WAREHOUSE TERMS AND CONDITIONS
Depositor’s property described on an issued receipt is stored and handled in accordance with the terms and conditions of this Agreement and those terms and conditions contained below.
1. Subject of Agreement. Warehouseman will provide Depositor with storage services, ordinary handling services and such additional services with respect to Depositor's goods as are described in Sections 3, 4, and 10 of this Agreement. Such services will be provided at the warehouses located at (See Section 1 of this Agreement) or such other location as is determined according to Section 1 of this Agreement. Depositor has inspected the facilities of the Warehouseman and has approved said facilities for the storage of its goods. All services provided by Warehouseman will be provided in a good and workmanlike manner consistent with standard industry practice.
Storage services means the act of storing Depositor's goods in the warehouse.
Ordinary handling services means the acts of receiving goods at the warehouse door, placing goods in storage and returning goods to the warehouse door all during normal business hours. Ordinary handling services do not include unloading goods prior to receipt nor loading goods following re-delivery thereof to the warehouse door.
Additional services are those described in Page 3, Section 10 of this Agreement.
2. Terms of Agreement.
(a) This Agreement will be in full force and effect from the later of the date of execution of this Agreement by the last to sign of Depositor and Warehouseman (the “Execution Date”) or the date on which the Depositor first tenders goods for storage under this Agreement, provided that such tender to Warehouseman takes place within 30 days of the Execution Date and shall continue until either (i) Depositor or Warehouseman terminates this Agreement by giving not less than thirty (30) days written prior notice to the other and all goods of Depositor are thereafter removed from the warehouse or (ii) no goods of Depositor are stored in the warehouse for a period of sixty consecutive days.
(b) Subject to the terms and conditions of this section 2, this Agreement may be transferred by Depositor should Depositor sell, merge, consolidate, assign or transfer its business interests, assets or ownership to a third party buyer. In the event of such intended transfer, Depositor shall serve written notice thereof not less than 30 days prior to the intended transfer. Warehouseman's consent shall not be required for any valid transfer unless it is deemed that Warehouseman may be harmed financially by such a transfer. No transfer shall be effective until such time as the transferee or assignee of the original Depositor executes an agreement in writing under which the new depositor acknowledges its responsibility and liabilities under the terms of this Agreement.
3. Description of Goods, Additional Services and Rates.
(a) All descriptions and rates shall remain in effect pursuant to Section 2 unless otherwise mutually agreed to by both parties.
(b) Additional Services not described in Section 3 of this Agreement shall be provided at the rates set out in Warehouseman’s supplemental price list on Page 3, Section 10 of this Agreement.
4. Payment for Services.
(a) Storage and handling charges are computed on the basis of the number of packages or gross weight or such other unit as is described in Section 3 of this Agreement. Goods placed in storage during the first half of the month are assessed the full month storage charge. Goods placed in storage after the 15th of the month will be assessed ½ of one month’s storage charge. Storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of each calendar month.
(b) Ordinary handling charges are payable upon Warehouseman’s receipt of goods at the warehouse.
(c) All other undisputed charges are payable upon receipt by Depositor of Warehouseman's statement therefor.
(d) A minimum handling charge per lot and a minimum storage charge per month will be made. When a warehouse receipt covers more than one lot or when a lot is in assortment, a minimum charge per mark, brand or variety will be made. A minimum monthly charge or one account for storage and/or handling will be made. The charge will apply also to each account when one customer has several accounts each requiring separate records and billing (See Agreement).
(e) Any undisputed invoices or charges which remain unpaid 45 days after the invoice date will be subject to a 1 ½ % monthly late payment penalty (18% annually).
5. Shipping and Tender for Storage.
(a) All goods tendered by Depositor for storage at the warehouse must be delivered to the warehouse properly segregated, marked and packaged for handling. A manifest shall be furnished to Warehouseman identifying the goods, and specifying the warehouse procedures or type of storage and other services to be performed.
(b) Warehouseman will have no obligation for any charges of any kind, including, without limitation, detention, demurrage and shipping charge other than such charges resulting from the negligence or intentional misconduct of Warehouseman or its employees, agents or representatives (collectively, including Warehouseman, the “Warehouseman Group”). Depositor agrees to indemnify and hold harmless Warehouseman from any and all such charges for which Warehouseman has no obligation pursuant to the immediately preceding sentence.
(c) Depositor should not ship its goods to Warehouseman as named consignee. However, if this is done, Depositor must notify the carrier in writing prior to shipment that the named consignee is a Warehouseman and has no beneficial title or interest in the goods.
