J.E. OSWALT AND SONS HEAVY HAAULING AND RIGGING, INC
( Terms and Conditions)
All Quotations and Proposals issued by J. E. Oswalt and Sons Heavy Hauling and Rigging, Inc. (JEO) to you, our Customer, are subject to these Terms and Conditions, which are incorporated fully into those Quotations and Proposals. Once any Quotation or Proposal is accepted by the Customer or JEO begins work, the Quotation or Proposal along with these Terms and Conditions, shall constitute the Contract between JEO and Customer. These Terms and Conditions supersede any earlier oral or written agreements between JEO and Customer. All work performed by JEO for Customer is subject to these Terms and Conditions. All Quotations and Proposals issued by JEO are contingent upon availability of labor and equipment.
Customer’s acceptance of these Terms and Conditions is confirmed by Customer ordering, requesting, allowing work to be performed, or by being aware that JEO is performing work, regardless of the issuance of a conflicting Purchase Order or absence of Customer’s signature.
- CARGO DESCRIPTION AND DECLARATION OF VALUE
Customer warrants that it has provided JEO with a written and accurate declaration of the value of each piece/unit of cargo prior to JEO submitting or confirming any Quotation or Proposal and that the declaration of value is accurately reflected in JEO’s Proposal/quotation. Customer agrees that Customer’s failure to provide JEO with a written declaration of the per piece/unit declared value releases JEO, its officers, directors, employees, agents, suppliers, subcontractors, owners, and insurers from any liability or claims related to any such unvalued piece/unit of cargo.
The Customer or its agents shall Provide JEO accurate cargo details, specifications, measurements, and requirements. JEO’s proposal/quotation will be based upon transport diagrams, requirements, dimensions, and weights provided by the Customer. It is the responsibility of the Customer to promptly update JEO with any changes or additions on any of the above.
Shipping saddles, blocking, and cribbing of sufficient stability and integrity will be the responsibility of Customer or others unless specified otherwise. Customer shall provide adequate lifting and securing points and their location must be properly marked on each piece and diagram of said piece; and Customer shall mark each piece with a correct Center of Gravity location in the lateral and longitudinal direction, as well as a supplied diagram prior to loading. If applicable, Customer to orient cargo and vessel or railcar in a manner to minimize shipping height and location of saddles, allowing optimal transporter configuration.
Any redesign, fabrication, removal, installation of saddles due to permit restrictions will be at the cost of Customer. Tarping, application of shrink-wrap, taping, or packaging to be completed at the Customer’s expense. Customer will hold JEO harmless for natural acts or events that decrease the integrity of packaging such as tree branches, road spray, wind, weathering, etc.
- NOTICE OF INCIDENTS
The Customer shall immediately notify JEO of any accident or incident involving personal injury and/or property damage; including but not limited to, damage to the cargo, any JEO Equipment, or other property, which occurred during the work contemplated by the quotation. Accidents or incidents causing damage, include, but are not limited to damage from fire, flood, theft, comprehensive losses, collision, rollover, and Acts of God. All repairs required due to any such accident or incident shall be made at the expense of the Customer and are payable by the Customer to JEO upon receipt of invoice. Equipment damaged beyond repair is payable by the Customer to JEO at current replacement cost upon receipt of invoice.
Customer shall photograph any damage to the cargo, equipment, or shipment, and provide copy of the photograph to JEO within three days of the accident or incident.
Customer agrees that JEO is not liable for penalties, liquidated damages, consequential damages, loss of use, shut down or loss of profit.
- RELEASE OF LIABILITY
Customer agrees to release and hold JEO, its officers, directors, employees, agents, suppliers, subcontractors, owners, and insurers harmless from any claims for damage or loss to cargo, property, personal injury, or death in excess of JEO’s applicable insurance limits, even if any of JEO’s officers, directors, employees, agents, suppliers, subcontractors, owners are alleged or deemed to have been negligent or otherwise at fault.
