HOUSE BILL OF LADING TERMS & CONDITIONS
RECEIVED Without warranty as to condition or content from the shipper, or content from the shipper, or shipper’s the number of containers or other packages or units said by the shipper to contain the goods described in the “Particular Furnished By shipper” to be transported from the port of discharge, or so near thereto as a carrying vessel, or other craft used can get, lie and leave and always in safety and float under all conditions of tide, water and weather, and there to be delivered to consignee or on carrier on payment of all charges due thereon. Carrier makes no representation as to the correctness of the particulars furnished by the shipper. In accepting this bill of lading, the shipper, consignee, holder hereof and the owners of the goods agree, the same as if signed by each of them, that the receipt, custody, carriage, relay, delivery and any transshipping of the goods are subject to the terms appearing on the face and back hereof, which shall govern the relations, whatsoever they may be between shipper, consignee, the owner of the goods and any holder hereof and carriers, its agents, contractors, employees, master and vessel in every contingency occurring and whether Carrier be acting as such or bailee. Carrier shall have the right to slow containers, vans or trailers on deck and without notice as per Clause.
The terms here of shall not be deemed waived by carrier except by written waiver signed by carrier or its duly authorized agent. The word carrier shall include the owner, operator, chartered and master of the vessel and any substitute carrier whether the owner, operator, charterer or master shall be acting as carrier or bailee.
1. CLAUSE PARAMONT. This bill of lading shall have effect subject to all the provisions of the carriage of goods by sea Act of the United States of America, approved April 16, 1936 as if set forth herein. The defenses and limitations of said act shall apply to goods whether carried on or under deck, to carriage of goods between U.S ports, or between non-U.S. ports, before the goods are loaded on and after they are discharged from the vessel, and throughout the entire time the goods are in the custody of carrier, whether acting as carrier, trucker, warehouseman, bailee or stevedore. In no event shall the carrier be liable for consequential, punitive or exemplary damages or any claim for loss of profits. If this bill of lading is issued or the goods are delivered to a locality where there is a force a compulsorily applicable carriage of goods by sea Act, ordinance or statute similar to the international convention for the unification of certain rules relating to bill of lading dated at Brussels, August 25. 1924, then it is subject to such Act, ordinance or statute before the goods are loaded on and after they are discharged from the vessel and throughout the entire time the goods are in the actual custody of carrier whether acting as carrier, trucker, warehouseman, baille or stevedore. Carrier shall be entitled to the full benefit of all rights and immunities, under, and all limitations of or exemptions from liability contained in, any law of the United States or any other place whose law shall be compensatory applicable. Of any term of this bill of lading be repugnant to the carriage of goods by sea Act of the United States or any other law compulsorily applicable, such term only shall be void to that extent but no further. This bill of lading shall be constructed and the rights of the parties hereunder determined according to the laws of the United States.
2. PARTIES COVERED. If or shall be adjudged that any person other than we owner or demise charterer (including the master, time charterer, agents, stevedore, warehouseman, lashers. Truckers, watchmen and other independent contractors)is the carrier or bailee of the goods, or is otherwise liable in contract or in tort, all rights, exemptions and limitations of liability, carrier is acting as agent and truslee for the persons above mentioned.
3. SCOPE OF VOYAGE. The voyage herein contracted for shall include ports in or out the advertised, geographical, usual or ordinary route or order. The vessel may omit the calling at any port or ports whether schedule or not, and may call at the same port more than once; may before or after proceeding toward the port of discharge, make trial trips or tesis, take fuel or stones at any port in or out of the regular course of the voyage, sail with or without pilots, tow and be towed, and save or attempt to save life, vessels in distress or other property and all of the foregoing included in the contract voyage. Carrier shall have the right, without noticed, to substitute or employ a vessel, watercraft, or other means rather than the vessel named herein to perform all or part of the carriage. When the port of destination or discharge is not served by carrier’s containership, carrier may, at any intermediate port break bulk the cargo shipped in containers.
4. RISKS AND LIBERTIES. In any situation which in the judgment of carrier or the master is likely to give rise to risk of seizure, arrest, detention, damage, delay to, or loss of any goods or the vessel, or to make it imprudent for any other reason to receive, keep or load the goods or continue the voyage, or discharge the goods, carrier or the master shall have the right (a) to decline to receive, keep or load the gods or to discharge them at any convenient port or place and to require the shipper or person entitled thereto to take delivery and if he fail to do so, to store them at the risk and expense of the goods; or (b) to discharge the goods into any lighter, craft, depot or other place; or (c) to retain the goods on board until the return trip or until such time as carrier or the master deems advisable; or (d) to substitute another vessel or to transship or forward the goods, or any part thereof, by any means, but always at the risk and expense of the goods. any disposition of the goods pursuant to this clause shall constitute complete performance of this contract by carrier who shall be free of further responsibility. For any and all service rendered as herein provided, carrier shall be entitled to reasonable extra compensation and shall have a lien on the goods. Goods shut out or not loaded on a vessel for any reason can be forwarded on a subsequent vessel or by feederships, lighter, aircraft, trucks, trains or other means in addition to the ocean vessel, or its substitute, to accomplish the carriage herein without liability to the carrier. At no time is carrier to be liable for delay or consequential damage.
5. GOVERNMENT ORDERS. Carrier or the master shall have liberty to comply with any orders, directions, regulations, request or suggestions given by or received from the government of any nation or by any person purporting to act with the authority of such government. Any disposition of the goods pursuant to this clause shall constitute completion of the contract of carriage by carrier, and the goods thereafter shall be solely at their own risk and expense.