(d) If Depositor fails to notify the carrier as provided in (c) above, Warehouseman may refuse to accept goods shipped to Warehouseman as named consignee, without liability of any kind for any loss, injury or damage to goods so shipped.
(e) Warehouseman may refuse, without liability of any kind to accept goods, which, because of their condition, might cause, in Warehouseman's reasonable judgment, infestation, contamination or damage to the warehouse or to other goods in the custody of Warehouseman. Warehouseman will promptly notify Depositor prior to its refusal to accept goods and the reason for its refusal. Warehouseman and Depositor shall immediately work jointly to resolve to their mutual satisfaction disposition of any refused goods.
6. Delivery, Transfer and Removal of Goods.
(a) Instructions to Warehouseman to deliver goods in its custody will not be effective until received in writing by Warehouseman; provided, however, that Depositor may, by writing, authorize and instruct Warehouseman to rely on electronically transmitted instructions from Depositor as to where to deliver the goods. Warehouseman will not be liable for any loss or error in connection with delivery of goods which result from any electronically transmitted instructions unless such loss or error results from the negligence or intentional misconduct of any of the Warehouseman Group and will be entitled to assume that the person giving such electronically transmitted instructions is authorized by Depositor to do so.
(b) Warehouseman will deliver goods or prepare goods for delivery within 1 day following receipt of instructions to do so. If Warehouseman is unable to carry out such instructions because of reasons beyond its reasonable control or because of loss or destruction of goods for which it is not liable, or because of any other circumstances justified by law, Warehouseman will not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to storage charges, provided, however, that Warehouseman has exhausted its best efforts in so trying to carry out such instructions.
(c) If, in the reasonable judgment of Warehouseman, goods or packagings of Depositor in Warehouseman’s custody will cause infestation, chemical leak or spill, pollution to the environment, necessary clean up, necessary professional remediation, health hazards to the Warehouseman's employees or agents, contamination or damage to the warehouse, or to other goods in its custody, Warehouseman may require Depositor, at Depositor's sole expense, to remove such goods within such time as Warehouseman believes reasonable under the circumstances. If Warehouseman reasonably determines that the condition of such goods is such that it must act promptly to protect its premises or other goods in its custody, it may remove the goods at Depositor's sole expense given prior telephone notice to Depositor. Warehouseman will, however, notify Depositor in writing as soon as practical under the circumstances and Warehouseman will whenever possible undertake these efforts in coordination with Depositor and with Depositor's approval. In all such events, Warehouseman will not be liable by reason of such removal whether by it or by Depositor or others except where any of the Warehouseman Group is negligent or engages in intentional misconduct.
7. Special Characteristics of Goods. Depositor will be responsible for notifying Warehouseman in writing in advance of delivery of any goods of any special characteristics thereof of which Depositor is aware which may affect storage of the goods, the warehouse, or the other goods in the warehouse. Upon receipt of such information, Warehouseman may, without liability, refuse to accept such goods if in its reasonable judgment such special characteristics will adversely affect the warehouse or other goods in the warehouse. Depositor will be liable for all damage, direct or indirect, resulting from such special characteristics of which Warehouseman has not been notified in writing by Depositor.
8. Removal and Disposal of Goods
(a) If Warehouseman reasonably believes that any of Depositor's goods or packagings have caused or are about to cause chemical leak or spill, pollution to the environment, necessary clean up, necessary professional chemical remediation, product or pollution remediation, necessary repackaging, health hazards to the Warehouseman's employee's or agents, damage or contamination to the warehouse or any other goods in the warehouse or have characteristics which make their storage in the warehouse illegal, and after giving notice to Depositor as is reasonable under the circumstances, Warehouseman, with Depositor's approval and at Depositor's sole expense (except where such occurrence results from the negligence or intentional misconduct of any of the Warehouseman Group), will order professional chemical or product remediation, clean up, and packaging contractors to return warehouse to its pre-occurrence condition, repackage products for proper and lawful transportation and disposal. Warehouseman will only use remediation, clean up, packaging and disposal firms approved for use by the Depositor and will undertake these efforts in coordination with the Depositor. Depositor authorizes Warehouseman, pursuant to the conditions contained herein to dispose of the goods in any lawful manner and Warehouseman will not be named generator and will incur no liability by reason thereof unless such liability results from the negligence or intentional misconduct of any of the Warehouseman Group . In the event of a governmental agency order to remove product from the warehouse, Warehouseman will make reasonable efforts to notify Depositor of the aforementioned order and will make every attempt, given the circumstances, to await disposition from the Depositor. If pending disposition is averse to, conflicts with or violates any governmental agency order, Warehouseman may, at Depositor's sole expense, remove the goods from the warehouse and will incur no liability by reason of such removal unless such liability results from the negligence or intentional misconduct of any of the Warehouseman Group. In any and all cases, Depositor shall be named and identified as the generator of any materials disposed of or otherwise dealt with pursuant to this Agreement and all disposal or similar activity shall occur using Depositor's generator I.D. number.
