In the context of this Warehouse Receipt (“RECEIPT”) or Contract and Rate Quotation (“RATE QUOTATION”) or Invoice (“INVOICE”), the following terms have the meanings specified below:
1. CONTRACT. The RECEIPT, RATE QUOTATION or INVOICE provided by the COMPANY, which includes these Contract Terms and Conditions.
2. MERCHANT. The individual, company, corporation, or other entity that stores and/or handles the GOODS described in this document, to whom this CONTRACT is issued, and anyone else with a claim to the GOODS.
3. COMPANY – FBA Prep Logistics LLC. In Sections 9 and 10, COMPANY encompasses officers, directors, employees, and agents of COMPANY, acting within the scope and course of their employment.
4. WAREHOUSE. The warehouse complex and cross-dock facility operated by the COMPANY.
5. GOODS. The personal property, or any part thereof, described in this document that the COMPANY has agreed to receive, handle, and/or store under the terms of this CONTRACT.
2. AGREEMENT AND SUBMISSION FOR STORAGE
1. MERCHANT must accept this CONTRACT, including any supplementary charges that might be attached, within 30 days from the proposal date by signing it. If there is no written acceptance, the act of offering GOODS mentioned in this document for storage or other services by COMPANY within 30 days from the proposal date will be considered as acceptance by MERCHANT.
2. MERCHANT has been given the chance to examine and inspect the WAREHOUSE.
3. If the GOODS submitted for storage or other services do not match the description provided in this document, or if conforming GOODS are submitted after 30 days from the proposal date without prior written acceptance by MERCHANT as specified in paragraph 2.1 of this section, COMPANY reserves the right to decline such GOODS. If COMPANY accepts these GOODS, MERCHANT agrees to the rates and charges that may be assigned and invoiced by COMPANY and to all terms of this Contract.
4. MERCHANT commits to ensuring that all GOODS intended for storage will be properly marked and packed for handling when delivered at the WAREHOUSE.
5. MERCHANT is required to supply, at or before delivery, a manifest indicating marks, brands, or sizes to be maintained and accounted for separately and the type of storage desired. If not, the GOODS may be stored in bulk, assorted lots, or general storage at COMPANY’s discretion and at the applicable storage rate.
6. MERCHANT must give COMPANY accurate and comprehensive information about the GOODS to enable COMPANY to comply with all laws and regulations concerning the storage, handling, and transportation of the GOODS. MERCHANT shall indemnify and hold COMPANY harmless from all losses, costs, penalties, and expenses (including reasonable attorney’s fees) resulting from MERCHANT’s failure to do so.
7. GOODS receipt and delivery will be done without sorting unless a special arrangement is made, which could be subject to a fee.
8. Unless otherwise agreed to in writing, COMPANY will store and deliver GOODS in the packages they were initially received and will not separate GOODS by production code date.
9. MERCHANT agrees that all GOODS sent to COMPANY will identify MERCHANT on the bill of lading or other contract of carriage as the consignee, in care of COMPANY, and will not identify COMPANY as the consignee. If GOODS are shipped to COMPANY as consignee contrary to this requirement, MERCHANT shall indemnify and hold COMPANY harmless from all claims for transportation, storage, handling, and other charges related to such GOODS.
3. STORAGE TERMINATION
1. COMPANY may, with written notice, request the removal of GOODS or any part of them from the WAREHOUSE within a specified period, no less than 30 days after such notification. If the GOODS are not removed within this time frame, COMPANY may sell them as allowed by law and exercise any other legal rights concerning the GOODS.
2. If, in COMPANY’s opinion, GOODS may deteriorate or lose value to less than COMPANY’S lien amount, or pose a hazard to other property, the WAREHOUSE, or individuals, COMPANY may lawfully remove or dispose of the GOODS. MERCHANT shall be responsible for all related charges.
4. STORAGE LOCATION
1. At COMPANY’S discretion, GOODS may be stored in any one or more buildings within the WAREHOUSE. Identifying a specific location within the WAREHOUSE does not guarantee that GOODS will be stored there.
2. Unless otherwise agreed in writing, COMPANY may, at any time and without notice to MERCHANT, move any GOODS from one room or area of the WAREHOUSE to another, at COMPANY’s expense.
3. With a ten-day written notice to MERCHANT, COMPANY may, at its expense, relocate the GOODS to another warehouse operated by COMPANY.
