2.  

6.  

 

TERMS AND CONDITIONS GOVERNING HANDLING AND STORAGE

This non-negotiable warehouse receipt is given by DT America Corporation d/b/a DT Project America (hereinafter “Company”) and accepted by the depositor of the property named on the face hereof (hereinafter “Customer”) subject to the following Term and Conditions.

 

1. DEFINITIONS.

(a) The term “Carrier” shall mean the railroad, barge line, or motor-truck delivering property to or receiving property from the Warehouse.

(b) The term “Package” shall mean the unit or units of property for which a separate account is to be kept by Company.

(c) The term “Goods” shall mean any property tendered to Company for which Company has agreed to store pursuant to this warehouse receipt.

(d) The term “Hazardous Goods” shall mean any chemical or regulated substance, whether regulated or identified as such by the Department of Transportation, EPA, OSHA, any state or local regulatory agency.

(e) The term “Warehouse” shall mean any facility owned, leased, or operated by Company or any third-party warehouse facility utilized by Company for the storage or handling of Goods, regardless of location.

 

2. APPLICABILITY. These terms and conditions constitute a valid and binding contract upon Company acceptance of Goods tendered by Customer regardless if a warehouse receipt is issued to Customer. It is expressly understood that these terms and conditions do not cover or apply to any rights, obligations, terms or conditions of any freight forwarding, customs brokerage or other services that Company has provided or may provide to Customer; and that those separate services shall be governed by their respective terms and conditions which are provided separately. Company does not accept any terms or conditions contained in Customer’s service contract or agreement with Company, correspondence of any kind, invoices, or any other written or unwritten material and, in the event of conflict between Company’s terms and conditions herein and Customer’s terms and conditions, if any, the terms and conditions of Company take precedence and control.

 

3. SERVICES.

(a) Company may receive, store, arrange for shipping, and provide other related services as requested by Customer with respect to Customer’s Goods. The specific services which Company will provide Customer are available upon request. Company shall be responsible for selecting the Warehouse as Company deems necessary to maintain storage and handling efficiencies. Company shall comply with the operating procedures set forth in any operating manual prepared by Customer, provided that Customer shall furnish a copy to Company in advance and obtain Company’s written consent to the provisions of the manual or any amendments to the manual. Company shall not be liable for loss or damage to the Goods resulting from complying with Customer’s operating procedures.

(b) Customer is responsible to notify Company of any special storage requirements in writing. Company will provide all utilities, except Customer will pay Company for trash removal, overnight delivery and other communication expense incurred in dealing with Customer’s Goods. The payment schedule for such expenses is at Company’s then current standard rate or otherwise agreed to. Company will provide all required equipment, except data processing hardware and software required by Customer which shall be provided and maintained at Customer’s sole cost. Company reserves the right to move, at Customer’s expense of transfer, and upon written notice sent to Customer, any Goods in storage from the Warehouse in which they are stored to an additional or replacement facility.

(c) Customer may forward material to Company for packaging into various pallets, crates, boxes, containers, or bulk transfer into other conveyances. Customer will provide Company with written instructions reasonably in advance prior to the required packaging or transfer date. Customer will identify the name and type of the product and any markings to be placed on the exterior of the products packaging. Company makes no warranty, express or implied, regarding the name or properties of the material. All charges for packaging or bulk transfer services are per pound or other agreed unit. All charges for these services are due upon receipt of Company’s invoicing for same.

(d) Company may be requested to provide packaging materials to be utilized in conjunction with its packaging services. These will be charged to Customer as mutually agreed, in writing, prior to Company’s performance of packaging services. Company may be required, from time to time, to purchase pre-printed supplies with Customer’s name, logo, name and logo of Customer’s material source, or other specific information. Customer represents and warrants that it has the authorization for the usage of said logo, trademark, or other information and shall indemnify and hold harmless in any dispute arising from their use. When Company is required to purchase pre-printed supplies for Customer, Company shall be given delivery schedules, in writing, indicating the date that such material will be shipped to Company. Company will compare delivery date with lead time required for supply delivery, and order supplies so as not to impair Company’s ability to package material. Customer shall pay Company’s invoice for such supplies immediately upon receipt of such invoice. Customer shall furnish to Company, in writing, all specifications required to order any packaging supplies for any specific blend, type, or size of material. Company shall not be liable for any damage or actions resulting from the use of said supplies, when same conform to specifications provided by Customer. Company also will store packaging supplies owned by its Customer’s for use in conjunction with Company’s packaging service. Company agrees that supply loss from storage will not exceed 5% of the monthly quantity stored. In addition, Company agrees that supply loss or waste in conjunction with its packaging service shall not exceed 5% of the quantity consumed. Company assumes no responsibility for insurance or protection of the material while in transit and does not warrant said transportation services. In the event of any loss or damage occasioned during transit, Customer hereby agrees to hold Company harmless for claims of such loss or damage. Customer shall provide Company with timely written instructions for the disposition of material constructively placed, via delivering carrier, at the Warehouse. Storage charges will be applied to any Goods constructively placed at the Warehouse where Company has not received written or verbal packaging instructions within a 12-hour period beginning at the time of constructive placement. Any product or material which may be packaged, repackaged, labeled or relabeled, or otherwise identified by Company shall be at the direction of the Customer. Any claims, damages, liabilities, or expenses resulting directly from such packaging or labeling, if resulting directly from and solely due to Company’s error, shall be limited to Company’s cost for repacking or re-labeling such product or Goods. Customer shall indemnify, defend and hold Company harmless from all claims, awards, charges and expenses (including reasonable attorneys’ fees) for defending against same, as they may exceed the limitation set forth herein.