6. PACKING OF CONTAINERS- SHIPPER’S GUARRANTY-INDEMITY. Carrier shall not be responsible for the safe or proper stowing of cargo in containers if such containers are packed by the shipper’s agent and no responsibility shall attach to carrier for any loss or damage caused to contents by shifting, overloading, or failure to label or properly chock, lash or pack the goods in the container or within their individual packages. The shipper or shipper’s agent shall properly seal containers loaded by them. The shipper or its agent shall carefully inspect and clean containers if necessary, before packing them. Acceptance and packing of the containers shall be the prima facie evidence that the containers were sound, clean and suitable for use and shall relieve the carrier for any damage to goods resulting from the condition of the container used. “Containers” as used herein include all types of containers for dry. Liquid, and perishable cargo, as well as vans and trailers. The shipper, consignee, holder hereof and owner of the goods, agree to be liable for and shall hold harmless and indemnify carrier for any injury, loss or damage, including fines, penalties, and reasonable attorney’s fees arising from the shipper’s failure to properly describe, label, stow or secure the goods in containers or to clean containers and also for damage or expense caused by the goods to the containers, other property, or for injury or death persons.
7. PERISHABLE GOODS. Goods or foods or a perishable nature will be carried in ordinary containers, vans or trailers and without special protective services unless there is noted on the face of the bill of lading that such perishable goods will be carried in a refrigerated, heated, specially ventilated or otherwise specially equipped container, van or trailer in accordance with protective services and charges offered in carrier’s tariff. The shipper. Consignee, holder hereof and owner of the goods agrees to be responsible for the operation of temperature controlled equipment, including maintenance and repair during all time before containers, vans or trailers are delivered to carrier at the port of loading and after delivery by carriers at the port of discharge. Shipper on their agent to be solely responsible to ensure proper setting of temperature controlled unit. When a loaded container, van or trailer is received, carrier will maintain the air temperature in the container to within a range of plus or minus 5 degree Fahrenheit of the temperature requested by the shipper on the face hereof.
8. LIVE ANIMALS. Live animals, birds and fish are received, kept and carried solely at shipper’s risks of accident, disease or mortality and without warranty or undertaking whatsoever by carrier.
9.STOWAGE ON DECK. Goods stowed in any covered-in space or loaded in a container van or trailer carried on deck shall be deemed to be stowed under deck for all purposes, including General Average and the Carrier of Goods by Sea Act the Hague Rules or other compulsorily applicable legislation. If the goods are shipped on deck not in containers, they will be carried solely at the risk of the goods, and without any liability of the carrier for loss or damage resulting from such carriage.
10. TRANSSHIPMENT. If the goods are destined for a port of destination not served by the carriers serving through routes, then the goods will be transshipped or forwarded at the port of discharge served by carrier’s (‘) vessel (s) or other mode of transport. In such case the carrier, or participating carriers will have no further duty or responsibility whatsoever as carrier, this bill of lading operating only as a document of title thereafter.
11.DELIVERY AND STORAGE. Except as to ports where carrier delivers goods directly to the consignee, delivery shall take place and carrier shall no have further responsibility when the goods are landed upon a safe dock, lighter, or other craft, port of government authorities, terminal operators and warehouses. At ports where carrier delivers goods to consignee, if the consignee does not take delivery as soon as the goods are ready, the goods shall thereafter be at their own risk and expense. Carrier shall have the right, but no the duty, to store containers in the open before loading or after discharge.
12. EXPENSE, FINES. The shipper and consignee shall be liable for, and shall indemnify the carrier and vessel and hold them harmless against, and the carrier shall have a lien on the goods for; all expenses and charges of mending, repairing fumigating, devanning, restowing, storing or reconditioning, and all the expenses incurred for the benefit or protection of the goods, also for a payment, duty, fine or other expenses including but no limited to court costs, expenses, and reasonable attorney’s fees incurred or levied upon carrier or the vessel in connection with the goods because of the shipper’s failure to comply any laws regulations.
13. FREIGHT, LIENS QUANTITY. Freight shall be payable, at carrier’s option, on gross weight, measurement, ton, or a value as set forth in carrier’s tariff. Carrier shall have the right, but not the duty to open packages or containers and, if shipper’s particulars are found to be erroneous, the shipper consignee and the goods shall be liable for the correct freight charge and any expenses incurred in examining, weighting, measuring or valuing the goods. Full freight to the port of discharge named on the face of this document and all advance charges against the goods shall be considered completely earned on receipt of the goods by carrier, even though the vessel or goods are damaged or lost or the voyage is frustrated or abandoned. All sums payable to carrier are due when incurred and shall be paid in full, in United States currency, or at carrier’s options, in its equivalent in the currency of the port of discharge, or as specified in tariffs or conference agreement. The shipper, consignee, holder hereof and owner of the goods shall be jointly and severally liable to carrier for the payment of all freight, demurrage, general average and other charges, including but not limited to courts, expenses and reasonable attorney’s fees incurred in collecting sums due carrier. Payment of ocean freight and charges to a freight forwarder, broker or anyone than the carrier or its authorized agent, shall not be deemed payment to carrier and shall be made at payor’s sole risk. Carrier shall have a lien on the goods, which shall survive delivery, for all charges due and may, without notice, enforce this lien by public or private sale of the goods and other property belonging to the shipper, consignee holder hereof owner of the goods, which may be in carrier’s possession.
14. BOTH TO BLAME COLLISION. If the vessel comes into collision with another ship as a result of the negligence of the other ship and any act, or default of the master, mariner, pilot or the servants of carrier in the navigation or in the management of the vessel, the owner of the goods carried hereunder will indemnify carrier against all loss or liability to the other or non-carrying ship or her owners insofar as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying ship or her owners of said goods and set-off, recouped or recouped or recovered by the other or non carrying ship or her owners as part of their claim the carrying vessel or carrier. The foregoing provisions shall also-apply where the owners, operators or those in change of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision, contact, stranding or other accident.
