ABC, LLC, with its principal address at [Address Withheld] (also referred to herein as “ABC”), provides warehousing services. When ABC stores goods at its facility and issues a warehouse receipt, the Warehouse Terms and Conditions herein shall apply. When cargo is transported by an unaffiliated motor carrier, broker services are provided by ABC and are subject to ABC’s Terms and Conditions. Warehousing services are also provided by ABC, LLC and are subject to ABC’s Terms and Conditions. ABC’s motor carrier affiliate, ABC, performs services by transporting cargo on equipment owned or leased to ABC.
Shipper and its agents consent to the use of ABC to transport loads where needed. Shipper and its agents expressly agree that they will not hold ABC liable in the capacity of a motor carrier. Shipper’s insertion of ABC, LLC or ABC (for a brokered load) as the carrier on a bill of lading or another document shall be for Shipper’s convenience only and shall not affect the status of the actual motor carrier transporting the property or the brokerage entity arranging for transportation.
Shipper and its agents further agree they will not hold ABC, LLC liable in the capacity of a broker or attempt to make any claim against ABC, LLC or ABC in connection with transportation services performed by any other motor carrier. The carrier transporting the freight at issue (“Carrier”) shall be the sole party responsible in the capacity of a motor carrier. ABC, LLC is a Texas limited liability company solely responsible for its debts and obligations and is not responsible for the debts and obligations of any other entity unless expressly agreed in writing. Shipper agrees that ABC and ABC shall not be liable, and Shipper will not attempt to hold them liable for the conduct of their affiliates or third parties.
1. Definitions
- Affiliate: A person that is connected with, associated with, or controlled by ABC, LLC.
- Broker Services: Any additional services provided by ABC.
- ABC: ABC, LLC.
- Customer: The person or entity tendering the goods, holding title to the goods, or the owner of the goods and their employees, contractors, invitees, and agents.
- Warehouse: Any warehouse or storage facility owned, leased, or operated by ABC where Customer’s goods are stored pursuant to an agreement between Customer and ABC.
- Terms and Conditions: This agreement.
2. Applications
These Terms and Conditions shall apply to all of Customer’s goods tendered to ABC and received for storage at the warehouse. If Customer is not the owner of the goods or does not have title to the goods, Customer acknowledges and warrants that it acts as the owner’s and title holder’s agent and also agrees to these Terms and Conditions on behalf of the owner and title holder of the goods and other interested parties.
3. Shipment of Goods to Warehouse
Customer shall identify itself as the named consignee on all goods shipped to the Warehouse. Customer shall not ship goods to or from the Warehouse naming ABC, LLC as the consignee on a bill of lading or other shipment documents. ABC has no beneficial title or interest in Customer’s goods, and Customer agrees to notify motor carriers that ABC is providing warehousing services and to notify motor carriers of the actual consignee. If goods naming ABC as consignee are shipped and accepted, Customer shall immediately notify ABC and the motor carrier in writing that ABC is the “in care of party” only and has no beneficial title or interest in Customer’s goods.
Customer shall indemnify, defend, and hold harmless ABC, LLC, its Affiliates (defined as another organization or partnership with common ownership, management, facilities, employees, equipment, or interests), its other customers, and ABC, its affiliates’, and its other customers’ trustees, officers, directors, employees, and agents from any and all claims for unpaid transportation charges related to Customer’s goods, of any kind whatsoever and to whomever owed, including detention, demurrage, and all other charges, without regard to whether ABC was named consignee or whether ABC knew or should have known it was the named consignee on a bill of lading or other shipping documents.
4. Tender of Goods for Storage
Customer shall deliver all goods for storage at the Warehouse properly marked and packaged for handling. Customer 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 ABC, and charges for such storage will be made at the applicable storage rate. Receipt and delivery of all or any unit of a lot shall be made without subsequent sorting except as agreed and subject to a charge.
ABC shall store and deliver goods only in the packages in which they are originally received unless otherwise agreed to in writing. ABC shall not be responsible for segregating goods by production code date unless specifically agreed to in writing. Copper, explosives, goods requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, objects d’art, collections, antiques, precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value shall not be stored on ABC’s premises without ABC’s express written consent.
5. Storage Charges
ABC shall invoice Customer according to the Rate Confirmation or as otherwise quoted by ABC, LLC or agreed in writing. Additionally, any rates verbally agreed upon shall be deemed confirmed in writing where ABC has billed the rate and Customer has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by reference. Customer shall pay ABC storage charges and charges for any additional services within 30 days of the invoice date without deduction or setoff.
