Standard Contract Terms & Conditions for Merchandise Warehouses
ACCEPTANCE – Sec. 1
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 WAREHOUSE
within 30 days from the proposal date shall constitute
acceptance by DEPOSITOR. DEPOSITOR has had the
opportunity to review and inspect the warehouse
facility (“FACILITY”).
b) 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, WAREHOUSE may refuse to accept such
GOODS. If WAREHOUSE accepts such GOODS, DEPOSITOR
agrees to rates and charges as may be assigned and
invoiced by WAREHOUSE and to all terms of this
Contract.
c) Any GOODS accepted
by WAREHOUSE shall constitute GOODS under this
Contract.
d) This Contract may
be canceled by either party upon 30 days written
notice and is canceled if no storage or other services
are performed under this Contract for a period of 180
days.
SHIPMENTS TO AND FROM WAREHOUSE – Sec. 2
DEPOSITOR agrees that all GOODS shipped to and from
WAREHOUSE shall identify DEPOSITOR on the bill of
lading or other contract of carriage as the named
consignee, in care of WAREHOUSE, and shall not
identify WAREHOUSE as the consignee. If, in violation
of this Contract, GOODS are shipped to WAREHOUSE as
named consignee on the bill of lading or other
contract of carriage, DEPOSITOR agrees to immediately
notify carrier in writing, with copy of such notice to
WAREHOUSE, that WAREHOUSE named as consignee is the
“in care of party” only and has no beneficial title or
interest in the GOODS. Furthermore, WAREHOUSE shall
have the right to refuse such GOODS and shall not be
liable for any loss, mis-consignment, or damage of any
nature to, or related to, such GOODS. Whether
WAREHOUSE accepts or refuses GOODS shipped in
violation of this Section 2, DEPOSITOR agrees to
indemnify and hold WAREHOUSE harmless from all claims
for transportation, storage, handling and other
charges relating to such GOODS, including
undercharges, rail demurrage, truck/intermodal
detention, and any fines, penalties,costs and expenses
(including attorney’s fees) and other charges of any
nature whatsoever, resulting from DEPOSITOR’S failure
to comply with the requirements of this Section 2.
TENDER OF GOODS – Sec. 3
All GOODS shall be delivered at the FACILITY in a
segregated manner, properly marked and packaged for
storage and handling. The DEPOSITOR shall furnish at
or prior to such delivery, a manifest showing marks,
brands, or sizes to be kept and accounted for
separately, and the class of storage and other
services desired. WAREHOUSE is not a guarantor of the
condition of such GOODS under any circumstances,
including, but not limited to hidden, concealed, or
latent defects in the GOODS. Concealed shortages,
damage, inherent vice or tampering will not be the
responsibility of WAREHOUSE.
STORAGE PERIOD AND CHARGES – Sec. 4
a) Unless otherwise agreed in
writing, all charges for storage are per package or
other agreed unit per month as per available space.
b)
The storage month begins on the date that WAREHOUSE
accepts care, custody and control of the GOODS,
regardless of unloading date or date of issue of
warehouse receipt.
c) Except as
provided in paragraph (d) of this section, a full
month’s storage charge will apply on all GOODS
received between the first and the 15th, inclusive, of
a calendar month; one-half month’s storage charge will
apply on all GOODS received between the 16th and the
last day, inclusive, of a calendar month, and a full
month’s storage charge will apply to all GOODS in
storage on the first day of the next and succeeding
calendar months. All storage charges are due and
payable on the first day of storage for the initial
month and thereafter on the first day of the calendar
month.
d) When mutually agreed
in writing by the WAREHOUSE and the DEPOSITOR, a
storage month shall extend from a date in one calendar
month to, but not including, the same date of the next
and all succeeding months. All storage charges are due
and payable on the first day of the storage month.
e)
Any invoice over 30 days past due may be assessed a
service charge of 2% APR per month or a charge
otherwise permitted by law. Any dispute as to the
amount of the invoice shall be claimed in writing
within 30 days from date of invoice. DEPOSITOR may not
offset payment of invoices under any circumstances
without the prior written consent of WAREHOUSE.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS
– Sec. 5
a) Instructions to transfer
GOODS on the books of the WAREHOUSE are not effective
until delivered to and accepted by WAREHOUSE, and all
charges up to the time transfer is made are chargeable
to the DEPOSITOR. If a transfer involves re-handling
the GOODS, such will be subject to a charge. When
GOODS in storage are transferred from one party to
another through issuance of a new warehouse receipt, a
new storage date is established on the date of
transfer.
