TERMS AND CONDITIONS OF SERVICE
The following terms and conditions shall apply to any service of any kind, other than Warehouse and Storage Services, provided by FRANKEL LOGISTICS, LLC d/b/a Sir Lancellot Courier & Delivery Services, hereinafter “LOGISTICS PROVIDER” to or on behalf of any customer. By hiring LOGISTICS PROVIDER, customer certifies that it has read and expressly agreed to the application of each and every condition hereunder.
DEFINITIONS
The following definitions are applicable to all terms as used herein and in any shipping documents or paperwork issued by LOGISTICS PROVIDER:
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Carrier – shall refer to LOGISTICS PROVIDER or any other entity to which LOGISTICS PROVIDER outsources carriage services, and who performs such carriage services under its own authority.
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Consignor or Shipper – the entity or individual who tenders cargo to LOGISTICS PROVIDER for transportation.
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Consignee – the entity or individual to whom the Shipper has directed LOGISTICS PROVIDER to deliver the cargo or the entity listed on the bill of lading as consignee.
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"Carrier", "consignor" or "consignee" include the authorized representatives or agents of such "carrier", "consignor" or "consignee".
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Shipment – a unit of cargo tendered to LOGISTICS PROVIDER for transportation by the Shipper under a single receipt, bill of lading or shipping document, or any item or group of items being transported together from the same origin to the same destination.
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Interstate transportation – transportation of cargo from any state to another state, for which federal authority is required, and to which federal law including that to which the Carmack Amendment and/or Interstate Commerce Act might apply.
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Intrastate transportation – transportation of cargo that does not cross any interstate boundary or border, and for which the service provided by Logistic Provider is wholly within one state and/or to which state law applies due to the wholly intrastate nature of the services. The terms of this contract shall apply, and the principals of liability from the Carmack Amendment shall still apply to the extent there are not contradicted thereby.
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Limitation of Liability or Release Value – the maximum liability of Carrier for any Shipment, either measured in a “per pound” or “per shipment” basis. The standard limitation of liability applicable to any shipment hereunder, absent a separate written and signed agreement for greater liability, shall be the lesser of $500 per shipment or the actual wholesale invoice value of the cargo.
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Claim – a written document provided to LOGISTICS PROVIDER identifying the Shipment at issue, asserting liability upon LOGISTICS PROVIDER for loss or damage thereto, and specifying a monetary value of the alleged damage or loss, providing supporting documentation, therefore.
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Concealed Damage – concealed damage is any damage not noted on the delivery receipt by the consignee at the time of delivery. LOGISTICS PROVIDER is NOT liable for concealed damage under any circumstances.
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LOGISTICS PROVIDER does provide warehousing or storage services pursuant to its Warehouse Terms and Conditions. Disposition must be provided for any on-hand shipment within forty-eight (48) hours, or such shipment will be placed into storage in customer’s name and account and according to Warehouseman’s terms. Service charges will apply.
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Accessorial Services – any service other than pickup at a door and deliver to a door. Accessorial services such as interior delivery, stairs, long-carry, overweight items, oversize items, delivery teams, security, white glove service, equipment requirements, storage, crossdocking, and any service other than crosstown delivery by passenger vehicle, are subject to additional charges.
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Undisclosed Accessorial Services – any Accessorial Service not disclosed at the time of an estimate, and which LOGISTICS PROVIDER is requested during the course of transportation or delivery shall be considered an Undisclosed Accessorial Service, which is subject to 120% of the standard Accessorial Service charge.
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RATES AND PAYMENT OF FREIGHT CHARGES
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All rates and/or freight charges for services provided by LOGISTICS PROVIDER shall be as described in these Terms and Conditions and any Rate Addendum agreed to in writing with customer.
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Rates shall be charged as agreed upon in the Rate Addendum attached hereto and incorporated herein. Such Rate Addendum may be updated by LOGISTICS PROVIDER, and notice will be provided to customers and shippers, which shall apply after thirty (30) days, unless expressly rejected in writing by shipper or customer. Any service or Rate not specified in the Rate Addendum shall be treated as a spot quote, and shipper/consignee agree to such spot quote rates by tendering goods subject to a spot quote or for which no specified Service and Rate from the addenda apply.
