These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event, the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services.
1. Definitions. “Company” shall mean Tactical Logistic Solutions, Inc. its subsidiaries, related companies, agents and/or representatives;
- (a) “Customer” shall mean the person for which the Company is rendering service, as well as its principals, agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
- (b) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
- (c) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating carrier”;
- (d) “Third parties” shall include, but not be limited to, the following: “carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen, and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise”.
2. Company as agent. The Company acts as the “agent” of the Customer for the purpose of performing duties in connection with the entry and release of goods, post-entry services, the securing of export licenses, the filing of export and security documentation on behalf of the Customer and other dealings with Government Agencies, or for arranging for transportation services, both domestically and internationally, or other logistics services in any capacity other than as a carrier.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss must be made in writing and received by the Company, within 75 days for the notice to be given days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
- (i) For claims arising out of ocean transportation, within one year from the date of the loss;
- (ii) For claims arising out of brokering domestic motor carrier transportation, within two years from the
date of loss;
- (iii) For claims arising out of air transportation, within two years from the date of the loss;
- (iv) For claims arising out of the preparation and/or submission of an import entry(s), within seventy-
five days from the date of liquidation of the entry(s);
- (v) For any and all other claims of any other type, within one year from the date of the loss or damage.
4. No Liability For The Selection or Services of Third Parties and/or Routes. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance, and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. Reliance On Information Furnished.
- (a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs & Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submissions
filed on Customers behalf;
- (b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation, delivery orders and/or other required data, the Company relies on the correctness of all documentation, whether in written or electronic format and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose
information or any incorrect, incomplete or false statement by the Customer or its agent, representative or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
- (c) Customer acknowledges that it is required to provide verified weights obtained on calibrated, certified equipment of all cargo that is to be tendered to steamship lines and represents that Company is entitled to rely on the accuracy of such weights and to counter-sign or endorse it as the agent of Customer in order to provide the certified weight to the steamship lines. The Customer agrees that it shall indemnify and hold the Company harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable statements of the weight provided by the Customer or its agent or contractor on which the Company relies.
- (d) The Customer acknowledges that it is required to advise Company in advance of its intention to tender hazardous material goods and that it will otherwise comply with all federal and international hazardous material regulations.
7. Declaring Higher Value To Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges, therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
8. Insurance. Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
9. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth in these terms and conditions, Company makes no express or implied warranties in connection with its services;
(b) Customer may obtain insurance coverage for cargo loss or damage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must
be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(c) In all events, the Company’s liability shall be limited to the following:
- (i) where the claim arises from activities other than those relating to customs business, $50 per shipment or transaction, or
- (ii) where the claim arises from activities relating to “Customs business,” $ 50 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
(d) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
(e) With respect to domestic transportation, Company shall not be liable for a motor carrier’s failure to maintain insurance or for the accuracy of any documentation furnished by a motor carrier to Company or Customer evidencing said coverage.
10. Advancing Money. All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to Customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, fines, penalties and/or attorneys’ fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
12. C.O.D. or Cash Collect Shipments. Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding the collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
13. Costs of Collection. In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 18 % per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
14. General Lien and Right To Sell Customer’s Property.
- (a) Company shall have a continuing lien on any and all property and documents relating thereto of Customer coming into Company’s actual or constructive possession, custody or control or en route, which lien shall survive delivery, for all charges, expenses or advances owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both. Customs duties, transportation charges, and related payments advanced by the Company shall be deemed paid in trust on behalf of the Customer and treated as pass-through payments made on behalf of the Customer for which the Company is acting as a mere conduit.
- (b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.
- (c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
15. No Duty To Maintain Records For Customer. Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “recordkeeper” or “recordkeeping agent” for Customer.
16. Obtaining Binding Rulings, Filing Protests, etc. Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post-Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
17. No Duty To Provide Licensing Authority. Unless requested by Customer in writing and agreed to by the Company in writing, Company shall not be responsible for determining licensing authority or obtaining any license or other authority pertaining to the export from or import into the United States.
18. Preparation and Issuance of Bills of Lading. Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight supplied by Customer.
19. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend the same shall be null and void.