15. GENERAL AVERAGE. General average shall be adjusted, stated and settled according to York Antwerp Rules 1974, except Rule XXII thereof, by or any amendments thereto, at the place selected by carrier, and as to matters not provided for bye these rules, according to the laws and usage at the port of New York. Average agreement or bond and such additional security as may be required by carrier, must be furnished before delivery. In the event of accident, danger, damage or disaster, before or after commencement of the voyage resulting from any cause whatsoever due to negligence or not, for which or for the consequence of which, carrier is not responsible, by statue, contract or otherwise, the goods, the shipper and the consignee shall contribute with carrier in General Average to the payment of any sacrifices, losses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of goods. If a salvaging is owned or operated by carrier, salvage shall be paid for as full and in the same manner as if the salvaging ship belonged to strangers. Cargo shall pay its contribution to General Average even when such average is the result of fault, neglect or error of the master, pilot or crew. The shippers and consignee’s expressly renounce all code, statutes, laws or regulations which might otherwise apply.
16. FIRE. Carrier shall not be liable for any loss or damage to goods occurring at any time, even thought before loading on or after discharge from the vessel, by reason or by means of my fire whatsoever, unless such fire shall be caused by the actual fault or privity of carrier.
17. VALUATION In the event of loss, damage or delay to or in connection with goods exceeding the actual value the equivalent of $500.00 lawful money of the United States, per package, or in case of goods not shipped in packages, per shipping unit, the value of the goods shall be deemed to be $500.00 per package or unit, unless the nature and higher value of goods have been declared by the shipper herein and extra charges paid as provided in carrier’s tariffs. However, carrier’s liability shall not exceed the invoice value of the goods. The word “package” shall include a container used to ship household goods or freight all kinds shipped under lump sum tariff, a liquid tank of dry bulk container, van or trailer, and cargo shipped on a skid, cradle, pallet or unitized load, group or assemblage. When the U.S Carriage of Goods by Sea Act does not apply of its own force to goods not shipped in packages, the $500.00 limitation shall apply to each shipping or customary freight unit or piece, provided always that any compulsorily applicable limitation shall apply in place of the $500.00 limitation.
18. NOTICE OF CLAIM – TIME FOR SUIT-JURISDICTION. Unless notice of the loss of damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by carrier of the goods as described in the bill of lading. If the loss or damage is not apparent the notice must be giving within three days after delivery. Carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is wrought within one year after delivery of the goods or the date when the goods should have been delivered. The contract evidence by or contained in this bill of lading is governed by the laws of the United States of America and any claim or dispute hereunder in connection herewith shall be determined exclusively but the U.S. District Court for the Southern District of Florida, Miami, Division.
19. SHIPPER’S WARRANTIES. The shipper warrants that he is the owner of and entitled to possession of the goods or has the authority of the owner and all persons entitled to possession of the goods to agree to the terms here of.
20. THROUGH AND BOARD BILLS OF LADING. When used in or endorsed on this bill of lading the words “ON BOARD” shall mean on board the exporting vessel or on board another mode of transportation operated by or on behalf of the originating carrier and enroute to the port of loading aboard the participating carrier’s ship. Copies of said bill of lading from are available from such participating carrier or its agents on request. At all times when goods are in the care, custody or control of a participating land carrier such carrier shall be entitled to all rights, privileges, liens, limitations of an exonerations from liability, optional or discretionary rights, or right of indemnity granted to any carrier hereunder to the full extend permitted to participating carriers under any rules and regulations and laws relating to carriers.
HOUSE AIRWAY BILL TERMS & CONDITIONS
NOTICE CONCERNING CARRIERS LIMITATION OF LIABILITY
If the carriage involves an ultimate destination or stop in a country other than the country other than the country of departure, the Warsaw Convention or the Montreal Convention may be applicable and in most cases limit the liability of the Carrier in respect of loss of, damage or delay to cargo. Depending on the applicable regime and unless a higher value is declared, liability of the Carrier may be limited to 17 Special Drawing Right per kilogram or 250 French gold francs per kilogram converted into national currency under applicable law. Carrier will treat 250 French gold francs to be the conversation equivalent of 17 special Drawing Right unless a greater amount is specified in the Carrier’s conditions of carriage. * This Resolution is in the hands of all IATA Cargo Agents.
CONDITIONS OF CONTRACT
1. In this contract and the Notice appearing hereon: CARRIER includes the air carrier issuing this waybill and all carriers that or undertake to carry the cargo or perform any other services related to such carriage. SPECIA DRAWING RIGHT (SDR) is a special drawing Right as defined by the international Monetary Fund. WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage: the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw 12 October 1929; that Convention as amended at The Hague on 28 September 1955: that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1,2, or 4 (1975) s the case may be.
MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
2.1 Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such carriage is not “International Carriage” as defined by the applicable Conventions.
2.2 to the extent not in conflict whit the foregoing, carriage and other related services performed by each Carrier are Subject to:
2.2.1 applicable laws and government regulations:
2.2.2 provisions contained in the air waybill. Carrier’s conditions of carriage and related rulers, regulations, and timetables (but not the times of departure and arrival stated therein) and applicable tariffs of such Carrier, which are made part hereof and which may be inspected and any airports or other cargo sales offices from which it operates regular services. When carriage is to/from the USA the shipper and the consignee are entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage include, but are not limited to:
220.127.116.11 limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods;
18.104.22.168 claims restrictions, including time periods within which shippers or consignees must file a claim or bring an action against the Carrier for its acts or omissions, or those of agents; 22.214.171.124 rights, if any, of the Carrier to change the terms of the contract;
126.96.36.199 rules about Carrier’s right to refuse to carry;
188.8.131.52 rights of the Carrier and limitations concerning delay or failure to perform service, including schedule, substitution of alternative Carrier or aircraft and rerouting.