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Freight charges pursuant to these terms and conditions are due within fifteen (15) business days of delivery of said shipment unless a credit agreement is in place between LOGISTICS PROVIDER and Shipper. In the event of customer’s failure to pay freight charges in full within fifteen (15) days of delivery, customer hereby agrees to pay liquidated damages in the amount of thirty percent (30%) of the original freight charges, in addition to the original freight charges, plus interest at the maximum allowable by law, reasonable attorney’s fees, and all costs of collection whether or not suit is commenced.
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No shipper or consignee shall be entitled to set off any claims for loss, damage or delay against freight charges owed to LOGISTICS PROVIDER, and any pending or denied claims shall not serve to toll or void the LOGISTICS PROVIDER’s collection efforts, loss of discount, or LOGISTICS PROVIDER’s entitlement to fees.
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Nothing herein shall limit the right of the LOGISTICS PROVIDER to require prepayment or guarantee of the charges at the time of shipment or prior to delivery.
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If the description of articles or other information on this bill of lading is found to be incorrect or incomplete, the freight charges must be paid based upon the articles, weights, and counts actually shipped.
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Any and every party, whether principal or agent, shipper or consignee, who ships explosives, illegal goods, contraband, or dangerous goods, shall be liable for and indemnify LOGISTICS PROVIDER against all loss or damage caused by such goods. Such goods may be warehoused at owner's risk and expense or destroyed without compensation.
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If the consignee refuses the shipment tendered for delivery by LOGISTICS PROVIDER or if carrier is unable to deliver the shipment, because of fault or mistake of the consignor or consignee or for any reason not directly attributable to carrier, LOGISTICS PROVIDER's liability shall terminate forty-eight hours after such non-delivery event if no disposition is provided by the customer.
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For any shipment in which LOGISTICS PROVIDER is unable to deliver the cargo, regardless of cause, LOGISTICS PROVIDER will provide notice to the shipper within 24 hours seeking disposition.
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If LOGISTICS PROVIDER does not receive disposition instructions within 48 hours of the time of LOGISTICS PROVIDER’s first attempted notification, LOGISTICS PROVIDER will attempt to issue a second and final confirmed notification. Such notice shall advise, and customer hereby agrees, that when carrier does not receive disposition instructions within 48 hours of that first attempted notification, LOGISTICS PROVIDER may place the cargo into public storage, or any storage location chosen at its sole convenience, under the name of the customer, and with all warehousing charges and liability resting solely with customer. LOGISTICS PROVIDER has no liability for goods for which customer provides not disposition for any period of forty-eight (48) hours after request for disposition.
SCOPE
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LOGISTICS PROVIDER and/or the carrier in possession of any property moving under these Terms and Conditions shall be liable for loss, damage, or delay only as hereinafter provided.
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LOGISTICS PROVIDER shall have no liability for any loss or damage to a shipment or for any delay caused by an Act of God, public enemy, public authority, inherent vice or defect in the cargo, or act or default of the shipper. LOGISTICS PROVIDER or the carrier in possession shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request.
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Unless arranged or agreed upon, in writing, prior to shipment, carrier is not bound to transport a shipment by a particular schedule or in time for a particular market but is responsible to transport with reasonable dispatch. LOGISTICS PROVIDER may forward a shipment via another carrier. The maximum recovery for any delay claim shall be the amount of freight charges paid for that shipment.
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LOGISTICS PROVIDER shall never, under any circumstance, be liable for consequential, special, or economic damages.
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LOGISTICS PROVIDER provides its transportation services by utilizing independent contractors who own and operate their own equipment independently of LOGISTICS PROVIDER’s operation. These contractors will provide professional services meeting the expectations of LOGISTICS PROVIDER’s customers. Should any customer of LOGISTICS PROVIDER be dissatisfied with a particular contractor, customer can request that said contractor no longer be utilized on its account.