20. Compensation of Company. The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due to the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
21. Force Majeure. Company shall not be liable for losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or in part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or its subcontractors, including but not limited to:
- (i) acts of God, including flood, earthquake, tornado, storm, hurricane, power failure or other natural disasters;
- (ii) war, hijacking, robbery, theft or terrorist activities;
- (iii) incidents or deteriorations to means of transportation,
- (iv) embargoes,
- (v) civil commotions or riots,
- (vi) defects, nature or inherent vice of the goods;
- (vii) acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else who may have an interest in the shipment,
- (viii) acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary licenses; or
- (ix) strikes, lockouts or other labor conflicts.
22. Severability. In the event, any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event, the remainder hereof shall remain in Full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
23. Governing Law; Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of New Jersey without giving consideration to principles of conflict of law. Customer and Company:
- (a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of New Jersey;
- (b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
- (c) consent to the exercise of in personam jurisdiction by said courts over it, and
- (d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
©Approved by the National Customs Brokers and Forwarders Association of America, Inc. (Revised 1/14/20)
Warehouse Terms and Conditions
SECTION 1 – DEFINITIONS
As used in this Warehouse Receipt (“RECEIPT”) or Contract and Rate Quotation (“RATE QUOTATION”) the following terms have the following meanings:
- (a) CONTRACT. COMPANY’S RECEIPT or RATE QUOTATION containing these Contract Terms and Conditions.
- (b) DEPOSITOR. The person, firm, corporation or other entity for whom the GOODS described herein are stored and/or handled and to whom this CONTRACT is issued and anyone else claiming an interest in the GOODS.
- (c) COMPANY Tactical Logistic Solutions, Inc. As used in Sections 9 and 10 COMPANY includes officers, directors, employees and agents of COMPANY while acting within the scope and course of their employment.
- (d) WAREHOUSE. COMPANY’S warehouse complex and cross-dock facility identified on the front side of this CONTRACT.
- (e) GOODS. The personal property and any portion thereof described herein which COMPANY has agreed to receive, handle and/or store pursuant to this CONTRACT.
SECTION 2 – ACCEPTANCE AND TENDER FOR STORAGE
- (a) This CONTRACT, including accessorial charges that may be attached hereto, must be accepted within 30 days from the proposal date by signature of DEPOSITOR. In the absence of written acceptance, the act of tendering GOODS described herein for storage or other services by COMPANY within 30 days from the proposal date shall constitute acceptance by DEPOSITOR.
- (b) DEPOSITOR has had the opportunity to review and inspect the WAREHOUSE.
- (c) In the event that GOODS tendered for storage or other services do not conform to the description contained herein, or conforming GOODS are tendered after 30 days from the proposal date without prior written acceptance by DEPOSITOR as provided in paragraph (a) of this section, COMPANY may refuse to accept such GOODS. If COMPANY accepts such GOODS, DEPOSITOR agrees to rates and charges as may be assigned and invoiced by COMPANY and to all terms of this Contract.
- (d) DEPOSITOR agrees that all GOODS for storage will be delivered at the WAREHOUSE properly marked and packed for handling.
- (e) DEPOSITOR shall furnish, at or prior to delivery, a manifest showing marks, brands or sizes to be kept and accounted for separately and the class of storage desired. Otherwise the GOODS may be stored in bulk or assorted lots or general storage at the discretion of COMPANY and at the applicable storage rate.
- (f) DEPOSITOR shall provide COMPANY with accurate and complete information concerning the GOODS sufficient to allow COMPANY to comply with all laws and regulations concerning the storage, handling and transportation of the GOODS and shall indemnify and hold COMPANY harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) as a result of DEPOSITOR’S failure to do so.
- (g) Receipt and delivery of the GOODS will be made without sorting except by special arrangement which may be subject to a charge.
- (h) Unless otherwise agreed to in writing, COMPANY will store and deliver GOODS only in the packages in which they are originally received and will not segregate GOODS by production code date.
