ACCEPTANCE • Sec. 1: (a) This Warehouse Receipt and rate quotation, including accessorial charges, must be accepted within 30 days from the date submitted by Warehouseman, as evidenced by Depositor’s signature on the Warehouse Receipt. In the absence of written acceptance, the act of tendering the Property described in the Warehouse Receipt for storage or other services to be provided by Warehouseman within 30 days from the Warehouse Receipt date shall constitute such acceptance by Depositor. (b) In the event that Property tendered for storage or other services do not conform to the description contained in the Warehouse Receipt, or conforming goads are tendered more than 30 days after the proposal date without prior written acceptance by Depositor as provided in part (a) of this section, Warehouseman may refuse to accept such Property. If Warehouseman accepts such Property, Depositor agrees to such rates and charges as may assessed and invoiced by Warehouseman and to all terms and conditions of the Warehouse Receipt (c) This agreement may be terminated by either party upon 30 days written notice and shall automatically terminate if no storage or other services are performed under this agreement for a period of 180 days. In the event this agreement is terminated after Property is delivered to Warehouseman, Depositor shall promptly, but in no event more than 30 days after notice of termination is delivered, pay all monies due under the Warehouse Receipt and remove the Property from the Warehouse. SHIPPING • Sec. 2: Depositor agrees not to ship Property to Warehouseman as a named consignee. If Property are shipped to Warehouseman as named consignee, Depositor agrees to notify the carrier of the Property in writing prior to such shipment that Warehouseman named as consignee is a solely a Warehouseman and has no actual or beneficial title or ownership interest in the shipped Property, and Depositor further agrees to indemnify and hold harmless Warehouseman from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention, or any other charges of any nature assessed in connection with the shipment of such Property, with a copy of such notice to be sent to Warehouseman. Depositor further agrees that if it fails to notify carrier as required by this preceding sentence, Warehouseman shall have the right to refuse such Property and shall not be liable or responsible for any loss, injury, or damage of any nature to, or related to, such Property. All trucks inbound and outbound must be CSA 2010, or its equivalent or successor standard, approved. TENDER FOR STORAGE Sec. 3: All Property for storage shall be delivered at the Warehouse properly marked and packaged for handing. Depositor shall furnish at or prior to delivery of the Property a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. Any invoice discrepancies must be reported in writing within 30 days of date of invoice. STORAGE PERIOD AND CHARGES • Sec. 4: (a) All charges for storage are per package or other agreed unit per month as set forth in the Warehouse Receipt. (b) Storage charges begin to accrue on the date that Warehouseman accepts care, custody and-control of the Property, regardless of the unloading date or date of issue of the Warehouse Receipt (c) Except as provided in paragraph (d) a full month’s storage charge will apply to all Property 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 (o) When mutually agreed by the Warehouseman and the Depositor, a storage month shall extend from a date in one calendar month to, but not including the same day of the next and, all succeeding months. (f) Packing, crating, loading, and unloading charges shall be separate from and distinct from storage charges. TRANSFER, TERMINATION OF STORAGE, REMOVAL OF PROPERTY – Sec. 5: (a) Instructions to transfer Property on the books of the Warehouseman are not effective until delivered to and accepted by Warehouseman, and all charges up to the time transfer is made are chargeable to and payable by the Depositor. If a transfer involves re-handling the Property, such re-handling will be subject to a charge. When Property in storage is transferred from one party to another through the issuance of a new Warehouse Receipt, a new storage date is established on the date of transfer. (b) Warehouseman reserves the right to move, at Warehouseman’s expense, 14 days after notice is sent by certified mail or registered mail to Depositor, or to the last known holder of if this is a negotiable Warehouse receipt, any Property in storage from the Warehouse in which they may be stored to any other of Warehouseman’s Warehouses. Warehouseman will store the Property at and may without notice move the Property within and between, any one or more of the Warehouse buildings which comprise the Warehouse complex identified on the Warehouse Receipt. (c) Warehouseman may, upon written notice to Depositor and any other person known by the Warehouseman to claim an interest in the Property, require the removal of any Property