Terms & Conditions for Warehouse Services

The entire agreement between Warehousing Etc, Inc. (“Warehouseman”) and the customer identified on the Quote (“Customer”) consists of: (i) the terms on the Quote and any addenda thereto, (ii) these Terms and Conditions of Warehouse Services, and (iii) any additional terms and conditions mutually agreed in writing by Warehouseman and Customer (i) through (iii) collectively, the “Agreement”). In the event of a conflict, the terms on the Quote and any addenda thereto shall supersede these Terms and Conditions of Warehouse Services. Any terms and conditions proposed by Customer which are additional to or inconsistent with the terms and conditions of this Agreement shall be void. 

“Goods” means any property, equipment, materials, or freight of whatever description to be handled by Warehouseman on behalf of Customer hereunder. 

“Facility” means Warehouseman’s warehouse facility or facilities, collectively, as set forth in the Quote. 

All capitalized terms used, but not defined herein shall have the meanings set forth in the Quote. 

Section 1 Acceptance 

1. From time to time, as its business needs require, Customer shall tender its Goods to Warehouseman for warehouse services at Warehouseman’s Facility. Warehouseman shall accept the Goods tendered by Customer to the extent that space is available at the Facility and provide storage and related services, as provided hereunder. 

2. In the event that Goods tendered for warehouse services do not conform in material respect to the description provided in advance by Customer, then Warehouseman shall have the option, (1) to reject such Goods, in which case Customer shall bear all cost, expense, and liability from such rejection, or (2) to accept the Goods provided that Customer shall be liable for and shall pay the rates and charges applicable to the Goods properly described. 

3. This Agreement may be terminated by either Party in its sole discretion upon sixty (60) days’ advance written notice, and such termination shall be without liability other than any obligations of either Party that existed prior to the notice of termination. Upon such termination, the Parties shall cooperate and act in good faith to ensure the prompt return of Goods to Customer and the prompt payment of all sums due to Warehouseman. 

Section 2 Shipping 

1. Customer shall not ship Goods to Warehouseman as the named consignee. Rather, Customer shall ship Goods to the Facility in Customer’s own name in care of Warehouseman. 

2. If, in violation of the foregoing requirement, Goods are shipped to Warehouseman as named consignee, then Customer shall provide Warehouseman with documentation stating that Warehouse was named in error as Consignee, and shall notify its carrier that Warehouseman has no beneficial interest in, or title to the Goods. Whether Warehouseman accepts or refuses Goods shipped in violation of this Section 2, Customer further agrees that it shall indemnify, defend, and hold Warehouseman harmless from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention, or similar charging in connection with Goods so shipped. Warehouseman shall have the right to reject any goods shipped to Warehouseman as consignee and shall have no liability for any loss, injury, or damage of any nature to, or related to, such goods. 

Section 3 Tender for Warehouse Services 

Customer agrees that all Goods tendered for warehouse services shall be delivered at the Facility properly marked and packaged for handling and storage by Warehouseman. Customer shall furnish at or prior to delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. 

Section 4 Storage Period and Charges 

1. The rates and charges applicable to warehouse storage, handling, and other services provided by Warehouseman under this Agreement shall be those set forth in the Quote. Customer agrees that all charges for storage shall be per pallet per month, or other agreed unit per period, as set forth in the Quote. 

2. Customer agrees that Warehouseman may charge a minimum handling charge per lot per Facility and a minimum storage charge per lot per month per Facility, which shall be those set forth in the Quote. These minimum charges will apply also to each account when Customer has several accounts, each requiring separate records and billing. When a warehouse receipt covers more than one lot or when a lot is in assortment, a minimum charge per mark, brand, or variety may be assessed as set forth in the Quote. 

3. Payment terms shall be determined by Warehouseman, at its sole discretion based upon scope of work and creditworthiness. Notwithstanding anything to the contrary herein, Customer must pay all charges related to its final/last remaining inventory in advance, prior to release by Warehouseman. Warehouseman shall have no obligation to release any final/last inventory until said charges are paid by Customer. 

