Terms and Conditions

(a) All GOODS for storage shall be delivered at the Warehouse properly marked and packed for handling.

(b) STORER 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 desired. Otherwise, the GOODS may be stored in bulk or assorted lots in freez­er, cooler or general storage at the discretion of COMPANY and charges for such storage will be made at the applica­ble storage rate.

(c) Receipt and delivery of all or any units of a LOT shall be made without subsequent sorting except by special arrange­ment and subject to a charge.

(d) COMPANY shall store and deliver GOODS only in the packages in which they are originally received unless other­wise agreed to in writing.

(e) Unless STORER shall have given, at or prior to delivery of the GOODS, written instructions to the contrary, COM­PANY, in its discretion, may commingle and store in bulk different lots of fungible GOODS, whether or not owned by the same STORER.

(f) COMPANY shall not be responsible for segregating GOODS by production code date unless specifically agreed to in writing.

(g) STORER will provide COMPANY with accurate and complete information concerning the GOODS sufficient to allow COMPANY to comply with all laws and regulations concerning storage, handling and transportation of the GOODS and will indemnify and hold COMPANY harmless from all loss, cost, penalty and expense (including without limitation, reasonable attorneys’ fees) as a result of STORER’s failure to do so.

(h) COMPANY may refuse to accept any goods for storage.  Before tendering goods that require specialized handling or which are dangerous or hazardous, STORER shall identify such goods and special handling requirements to COMPANY in writing and COMPANY may decline to store such goods.  STORER is solely responsible for providing complete and accurate handling and storage instructions for any nonconforming GOODS, including any applicable safety procedures.  If COMPANY accepts any such nonconforming goods for storage, STORER agrees to rates and charges as may be assigned and invoiced by COMPANY as well as all terms and conditions of this Agreement.

(i) For all GOODS shipped to the Warehouse, STORER shall ensure that the bill of lading or other contract of carriage as well as all declarations to government regulatory agencies (i) identify STORER as the named consignee, in care of COMPANY, and (ii) do not identify COMPANY as the consignee or shipper.  If any GOODS are shipped to the Warehouse naming COMPANY as named consignee on the transportation contract, STORER shall promptly notify the carrier in writing that COMPANY is (i) the “in care of party” only and (ii) does not have any beneficial title or interest in the GOODS.  COMPANY may refuse to accept any GOODS tendered for storage in violation of this provision, and shall not be liable for any loss or damage to, or mis-consignment of, such GOODS.  Whether COMPANY accepts or refuses goods shipped in violation of this Section 2, STORER agrees to indemnify and hold COMPANY harmless from all claims for transportation, storage, handling, and other charges relating to such GOODS, including surcharges, undercharges, rail demurrage, truck/intermodal detention, and other charges of any nature whatsoever.  STORER further agrees to indemnify, defend, and hold COMPANY harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of COMPANY as consignee.

(a) The GOODS shall be stored at COMPANY’s discretion at any one or more buildings at COMPANY’s Warehouse complex. The identification of any specific location within COMPANY’s Warehouse complex does not guarantee that the GOODS shall be stored therein.

(b) COMPANY may, at any time, at its expense, and without notice to STORER, remove any GOODS from any room or area of the Warehouse complex to any other room or area thereof.

(c) Upon ten (10) days written notice to STORER, COMPANY may, at its expense, remove the GOODS to any other warehouse.

(a) Unless otherwise specified or elected by COMPANY, handling charges cover only the ordinary labor and duties inci­dental to receiving and delivering unitized GOODS on pallets at the Warehouse dock during normal Warehouse hours but do not include loading and unloading of cars, trailers, vehicles or vessels. COMPANY has no duty or responsibility in regard to such unloading or loading, except as pursuant to prior written agreement by COMPANY. Handling charges will be billed with the storage for the first storage period and thereafter as incurred.

(b) Unless otherwise specified, a charge in addition to the regular handling charges will be made for any work performed by COMPANY other than specified in Section 6(a) at rates which are in effect from time to time, a copy of which rates are available upon request. Any receiving, delivering or handling of GOODS outside of normal Warehouse hours shall be subject to an additional charge.

(c) When GOODS are ordered out in quantities less than in which received, COMPANY may make an additional charge for each order or each item of an order.

(d) Delivery by COMPANY of less than all units of any LOT or of less than all the fungible GOODS stored for STORER shall be made without subsequent sorting except by special arrangement and subject to an additional charge.

All technology charged to cover the ordinary labor involved in design, scoping, customizing, or developing integrations or connections are due and payable whether Storage or the Services are implemented or initiated unless otherwise agree to in writing.

(a) Other services rendered in the interest of STORER or the GOODS are chargeable to STORER. Such services may include, but are not limited to, the following: furnishing of special Warehouse space or material, repairing, coopering, sampling, weighing, re-piling, inspecting, compiling stock statements, making collections, furnishing revenue stamps, report­ing or recording marked weights or numbers, handling railroad expense bills, and handling shipments.

(b) All charges, including without limitation, ADVANCES, freight and other disbursements made on behalf of STORER, are due and payable upon the date of invoice. All charges not paid within 30 days from the due date are subject to an interest charge, from the date said charge became due until paid, at the lesser of 1.5% per month or the maximum amount allowed by law.

(c) STORER may, subject to insurance regulations and reasonable limitations, inspect the GOODS when accompanied by an employee of COMPANY whose time is chargeable to STORER.