by the end of the next succeeding storage month. Such notice shall be given to the last known place of business or abode of the person to be notified. If Property is not removed before the end of the next succeeding storage month, Warehouseman may sell said Property, in accordance with applicable law. (d) If Warehouseman in good faith believes that the Property are about to deteriorate or decline in value to less than the amount of the storage and other charges owed by Depositor before the end of the succeeding storage month, Warehouseman may specify in the notification any reasonable shorter time for removal of the Property and in case the Property are not removed. may sell them at a public sale to be held one week after a single advertisement or posting as provided by law. (o) If as a result of a quality or condition of the Property of which Warehouseman had no notice at the time of delivery of the Property are a hazard to other property or to the Warehouse or to persons, Warehouseman may sell the Property at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the Property. If Warehouseman after a reasonable effort is unable to sell the Property Warehouseman may dispose of the Property in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the Property, Warehouseman may remove the Property from the Warehouse and shall incur no liability by reason of such removal. HANDLING • Sec. 6: (a) A handling charge will be assessed and collected for all labor involved in receiving and unloading Property at Warehouse door, placing Property in storage, crating and loading Property at the time they leave the Warehouse. Handling charges are due and payable on receipt of Property and at the time Property are removed from the Warehouse. (b) Unless otherwise agreed to by the parties, all labor for all crating, unloading, and loading of Property will be subject to a charge. All additional expenses incurred by Warehouseman in receiving and handling damaged Property, and in unloading from or loading into cars or other vehicles not the Warehouse door will be charged to the Depositor. (c) Labor and materials used in loading rail cars or vehicles will be charged to Depositor. (d) When Property are ordered out in quantities less than received, Warehouseman may assess an additional charge for each order or each item of an order. (e) The 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 ether containers for outbound shipment unless the demurrage, detention, or delay is solely caused by any wrongful act or omission of Warehouseman, subject to the liability limitations set forth herein. DELIVERY REQUIREMENTS · Sec. 7: (a) No Property shall be delivered or transferred except upon receipt by Warehouseman of complete written instructions. Written instructions shall include. but are not limited to, both “hard-copy” communication and electronic or facsimile transmissions or similar communication means. Warehouseman shall have no liability to depositor when relying on the information contained in the communication as received. However, when no negotiable Warehouse receipt is outstanding, Property may be delivered upon instruction by telephone in accordance with a prior written authorization, but Warehouseman shall not be responsible for loss or damage occasioned thereby. (b) When a negotiable Warehouse receipt has been issued no Property covered by that receipt shall be delivered, or transferred on the books of Warehouseman, unless the receipt properly endorsed, is surrendered for cancelation, or for endorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of Property may be made only on the order of a court of competent jurisdiction and the posting of security approved by the court as provided by law. (c) When Property are ordered out, a reasonable time shall be given Warehouseman to carry out instructions. And if Warehouseman is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil unrest, or any reason beyond the Warehouseman’s control or because of loss or destruction of Property for which Warehouseman is not liable, or because of any other excuse provided by law, Warehouseman shall not be liable for failure to carry out such instructions and Property 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 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 Property; and handling transit billing will be subject to a charge. (c) Dunnage, bracing, packing materials or other special supplies may be provided for Depositor at a charge in addition to the Warehouseman’s cost (d) By prior agreement between Warehouseman and Depositor. Property may be received or delivered during other than usual business hours, subject to a charge to be agreed upon by the parties. (e) Communication expenses including postage, teletype, telegram, or telephone will be charged to Depositor if such involve more than normal inventory reporting or if, at the request of 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) When a Warehouse receipt covers Property in U.S. Customs bond, such Warehouse receipt shall expire upon the termination of the storage period fixed by law.