 

4. RATES.

(a) Customer shall pay Company the rates and charges for Company’s storage services as negotiated between the parties. Other services will be billed in accordance with Company’s standard warehouse rates and charges schedule as published from time to time. Company may adjust these rates periodically as required after providing Customer with written notice of such changes effective at the end of the month next succeeding the month in which notice is given. Fee schedule is available upon request. If actual operations vary to those specified by Customer, Company has the right to notify Customer and Customer agrees to compensate Company for the additional costs and the new scheduled rates to match the actual operations.

(b) Storage charges are based on a calendar month. A full month’s storage charge will apply on all Goods received between the 1st and the 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, 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 in advance on the first day of each calendar month. Company will submit invoices to Customer as services are rendered. Each invoice is payable upon receipt.

(c) Any storage and handling rates offered by Company are based on Customer’s information supplied to Company concerning quantity of Goods, turns, and required procedures. If actual quantity and/or turns do not meet or exceed Customer’s information, or if Customer’s required procedures vary from Customer’s information and are more costly than the originally stated procedures, Company and Customer agree that Company may, at its sole discretion: (i) adjust the storage and handling rates accordingly and apply such adjusted rates while Goods are in possession of Company, or (ii) terminate this agreement. In the event of such termination, Customer shall be responsible for all outstanding amounts owed to Company, along with payment for expenses incurred by Company in reliance on this contract, and any other damages suffered by Company.

 

5. OWNERSHIP OF GOODS.

Customer warrants that it is the lawful owner and/or has lawful possession of the Goods tendered to the Company. Customer warrants that it has sole legal rights to store Goods tendered, to release Goods, and to instruct Company regarding delivery or disposition of the Goods. Customer agrees to notify all parties acquiring any interest in the Goods of the terms and conditions of this warehouse receipt and further agrees to indemnify and hold Company harmless from any and all loss, liabilities, claims, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to the ownership, storage, handling or delivery of the Goods, or from any other services provided by Company under this warehouse receipt.

 

6. COMPANY LIEN.

COMPANY CLAIMS A LIEN ON THE GOODS COVERED BY THIS RECEIPT, AND A LIEN ON ALL GOODS HERETOFORE, CONCURRENTLY, OR HEREAFTER RECEIVED BY COMPANY FOR THE ACCOUNT OF CUSTOMER OR OF ANY OTHER PERSONS AND ORGANIZATION HAVING AN INTEREST IN THE GOODS COVERED BY THIS RECEIPT, FOR ALL CHARGES FOR STORAGE OR TRANSPORTATION (INCLUDING DEMURRAGE AND TERMINAL CHARGES), INSURANCE, LABOR OR OTHER CHARGES PRESENT OR FUTURE IN RELATION TO THE GOODS COVERED BY THIS RECEIPT, AND FOR EXPENSES NECESSARY FOR THE PRESERVATION OF SUCH PROPERTY OR REASONABLY INCURRED IN THEIR SALE. COMPANY ALSO RESERVES A SECURITY INTEREST IN ALL GOODS ABOVE NOTED: (I) FOR ALL CHARGES ENUMERATED IN THE PRECEDING PARAGRAPH WHICH HAVE BEEN INCURRED SINCE THE ORIGINAL DATE OF ARRIVAL OF SAID GOODS AS INDICATED HEREON, TO THE EXTENT THAT SAID CHARGES ARE NOT SECURED BY A VALID LIEN; AND (II) FOR ADVANCES MADE, INTEREST THEREON AND LIABILITIES INCURRED AS INDICATED HEREON. WHEN ANY AMOUNTS, FOR WHICH COMPANY HAS RESERVED A SECURITY INTEREST, HAVE REMAINED DUE AND UNPAID FOR 90 DAYS, CUSTOMER SHALL BE DEEMED TO BE IN DEFAULT SO AS TO AUTHORIZE COMPANY TO DISPOSE OF THE GOODS, AT ITS OPTION, IN THE ENFORCEMENT OF THE SAID SECURITY INTEREST. ALL GOODS SUBJECT TO THE LIEN OR TO THE SECURITY INTEREST, BOTH HEREIN FURTHER DESCRIBED, AND ALL GOODS, THE REMOVAL OF WHICH HAS BEEN REQUIRED AS HEREINAFTER PROVIDED, MAY BE DISPOSED OF IN ANY MANNER AND BY ANY PROCEDURE THEN AUTHORIZED BY THE LAWS OF THE STATE IN WHICH THE GOODS ARE STORED BY COMPANY.

