COMPASS WAREHOUSE LLC
SERVICE TERMS AND CONDITIONS
I. SERVICE PERIOD AND CHARGES
A. Formation of Contract. These Terms and Conditions, including the information on the Face Page of this Goods Received Notice ("GRN"), constitute the entire Agreement between Purchaser and Compass Warehouse LLC ("Company") as to the services of the goods described on the Face Page, provided, however, Purchaser understands that the Terms and Conditions contained on the reverse side of the Invoice which Company shall send to Purchaser in the normal course of business constitute the entire Agreement between Purchaser and Company services. With respect to this Contract, “Services” is defined to mean all distribution, warehousing, export packing, consolidation and storage functions performed by the Company. All customs brokerage and freight forwarding services performed by the Company are covered under separate Terms and Conditions. Any term of Customer's order for such services, or requirements pertaining thereto or any communication from Purchaser which is in any way inconsistent with, or in addition to, the Terms and Conditions set forth herein or on the reverse side of the Invoice, shall not be binding on Company in any way. Company's failure to object to any terms or conditions contained in any such communication from Purchaser shall not be deemed to be a waiver of such terms or conditions. If Purchaser objects to this Agreement or any of the Terms and Conditions contained herein, such objection must be made in writing to Company and must be received by Company at the address stated on the Face Page of the Invoice within five (5) days from the Date Received. If Purchaser issues multiple purchase orders or makes other requests for Company services or products, each such order or request shall be subject to the Terms and Conditions herein and on the reverse side of the Invoice, regardless of Customer's other terms of any such order or request, and regardless of the method in which the order was placed.
B. General. Company agrees to provide services to Purchaser with respect to the goods as described (and, at a minimum, for the time stated) on the Face Page of the GRN. The charges shown on the Face Page on the GRN or Invoice shall be subject to adjustment if the term is extended and as generally provided in the Terms and Conditions contained on the reverse side of the GRN and Invoice.
C. Storage Begins on Receipt. Storage charges shall begin to accrue on and from the date Company receives and/or accepts custody of the goods, regardless of unloading date or date of issue of a warehouse receipt, GRN, or Invoice.
D. Monthly Charges. Except as provided in paragraph E of this Section 1, a full month of storage charge will be assessed against all goods received between the first and the fifteenth, inclusive, of a given calendar month, and one-half month storage charge will be assessed against all goods received between the fifteenth and the last day, inclusive, of a given calendar month A full 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
E. Extension and Payment, When mutually agreed by Company and Purchaser, 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.
II. OWNERSHIP, TRANSFER, TERMINATION OF STORAGE, REMOVAL CF GOODS
A. Ownership. The Purchaser represents and warrants that he is the lawful owner or possessor of the goods to be stored and/or has authority to store or ship said goods. The Company does not take title to the goods, except as provided for under Sec. III (C). Purchaser agrees to indemnify and hold harmless the Company from any losses, costs and expenses (including reasonable attorneys’ fees) which the Company pays or incurs as a result of any dispute or litigation with respect to the Purchaser’s right, title or interest in the goods. If Company owns the goods subject to this GRN either solely, jointly or in common with others, that ownership shall be noted on Face Page of the GRN.
B. Transfer of Goods. Instructions to transfer goods on the docks or in the warehouse of Company are not effective until delivered to and accepted by Company and all charges up to the time transfer is made are chargeable to Purchaser. Company will only transfer goods to the Purchaser identified as the “Customer” on the GRN unless it receives written instructions from the Purchaser to transfer the goods to someone else. When goods in storage are transferred from one party to another through issuance of new warehouse receipt, GRN, or Invoice, a new storage date shall be established on the date of transfer.
C. Documentation. The Purchaser shall furnish at or prior to such delivery, a complete and accurate manifest showing marks, brands or sizes to be kept and accounted for separately and the class of storage requested, otherwise the goods may be stored in bulk or assorted lots, in general storage at the discretion of the Company and will be charged for accordingly.
D. Packaging and Labeling. Purchaser warrants that all goods delivered to the Company’s docks or warehouse are packaged, blocked, braced and labeled in accordance with normal shipping standards for the contents therein. With respect to the transport and storage of Hazardous Materials, Purchaser warrants that the packaging, labeling, and documentation is in full and complete compliance with the U.S. Department of Transportation’s requirements under 49 C.F.R. §§ 100-199 as well as any and all foreign government regulations for the country(ies) of transportation and destination. The goods comply with all requirements for the modes of transportation necessary to transport the goods to their final destination. In addition Purchaser warrants that it will provide all transportation and shipping papers complete with all Hazardous Materials declarations as required by law. Purchaser agrees to indemnify and hold harmless the Company from any loss, cost and expense (including reasonable attorneys fees) which the Company pays or incurs as a result of any dispute, claim, injury or litigation regarding the packaging, labeling or shipping documentation for any goods provided for storage to the Company.
