General Conditions Of The Contract
1. Introduction
These General Conditions govern (unless otherwise established by virtue of a written and express agreement between the parties) the obligations arising from the contractual relationships stipulated by the Freight Forwarder and from deeds or facts put in place by employees, agents and person in charge; these General Conditions also define, to the extent and in the manner envisaged, the responsibility of the Freight Forwarder.
These Conditions are published in digital format on the website www.invictapns.com
2. Definitions
In these General Conditions the following terms have the meaning specified below:
a) Freight Forwarder: the person who receives the shipping mandate for the stipulation of the transport contract and / or for the performance of one or more ancillary operations;
b) Freight forwarder-carrier: the person who carries out all or part of the transport, or expressly assumes (as a result of a specific agreement) the execution using the work of another person of his own choice;
c) Principal: the person who gives the shipping mandate for the stipulation of the transport contract and / or for the performance of one or more ancillary operations;
d) Sender: the person who is the sender or loader under the transport contract stipulated by the shipper;
e) Carrier: the person who physically performs or assumes the execution of the transport.
The term Freight Forwarder-carrier, on the other hand, always refers specifically and exclusively to the case referred to in letter b) above.
3. Scope of application
The Principal expressly accepts, both if he acts on his own behalf, and if he acts for others in the stipulation of the shipment and / or transport contract, that these General Conditions have and are fully and unconditionally applicable to all contractual relationships with the Freight Forwarder, as well as to all actions and complaints, even of an extra-contractual nature, against the latter.
4. Assumption / acceptance of assignments
The Freight Forwarder, as a result of the mandate received, usually in writing, will stipulate the transport contract as well as carry out the ancillary operations, acting with the necessary discretion, with the right to ship the goods by grouping them with another (unless otherwise ordered in writing) always working with the utmost diligence, acting as forwarder and not as forwarder-carrier.
The Freight Forwarder, except with prior written agreement, does not accept the carrying out of shipping and / or transport activities relating to dangerous goods, which may harm people, animals, other goods or things, or are subject to deterioration, and are unpacked. or with insufficient / inadequate packaging, as well as valuables, coins, precious goods, works of art. By way of example and not exhaustively, dangerous goods are understood to be goods classified as dangerous by IATA, IMO, ICAO, or contemplated in the ADR / RID regulations.
If these goods are entrusted to the Freight Forwarder without his prior consent, or the Freight Forwarder accepts the mandate on the basis of incorrect, incomplete or untrue information provided to the same by the Principal in relation to the nature or value of the goods, the Freight Forwarder has the right to terminate the contract, or, if circumstances require it, to refuse, deposit or otherwise dispose of the goods, or even, in case of danger, to proceed with their destruction, and the Principal and / or the Sender are required in this case to respond for all the harmful consequences and expenses that may derive for various reasons.
The Freight Forwarder may ask for fees calculated on a flat-rate basis pursuant to Article 1740 of the Civil Code acting in this case as a freight forwarder, while in the event that he also acts as a freight forwarder-carrier he may make use of the remuneration rights referred to in art. 1741 of the Italian Civil Code, without prejudice to the limitations of liability, even in the case of the so-called intermodal transport, only to direct damage and within the limits of the law (L. 233/2021) of the so called vectorial liability, and in any case, with the express exclusion of damages from loss of profit and / or for any indirect and / or mediated damages.
5. Terms of delivery
The Freight Forwarder does not guarantee compliance with delivery terms, and therefore cannot in any case be held responsible for delays in the collection and transport and / or delivery of any shipment regardless of the cause of such delays or requests from the Principal for particular delivery terms, even if resulting from the shipping documents.
6. Declarations and warranties of the Principal / Sender
6.1 The parties agree that, for any hypothesis of loss, direct or indirect damage, damage or deterioration of the goods transported, as in the case of non-fulfillment of the obligations of diligence and correctness imposed on the Shipper-carrier, without prejudice to the limitations referred to in the previous article 4 , last paragraph, the Principal of the shipment will have the right to act directly only against the carrier; while it will be the duty of the Freight Forwarder to have regard to the choice of a carrier that is manifestly competent and professionally valid, while retaining the right, towards the Principal, to be reimbursed the advances (e.g. the amount paid to the carrier by way of freight, expenses or customs taxes ) and the remuneration agreed from time to time, also on a lump-sum basis, for individual appointments. The Freight Forwarder-carrier will not in any case be liable for losses, damages, delays, incorrect or non-deliveries caused by unforeseeable circumstances, natural disasters, force majeure, strikes, as well as acts of the State Administrations and / or causes of exemptions provided for in the uniform discipline in transport and / or shipping (e.g. embargoes; riots and civil revolts; accidents / damage to means of transport; acts of customs or postal authorities, etc.). Due to the nature of the shipping assignment, the Principal acknowledges that the Freight Forwarder has neither duty nor possibility to guarantee delivery terms (return) of the goods.