 

7. TENDER FOR STORAGE AND HANDLING.

Each shipment of Customer’s property to Company constitutes a separate tender and Company may reject subsequent tenders of property whether identical or not. The Company may also reject any tender of property which does not conform to all terms (including quantity and description) of the quotation issued by Company. All property shall be delivered to Company properly marked and packed for handling and storage. Unless arranged for in advance by Customer, the property may be placed in general storage at Company’s discretion without regard for temperature or humidity conditions and without responsibility for freezable property. Customer shall furnish prior to delivery to Company a manifest showing marks, brands, or sizes of the Packages to be kept and accounted for separately and the class of storage desired. Delivery of any or all of a Package of property shall be made without subsequent sorting except by special arrangement subject to a charge. Unless Customer shall otherwise specify in advance of receipt by Company, the property may be stored in bulk or assorted Packages at the discretion of Company. The contents of the containers or the property referred to on the face of this receipt were not inspected by Company for condition, form, color, nor for concealed loss, damage or leakage. Company undertakes to handle, store, and deliver property only in the Packages in which it was originally received. When deterioration or failure of containers or packages requires, Company at its discretion may repackage or re-cooper the contents and a charge for labor and material used shall be made. Company accepts no responsibility for such repair or replacement.

 

8. DUTY TO FURNISH INFORMATION.

Customer shall provide Company with all information concerning the Goods, which is accurate, complete and sufficient to allow Company to comply with all laws and regulations concerning the storing and handling of the stored Goods. Customer shall indemnify, defend and hold Company harmless from all loss, liabilities, claims, costs, penalty and expense (including reasonable attorneys’ fees) arising out of Customer’s failure to provide the information required in this section.

 

9. HANDLING.

(a) The handling charge covers the ordinary labor involved in receiving Goods at the Warehouse, placing Goods in storage, and returning Goods to Customer. Handling charges are due and payable on receipt of Goods.

(b) Unless otherwise agreed, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by Company in receiving and handling damaged Goods, and additional expense in unloading from or loading into cars or other vehicles not at the Warehouse door will be charged to Customer.

(c) Labor and materials used in loading rail cars or other vehicles are chargeable to Customer.

(d) 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.

(e) Company shall not be liable for demurrage or detention, delays in unloading inbound cars, trailers or other containers, or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless Company has failed to exercise reasonable care.

 

10. MODIFICATION OF SERVICES.

(a) The Customer reserves the right to modify or alter the services of the Company upon written notice to the Company. If the Customer modifies or alters the services performed by the Company after the services have begun, the Customer shall be solely responsible for all costs incurred by the Company due to such modification or alteration. The Company shall be responsible for costs caused by modifications or alterations to the services that result from its own actions.

(b) Unless specific conditions are agreed upon, if the Customer modifies or alters the services of the Company or fails to provide goods to the Company less than 30 calendar days before the scheduled start of the services, the Customer agrees to pay the Company, in addition to the reimbursement of all costs borne by the Company and resulting from the modification  of the services, a lump sum equal to: i) 20% of the total agreed-upon price where written notice is received by the Company between 15-29 calendar days before the scheduled start of the services; ii) 40% of the total agreed-upon price where written notice is received by the Company between 8-14 calendar days before the scheduled start of the services; iii) 60% of the total agreed-upon price where written notice is received by the Company between 3-7 calendar days before the scheduled start of the services; or iv) 90% of the total agreed-upon price where written notice is received by the Company less than 3 calendar days before the scheduled start of the services. If the Customer cancels the services of the Company, in part or whole, less than 30 calendar days before the scheduled start date, the Customer agrees to pay the Company, in addition to the reimbursement of all costs borne by the Company and resulting from the cancellation of the services, a lump sum equal to:

i) 30% of the total agreed-upon price where written notice is received by the Company between 15-29 calendar days before the scheduled start of the services; ii) 50% of the total agreed-upon price where written notice is received by the Company between 8-14 calendar days before the scheduled start of the services; iii) 70% of the total agreed-upon price where written notice is received by the Company between 3-7 calendar days before the scheduled start of the services; or iv) 100% of the total agreed-upon price where written notice is received by the Company less than 3 calendar days before the scheduled start of the services.