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 an assortment, a minimum charge per mark, brand or variety will be made. (b) A minimum monthly charge to one account for storage and/or handing will be made. This charge will apply also to each account when one customer has several accounts, each requiring separate records and billing. LIMITATION OF LIABILITY AND DAMAGES • Sec. 11: (a) WAREHOUSEMAN SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY, HOWEVER CAUSED, TO PROPERTY STORED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY WAREHOUSEMAN TO EXERCISE SUCH CARE AS A REASONABLY PRUDENT WAREHOUSEMAN WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND WAREHOUSEMAN IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. (b) WAREHOUSEMAN HAS NO OBLIGATION OR DUTY TO INSURE ANY STORED PROPERTY AGAINST LOSS OR INJURY HOWEVER CAUSED. (C) THE PARTIES HEREBY AGREE THAT IN ANY INSTANCE OF LOSS OR DAMAGE TO ANY STORED PROPERTY FOR WHICH WAREHOUSEMAN MAY BE HELD LIABLE, DEPOSITOR’S DAMAGES SHALL BE LIMITED TO THE COST OF REPAIR, OR IF A TOTAL LOSS, THE FAIR MARKET VALUE OF THE DAMAGED PROPERTY AT THE TIME OF THE LOSS, AND UNDER NO CIRCUMSTANCES SHALL WAREHOUSEMAN BE LIABLE TO DEPOSITOR FOR ANY ADDITIONAL, CONSEQUENTIAL, LOSS OF USE, EXEMPLARY OR PUNITIVE, OR OTHER DAMAGES ARISING FROM ANY SUCH DAMAGE OR LOSS. (d) WHERE LOSS OR INJURY OCCURS TO STORED PROPERTY FOR WHICH WAREHOUSEMAN IS NOT LIABLE, THE DEPOSITOR SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH PROPERTY AND THE COST OF ANY ENVIRONMENTAL CLEAN-UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THE PROPERTY. NOTICE OF CLAIM AND FILING OF SUIT – Sec. 12: (a) Claims by depositor and any other persons claiming by, through or under Depositor must be presented in writing to Warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the Property by the Warehouseman or 60 days after Depositor or the last known holder of a negotiable Warehouse receipt is notified by Warehouseman that loss or damage to part or all of the Property has occurred, whichever time is shorter: (b) No action may be maintained by Depositor or others claiming by, through or under Depositor against Warehouseman for loss or damage to the Property stored unless timely written claim has been given as provided in part (a) of this Section 12. (c) When Property have not been delivered, notice may be delivered of known loss or injury to the Property by registered or certified letter to Depositor or to the last known holder of a negotiable Warehouse receipt. Time limitations for presentation of claims in writing and maintaining of action after notice begin on the date of mailing of such notice by Warehouseman. LIABILITY FOR MISSHIPMENT • Sec. 13: If Warehouseman negligently misships Property, Warehouseman shall pay the reasonable transportation charges incurred to return the misshipped Property to the Warehouse. If the consignee fails to return the Property, Warehouseman’s maximum liability shall be as specified in Section 11. MYSTERIOUS DISAPPEARANCE • Sec. 14: Warehouseman shall not be liable for loss of Property due to inventory shortage or unexplained or mysterious disappearance of Property unless Depositor establishes such loss occurred because of Warehouseman’s failure to exercise the care required of a Warehouseman 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 Warehouseman converted the Property to the Warehouseman’s own use. RIGHT TO STORE PROPERTY • Sec. 15: Depositor represents and warrants that Depositor is lawfully possessed of the Property and has the right and authority to store them with Warehouseman. Depositor agrees to indemnify and hold harmless Warehouseman from all loss, cost and expense (including reasonable attorney’s fees and litigation expenses) which Warehouseman pays or incurs as a result of any dispute or litigation, whether instituted by Warehouseman of others, respecting Depositor’s right, title or interest in the Property. Any such indemnified costs or expenses shall constitute monies due for storage and be subject to Warehouseman’s lien in the Warehoused Property as provided by law. ACCURATE INFORMATION • Sec. 16: Depositor will provide Warehouseman will information concerning the stored Property, which is accurate, complete, and sufficient to allow Warehouseman to comply with all laws and regulations concerning the storage, handling, and transporting of the stored goods. Depositor shall indemnify and hold Warehouseman harmless from all loss, costs, penalties, and expense (including reasonable attorneys’ fees and litigation expenses) which Warehouseman pays or incurs due to Depositor failing to fully discharge this obligation. SEVERABILITY and WAIVER • Sec. 17: (a) If any provision of the Warehouse Receipt or these Terms and Conditions, 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 agreement shall not be affected thereby but shall remain in full force and