WAREHOUSING AGREEMENT
This Agreement (“Agreement”) is made and entered into this day of , 20
(“Effective Date”) by and between with its principal
place of business at
USA ("DEPOSITOR”),
and ABC Logistics LLC with its principal place of business at __________________________________________
(“ABC”).
WHEREAS, Depositor requires third party logistics management
services to provide the storage space, materials handling facilities and personnel
necessary for the receipt, storage, and delivery of its goods (“Goods”); and
WHEREAS, ABC has certain warehousing facilities and services of the
type and kind desired by Depositor identified in Schedule B (“subject
warehouse(s)”); and
WHEREAS, ABC desires to make said facilities and services
commercially available to Depositor
subject to the terms herein specified.
NOW, THEREFORE, for and in consideration of the mutual agreements,
covenants and promises herein contained, it is hereby mutually agreed,
covenanted and promised as follows:
Section 1. Term Of Agreement
(A)
The term of this Agreement shall commence on the
date of its execution by the parties hereto and shall continue thereafter in
full force and effect for a period of one (1) year and shall thereafter automatically renew on a yearly
basis unless terminated prior to 90 days before the expiration of the
current term.
(B)
If either party shall fail to perform any of the
covenants or obligations of performance and payment imposed upon it under and
by virtue of this Agreement (except where such
failure is excused under other provisions of this Agreement), the other party
shall give the defaulting party written notice, stating specifically the cause
for which the notice of default is given. If,
within a period of sixty (60) days after such notice the defaulting party has
not removed and remedied the default, then the party not in default may cancel this Agreement without
any further obligation by immediately furnishing the defaulting party a notice
of cancellation.
Section 2. Acceptance Of Goods, Rates And Charges
(A) During the term of this Agreement, and any
extensions or renewals thereof, ABC agrees to provide for DEPOSITOR certain
warehousing facilities and services described in this Agreement and the
attached Schedule “A” that is made a part hereof, and to accept and keep in a
neat and orderly condition such goods described in Schedule “A” as from time to time may be tendered by DEPOSITOR.
(B) ABC agrees to furnish personnel, equipment and other
accessories necessary to perform efficiently and with safety the services
herein described.
(C) Rates and charges for warehousing services are set
forth in Schedule “B”. For any
services not specified in Schedule “B”. DEPOSITOR
shall pay to ABC such consideration in compensation as may mutually be agreed
upon in writing.
(D) Warehouse labor required for services other than
ordinary handling and storage must be authorized by DEPOSITOR in advance. Rates and
charges will be provided for herein
or as mutually agreed by the parties hereto (See Schedule “B”).
ABC Initials Date Customer
Initials Date
Section 3. Payment
Terms For Services
Rendered
Consideration for ABC’s performance of this Agreement shall be paid to ABC by DEPOSITOR within fifteen (15) days after date of ABC’s invoice, which shall be submitted by ABC. DEPOSITOR may not dispute invoices after more than thirty (30) days from date of invoice. In addition, DEPOSITOR may not offset payment of invoices for disputed claims without the prior written consent of ABC.
Section 4. Shipping
DEPOSITOR agrees not to ship goods to ABC as the named consignee. If, in violation of this Agreement, goods are shipped to ABC as named consignee, DEPOSITOR agrees to notify carrier in writing prior to such shipment, with a copy of such notice to ABC, that ABC named as consignee is a warehouseman under law and has no beneficial title or interest in such property. DEPOSITOR further agrees to indemnify and hold harmless ABC 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 preceding sentence, ABC 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.
Section 5. Tender For Storage
All goods tendered for storage shall be delivered at the warehouse in a segregated manner, properly marked and packaged for handling. DEPOSITOR shall furnish or cause to be furnished at or prior to such delivery, a manifest showing the goods to be kept and accounted for separately. In the event that goods tendered to ABC do not conform to the description provided to ABC by DEPOSITOR, ABC may refuse to accept such goods. If ABC accepts such goods, DEPOSITOR agrees to pay the rates and charges as set forth in this Agreement and the Exhibits attached thereto. ABC is not a guarantor of the condition of such goods under any circumstances including but not limited to hidden, concealed, or latent defects in the goods. Concealed shortages, damage or tampering will not be the responsibility of ABC. In no event will ABC be liable for loss or damage caused by the events set forth in the Force Majeure section of this Agreement or the inherent vice or nature of the goods.
Section 6. Transfer
Of Goods
(A) Instructions to transfer goods on the books of ABC
shall not be effective until said instructions are delivered to and accepted by
ABC, and all charges up to the time transfer is made shall be chargeable to
DEPOSITOR. If a transfer involves the
rehandling of goods, it will be subject to rates and charges shown in the
attached Schedule “B” or as otherwise mutually agreed upon. 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 such transfer.