 

11. DELIVERY AND RELEASE OF GOODS.

(a) Customer shall deliver the Goods to the Warehouse in a segregated manner, properly marked and packaged for handling. At or prior to delivery of the Goods, Customer shall furnish a manifest showing the Goods to be tendered for storage, with any instructions concerning storage, services, accounting, segregation or any other requirements relating to the Goods. Company may inspect all inbound shipments for visible loss or damage. Where such apparent loss or damage occurs, Company will endeavor to obtain a notation of such loss or damage by the carrier on the delivery receipt; prepare an inspection report; take photos of the damage; and forward the documents to Customer. Company retains the right to refuse acceptance of shipments that arrive in damaged condition. Company 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 or tampering will not be the responsibility of Company.

(b)The bill of lading and other shipping documents for all Goods shipped to Company shall show Customer as the named consignee, with Company shown only as the “in care of” party. The parties agree that, regardless of whether Company is incorrectly identified as named consignee, or Customer fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall Company be considered the consignee. Customer shall indemnify and hold harmless Company from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention, per diem, or charges of any nature, in connection with Goods shipped to/from Company. If bill of lading is signed by Customer’s representative or trucking company representative and accepted, Company is thereby released from liability. Customer shall provide Company with written instructions concerning the release or other disposition of Goods. Facsimile, Internet, Electronic Data Interchange (EDI), or other similar communication is satisfactory, provided Company may rely upon the information contained in the communication as received. Customer shall determine the quantity and weights of Goods to be loaded into various modes of transportation and shall indemnify, defend and hold Company harmless where such quantities or weights exceed any legal limit or governmental regulation. When Customer requests that Company tender Goods to a carrier, Customer authorizes Company to rely upon weights provided by the Customer in completing shipping documents as an agent for Customer. Any penalty, loss expenses, or fines incurred by Company in reliance upon same shall be paid by Customer. Unless clearly stated to the contrary in writing, such “weights” supplied by Customer shall include Goods, packaging material, pallets, and dunnage supplies.

(c) No Goods shall be delivered or transferred except upon receipt by Company of complete written instructions properly signed by Customer, provided, however, that goods may be delivered upon instructions by telephone in accordance with a prior written authorization, but Company shall not be responsible for loss or error occasioned thereby.

(d) When Goods are ordered out a reasonable time shall be given to Company to carry out instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotion, or any reason beyond Company’s reasonable control, or because of loss or destruction of Goods for which Company is not liable, or because of any other excuse provided by law, Company 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.

 

12. TRANSFER; TERMINATION OF STORAGE; REMOVAL OF GOODS.

(a) Instructions to transfer Goods are not effective until delivered in writing to and accepted by Company, and all charges up to the time transfer is made are chargeable to Customer. If a transfer involves rehandling 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) Company reserves the right to move at its expense any Goods tendered by Customer to Company to and/or from any building or facility owned, leased, or operated by Company or any third-party; but if Customer takes delivery of the Goods in lieu of transfer, no storage charge shall be made for the current storage month. Company may, without notice, move goods within the Warehouse.

(c) Company may, upon written notice to Customer, require the removal of any Goods by the end of the next succeeding storage month. Such notice shall be given to the last known contact information of Customer. If Goods are not removed before the end of the next succeeding storage month, Company may sell them in accordance with the terms herein.

(d) If Company in good faith believes that the Goods are about to deteriorate or decline in value to less than the amount of Company’s lien before the end of the next succeeding storage month, Company may specify in the notification any reasonable shorter time for removal of the Goods and in case the Goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.

(e) If, as a result of a quality or condition of the Goods of which Company had no notice at the time of deposit, the Goods are a hazard to other property or to the Warehouse or to persons, Company may sell the Goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the Goods. If Company after a reasonable effort is unable to sell the Goods, it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the Goods, Company may remove the Goods from the facility and shall incur no liability by reason of such removal.