(b) Under any circumstances, damaged product cannot remain in the warehouse indefinitely. As a result, all damage must be removed, at Depositor's sole expense (except where damage results from the negligence or intentional misconduct of any of the Warehouseman Group in which case such removal shall be at Warehouseman’s sole expense), within 60 days of occurrence or notification. Except where product damage is caused by the negligence or intentional misconduct of any of the Warehouseman Group, if damaged product is not removed within 60 days of occurrence or notification Warehouseman reserves the right, to increase any applicable storage rates herein for damaged product with seven days prior notice to Depositor.
(c) Except where such damage or injury is caused by the negligence or intentional misconduct of any of the Warehouseman Group Depositor shall also be responsible for the loss, damage or injury to other goods in Warehouseman’s custody as a result of any of the aforementioned conditions.
9. Limitation of Damages.
(a) In accordance with the Uniform Commercial Code, Warehouseman will not be liable for any loss or damage to goods stored however caused unless such loss or damage results from the failure of Warehouseman to exercise such care in regard to the goods as a reasonably careful man would exercise under like circumstances. Also, Warehouseman will not be liable for damages which could not have been avoided by the exercise of such care. In case of loss or damage to goods, Warehouseman's liability will be limited to 50 times the monthly storage rate (See Agreement) for such goods, provided that such liability may at the time of acceptance of this Agreement as provided, be increased upon Depositor’s written request on all or part of the goods hereunder in which event an additional monthly charge will be made based upon such valuation. Warehouseman's total liability in any case shall not exceed those limits set forth in the Warehouseman's Warehouse Legal Liability insurance policy or the Depositor's calculated limit of liability as provided in this section 9 (a) according to the Warehouseman's stated limits for the Depositor, whichever is less. Warehouseman agrees to reimburse the Depositor for the difference, if any, between the sales price of the damaged material and the manufactured cost of the damaged material. Such reimbursement will not exceed the Warehouseman's stated limit of liability contained herein. During inventory reconciliation's, overages shall offset shortages and the results of each inventory shall stand on its own. Depositor shall notify Warehouseman in writing of any suspected loss as soon as reasonably possible to allow Warehouseman to ability to investigate the matter. Any claims by Depositor against the Warehouseman shall be submitted within 90 days, or as soon as reasonably possible, after the Depositor has notice of such loss or damage.
(b) In further consideration of the rates herein and in keeping with the definitions of Warehouseman's Legal Liability contained herein and in article 7-204 of the Uniform Commercial Code, Depositor agrees to a shrinkage allowance of 1/4 of 1% of the value of the goods stored (based on annual thruput) for which, in the case of loss or damage to goods or mysterious disappearance, however caused, Warehouseman will not be liable.
(c) Goods which are subject to damage through temperature or humidity changes or other causes incident to general storage will be received in general storage only at Depositor's risk for such damage as might result from general storage conditions.
(d) Warehouseman and Depositor mutually agree to waive the rights of subrogation of their respective insurance carriers of their fire, and extended coverage policies.
(e) In the event of shipping error however caused or constituted, Warehouseman shall be liable for transportation charges only.
(f) All goods under the responsibility of the Warehouseman are at Depositor's risk of loss or damage caused by fire, wind, water, sprinkler leakage, rats, mice, vermin, leakage or providential causes, or by enemies of Government, or mobs, or breakable goods not properly packed, or from any cause beyond the control of the Warehouseman. The Warehouseman will assume no responsibility for concealed damage, leakage, variation in weights, or for loss in weight by reason of defective or insufficient containers, or delays, whether occurring while goods are in storage or are being handled, not for failure to detect or remedy same, not for loss or delays caused by strikes or civil commotions. Notwithstanding anything contained in this Agreement to the contrary, Warehouseman shall be liable for all damages, losses, costs and expenses arising out of or caused by the negligence or intentional misconduct of any of the Warehouseman Group pursuant to the Terms of Paragraph 9 (a).
(g) Warehouseman shall not insure goods for the benefit of Depositor, but shall owe Depositor only those duties specified in sections 9(a), (b), (c), (d), (e) and (f) of this Section 12 of this Agreement.
(h) Notwithstanding anything contained in this Agreement to the contrary, pursuant to the terms of this Agreement, neither party shall be responsible for any loss of profit, revenue or special, indirect or consequential damages of any kind.