b) The WAREHOUSE reserves the right
to move, at its expense, 14 days after notice is sent
by certified mail or overnight delivery to the
DEPOSITOR, any GOODS in storage from the FACILITY in
which they may be stored to any other of WAREHOUSE’S
facilities. WAREHOUSE will store the GOODS at the
Facility and may without notice move the GOODS within
and between, any one or more of the warehouse
buildings which comprise the FACILITY identified on
the front of this Contract.
c)
WAREHOUSE reserves the right to require advance
payment of all past, present, and future charges prior
to removal of the GOODS from the Facility.
d)
The WAREHOUSE may, upon written notice of not less
than 30 days to the DEPOSITOR and any other person
known by the WAREHOUSE to claim an interest in the
GOODS, require the removal of any GOODS. Such notice
shall be given to the last known place of business of
the person to be notified. If GOODS are not removed
before the end of the notice period, the WAREHOUSE may
sell them in accordance with applicable law.
e)
If WAREHOUSE in good faith believes that the GOODS are
about to deteriorate or decline in value to less than
the amount of WAREHOUSE’S lien before the end of the
30-day notice period referred to in Section 5(c), the
WAREHOUSE may specify in the notification any
reasonable shorter time for
removal of the GOODS and if the GOODS are not removed,
may sell them at public sale held one week after a
single advertisement or posting as provided by law.
f)
If as a result of a quality or condition of the GOODS
of which the WAREHOUSE had no notice at the time of
deposit the GOODS are a hazard to other property or to
the FACILITY or to persons, the WAREHOUSE may: i) sell
the GOODS at public or private sale without
advertisement on reasonable notification to all
persons known to claim an interest in the GOODS, ii)
return GOODS freight collect, or iii) dispose of
GOODS. Pending such disposition, sale or return of the
GOODS, the WAREHOUSE may remove the GOODS from the
FACILITY and shall incur no liability by reason of
such removal.
g) If, after a
reasonable effort, WAREHOUSE is unable to sell the
GOODS pursuant to this Section 5, WAREHOUSE may
dispose of the GOODS in any lawful manner and shall
incur no liability by reason of such disposition.
HANDLING – Sec. 6
a)
The handling charge covers the ordinary labor involved
in receiving GOODS at warehouse door, placing GOODS in
storage, and returning GOODS to warehouse door.
Handling charges are due and payable on receipt of
GOODS.
b) Unless otherwise
agreed in writing, labor for unloading and loading
GOODS will be subject to a charge. Additional expenses
incurred by the WAREHOUSE in receiving and handling
damaged GOODS, and additional expense in unloading
from or loading into cars or other vehicles not at
warehouse door will be charged to the DEPOSITOR.
c)
Labor and materials used in loading rail cars or other
vehicles are chargeable to the DEPOSITOR.
d)
When GOODS are ordered out in quantities less than in
which received, the WAREHOUSE may make an additional
charge for each order or each item of an order.
e) DEPOSITOR shall indemnify, defend, and hold WAREHOUSE harmless from all loss, costs, penalties, claims, expenses (including reasonable attorney’s fees) for transportation, storage, handling and other charges related to the GOODS, including but not limited to undercharges, rail demurrage, truck/intermodal detention and other charges, asserted by any third- party. WAREHOUSE shall not be liable to DEPOSITOR for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers or other containers for outbound shipment unless WAREHOUSE has failed to exercise reasonable care as determined by industry practice.
DELIVERY REQUIREMENTS – Sec. 7
No GOODS shall be delivered or transferred except upon
receipt by the WAREHOUSE of DEPOSITOR’S complete
written instructions. Written instructions shall
include, but are not limited to, FAX, EDI, E-Mail or
similar communication, provided WAREHOUSE has no
liability when relying on the information contained in
the communication as received. GOODS may be delivered
upon instruction by telephone or electronically in
accordance with DEPOSITOR’S prior written
authorization, but the WAREHOUSE shall not be
responsible for loss or error occasioned thereby. The
WAREHOUSE shall not be liable for failure to carry out
such instructions and GOODS remaining in storage will
continue to be subject to regular storage charges.
When GOODS are ordered out, a reasonable time shall be
given to the WAREHOUSE to carry out instructions.
