GENERAL TERMS AND CONDITIONS: FORWARDING CONDITIONS
1. Applicability of the Forwarding Conditions
1.1. These Forwarding Conditions apply to and are deemed incorporated into an Agreement when such Agreement is between Impala and its Customer (as such terms are defined herein).
1.2. Notwithstanding anything set forth herein or in any law to the contrary and to the extent permitted by law, The Forwarding Conditions take precedence over any law.
1.3. The Forwarding Conditions together with the Agreement govern all forwarding and transportation transactions or business undertaken between the applicable Impala entity and the Customer.
1.4. The Customer appoints Impala as its forwarding agent. Additional terms and conditions may be imposed by a carrier or warehouse operator covering carriage and storage of the Customer’s Goods.
2.1. In the Forwarding Conditions, the following capitalized words and expressions shall have the meanings respectively assigned to them:
“Agreement” means any agreement, whether written or oral, by which Impala offers and the Customer accepts the provision of the Services, and will include a written contract and/or correspondence by fax and/or email between Impala and the Customer;
“Business Day” means a day other than a public holiday when commercial banks are open for commercial business in the jurisdiction in which Impala is providing the Service.
“Charges” means the fees payable to Impala by the Customer for the provision of the Services;
“Customer” means a Person to whom Impala will provide the Services pursuant to the Agreement;
“Forwarding Conditions” means the forwarding conditions of Impala stipulated herein and “Forwarding Condition” will mean one or any of them;
“Goods” means the goods in respect of which the Services will be provided by Impala pursuant to the Agreement;
“Impala” means IWL Investments (Malta) Ltd or its Subsidiaries;
“Person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), or government or governmental entity or organisation;
“Services” means any and all services provided or to be provided by Impala to the Customer pursuant to the Agreement, including the provision of any advice or information whatsoever;
“Subsidiary” means an entity providing Services which is controlled directly or indirectly by the stated entity. For this purposes, “control” of any entity or person means ownership of a majority of the shares of the entity;
“Taxes” means all taxes, duties, imposts, levies and other similar charges (and any related interest and penalties) howsoever, designated or imposed relating to the Goods or the Services;
“Working Hours” means 0830hrs to 1730hrs or other applicable local time advised by Impala on a Business Day.
2.2. Unless the context otherwise requires:
2.2.1. Words in the singular include the plural and vice versa;
2.2.2. A reference to a gender includes any other gender;
2.2.3. Headings are for reference only;
2.2.4. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
2.2.5. a reference to writing or written includes fax and e-mail.
2.3. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.4. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.5. Impala may amend, vary or supplement the Forwarding Conditions at any time by giving notice thereof to the Customer. Any such amendment, variation or supplement shall take effect as from the date specified in the notice or in the absence of a specified date, as from the date of such notice.
3. Incorporation of Forwarding Conditions
3.1. The Forwarding Conditions will apply to the Agreement and will be deemed to be incorporated in and form part of the Agreement. The Customer will be deemed to have received the Forwarding Conditions so long as Impala has sent or delivered the Forwarding Conditions to the Customer or that the Forwarding Conditions have been drawn to the attention of or made reference to and/or otherwise made available to the Customer, including by internet access, regardless of whether the Customer expressly acknowledges receipt of the Forwarding Conditions.
3.2. Any other terms and conditions or forms used by the Customer will not be applicable to or be deemed incorporated into the Agreement unless the terms and conditions or forms have been accepted in writing by Impala.
3.3. Any variation to the Forwarding Conditions (including any special terms and conditions agreed between the parties) will be inapplicable unless agreed to in writing by Impala. The Forwarding Conditions expressly limit the Customer to acceptance the Forwarding Conditions. Any additional or different terms or conditions, whether in a proposal, purchase order, acknowledgement, acceptance or otherwise, are rejected and will not apply unless expressly assented to in writing by an authorized representative of Impala, notwithstanding any contrary language proposed by Customer that any act or failure to act by Impala, constitutes acceptance of any different or additional terms or conditions.
3.4. The Customer acknowledges that Impala is not a common carrier and Impala handles the Goods subject to these Forwarding Conditions.
3.5. No agent or employee of Impala has Impala’s authority to alter or vary these Forwarding Conditions.
3.6. If any legislation is compulsorily applicable to any business or Services undertaken by Impala, the Forwarding Conditions will, as regards such business or Services, be read as subject to such legislation and nothing in the Forwarding Conditions will be construed as a surrender by Impala of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of the Forwarding Conditions will to any extent be repugnant to such legislation, such part of the Forwarding Conditions will as regards such business or Services be void to that extent but no further.
4. Owner of Goods, Title and Claims to Goods
4.1. The Customer expressly warrants that he is the Owner or the authorised agent of the Owner with authority to accept these conditions not only for himself, but also as agent for and on behalf of the Owner and all other Persons who are or may thereafter become interested in the Goods.
4.2. The Customer shall notify Impala of any sale of Goods covered by an Agreement and shall procur agreement in writing to the Forwarding Conditions by any buyer of Goods. Notwithstanding any such agreement, the Customer remains fully responsible to Impala for performance of Customer obligations under an Agreement.