effect. (b) Warehouseman’s failure to require strict compliance with any provision of the Warehouse Receipt, or these Terms and Conditions, or any portion thereof shall not constitute a waiver of or give grounds for a claim of estoppel with regard to the same or any different provision hereunder. (c) The provisions of this Warehouse Receipt and these Terms and Conditions shall be binding upon Depositor’s heirs, executors, successors, and assigns. (d) The Warehouse Receipt and these Terms and Conditions contain the sole agreement governing Property stored by Depositor with Warehouseman; and cannot be modified except by a writing signed by Warehouseman. INSURANCE AND INDEMNIFICATION – Sec. 18: Depositor shall maintain insurance in an amount sufficient to cover all casualty loss to the Property deposited by Depositor with Warehouseman. Depositor further agrees to indemnify and hold harmless Warehouseman from any losses or damage to any property, real or personal, of Warehouseman or any third party caused in whole or in part by any condition or defect of any Property of Depositor stored pursuant to this agreement. GOVERNING LAW, JURISDICTION AND VENUE – Sec. 19: Depositor and Warehouseman hereby agree that the Warehouse Receipt and these Terms and Conditions and any dispute arising hereunder shall be governed and construed under the 1aws of the state of Texas, without regard to its choice of law provisions. Each party hereto hereby consents to the personal jurisdiction of the state of Texas with respect to any dispute arising directly or indirectly under this agreement. Each party hereto further agrees to the exclusive venue of any court of competent jurisdiction sitting in Harris County, Texas for any action arising directly or indirectly from the Warehouse Receipt and these Terms and Conditions. WAIVER OF TRIAL BY JURY-Sec. 20. EACH PARTY HEREBY EXPRESSLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY AND ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY UNDER THIS AGREEMENT. ATTORNEY’S FEES – Sec. 21: In any action arising directly or indirectly under this agreement, the prevailing party shall be entitled to recover their reasonable attorney’s fees and litigation expenses incurred in the prosecution and/or defense of any such claim. PROPERTY TAXES – Sec. 22: Depositor hereby acknowledges that it is and shall remain solely liable for any and all ad valorem, use, sales, franchise and other property taxes assessed against any Property stored pursuant to the Warehouse Receipt and these Terms and Conditions and shall indemnify and hold Warehouseman harmless from any and all claims for taxes owing or assessed against any such Property. Where required by law, Depositor shall timely and properly submit renditions of the Property stored to the proper taxing authorities. FTZ SUBZONE STORAGE Sec. 23: If all or any of the Property stored pursuant to this agreement are stored in a Foreign Trade Zone subzone granted to Warehouseman, be advised that Warehouseman has entered into a Payment in Lieu of Taxes (PILOT) agreement with various local taxing authorities whereby Warehouseman has agreed to reimburse said taxing authorities for any ad valorem or other property taxes which a depositor of Warehouseman has avoided by asserting the FTZ subzone status as an exemption from the payment of said taxes. Accordingly, in the event that Depositor asserts the FTZ subzone status as an exemption from the payment of any property taxes, including ad valorem taxes, and Warehouseman is assessed PILOT payments with regard to those avoided taxes, said PILOT charges, assessments or payments shall constitute additional storage charges owed by Depositor to Warehouseman, and shall be paid immediately upon demand. Depositor shall promptly inform Warehouseman if Depositor has asserted the FTZ subzone status as an exemption to the payment of any property taxes. INDEMNIFICATION – Sec. 24: In addition to, and without in any way waiving or diminishing any of the specific indemnifications set forth herein, Depositor hereby agrees to indemnify and hold harmless Warehouseman from any all claims, demands, causes of action and lawsuits arising directly or indirectly from Depositor’s breach, in whole or in part, of the Warehouse Receipt and these Terms and Conditions, including without limitation, actual, incidental, consequential, additional, punitive or exemplary damages, equitable relief, attorney’s fees and costs of defense, including without limitation expert and investigatory fees. Furthermore, Warehouseman hereby agrees to indemnify and hold harmless Depositor from any all claims, demands, causes of action and lawsuits arising directly or indirectly from Warehouseman’s breach, in whole or in part, of the Warehouse Receipt and these Terms and Conditions, including without limitation, actual, incidental, consequential, additional, punitive or exemplary damages, equitable relief, attorney’s fees and costs of defense, including without limitation expert and investigatory fees.
