The confidentiality obligations on the Recipient set out herein will not apply to any information which is publicly available or becomes publicly available through no act or omission of the Recipient, or if the Recipient is required to disclose by order of a court of competent jurisdiction or due to any applicable law or any regulatory authority (but then only to the extent of such required disclosure and upon giving notice to the Discloser to the extent permitted by law). The Receiving Party shall use commercially reasonable efforts to promptly notify the Disclosing Party prior to such disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
12.5 The Recipient shall immediately notify the Discloser of any suspected or actual loss or unauthorized use, copying or disclosure of the Confidential Information of the Discloser or any of its Affiliates.
12.6 The Recipient shall immediately notify the Discloser of any suspected or actual loss or unauthorized use, copying or disclosure of the Confidential Information of the Discloser or any of its Affiliates.
12.7 The obligations of the Parties under this Article shall survive and continue for a period of one (1) year after the termination or expiration of this Agreement.
13. COMMERCIAL REFERENCE
- Each Party may not mention the other Party’s company name, the trade name and more generally refer to the other Party in its communication media of all kinds (written, digital, paper or online commercial brochures, etc.) as commercial references, in particular during demonstrations or promotional events, unless it has been expressly authorized in writing by the other Party.
14. FORCE MAJEURE
14.1 No Party shall be held responsible vis-à-vis the other Party in the event that the performance of its obligations is delayed, restricted or made impossible due to the occurrence of a force majeure event such as this notion is usually retained by French courts; are considered in particular as cases of force majeure, natural disasters, the outbreak or escalation of hostilities (regardless of whether a war has been declared or not), hacking or internet attack which could not be prevented by reasonable security measures, or any illegal act against public order or authority having an impact on the proper functioning of the Solution.
14.2 The occurrence of an event of force majeure will initially suspend the performance of the services for a period which may not exceed 60 days. In the event that the case of force majeure continues beyond the aforementioned period, each Party may terminate this Agreement, as of right, by giving thirty (30) days’ written notice to the other Party. Such termination shall be without prejudice to the rights of the Parties in respect of any breach of this Agreement occurring prior to such termination.
15.1 The failure of a Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or the right of such Party to enforce such provision and any other provision.
15.2 Any disputes which cannot be amicably settled shall be referred to the exclusive jurisdiction of the competent courts of Marseille (France) and shall be governed by the laws of France excluding their rules of conflict of laws.[PS8]
15.3 Headings are for convenience only and shall not be used in interpreting this Agreement.
15.4 This Agreement and any Purchase Orders shall inure to the benefit and be binding on each of the Parties and their respective successors and assigns, provided however, that no assignment of any rights or delegation or subcontracting of any duties under this Agreement is binding on a Party unless such Party’s written consent has first been obtained.
15.5 All obligations and liabilities which by their nature, are intended to survive the expiration or termination of this Agreement, including but not limited to Article 4, Article 8, and Article 10, shall remain in effect beyond any such expiration or termination.
15.6 If any provision of this Agreement is or becomes illegal or unenforceable in whole or in part in a country, the remaining provisions shall nevertheless be valid and binding with respect to that country so long as they continue to express the original intent of the Parties.
This Agreement constitutes the entire agreement between the Parties regarding the Services. This Agreement may not be modified, or any right of a Party waived, except by means of an express amendment duly executed by each of the Parties.
15.7 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties.
COMPANY REQUIREMENTS ALLOWING CMA CGM TO MAKE THE NIS OFFER.
(Usually sent by email)
In order to send you the NIS Offer and conclude a Transaction, please revert with all necessary hereunder information.
These information will be crucial to do an exhaustive and tailor-made proposal to your request.
- What would be the commodity you would like us to find news producers (exporters) or buyers (importers)? Commodity code?
- What origins (country), Port of Loadings are you looking to source (if any specific need).
- What destinations (country), Port of Discharge are you looking to sell / develop your activities (if any specific need).
- What’s the estimated volume willing to commercialize. Volume per season or containers per week.
- What kind of customer are you looking for (small, medium size, big structure). Retailor, wholesaler, distributor etc…
- Is there any other service that could be useful or interesting for you:
- Precarriage / On carriage.
- Cargo value insurance / coverage.
- Cargo financing.
- Specific tracking and follow up.
- Reefer specific technology (Atmosphere control, Cold treatment, reflex, super freezer etc..).
Please don’t hesitate to add any particular comment or information that could help us to be the closest to your request.