4.3. Without prejudice to clause 4.1 Impala will have the right to enforce the Forwarding Conditions not only against the Customer but also against the sender and/or consignee and/or owner of the Goods to the extent permitted by law.
4.4. All rights of ownership and title over the Goods will be established and verified by the Customer, or between Customer and its client or other third party. It is acknowledged and understood that Impala has no responsibility or liability with respect to any conflicting claims arising out of a dispute contesting rights of ownership or title to the Goods.
5.1. Impala will be entitled to sub-contract its obligations to perform the Services, in whole or in part, on such terms and conditions as Impala deems appropriate in its sole discretion.
5.2. Where the transportation or other Services in respect of the Goods will be sub-contracted to third parties by Impala, Impala reserves the right to appoint such sub-contractor to provide the service on behalf of Impala, and the Customer will bear all risk relating thereto.
6. Methods, Procedures and Routes
6.1. Subject to the express written instructions by the Customer, Impala will be entitled at its absolute discretion to decide on the means, route and procedure to be followed in the handling, storage, transporting and/or forwarding of the Goods. Notwithstanding the foregoing, Impala will be at liberty to depart from the Customer’s instructions if, in the opinion of Impala, it is at any stage necessary or desirable in the Customer’s interest to do so.
7. Warehousing / Storage / Packing of the Goods / Containers
7.1. Impala may warehouse or store the Goods at any place at the sole discretion of Impala pending the forwarding or delivery of the Goods, and all expenses incurred in the warehousing or storage of the Goods will be payable by the Customer. Unless expressly agreed in writing, Impala shall not be under any obligation to guard or arrange security for the Goods at any time.
7.2. Except where Impala is instructed in writing to pack the Goods, the Customer warrants that all the Goods have been properly and sufficiently packed and Impala will not be liable for any loss, damage or expenses whatsoever incurred or suffered by the Customer as a result of the flawed, faulty and/or insufficient packing of the Goods.
7.3. If a container has not been packed or stuffed by Impala, Impala will not be liable for loss of or damage to the contents thereof if caused by:
7.3.1. the manner in which the Container has been packed or stuffed;
7.3.2. the unsuitability of the contents for transportation in containers;
7.3.3. the unsuitability or defective condition of the container provided however Impala may be liable for loss or damage to the contents thereof, if, and only if, the container was supplied by or at the direction of Impala, and it is proven that the unsuitability or defective condition (i) arose as a result of the negligence of Impala or (ii) would have been apparent upon reasonable inspection by the Customer or Owner or Persons acting on behalf of either of them or (iii) arose as a result of the peculiarity of the Goods and such peculiarity was made known to Impala in advance; or
7.3.4. the Container not being properly sealed at the commencement of any transportation.
7.4. Where Impala is instructed to provide a container and such instructions are accepted by Impala, as evidenced in writing or by Impala’s shipment of the Goods in a container, Impala is not under an obligation to provide a container of any particular type or quality.
7.5. The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packing, handling, fumigation, storage and transportation of the Goods.
8. Documents to be provided to Impala
8.1. The Customer will ensure that all instructions, information and documents required to be provided to Impala for the safe receipt and dispatch of the Goods by Impala are accurate and adequate and are promptly provided to Impala in writing sufficiently in advance of the date by which the Services are to be performed. Verbal communication of instructions or information shall only be considered as provided to Impala if promptly followed by written confirmation from Impala.
8.2. The Customer will be liable for all consequences arising from the provision of inaccurate, obscure and inadequate instructions, information and/or documents; any failure to furnish any instructions, information and/or documents; or any failure to furnish any instructions, information and/or documents in time.
8.3. Impala will not be obliged to furnish a confirmation for the receipt of the Goods in the absence of a requirement to do so set forth in any of the instructions, information and documents referred to in clause 8.1 above, which has been accepted by Impala, as evidenced in or by Impala’s provision of such confirmation. Any receipt issued shall not be negotiable or transferrable instrument and shall not be considered as confirming the goods received by or under the control or possession of Impala.
9. Accuracy of Descriptions of the Goods and Quality of the Goods
9.1. The Customer warrants and is bound by the accuracy and truth of all descriptions, values and other particulars and/or information furnished to Impala in respect of the Goods for the purposes of customs clearance or any other purposes whatsoever.
9.2. The accurate particulars in respect of the Goods to be provided by the Customer shall include description, content, origin, properties, quality, measurement, quantity and gross weight and all other particulars (including any hazardous properties or substances within the Goods and any special storage or transport or movement requirements due to the nature of the Goods) which if Impala had been aware of, Impala would not or might not have entered into the Agreement or would or might have entered into the Agreement on different terms and conditions.
9.3. Impala will not be considered to be and will not act as an expert in relation to the nature or quality of the Goods and will not be required or obliged to provide any notification to any party whatsoever in relation to the state, nature or quality of the Goods.
9.4. Impala will be under no obligation to ensure that the samples of the Goods are identical with or match the Goods as described by the Customer or that the Goods conform with the description of the Goods provided by the Customer or to make any declaration with respect to the nature, value or purpose of delivery of the Goods.