EXTRA SERVICES (SPECIAL SERVICES) – Sec. 8
a) WAREHOUSE labor required
for services other than ordinary handling and storage
will be charged to the DEPOSITOR.
b)
Special services requested by DEPOSITOR including but
not limited to compiling of special stock statements;
reporting marked weights, serial numbers or other data
from packages; physical check of GOODS; and handling
transit billing will be subject to a charge.
c)
Dunnage, bracing, packing materials or other special
supplies, may be provided for the DEPOSITOR at a
charge in addition to the WAREHOUSE’S cost.
d)
By prior arrangement, GOODS may be received or
delivered during other than usual business hours,
subject to a charge.
e)
Communication expense including postage, overnight
delivery, or telephone may be charged to the DEPOSITOR
if such concern more than normal inventory reporting
or if, at the request of the DEPOSITOR, communications
are made by other than regular United States Mail.
f)
WAREHOUSE will take physical inventories and cycle
counts as requested by DEPOSITOR, at DEPOSITOR’S
expense. Representatives of DEPOSITOR and WAREHOUSE
personnel, as well as any independent auditor or
designee, may be present when any physical inventory
is taken.
BONDED STORAGE – Sec. 9
a)
A charge in addition to regular rates will be made for
merchandise in bond.
b) Where a
warehouse receipt covers GOODS in U.S. Customs bond,
WAREHOUSE shall have no liability for GOODS seized or
removed by U.S. Customs and Border Protection or other
Participating Agency, or Law Enforcement.
MINIMUM CHARGES – Sec. 10
a) A minimum handling charge
per lot and a minimum storage charge per lot per month
will be made. When a warehouse receipt covers more
than one lot or when a lot is in assortment, a minimum
charge per mark, brand, or variety will be made.
b)
A minimum monthly charge to one account for storage
and/or handling will be made. This charge will apply
also to each account when one customer has several
accounts, each requiring separate records and billing.
LIABILITY AND LIMITATION OF DAMAGES – Sec.
11
a) WAREHOUSE shall not be
liable for any loss or damage to GOODS tendered,
stored or handled however caused unless such loss or
damage resulted from the failure by WAREHOUSE to
exercise such care in regard to them as a reasonably
careful person would exercise under like
circumstances. WAREHOUSE is not liable for damages
which could not have been avoided by the exercise of
such care.
b) GOODS are not
insured by WAREHOUSE against loss or damage however
caused.
c) In the event of loss
or damage to the GOODS for which WAREHOUSE is legally
liable, DEPOSITOR declares that WAREHOUSE’S liability
for damages are limited to .50 per pound, and in no
instance shall any one claim exceed the limit of
WAREHOUSE’S liability insurance, provided, however,
that such liability may at the time of acceptance of
this Contract as provided in Section 1 be increased
upon DEPOSITOR’S written request on part or all of the
GOODS hereunder in which event an additional monthly
charge will be made based upon such increased
valuation.
d) The limitation of
liability referred to in Section (c) above shall be
DEPOSITOR’S exclusive remedy against WAREHOUSE for any
claim or cause of action whatsoever relating to loss,
damage, and/or destruction of the GOODS and shall
apply to all claims including inventory shortage and
mysterious disappearance claims unless DEPOSITOR
proves by affirmative evidence that WAREHOUSE
converted the GOODS to its own use. Any presumption of
conversion imposed by law shall not apply.
e)
Where loss or damage occurs to tendered, stored or
handled GOODS, for which WAREHOUSE is not liable, the
DEPOSITOR shall be responsible for the cost of
removing and disposing of such GOODS and the cost of
any environmental cleanup and site remediation
resulting from the loss or damage to the GOODS.
NOTICE OF CLAIM AND FILING OF SUIT – Sec.
12
a) Claims by the DEPOSITOR and
all other persons must be presented in writing to the
WAREHOUSE within a reasonable time, and in no event
any later than the earlier of: (i) 60 days after
delivery of the GOODS by the WAREHOUSE or (ii) 60 days
after DEPOSITOR is notified by the WAREHOUSE that loss
or damage to part or all of the GOODS has occurred.