 

13. LIABILITY AND LIMITATION OF DAMAGES.

(a) COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY COMPANY TO EXERCISE SUCH CARE IN REGARD TO SUCH GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND COMPANY IS NOT LIABLE FOR ANY LOSS OR INJURY: (i) WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE IN THE HANDLING, STORAGE, PACKING, UNPACKING, SHIPPING AND RECEIVING OF THE GOODS, AND WHILE THE GOODS ARE AWAITING SUCH OPERATIONS; or (ii) WHICH ARISES FROM NATURAL DECAY, LEAKAGE, RODENTS, INFESTATIONS, FIRE, FLOOD, STRIKES, LOCKOUTS, BOYCOTTS, OTHER LABOR DISTURBANCE, WEATHER, PROVDENTIAL CAUSES, AND THE ACT OF ANY GOVERNMENTAL AGENCY OR PUBLIC ENEMY, CYBERATTACKS, RANSOMWARE, MAJOR AOUTAGES OR TELECOMMUNICATION NETWORKS. COMPANY SHALL HAVE NO LIABILITY FOR ANY ACTION, OR INACTION OF CARRIERS, INCLUDING ANY CARRIER’S FAILURE TO COMPLY WITH APPLICABLE LAWS OR REGULATIONS.

(b) LIABILITY OF COMPANY FOR LOSS OR DAMAGE TO THE GOODS STORED OR HANDLED, HOWEVER CAUSED, SHALL BE LIMITED TO THE ACTUAL DAMAGE OR LOSS TO SUCH GOODS, PROVIDED, THAT IN NO EVENT SHALL SUCH LIABILITY EXCEED THE LESSER OF $50 PER PACKAGE OR $.10 PER POUND OF SUCH GOODS TENDRED TO COMPANY. PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY UPON WRITTEN REQUEST OF CUSTOMER BE INCREASED AT THE TIME THAT THE GOODS ARE RECEIVED AT THE WAREHOUSE OR WITHIN A REASONABLE TIME AFTER RECEIPT BY COMPANY ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED LIABILITY.

(c) THE LIMITATION OF PARAGRAPHS 13(A) AND (B) SHALL NOT APPLY TO CLAIMS FOR LOSS OR DAMAGES ARISING OUT OF CONVERSION OF CUSTOMER’S GOODS TO COMPANY’S OWN USE.

(d) NOTWITHSTANDING ANY OTHER TERM OR PROVISION OF THIS AGREEMENT, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, AND WHETHER OR NOT COMPANY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

 

14. NOTICE OF CLAIM AND FILING OF SUIT.

(a) Upon completion of the services by Company, Customer shall be deemed to have received Goods undamaged unless Customer or any other persons presents a claim in writing to Company within a reasonable time, and in no event longer than either 60 days after delivery of the Goods by Company or 60 days after Customer or the last known holder of a negotiable warehouse receipt is notified by Company that loss or injury to part or all of the Goods has occurred, whichever is shorter. Customer or any other person making a claim against Company shall bear the burden of proof that any damage to Goods occurred during Company’s storage or handling of Goods.

(b) No action may be maintained by Customer or others against Company for loss or injury to the Goods stored unless a written claim has been timely given to Company as provided in paragraph (a) of this section and unless such action is commenced either within nine months after date of delivery by Company or within nine months after Customer is notified that loss or injury to part or all of the Goods has occurred, whichever is shorter.

(c) When Goods have not been delivered, notice may be given of known loss or injury to the Goods by written notice to Customer. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of receipt of such notice by Customer.

 

15. DAMAGED GOODS.

Company will, as soon as is reasonably practical, notify Customer of any and all observed damages to Customer’s Goods. Upon such notification from Company, Customer will have thirty (30) days to determine the status of the Goods. If Customer determines that the Goods are damaged, and the Goods will remain in the Warehouse, then Company reserves the right to increase storage rate on damaged Goods up to three (3) times the base rate. If Company determines that damaged or spoiled Goods present an immediate hazard to other property or to the warehouse or to persons, Company shall notify Customer, and Customer shall promptly remove the Goods from the Warehouse. Pending such disposition, Company may remove the Goods from the Warehouse, at Customer’s sole expense, and shall incur no liability by reason of such removal.

 