10. Tallying / Weighing / Measuring of the Goods
10.1. All operations including superintending, sampling, taring, tallying, weighing, measuring and receiving the Goods under judicial survey, will be undertaken only on the Customer’s specific instructions and all costs thereof and relating thereto will be payable by the Customer and, if first paid by Impala, will be reimbursed to Impala by the Customer forthwith upon demand.
10.2. Notwithstanding clause 10.1 above, Impala will be entitled, but not obliged, and the Customer hereby authorizes Impala to take any action with respect to the Goods that Impala considers to be necessary and/or in the Customer’s interest, at the Customer’s expense and risk.
11. Delivery / Loading / Unloading
11.1. A statement by the Customer as to the time of delivery of the Goods will not be binding on Impala and Impala will not be taken to guarantee and gives no representation or warranty as to the arrival time of the Goods, the means of transport or the availability of berths. All timings are subject to change without notification. Time is not of the essence in performance of the Services by Impala.
11.2. In the event that the loading and/or unloading time under any bill of lading and/or charterparty in respect of the Goods is inadequate regardless of the cause, all costs resulting therefrom, including without limitation any demurrage charges will be borne by the Customer, notwithstanding that Impala was the party that accepted or entered into the bill of lading and/or charter party from which such aforesaid costs arise.
11.3. Any additional expenses of an exceptional nature, including without limitation any higher wages arising from the loading and/or unloading of the Goods outside the Working Hours will not be included in the Charges, unless specifically stipulated in writing and agreed to by Impala, and all such expenses will be borne by the Customer.
12. Sale or Disposal of Goods
12.1. Impala shall be entitled to sell or dispose of:
12.1.1. any Goods which are perishable which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not readily identifiable, without any notice to the Customer and payment or tender of the net proceeds of any sale of such perishable Goods after deduction of any charges and expenses due to Impala will be equivalent to delivery of such perishable Goods. All charges and expenses arising in connection with the storage, sale or disposal of such perishable Goods will be borne by the Customer.
12.1.2. non-perishable Goods which in the opinion of Impala cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the Customer or the consignee of the Goods or for any other reason, upon giving 14 days’ notice in writing to the Customer. The aforesaid 14 days’ notice in writing will not apply in respect of perishable Goods and Impala will be entitled to exercise such rights of sale at any time at Impala’s sole and absolute discretion.
12.2. All charges and expenses arising in connection with the storage, sale or disposal of the Goods will be borne by the Customer.
13. Hazardous and other Goods
13.1. The Customer will notify Impala in writing before delivery to Impala of any Goods of an explosive, flammable, corrosive, noxious or dangerous nature or any Goods which may possibly cause damage or be detrimental to other goods stored or transported in proximity, or which are classified as dangerous or hazardous goods by any laws or regulations.
13.2. Except under special arrangements previously agreed to in writing by Impala, Impala will not accept or handle:
13.2.1. any noxious, dangerous, radioactive, hazardous or inflammable or explosive goods or any goods which, in the opinion of Impala, is likely to cause damage to any person or property whatsoever, as determined by Impala in its sole and absolute discretion.
13.2.2. Any precious or sensitive goods including but not limited to precious stones, jewelry, antiques, paintings, high value classic or sports cars.
If Impala agrees to handle such Goods, the Customer agrees that they will be accompanied by a full declaration of their nature and contents and properly and safely packed and labeled in accordance with all applicable laws and regulations.
13.3. Should the Customer nevertheless deliver any such Goods to Impala or cause Impala to handle or deal with any such Goods otherwise than under special arrangements previously made in writing, the Customer will be liable for all losses, damage or expenses whatsoever caused by or to or in connection with the Goods however arising and the Customer will indemnify Impala from and against all penalties, claims, damages, costs (including all legal costs on a full indemnity basis) and expenses whatsoever arising in connection therewith. Such Goods may be destroyed or otherwise dealt with at the Customer’s sole risk and expense and at the sole and absolute discretion of Impala or any other Person in whose custody the goods may be at the relevant time. If such goods are accepted under any arrangement previously made in writing, they may nevertheless be destroyed or dealt with in any manner at the sole and absolute discretion of Impala on account of risk to other goods, property, life or health. Impala will promptly notify the Customer of the measures taken, but failure to notify the Customer will not give the latter any right of claim against Impala. Without prejudice to the above, the Customer will indemnify Impala from and against any claims of third parties on account of damage caused by the Customer’s Goods to goods of third parties.
13.4. The expression goods “likely to cause damage” includes Goods which are likely to harbour or encourage vermin or other pests.
14. Payment of Charges, Freight, Duties, etc.
14.1. All Charges will be payable by the Customer immediately upon issuance by Impala of the invoice for such amounts. Notwithstanding the above, interest shall not accrue on the invoiced amount until fourteen (14) days after issuance of such invoice.
14.2. Impala will be entitled to charge the Customer a reasonable amount in addition to the Charges for any operations of an unusual nature and/or which requires additional time or effort to carry out.