- INDEMNITY
Customer shall indemnify, hold harmless, and defend JEO, its officer, employees, shareholders, agents, subcontractors, and representatives from and against any and all losses, damages, expenses, claims, suits, and demands of whatever nature, resulting from damages or injuries, including death and lost profits, to any property or persons, including JEO’s equipment, caused by or arising out of any action, omission, or operation attributable to parties other than JEO, its material men, employees, agents or representatives; provided however, that the Customer shall not be required to indemnify JEO, its employees, agents, and representatives hereunder for any damages or injuries, including death, to any property or persons, caused solely and exclusively by the negligence of JEO.
- INSURANCE/WAIVER OF SUBROGATION
During the term of this Quotation, JEO will maintain general liability, auto liability, and workers compensation insurance coverage under its existing insurance policies as amended or replaced and at such limits specified therein. It is the Customer’s responsibility to provide its own required insurance above JEO’s limits or, as an option, additional Customer insurance may be purchased through JEO, provided the desired coverage is available to JEO. Customer must provide insurance for any cargo or property with a declared value above JEO’s insurance limits, and JEO must be named as an additional insured on such policy or policies. Customer waives all rights against JEO and any of their subcontractors, sub-subcontractors, agents, and employees for damages to the extent those damages are covered by property insurance obtained pursuant to these Terms and Conditions or other property insurance applicable to the Contract or cargo. The insurance policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
A certificate of insurance confirming that JEO has been named as additional insured and loss payee and that Customer’s insurer is waiving the right of subrogation against JEO and its suppliers and contractors must be provided to JEO prior to JEO commencing work, however, failure to provide the certificate does not release Customer from any of the obligations set forth in the quotation and these Terms and Conditions and shall not operate in any manner as a waiver of JEO’s rights or remedies against Customer.
- CLAIMS AGAINST JEO
Failure to give JEO timely written notice of a claim shall be a complete defense and bar to any claim, suit, or action asserted by the Customer. Customer must give JEO written notice of a claim or potential claim within fourteen days after Customer became aware or should have been aware of the claim or potential claim.
- WAIVER OF CONSEQUENTIAL AND PUNITIVE DAMAES
Customer waives all claims against JEO for consequential damages arising out of or relating to Customer’s contract with JEO, including, but not limited to, damages incurred by Customer for rental expenses, for losses of use, income, profit, financing, reputation, advance loss of profits, and for loss management or employee productivity of such persons. Notwithstanding any other provision of the Terms and Conditions, the Customer will not be entitled to claim any liability against JEO resulting from any delay or disruption of delivery (even if caused by an act, default or omission of JEO or JEO’s personnel), or for any damages resulting from delay in start-up of operations, facilities, machines, equipment, production lines, or other items; including damages for lost profits, anticipated profits, increased costs, or other additional expenditures and consequential damages.
Customer also waives any claim to punitive damages regarding claim arising of or relating to any contract with JEO.
- PERMITS
To the extent that any portion of the Contract or quotation is subject to the timely approval and issuance of any of governmental permits or other documentation, the quotation is contingent on the issuance of required permits, including permitting by the responsible state department of transportation.
- ROUTE CHANGE IMPACTING QUOTATION
Customer agrees that changes to the route and/or to the job site occurring after JEO submits any proposal or quotation to the Customer may impact or result in JEO cancelling the quotation or contract. Examples are included, but not limited to: 1) Highway, roadway and/or bridge construction projects started after the completion of the route survey; 2) Highway, roadway and/or bridges that are restricted, re-classified, or deemed unsafe by JEO after the completion of the route survey; 3) Damage to highway, roadways, or bridges caused by natural disasters/acts of God; 4) Change to Route due to permitting through construction zones; and 5) Change in weight or dimension of cargo that differ from those quoted. Alterations to the permitted path may impact the overall cost and/or schedule and will be at the customer’s expense.