4. Storage charges become applicable upon the date that Warehouseman accepts care, custody and control of the Goods. A full month (or period) of handling and storage charges are due and payable by Customer on the first day of storage for the initial month (or period) and thereafter on the first day of the next calendar month (or period). Customer is responsible for any tax imposed in connection with its Goods by any taxing body having jurisdiction over the Facility, including but not limited to, personal property tax. 

5. Warehouseman shall have the right to assess interest charges of 12% (but never in excess of the maximum legal rate) per month on any balance due to Warehouseman, which remains unpaid by Customer. Customer agrees that Warehouseman shall have the right to any warehouseman’s lien available at law, howsoever arising over the Goods, if Customer fails to maintain and uphold its covenants under this Agreement or any other agreement or account between Customer and Warehouseman, including, but not limited to, timely payment for services and storage rendered. 

Section 5 Term 

This Agreement shall be for a term of one (1) year, commencing on the date set forth in the Quote, “Effective Date”, unless sooner terminated by either Party in accordance with Section 1(3). If this Agreement has not been so terminated, then it shall automatically renew for successive one (1) year terms. 

Section 6 Transfer, Termination of Storage, Removal of Goods 

1. Instructions to transfer Goods on the books of Warehouseman are not effective until delivered to Warehouseman, and all charges up to the time transfer is made in accordance with such instructions are chargeable to Customer. If a transfer requires re-handling of the Goods by Warehouseman, then Warehouseman may assess a charge for this service in accordance with the Quote. 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. Warehouseman shall have the right to assess an administrative charge for processing and issuing the new warehouse receipt in accordance with the fee set forth in Quote. Warehouseman shall have the right to move Customer’s Goods from the Facility to any other Warehouseman’s warehouses, after providing not less than fourteen (14) days’ advance written notice to Customer of such move if relocation of cargo is necessary to protect the integrity of the Good or otherwise protect the Customer’s vested interest therein. If Customer objects to the proposed move within the 14-day period and elects to take delivery of the Goods in lieu of such movement, then Warehouseman shall not assess storage charges for the current storage month. Customer shall expeditiously arrange transportation to take delivery of the Goods and bear all related costs and expenses. Warehouseman may without notice to Customer move the Goods within and between the buildings which comprise the Facility, provided that Warehouseman shall take due care to protect the Goods and shall reimburse Customer for any damage to the Goods caused by the negligence or intentional misconduct of Warehouseman, within the limits of liability outlined in Section 10(1). 

2. Warehouseman may, upon written notice to Customer or any other person known by Warehouseman to claim an interest in the Goods, require the removal of the Goods by the end of the next succeeding month (the end of the month following the month in which notice is given). If Customer has not removed the Goods by the end of the next succeeding month as directed, then Warehouseman shall have the right to dispose of the Goods by public or private sale to recover any unpaid balance owed by Customer to Warehouseman. Any remaining proceeds from such sale shall be remitted to Customer. 

3. If Warehouseman reasonable believes that the Goods have become, or may become, an immediate hazard to other property, to the Facility, or to any person, then Warehouseman may immediately dispose of the Goods and, in such instance, Warehouseman shall have no duty to provide advance notice to Customer or any other person believed to have an interest in the Goods; provided however, that Warehouseman shall use commercially reasonable efforts to provide advance notice to Customer in writing or by telephone. Warehouseman shall prepare a written record of the circumstances giving rise to the disposal, including a description of the hazard, or potential hazard, and the cause (if known). Customer shall bear the costs and expenses of disposal, and Warehouseman shall not bear any liability of any kind arising from its disposal of the Goods under such circumstances, unless Warehouseman’s decision was grossly negligent or made in bad faith. 

Section 7 Handling 

1. Warehouseman’s handling charge covers its ordinary labor involved in receiving the Goods at the warehouse door, placing the Goods in storage, and returning the Goods to the warehouse door. All handling charges are due and payable on Warehouseman’s receipt of the Goods or shipping of the Goods. 