14.3. Unless otherwise stipulated in writing and agreed to by Impala, expenses will be charged to the Customer and will be payable by the Customer and are not included in the Charges. Such expenses include postage expenses, teleprinter, telegram and telephone charges, stamp fees, import duties and excise, statistical duties, consular and attestation fees, customs formalities, emergency surcharges, security surcharges, congestion surcharges, piracy risk and war risk surcharges, currency charges, increase in rates, costs of preparing shipping documents and obtaining bankers’ guarantees (if any), cost of weighing, measuring, tallying, taring, sampling and repairing, bundling or rebundling, packing or repacking, cranage, additional costs of handling heavy objects, insurance premiums, all extra costs such as warehousing charges and quayside charges or wharfage charges for consignments missing a connection, demurrage for detention or delay of vessels, trucks or other transport, hire of tarpaulins, overtime pay, the cost of working outside the Working Hours, cost of providing watchmen and all other out-of-pocket expenses whatsoever. Impala will issue a separate invoice in respect of such aforesaid expenses, fees, duties whatsoever and the Customer will pay all such expenses, fees, duties whatsoever to Impala within fourteen (14) days of its receipt of an invoice from Impala.
14.4. Impala will be entitled to retain and be paid all brokerage fees, commissions, allowances and other remunerations, received by Impala from third parties, in connection with the Agreement, the Forwarding Conditions and/or the Services.
14.5. All quotations are valid during the time of offer by Impala and are subject to withdrawals or revisions before acceptance by the Customer. Unless otherwise agreed to in writing by Impala, Impala will be at liberty to revise a quotation after its acceptance by the Customer with or without prior notice to the Customer, in the event of any changes in the currency exchange rates, rates of freight, insurance premiums, general port charges and any other rates or charges on which the quotation to the Customer was based, regardless of the cause of such changes.
14.6. The Customer will be liable for any Taxes, deposits or outlay of any kind whatsoever which are levied or imposed by the authorities at any port or place in connection with the Goods and for any payments, fines, expenses, loss or damage whatsoever incurred or sustained by Impala in connection therewith (collectively, “Taxes and Other Payments”).
14.7. Unless otherwise agreed to by Impala in writing, the Customer will pay to Impala immediately all freight, duties, and all other costs and expenses relating to the transportation of the Goods and/or customs requirements upon arrival or dispatch of the Goods which are being received or forwarded by Impala respectively. Any risk of currency exchange fluctuations will be borne by the Customer.
14.8. Where the Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee of the Goods or any other persons, the Customer will remain liable for the same if the same is not paid by such consignee or other Person forthwith on the due date for payment or upon demand by Impala.
14.9. Impala will not be obliged to furnish or to procure any third party to furnish security for the payment of any freight, duties and/or other costs and expenses relating to the Goods in the event the same is required by any other party. In the event that Impala furnishes security out of its own resources, the Customer will make payment to Impala of the amount for which security has been furnished upon demand by Impala. Any and all consequences arising from the failure to comply with a demand to furnish security will be borne by the Customer.
14.10. In the event that the Customer fails to pay any amounts which are due and payable hereunder or immediately upon notification thereof by Impala, interest will be payable on such amounts at the rate of rate of 3 month US Dollar LIBOR rate + 5% per annum or such other rate as may be agreed between Impala and the Customer.
14.11. The Customer will upon demand by Impala furnish security for any amount which the Customer is or may be indebted to Impala.
14.12. All monies owed to Impala by the Customer will be paid to Impala immediately when due without any deduction whatsoever and payment will not be withheld or deferred on account of any claim, counterclaim or set-off.
14.13. In the event that Impala resorts to any legal proceedings or other means for the recovery of any amounts due and payable by the Customer hereunder (the “Indebtedness”), the Customer will, in addition to the Indebtedness and interest payable under clause 14.10, be liable to Impala for a further amount equivalent to 10% of the Indebtedness on account of all management time and clerical expenses which may be incurred by Impala in resorting to such proceedings or other means.
15. Lien and Right of Retention of Goods, Documents, etc.
15.1. Impala is entitled to retain the Goods, any document relating to the Goods and moneys which Impala may hold on behalf of the Customer at the Customer’s sole expense and risk as security until the Charges and all other charges, costs and expenses which are due and payable to Impala has been paid to Impala or, if the Goods are to be forwarded on to other parties, to collect the sum due on the subsequent delivery.
15.2. All Goods, documents and/or moneys will be held by Impala subject to a general lien and right of retention whether such lien and right are afforded by law, the Forwarding Conditions or otherwise, for money due to Impala whether in respect of the Charges or for other expenses, charges or costs payable to Impala by the Customer and/or the owner of the Goods. The lien retention right will also extend to any insurance claims collected on behalf of the Customer by Impala, and, as far as necessary, the right will be deemed to have been transferred to Impala for further security.
15.3. In the event that the Customer fails to make payment of the Charges or any other moneys whatsoever due to Impala within fourteen (14) days from the day when such sums become payable, Impala will be entitled to utilise any and all such moneys held by Impala and/or sell the Goods by auction or otherwise at Impala’s sole and absolute discretion and at the expense of the Customer and the proceeds (after deduction of sale expenses, storage charges, etc.) may be applied by Impala in or towards satisfaction of such indebtedness by the Customer to Impala. In the case of perishable goods, Impala need not await the expiry of the aforesaid fourteen (14) days and may exercise such rights of sale earlier at Impala’s sole and absolute discretion. Any balance of the proceeds from the sale of the Goods and/or any balance of the moneys held by Impala after the proceeds of sale and/or the moneys have been applied in or towards the satisfaction of such indebtedness by the Customer to Impala will be paid to the Customer.