3. The agree stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.
4. For carriage to which neither the Warsaw Convention nor the Montreal Convention applies, Carrier’s liability limitation shall not be less than per kilogram monetary limit set out in Carrier’s tariffs or general conditions of damage for cargo lost, damaged or delayed, provided that any such limitation of liability in an amount less than 17 SDR per kilogram will not apply for carriage to or from the United States.
5.1 Except when the Carrier has extended credit to the consignee without the written consent of the shipper, the shipper guarantees payment of all charges for the carriage due in accordance with Carrier’s tariff conditions of carriage and related regulations applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention) government regulations, orders and requirements.
5.2 When no part of the consignment is delivered, a claim with respect to such consignment will be considered even though transportation charges thereon are unpaid.
6.1 For cargo accepted for carriage. The Warsaw Convention and the Montreal Convention permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.
6.2 In carriage to which neither the Warsaw Convention nor the Montreal Convention applies Carrier shall. In accordance with the procedures set forth in its general conditions of carriage and applicable tariffs, permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if so required.
7.1 In cases of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Carrier’s limit of liability shall be only the weight of the package or packages concerned.
7.2 Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S. Transportation Code:
7.2.1 used to determine the charge for carriage of such shipment; and 7.2.2 In cases of loss of, damage or delay to part of a shipment, the shipment weight in 7.2.3 shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
8. Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.
9. Carrier undertakes to complete the carriage with reasonable dispatch, where permitted by applicable laws, tariffs and government regulations. Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interest of the shipper. Carrier authorized by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face here of.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage. In the case if loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made: In the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days form the date of receipt of the cargo; In the case of the delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery. In the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not seen issued, within 120 days from the date of receipt of the cargo for transportation by the Carrier. Such complaint may be made to the Carrier whose air waybill was used or to the first Carrier or to the last Carrier or to the Carrier; which performed the carriage during which the loss, damage or delay took place. Unless a written complain is made within the time limits specified in
10.1 no action may be brought against Carrier. Any rights to damages against Carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived or from date on which the carriage stopped.
11. Shipper shall comply with all applicable laws and government regulations of any country to or from which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to shipper’s failure to comply with this provision.
12. No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.
BILLING TERMS & CONDITIONS
All shipments (defined below) for the customer, which term shall include the export, import, sender, receiver, owner, consignee, consignor, and agent will be handled by Magnum Freight Corp., herein after the company on the following term and conditions.
The term shipment or shipments as used herein shall include but are not limited to the following activities: receipt, warehousing, distribution, custom clearance, trucking, forwarding, and any other services provided on behalf of its Customer and which term shipment shall be liberally and broadly construed in favor of the company.
1. SERVICES BY THIRD PARTIES: The Company assumes no liability as a Carrier and is not to be held responsible for any loss, damage, expense or delay to the goods to be forwarded or imported except as provided in paragraph 10 and subject to the limitations of paragraph 8, below, but undertakes only to use reasonable care in the selection of carrier, truck men, lighter men, forwarders, customs brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling and/or delivery and/or storage or otherwise.
2. LIABILITY LIMITATIONS OF THIRD PARTIES: The Company is authorized on behalf of the Customer to select and engage carriers, truck men, lighter men, forwarders, customs brokers, agents, warehousemen and others, as required to the transport, store, deal with and deliver the goods, all of whom shall be considered as agents of the Customer, and the goods may be entrusted to such agents subject to all conditions as to limitations of liability for loss, damage, expense or delay. Under no circumstances shall the Company be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when say gods are in custody, possession or control of third parties selected by the Company on behalf of the Customer to forward, enter and clear, transport or tender other services to the Customer with respect to such goods.
3. CHOOSING ROUTES OR AGENTS: Unless express written instructions are received from the Customer, the Company has freedom and discretion in choosing the means, route and procedure to be fallowed in the handling, transportation and delivery of the goods. Advices by the Company to Customer that a particular person or firm has been selected to render services with respected to the goods shall in no event be construed or interpreted to mean that the Company warrants or represents that such person or fir will render such service and the Company shall not be liable for any loss, damage, expense, or delay to the goods for any reason whatsoever in the event a different person or entity provides such services.
4. QUOTATIONS NOT BINDING: Quotation as to fees, rate of duty, freight charges, insurance premiums or others charges given by the Company to the Customer are for informational purpose only and are subject to change at any time without notice and shall not, under any circumstances, be binding upon the Company unless the Company specifically undertakes the handling or transportation of the shipment at a specific rate, as evidenced by a written instrument executed by the Company.
5. DUTY TO ESTABLISH INFORMATION: (a) On an import, at a reasonable time prior to entering of the Goods for U.S. Customs, the customer shall furnish to the Company invoices in proper form and other documents required for entry and, also, such further information as may be sufficient to establish, inter alias, the dutiable value, the classification, the country of origin, the genuiness of the goods and any mark or symbol associated with the goods, the customer’s right to import and/or distribute the merchandise, and the good’s admissibility, pursuant to U.S. laws and regulations. If the Customer fails in a timely manner to furnish such information or the documents, in whole or in part, as may be required to complete U.S. Customs entry or comply with U.S. laws or regulations, or if the information or documents furnished by the customer are inaccurate or incomplete, the Company’s sole obligation shall be to use its best judgment in connection with the shipment and in no instance shall it be charged with knowledge of the true circumstances to which such inaccurate, incomplete or omitted information or documents pertains and shall not be obligated to undertake any further action in connection therewith unless specifically requested to do so by the customer. Where a bond is required by U.S. customs to be given for the production of any document or the performance of any act, the Customer shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by the company on behalf the Customer, and the customer shall indemnity and hold the Company harmless for any obligations arising out or in connection with said bonds or for any consequences of any breach of the terms of the bond.