2. Unless otherwise agreed, Warehouseman’s supply of labor and/or materials for unloading and loading Customer’s Goods is not including in handling, and shall be subject to additional charge(s) as set forth in the Quote. If Warehouseman incurs costs or expenses because the Goods arrive at the Facility in damaged or loose condition, then Warehouseman shall have the right to assess additional charges as set forth in the Quote. Warehouseman shall also have the right to assess additional charges for unloading or loading the Goods into cars or other vehicles not at the Facility door as set forth in the Quote. 

3. Warehouseman 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 Warehouseman has failed to exercise reasonable care. 

Section 8 Tender for Storage and Warehouse Receipts 

All stored Goods shall at all times be and remain the exclusive property of Customer. Warehouseman shall make no representation to others that Warehouseman has any ownership rights in the stored Goods. 

If requested by Customer, Warehouseman shall furnish an electronic warehouse receipt to Customer for each delivery of Goods to the Facility, within a reasonable time. The warehouse receipt shall state the product SKU, count, and date of receipt of the Goods upon Delivery. This Agreement shall govern and prevail over each warehouse receipt, and all receipts shall be subject to this Agreement. 

Section 9 Extra Services (Special Services) 

1. Warehouse labor required for special services other than agreed to handling and storage will be charged to Customer in accordance with the Quote. 

2. Special services requested by Customer 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 charges as set forth in the Quote. 

3. Warehouseman may furnish dunnage, bracing, packing materials, or other special supplies, upon the request of Customer at a charge in addition to Warehouseman’s cost. 

4. By prior arrangement, the Goods may be received or delivered during other than usual business hours, subject to a charge as set forth in the Quote. 

5. Communication expense, including postage, teletype, telegram, email, or telephone, will be charged to Customer if such concern more than normal inventory reporting or if, at the request of Customer, communication is made by other than regular United States Mail. 

Section 10 Insurance, Liability and Limitation of Damages 

1. Warehouseman shall not be liable for any loss, damage or injury to the Goods however caused except to the extent: i) such loss, damage or injury results from the negligent acts or omissions of Warehouseman; or ii) the original packaging of any damaged Goods were altered between the time the Goods were tendered to the Warehouseman and the time they were tendered in return to Customer or evidenced exterior physical damage that was not recorded by Warehouseman and communicated to Customer upon tendering of the Goods to Warehouse at the Facility. In the case of ii) above, Warehouse will only be liable for loss or damage to the Good where a) the Customer identified the altered or damaged packaging prior to loading of the Goods onto Customer’s transport and (b) the Goods were unpackaged and inspected and the loss or damage recorded prior to loading onto Customer’s transport. Notwithstanding anything to the contrary contained in the paragraph 10(1), Warehouseman shall in no event be liable for any loss, damage or injury to the Goods not caused by the negligent acts or omissions of Warehouseman, such as, but not limited to, fire, theft, and force majeure events. In no event shall Warehouse be liable for more than $0.10 per lb. for loss, damage or injury to the Goods, and IN NO EVENT SHALL ANY SUCH LIABILITY EXCEED ONE THOUSAND DOLLARS ($1,000.00) PER OCCURENCE. 

2. Customer represents and warrants that it maintains first party property and casualty insurance coverage on the Goods, or accepts 100% risk by means of self-insurance, and that Customer shall maintain such insurance at all times pertinent to this Agreement, including without limitation, at the time of tender of the Goods to Warehouseman, throughout the time that the Goods are stored at the Facility, and at the time the Goods are transferred out of the Facility. 

3. Customer recognizes and understands that Warehouseman does not and will not maintain first party property and casualty insurance coverage on the Goods at any time, and that any potentially relevant insurance coverage maintained by Warehouseman is as outlined in paragraph 10(1). 

4. Where loss or injury occurs to Goods for which Warehouseman is not responsible, Customer shall be responsible for the cost of removing and disposing of such Goods, including without limitation, the cost of any resulting environmental cleanup and/or site remediation. 

5. Customer expressly agrees that Warehouseman shall not be liable for any special, indirect, profit, loss of good will, lost use, or lost business, arising out of, or in any way connected to, this Agreement. 