Each claim must contain information necessary to
identify the GOODS affected, the basis for liability
and the amount of the alleged loss or damage, as well
as all appropriate supporting documentation.
b)
No lawsuit or other action may be maintained by the
DEPOSITOR or others against the WAREHOUSE for loss or
damage to the GOODS unless timely written claim has
been given as provided in paragraph (a) of this
section and unless such lawsuit or other action is
commenced by no later than the earlier of: (i) nine
months after date of delivery by WAREHOUSE or (ii)
nine months after DEPOSITOR is notified that loss or
damage to part or all of the GOODS has occurred.
c)
When GOODS have not been delivered, notice may be
given of known loss or damage to the GOODS by mailing
of a letter via certified mail or overnight delivery
to the DEPOSITOR. Time limitations for presentation of
claim in writing and maintaining of action after
notice begin on the date of mailing of such notice by
WAREHOUSE.
LIABILITY FOR CONSEQUENTIAL DAMAGES – Sec.
13
With respect to any claim arising from or related to
this agreement, or otherwise arising from the
relationship of the parties, in no event will
WAREHOUSE be liable for special, indirect, exemplary,
punitive, or consequential damages of any kind,
including but not limited to lost profits, lost sales,
or damages due to business interruption, regardless of
whether such damages were foreseeable or WAREHOUSE had
notice of the possibility of such damages.
LIABILITY FOR MIS-SHIPMENT AND CHARGEBACKS – Sec.
14
a) If WAREHOUSE negligently
mis-ships GOODS, the WAREHOUSE shall pay the
reasonable transportation charges incurred to return
the mis-shipped GOODS to the FACILITY. If the
consignee fails to return the GOODS, WAREHOUSE’S
maximum liability shall be for the lost or damaged
GOODS as specified in Section 11 above, and WAREHOUSE
shall have no liability for damages due to the
consignee’s acceptance or use of the GOODS whether
such GOODS be those of the DEPOSITOR or another.
b)
WAREHOUSE shall not be responsible for chargebacks of
any kind.
c) Any and all claims
made pursuant to this Section must be in compliance
with the requirements set forth in Section 12.
FORCE MAJEURE – Sec. 15
Neither party shall be liable to the other for default
in the performance or discharge of any duty or
obligation under this Contract, except for DEPOSITOR’S
obligation to pay for services rendered by WAREHOUSE,
when caused by acts of God, hurricanes, tidal waves,
flood, tornadoes, cyclone, wind storm, earthquake,
public enemy, civil commotion, strikes, labor
disputes, work stoppages or other difficulties within
the workforce, failure to provide power by the utility
provider, intentional or malicious acts of third
persons or any other organized opposition,
cyber-attacks, viruses, corruption, depredation,
accidents, explosions, fire, water sprinkler leakage,
moths, vermin, insect, seizure under legal process,
embargo, prohibition of import or export of GOODS,
closure of public highways, railways, airways or
shipping lanes, governmental interference, order,
regulation, or other action(s) by governmental
authority, national, regional, or local
emergency(ies), plague, epidemic, pandemic, outbreaks
for infectious disease or any public health crisis,
including but not limited to compliance with related
practices required or recommended by governmental or
health organizations (including but not limited to
quarantine or other employee restrictions) or other
contingency(ies), similar or dissimilar to the
foregoing, beyond the reasonable control of the
affected party. Upon the occurrence of such an event
the party seeking to rely on this provision shall
promptly give written notice to the other party of the
nature and consequences of the cause. If the cause is
one which nevertheless requires WAREHOUSE to continue
to protect the GOODS, DEPOSITOR agrees to pay the
storage or similar charges associated with WAREHOUSE’S
obligation during the continuance of the force
majeure. All GOODS are stored, handled, and
transported at DEPOSITOR’S sole risk of loss, damage,
or delay caused by any of the above.
RIGHT TO STORE GOODS – Sec. 16
DEPOSITOR represents and warrants that DEPOSITOR is
lawfully possessed of the GOODS and has the right and
authority to store them with WAREHOUSE. DEPOSITOR
agrees to indemnify and hold harmless the WAREHOUSE
from all loss, cost and expense (including reasonable
attorneys’ fees) which WAREHOUSE pays or incurs as a
result of any dispute or litigation, whether
instituted by WAREHOUSE or others, respecting
DEPOSITOR’S right, title or interest in the GOODS.
Such amounts shall be charges in relation to the GOODS
and subject to WAREHOUSE’S lien.