- LOADING AND UNLOADING
Quotations are based upon the Customer providing free, clear, and safe access for loading, offloading, and to all work areas. Customer shall prepare all access and work areas to allow for safe and damage- free operations. Clearances and sufficient ground compaction and ground conditions are the responsibility of the Customer. Customer, at its expense, must provide safe and appropriately sized ground-bearing areas for loading/unloading/ trans-loading and transport in a timely fashion. Any additional equipment needed to overcome site conditions will be paid for by the Customer. Any damage to JEO’s or others’ property, equipment, cargo, and utilities; including but not limited to above-ground and below ground water, gas, sewer, power, cable, and telephone; at origin or destination, resulting from the use or non-use of the JEO provided transportation and support equipment is at the sole risk and responsibility of the Customer.
- CONSTRAINTS
JEO strives to meet any constraints of the job site and/or DOT permitting and will try to use an applicable transporter. However, changing site conditions may require transloading or offloading to a secondary transport or other system. Increased costs reflecting changes in site conditions will borne by the Customer.
- DELAYS\FORCE MAJEURE
JEO shall not be considered in default in the performance of its obligations under the proposal or quotation to the extent that performance of its obligations is prevented or delayed by any cause beyond its reasonable control; including, without limitation, acts of God, acts or omissions of governmental authorities or the other party, strikes, lockouts or other industrial disturbances, acts of public enemies, wars, blockades, riots, civil disturbances, protests, epidemics, floods, hurricanes, tornadoes, and any other similar acts, events, or omissions. When determined that force majeure results in a delay of performance by JEO, the date of delivery or performance of any other obligations of JEO hereunder shall be extended for a period of equal duration to the time lost by reason of the delay. JEO shall notify Customer in writing within ten calendar days after recognition of the occurrence of any event that JEO believes will result in a delay.
- PORT TRANS-LOAD ACTIVITES
Port work is determined by either the ship’s schedule or rail schedule. Ship loading/offloading start times and working hours/days are generally determined by a port captain representing a vessel owner, a stevedore, or rail car availability. JEO has no control over the loading/offloading schedule.
Decisions made by others concerning start times and working hours/ days can create overtime, guarantee time, and extra mobilization charges for staging of equipment. Customer is responsible for any increased costs due to delays by others. JEO has no control over start times and working hours/ days, therefore JEO requires at least 36-hours advance notice to mobilize equipment. Any charges for standing by due to delays beyond the control of JEO, including overtime, guarantee time, or equipment mobilization due to lack of advance notice are payable by the Customer.
- PORT CHARGES AND FEES
Customer is responsible for all Port charges and fees.
- APPLICABLE AND RELATED CHARGES PAYABLE BY CUSTOMER
The following costs are payable by the Customer: a) Standby Time (confinements and delays for reasons beyond the control of JEO); b) Normal working hours/ days are from 7:00 AM to 5:00 PM, portal to portal (e.g., from and to Batesburg, S.C.), Monday through Friday, except holidays. JEO reserves the right to work beyond daylight hours and during major holidays; c) Overtime shall apply for all hours/ days beyond those normal working hours/ days (defined in a) above); d) Guarantee Time shall apply when JEO works less than 10 hours per day, portal to portal; e) Customer to provide all necessary equipment needed to assist in assembly and disassembly of JEO equipment at no cost to JEO. If Customer cannot provide the equipment necessary, JEO will provide the necessary equipment and invoice the Customer for any cost. JEO will supply all labor and equipment necessary to mobilize, demobilize, assemble and disassemble necessary equipment; f) Costs and Fees for utility assistance such as telephone, power, cable television, internet access and communications, and DOT/municipal signals and signs are not included. Unless otherwise stated in the Quotation, these services, if required, will be invoiced as Applicable Charges and payable by Customer; g) Job-specific training, special PPE beyond JEO standard issue, and/ or additional site requirements other than those part of normal protocol are not included and payable by Customer; and f) All of the above Applicable Charges and those outlined in other contracts or the quotation, or incurred during JEO work are fully due and payable by the Customer at cost plus 18%.