5. STORAGE FEES
1. Storage fees begin on the date COMPANY takes custody of the GOODS, irrespective of the unloading date or the date the RECEIPT is issued. Unless otherwise stated by COMPANY, storage fees for each lot will be calculated using the following method: If storage rates are quoted on a “SPLIT MONTH BASIS,” the storage month is a calendar month. A full month’s storage fee applies to GOODS received between the 1st and 15th, inclusive, of a calendar month. A half month’s storage fee applies to GOODS received between the 16th and the last day, inclusive, of a calendar month. A full month’s storage fee applies on the 1st day of the next calendar month and each subsequent month for all GOODS remaining in storage.
2. COMPANY’S storage and other fees are detailed in the RATE QUOTATION or another document provided by COMPANY to MERCHANT and/or COMPANY’s tariff, and may be increased with 30 days notice.
3. Unless otherwise specified by COMPANY, all storage fees are fully earned and due on the 1st day of storage for the initial month, and on the 1st day of each subsequent storage month.
4. Rates quoted by weight will be computed based on gross weight, unless otherwise stated.
6. HANDLING FEES
1. Unless otherwise indicated, handling fees cover only the ordinary labor and duties associated with receiving and delivering unitized GOODS on pallets at the WAREHOUSE dock during COMPANY’S regular business hours, excluding loading and unloading.
2. An additional charge beyond regular handling fees may be applied for any work COMPANY performs other than as outlined in Section 6.1, including cross-dock or transloading services, at COMPANY’S prevailing rates, which are available upon request.
3. When GOODS are requested in quantities smaller than those received, COMPANY may apply an extra charge for each order or item in an order.
4. COMPANY’s delivery of fewer than all units of any lot will occur without subsequent sorting, except by special arrangement, which may be subject to an additional fee.
7. TRANSFER AND DELIVERY
1. MERCHANT’s instructions to transfer GOODS to another account are not effective until accepted by COMPANY. Charges will be applied for each transfer and any rehandling deemed necessary by COMPANY. COMPANY reserves the right to withhold delivery or transfer of GOODS unless written instructions are provided by MERCHANT.
2. MERCHANT may authorize COMPANY in writing to accept telephone orders for delivery. In such cases, delivery by COMPANY pursuant to telephone orders will be at MERCHANT’S risk.
3. COMPANY will have a reasonable time to deliver after GOODS are ordered out and will have a minimum of ten business days after receiving a delivery order to locate any misplaced GOODS. MERCHANT shall inform COMPANY of their transloading needs in enough time for COMPANY to make necessary preparations. Specifically, MERCHANT will provide advance notice of all inbound and outbound movements, as well as all information required for COMPANY to perform services in a timely manner (including quantities, appointment times, and carrier identities). MERCHANT is solely responsible for communicating outbound order sequencing to COMPANY prior to GOODS arrival, allowing COMPANY to properly sequence outbound pallets of GOODS.
4. If COMPANY is unable to deliver due to causes beyond its control before the expiration of the current storage period, GOODS may be subject to storage charges for each subsequent storage period at COMPANY’S discretion.
5. All instructions and requests for delivery and/or transfer of GOODS are subject to the satisfaction of all charges, liens, and security interests of COMPANY. Upon termination of the storage relationship for any reason, COMPANY may refuse to deliver GOODS until all outstanding charges are paid in full, regardless of the payment terms otherwise applicable to such charges.
6. COMPANY may require a statement from MERCHANT, as a condition of delivery, holding COMPANY harmless from claims made by others asserting rights to the GOODS. COMPANY may also exercise any other legal remedy available to resolve conflicting claims to the GOODS. All costs, charges, and expenses, including reasonable attorneys’ fees, incurred by COMPANY related to activities mentioned in Section 7(f), will be charged to MERCHANT and considered charges with respect to the GOODS, subject to COMPANY’s general warehouse lien.
8. ADDITIONAL SERVICES AND CHARGES
1. MERCHANT will be charged for any other services rendered in their interest or in the interest of the GOODS.
2. All charges are due and payable upon the date of invoice. Charges unpaid within 30 days from the due date are subject to an interest charge, from the due date until paid, at the lesser of 1.5% per month or the maximum amount allowed by law.
3. MERCHANT may, subject to reasonable limitations, inspect the GOODS while accompanied by a COMPANY employee, with the employee’s time chargeable to MERCHANT.