CLAIM FILING, CONCEALED DAMAGE, AND CONDITIONS PRECEDENT TO RECOVERY
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As a condition precedent to recover on all shipments for which LOGISTICS PROVIDER’s service is interstate in nature, all claims for loss, damage, and delay shall be handled in accordance with 49 CFR chapter 370, specifically including but not limited to the claim requirements of 49 CFR 370.3. Claims on all such shipments must be made within nine months of the date of delivery or for claims for non-delivery within nine months of the date upon which delivery was reasonably anticipated. Failure to file such claims within nine months and in strict compliance with applicable regulations shall be a waiver of such claims and a complete bar to any recovery.
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As a condition precedent to recovery on all shipments for which LOGISTICS PROVIDER’s service is solely intrastate in nature, any claim for loss, damage, or delay must be submitted in writing to LOGISTICS PROVIDER within seven (7) days of delivery or such date as delivery was anticipated in the case of loss. Such written claim must include an identification of the shipment in question by BOL or load number, a specification as to the precise damage to each item included within the shipment, an assertion of liability on the part of the LOGISTICS PROVIDER, and a demand for a specified amount of monetary damages, with supporting documentation for such a demand including all relevant invoices or repair estimates.
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As a further condition precedent to recovery on all shipments, any damage or shortage must be noted on the delivery receipt. Failure to note shortage or damage on the delivery receipt shall be considered concealed damage. Concealed damage must be reported to LOGISTICS PROVIDER within twenty-four hours of delivery. LOGISTICS PROVIDER will not have any liability for concealed damage not reported within twenty-four hours of delivery. LOGISTICS PROVIDER’s maximum liability in all cases of concealed damage shall not be more than the freight charge for that singular shipment.
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Suits for loss, damage, injury or delay shall be instituted against LOGISTICS PROVIDER not later than two years and one day from the day when written notice is given by the LOGISTICS PROVIDER to the claimant that LOGISTICS PROVIDER has disallowed the claim, or any part or parts of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, LOGISTICS PROVIDER shall have no liability, and such claims will not be paid.
LIMITATIONS OF LIABILITY
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LOGISTICS PROVIDER shall not under any circumstances be held liable for special or consequential damages arising from or related in any way to transportation services to which these terms apply. Special and Consequential damages include any type of damages, monetary or equitable other than physical damage to the cargo being transported.
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LOGISTICS PROVIDER shall have no liability for any loss or damage to a shipment or for any delay caused by an Act of God, public enemy, public authority, a climatological event, inherent vice of defect in the cargo, or any act, omission, or default of the shipper. LOGISTICS PROVIDER or party in possession shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request; or from faulty or impassible highway, or by lack of capacity of a highway, bridge or ferry.
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LOGISTICS PROVIDER shall have no liability for delay claims. As provided in section 3.3, absent a separate written, signed agreement, LOGISTICS PROVIDER has no duty to deliver cargo by a date or time specific, and instead shall proceed with reasonable dispatch. In any event where LOGISTICS PROVIDER is found liable for a claim of delay, LOGISTICS PROVIDER’s liability shall be limited to the total freight charge paid by the shipper for the transportation of that particular delayed shipment.
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LOGISTICS PROVIDER if found liable for loss or damage to any property tendered to it shall have the full benefit of any insurance that may have been affected, upon or on account of said property, so far as this shall not void the polices or the contracts of insurance.
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In any and all matters not prohibited by law, where the shipper fails, refuses, or simply does not declare a value in writing to LOGISTICS PROVIDER prior to tendering the subject shipment, which declaration is received by LOGISTICS PROVIDER, and commensurate rate increase is agreed upon and paid by shipper, the value of any shipment of cargo tendered to LOGISTICS PROVIDER shall be the lesser of $500.00 per shipment, the actual repair or actual cash value of the cargo. Undamaged portions of a set will not be compensated, and only actually damaged or lost items may be claimed. Shipment shall be defined as the cargo included within a single bill of lading or delivery receipt.