E. Handling. Handling charges cover the ordinary labor and duties incident to receiving goods at warehouse door, stowing and delivering to warehouse door, but do not include unloading or loading of cars, vehicles, or vessels unless so specified. Handling charges in connection with arrival and withdrawal of goods may, at the option of Company, be billed with the storage for the last month. Goods, received or delivered during other than usual business hours, at the request of the Purchaser, will be subject to an additional charge. When Company stores, packs or otherwise handles any goods tendered by Purchaser, it does so subject to the limitations of paragraph IV below.
F. Vehicle Unloading And Loading: If Company agrees to load or unload a vehicle, dunnage, fastenings and all other materials, supplied by Company and work in loading out vehicles, are chargeable to the Purchaser. Any additional costs incurred by Company in unloading vehicles containing damaged goods are chargeable to the Purchaser. Company shall not be responsible for demurrage, delays in unloading inbound vehicles, delays in obtaining vehicles for outbound shipments, or for delays in loading outbound shipments, unless it fails to exercise such care as a reasonably careful person would exercise under like circumstances.
G. Relocation of Goods, Company reserves the right to move, at its expense after no fewer than ten (10) days written notice to Purchaser (or to the last known holder of a negotiable warehouse receipt for the goods, as applicable), any goods in storage from Company's warehouse to any other of its warehouse locations, but, if Purchaser (or holder of a warehouse receipt) takes possession of such goods in lieu of transfer, Purchaser shall pay accrued storage charges for the current month, prorated to the day Purchaser takes possession of such goods. Company may, without notice and at its discretion, move goods within the warehouse in which they are initially stored.
H. Notice to Remove Goods, Company may, upon written notice to Purchaser and to any other person actually known by Company 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, Company may dispose of such goods in accordance with applicable law.
I. Preservation of Lien Rights, If Company in good faith believes that the goods are deteriorating or declining in value (and thus reducing the value of Company's warehouseman's lien), before the end of the next succeeding storage month as described in paragraph C of Section III. Company may specify in a written notice any reasonable shorter time for removal of the goods and, in case the goods are not removed as required Company may dispose of them at public sale held one week after a single advertisement or posting, or as provided or allowed from time to time by applicable law.
J . Disposal of Necessity. If as a result of a quality or condition of the goods of which Company has no notice at the time of receipt for storage, the goods are (in Company's discretion) Dangerous Goods or otherwise a hazard to other property or to the warehouse or to persons, Company may sell the goods at public or private sale without advertisement or reasonable notification to all persons known to claim an interest in the goods. If Company, after reasonable efforts under the circumstances, 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, Company may remove the goods from the warehouse and shall incur no liability by reason of such removal. Purchaser shall be liable for all expenses in connection with such removal, disposal or sale.
III. PAYMENT; MINIMUM CHARGES; LIEN FOR PAYMENT
A. Payment Terms, Purchaser shall pay the Total Charges stated on the Invoice, and others charges. or sums due hereunder or under the Terms and Conditions stated on the reverse side of the Invoice, net within ten (10) days of the date Purchaser receives the Invoice therefor from Company. Any such sums not paid when due shall bear interest at the rate of one percent (1%) per month, compounded, until such sums and interest are paid in full. Purchaser must agrees to pay all of Company's costs of collection, including attorneys fees.
B. Minimum Storage Charges. A minimum monthly charge will be made to Purchaser for storage as provided in Section I. D.
C. Lien for Payment, Purchaser hereby grants a lien on all of Purchaser's goods in its possession for all charges for storage and for any other Services provided by Company pursuant hereto, including, without limitation, for sums due or arising hereunder by way of indemnification and for all claims for money advanced, interest, insurance, taxes, penalties, transportation, labor, weighing, and aftercharges and expenses in relation to Purchaser's goods or Company's services hereunder.
IV. LIMITATION OF LIABILITY AND WARRANTY
A. Storage Liability Limited by Statutes Company's liability for damage to Purchaser's goods while in Storage is governed by SC Code § 36-7-204 and is limited to the value of the loss or damage incurred at a rate of $5 per case or $50 per hundred pounds, whichever is less. Upon Purchaser’s written request, that liability may be increased with respect to all or part of the goods hereunder. Company will assess additional monthly charges based on such increase in value. UNLESS OTHERWISE SPECIFICALLY SET FORTH ON THE FACE PAGE, COMPANY DOES NOT CARRY INSURANCE ON THE GOODS IN ITS CUSTODY.