ACCURATE INFORMATION – Sec. 17
DEPOSITOR represents and warrants to WAREHOUSE that
there are no known potential health, safety and/or
environmental hazards associated with the storage and
handling of the GOODS that have not been disclosed to
and acknowledged by WAREHOUSE. Notwithstanding,
DEPOSITOR will provide WAREHOUSE with information
concerning the GOODS which is accurate, complete and
sufficient to allow WAREHOUSE to comply with all laws
and regulations concerning the storage, handling and
transporting of the GOODS. DEPOSITOR will indemnify
and hold WAREHOUSE harmless from all loss, cost,
penalty and expense (including reasonable attorneys’
fees) which WAREHOUSE pays or incurs as a result of
DEPOSITOR failing to fully discharge this obligation.
CONFIDENTIALITY – Sec. 18
a) The Parties shall keep in
confidence and not disclose to any third party (i) the
terms of this Contract, and (ii) any confidential or
proprietary information (“Confidential Information”)
that either learns about the other Party, such as, but
not limited to, the rates, value, origin, destination,
or consignee of any GOODS or shipment made hereunder.
The Parties may disclose such terms and information to
the extent required by law, to obtain financing, to
substitute service providers to the extent necessary
to provide such substitute service, or to auditors
retained for the purpose of assessing the accuracy of
freight bills.
b) WAREHOUSE will
maintain and enforce safety and physical security
procedures with respect to its possession and
maintenance of Confidential Information that comport
with the standard of care outlined in Section 11 of
this Contract, and which provide reasonably
appropriate technical and organizational safeguards
against accidental or unlawful destruction, loss,
alteration or unauthorized disclosure, removal or
access of Confidential Information. WAREHOUSE will not
be liable for any breach of security or unauthorized
access affecting Confidential Information which could
not be avoided by the exercise of such reasonable
care.
SEVERABILITY, WAIVER, and ASSIGNMENT – Sec.
19
a) If any provision of this
Contract, or any application thereof, should be
construed or held to be void, invalid or
unenforceable, by order, decree or judgment of a court
of competent jurisdiction, the remaining provisions of
this Contract shall not be affected thereby but shall
remain in full force and effect.
b)
WAREHOUSE’S failure to require strict compliance with
any provision of this Contract shall not constitute a
waiver or estoppel to later demand strict compliance
with that or any other provision(s) of this
Contract.
c) The provisions of
this Contract shall be binding upon the heirs,
executors, successors and assigns of both DEPOSITOR
and WAREHOUSE; contain the sole agreement governing
GOODS tendered to the WAREHOUSE; and cannot be
modified except by a writing signed by WAREHOUSE and
DEPOSITOR.
d) DEPOSITOR shall
not assign or sublet its interest or obligations
herein, including, but not limited to, the assignment
of any monies due and payable, without the prior
written consent of WAREHOUSE.
LIEN – Sec. 20
WAREHOUSE shall have a general warehouse lien for all
lawful charges for storage and preservation of the
GOODS; also, for all lawful claims for money advanced,
interest, insurance, transportation, labor, weighing
coopering, and other charges and expenses in relation
to such GOODS, and for the balance on any other
accounts that may be due. WAREHOUSE further claims a
general warehouse lien for all such charges, advances
and expenses with respect to any other GOODS stored by
the DEPOSITOR in any other facility owned or operated
by WAREHOUSE. In order to protect its lien, WAREHOUSE
reserves the right to require advance payment of all
charges prior to shipment of GOODS. Unless expressly
stated otherwise in writing, WAREHOUSE will not
subordinate its lien to any lender, financial
institution, or any other third party.
DOCUMENTS OF TITLE - Sec. 21
Documents of title, including warehouse receipts, may
be issued either in physical or electronic form at the
option of the parties. Any inconsistencies between the
terms of the warehouse receipt and this Contract shall
be governed by this Contract.
GOVERNING LAW AND JURISDICTION – Sec. 22
This Contract and the legal relationship between the
parties hereto shall be governed by and construed in
accordance with the substantive laws of the state
where the FACILITY is located, including Article 7 of
the Uniform Commercial Code as ratified in that state,
notwithstanding its conflict of laws rules. Any
lawsuit or other action involving any dispute, claim
or controversy relating in any way to this Contract
shall be brought only in the appropriate state or
federal court in the state where the FACILITY is
located.
The parties acknowledge the Limitation of Liability and Damages in Section 11.
Proposed by WAREHOUSE