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Where shipper does wish to purchase a higher released value, shipper shall request that from LOGISTICS PROVIDER in writing and pay an additional fee of $2.50 per $100 in increase valuation.
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The limitation of liability provided for in this section shall be enforceable regardless of cause of loss, damage or delay, including gross negligence, recklessness or willful and wanton conduct. Nothing short of conversion to LOGISTICS PROVIDER’s own use, for the direct benefit of the corporation itself, shall vitiate this limitation of liability.
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LOGISTICS PROVIDER will not carry a shipment declared to have a value in excess of $10,000.00 under these terms and any standard bill of lading. Any shipment with a value in excess of $10,000.00 must be represented by a separate written agreement whereby the commodity is described in detail and LOGISTICS PROVIDER expressly agrees to such greater value. Such separate written agreement must be executed by duly authorized representatives of each party at least twenty-four hours prior to transportation.
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Under no circumstances will any shipment containing particularly high valued items such as cash, furs, jewelry, coins, negotiable instruments, or items of similar value to weight ratios be accepted pursuant to this bill of lading. Any such shipments must be covered by a separate written agreement executed by both parties. If such a shipment is inadvertently accepted by carrier, or mislabeled by shipper for any reason, LOGISTICS PROVIDER’s liability shall be limited as provided in section 5.4.
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No employee or representative of LOGISTICS PROVIDER is authorized to alter, vary or contradict these terms regarding LOGISTICS PROVIDER’s liability.
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Should any claim in any amount even if in excess of such limits of LOGISTICS PROVIDER’s liability be asserted against LOGISTICS PROVIDER by any third party for any loss or damage to any shipments carried hereunder, shipper agrees to indemnify LOGISTICS PROVIDER and hold it harmless against any damages, expenses, or cost including attorney’s fees, arising out of any such claim regardless of the cause.
INDEMNIFICATION
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It is the sole and non-delegable duty of shipper to provide appropriate packaging, containerization, sealing, palletizing, boxing, or crating of product tendered to LOGISTICS PROVIDER.
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All cargo must be packaged and prepared in a manner so as to withstand the normal rigors of motor carriage and handling.
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Acceptance by LOGISTICS PROVIDER of any package or cargo does not serve as acquiescence or agreement to the fitness of the packaging or packing of said cargo.
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In the event that a failure, flaw, omission, mistake, or negligence of any kind of degree in the packaging of the product tendered by shipper to LOGISTICS PROVIDER, shipper hereby agrees to indemnify and hold harmless LOGISTICS PROVIDER from any and all damage resulting from said insufficient, improper, failing, or negligent packaging, including damage to other commodities transported or stored by LOGISTICS PROVIDER and damage to LOGISTICS PROVIDER’s property or that of any other entity or individual.
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It is shipper’s further duty to ensure that all product is accurately and properly marked, classified, and tendered in accordance with these rules and the normal standards of interstate and intrastate shipping.
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Shipper shall defend, indemnify, and hold harmless, LOGISTICS PROVIDER from any damage, loss, liability, or claims of any kind resulting from the improper or negligent packing, marking, description or classification of any product.
BROKERAGE
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LOGISTICS PROVIDER, at its sole discretion, may act as a broker or co-broker in completing the transportation and delivery services of any customer hereunder.
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LOGISTICS PROVIDER may, at its sole discretion, utilize independent contractors or agents to perform any part of portion of the services contemplated hereunder.
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When acting as a broker, or otherwise substituting carriage, transportation, or related services, LOGISTICS PROVIDER’s liability shall not vary from these terms as in section 5. Any carrier or delivery company providing substitute service hereunder shall have no liability greater than that contemplated by these terms.
INDEPENDENCE OF PARTIES
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This Agreement does not constitute a hiring by either party. It is the parties’ intention that LOGISTICS PROVIDER shall have an independent contractor status and not be an employee for any purposes, including, but not limited to, the application of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the Workers' Compensation Insurance Code, and/or other benefit payments and third party liability claims. LOGISTICS PROVIDER shall retain sole and absolute discretion in the manner and means of carrying out his or her activities and responsibilities under this Agreement. This Agreement shall not be considered or construed to be a partnership or joint venture, and shipper shall not be liable for any obligations incurred by LOGISTICS PROVIDER unless specifically authorized in writing. LOGISTICS PROVIDER shall not act as an agent of the shipper, ostensibly or otherwise, nor bind the shipper in any manner, unless specifically authorized to do so in writing.