B. Limited Warranty. Company warrants that it will generally handle and provide Services for Purchaser's goods at all times in accordance with such standards and procedures as a reasonably careful person would exercise under like circumstance and in accordance with Company's best professional judgment. THE FOREGOING WARRANTY OF COMPANY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IS IN LIEU OF ANY OTHER WARRANTY OR OBLIGATION OF THE COMPANY. Except as agreed in writing, goods specified on this GRN are accepted for general merchandise storage only and Company shall not be liable for any loss, deterioration, damage, evaporation, shrinkage or change of color brought about by any cause such as, but not limited to a change in temperature or humidity through the process of cooling, storing, or removing of the merchandise from the storage rooms.
If the building wherein the said goods are stored is protected by automatic sprinklers, then Company will not be liable in case of water damage from the same, whether as a result of accident or otherwise.
C. Exclusions. The sole and exclusive remedy of Purchaser and responsibility of Company for any breach of warranty or contract, or any claim of negligence or other tort, shall be, at Company's sole option, (i) to correct any defective performance, (ii) to refund any amounts up to the amount paid for the Services by Purchaser to Company, or (iii) in the case of Purchaser’s goods in storage, to pay the value of the loss or damage incurred at a rate of $5 per case or $50 per hundred pounds, whichever is less. Company shall have no other liability or responsibility whatsoever to anyone other than that stated in this Section IV. IN NO EVENT SHALL COMPANY BE LIABLE TO ANYONE, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT, INCLUDING THE NEGLIGENCE OF COMPANY OR ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND OR CHARACTER, PURSUANT TO OR ARISING OUT OF ANY CONTRACT BETWEEN PARTIES.
D. Limitation Of Liability On Third Parties. Purchaser authorizes Company, at Company’s option, to select and engage third parties to perform any Services under this Contract, including but not limited to carriers, trucking companies, forwarders, packers and others, all of whom shall be considered agents of the Purchaser. Purchaser’s goods may be entrusted to such agencies subject to all limitations of liability for loss, damage, expense or delay and to all rules, regulations, requirements, and conditions of those agencies. Company shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in the custody, possession or control of third parties selected by the Company to perform such Services.
V FORCE MAJEURE. Company shall not be liable for any delay in the performance or for nonperformance, in whole or in part, by the occurrence of any contingency beyond the reasonable control of Company, including, but not limited to, fires, floods, labor trouble, strikes, break-downs, riots, embargo, the regulation, order, or requirement of any government, war (whether an actual declaration thereof is made or not), failure or delay in transportation by fire, flood, or act of any government or any agency or subdivision thereof affecting the terms of this Agreement or otherwise, judicial action, accident, explosion, storm or other acts of God. Any such delays shall excuse Company from performance and Company's time for performance shall be extended for the period of delays and for a reasonable period thereafter.
VI. INDEMNIFICATION AND RELEASE. Purchaser releases and shall hold harmless and fully indemnify Company, its officers, directors, shareholders, agents, and employees, from and against any claims, costs, damages, losses or liability (including attorneys fees) arising out of or suffered in connection with (i) any contract or arrangement entered into by Company on behalf of Purchaser; (ii) any duty, tax, tariff or other assessment imposed or levied by any governmental authorities or by any authority of proper jurisdiction, (iii) any payments, fines, expenses, loss or damage incurred or sustained by Company, (iv) handling or storing Dangerous Goods, or (v) any breach by Purchaser of any term of this Agreement
VII. NOTICE OF CLAIM AND FILING OF SUIT.
A. Notice Required Claims by Purchaser and all other persons must be presented in writing to Company within a reasonable time, and in no event longer than either sixty (60) days after delivery of the goods by Company or sixty (60) days after Purchaser of record or the last known holder of a negotiable warehouse receipt with respect to the goods is notified by Company that loss or injury to part or all of the goods has occurred, whichever time is shorter.
B. Limitation of Actions. No action may be maintained by Purchaser or others against Company for loss or injury to the goods stored unless timely written claim has been given as provided by paragraph A of this Section VII and unless such action is commenced either within nine (9) months after date of delivery by Company or within nine (9) months after Purchaser or the last known holder of a negotiable warehouse receipt with respect to the goods is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter.
C. Notice by Mail. When goods have not been delivered, notice may be given of known loss or injury to the goods by any form of electronic written notice to Purchaser or to the last known holder of the negotiable warehouse receipt Time limitations for presentation of a claim in writing and maintaining of action after notice begin on the date of the mailing of such notice by Company.
VIII. GOVERNING LAW. The validity, construction and performance of this Agreement and the transactions and services to which it relates shall be governed by the laws of the State of South Carolina. The parties hereto irrevocably agree to the exclusive jurisdiction of the state or federal courts in Charleston, South Carolina.
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