16. HAZARDOUS, DANGEROUS, OR CONTAMINATED GOODS.

Customer agrees that it will not tender any Hazardous Goods to Company for storage or handling without having obtained Company’s written prior approval to delivery to the Warehouse of the following: commercial and scientific name(s) of the Hazardous Goods; specific product information necessary or helpful for Company to comply with the storage, reporting, record keeping, employee training, notification and similar requirements of the laws and regulations applicable to the Hazardous Goods; all other product information pertaining to the safe and proper handling and storage, and compatibility with other Goods ; written copies of the federal, state, and local laws, rules, regulations and ordinances applicable to the storage and handling of the Hazardous Goods; Customer’s EPA waste generator identification number, which Company shall use in the event of a spill or exposure; and other information pertaining to Customer’s Goods that Company requires in order to store, handle or transport the Hazardous Goods. Upon Company’s acceptance of the Hazardous Goods, Customer shall provide Company on a continuous and current basis with: accurate and up-to-date information concerning all of the Customer’s Hazardous Goods, including data required to be filed with federal, state and local authorities; current laws, ordinances, rules and regulations of federal, state, municipal and other regulatory authorities relating to the Hazardous Goods; and a written response plan to be implemented in the event of an incident, including fire, spill, damage, or natural disaster. The response plan will include the following: the names, addresses, telephone and fax numbers of those persons, representatives, services, governmental agencies and other contacts that Customer wishes to have notified in the event of an emergency; action to be taken by Company to minimize potential personal injury, property damage, environmental damage, and other such action as Customer wishes Company to take. Customer shall indemnify, defend and hold Company harmless from all claims, suits, losses, liability and expense on account of injury to or death of persons or damage to property associated with the Hazardous Goods except to the extent that such injury, death or damage is caused solely by Company’s gross negligence; Customer shall obtain and provide Company a copy of Pollution and Contamination Remediation  Insurance to adequately cover remediation and clean up for site contamination or environmental exposure associated with Customer’s Hazardous Goods. Customer shall name Company as additional insured on the policy. Customer shall provide Company with proof of insurance and shall require the insurer to provide Company with thirty (30) day written notification in the event of any change in the policy or termination of the policy. Customer shall notify Company in writing, prior to storage, of the hazardous, flammable, combustible, or toxic nature of any Goods offered for storage, and of any special storage and handling requirements for all Goods. Customer shall be liable for all loss, damage, injury or claim resulting from providing incomplete and/or inaccurate product information. Customer shall be responsible and shall indemnify Company for all loss, damage, injury, claim and expenses resulting from mislabeled product. Customer shall be responsible for complying with all reporting requirements of any and all governmental agencies requiring same. Customer shall be responsible for providing current, accurate and complete Material Safety and Data Sheets (MSDS) if applicable. Customer represents and warrants that it is not aware of any hazardous conditions associated with its Goods, except those disclosed to Company in writing prior to delivery of such Goods. Customer shall immediately notify Company of any dangerous or hazardous conditions when Customer becomes aware of same. Customer shall be liable and shall indemnify Company for all damages, both direct and consequential, including lost profits, resulting from any incident related thereto. Any Goods stored or warehoused for Customer: (i) which result in the emission of toxic or obnoxious fumes, odors, airborne contaminants; (ii) which may be contaminated; (iii) which emit a pollutant; or (iv) the storage of which is determined to be a violation of zoning for fire regulations applicable to the location of the Warehouse, may be immediately removed to another location by Company or by Customer, at Customer’s expense. Customer shall be liable for all damages or injury, by its Goods to any property or person. Customer shall be responsible for the cost of clean-up and removal of its Goods should any incident arise which renders the Goods unacceptable to Company or Customer. Company reserves the right to refuse acceptance of Customer shipments that arrive in damaged condition, whether there is a threat of environmental exposure, hazard to existing product on the site location, or threat to Company’s safety. Company shall put the Customer on notice of such refusal. In the event of a release of Customer’s Hazardous Goods, regardless of fault or cause, Customer shall be liable for: all costs associated with implementing Customer’s response plan; removal and disposal of Customer’s damaged Hazardous Goods; and removal of all debris and contaminated material attributable to Customer’s Hazardous Goods. Customer also is liable for environmental cleanup, restoration and site remediation and assumes the burden of proving that there is no tangible relation between its Hazardous Goods and the site contamination requiring such clean up and restoration.

 

17. LIABILITY FOR MISSHIPMENT.

If Company negligently mis-ship goods, Company shall pay the reasonable transportation charges incurred to return the mis-shipped goods to the Warehouse. If the consignee fails to return the goods, Company’s maximum liability shall be for the lost or damaged Goods as specified in Section 13 above, and Company shall have no liability for damages due to the consignee’s acceptance or use of the Goods whether such Goods be those of Customer or another.

 

18. MYSTERIOUS DISAPPEARANCE.

Company shall not be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods unless Customer establishes such loss occurred because of Company’s failure to exercise the care required of Company under Section 13 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by Customer of conversion must be established by affirmative evidence that Company converted the Goods to Company ‘s own use.