(B) ABC may move goods within the warehouse in which
they are stored as ABC deems necessary to maintain storage and handling
efficiencies. ABC may move goods to
another warehouse operated by ABC only with the prior written consent of
DEPOSITOR.
(C) If ABC in good faith believes that the goods are
about to deteriorate or decline in value to less than the amount
of ABC’s lien before the end of the next
ABC Initials Date Customer
Initials Date
succeeding storage month, ABC may immediately notify DEPOSITOR in writing of a reasonable 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.
(D)
If, as a result of a quality or condition of the
goods of which ABC had no notice at
the time of deposit, the goods are a hazard to other property or to the
warehouse or to persons, ABC shall immediately notify DEPOSITOR and DEPOSITOR
shall thereupon claim its interest in the said goods and remove them from the
warehouse. Pending such disposition ABC
may remove the goods from the
warehouse and shall incur no liability by reason of such removal.
Section 7. Handling
(A)
Handling rates and charges as shown in the attached
Schedule “B” shall, unless otherwise agreed, cover the ordinary labor involved
in receiving goods at a warehouse door or dock, placing goods in storage, and
returning goods to warehouse door or dock. Additional expenses incurred by ABC
in loading or unloading cars or
vehicles shall be at rates shown in
attached Schedule ”B” or as otherwise mutually agreed upon.
(B)
ABC shall not be liable for demurrage, detention or
delays in unloading inbound cars or detention or delays in obtaining and
unloading cars or, vehicles for outbound shipments unless ABC has failed to
exercise reasonable care and judgment as determined by industry practice.
(C)
When goods are ordered out by DEPOSITOR in
quantities different than as received, ABC may make an additional charge for
each such order or each item of such an order.
Section 8. Standard
of Care and Liability, Limitation Of Damages
(A)
ABC shall not be liable for any loss, damage or
destruction to goods, however caused, unless such loss, damage, or destruction
resulted from ABC’s failure to exercise such care in regard to the goods as a
reasonably careful Warehouseman would exercise
under like circumstances. ABC will not be liable for damage of
any type which could not be avoided by the exercise of such care.
(B)
In the event of loss, damage or destruction to
stored goods for which company is legally liable, DEPOSITOR declares that ABC’s
liability for damages shall be limited to the lesser of the following
amounts (1) the actual cost to DEPOSITOR of replacing or reproducing the
damaged goods together with transportation costs to warehouse (2) the fair
market value of the goods on the date ABC is notified of loss, damage or
destruction, or (3) 50 times the monthly storage charge applicable to such
lost, damaged or destroyed goods, or
(4) the greater of (i) $.50 per pound net weight of the goods, exclusive of
tare, or (ii) $12.00 per cubic foot, provided, however that within a reasonable
time after receipt of this
agreement, DEPOSITOR may, upon written request,
increase contractor’s liability in part on all of the goods stored under the
agreement, in which case an increased charge will be made based upon such
increased valuation: further provided that
no such request shall be valid unless
made before loss, damage or
destruction to any portion of the goods stored under this agreement has
occurred.
(C)
The limitation of liability referred to in paragraph
(B) above shall be DEPOSITOR’S exclusive remedy against ABC for any claim or
cause of action whatsoever relating to loss, damage, and/or destruction of the
stored goods and shall apply to all claims including inventory
shortage and mysterious disappearance claims unless
ABC Initials Date Customer
Initials Date
DEPOSITOR proves by affirmative evidence that ABC converted the
goods to its own use. DEPOSITOR waives any rights to rely upon
any presumption of conversion imposed by law.
In such event DEPOSITOR shall not be entitled to incidental, special,
punitive or consequential damages.
(D)
DEPOSITOR acknowledges and agrees that ABC is not an
insurer or guarantor of any goods
placed in its possession by DEPOSITOR pursuant to this Agreement.
(E)
Where loss or injury occurs to DEPOSITOR’S goods,
for which ABC is not liable, DEPOSITOR shall be responsible for the cost of
removing and disposing of such goods, as well as the cost of any environmental
cleanup and/or site remediation resulting
from the loss or injury to such goods.
(F)
Waiver of subrogation. The parties acknowledge that
it is the intent of this Agreement to limit ABC’s liability in connection with
loss or damage to DEPOSITOR’S product resulting from ABC’s negligence and covered by ABC’s legal
liability insurance carried by ABC. DEPOSITOR
and its insurers hereby waive their rights of recovery against ABC for claims
in excess of ABC’s liability as expressed in Section 8.