- (i) DEPOSITOR agrees that all GOODS shipped to COMPANY will identify DEPOSITOR on the bill of lading or other contract of carriage as the consignee, in care of COMPANY, and will not identify COMPANY as the consignee. If, contrary to this requirement, GOODS are shipped to COMPANY as consignee, DEPOSITOR shall indemnify and hold COMPANY harmless from all claims for transportation, storage, handling and other charges relating to such GOODS.
SECTION 3 – TERMINATION OF STORAGE
- (a) COMPANY may, upon written notice, require the removal of the GOODS, or any portion thereof, from the WAREHOUSE within a stated period, not less than 30 days after such notification. If said GOODS are not so removed, COMPANY may sell them as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said GOODS.
- (b) If, in the opinion of COMPANY, GOODS may be about to deteriorate or decline in value to less than the amount of COMPANY’S lien, or may constitute a hazard to other property or to the WAREHOUSE or persons, the GOODS may be removed or disposed of by COMPANY as permitted by law. All charges related thereto shall be paid by DEPOSITOR.
SECTION 4 – STORAGE LOCATION
- (a) The GOODS shall be stored, at COMPANY’S discretion, at any one or more buildings at the WAREHOUSE. The identification of any specific location within the WAREHOUSE does not guarantee that the GOODS shall be stored there.
- (b) Unless otherwise agreed in writing, COMPANY may, at any time, at its expense, and without notice to DEPOSITOR, remove any GOODS from any room or area of the WAREHOUSE to any other room or area thereof.
- (c) Upon ten days written notice to DEPOSITOR, COMPANY may, at its expense, remove the GOODS to any other warehouse operated by COMPANY.
SECTION 5 – STORAGE CHARGES
- (a) Storage charges commence upon the date that COMPANY accepts custody of the GOODS, regardless of unloading date or date RECEIPT is issued. Unless COMPANY specifies otherwise, storage charges shall be computed separately for each lot on one of the following bases:
- (b) If storage rates are quoted on a “SPLIT MONTH BASIS” the storage month shall be a calendar month. A full month’s storage charge will apply to all GOODS received between the 1st and 15th, inclusive, of a calendar month. One half month’s storage charge will apply on all GOODS received between the 16th and last day, inclusive, of a calendar month. A full month’s storage charge shall apply on the 1st day of the next calendar month and each month thereafter on all GOODS then remaining in storage.
- (c) If storage rates are quoted on an “ANNIVERSARY BASIS” the storage month shall extend from date of receipt in one calendar month to, but not including, the same date of the next month. If there is no corresponding date in the next month, the storage month shall end on the last day of said next month. A full month’s storage charge shall apply on receipt of GOODS and an additional monthly storage charge shall apply on each successive storage month on all GOODS then remaining in storage.
- (d) COMPANY’S storage and other charges are set forth in the RATE QUOTATION or other document issued by COMPANY to DEPOSITOR and/or COMPANY’s tariff and may be increased on 30 days notice.
- (e) Unless COMPANY specifies otherwise all storage charges are fully earned and are due and payable on the 1st day of storage for the initial month and thereafter on the 1st day of each storage month.
- (f) Rates quoted by weight will, unless otherwise specified, be computed on gross weight.
SECTION 6 – HANDLING CHARGES
- (a) Unless otherwise specified, handling charges cover only the ordinary labor and duties incidental to receiving and delivering unitized GOODS on pallets at the WAREHOUSE dock during COMPANY’S normal business hours but do not include loading and unloading.
- (b) Unless otherwise specified, a charge in addition to the regular handling charges will be made for any work performed by COMPANY other than as specified in Section 6(a), including any cross-dock or transloading services, at COMPANY’S then current rates which are available upon request.
- (c) When GOODS are ordered out in quantities less than in which received, COMPANY may make an additional charge for each order or each item of an order.
- (d) Delivery by COMPANY of less than all units of any lot shall be made without subsequent sorting except by special arrangement which may be subject to an additional charge.
SECTION 7 – TRANSFER; DELIVERY
- (a) Instructions by DEPOSITOR to transfer GOODS to the account of another are not effective until accepted by COMPANY. Charges will be made for each transfer and for any rehandling deemed by COMPANY to be required thereby. COMPANY reserves the right not to deliver or transfer GOODS except upon receipt of written instructions signed by DEPOSITOR.