 

19. TERMS OF PAYMENT.

Company’s services rendered hereunder will be payable in accordance with the conditions set out in Company’s quotation, if applicable. Any challenge related to invoicing shall be raised in the fifteen (15) days that follow receipt of any invoice for Company’s services. Beyond such time, the invoice shall be considered uncontested and shall be due and payable. Customer is deemed to have been given notice to pay by the mere payability of the obligation. Except for disputed invoices, any delay in payment shall entail, without formalities, forfeiture of the term of any other claim held by Company which becomes immediately due even in the event of acceptance of bills of exchange. No deduction on payments or the amount of invoices will be allowed. The unilateral offset of the amount of any alleged damages on the price of the services due is prohibited. In the event of late payment of a non-disputed invoice, a late payment fee equivalent to 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less, of the unpaid balance shall automatically accrue, without prejudice to any compensation, in accordance with ordinary law, for any other damage resulting directly from this delay. Except for disputed invoices, if an invoice is not paid on its due date, Company shall be entitled to immediately suspend the provision of its services until full payment of the sums due. This suspension shall be borne by Customer, who assumes full responsibility therefore. The parties expressly agree that payment of services constitutes an essential obligation of Customer. In exceptional cases where payment deadlines have been agreed, any partial payment shall be charged first against the non-preferred part of the claims. Failure to pay a single instalment will result in forfeiture of the term without formality, the balance becoming immediately due even if bills of exchange are assigned.

 

20. INSURANCE.

Company shall maintain, at its own expense, such insurance coverages as are required by law or as Company deems necessary for its operations, including Workers’ Compensation, Employer’s Liability, Comprehensive General Liability, and Warehousemen’s Legal Liability. Any policies shall be with insurers who are “A” rated by Best’s Insurance Reports. If any insurance is placed by Company, Company shall provide Customer with insurance certificates reflecting such coverage upon written request. Company will provide Customer with copies of the policies for inspection upon Customer’s written request. Company will make reasonable efforts to effect fire, theft and other insurance upon the Goods only after specific written instructions have been received and accepted by Company in sufficient time prior to Company providing the services and Customer states specifically the kind and amount of insurance to be placed. Company does not undertake or warrant that such insurance can or will be placed. Unless Customer has its own open policy and instructs Company to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by Company. Any insurance placed shall be governed by the certificate or policy of insurance issued and will only be effective when accepted by such insurance companies or underwriters. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and Company shall not be under any responsibility or liability in relation thereto. Customer agrees to pay all insurance premiums and any costs of Company for arranging the same. The Goods will not be covered by any insurance unless Company receives and accepts written instructions from Customer prior to such storage. Company shall have no obligation to procure insurance on behalf of Customer except as specifically provided for herein and accepted by Company. Customer further acknowledges and agrees that any insurance placed by Company on behalf of Customer will exclude any and all coverage for cash, live animals, negotiable papers, securities, cigarettes and other tobacco products, computer memory modules and cards, fine art with a value greater than $10,000 per piece, flowers, jewelry, laptop computers, tablet computers and similar devices, mobile/smart phones and watches, pharmaceutical drugs, plants, precious stones and metals, and server racks (when containing computers, servers or electronic components) and that Customer shall be solely responsible for any damage or loss to such Goods and/or claims against Company from any third-parties concerning or arising out of such Goods.

 

 

21. THIRD PARTY BENEFICIARY INDEMNITY.

Except as expressly provided herein, no person other than Customer and Company shall have any right or privilege hereunder, and Customer shall indemnify and hold Company harmless for claims against Company brought by third party privies of Customer against Company whenever such claims, arising out of loss or damage to Customer’s Goods stored hereunder.

 

22. NOTICE.

Whenever, by the provisions of the laws or regulations of jurisdiction, or by the terms of this agreement, Company is required or authorized to notify any person of any fact or agent, past or future, it is agreed that such notification shall be reasonable and sufficient if sent in writing by ordinary mail or electronic mail to such person at his last known address or email address, which in the case of the Customer shall be address written on the face of this warehouse receipt issued to Customer.

 

23. SEVERABILITY AND WAIVER.

If any provision of this receipt 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 receipt shall not be affected thereby but shall remain in full force and effect. Company’s failure to require strict compliance with any provision of this warehouse receipt shall not constitute a waiver or estoppels to later demand strict compliance with that or any other provision(s) of this warehouse receipt. The provisions of this warehouse receipt shall be binding upon Customer’s heirs, executors, successors and assigns; contain the sole agreement governing goods stored with Company; and cannot be modified except by a writing signed by Company.