16.1. Impala will be under no obligation whatsoever to make any declaration which may be required under any statute, convention or contract as with regards to the nature or value of the Goods or with regards to any special requirements relating to the delivery of the Goods unless expressly instructed by the Customer in writing and Impala agrees in writing to make such declaration or expresses such agreement by making such declaration.
17. Force Majeure
17.1. Impala shall not be liable for any loss, damage to or destruction of the Goods, or for any delay in the performance or non-performance of any of the terms set forth herein that arise in whole or in part to any cause not within the control of Impala, whether now or hereafter existing, including the following:
17.1.1. war, terrorism, threat of war, official action, quarantine, civil disturbance, sabotage, strike, lock-out, interference with communications, imposition of sanctions or other trade restrictions, lack of transport, labour and/or storage accommodation;
17.1.2. storm, fog, lightning, fire, flood, high and low tide or water level, frost, freezing, ice, heat, acts of god;
17.1.3. subsidence and/or collapse of the ground and/or any storage facility, water leakage or seepage, dampness, odour, stench, worms and rodents, damage through rats, mice, insects or other creatures;
17.1.4. the natural properties of the Goods, inherent changes in quality, spontaneous deterioration, self-generated heat, combustion, explosion, drying, mould, yeasts, leaks, rot and mildew, rust and sweating;
17.1.5. breakage of glass, wickered bottles and flasks, cast-iron and other brittle articles, inadequate packing;
17.1.6. all other causes which are beyond the control of Impala.
17.2. In the event of force majeure, the Agreement will remain in force but Impala’s obligations will be suspended for so long as the force majeure event subsists.
17.3. All additional costs which may be incurred as a result of a force majeure event, including but not limited to transportation and storage charges, warehouse or yard rental, demurrage for vessels or trucks, insurance premium, charges in respect of delivery from warehouses, bonded or otherwise, will be borne by the Customer and will form part of the debt due and owing to Impala by the Customer mentioned in clause 14 hereof on which interest will be chargeable.
18.1. Impala will not be obliged to take out any insurance on the Goods for any risk whatsoever. In the event that the Customer requests the assistance of Impala to take out any insurance on the Goods for and on behalf of the Customer, Impala may, upon the written request by the Customer and at its sole and absolute discretion, take out insurances on the Goods against such risks as may be notified by the Customer. Impala will not incur any liability whatsoever to Customer or to any other Persons in the event it elects not to procure any such insurance. Impala will not be responsible as regards to the choice of the insurer and/or its ability to pay under the insurances, nor will Impala be liable for any inability to place insurances requested by the Customer by reason of an insurer’s requirement which Impala considers, in its sole opinion, to be unreasonable. All insurances on the Goods will be taken out at the Customer’s expense and risk and all insurances will be subject to the usual exceptions and conditions of the policies of the relevant insurance company or underwriter. By requesting Impala to effect insurance, the Customer authorises Impala to make all arrangements with the insurer at Impala’s sole discretion, including arrangements regarding the conditions of insurance and settlement of claims in respect of any damage. The insured value will be the value stated in writing by the Customer or Impala’s estimate of the current value of the Goods. The risks required to be covered will be clearly stated in writing by the Customer to Impala. A mere statement by the Customer of the value is not sufficient and Impala will not be obliged to take out any insurance on the Goods where it is not sufficiently informed of the risks to be covered.
18.2. Impala will not be under any obligation to effect a separate insurance on each consignment but may declare any open or general policy to be applicable to the entirety of the Goods.
18.3. Impala will not be liable for any loss arising from the failure or refusal by any insurer to pay in full or in part any amounts under any insurance as a result of any circumstance for which Impala cannot be held liable regardless of the manner in which the insurance was effected by Impala and notwithstanding that Impala may have charged the Customer any arrangement fees in taking out such insurances on behalf and/or at the request of the Customer.
18.4. In the event that Impala arranges insurance on the Goods in its own name, it will, if so requested by the Customer, transfer or assign its rights to claim under such insurance to the Customer.
18.5. Where Impala utilises derricks or any other equipment for carrying out the instructions given by the Customer, it will be entitled to arrange insurance at the Customer’s sole expense to cover Impala’s risks arising from the use of such equipment.
19. Liability of the Parties
19.1. All operations and activities relating to the Goods carried out by Impala in the provision of the Services will be at the Customer’s sole expense and risk.
19.2. The Customer will be liable for all losses, damage, charges and expenses suffered or incurred by Impala or charged on the Goods as a result of:
19.2.1. any action or inaction on the part of the Customer, its employees, agents and/or contractors or which may in any way be caused by the Goods entrusted by the Customer to Impala;
19.2.2. non-compliance with the terms of these Forwarding Conditions (including the provision of inaccurate or incomplete information or documentation).