(i) Each party agrees to reimburse the other party for reasonable attorney fees and expenses incurred in the enforcement of this Agreement.
(j) At Depositor’s request and given written shipping instructions to do so, Warehouseman may stencil, mark, code or label certain products (Marked Product) for shipment to Depositor’s customers. Warehouseman does not warrant the accuracy of these markings but will make every effort to ensure proper markings are applied as requested by the Depositor. It is incumbent upon Depositor’s customer to ensure the product they are receiving is correct via the manufacturer’s original product labels, printing or markings on the product and not to rely solely upon the Product Markings applied by Warehouseman. In the event such Product Markings applied by Warehouseman are inaccurate and Depositor’s customer uses the product in any manner, Warehouseman’s liability shall be limited to the terms expressed in this section 9.
10. Force Majeure.
(a) If Warehouseman is rendered unable, wholly or in part, by force majeure or any other cause of any kind not reasonably within its control, to perform or comply with any obligation of this Agreement, upon giving notice and reasonably full particulars to the Depositor, such obligation shall be suspended during the continuance of the force majeure and to the extent of the inability of the Warehouseman and such party shall be relieved of liability for failure to perform the same during such period. Warehouseman shall use its best efforts to minimize the length and extent of any such force majeure event.
(b) The term "force majeure" shall include but not be limited to acts of God, the public enemy, terrorists and acts of terrorism, fire, flood, explosion, sabotage, accidents, strikes and other industrial, civil or public disturbance, and compliance with any orders, acts, statutes, laws, ordinances or restraint of government or governmental bodies or authorities, civil or military.
11. Indemnification. Each party shall in the performance of this Agreement indemnify, defend and hold harmless the other and its respective employees, representatives, agents, officers, directors, shareholders, invitees and licensees against loss, claim, cost, debt, expense, obligation, tax, assessment, contract agreement, undertaking, deficiency of any kind or nature, liquidated or unliquidated (including but not limited to reasonable attorney's fees and other actual costs and expenses incident to proceedings or investigations or the defense of any claim, whether or not litigation has commenced) arising out of, resulting from, or relating to the performance of or any breach of this Agreement by the other party or any of its employees, representatives, agents, officers or directors.
12. Hazardous Material Compliance.
(a) Hazardous material shall be defined as found in the Code of Federal Regulations 49 Parts 100 to 177, Sections 171.8.
(b) Pursuant to Code of Federal Regulations 49 Part 100 to 177, Section 172.604,a, the Depositor of hazardous material must supply Warehouseman an emergency phone number manned twenty-four hours a day. This phone number will be placed on all Bills of Lading and shipping documents. This number must be made available prior to the tendering of goods to the Warehouseman for storage.
(c) Pursuant to Code of Federal Regulations 49 Parts 100 to 177, Section 172.602, the Depositor understands that the Warehouseman must provide Emergency Response Guidebooks or M.S.D.S. copies to any truck drivers handling or transporting hazardous material, should they not possess one. The cost of five dollars ($5.95) per copy shall be borne by the Depositor.
(d) The Depositor must provide Warehouseman with any and all information necessary to properly and lawfully prepare shipping documents prior to tendering goods for storage, in order to lawfully ship product via highway, air or rail. All information provided shall be pursuant to The Transportation Regulations of the United States Department of Transportation, any and all local, state or federal agencies with jurisdiction and law making power in reference to transportation via highway, air or rail and the future and current laws contained in The Code of Federal Regulations 49, parts 100 through 199, Transportation. The Warehouseman reserves the right to refuse receipt or shipment of any product or order for which the aforementioned information has not been properly provided.
(e) Material Safety Data Sheets (M.S.D.S.) will be prepared and provided by the Depositor. Updates, changes and record keeping are the responsibility of the Depositor. Any costs to the Warehouseman relevant to the reproduction of M.S.D.S. for Federal, State or Local reporting purposes shall be borne by the Depositor. In addition to Warehouseman's right to refuse to accept goods as set forth in other sections of this Agreement, the Warehouseman reserves the right to refuse receipt or shipment of any product for which an M.S.D.S. has not been received from the Depositor.
(f) The Depositor shall be responsible for any reasonable, documented costs incurred by the Warehouseman including but not limited to fines, court costs, penalties, traveling expenses, attorney fees, lost wages and personal injury as a result of the Depositor failing to direct or supply the information to the Warehouseman required by applicable laws, statutes or ordinances governing hazardous material. Those laws and ordinances are including but not limited to the Code of Federal Regulations 49, Sections 100 through 199, Transportation, Code of Federal Regulations 40, Sections 300 through 399, Protection of Environment the laws and regulations for the transportation of hazardous materials mandated by the United States Department of Transportation, the Federal Clean Air Act, the Federal Water Pollution Control Act, The Occupational Safety and Health Act (OSHA), the Toxic Substances Control Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Federal Hazardous Materials Transportation Act, S.A.R.A. Title III, as well as other applicable Federal, State, County and Local laws and regulations.