4. In the event of damage or potential damage to the GOODS, MERCHANT shall pay all reasonable and necessary costs for protecting, preserving, cleaning up, and disposing of damaged or destroyed GOODS. Costs attributable to both MERCHANT’s GOODS and the property of others will be apportioned among MERCHANT and others on a pro rata basis, as determined by COMPANY.
5. COMPANY will provide dunnage, bracing, and fastenings, where deemed appropriate for outbound shipments, with the cost chargeable to MERCHANT.
6. Any additional costs incurred by COMPANY in unloading rail cars or trucks containing damaged GOODS will be charged to MERCHANT.
7. COMPANY is not responsible for detention or demurrage charges or delays in loading or unloading. MERCHANT agrees to defend, indemnify, and hold COMPANY harmless from all liabilities related to transportation and any demurrage, detention, or other charges in connection with GOODS shipped to or from the WAREHOUSE.
8. An additional charge will be applied for bonded storage.
9. All storage, handling, and other services may be subject to minimum charges.
10. MERCHANT agrees to pay COMPANY all costs, charges, and expenses, including reasonable attorney’s fees (“EXPENSES”), incurred by COMPANY in connection with the storage, handling, and/or disposition of GOODS, including, without limitation, such EXPENSES relating to lawsuits (including bankruptcy proceedings) involving the GOODS and/or MERCHANT’S performance under this CONTRACT. All such EXPENSES shall constitute charges with respect to the GOODS and subject to COMPANY’S general warehouse lien.
11. MERCHANT shall reimburse COMPANY for the cost of all pallets supplied by COMPANY.
9. LIABILITY AND LIMITATION OF DAMAGES
1. COMPANY will not be liable for any loss, destruction, or damage to GOODS unless such loss, destruction, or damage results from COMPANY’S failure to exercise the care that a reasonably careful person would exercise under similar circumstances. COMPANY will not be liable for any loss, destruction, or damage to GOODS that could not have been avoided by exercising such care.
2. COMPANY and MERCHANT agree that COMPANY’S duty of care as described in Section 9.1 does not include providing a sprinkler system at the WAREHOUSE or any part of it.
3. Unless specifically agreed to in writing, COMPANY is not required to store GOODS in a humidity-controlled environment or be responsible for tempering GOODS.
4. IF COMPANY IS LIABLE FOR LOSS, DESTRUCTION, OR DAMAGE TO GOODS, MERCHANT AGREES THAT COMPANY’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) the actual cost to MERCHANT of replacing or reproducing the lost, damaged, or destroyed GOODS, including transportation costs to the WAREHOUSE, (2) the fair market value of the lost, damaged, or destroyed GOODS on the date MERCHANT is notified of the loss, damage, or destruction, (3) twice the monthly storage charge applicable to the lost, damaged, or destroyed GOODS, (4) $0.50 per cubic foot for the lost, damaged, or destroyed GOODS. MERCHANT may request, in writing, an increase in COMPANY’S liability for part or all of the GOODS within a reasonable time after receiving this CONTRACT. If the request is granted, an increased charge will be made based on the increased valuation. However, no such request will be valid if made after any loss, destruction, or damage to any portion of the GOODS has occurred.
5. COMPANY’S liability described in Section 9.4 shall be MERCHANT’S exclusive remedy for any claim or cause of action related to loss, destruction, or damage to GOODS. MERCHANT waives any right to rely upon any presumption of conversion imposed by law.
6. MERCHANT shall not be entitled to recover any incidental, special, punitive, or consequential damages of any kind.
7. If COMPANY negligently misships GOODS, COMPANY may, at its discretion, pay either the reasonable transportation charges to return the mis shipped GOODS to the WAREHOUSE or the value of the mis shipped GOODS based on Section 9.4. COMPANY will have no liability for damages resulting from the consignee’s acceptance or use of the GOODS.
8. MERCHANT acknowledges and agrees that COMPANY is not liable for loss or damage to GOODS during transit to or from the WAREHOUSE.
9. MERCHANT acknowledges that under the standard set forth above, COMPANY is not responsible for loss in weight or for loss or damage to GOODS resulting from improper packing, insufficient cooperage, boxing or crating, breakage, wear and tear, or inherent characteristics or qualities of the GOODS. COMPANY is also not responsible or liable for loss of GOODS due to leakage or failure to detect leakage or latent or concealed damage. GOODS are tendered at MERCHANT’S risk for loss, damage, destruction, or delay caused by acts of God, civil or military authority, enemies of the government, insurrections, riots, strikes, civil commotions, acts of terrorism, legal seizures, labor disputes, lockouts, intentional, criminal or malicious acts of third parties, or any other organized opposition, water sprinkler and other pipeline or plumbing leakage or malfunction, fire, flood, windstorm, cyclone, moths, vermin, insects, corruption, earthquakes, tidal waves, tornadoes, or depredation, or any cause beyond COMPANY’S reasonable control.