- METHOD STATEMENTS
Method Statements are not included in JEO Quotations unless otherwise agreed in writing and outlined within the Quotation.
- SCOPE
Unless otherwise specified in any required Scope of Work and defined and included in the Quotation, loading and unloading waterborne cargo is the responsibility of the Customer or others, not JEO.
- STRESS OF TRANSPORT
It is the Customer’s responsibility to ensure that the cargo can withstand the stresses of transport, including lashing and securing cargo; and to advise JEO of any specific requirements in advance of any quotation. It is the responsibility of the Customer to provide JEO with all applicable technical drawings and special requirements for lifting, handling, transporting, blocking, bracing, securing, lashing and securing, and covering cargo. JEO is not responsible for the structural or cosmetic condition of the cargo.
- GEORGIOA GROSS WEIGHT
Gross vehicle weights that exceed 300,000 pounds in the State of Georgia are subject to a mandated bridge and route evaluation that must be conducted by an approved Third-Party Engineering Firm. This process could take up to (4) weeks for completion. The bridge and route evaluation required by the State of Georgia will not commence without a written Purchase Order, Contract, or written Authorization from the Customer specifying that JEO has been selected as the transportation contractor. The Customer shall pay all Third-Party engineering services and permit fees, regardless of permit approval.
- SURVEY
If a survey is conducted prior to, during, or after the handling of the cargo; the Customer will forward a copy of the surveyor’s report to JEO free of charge within three working days of the completion of the surveyors’ report.
- EQUIPMENT STORAGE
Customer shall permit JEO to store its equipment on site prior to, during, and after the performance period of its work and shall furnish electricity, water, and other utilities as reasonably requested by JEO, at no cost to JEO.
- PAYMENT
In addition to paying JEO for work specified on any Quotation or purchase order, Customer shall pay JEO upon demand:
a) all taxes, levies, assessments, fees and other public charges against or upon any of JEO’s work, Including, but not limited to, personal property taxes, if applicable.
b) any fines, penalties, forfeitures, costs, expenses, and attorney’s fees arising with respect to transportation, use, supervision, control, maintenance, or repair of the Cargo or JEO equipment; including but not limited to any parking, traffic, or other violations assessed.
c) JEO’s costs and expenses, including reasonable attorney’s fees, incurred in enforcing its agreements and collecting any amounts due hereunder from Customer; and
e) all cost of repairs and any related expenses.
Any payments more than thirty (30) days past due under shall bear interest at 1.5% per month (or the maximum rate allowed by law, whichever is higher).
- INVOICE
JEO will provide Customer with an invoice for services rendered. Payment in full is due upon receipt of invoice. JEO is not obligated to extend credit or financing terms to the Customer. Customer will not withhold retainage and/or deductions from any JEO invoice resulting in partial payment. JEO specifically reserves its right to a mechanic’s lien and does not waive this right under any circumstances.
- CHANGES
Should the terms of any purchase order or other document issued by Customer attempt to add new terms or different terms, the new or different terms shall be binding only if expressly accepted in writing by an authorized officer of JEO.
- ENTIRE AGREEMENT
Unless there is a written agreement, duly approved and executed by both parties, modifying the quotation and these Terms and Conditions, these terms are intended by the parties as a final expression of their agreement and is intended as a complete and exclusive statement of the terms of their agreement. No representations of any kind which are not set forth within the quotation and these terms and conditions shall be enforceable.
- SEVERABILITY
If any provision of these terms and conditions is determined to be invalid, illegal, or unenforceable; the remaining provisions of this Agreement remain in full force, and the essential terms and conditions of this agreement for each party remain valid, binding, and enforceable.
- CONFLICT BETWEEN DOCUMENTS:
If there is any conflict, discrepancy, or material inconsistency between these terms and conditions and the JEO issued quotation, customer-issued purchase order, or other form used by the parties; the terms of the JEO Quotation will control.