Dunnage, bracing, packing materials, or other special supplies may be provided by ABC for the Customer at a charge in addition to ABC’s cost. Storage charges include the ordinary labor involved in receiving goods at the door of the warehouse. Any additional labor requested will be charged by ABC to the Customer. Customer may not offset claims for loss or damage to goods against the amount owed to ABC unless otherwise agreed to in writing.
ABC reserves the right to adjust rates for warehousing, storage, and affiliated services at its discretion, with 30 days’ advance notice. Should Customer stop doing business or reduce its business with ABC below levels agreed upon between the parties, Customer shall be liable for all unrecoverable contractually obligated charges for the agreed-upon term. ABC may submit invoices through its affiliate, and such administrative functions shall not alter the services outlined in these Terms and Conditions, make ABC liable for its affiliates’ conduct, or establish any kind of joint liability between ABC and its Affiliates.
6. Instructions to Transfer Goods
Instructions to transfer goods from ABC, LLC are not effective until delivered to and received by ABC, and all charges up to the time transfer are made are chargeable to the Customer of record. If a transfer involves re-handling the goods, such re-handling will be subject to charges at ABC’s standard rates.
7. Termination of Storage
ABC may at any time require the removal of any goods by the end of the next succeeding calendar month by providing written notice to the Customer. If goods are not removed before the end of the next succeeding calendar month, ABC, LLC may dispose of the goods in accordance with applicable law.
8. Handling of Goods
ABC shall provide the ordinary labor involved in receiving goods at the door of the warehouse, placing goods in storage, and releasing the goods at the door of the warehouse. Customer shall pay ABC for services requested other than ordinary handling and storage. Customer shall pay ABC for additional expenses in receiving and returning damaged goods and loading or unloading goods at a place other than the warehouse door. ABC shall not be required to store goods in a humidity-controlled or temperature-controlled environment.
Customer may be subject to an escort fee if Customer’s access to ABC, LLC’s premises requires that ABC personnel escort Customer. Customer shall not use ABC’s equipment (including, but not limited to, loading, unloading, handling, crating, packaging, and construction equipment) without written permission from ABC. If ABC allows Customer to use any of ABC’s equipment for any reason, Customer acknowledges that Customer accepts all risk and responsibility of damage to property and injury and/or death to any person(s) arising from such use. Customer shall indemnify, defend, and hold harmless ABC, LLC from any claim, action, loss, liability, or reasonable expense arising from Customer’s use of ABC, LLC’s equipment, even if such claim, action, loss, liability, or reasonable expenses (including without limitation, all costs, expenses, and attorneys’ fees) is caused in whole or in part by a pre-existing defect in said equipment.
ABC shall not be liable for damages to Customer and Customer’s contractors’ loading, unloading, packaging, and related equipment and materials or damages to person or property arising from the use of such equipment and materials. Customer shall indemnify, defend, and hold harmless ABC from any claim, action, loss, liability, or reasonable expense arising from such equipment or materials or the use thereof, except to the extent of ABC’s proportionate fault.
9. Release or Transfer of Goods
No goods shall be released or transferred except upon receipt by ABC, LLC of complete and clear written instructions from authority. However, when no negotiable receipt is outstanding, goods may be released upon instruction by telephone, but ABC shall not be responsible for loss or error occasioned thereby. Customer shall afford ABC a reasonable time to release goods and shall afford ABC at least 10 business days after receipt of a delivery order to locate any misplaced goods. If ABC has exercised reasonable care and is unable, subject to the force majeure clause, to release goods before expiration of the current storage period, the goods will be subject to storage charges for each succeeding storage period. If ABC is unable to release goods because of acts of God, flood, war, public enemies, seizure under legal process, strikes, lockouts, riots, civil commotions, other force majeure causes, or any reason beyond ABC’s control, or because of loss or destruction of goods for which ABC is not liable, or because of any other excuse provided by law, ABC shall not be liable for failure to release the goods, and the goods remaining in storage will continue to be subject to regular storage charges. All instructions and requests for release or transfer of title are received subject to satisfaction of all charges, liens, and security interests of ABC with respect to the goods, whether for accrued charges, advances, or otherwise.
ABC may require, as a condition precedent to releasing, a statement from Customer holding ABC harmless from claims of others asserting a superior right to Customer to possession of the goods. Nothing herein shall prevent ABC, LLC 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 ABC relating to ABC’s activities referred to in this subsection may be charged to Customer and shall be subject to ABC’s lien described herein.