10. CLAIM NOTICE AND LEGAL ACTION
1. COMPANY will not be liable for any claim of any type whatsoever, including but not limited to claims for loss, destruction, or damage to GOODS, unless such claim is presented in writing within a reasonable time, not exceeding the earlier of (1) 60 days after delivery of GOODS by COMPANY or (2) 60 days after MERCHANT learned or, through reasonable care, should have learned of such loss, destruction, or damage to the GOODS or the basis for any other claim against COMPANY.
2. Before filing any lawsuit or other action, MERCHANT must provide COMPANY with a reasonable opportunity to inspect the GOODS that are the basis of MERCHANT’S claim.
3. NO LAWSUIT OR OTHER ACTION MAY BE BROUGHT BY MERCHANT OR OTHERS AGAINST COMPANY UNLESS a timely written claim has been made as per SECTION 10(a), MERCHANT has provided COMPANY with a reasonable opportunity to inspect the GOODS as per SECTION 10.2, and the lawsuit or other action is initiated within the earlier of (1) nine (9) months after delivery of GOODS by COMPANY or (2) nine (9) months after MERCHANT learned or, through reasonable care, should have learned of the loss, destruction, or damage to the GOODS or the basis for any other claim against COMPANY.
4. Any lawsuit or other action against COMPANY must be filed in the state or province where the WAREHOUSE is located and will be governed by the laws of that state or province.
The GOODS are not insured by COMPANY, and the storage rates do not include insurance on the GOODS.
COMPANY holds a general warehouse lien against the GOODS and their proceeds for all charges related to storage, handling, transportation (including detention, demurrage, and terminal charges), insurance, labor, and other charges, present or future, concerning the GOODS, as well as advances or loans made by COMPANY related to the GOODS and expenses necessary for preserving the GOODS or reasonably incurred in their sale according to law. COMPANY also claims a general warehouse lien on the GOODS for all other charges, advances, and expenses due to COMPANY or any related entity from MERCHANT for property stored by MERCHANT in any warehouse owned or operated by COMPANY or any related entity, wherever located. COMPANY reserves the right to require advance payment of all charges before releasing GOODS, regardless of otherwise applicable payment terms.
13. UNEXPLAINED LOSS
COMPANY will not be held responsible for the loss of GOODS due to inventory shortages or unexplained or mysterious disappearance of GOODS unless MERCHANT proves that such loss occurred because of COMPANY’S failure to exercise the care required by Section 9 above. The legal presumption of conversion will not apply to such loss, and MERCHANT must provide affirmative evidence that COMPANY converted the GOODS for its own use.
14. WAIVER AND SEVERABILITY
COMPANY’S failure to demand strict compliance with any provision of this CONTRACT shall not constitute a waiver or create an estoppel preventing the later demand for strict compliance with that provision or insistence on strict compliance with all other provisions of this CONTRACT.
2. If any Section or part of this CONTRACT is declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining Sections and parts shall not be affected or impaired in any way.
MERCHANT represents and warrants that it is either (a) the lawful owner of the GOODS, which are not subject to any lien or security interest of others, or (b) the authorized agent of the lawful owner or any holder of a lien or security interest with full power and authority to enter into the agreements incorporated into this CONTRACT. MERCHANT agrees to notify all parties acquiring any interest in the GOODS of the Terms and Conditions of this CONTRACT and to obtain their agreement to be bound by such Contract Terms and Conditions as a condition of granting any interest.
All written notices required herein may be sent via any commercially reasonable means of communication and directed to COMPANY at the address on the front of this document and to MERCHANT at its last known address. MERCHANT is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section 16 within five days of transmittal.
17. ENTIRE AGREEMENT
This CONTRACT represents the entire agreement between COMPANY and MERCHANT regarding the GOODS and supersedes all existing agreements between them, whether written or oral. This CONTRACT shall not be changed, amended, or modified except by a written agreement signed by representatives of COMPANY and MERCHANT.