FORCE MAJEURE
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Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Parties provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of such inability to perform.
CARMACK LIABILITY
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Unless it is determined otherwise by a court of competent jurisdiction, the liability of LOGISTICS PROVIDER for loss, damage and delay shall be determined in all respects in accordance with 49 U.S.C. §14706, regardless of the interstate or solely intrastate nature of the shipment.
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The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. §370 et seq. to the extent not modified herein.
NO THIRD-PARTY BENEFICIARY:
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Shipper, Consignee, any beneficial owner, and LOGISTICS PROVIDER are the parties to these Terms and Conditions, and the Parties do not intend for any third party to specifically benefit from these Terms and Conditions.
NONWAIVER
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Failure of either party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
ASSIGNMENT
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These Terms and Conditions shall not be assignable by either party, in whole or in part, without the written consent of the other party, which consent shall not be unreasonably withheld.
GOVERNING LAW/ ATTORNEY’S FEES/ ARBITRATION/ WAIVERS
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Without regard to the principles of conflicts of law, these terms shall be construed in accordance with, and any and all disputes arising under or out of transportation services performed by LOGISTICS PROVIDER, shall be governed by federal law where applicable, or otherwise Florida law.
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In the event of a dispute arising out of these Terms and Conditions or between the Parties hereto, exclusive venue shall be in Broward County, Florida.
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By using the services of LOGISTICS PROVIDER, shipper asserts that it is and does conduct business in Broward County, Florida and is subject to the jurisdiction of Broward County Courts.
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Shipper waives any challenge to personal jurisdiction or venue in court’s located within Broward County, Florida.
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Shipper expressly agrees that interstate loss and damage claims are preempted by the Carmack Amendment 49 USC §14706, and that claims as to intrastate shipments are preempted by the Federal Aviation Administration Authorization Act 49 USC §14501(c).
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In any trial between any of the parties hereto, customer agrees to waive their rights to a jury trial and instead have such action tried by a judge.
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Customer agrees that any claim Interested Party may have against LOGISTICS PROVIDER, including past and present employees; directors; and agents, shall be brought individually and Interested Party shall not join such claim with claims of any other person or entity or bring, join or participate in a class action against Company.
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In any lawsuit, dispute or claim between or against any of the parties hereto, including present and former employees, directors, and agents of LOGISTICS PROVIDER, customer agrees to waive their rights, if any, to seek or recover punitive damages.
SEPARABILITY/SEVERABILITY
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If any provision of these terms and conditions is held to be illegal, invalid or unenforceable under the present or future laws effected, such provision shall be fully severable from the remaining provisions, and it shall not affect the validity of the remaining provisions, which provisions shall be given full force and effect as if the illegal, unenforceable, or invalid provision had not been included. In lieu of an illegal, unenforceable, or invalid provision, there shall be substituted a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid and enforceable.
MERGER AND SUPREMACY CLAUSES
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These Terms and Conditions along with the delivery instructions included on a bill of lading or receipt embody the entire understanding between shipper, consignee, and LOGISTICS PROVIDER covering the services to be performed hereunder, and there are no other agreements, understandings, conditions, warranties, or representations, oral or implied with reference to the subject matter hereof.
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In the event of any conflict between these Terms and Conditions and any term or provision in any other document related to or used in the process of arranging or transporting of goods by LOGISTICS PROVIDER, these terms and conditions shall be superior and shall govern to the extent of the conflict.
WAREHOUSE TERMS AND CONDITIONS OF SERVICE
The following Warehouse Terms and Conditions apply to any cargo or property of any kind, which is placed into the possession of the Warehouseman by any person by any cause and for which no contract for carriage is currently being performed by Frankel Logistics, LLC d/b/a Sir Lancellot Courier & Delivery Service (“Warehouseman”) or its affiliates.