- DEFAULT:
Time is of the essence with respect to Customer’s performance of its obligations under any quotation and these Terms and Conditions. JEO may declare the Customer in default and stop all work if any one or more of the following occurs:
(a) Customer fails to make any payment required hereunder when due.
(b) Customer fails to maintain the required insurance.
(c) Customer fails to properly label, maintain, or repair the Cargo.
(d) Customer fails to observe or perform any other covenant or requirement of these terms, which failure is not cured to JEO’s satisfaction within three (3) days after JEO’s notice to Customer thereof.
(e) Customer attempts to sell, transfer, or encumber the cargo.
(f) a voluntary or involuntary proceeding is instituted in any court of competent jurisdiction, seeking a decree or order (i) for relief in respect of Customer under any applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, or other similar law, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Customer or its property, or (iii) for the winding up or liquidation of the Customer’s affairs;
(g) Customer shall fail to pay its debts as they come due; and/or
(h) Customer, in JEO’s opinion, shall become financially insecure.
At any time after such declaration of default, JEO may stop work, with or without notice.
- REMEDIES
All of JEO’s remedies shall be cumulative and are in addition to all other remedies available to JEO existing at law or in equity. In JEO’s sole discretion, but without any obligation, to take such action, JEO may make any payment to remedy any default, including but not limited to, procuring any required insurance coverage, paying any fine, imposition, penalty, taxes or fees incurred to recover and/or release the Cargo or JEO Equipment from any forfeiture, seizure, confiscation or similar proceeding, or from any lien or other encumbrance, and all such payments shall be reimbursed to JEO by the Customer.
- ATTORNEY’S FEES
In the event JEO retains legal counsel to enforce any rights under these terms and condition, including but not limited to the collection of money owed, JEO shall be entitled to full payment of all monies owed plus reimbursement of JEO’s attorney fees and collection costs and expense incurred whether or not legal action is instituted.
- CHOICE OF LAW, VENUE AND JURISDICTION:
For all suits, claims, causes of action or other legal proceedings arising out of services performed by JEO and which are in any way related to these terms and conditions, quotes, and contracts between Customer and JOE, this agreement shall be interpreted under the laws of the state of South Carolina. Venue for all suits, claims, causes of action or other legal proceedings shall be in Aiken County, South Carolina. Client specifically agrees and accepts this choice of law and venue and personal jurisdiction.
- COMPLIANCE WITH LAWS
Customer shall fully comply with all applicable U.S. federal, state, or local laws, rules, regulations, or ordinances. Customer agrees to assume full responsibility, and to the fullest extent allowed by applicable law, shall indemnify, defend and save JEO harmless against actual or asserted violations of any such laws, regulations or ordinances, and pay all costs and expenses of every character, including reasonable attorneys’ fees, occasioned by or arising out of any use, or result of any violation of law, regulation or ordinances.
- MISCELLANEOUS:
Headings are provided for convenience only, not for interpretation. No failure of JEO to enforce performance of any terms or covenants, or to exercise or delay in exercising any right, under these terms and conditions shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other rightJEO is not responsible for any charges or fees unless specifically agreed to in these terms and conditions and stated in the quotation.
- IMMEDIATE ACCEPTANCE
A Quotation is good for 90 days and is intended for immediate acceptance but will be subject to change prior to acceptance by Customer.
International Warehouse Logistics Association Terms and Conditions
( Terms and Conditions )
WAREHOUSE RECEIPT AND CONTRACT
DATE___________________________ WAREHOUSE RECEIPT NO. ________________
CUSTOMER/DEPOSITOR NAME ________________________________________________
ADDRESS____________________________________________________________________
CITY & STATE ________________________________________________________________
1. Depositor has delivered to Company the goods described in the schedule below to be stored on a monthly storage in warehouse situated at ___________________________________________ subject to the provisions, limitations, terms and conditions herein printed on the face and the reverse hereof, all of which are agreed and assented to by the Depositor, and to be delivered to said Depositor upon payment of all charges.