10. ABC’s Limited Liability
ABC shall not be liable for any loss or injury to goods stored, however caused, unless such loss or injury resulted from the failure by ABC, LLC to exercise such care in regard to them as a reasonably careful warehouse would exercise under like circumstances, and ABC is not liable for damages which could not have been avoided by the exercise of such care. ABC and Customer agree that ABC’s duty of care does not extend to providing a sprinkler system at the warehouse or any portion thereof. ABC shall not be liable in contract, tort, or otherwise for incidental, special, consequential, exemplary, or punitive damages in connection with its performance under these terms, including without limitation, lost profits and lost opportunity, even if such damages were reasonably foreseeable and even if ABC was notified of the possibility of such damages, and even if such claim, action, loss, liability, or reasonable expenses is caused in whole or in part by a pre-existing defect, the negligence (whether sole, joint, or concurrent), gross negligence, strict liability, or other legal fault of ABC (or any such indemnitee). In the event of loss, damage, or destruction to goods for which ABC is legally liable, Customer agrees that ABC’s maximum liability shall be limited to the fee paid for storage. Customer may, however, request an increase to the maximum liability of ABC, LLC by: a) submitting a written request for a higher maximum liability before the goods are tendered to ABC, LLC, b) paying an additional charge based on the increased maximum liability, and c) obtaining written confirmation of the higher maximum liability from an officer of ABC, LLC. This maximum liability applies to the aggregate of all of Customer’s goods stored by ABC at any given time.
Under no circumstances shall ABC’s liability for loss or damage to goods exceed the greater of 1) the amount available to cover the loss or damage under ABC, LLC’s insurance, which is subject to the policy conditions, then-existing coverage limits, and amount remaining under the policy for coverage, or 2) $500 for all of the Customer’s goods in the possession of ABC, LLC, unless Customer 1) submits a written request for ABC to be liable in excess of ABC’s insurance coverage, 2) pays an additional charge, as applicable, based on the increased liability, and 3) receives written confirmation from an officer of ABC, LLC of acceptance of liability above insurance coverage. This limitation of liability shall not alter or affect ABC, LLC’s release rate and the procedures contained herein to increase ABC’s release rate. This maximum liability applies to the aggregate of all of Customer’s goods stored by ABC at any given time.
ABC’s maximum liability referred to above shall be Customer’s exclusive remedy against ABC, LLC or any of its affiliates, employees, officers, agents, representatives, and insurers 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. Customer waives any rights to rely upon any presumption of conversion imposed by law. Where loss or injury occurs to stored goods for which ABC is not liable, Customer shall be responsible for the cost of removing and disposing of such goods and the cost of any environmental cleanup and site remediation resulting from the loss or injury to the goods.
11. Indemnification by Customer
Customer shall indemnify, defend, and hold harmless ABC, its Affiliates, lienholder, and their respective agents from any injury to or death of any person, any damage to or loss of property, any environmental damage including spills and pollution, and any resulting or related claim, action, loss, liability, or reasonable expense, including attorney’s fees and other fees and court and other costs arising from Customer’s acts or omissions related to these Terms, except to the extent of ABC’s proportionate fault.
The indemnity contained in this paragraph: (a) is independent of Customer’s insurance obligations under these Terms and Conditions, (b) will survive the termination of these Terms and Conditions, and (c) shall apply in instances where ABC, Customer, and/or third parties are at fault (except to the extent of ABC, LLC’s proportionate fault).
12. Customer’s Insurance Obligations
Customer shall maintain the following insurance policies, at Customer’s sole cost and expense, with at least the coverages described below:
- Comprehensive General Liability Insurance, including contractual liability coverage, and bodily injury and property damage coverage, with limits of no less than $1,000,000.00 per occurrence, or the amount required by law, whichever is higher.
- Worker’s Compensation Insurance or Occupational Disease Insurance, and Employer’s Liability Insurance with limits of no less than $500,000.00, or the amount required by law, whichever is higher, for accidents or occupational disease covering all work related to the Customer’s business.
- Commercial Auto Liability Insurance, with a combined single limit of no less than $500,000.00 to injuries to any person or for damages to property in any one occurrence.
- Insurance covering loss or damage for the total value of all of Customer’s goods while in the possession of ABC.
Customer’s insurance shall include the following terms, and the Customer shall furnish to ABC Certificates of Insurance evidencing the insurance required by these Terms and Conditions and the following terms:
- Inclusion of ABC and its Affiliates as additional insured on the aforementioned policies.
- Waiver of subrogation in favor of ABC on the aforementioned policies.
- The aforementioned policies shall be primary and non-contributory to any other coverage in favor of ABC.
- The policies and insurance certificates shall provide coverage in those territories as may be applicable to the location where the services will be performed.
- 30 days prior written notice will be given to ABC in the event of cancellation, suspension, or material change in the policy to which it relates.
The insurance requirements contained herein shall in no way limit Customer’s liability or responsibility under these Terms and Conditions, nor shall they be construed to be the ultimate types and amounts of insurance Customer should maintain to adequately insure itself. Failure of Customer to provide a compliant Certificate of Insurance and ABC’s failure to insist upon a compliant Certificate of Insurance shall in no way alter the requirements herein.