(d) In the event of damage or threatened damage to the GOODS, STORER shall pay all reasonable and necessary costs of protecting and preserving the GOODS. When the costs of protecting and preserving stored property are attributable to more than one STORER, said costs shall be apportioned among all affected STORERS on a pro rata basis to be deter­mined by COMPANY

(e) COMPANY shall supply dunnage bracing and fastenings where it deems it appropriate on outbound shipments and the cost thereof is chargeable to STORER.

(f) Any additional costs incurred by COMPANY in unloading cars, trucks or other vehicles containing damaged GOODS are charge­able to STORER.

(g) COMPANY shall not be responsible for detention or demurrage charges or delays in loading or unloading unless such detention or demurrage charge or delay was caused solely by COMPANY’s negligence.

(h) A charge in addition to regular storage and handling rates will be made for bonded storage.

(i) COMPANY may assess an additional charge when GOODS, designated for cooler or freezer storage, are received at tempera­tures more than 5 degrees Fahrenheit above the applicable storage room temperature; however, COMPANY shall not be responsible for blast freezing GOODS unless STORER specifically requests such services in writing.

(j) All storage, handling and other services may be subject to minimum charges.

(k) STORER agrees to pay COMPANY all costs and ADVANCES including reasonable attorney’s fees incurred by COMPANY in connection with the storage, handling and/or disposition of the GOODS, including without limitation, such costs, ADVANCES, and/or fees relating to lawsuits (including Bankruptcy proceedings) involving in any way said GOODS and/or STORER’s performance under this agreement. All such costs, ADVANCES, and fees, for purposes of SECTION 14 below, shall constitute “charges present or future with respect to such GOODS”.

(l) All charges are due and payable without any deduction or offset whatsoever.

(a) In lieu of litigation, STORER and COMPANY agree to submit any dispute that arises out of or is in any way connected to this Agreement to binding arbitration administered by Judicial Arbitration and Mediation Service, Inc. and its Streamlined Arbitration Rules and Procedures then in force.  The parties shall be bound by the arbitration decision and a party receiving an award may enter judgement upon the same in any federal or state court of competent jurisdiction in the applicable jurisdiction.  The parties shall conduct arbitration in the county where the Warehouse is located, to the exclusion of other places.

(b) COMPANY shall not be liable for any claim of any type whatsoever including without limitation, any claim for loss or destruction of or damage to GOODS unless such claim is presented, in writing, within a reasonable time, not exceeding the earlier of (1) sixty (60) days after delivery of GOODS to STORER or (2) sixty (60) days after STORER learns or, in the exercise of reasonable care, should have learned of such loss, destruction or damage to the GOODS or the basis for any other claim against COMPANY.

(c) As a condition precedent to making any claim and/or filing any suit, STORER shall provide COMPANY with a rea­sonable opportunity to inspect the GOODS which are the basis of STORER’s claim.

(d) NO ARBITRATION OR OTHER ACTION MAY BE MAINTAINED BY STORER OR OTHERS AGAINST COM­PANY WITH RESPECT TO THE GOODS UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PRO­VIDED IN PARAGRAPH (b) OF THIS SECTION AND UNLESS STORER HAS PROVIDED COMPANY WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AS PROVIDED IN PARAGRAPH (c) OF THIS SECTION AND UNLESS SUCH ARBITRATION OR OTHER ACTION IS COMMENCED WITHIN THE EARLIER OF (1) NINE (9) MONTHS AFTER DELIVERY OF GOODS TO STORER OR (2) STORER LEARNS OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS OR DESTRUCTION OF OR DAMAGE TO THE GOODS OR THE BASIS FOR ANY OTHER CLAIM AGAINST COMPANY.

(e) All matters arising out of or in any way related to this Agreement are governed by and construed in accordance with the internal laws of the State in which the Warehouse is located, without giving effect to any choice or conflict of law provision or rule (whether of such State or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State in which the Warehouse is located.

COMPANY shall have a lien against the GOODS and on the proceeds thereof for all charges for storage, handling, trans­portation (including detention, demurrage and terminal charges), insurance, labor and other charges present or future with respect to the GOODS, ADVANCES or loans by COMPANY in relation to the GOODS and for expenses necessary for preser­vation of the GOODS or reasonably incurred in their sale pursuant to law. COMPANY further claims a lien on the GOODS for all other such charges, ADVANCES and expenses in respect to any other property stored by STORER in any Warehouse owned or operated by COMPANY or its subsidiaries or affiliates wherever located and whenever deposited and without regard to whether said other property is then in storage.

Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, COMPANY reserves the right to (i) use any STORER data to provide Storage or the Services to STORER, to improve existing Storage or Services or create new Services, or for COMPANY’s internal purposes, and (ii) compile and analyze its collective STORER date and to prepare reports, studies, analyses and other work product resulting from such compilation and analysis on an anonymous basis (collectively, the “Data Derivations”).  COMPANY shall have exclusive ownership rights to, and the exclusive right to use such DATA Derivations for any purpose; provided however that COMPANY shall not use STORER’s name in connection with such Data Derivations or otherwise distribute Data Derivations which are identifiable as STORER’s data without obtaining the prior consent of STORER.

COMPANY shall not be liable or responsible to STORER, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from act or circumstances beyond the reasonable control of COMPANY including, without limitation, act of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or act, riot or ether civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraint or delays affecting orders or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.  If COMPANY has been unable to remove/deliver the GOODS due to any reason specified in this Section 18 such GOODS shall be subject to storage charges until such GOODS are actually removed/delivered.