19.3. Impala will not be liable to the Customer in respect of:
19.3.1. any damage and/or deterioration to the Goods unless such damage and/or deterioration is proven to have been caused intentionally by the deliberate act of any employee of Impala;
19.3.2. any theft of the Goods whether in Impala’s custody or control or not.
19.4. Impala will not be liable for any loss of the Goods or any part thereof, for any non-delivery or misdelivery of the Goods or any part thereof unless such loss, non-delivery or misdelivery:
19.4.1. is proven to have occurred whilst such Goods or part thereof were in the actual custody of Impala and under its actual control; and
19.4.2. was due to the gross negligence or willful misconduct of Impala.
19.5. Impala will not be liable for non-compliance with any instructions given to it unless it is proven that the same was due to gross negligence or willful misconduct of Impala.
19.6. Without prejudice to the generality of the other provisions in the Forwarding Conditions, Impala will not be liable for:
19.6.1. any errors in the particulars relating to the freight, duties and any other costs and expenses relating to the Goods which are stated to be payable and which are notified to Impala by third parties;
19.6.2. any errors in the amount of freight, duties and any other costs and expenses which are charged to the Customer. In this regard, any demand for payment of the shortfall of any such freight, duties and any other costs and expenses will be charged to and be payable by the Customer;
19.6.3. any consequences arising from the refusal by any carrier to sign for the number of pieces or items, weight, or any other particulars relating to the Goods;
19.6.4. any error in the particulars of the Goods as stated in any warrants, receipts, delivery orders, confirmations, release instructions or any other similar documents notwithstanding that such error is due to the want of care or negligence on the part of the Customer’s employees;
19.6.5. any loss, damage or expense whatsoever suffered or incurred by the Customer as a result of or in any way due to any difference between the time in Geneva or other applicable domicile and in any other parts of the world where the Customer is located. Impala will not be obliged to provide or perform any Services outside the Working Hours.
19.7. Where Impala carries out the transportation of the Goods, its obligations will be governed by the Forwarding Conditions and not by any other agreements, enactments, legislations, rules or regulations whatsoever as may be applicable to a carrier.
19.8. Except as herein provided, Impala will not be liable for any matters whatsoever and however arising, whether in respect of or in connection with the Goods, Services, any instructions, business, advice, information or otherwise. Advice and information, in whatever form it may be given, are provided by Impala for the Customer only. The Customer will defend, indemnify and hold harmless Impala for all liability, loss, damage, costs and expenses arising out of any other Person relying on such advice or information.
20. Limitation of Liability and Time Bar
20.1. IMPALA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE GOODS OR SERVICES.
20.2. Limitation of Liability. NOTWITHSTANDING ANYTHING SET FORTH HEREIN OR IN ANY OTHER DOCUMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW,
20.2.1. IMPALA SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGE, COVER DAMAGES OR LOST PROFITS, DIMINUTION IN VALUE, OR OTHER DAMAGES WHATSOEVER RELATING TO OR RESULTING FROM THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT AND/OR THESE FORWARDING CONDITIONS, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED OF WHICH IMPALA KNEW OR SHOULD HAVE KNOWN AND REGARDLESS OF WHETHER THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE. IN THE EVENT THAT ANY TERM OF THE AGREEMENT OR OF THESE FORWARDING CONDITIONS IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF THIS WAIVER SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
20.2.2. IN THE EVENT IMPALA IS PROVEN TO BE LIABLE TO CUSTOMER FOR ANY AMOUNTS, IN EACH CASE, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH AMOUNT(S) IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, THE MAXIMUM AGGREGATE LIABILITY OF IMPALA ARISING OUT OF OR RELATING TO THE AGREEMENT OR THESE FORWARDING CONDITIONS OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT EXCEED THE LESSER OF (a) THE ACTUAL VALUE OF THE DAMAGED OR LOST GOODS (AS EVIDENCED BY THE RELEVANT INVOICE(S) RELATING TO THE GOODS), (b) THE AGGREGATE CHARGES PAID UNDER THE AGREEMENT, (c) ANY LIMIT IMPOSED BY CONVENTION (WHERE APPLICABLE) or (d) USD25,000.
20.3. Notwithstanding anything set forth herein to the contrary, in no event will Impala be liable to the Customer or to any other Persons with respect to any Services provided or not provided to the Customer whatsoever, any damage or deterioration or non-delivery (in part or whole) or decrease in quantity of the Goods or in general, on account of failure by Impala to comply with any of its obligations whatsoever or howsoever arising, unless:
20.3.1. in respect of any damage or deterioration to the Goods or any part thereof, a notice in writing by the Customer is received by Impala within seven (7) days after the Customer takes delivery of the Goods, setting out full particulars and supporting documentation relating to such damage or deterioration;
20.3.2. in respect of any loss or non-delivery of the Goods or any part thereof, a notice in writing by the Customer is received within fourteen (14) days of the date when the Goods or such part thereof should have been delivered setting out full particulars and supporting documentation relating to such loss or non-delivery; and
20.3.3. suit is brought against Impala within twelve (12) months from the date of the event or occurrence or omission alleged to give rise to a cause of action against Impala.