Need to have the applicable protocols and regulations mandated by Canadian Provincial and Federal government.
(g) The Depositor shall be responsible for any reasonable, documented costs incurred by the Warehouseman as a result of Warehouseman preparing, completing, or submitting any required reports, audits or submissions on the Depositor's behalf required by applicable laws, statutes or ordinances governing hazardous material. The Depositor also authorizes the Warehouseman to provide all information required by said laws, statutes or ordinances. Those laws and ordinances are including but not limited to the Code of Federal Regulations 49, Sections 100 through 199, Transportation, Code of Federal Regulations 40, Sections 300 through 399, Protection of Environment the laws and regulations for the transportation of hazardous materials mandated by the United States Department of Transportation, the Federal Clean Air Act, the Federal Water Pollution Control Act, The Occupational Safety and Health Act (OSHA), the Toxic Substances Control Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Federal Hazardous Materials Transportation Act, S.A.R.A. Title III, as well as other applicable Federal, State, County and Local laws and regulations. This Agreement shall be governed by the laws of Canada, without reference to its conflict of law principles for TDG, the Occupational Health and Safety Act of Ontario, and W.H.M.I.S.
(h) The Depositor shall be responsible for any reasonable, documented costs or penalties incurred by the Warehouseman as a result of products placed in packaging by Depositor that is deemed not to comply with applicable laws, statutes or ordinances for the product the packaging contains. Depositor acknowledges and agrees it is the Depositor’s sole responsibility to ensure legal, certified, UN approved and appropriate packaging is utilized for all products it may manufacture, sell or distribute. The Warehouseman shall not be responsible in any event, for packaging deficiencies of any kind, nor the reporting of it, provided, however, that should Warehouseman become aware of any such deficiencies, it will promptly notify Depositor thereof. Depositor acknowledges and agrees the Warehouseman is acting on behalf and behest of Depositor by endorsing packaging certifications on Bills of Lading or other shipping manifests and is therefore holding Warehouseman harmless from penalty, lawsuit or citation relating to deficient packaging
13. Lien of Warehouseman The Warehouseman shall be granted all the lien rights and remedies provided by Section(s) 7-209, 7-210 and all other sections of the Uniform Commercial Code governing Warehouseman and Depositor’s (bailors) relationship. The Warehouseman’s Lien shall be senior to all other Liens imposed on the goods of the Depositor and shall not be subordinate to any other Liens. Any alterations or waivers of the Warehouseman’s Lien Rights must be conveyed in writing, signed and accepted by Warehouseman. Any implied or verbal understandings are null and void. Warehouseman agrees and acknowledges that title to the Depositor’s goods shall at all times remain with Depositor and that Warehouseman shall take no action (except to enforce its warehouseman lien under this section 13) or allow any action to be taken which would adversely affect Depositor’s title or cause any encumbrance, lien or other title defect to arise. Warehouseman shall segregate Depositor’s goods from other goods held by Warehouseman and shall clearly identify Depositor’s goods as belonging to Depositor.
14. Entirety of Agreement This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings between them relating to the subject matter hereof. Any amendment, modification or addendum to this Agreement shall be effective only if in writing, specifically stated in this Agreement and signed by each party hereto. Any implied agreements, modifications or addendums, shall be notwithstanding and considered void.
15. Relationship of Parties. Warehouseman and Depositor are independent contractors and shall not be deemed to have entered into any partnership, agency, joint venture or other similar relationship as a result of having entered into this Agreement.
16. Inventory Segregation. Enthone and WTI will have both “Finished Goods” as well “Raw Material” inventory located at 440 Passmore. The details of the segregation are outlined in Exhibit A.
Warehouseman has 450 spaces for Finished Products and 144 spaces for raw material inventory. All spaces have been assigned a grid location. All Finished Products and Raw Materials upon receipt will be assigned a grid location, which will track material identification, quantities, and batch numbers to ensure stock rotation and FIFO. Grid locations for raw materials are; G01-G56, F01-F40, and H01-H48. Grid locations for Finished Products are; A01-A100, B01-B100, C01-C100, D01-D50, E01-E100. Bulk section is listed as Bulk 1- 29 spaces and Tote locations are assigned DOO for a capacity of 36 totes.