 

24. FORCE MAJEURE.

Neither party shall be liable to the other for failure to perform its obligations under this agreement if prevented from doing so because of circumstances beyond the reasonable control of the party, including without limitation: (a) acts of God, including flood, earthquake, storm, hurricane, power failure, other natural disaster, pandemic or epidemic; (b) war, hijacking, robbery, theft, civil commotions or riots, or terrorist activities; (c) incidents or deteriorations to means of transportation, cyberattacks, ransomware, or major outages or telecommunication networks; (d) embargoes, acts by any governmental or quasi-governmental authority including denial, cancellation, or revocation of any import, export or other necessary license; (e) defects, nature or inherent vice of the goods, dampness of atmosphere (heat or cold), rusting, shrinkage, evaporation, ordinary loss of weight or volume, ordinary leakage, contamination, change in flavor, color, finish or texture, spoilage, freezing and/or extremes of temperature to fresh/frozen foods or perishable commodities; or (f) strikes, lockouts, slowdowns or other labor conflicts. 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 Company to continue to protect the Goods, Customer agrees to pay the storage or similar charges associated with Company’s obligation during the continuance of the force majeure event. Customer understands and agrees that in the event of a force majeure, Customer is obligated to clean up its product and provide site remediation attributable to contamination caused by Customer’s product.

 

25. ASSIGNMENT.

Neither Company nor Customer is authorized to transfer to a third party all or part of the rights and obligations arising for it out of this agreement without the express written consent of the other party. In addition, failure to comply with this clause may result in early termination of the agreement. It is however specified that any companies or entities within the DIMOTRANS Group will not be considered third parties for the application of this clause. Consequently, any sale or transfer within the DIMOTRANS Group, whatever the operation (by way of merger, sale, universal transfer of assets, management lease, etc.) can be undertaken freely subject to agreeing to uphold the terms and conditions of this agreement and is not subject to any other prior formality. Company undertakes to inform Customer in writing of any modification as soon as possible of the occurrence thereof.

 

26. CONFIDENTIALITY.

Except where disclosure may be required pursuant to a court order, government requirement, or other legal requirement, Customer and Company agree to treat as strictly confidential all documents, materials, tools, or information collected, and more generally, all matters or facts whatsoever that have been or will be brought to their attention, including but not limited to studies, plans, concepts, and know-how, transmitted for or on the occasion of their relationship. Both parties shall take all necessary measures to ensure that this confidentiality is maintained by their personnel. This obligation of confidentiality shall be enforceable for a period of five (5) years from the end of the commercial relationship between Customer and Company. Any confidential information must be returned to the disclosing party upon written request, the receiving party undertaking not to keep any copies of it with the exception of confidential information whose retention would be necessary to comply with its legal or regulatory obligations, particularly accounting or fiscal obligations.

 

27. COMPLIANCE.

Customer and Company hereby warrant that their conduct respective to the services comply with all state, federal, and local rules, laws, and/or regulations including, where applicable, the Foreign Corrupt Practices Act of 1977, and all amendments to these provisions, commercial restrictions (in terms of customs, export and import controls, international sanctions and embargoes) including those enacted by France, the European Union, the United States, and the United Nations Organization, and all other legal obligations relating to any of the activities of Customer and Company, including, without limitation, the legal obligations applicable in matters of tax, product and/or consumer safety, protection of human rights, employees and the environment. Customer expressly warrants it is not subject to any national, European, or international sanction(s). The parties agree, on the one hand, to inform each other without delay of any conduct and/or information that may become known that may incur liability under this article and, on the other hand, to provide all necessary assistance to respond to a request from a duly authorized authority relating to any potentially corrupt conduct. Any breach of this article by Customer shall be considered a material breach of this agreement.

 

28. TERMINATION.

Either party may terminate this agreement immediately upon written notice to the other party if the other party materially breaches any of the terms and conditions herein and such breach is not cured within fifteen (15) days after receipt of written notice identifying the breach. Receiving written notice of a breach shall not relieve Customer of its obligation to pay any monies owed pursuant to these terms and conditions. Upon termination, all outstanding invoices, including those not yet due, shall become immediately payable and Company shall have no obligation to release, return, or facilitate the release or return of Customer’s Goods until all outstanding monies owed hereunder have been paid in full. Company’s general lien set forth in the Company Lien clause herein shall remain in full force and effect after termination of this agreement. Customer will be held liable for and will compensate Company for any upfront investments made on behalf of Customer, e.g., equipment, lease, etc. in the event of termination for default by Customer.

 

29. GOVERNING LAW; JURISDICTION.

This warehouse receipt and the terms and conditions herein and/or the services provided by Company hereunder shall be governed and construed in accordance with the laws of the State of New York, without giving consideration to the principles of conflicts of law. Any suit, action or other legal proceeding arising out of, in connection with or related to these terms and conditions, as well as the contract evidenced herein and/or the services provided by Company must be commenced and litigated exclusively in the United State District Court for the Southern District of New York to whose jurisdiction Customer consents for such purpose and if that court lacks subject matter jurisdiction, suit must be commenced in the Supreme Court for the State of New York, New York County to whose  jurisdiction Customer consents for such purpose.