(b) on an export, at a reasonable time prior to the exportation of the shipment, the customer shall furnish to the Company the commercial invoice in proper form and number, a proper consular declaration, weight, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods. (c) On an export or import, the Company shall not in any way be responsible or liable for increased duties, penalties, fines or expenses unless caused by the gross negligence or other fault of the Company, in which event its liability to the Customer shall be governed and limited by the provisions of paragraphs 8-10 herein. The customer shall be bound by and warrants the accuracy of all invoices, documents and information furnished to the company by the customer or its agent for export, import, entry or other purposes and the customer or its agent for export, import, entry or other purposes, and the Customer agrees to indemnity and hold harmless the company against any increased duty, penalty, fine or expenses including attorney’s fees resulting from
6. DECLARING HIGHER VALUATION: the customer acknowledges that truckers, warehousemen, carriers and other to whom the goods are entrusted ( hereinafter entrustees) generally establish limits on their liability for loss or damage to goods unless a higher value is declared, the entruslees accept such higher value and additional charge is paid to the entrustees in consideration for its acceptance of increased liability with respect to goods. The customers agrees that Company is not responsible for requesting or obtaining such increased limit of liability from any entrustee untill and unless (i) the Company receives specific written instructions from the Customer to pay such higher valuation charge based on the valuation of the goods and (ii) the entrustee accepts such higher declared value. If either one or both of items (i) and (ii) does not incur, the valuation placed by the Customer on the goods shall be considered solely for export or customs purposes and the goods will be delivered to the entrustees subject to the limitations of liability set forth in paragraph 8 thought 10 herein with respect to any claim against the Company and subject to the provisions of paragraph 2 above.
7. INSURANCE: the Company will make reasonable efforts to obtain on behalf of the customer marine, fire, theft and other insurance upon the goods only after specific written instructions have been delivered to the Company by the Customer within a reasonable time prior to shipment from point of origin, setting forth specifically the kind and amount of insurance to be placed. The Company does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy and instructs the Company to obtain insurance such policy, insurance is to be affected with one or more insurance companies or other underwriters to be selected by the Company on the Customer’s behalf. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies or underwriters. Should and insurer dispute its liability for any reason, the Customer shall have recourse against the insurer only and the company shall not be under any responsibility or liability whatsoever, in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to the Company by the customer, or that the shipment was insured under a policy in the name of the company. Insurance premiums and the charge of the Company for arranging the same shall be at the Customer’s expense. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by any insurance, unless the Company received written instructions from the customer. Unless specifically agreed in written, the Company assumes no responsibility to effect insurance on any export or import shipment which does not handle.
8. LIMITATION OF LIABILITY: The customer agrees that the Company shall in no event be liable for any loss, damage, expense or delay of the goods resulting from the negligence or other fault of the Company for any amount in excess of $50.00 USD per shipment (or the invoice value, if less) and any loss or damage for which the Company may be liable shall be adjusted pro rata on the basis of such valuation. The Customer has the option of paying a special compensation to increase the liability of the Company in excess of $50.00 USD per shipment in case of any loss, damage, expense or delay from causes which would make the Company liable, but such option can be exercised only by specific written agreement made with the Company prior o the shipment taking place and the special compensation for the added liability paid in advance.
9. PRESENTING CLAIMS: In no event shall the Company be liable for any act, omission or default by it in connection with an exportation or importation, unless a claim therefore shall be presented to it or at its office within ninety (90) days from the date or exportation or importation in written statement to which sworn proof of claim shall be attached. No suit to recover any claim or demand hereunder shall in any event be maintained against the Company unless instituted six (6) months after presentation of the claim, as above provide. No agent or employee of the Company shall have authority to alter or waive any of the provisions of this clause.
10. LIABILITY OF COMPANY: It is agreed that any claim or demand for loss, damage, expense or delay shall only be against the carriers, truck men, lighter men, forwarders, customs, brokers, agents, warehousemen or others in whose actual custody or control the goods may be at the time of such loss, damage, expense or delay, and that the Company shall no be liable or responsible for any claim or demand from any cause whatsoever, unless in each case the goods were in actual custody or control of the Company and the damages alleged to have been suffered be proven to be caused by negligence or the other fault of the Company, its officers or employees, in which event the limitations of liability set forth in paragraph 8 herein shall apply. The Company shall not in any circumstances be liable for consequential or punitive damages or damages arising from loss of profit and shall not be liable to the Customer unless it is first proven that the Company directly contributed to the act(s) allegedly causing such damages. This provision as always is subject to the limitations of paragraph 8 herein.
11. ADVANCING MONEY: The Company shall not be obliged to incur any expense, guarantee payment or advance any money in connection with the importing, forwarding, transporting, insuring, storing of the goods, unless the same is previously provided to the Company by the Customer on demand. The Company shall be under no obligation to advance freight charges, customs duties or taxes on any shipment, nor shall any advance by the Company be construed as a waiver of the provisions here of.
12. INDEMNIFICATION FOR FREIGHT, DUTIES: In the event that a carrier, or other person or any other governmental agency makes a claim or institutes legal action against the Company for ocean or other freight duties, fines, penalties, liquidated damages or other money due arising from a shipment of goods for the Customer, the Customer agrees to indemnify and hold harmless the Company for any amount the Company may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including attorney’s fees, incurred by the Company in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to the Company to pay all charges or other money due promptly on demand.
13. C.O.D. SHIPMENTS: Good received with Customer’s or other person’s instruction to “Collect on delivery” (C.O.D.) by drafts or otherwise, or to collect on any specified terms by time drafts or otherwise, are accepted by the Company only upon the express understanding that it will exercise reasonable care in the selection of a bank, correspondent, carrier or agent to whom it will send such item for collection, and the Company will not be responsible for any act, omission, default, suspension, insolvency or want of care, negligence, or fault of such bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or during transmission, or while in the course of collection
14. GENERAL LIEN ON ANY PROPERTY: the company shall have a general lien on any and all property (and documents relating thereto) of the customer, in its possessions, custody or control or enroute, for all claims for charges, expenses or advances incurred by the company in connection with any shipments of the customer and if such claim remains unsatisfied for thirty ( 30) days after demand for its payment is made, the company may sell a public auction or private sale, upon ten (10) days written notice, registered mail( R.R.R) to the customer, the goods, wares and/ or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sales to the payment of the amount due to the company . Any surplus from surch sale sall be transmitted to the customer, and the customer shall be liable for any deficiency in the sale.