Section 11 Indemnity Against Third Party Claims 

1. Customer shall indemnify, defend, and hold Warehouseman harmless and defend him from any and all harm, loss, liability, cost, penalty, fine, injury, and expense (including reasonable attorneys’ fees) (collectively, “Losses”) which arise in connection with (i) Customer’s failure to comply with its obligations under this Agreement, including without limitation any Losses resulting from and connected with the hazardous, toxic, corrosive, dangerous, or harmful nature of the Goods; and (ii) any injury to or death of any persons authorized by Warehouseman to be present at the Facility or damage to property whatsoever (including a third party’s) in relation to storage, handling and transportation of the Goods, to the extent caused by Customer’s negligence or intentional misconduct. It is agreed and understood that damage to property includes without limitation damage to the environment, contamination, and pollution, and/or release into the atmosphere, ground, or water. 

2. Warehouseman shall defend, indemnify and hold Customer harmless from any and against all Losses to the extent resulting from the hazardous, toxic, corrosive or similarly harmful nature of the Goods while stored in the Facility and to the extent such Losses are caused by Warehouseman’s negligence or intentional misconduct, including (i) the injury to or death of any persons authorized by Warehouseman to be present on said property, (ii) damage to property (including third party property), or (iii) environmental liability. 

3. In the event that Customer instructs or otherwise authorizes Warehouseman to ship Goods using a specified third party shipping service, Customer shall be fully responsible directly to that shipping service for all associated charges and, except to the extent resulting from any negligence or intentional misconduct on the part of Warehouseman, shall defend, indemnify and hold Warehouseman harmless from and against any and all past, present or future claims, demands, obligations, actions or causes of action asserted by third parties which arise out of such shipment, including without limitation claims by the shipping service for payment and all other claims for damages, costs, fees, losses of service, compensation, interest or expenses of any nature whatsoever. 

Section 12 Notice of Claim and Filing of Suit 

1. Any claim by Customer for loss, damage, or injury to the Goods must be presented in writing to Warehouseman within thirty (30) days of (i) the date on which the Customer receives written notice of the loss, damage, or injury from Warehouseman, (ii) delivery of the Goods by Warehouseman to Customer, or (iii) the date on which Customer first knew or should have known of the loss, damage, or injury, whichever occurs first. 

2. No civil action or lawsuit may be maintained by Customer against Warehouseman for loss, damage, or injury to the Goods unless a timely written claim has been made as provided in paragraph (1) of this section, and unless such action or lawsuit is commenced within one (1) year of the date of the written claim to Warehouseman. 

Section 13 Liability for Mis-shipment 

If Warehouseman negligently mis-ships Goods, then Warehouseman shall re-process the order at no cost to Customer, except that Warehouseman shall have no liability for costs and expenses arising from expedited transportation for the Goods. If the consignee fails to return the Goods that we mis-shipped, then Warehouseman’s maximum liability for such Goods shall be as set forth in Section 10 above. Furthermore, Warehouseman shall have no liability for damages arising from the consignee’s acceptance or use of the mis-shipped Goods. 

Section 14 Mysterious Disappearance 

Warehouseman shall not be liable for loss of Goods due to unexplained or mysterious disappearance unless Customer establishes that such loss occurred because of Warehouseman’s failure to exercise due care or willful misconduct. Any presumption of conversion imposed by law shall not apply to unexplained or mysterious disappearance, and Customer must establish any claim for conversion by affirmative evidence that Warehouseman converted the Goods to its own use. Any proven claim of conversion shall not void, alter, or negate the limitations on Warehouseman’s liability as set forth in Sections 10 and 12. 

Section 15 Right to Store Goods 

Customer represents and warrants that Customer has lawful possession of the Goods and has legally sufficient right, interest, and authority to store them with Warehouseman. Customer shall indemnify, defend, and hold Warehouseman harmless from any and all harm, liability, loss, cost and expense (including reasonable attorneys’ fees) which arises from or is related to any dispute or litigation, whether instituted by Warehouseman or others, respecting Customer’s possession, right, title, or interest in the Goods. The dollar amount of any harm, liability, loss, cost and expense shall be deemed to be charges in relation to the Goods and subject to Warehouseman’s lien. 