TERMS AND CONDITIONS
In the event the warehouseman retains an attorney to collect any charges or amounts due the warehouseman by the storer, it is agreed that the storer will be liable for and will pay all reasonable attorney fees and costs of collection, including but not limited to court costs, and all costs normally and reasonably charged by the attorney as well as any other charges reasonably incurred in connection with the collection of moneys due the warehouseman by the storer including any appeals. This fee provision only applies to disputes and actions for the limited purpose of collection of storage charges and is expressly limited to not include claims for loss or damage.
Acceptance of the Goods - SECTION 1
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This contract and rate quotation including accessorial charges endorsed on or attached hereto must be accepted within fifteen (15) 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 warehouseman within fifteen (15) days from the proposal date shall constitute such acceptance by depositor. Irrespective of whether a contract has been provided to or executed by the depositor, storage for a period in excess of thirty (30) days or the payment of any invoice for storage or related charges shall be an express acceptance by the depositor to be bound by these terms.
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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 fifteen (15) days of the proposal date without prior written acceptance by depositor as provided in paragraph (a) of this section, warehouseman may refuse to accept such goods. If warehouseman accepts such goods, depositor agrees to rates and charges as may be assigned and invoiced by warehouseman and to all terms of this contract.
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This contract may be cancelled by either party upon thirty (30) days written notice and is cancelled if no storage or other services are performed under this contract for a period of one hundred eighty (180) days.
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Shipping - SECTION 2
Depositor agrees not to ship goods to warehouseman as the named consignee. If, in violation of this provision, goods are shipped to warehouseman as named consignee, depositor agrees to notify carrier in writing prior to such shipment, with copy of such notice to the warehouseman, that warehouseman named as consignee is a warehouseman and has no beneficial title or interest in such 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 charges of any nature, in connection with goods so shipped. Depositor further agrees that, if it fails to notify carrier as required by the next preceding sentence, warehouseman shall have the right to refuse such goods and shall not be liable or responsible for any loss, injury, or damage of any nature to, or related to, such goods. Depositor agrees that all promises contained in this section will be binding on depositor’s heirs, successors, and assigns.
Tender for Storage - SECTION 3
All goods for storage shall be delivered at the warehouse properly marked and packaged for handling. The depositor shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. It is the sole and non-delegable duty of depositor to provide appropriate packaging, containerization, sealing, palletizing, boxing, or crating of product tendered to warehouseman. All cargo must be packaged and prepared in a manner so as to withstand the normal rigors of motor carriage and warehouse handling. Acceptance by warehouseman of any package or cargo does not serve as acquiescence or agreement to the fitness of the packaging or packing of said cargo. In the event that a failure, flaw, omission, mistake, or negligence of any kind of degree in the packaging of the product tendered to warehouseman, depositor hereby agrees to indemnify and hold harmless warehouseman from any and all damage resulting from said insufficient, improper, failing, or negligent packaging, including damage to other commodities transported or stored by warehouseman and damage to warehouseman’s property or that of any other entity or individual. Depositor shall defend, indemnify, and hold harmless, warehouseman from any damage, loss, liability, or claims of any kind resulting from the improper or negligent packing, marking, description or classification of any product tendered for storage.
Storage Period and Charges - SECTION 4
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All charges for storage are per package or other agreed unit per month.
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Storage charges become applicable upon the date that warehouseman accepts custody of the goods, regardless of unloading date of issue of warehouse receipt.
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Except as provided in paragraph (d) of this section, a full month’s storage charge will apply on all goods received between the first and the fifteenth, inclusive, of a calendar month; one-half month’s storage charge will apply on all goods received between the sixteenth and the last day, inclusive of a calendar month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
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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 date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month. In the event payment is late, warehouseman will charge a minimum of ten dollars ($10.00) or five percent (5%) of the outstanding balance each month until balance and late fees are paid.