13. ABC’s Lien and Security Interest
To secure Customer’s performance under these Terms and Conditions, Customer grants to ABC a lien and security interest against all of Customer’s non-exempt personal property that is in or on the Warehouse. This is a security agreement for the purposes of the Uniform Commercial Code, and ABC may file a financing statement to perfect ABC’s security interest under the Uniform Commercial Code. In addition to the charges described herein, Customer shall be liable for any and all expenses ABC incurs to sell or dispose of the goods, including, but not limited to, attorney fees, transportation costs, administrative costs, and expenses necessary for the preservation of the goods. ABC shall have the right to pay another service provider, whether hired by ABC or not, for services provided with relation to transportation, handling, warehousing, or related services, including instances where ABC provides such services, ABC hires a third party to provide the services, or otherwise. Customer consents to such costs being included in ABC’s lien and sale of the goods to satisfy such costs.
14. Access Requirements
Customer shall comply with and cause each of Customer’s employees, contractors, and invitees to comply with and execute the ABC Access Requirements and furnish the executed ABC Access Requirements to ABC before Customer’s employees, contractors, or invitees access the premises. Customer’s failure to require and cause each of Customer’s employees, contractors, or invitees that enter ABC, LLC’s property to execute the ABC Access Requirements shall not constitute a waiver by ABC, LLC of the rights and remedies contained in these Terms and Conditions and the ABC Access Requirements.
Customer shall defend and indemnify ABC, LLC for any claims or damages incurred by ABC, LLC that ABC, LLC would not have otherwise incurred had the Customer fulfilled the terms in this section. The indemnity obligations under these Terms and Conditions are effective to the maximum extent permitted by law. If a law is applied in a jurisdiction that prohibits or limits the Customer’s ability to indemnify ABC, then Customer’s liability and indemnification obligation shall exist to the fullest extent allowed by the law of the relevant jurisdiction.
15. Notice of Claims
It is a condition precedent to recovery on any claim against ABC that Customer shall present all claims for loss or damage to goods to ABC in writing within 7 days after delivery or the expected delivery date of the goods underlying the claims. Customer agrees that any claims for which notice is not provided to ABC within 7 days are waived. Customer may only maintain an action by Customer or others against ABC for loss or damage to goods if said action is commenced within 6 months after delivery or the expected delivery date of the goods underlying the action. As a condition precedent to making any claim and/or filing any suit, Customer shall provide ABC a reasonable opportunity to inspect the goods which form the basis of Customer’s claim and/or suit.
16. Customer’s Representations
Customer represents and warrants that Customer has lawful possession of the goods and has the right and authority to tender those goods to ABC. Customer agrees to indemnify and hold harmless ABC from all loss, cost, and expense (including reasonable attorneys’ fees) which ABC, LLC pays or incurs as a result of any dispute or litigation, whether instituted by ABC or others, respecting Customer’s right, title, or interest in the goods. Such amounts shall be charges in relation to the goods and subject to ABC’s lien. Customer represents and warrants that the information concerning the goods it provides ABC will be accurate, complete, and sufficient to comply with all laws and regulations concerning the storage, handling, and transporting of the goods, and Customer shall indemnify, defend, and hold ABC harmless from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which ABC pays or incurs as a result of Customer’s failure to comply with this provision.
17. Warehouse Receipt
Any warehouse receipt issued by ABC, LLC in connection with these Terms and Conditions will be non-negotiable. A warehouse receipt, if issued by ABC, LLC, may be issued in either physical or electronic form at ABC, LLC’s option.
18. Abandoned Property
ABC may retain, destroy, or dispose of any property left on the Premises after the termination of these Terms and Conditions by providing 30 days’ written notice to Customer by certified mail at Customer’s last known address.
19. Force Majeure
ABC shall not be liable for failure to perform any of its obligations during any time in which such performance is prevented by fire, flood, hurricane, storm, weather-related incidents, or other natural disasters, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of ABC.
20. Governing Law; Venue
These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all disputes under these Terms and Conditions shall be filed in Harris County District Court to the exclusion of federal courts.
21. Non-Waiver
The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions, or to exercise any right in any one or more instances or circumstances, shall not be construed as a waiver or relinquishment of such provision or right, nor shall such failure or refusal be deemed a customary practice contrary to such provision or right.
22. Severability
If any provision in these Terms and Conditions is held to be unenforceable, the parties intend and request that the provisions be reformed and replaced with a provision as close as the parties’ original intent as permitted by law and that as much of these Terms and Conditions remain in effect as permitted by law.
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