20.4. The defenses and limits for liability set forth in these Forwarding Conditions will apply in any action against Impala whether such action is based on warranty, contract, negligence, strict liability, tort or otherwise.
21.1. CUSTOMER COVENANTS AND AGREES TO INDEMNIFY, DEFEND (WITH COUNSEL ACCEPTABLE TO IMPALA), SAVE AND HOLD HARMLESS IMPALA, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “INDEMNITEES”), FROM AND AGAINST ANY AND ALL LOSSES (AS HEREINAFTER DEFINED) OF WHATSOEVER KIND AND NATURE, WHETHER INCURRED BY IMPALA OR ALLEGED BY OTHERS, IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, ARISING IN WHOLE OR IN PART AS A RESULT OF, OR IN CONNECTION WITH, ANY OF THE FOLLOWING:(i) ANY BREACH OF ANY REPRESENTATION OR WARRANTY SET FORTH IN THE AGREEMENT OR THE FORWARDING CONDITIONS BY CUSTOMER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS OR PARTIES ON WHOSE BEHALF CUSTOMER IS ACTING AND ENTERING INTO THE AGREEMENT (COLLECTIVELY, THE “CUSTOMER PARTIES”), (ii) NEGLIGENCE BY ANY CUSTOMER PARTY, (iii) ANY DEFECT OF ANY KIND IN THE GOODS, (iv) ANY ACT OR OMISSION OF ANY CUSTOMER PARTY, (v) VIOLATION OF ANY LAW BY ANY CUSTOMER PARTY, (vi) AN INDEMNITEE FOLLOWING THE INSTRUCTIONS OF ANY CUSTOMER PARTY OR IMPLEMENTING SUCH INSTRUCTIONS, (vii) ANY SERVANT, AGENT OR SUBCONTRACTOR OR ANY HAULER, CARRIER, WAREHOUSEMEN, OR OTHER PERSON OR PARTY WHOMSOEVER WHO MAY AT ANY TIME BE INVOLVED WITH THE GOODS, (viii) ANY INSUFFICIENCY OF THE PACKING OF THE GOODS, (ix) ANY ONE OR MORE OF THE MATTERS PROVIDED FOR IN CLAUSE 7.3 ABOVE, (x) IMPALA’S FURNISHING OF A CONFIRMATION FOR THE RECEIPT OF GOODS PURSUANT TO CLAUSE 8,(xi) INACCURACY OF ANY DESCRIPTIONS, PARTICULARS AND/OR INFORMATION CONCERNING THE GOODS THAT IS FURNISHED BY A CUSTOMER PARTY OR ON ITS BEHALF, EVEN IF SUCH INACCURACY IS NOT DUE (WHETHER IN WHOLE OR IN PART) TO ANY NEGLIGENCE OR FAULT ON THE PART OF A CUSTOMER, (xii) ANY AND ALL TAXES AND OTHER PAYMENTS, (xiii) FAILURE BY ANY CUSTOMER PARTY TO PAY ANY INDEBTEDNESS, OR (xiv) ANY INJURY TO OR DEATH OF PERSONS OR DAMAGE TO PROPERTY CAUSED BY OR RESULTING FROM THE GOODS AND/OR THE ACTION OR INACTION ON THE PART OF ANY CUSTOMER PARTY, (xv) IN CONNECTION WITH CLAUSE 13, AND (xvi) ANY GENERL AVERAGE (VOLUNTARY SACRIFICE) OR ANY CLAIMS OF GENERAL AVERAGE (CLAIMS FOR EXTRAORDINARY EXPENDITURE INCURRED). AS USED HEREIN “LOSSES” MEANS ANY AND ALL LIABILITIES, OBLIGATIONS, SUITS, CLAIMS, LOSSES, DAMAGES, JUDGMENTS, AWARDS, PENALTIES, INJURIES, ACTIONS, COSTS, FEES AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND DISBURSEMENTS AND COSTS OF INVESTIGATION, LITIGATION, ALTERNATIVE DISPUTE RESOLUTION, SETTLEMENT, JUDGMENT, INTEREST AND PENALTIES).
21.2. THE INDEMNIFICATION PROVIDED FOR HEREIN IS WITHOUT PREJUDICE TO ANY OTHER RIGHTS OR REMEDIES ANY INDEMNITEE MAY HAVE UNDER ANY LAW. MATTERS COVERED BY THE FOREGOING INDEMNITY INCLUDE:
21.2.1. DAMAGES FOR PERSONAL INJURY, DISEASE OR DEATH
21.2.2. DAMAGES FOR INJURY TO PERSONAL OR REAL PROPERTY;
21.2.3. NATURAL RESOURCE DAMAGES;
21.2.4. ANY AND ALL COSTS OR RECALLS OF SUCH GOODS OR PRODUCTS, INCLUDING BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, COSTS INCURRED IN TRANSPORTATION, LABOR, REMOVAL, INSTALLATION, FINES, PENALTIES AND ATTORNEYS’ FEES, AND
21.2.5. ALL EXPENSES, COSTS AND FEES INCURRED BY ANY INDEMNITEE AS A RESULT OF ANY CLAIM FOR INDEMNIFICATION HEREUNDER.
21.3. TO THE EXTENT PERMITTED BY LAW, IF ANY CUSTOMER PARTY ENTERS ANY PREMISES OWNED, LEASED OR CONTROLLED BY ANY INDEMNITEE, SUCH CUSTOMER PARTY HEREBY WAIVES AND AGREES TO INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM, ANY AND ALL LOSSES THAT ANY SUCH CUSTOMER PARTY MAY HAVE OR INCUR AS A RESULT OF THEIR PRESENCE ON SUCH PREMISES, WHETHER OR NOT ARISING OUT OF ANY ACT OR OMISSION (WHETHER NEGLIGENT OR NOT) OF ANY INDEMNITEE.