15. COMPENSATION OF COMPANY: the compensation of the company for its services with and is in addition to the rates and charges of all carriers and other agencies selected by the company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends or other revenue received by the company from carries, issues and others in connection with the shipment. On ocean exports, upon request, the company shall provide a detailed break-out of the components of all charges assessed and true copy of each pertinent document relating of these charges. In any referral for collection or action against the customer for monies due the company, upon recovery by the company, the customer shall pay the expenses of collection and/ or litigation, including reasonable attorney’s fee.
16. NO RESPONSIBILITY FOR GOVERNMENT REQUIREMENTS: it is responsibility of the customer to know and comply with the marking requirements of the U.S customs service, the regulations of the U.S food and drug administration, and all other requirements, including regulations of federal, state and/or local agencies pertaining to the merchandise. The company shall not be responsible for action taken or fine or penalties assessed by any governmental agency against the shipment because of any governmental agency or with a notification issued to the customer by any such agency.
17. INDEMNITY AGAINST LIABILITY ARISING FROM THE IMPORTATION OF MERCHANDISE: customer agrees to indemnify and hold harmless the company from any claims and/ or liability arising from the importation or merchandise which violates any federal state and /or other laws or regulations and further agrees to immediately and hold the company harmless against and all liability, loss, damages, costs, claims and/ or expenses, including but not limited to attorney’s fees, which the company may hereinafter incur, suffer or be required to pay by reason of claims by any governmental agency or private party, the company shall give notice in writing to the customer by mail at its address on file with the company. Upon receipt of such notice, the customer, at its own expense shall defend such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against the company.
18. LOSS, DAMAGE OR EXPENSE DUE TO DELAY: Unless the services to be performed by the Company on behalf of the Customer are delayed by reason of the negligence or other fault of the Company, the Company shall not be responsible for any loss, damage, or expense incurred by the Customer because of such delay. In the event the Company is at fault, as aforesaid, its liability is limited in accordance with provisions of Paragraphs 8-10 above.
19. CONTRUCTION TERMS AND VENUE: The foregoing terms and conditions shall be construed according to laws of the State of Florida. The Cutomer accepts and confirms that this agreement is made in the State of Florida. The Customer expressly agrees that the exclusive jurisdiction for any claim or dispute resides in the Courts of Maimi Dade Country Florida. The Customers further aggress and consents to the exercise of personal jurisdiction by the Miami Dade Country Courts over the Customer, it assigns or subrogees.
STANDARD CONTRACT TERMS AND CONDITIONS FOR WAREHOUSE
DEFINITIONS - Section 1
As used in this Warehouse Receipt or Contract and Rate Quotation (collectively and/or alternatively “Warehouse receipt”) the terms have the following meanings:
(a)Depositor. The person, firm, corporation or other entity for whom the Goods described herein are stored and to whom this Warehouse Receipt is issued and anyone else claiming an interest in the Goods.
(b)Warehouse. The place where the Goods of the Depositor are stored pursuant to an agreement between the Warehouse and the Depositor. Warehouse includes officers, directors, employees and agents of the Warehouse while acting within the scope and course of their employment.
(c)Lot. Unit or units of Goods which are separately identified by the Warehouse.
(d)Advance. All sums due or claimed to be due to Warehouse from Depositor or others relating to the Goods regardless of the source, whether liquidated or not, including but not limited to loans, disbursements, charges made for or on account of Depositor or Goods, necessary for preservation of Goods or reasonably incurred in their sale pursuant to law.
(e)Goods. The personal property and/or any portion thereof which is described herein and/or which Warehouse has agreed to receive and/or store pursuant to this Warehouse Receipt.
ACCEPTANCE - Sec. 2
(a)This contract and rate quotation including accessorial charges endorsed on or attached here to must be accepted within 30 days from the proposal date by signature of Depositor on the reverse side of the contract. 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 such acceptance by Depositor.
(b)In the event that Goods tendered for storage or other services do not conform to the description contained herein, or conforming 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)This contract may be cancelled by either party upon 30 days written notice and is cancelled if no storage or other services are performed under this contract for a period of 180 days.
SHIPPING TO WAREHOUSE - Sec.3
Depositor agrees that all goods shipped to Warehouse shall identify Depositor on the bill of lading/or other contract of carriage as the named consignee in care of Warehouse and shall not identify Warehouse as the consignee if, in violation of this agreement, goods are shipped to Warehouse as named consignee, Depositor agrees to immediately notify carrier in writing copy of such notice to the Warehouse, that Warehouse named as consignee is the “in care of party” only and has no beneficial title or interest in such goods, is not a party to or beneficiary of the transportation contract and is not the shipper/consignee of such goods. Depositor further agrees that, if it fails to notify carrier as required by this Section 3 before delivery to Warehouse, Warehouse shall have the right to refuse such goods and shall not be liable or responsible for any cost, expense, loss, injury, misconsignment, or damage of any nature to, or related to such refused goods. Whether Warehouse accepts or refuses goods shipped in violation of this Section 3, Depositor agrees to indemnify and hold harmless Warehouse from any and 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.
TENDER FOR STORAGE - Sec.4
(a)All goods for storage shall be delivered at the warehouse properly marked and packaged for handling.