- (b) DEPOSITOR may authorize COMPANY in writing to accept telephone orders for delivery. In such case, delivery by COMPANY pursuant to telephone order shall be at DEPOSITOR’S risk.
- (c) COMPANY shall have a reasonable time to make delivery after GOODS are ordered out and shall have a minimum of ten business days after receipt of a delivery order in which to locate any misplaced GOODS. DEPOSITOR will advise COMPANY of its transloading needs in sufficient time to allow COMPANY to make necessary preparations for such transloading. Specifically, DEPOSITOR will notify COMPANY in advance of all inbound and outbound moves and of all information necessary to allow COMPANY reasonably sufficient time to perform services hereunder (including but not limited to quantities, appointment times, and carrier identities). DEPOSITOR shall be solely responsible for communicating to COMPANY, prior to the arrival of GOODS, the outbound order sequencing so as to allow COMPANY to properly sequence outbound pallets of GOODS.
- (d) If COMPANY is unable, due to any cause beyond its control, to effect delivery before expiration of the then current storage period, the GOODS may, at COMPANY’S discretion, be subject to storage charges for each succeeding storage period.
- (e) All instructions and requests for delivery and/or transfer of GOODS are received subject to satisfaction of all charges, liens and security interests of COMPANY. Upon termination of the storage relationship for any reason, COMPANY may refuse to deliver the GOODS until it has been fully paid for all charges then due it regardless of the payment terms otherwise applicable to such charges.
- (f) COMPANY may require, as a condition to delivery, a statement from DEPOSITOR holding COMPANY harmless from claims of others asserting rights to the GOODS. COMPANY may also exercise any other remedy available to it under the law to resolve conflicting claims to the GOODS. All costs, charges and expenses, including reasonable attorneys’ fees, incurred by COMPANY relating in any way to COMPANY’s activities referred to in this Section 7(f) shall be charged to DEPOSITOR and shall be considered charges with respect to the GOODS and subject to Company’s general warehouse lien.
SECTION 8 – OTHER SERVICES AND CHARGES
- (a) Other services rendered in the interest of DEPOSITOR or the GOODS are chargeable to DEPOSITOR.
- (b) All charges are due and payable upon the date of invoice. All charges not paid within 30 days from the due date are subject to an interest charge, from the date said charge became due until paid, at the lesser of 1.5% per month or the maximum amount allowed by law.
- (c) DEPOSITOR may, subject to reasonable limitations, inspect the GOODS when accompanied by an employee of COMPANY whose time is chargeable to DEPOSITOR.
- (d) In the event of damage or threatened damage to the GOODS, DEPOSITOR shall pay all reasonable and necessary costs of protecting and preserving the GOODS and for clean-up and disposal of damaged and destroyed Goods. When such costs are attributable both to GOODS of DEPOSITOR and property of others, said costs shall be apportioned among DEPOSITOR and others on a pro rata basis as determined by COMPANY
- (e) COMPANY shall supply dunnage bracing and fastenings where it deems it appropriate on outbound shipments and the cost thereof is chargeable to DEPOSITOR.
- (f) Any additional costs incurred by COMPANY in unloading railcars or trucks containing damaged GOODS are chargeable to DEPOSITOR.
- (g) COMPANY shall not be responsible for detention or demurrage charges or delays in loading or unloading. DEPOSITOR agrees to defend, indemnify and hold COMPANY harmless from all liabilities for transportation and all demurrage, detention or other charges of any nature in connection with GOODS shipped to or from the WAREHOUSE.
- (h) An additional charge will be made for bonded storage.
- (i) All storage, handling and other services may be subject to minimum charges.
- (j) DEPOSITOR agrees to pay COMPANY all costs, charges and expenses including reasonable attorney’s fees (“EXPENSES”) incurred by COMPANY in connection with the storage, handling and/or disposition of the GOODS, including without limitation, such EXPENSES relating to lawsuits (including Bankruptcy proceedings) involving in any way said GOODS and/or DEPOSITOR’S performance under this CONTRACT. All such EXPENSES shall constitute charges with respect to the GOODS and subject to COMPANY’S general warehouse lien.