21.4.THIS INDEMNITY SHALL SURVIVE THE EXPIRATION, TERMINATION, OR CANCELLATION OF THE AGREEMENT.
22. Governing Law and Jurisdiction
22.1. The Agreement will be governed by and will be construed in accordance with English law, unless otherwise provided in the Agreement or required compulsorily in applicable national law.
22.2. Unless otherwise provided in the Agreement, the Customer agrees that any claim, dispute or matter arising under or in connection with the Agreement or its enforceability, including, without limitation, any contractual claim, dispute or matter shall be discussed and resolved amicably between the parties, and if not resolved, the dispute shall be referred to and finally resolved by arbitration in London and the Customer irrevocably agrees to:
22.2.1. submit to the Arbitration Rules of the London Court of International Arbitration (“LCIA”) for the time being in force;
22.2.2. consent to service of process by registered mail or in any other manner permitted by relevant law; and
22.2.3. be bound by any award delivered by the arbitration in London where Impala may take proceedings in.
22.3.Without prejudice to the generality of clause 24.2, in the event any applicable national law stipulate otherwise, causing the submission to Arbitration in London inapplicable or unenforceable, the Customer agrees that the legal action or proceedings will be brought in the competent court where Impala is domiciled.
23.1. Customer is duly authorized to enter into the Agreement and these Forwarding Conditions and to perform its obligations under the Agreement and these Forwarding Conditions and possesses all licenses, permits, consents and approvals required by law to conduct all business which it conducts with respect to the Goods.
23.2. No course of prior dealings and no usage of trade will be relevant to supplement or explain any terms used in the Agreement or in these Forwarding Conditions. The Agreement and these Forwarding Conditions will be binding upon Customer and its successors and permitted assigns.
23.3. If any provision of the Agreement or these Forwarding Conditions, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, invalid, void or unenforceable, the remainder of the Agreement and Forwarding Conditions shall continue in full force and effect and the application of such provision to other Persons or circumstances shall be interpreted so as reasonably to effect the intent of these Forwarding Conditions.
23.4. Customer shall comply with all Laws pertaining to the Goods.
23.5. The failure by Impala to insist, in any one or more instances, upon the performance of any of the terms or conditions of the Agreement or these Forwarding Conditions, or to exercise any right or remedy hereunder, shall not be construed as a waiver of the future performance of any such terms or conditions or the future exercise of such right or remedy.
23.6. The Forwarding Conditions will be deemed to be incorporated in and form part of the Agreement. All transactions between Impala and the Customer shall be governed by these Forwarding Conditions together with the Agreement. In the event of any conflict between the terms of the Agreement and these Forwarding Conditions, the terms of the Agreement shall prevail. In the event of anything not mentioned in the Agreement, the Forwarding Conditions shall govern.
23.7. The headings used herein are for convenience only and do not form a substantive part of these Forwarding Conditions.
23.8. By requesting that Impala perform the Services and/or by executing the booking confirmation and/or other documentation to which these Forwarding Conditions are attached, Customer covenants and agrees to be bound by the terms hereof and represents and warrants the truth and accuracy of the matters set forth herein to be represented and/or warranted by Customer.
23.9. Any notice to be given by Impala under the Forwarding Conditions shall be deemed delivered if addressed to the Customer at the last known contact details (address, fax or email) of the Customer whether or not the Customer acknowledges receipt. Evidence of being sent shall be deemed evidence of receipt immediately where sent by email or fax or within 48 hours if sent by post or courier
24.1. Notwithstanding anything herein to the contrary, Impala may at any time terminate the Agreement by written notice to the Customer, effective immediately if:
24.1.1. the Customer commits a material breach of any of the terms of these Forwarding Conditions and such breach is not cured within fifteen (15) days after the Customer being notified by Impala; or
24.1.2. the Customer is dissolved, becomes insolvent, is unable (or admits it is unable) to pay its debts as they fall due, enters into an arrangement with or for the benefit of its creditors, goes into liquidation or commits an act of bankruptcy under the laws of its relevant jurisdiction of incorporation, or if a receiver is appointed over any of its assets or anything occurs with analogous effect to the above.
24.2. In the event that the Customer terminates the Agreement unilaterally, Impala will be entitled to a reasonable compensation for the loss it suffers (including but not limited to any loss of profit) as a result of the termination of the Agreement.
24.3. Upon the occurrence of a termination of the Agreement, any Charges or expenses (whether present or future, contingent or otherwise) shall become immediately due and owing by the Customer to Impala.