(b)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. Otherwise the Goods may be stored in bulk or assorted lots in general storage at the discretion of the warehouse and charges for such storage will be made at the applicable storage rate.
(c)Receipt and delivery of all or any unit of a lot shall be made without subsequent sorting except by special arrangement and subject to a charge.
(d)Warehouse shall store and deliver Goods only in the packages in which they are originally received otherwise agreed to in writing.
(e)Unless Depositor Shall have given, at or prior to delivery of the Goods, written instructions to the contrary, Warehouse in its discretion, may commingle and store in bulk different lots of fungible Goods, whether or not owned by the same Depositor.
(f)Warehouse shall not be responsible for segregating Goods by production code date unless specifically agreed to in writing.
STORAGE PERIOD AND CHARGES - Sec. 5
(a)All charges for storage are per package or other agreed unit per month. (b)Storage charges become applicable upon the date that the 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 months 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 storage 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 storage month.
(d)When mutually agreed 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. (e)When Depositor or Trucking Company mistakenly delivers goods not intended for our warehouse an In & Out Fee will be charged as per current Warehouse fees.
TRANSFER OF TITLE – Sec. 6
(a)Instructions to transfer goods on the books of the Warehouse are not effective until delivered to and accepted by the Warehouse, and all charges up to the time transfer is made are chargeable to the Depositor of record. If a transfer involves, re-handling the goods such will be subject to a charge. When good 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. The warehouse reserves the right not to deliver or transfer Goods to or for the account of others except upon receipt of written instructions properly signed by Depositor.
(b)The Warehouse reserves the right to move, at its expense, 14 days after notice is sent by certified or registered mail to the Depositor of record or to the last known holder of the negotiable warehouse receipt, any goods in storage from the warehouse in which they may be stored to any other affiliated Warehouse, but if such Depositor or holder takes delivery of his goods in lieu of transfer, no storage charge shall be made for the current storage month. Warehouse will store the goods at, and may without notice move the goods within and between, any one of more of more of the warehouse buildings which comprise the warehouse complex identified on the front of this warehouse receipt.
TERMINATION OF STORAGE, REMOVAL OF GOODS - Sec.7
(a)The Warehouse may upon written notice to the Depositor of record and any other person known by the Warehouse to claim an interest in the goods required the removal of any goods 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 goods are not removed before the end of the next succeeding storage month the Warehouse may sell them in accordance with applicable law.
(b)If Warehouse in good faith believes that the goods are about to deteriorate or decline in value to less than the amount of the Warehouse’s lien before the end of the next succeeding storage month, the Warehouse may specify in the notification any reasonable shorter time for removal of the goods and in case the goods are not removed, may sell them at a public sale held one week after a single advertisement or posting as provided by law.
(c)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 properties or to the warehouse or to persons, the Warehouse may sell the goods at public or private sale without advertisement on reasonable notification to all person 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 Warehouse and shall incur no liability by reason of such removal.
HANDLING - Sec. 8
(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, 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 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 Warehouse has failed to exercise reasonable care.
DELIVERY - Sec.9
(a)No goods shall be delivered or transferred except upon receipt by the Warehouse of complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, TWX, E-mail or similar communication, provided Warehouse has no liability when relying on the information contained in the communication as received. However, when no negotiable receipt is outstanding, goods may be delivered upon instruction by telephone in accordance with a prior written authorization, but the Warehouse shall not be responsible for loss or error occasioned thereby.
(b)When a negotiable receipt has been issued no goods covered by that receipt shall be delivered, or transferred on the books of the Warehouse, unless the receipt, properly endorsed, is surrendered for cancellation or for endorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of goods may be made only upon order of a court of competent jurisdiction and the posting of security approved by the court as provided by law. (c)Warehouse shall have a reasonable time to make delivery after Goods are ordered out and shall have a minimum of 10 business days after receipt of delivery order in which to locate any misplaced Goods.
(d)All instruction and requests for delivery of Goods or transfer of title are received subject to satisfaction of all charges, liens and security interests of Warehouse with respect to the Goods whether for accrued charges or advances or otherwise.
(e)when goods are ordered out a reasonable time shall be given the Warehouse to carry out instructions and if he is unable because of Acts of God, War, Public Enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any other reason beyond the warehouse’s control or because of loss or destruction of 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.
(f)If Warehouse has exercised reasonable care and is unable, due to causes beyond its control, to effect delivery before expiration of the current storage period, the Goods will be subject to storage charges for each succeeding storage period.
(g)All instructions and request for the delivery of Goods or transfer of title are received subject to satisfaction all charges, liens and security interest of Warehouse with respect to the goods whether for accrued charges or advances or otherwise.
(h)Warehouse may require as a conditions precedent to delivery a statement from Depositor holding Warehouse harmless from claims of others asserting a superior right to Depositor to possession of the Goods. Nothing herein shall preclude Warehouse from exercising any other remedy available to it under the law to resolve conflicting claims to possession of the Goods. All costs, including attorney’s fees, incurred by Warehouse relating in any way to warehouse’s activities referred to in Section 9(h) shall be charged to depositor and shall, for proposes of Section 15 below, be considered “charges present of future with respect to such Goods” and shall attached as a lien on the Goods.
EXTRA SERVICE (SPECIAL SERVICES) - Sec. 10
(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 stocks 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 provide 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, teletype, telegram, or telephone will 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.
(f)In the event of damage or threatened damage to the Goods. Depositor 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 Depositor, said costs shall be apportioned among all affected Depositors on a pro rated basis to be determined by the Warehouse. (g)Any additional cost incurred by warehouse in unloading cars or trucks containing damaged Goods are chargeable to Depositor.
BONDED STORAGE - Sec.11
(a)A charge in addition to regular rate will be made for merchandise in bond.
(b)Where a Warehouse receipt covers goods in U.S. customs bond, such receipt shall be void upon the termination of the storage period fixed by law.