6.2 The Principal and the Sender guarantee and therefore declare:
- that the shipment has been correctly and accurately described in all transport documents;
- who have taken note of the goods that the Freight Forwarder has declared unacceptable for transport, and that they have not been included in the shipment;
- that the nature of the goods, the number, the quantity, the quality, the contents of the packages, the gross weight (including the weight of packages and pallets and their bulk), the dimensions and any other information provided are true and correct;
- that the packaging and labeling used, in relation to the goods contained and the mode of transport, are considered suitable.
The Principal and the Sender expressly declare to release from liability and hold the Freight Forwarder harmless from any direct or indirect damage, complaint or expense of any kind that may derive from the violation of the above guarantees, as well as from the lack, insufficiency or inadequacy of the packaging, or from the failure to report on the goods and packages the precautions necessary for their handling and lifting.
If the Freight Forwarder is entrusted with the mandate to carry out and take care of customs operations, the Principal and / or the Sender guarantee that the documentation accompanying the goods is authentic, complete and free of irregularities and that the goods strictly correspond to the type described, complying with the regulations in force., is free to export / import and is in compliance with the marking.
The Principal and / or the Sender are also required to provide in good time all information, data, customs codes, the heading and customs classification of the goods and all the necessary documents to proceed with customs operations.
Furthermore, the Principal and / or the Sender authorize the Forwarder to manage all the data of the shipment, possibly also of those data that could be of a so-called nature, sensitive data, in order to allow the shipper to deal with all the administrative and / or operational practices that need to be fulfilled electronically in order to guarantee the best assistance for the shipment.
7. Quotations of the Freight Forwarder
The quotations of the Freight Forwarder and the agreements relating to prices and conditions refer only and always to specified services and do not include, unless otherwise agreed, additional costs resulting from operations carried out outside normal working hours. Unless otherwise agreed, they are considered binding only for goods of normal volume, size, weight and quality, in relation to the mode of envisaged transport.
8. Advances and credits of the Freight Forwarder
If, as a result of existing agreements, the Freight Forwarder anticipates freight rates, transport fees, rental of containers, duties and expenses and other sums, for whatever reason, the Principal and / or the Sender are required to pay the amount due for this advance, in interest for any delays and any losses due to changes in the exchange rate between currencies.
The Principal and / or the Sender are required to indemnify the Freight Forwarder in full from requests for payment for freight, duties, taxes, damage contributions, fines or other sums requested to the Freight Forwarder for any reason. If the sums and fees due to the Freight Forwarder are charged to the recipient or third parties, the Principal and / or the Sender are required to pay them immediately if for any reason the Freight Forwarder does not receive timely and spontaneous payment of the sums due to him.
Unless otherwise agreed, no sum due to the shipper may be offset with other sums claimed by the Sender and / or Principal, for any reason whatsoever. The commissioned shipping services are based on the rates agreed between the parties, including through the exchange of communications by e-mail (via email), and must be paid within the terms indicated therein. Unless otherwise expressly agreed, the monthly competence of shipments for billing purposes is defined by the departure date (airport / port), indicating for the currency quotations the exchange rate in effect at the departure of the flight / sea vessel. Failure to comply with the payment conditions results in the automatic revocation of the same, with the simultaneous right to exercise the right of retention as governed by the following Art. 9.
9. Right of retention
The Freight Forwarder has, towards the Principal, the Sender and any other person with whom he contracts, privilege and right of retention on the goods and other assets in his possession in relation to expired or expiring credits, and can also claim this right towards of the recipient and / or owner of the goods.
10. Operational exceptions: delay or refusal to load or receive the goods
The Sender and / or the Principal are required to reimburse and hold the Freight Forwarder harmless in relation to any sum or cost due, including those for stops of means of transport, including containers, loose cargo and similar, for the return of the goods to the warehouse., for deposit and subsequent return.
In case of refusal or unavailability of the recipient, the Freight Forwarder, if promptly informed of the stock and entitled to intervene, may take the necessary or appropriate measures for the custody of the goods and their return, acting in the name and on behalf of the Principal and / or of the Sender, who bears the risk of any loss, damage or theft.
11. Responsibility
11.1 The Freight Forwarder is not responsible for the execution of the transport but exclusively for the execution of the mandate received, as well as for any ancillary obligations.