Transfer, Termination of Storage, and Removal of Goods – SECTION 5
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Instructions to transfer goods 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 the depositor of record. If a transfer involves rehandling the goods, such will be subject to a charge. When goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer. No goods shall be transferred or removed absent payment in full of all charges on the subject account.
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The warehouseman reserves the right to move, at his expense, fourteen (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 of his warehouses; 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. The warehouseman may, without notice, at his own expense, move goods within the warehouse in which they are stored.
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The warehouseman may, upon written notice to the depositor of record and any other person known by the warehouseman to claim an interest in the goods, require 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 warehouseman may sell them in accordance with applicable law, with the proceeds of such sale applied to the amount owed to the warehouseman and any amount in excess of the amount owed tendered to the depositor of record, if not in violation of applicable law.
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If warehouseman in good faith believes that the goods are about to deteriorate or decline in value to less than the amount of warehouseman’s lien before the end of the next succeeding storage month, the warehouseman 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 public sale held one week after a single advertisement or posting as provided by law, with the proceeds of such sale applied to the amount owed to the warehouseman and any amount in excess of the amount owed tendered to the depositor of record, if not in violation of applicable law.
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If as a result of a quality or condition of the goods of which the warehouseman had no notice at the time of deposit, the goods are a hazard to other property or to the warehouse or to persons, the warehouseman may sell the goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the goods. If the warehouseman after a reasonable effort is unable to sell the goods, he 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 warehouseman may remove the goods from the warehouse and shall incur no liability by reason of such removal.
Handling - SECTION 6
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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 invoice and prior to receipt of goods.
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Unless otherwise agreed, labor for unloading and loading goods will be subject to a charge. Additional expenses incurred by the warehouseman 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.
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Labor and materials used in loading rail cars or other vehicles are chargeable to the depositor.
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When goods are ordered out in quantities less than in which received, the warehouseman may make an additional charge for each order or each item of an order.
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The warehouseman shall not be liable for demurrage, delays in unloading inbound cars, or delays in obtaining and loading cars for outbound shipment unless warehouseman has failed to exercise reasonable care.
Delivery Requirements - Section 7
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No goods shall be delivered or transferred except upon receipt by the warehouseman of complete instructions properly signed by the depositor. However, when no negotiable receipt is outstanding, goods may be delivered upon the instructions by telephone in accordance with a prior written authorization, but the warehouseman shall not be responsible for reasonable loss or error occasioned thereby.
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When a negotiable receipt has been issued no goods covered by that receipt shall be delivered, or transferred on the books of the warehouseman, 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 the order of a court of competent jurisdiction and the posting of security approved by the court as provided by law.
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When goods are ordered out, a reasonable time shall be given the warehouseman 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 reason beyond the warehouseman’s control, or because of loss or destruction of goods for which the warehouseman is not liable, or because of any other excuse provided by law, the warehouseman shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
Extra Services - SECTION 8
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Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor.
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Special services requested by depositor including but not limited to compiling of special stock statements; reporting marked weights, serial numbers, or other data from packages: physical check of goods; and handling transit billing will be subject to a charge.
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Dunnage, bracing, packing materials or other special supplies, may be provided for the depositor at a reasonable charge in addition to the warehouseman’s cost.
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By prior arrangement, goods may be received or delivered during other than usual business hours, subject to a charge.
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Communication expense including postage, teletype, telegram, facsimile, or telephone will be charged to the depositor at warehouseman’s cost, 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.
Minimum Charge - SECTION 9
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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 where a lot is in assortment, a minimum charge per mark, brand, or variety will be made.
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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.
Limitation of Damages - SECTION 10
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THE WAREHOUSEMAN 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 WAREHOUSEMAN TO EXERCISE SUCH CARE IN REGARD TO THE GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER SIMILAR CIRCUMSTANCES AND WAREHOUSEMAN IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
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GOODS ARE NOT INSURED BY WAREHOUSEMAN AGAINST LOSS OR INJURY HOWEVER CAUSED. DEPOSITOR’S REQUIRING INSURANCE SHOULD OBTAIN THEIR OWN FIRST PARTY INSURANCE POLICY TO COVER THE GOODS BEING STORED. WAREHOUSEMAN SHALL HAVE NO LIABILTY FOR SPECIAL OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCE WHATSOEVER, REGARDLESS OF NOTICE OR FORESEEABILITY.