2. Description of goods to be stored: ________________________________________________
3. The Company’s rates are based upon the value of the stored goods as declared herein by the Depositor, regardless of actual known value, and upon the space occupied by the goods. The storage per month or fraction thereof is $___________________.
4. DEPOSITOR’S DECLARATION OF VALUE – After having an opportunity to declare higher values and pay a higher rate, Depositor, for the purpose of this contract and irrespective of actual value, hereby declares the value of all goods stored, including contents of any container, and all goods hereafter stored for the Depositor’s account to be $________________________.
The Depositor contracts and agrees, by the acceptance of this Receipt and contract, to all of the provisions, limitations, terms and conditions printed on the face and on the reverse side hereof.
Date of Issue_______________________ By_______________________________________
Depositor’s Authorized Signature
By_______________________________________
Company/Warehouse’s Authorized Signature
Standard Contract Terms and Conditions for Merchandise Warehouses
(Approved and promulgated by American Warehouse Association, October 1968; revised and promulgated by
International Warehouse Logistics Association, January 1998 and November 2008)
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, orconforming 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 Warehouse shall identify Depositor on the bill of lading or other contract of carriageas 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, misconsignment, 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 other charges of any nature whatsoever.
TENDER OF GOODS – Sec. 3
All Goods shall be delivered at the Facility 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.
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.
(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.
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 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) 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, 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) 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.
(d) 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.(e) 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 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 the Warehouse 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, the Warehouse may remove the Goods from the Facility and shall incur no liability by reason of such removal.
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) The Warehouse shall not be liable 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.
DELIVERY REQUIREMENTS – Sec. 7
(a) 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 in accordance with Depositor’s prior written authorization, but the Warehouse shall not be responsible for loss or error occasioned thereby.
(b) When Goods are ordered out a reasonable time shall be given the Warehouse to carry out instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots or civil commotions, or any reason beyond the Warehouse’s control, or because of loss of or damage to Goods for which Warehouse is not liable, or because of any other excuse provided by law, 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.
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.
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.
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 AND 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. If insurance isdesired the Depositor must make a written request, specify the kind of coverage desired and pay the premiums or any additional charges thereon.
(c)THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO _________PER___________, 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) 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 CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR DAMAGE TO THE GOODS.
(e) Depositor agrees to indemnify and save Company, its employees and agents harmless from all claims for death or injury to persons or damage or injury to property, including Depositor’s property, arising in any manner out of damage, including fire, caused by Depositor’s property. Depositor’s duty to indemnify hereunder shall include all costs or expenses arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorneys’ fees and costs of settlement.
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, andin 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.
(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
Warehouse shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
LIABILITY FOR MISSHIPMENT – Sec. 14
If Warehouse negligently misships Goods, the Warehouse shall pay the reasonable transportation charges incurred to return the misshipped 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.
MYSTERIOUS DISAPPEARANCE – Sec. 15
Warehouse shall 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 Warehouse’s failure to exercise the care required of Warehouse under Section 11 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 the Warehouse converted the Goods to the Warehouse’s own use.
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 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.
SEVERABILITY and WAIVER – Sec. 18
(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.
LIEN – Sec. 19
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.
DOCUMENTS OF TITLE – Sec.20
Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the parties.
GOVERNING LAW AND JURISDICTION – Sec. 21
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.
BUILDING/WATCHMAN – No warranty or representation is made that any of the Company’s warehouses are fireproof or that the goods
stored therein cannot be destroyed by fire. The Company shall not be required to maintain a watchman.
The parties acknowledge the Limitation of Liability and Damages in Section 11.
Proposed by Warehouse
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Company Name
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Authorized Signature
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Proposal Date
Accepted for Depositor
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Company Name
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Authorized Signature
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Acceptance Date