11.2 In compliance with what has already been indicated in the previous article 4, last paragraph, the responsibility of the Freight Forwarder and / or the Freight Forwarder-carrier, when foreseen and attributable to him, in relation to any damage and request for compensation arising from the shipping operations and / o entrusted transport, including any technical stops, may not exceed the compensation limit invocable by the Freight Forwarder and / or the Freight Forwarder-Carrier on the basis and by effect of the uniform legislation applicable to each individual shipment or of the national law applicable to the individual transport and / or shipment , including Italian law, and in any case the compensation limit applicable and invocable by the carrier that materially / effectively performs the transport.
By technical stop we mean the stop of the goods in a storage area, or in a warehouse or terminal or in another shelter area, for needs related to the execution or continuation of transport, or in any case related to the need to keep the goods during transport or waiting for delivery to the carrier or recipient.
12. Damage occurred in an unknown section
In the event that it is impossible to identify the section of transport in which the damage or loss occurred, as well as in the event that the damage or loss occurs in a storage and / or deposit phase that cannot be configured as technical stop (therefore including the deposit free of charge or as a courtesy) performed in the exclusive hypothesis of the Freight Forwarder also Carrier, in this case making use of its own facilities or its auxiliaries, or even in the event that the depositary or the auxiliary in the storage and / or handling phase cannot invoke compensation limits, the maximum limit of 8.33 special withdrawal rights per kilo of lost or damaged goods will apply.
13. Indirect damage
In any case, it is excluded, and both are also provided for in derogation of Articles 1223 et seq. of the Civil Code, any compensation due by the Freight Forwarder and / or the Freight Forwarder-Carrier for indirect damages (such as, with indication that it is purely by way of example and is in no way exhaustive: loss of earnings, loss of interest or damages deriving from delays in the execution of the transport, forfeiture of the guarantee of the transported goods following a collision or any event or accident).
In particular, for shipments of samples and goods or merchandise that the legal sender or sender has expressly indicated as intended for fairs, exhibitions, events and the like, the compensation (if due) is limited to the amount of the agreed freight.
14. Complaints, disputes and competent court
Any claim for loss, incorrect delivery, breakdown or damage must be made in writing and sent to the Freight Forwarder strictly within the applicable terms due to the uniform or legal regulations referred to in Article 11. Any dispute that may arise between the parties, directly and / or indirectly connected with the interpretation and execution of the shipping mandate given or in any case to the agreement between the parties, it will be governed by Italian law and subject exclusively to the jurisdiction of the Court of Genoa.
15. Insurance
If the Principal intends to insure the risk of damage or loss to the goods, he can give a written mandate to the Freight Forwarder to arrange for the stipulation of insurance coverage on behalf of whoever is entitled to it. The costs of the aforementioned coverage will in this case be specified in the Freight Forwarder’s quotation. In the absence of instructions expressed by the Principal, any coverage, provided that it is requested, is stipulated only for ordinary risks, in the usual forms of insurance on behalf of whoever is entitled or on behalf of others or by subscription. In no case can the Freight Forwarder be considered as an insurer or co-insurer.
Alternatively, the Principal can directly insure the shipment and / or transport, being understood that, in this eventuality, the relevant policy must contain an express waiver of the right of recourse against the Freight Forwarder by the insurer.
The Freight Forwarder has no obligation to act to obtain insurance compensation, interrupt the statute of limitations, take care of the performance of the expert activity, unless instructed to do so by the Principal for a fee to be agreed ad hoc.
16. Causes of force majeure
The Freight Forwarder is in no case responsible for losses, direct or indirect damages, delays, incorrect or non-deliveries caused by unforeseeable circumstances, by exempt causes provided for in the uniform or legal regulations referred to in Article 11, and in any case by circumstances beyond out of your control. These include, but are not limited to: a) natural disasters b) cases of force majeure such as wars, accidents / damage to means of transport or embargoes, riots or civil revolts; c) defects, intrinsic characteristics or defects in the goods; d) acts, breaches or omissions of the Sender, the recipient or anyone else who has an interest in the shipment, of the State, Customs or Postal Administration or other competent Authority e) strikes, lockouts or work conflicts.
17. Data processing
Pursuant to and for the purposes of Legislative Decree no. 196/03, and ss. mod., the parties, agree to the processing of their personal data, useful for carrying out the shipping tasks, mutually acknowledging that they have given and received the information required by the aforementioned legislation. The parties also consent to the use of their personal data for the purpose of receiving promotional material and / or advertising information related to the execution of the shipping orders.
Pursuant to art. 1341 and 1342 of the Italian Civil Code the following clauses: 4. Assumption / acceptance of assignments – 5. Delivery terms – 9. Right of retention – 11. Liability – 12. Damages occurred in unknown route – 13. Indirect damages – 14. Complaints – 15 Insurance – 16 Causes of force majeure, are all specifically known, approved and accepted.