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THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO FIVE (5) TIMES THE BASE STORAGE RATE, FIFTY CENT ($.50) PER POUND, PER ARTICLE, OR $100 PER PACKAGE, WHICHEVER IS LESS, PROVIDED HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THIS CONTRACT AS PROVIDED IN SECTION 1 BE INCREASED ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT A MONTHLY CHARGE FOR EXCESS VALUATION WILL BE MADE IN ADDITION TO THE REGULAR MONTHLY STORAGE CHARGE. SUCH EXCESS VALUATION MUST BE DECLARED TO AND ACCEPTED BY WAREHOUSEMAN IN WRITING, AND EXCESS VALUATION CHARGES MUST BE PAID IN FULL, IN ADVANCE FOR EACH MONTH OF STORAGE IN ORDER FOR SUCH EXCESS VALUATION TO BE EFFECTIVE. THE FAILURE TO TIMELY PAY STORAGE CHARGES IN FULL, INCLUDING THE EXCESS VALUATION CHARGES WILL RESULT IN AN EXPRESS AGREEMENT TO STORE THE GOODS AT A VALUE NOT EXCEEDING FIFTY CENT ($.50) PER POUND PER ARTICLE OR $100 PER PACKAGE, WHICHEVER IS LESS. DAMAGE TO ONE ARTICLE SHALL NOT BE CONSIDERED DAMAGE TO ANY UNDAMAGED ARTICLE WITHIN IN A SET. IN NO EVENT AND REGARDLESS OF ANY OF THE FOREGOING, WAREHOUSEMAN’S LIABILITY FOR ALL GOODS STORED BY ANY DEPOSITOR FOR EVERY CAUSE OF ACTION MAY NEVER EXCEED THE SUM TOTAL OF $100,000.00 INCLUSIVE.
Notice of Claim and Filing Suit - SECTION 11
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Claims by the depositor and all other person must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either five (5) days after delivery of the goods by the warehouseman or five (5) days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
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No action may be maintained by the depositor or others against the warehouseman 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 one year after date of delivery by warehouseman or within one year 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.
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All Claims must be made in writing and include such information as to reasonably identify the goods in question, include a copy of the warehouse receipt or identification information, include a demand for a specified amount of damages which must be supported by invoice or similar reasonable documentation, including an inspection report or other indication of the precise damage or shortage alleged, and include a specific weight or number of packages for the goods being claimed as damaged or missing.
ADDITIONAL TERMS AND CONDITIONS TO THIS CONTRACT
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Nothing entered hereon shall be construed to extend the warehouseman’s liability beyond the standard of care specified in Section 11 above.
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The Warehouseman possess a lien as described in Chapter 13, Section 7209, Pennsylvania Consolidated Statutes, and may enforce such lien as provided by Section 7210, Pennsylvania Consolidated Statutes.
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If any provision of this Agreement is held to be illegal, invalid or unenforceable under the present or future laws effected during the terms of this Agreement, such provision shall be fully severable from the remaining provisions of this Agreement, and it shall not affect the validity of the remaining provisions, which provisions shall be given full force and effect as if the illegal, unenforceable, or invalid provision had not been included in this Agreement. In lieu of an illegal, unenforceable, or invalid provision, there shall be substituted a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid and enforceable.
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This Agreement shall be governed by and be construed in accordance with Pennsylvania law.
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The Parties consent to exclusive jurisdiction and venue in the State of Pennsylvania in any dispute which might arise in connection with this Agreement.
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These Terms and Conditions, along with any receipt or authorized addenda hereto form the entire agreement between the Parties relating to the subject matter hereof. Except as otherwise agreed in this Agreement, all amendments and modifications of these Terms and Conditions shall be made by a written document executed by both Parties.