Section 16 Additional Obligations of Customer 

Customer shall provide Warehouseman with information concerning the Goods which is accurate, complete, and sufficient to allow Warehouseman to comply with all laws and regulations concerning the storage, handling, and transportation of the stored Goods, as may be applicable to services undertaken by Warehouseman, including without limitation whether the Goods qualify as “hazardous materials” under the laws and regulations administered by U.S. Department of Transportation (“USDOT”) and the Pipeline and Hazardous Materials Safety Administration (“PHMSA”). Customer agrees and understands that Customer, rather than Warehouseman, shall be considered to be the “offeror” with regard to USDOT/PHMSA regulations. 

Section 17 Severability and Waiver 

1. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be severed, and the remaining provisions of this Agreement shall not be affected thereby but shall continue in full force and effect. 

2. Either Party’s failure to require strict compliance with any provision of this Agreement on any occasion or number of occasions shall not constitute a waiver of its right to require strict compliance with that or any other provision(s) of this Agreement. In order to be effective, any waiver must be in writing and executed by the Parties. 

3. The rights and remedies made available to either Party, hereunder, shall be cumulative, rather than exclusive, and either Party’s exercise of any specific right or remedy shall not limit or waive any other right or remedy available under this Agreement or available at law or in equity. 

Section 18 Warehouseman’s Compliance 

Warehouseman shall have and maintain licenses and permits for its warehouse operations to the extent required under applicable law, and shall have and maintain any and all insurance as may be required by applicable law. Warehouseman will provide Customer with said licenses and permits upon Customer’s request. 

Section 19 Independent Contractor 

The relationship between the Parties under this Agreement is that of an independent contractor. This Agreement and the Parties’ business relationship are not, and shall not be deemed to create any agency, partnership, joint venture, or employer-employee relationship. It is agreed and understood that Warehouseman may, in its sole discretion, provide services to Customer, in whole or in part, by engaging subcontracted service providers. In such event, Warehouseman shall use due care in order to select competent service providers and this Agreement shall remain in effect, as between Warehouseman and Customer. 

Section 20 Notices 

Notices shall be sent by registered mail, return-receipt requested, nationally-recognized express courier service, or e-mail to each Party at the address(es) shown below or to such other addresses as shall have been designated in writing. 

Section 21 Force Majeure 

Each Party shall be relieved of its respective obligations under this Agreement, other than payment obligations, for the duration of any force majeure event, which shall include acts of God, flood, earthquake, hurricane, tornado, riot or civil disturbance, acts of public enemy, acts of terror, war, insurrection, sabotage, labor disturbance, governmental order or decree, breakdown of equipment, inability to procure materials or equipment from usual sources of supply, or similar events beyond the reasonable control of the Party within three (3) days of the onset of such event and again within five (5) days of the end of such event. The initial notice shall describe the force majeure, including its cause and likely duration. 

Section 22 Assignment 

Warehouseman may assign this Agreement to any member of its corporate family in its sole discretion without providing notice to, or obtaining the consent of Customer. Otherwise, either Party may assign this Agreement only upon the advance written consent of the other Party, which consent shall not be unreasonably withheld. 

Section 23 Merger 

This Agreement and the Appendices hereto constitute the entire agreement between the Parties and supersede any other representation, statements, agreements, quotes, and understandings with respect to the subject-matter hereof. This Agreement may not be modified, amended, or altered except by a written instrument duly executed by the authorized representatives of each Party. No bill of lading, tariff, circular, pricing schedule, quote, shipping paper, or similar document shall modify, amend, alter, or augment this Agreement unless incorporated by the Parties via a separate, duly executed written instrument. 

Section 24 Governing Law and Venue 

This Agreement shall be governed by the laws of the State of Florida (without regard to any conflict of law provision). Each Party consents that any legal action or proceeding with respect to any obligations under this agreement may be brought in any state or federal court located in the State of Florida, as Warehouseman in its sole discretion may elect. By the execution of this agreement, Customer submits to and accepts, generally and unconditionally, the non-exclusive jurisdiction of those courts. Customer waives any claim that the State of Florida is not a convenient forum or the proper venue for any such suit, action or proceeding.