- (k) DEPOSITOR shall reimburse COMPANY for the cost of all pallets supplied by COMPANY.
SECTION 9 – LIABILITY AND LIMITATION OF DAMAGES
- (a) COMPANY shall not be liable for any loss or destruction of or damage to GOODS, however caused, unless such loss, destruction or damage resulted from COMPANY’S failure to exercise such care in regard to the GOODS as a reasonably careful person would exercise under like circumstances. COMPANY shall not be liable for any loss or destruction of or damage to GOODS that could not have been avoided by the exercise of such care.
- (b) COMPANY and DEPOSITOR agree that COMPANY’S duty of care referred to in Section 9(a) does not extend to providing a sprinkler system at the WAREHOUSE or any portion thereof
- (c) Unless specifically agreed to in writing, COMPANY shall not be required to store GOODS in a humidity controlled environment or be responsible for tempering GOODS.
- (d) IN THE EVENT OF LOSS OR DESTRUCTION OF OR DAMAGE TO GOODS FOR WHICH COMPANY IS LEGALLY LIABLE, DEPOSITOR DECLARES THAT COMPANY’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO DEPOSITOR OF REPLACING, OR REPRODUCING THE LOST, DAMAGED, AND DESTROYED GOODS TOGETHER WITH TRANSPORTATION COSTS TO WAREHOUSE, (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND DESTROYED GOODS ON THE DATE DEPOSITOR IS NOTIFIED OF SUCH LOSS, DAMAGE AND DESTRUCTION, (3) TWO TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGED AND DESTROYED GOODS, (4) $ 0.50 CENTS PER CUBIC FEET FOR SAID LOST, DAMAGED, AND DESTROYED GOODS. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER RECEIPT OF THIS CONTRACT, DEPOSITOR MAY REQUEST, IN WRITING, AN INCREASE IN COMPANY’S LIABILITY ON PART OR ALL OF THE GOODS IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION; FURTHER PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS OR DESTRUCTION OF OR DAMAGE TO ANY PORTION OF THE GOODS HAS OCCURRED.
- (e) COMPANY’S liability referred to in Section 9(d) shall be DEPOSITOR’S exclusive remedy for any claim or cause of action whatsoever relating to loss or destruction of or damage to GOODS. DEPOSITOR waives any right to rely upon any presumption of conversion imposed by law.
- (f) In no event shall DEPOSITOR be entitled to recover any incidental, special, punitive, or consequential damages of any type or description.
- (g) If COMPANY negligently misships GOODS, COMPANY, at its option, shall pay the reasonable transportation charges to return the misshipped GOODS to the WAREHOUSE or the value of the misshipped GOODS based upon Section 9(d). COMPANY shall have no liability whatsoever for any damages due to the consignee’s acceptance or use of the GOODS.
- (h) DEPOSITOR acknowledges and agrees that COMPANY is not liable for loss or damage to GOODS while in transit to or from the WAREHOUSE.
- (i) DEPOSITOR acknowledges that under the standard set forth above, COMPANY will not be responsible for loss in weight nor for loss or damage to GOODS resulting from improper packing, insufficient cooperage, boxing or crating, breakage, wear and tear or inherent characteristics or qualities of the GOODS. Nor under such standard shall COMPANY be responsible or liable for loss of GOODS by leakage or through failure to detect leakage or for latent or concealed damage. All GOODS are tendered at DEPOSITOR’S risk of loss, damage, destruction or delay caused by acts of God, civil or military authority, enemies of the government, insurrections, riots, strikes, civil commotions, acts of terrorism, seizure under legal process, labor disputes, lockouts, or intentional, criminal or malicious acts of third persons or any other organized opposition, by water sprinkler and other pipeline or plumbing leakage or malfunction, fire, flood, windstorm, cyclone, moths, vermin, insect, corruption, earthquakes, tidal waves, tornadoes, or depredation or any cause beyond the reasonable control of COMPANY.
SECTION 10 – NOTICE OF CLAIM AND FILING OF SUIT
- (a) COMPANY shall not be liable for any claim of any type whatsoever including, without limitation, any claim for loss or destruction of or damage to GOODS unless such claim is presented, in writing, within a reasonable time, not exceeding the earlier of (1) 60 days after delivery of GOODS by COMPANY or (2) 60 days after DEPOSITOR learned or, in the exercise of reasonable care, should have learned of such loss or destruction of or damage to the GOODS or the basis for any other claim against COMPANY.