MINIMUM CHARGES - Sec. 12
(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. 13
(a)THE WAREHOUSE SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY THE WAREHOUSE TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL WAREHOUSE 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 THE WAREHOUSE AGAINST LOSS OR INJURY HOWEVER CAUSED AND THE STORAGE RATES DO NOT INCLUDE INSURANCE ON THE GOODS UNLESS WAREHOUSE HAS AGREED, IN WRITING, TO OBTAIN SUCH INSURANCE FOR THE BENEFIT OF DEPOSITOR.
(c)WAREHOUSE and DEPOSITOR agree that WAREHOUSE’S duty of care referred to in SECTION 13(a) above does not extend to providing a sprinkler system at the warehouse complex or any portion thereof.
(d)Unless specifically agreed to in writing, Warehouse shall not be required to store goods as in humidity controlled environment or be responsible for tempering goods.
(e)IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO GOODS FOR WHICH THE WAREHOUSE IS LEGALLY LIABLE DEPOSITOR DECLARES THAT WAREHOUSES LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO DEPOSITOR OF REPLACING, REPRODUCING THE LOST, DAMAGED, AND/OR DESTROYED GOODS (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND/OR DESTROYED GOODS ON THE DATE DEPOSITOR IS NOTIFIED OF LOSS, DAMAGE AND/OR DESTRUCTION (3) 100 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGE AND/OR DESTROYED GOODS, (4) 50¢ PER POUND FOR SAID LOST DAMAGE, AND /OR DESTROYED GOODS. PROVIDED, HOWEVER THAT WITHIN REASONABLE TIME AFTER RECEIPT OF THIS WAREHOUSE RECEIPT, DEPOSITORY MAY, UPON WRITTEN REQUEST INCREASE WAREHOUSES LIABILITY ON PART OR ALL OF THE GOODS IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION; FURTHER PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE GOODS HAS OCCURRED.
(f)THE WAREHOUSES LIABILITY REFERRED TO IN SECTION 13(E) SHALL BE DEPOSITORS EXCLUSIVE REMEDY AGAINST WAREHOUSE FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF GOODS AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS DEPOSITOR PROVES BY AFFIRMATIVE EVIDENCE THAT WAREHOUSE CONVERTED THE GOODS TO ITS OWN USE. DEPOSITOR WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW. IN NO EVENT SHALL DEPOSITOR BE ENTITLED TO INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.
(g)WHERE LOSS OR INJURY OCCURS TO STORED GOODS, FOR WHICH THE 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 INJURY TO THE GOODS.
(h)DEPOSITOR AGREES THAT IT MAY NOT OFFSET DAMAGES CLAIMS AGAINST AMOUNTS OWED TO WAREHOUSE WITHOUT PRIOR WRITTEN AGREEMENT WITH WAREHOUSE.
NOTICE OF CLAIM AND FILING OF SUIT - Sec-14
a.Claims by the depositor and all others persons must be presented in writing to the warehouse within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouse or 60 days after Depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouse that loss or injury to part or all of the goods has occurred, whichever time is shorter.
b.No action may be maintained by the Depositor or others against the warehouse for loss or injury to the goods stored unless timely written claim has been given as provided in paragraph (a) of this section and unless such action is commenced either within nine months after date of delivery by warehouse or within nine months after depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.
c.When goods have not been delivered notice may be given to known loss or injury to the goods by mailing of a registered or certified letter to the Depositor of record or to the last known holder of a negotiable warehouse receipt. 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.
d.As a condition precedent to making any claim and/or filing any suit, Depositor shall provide warehouse with a reasonable opportunity to inspect the goods which are the basis of depositor’s claim.
Warehouse shall have a lien against the Goods and on the proceeds thereof for all charges for storage, handling, transportation, (including demurrage and terminal charges), insurance, labor and other charges present or future with respect to the Goods. Advances or loans by Warehouse in relation to the goods and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law. Warehouse further claims a lien on the goods for all such charges. Advances and expenses in respect to any other property stored by Depositor in any other warehouse or operated by Warehouse or its subsidiaries wherever located and wherever deposited and without regard to whether or not said other property is still in storage.
LIABILITY FOR CONSEQUENTIAL DAMAGES - Sec.16
Warehouse shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
LIABILITY FOR MISSHIPMENT AND MISLABELING - Sec.17
If Warehouse negligently misships and/or mislabels goods, the Warehouse shall pay the reasonable transportation charges incurred to return the misshipped and/or mislabels goods to the Warehouse. If the consignee fails to return goods, Warehouse’s maximum liability shall be for the goods as specified in Section 13 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. 18
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 the Warehouse’s failure to exercise the care required of Warehouse under Section 13 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. 19
(a) 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 Depositors right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to Warehouse’s lien. (b) Depositor agrees to notify all parties acquiring any interest in the Goods of the terms and conditions of this Warehouse Receipt and to obtain, as a condition of granting such an interest, the agreement of such parties to be bound by the terms and conditions of the Warehouse Receipt. ACCURATE INFORMATION - Sec. 20
Depositor will provide Warehouse with information concerning the stored goods which is accurate, 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.
NOTICES - Sec. 21
All written notices provided herein may be transmitted by any commercially reasonable means of communication and directed to Warehouse at the address on the front hereof and to Depositor at its last known address. Depositor is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five days of transmittal.
SEVERABILITY AND WAVIER - Sec. 22
(a) If any provision of this receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a count of competent jurisdiction, the remaining provisions of this receipt 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 the Warehouse Receipt shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of the Warehouse Receipt.
(c) The provisions of this Warehouse Receipt shall be binding upon the depositor’s heirs, executors, successors and assigns; contain the sole agreement governing goods stored with the Warehouse; and, cannot be modified except by a writing signed by Warehouse or one of Warehouse’s agents.