Section 9. Notice
Of Loss And Damage, Claim And Filing
Of Suit
(A)
ABC agrees to notify DEPOSITOR
promptly of any loss or damage, however caused, to goods handled under
the terms of this Agreement.
(B)
Claims by DEPOSITOR must be presented in writing to ABC
not longer than either ninety (90) days after delivery of goods by ABC or
ninety (90) days after DEPOSITOR is notified by ABC that loss or injury to part
or all of the goods has occurred, which ever time is shorter. Each claim must contain information
necessary to identify the goods affected, the basis for liability and the
amount of the alleged loss or damage, as well as all appropriate supporting
documentation which must include: a summary of claims for both damaged and
shortages of items, a report of individual carton ID’s and their appropriate
claims designation, including claim value, and individual claim forms for each
claim that is supported by the report also provided.
(C)
No action may be maintained by the DEPOSITOR or
others against the ABC for loss or
injury to the goods stored unless timely written claim has been given as
provided in paragraph (B) of this section and unless such action is commenced
either within nine months after date of delivery by ABC or within nine months
after DEPOSITOR of record is notified that loss or injury to part or all of the
goods has occurred, whichever time is shorter.
Section 10. Liability
For Consequential Damages
ABC shall not be liable for any loss of profit or
special, indirect, or consequential damages of any kind arising from services
or other activities performed pursuant to this Agreement.
Section 11. Liability For Misshipment and Chargebacks
(A)
If goods are mis-shipped and if the
consignee fails to return the goods, ABC’s maximum liability for the lost
or damaged goods shall be as specified
in Section 8 above, and ABC shall have no
liability for damages due to the consignee’s acceptance
ABC Initials Date Customer
Initials Date
or use of the goods whether
such goods be those of the DEPOSITOR or another.
(B)
ABC shall not be responsible for charge backs of any kind.
(C)
Any and all claims made pursuant to this Section
must be in compliance with the
requirements set forth in Section 9(B).
Section 12. Mysterious Disappearance
ABC shall not be liable for loss of goods due to
inventory shortage or unexplained or mysterious disappearance of goods unless
DEPOSITOR establishes such loss occurred because of ABC’s failure to exercise
the care required of ABC under Section 8 above. Any presumption of conversion imposed by law shall not apply to
such loss and a claim by DEPOSITOR of conversion must be established by
affirmative evidence that ABC converted the goods to ABC’s own use.
Section 13. Force Majeure
Neither DEPOSITOR nor ABC shall be liable to the other for default in the performance
or discharge of any duty or obligation under this Agreement when caused by acts
of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm,
earthquake, public enemy, civil commotion, strikes, labor disputes, work
stoppages or other difficulties within the workforce, failure to provide power
by the utility provider, intentional or malicious acts of third persons or any
other organized opposition, corruption, depredation, accidents, explosions,
fire, water sprinkler leakage, moths, vermin, insect, seizure under legal
process, embargo, prohibition of import or export of Goods, closure of public
highways, railways, airways or shipping lanes, governmental interference or
regulations, or other contingencies, similar or dissimilar to the foregoing,
beyond the reasonable control of the affected party. Upon the occurrence of such an event the party seeking to rely
on this provision shall promptly give written notice to the other party of the
nature and consequences of the cause. If
the cause is one which nevertheless requires ABC to continue to protect the
Goods, DEPOSITOR agrees to pay the storage or similar charges associated with ABC’s
obligation during the continuance of the force majeure. All Goods are stored, handled, and transported at DEPOSITOR’s
sole risk of loss, damage, or delay caused by any of the above.
Section 14. Insurance
ABC shall maintain the following insurance
policies:
COVERAGE LIMIT
Warehouseman's Legal Liability $1,000,000.00
Commercial General Liability $2,000,000.00
Section 15. Right To Store Goods and Warehouseman's Lien
(A)
DEPOSITOR represents and warrants that DEPOSITOR is
lawfully in possession of the goods and has the right and authority to contract
with ABC for the services contemplated by this Agreement relating to those
goods. DEPOSITOR agrees to indemnify
and hold ABC harmless from all loss, cost and expense (including reasonable
attorneys’ fees) which ABC pays or incurs as a result of any dispute or litigation,
whether instituted by DEPOSITOR or others, respecting DEPOSITOR’S right, title
or interest in the goods covered by this Agreement.
ABC Initials Date Customer
Initials Date
(B)
On goods in ABC's possession, it shall have a general
Warehouseman's lien for any unpaid
charges and associated expenses. ABC shall not permit any lien or other
encumbrance to be placed against the goods while they are in ABC’s possession
other than its general warehouseman's lien.
Section 16. Severability
The provisions of this Agreement are to be considered
as independent obligations. Therefore, should one provision be determined to be
void and not be legally enforceable, its invalidation shall not excuse
compliance with and adherence to the
remaining provisions of this
Agreement by the parties.