- (b) As a condition precedent to filing any lawsuit or other action, DEPOSITOR shall provide COMPANY with a reasonable opportunity to inspect the GOODS which are the basis of
- (c) NO LAWSUIT OR OTHER ACTION MAY BE MAINTAINED BY DEPOSITOR OR OTHERS AGAINST COMPANY UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN SECTION 10(a) AND UNLESS DEPOSITOR HAS PROVIDED COMPANY WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AS PROVIDED IN SECTION 10(b) AND UNLESS SUCH LAWSUIT OR OTHER ACTION IS COMMENCED WITHIN THE EARLIER OF (1) NINE (9) MONTHS AFTER DELIVERY OF GOODS BY COMPANY OR (2) NINE (9) MONTHS AFTER DEPOSITOR LEARNED OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS OR DESTRUCTION OF OR DAMAGE TO THE GOODS OR THE BASIS FOR ANY OTHER CLAIM AGAINST COMPANY.
- (d) Any lawsuit or other action against COMPANY must be brought in the state or province where the WAREHOUSE is located and will be governed by the laws of such state or province.
SECTION 11 – INSURANCE
The GOODS are not insured by COMPANY and the storage rates do not include insurance on the GOODS.
SECTION 12 – LIEN
COMPANY shall have a general warehouse lien against the GOODS and on the proceeds thereof for all charges for storage, handling, transportation (including detention, demurrage and terminal charges), insurance, labor and other charges present or future with respect to the GOODS, advances or loans by COMPANY in relation to the GOODS and for expenses necessary for the preservation of the GOODS or reasonably incurred in their sale pursuant to law. COMPANY further claims a general warehouse lien on the GOODS for all other such charges, advances and expenses due Company or any related entity from DEPOSITOR for property stored by DEPOSITOR in any warehouse owned or operated by COMPANY or any related entity wherever located. COMPANY reserves the right to require advance payment of all charges prior to releasing GOODS regardless of otherwise applicable payment terms.
SECTION 13 – MYSTERIOUS DISAPPEARANCE
COMPANY will not be liable for loss of GOODS due to inventory shortage or unexplained or mysterious disappearance of GOODS unless DEPOSITOR establishes such loss occurred because of COMPANY’S failure to exercise the care required by Section 9 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by DEPOSITOR of conversion must be established by affirmative evidence that COMPANY converted the GOODS to its own use.
SECTION 14 – WAIVER – SEVERABILITY
- (a) COMPANY’S failure to insist upon strict compliance with any provision of this CONTRACT shall not constitute a waiver of or estoppel to later demand strict compliance with said provision or to insist upon strict compliance with all other provisions of this CONTRACT.
- (b) In the event any Section of this CONTRACT or part thereof shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining Sections and parts shall not, in any way, be affected or impaired thereby.
SECTION 15 – AUTHORITY
DEPOSITOR represents and warrants that it is either (a) the lawful owner of the GOODS which are not subject to any lien or security interest of others; or (b) the authorized agent of the lawful owner or any holder of a lien or security interest and has full power and authority to enter into the agreements incorporated into this CONTRACT. DEPOSITOR agrees to notify all parties acquiring any interest in the GOODS of the Terms and Conditions of this CONTRACT and to obtain, as a condition of granting any interest, the agreement of such parties to be bound by such Contract Terms and Conditions.
SECTION 16 – NOTICES
All written notices required herein may be transmitted by any commercially reasonable means of communication and directed to COMPANY at the address on the front hereof and to DEPOSITOR at its last known address. DEPOSITOR is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section 15 within five days of transmittal.
SECTION 17 – ENTIRE AGREEMENT
This CONTRACT constitutes the entire agreement between COMPANY and DEPOSITOR relating to the GOODS and supersedes all existing agreements between them whether written or oral and shall not be changed, amended or modified except by written agreement signed by representatives of COMPANY and DEPOSITOR.