Section 17. Waiver
Compliance with any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively
or prospectively) by the party entitled to enforce such term, but any such waiver shall be effective only if in a
writing signed by the party against which such waiver is to be asserted. Except as otherwise provided herein, no
failure or delay of any party in exercising any power or right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such right or power preclude any other or further exercise
thereof or the exercise of any other right or power.
Section 18. Independent Contractor
It is hereby agreed and understood that ABC is
entering into this Agreement as an independent contractor and that all of ABC’s
personnel engaged in work to be done under the terms of this Agreement are to
be considered as employees of ABC and under no circumstances shall they be
construed or considered to be employees of DEPOSITOR. ABC shall supervise the performance of its own employees in
providing services for DEPOSITOR and shall have control over the manner and
means by which its services are performed, subject to the terms of this
Agreement as well as any written and mutually agreed upon amendments thereto. Nothing in this Agreement will be
interpreted as creating any relationship of principal and agent, partnership or
joint venture between the parties. Neither
DEPOSITOR nor ABC will represent in any manner to any third party that ABC is an agent of, or
affiliated with, DEPOSITOR in any capacity other than as an independent
contractor, and nothing in this Agreement shall be construed to be inconsistent
with such status.
Section 19. Notification Of Product Characteristics and Dangerous Article
(A)
DEPOSITOR shall notify ABC of the characteristics of
any of DEPOSITOR’S products that may in any way be likely to cause damage to
ABC’s premises or to other products that may be stored by ABC.
(B)
DEPOSITOR, except to the extent
hereinafter specified, represents that none of the goods which it now has in storage, or will
store in the future with ABC are adulterated, flammable, hazardous or dangerous
materials or articles, explosives or pesticides, as defined under the regulated
federal, state or local laws, statutes, ordinances, or regulations, and that
any good it now has in storage, or will store in the future with ABC which
require registration, permits, licenses or similar approvals under federal,
state or local laws, statutes, ordinances or regulations are guaranteed to have
such registrations, permits, licenses or approvals at the time the goods are tendered to ABC and during the time they are in ABC’s
ABC Initials Date Customer
Initials Date
custody.
(C)
DEPOSITOR represents that the goods which it now has
in storage which are defined or are subject to regulation under federal, state
or local laws, statutes, ordinances or regulations concerning adulterated,
flammable, hazardous or dangerous materials or articles, explosives or
pesticides will be individually listed on receiving/shipping document (bill of
lading) naming the goods and designating which laws, statutes, ordinances or regulations apply to the storage, handling
and transportation of the goods, and whenever in the future the
undersigned tenders goods to ABC for storage or handling which are defined and
subject to regulation under federal, state or local laws, statutes, ordinances
or regulations concerning adulterated, flammable, hazardous or dangerous
materials or articles, explosives or pesticides it shall, at the time of such
tender, advise ABC, in writing, with respect to each such item which laws,
statutes, ordinances and or regulations apply to the storage, handling and transportation of the goods.
(D)
DEPOSITOR further represents that with respect to any
goods it now has in storage, or will store in the future with ABC which, due to
such federal, state or local laws, statutes, ordinances or regulations
applicable to the goods, require special handling, storage, stacking
segregation of commodities, documentation, records certification, reports of other
treatment beyond that normally afforded by
ABC to goods generally, it will furnish ABC for goods now in storage in writing
for each item tendered for storage in the future, with all information and
instructions necessary to conform with the requirements applicable to its
goods.
(E)
DEPOSITOR agrees to indemnify and save ABC harmless
against any and all liabilities, laws, damages, costs or expenses which ABC may
incur, suffer or be required to pay
by reason of any failure of the aforementioned representations, agreements and
guarantees of the undersigned.
Section 20. Assignment
This warehousing Agreement shall inure to the benefit
of and be binding upon the successors and assigns
of the parties hereto, and allows either
party to this Agreement to assign
or sublet its interest or obligations herein, except limited to the assignment
of any monies due and payable.
Section 21. Governing Law
This agreement and any dispute
arising out of it shall be governed
by the laws of the state where the goods were stored and
services provided.
Section 22. Entire Agreement
This Agreement and Schedules constitute the entire
understanding between DEPOSITOR and ABC,
and no working arrangement, instructions, or operating manuals intended
to facilitate the effective carrying
out of this Agreement shall in any way affect the liabilities of either party as
set forth herein. Warehouse receipts
may be issued for goods received in storage and the provisions of the warehouse
receipt shall apply, provided any inconsistency between the terms of the
receipt and this Agreement shall be governed by this Agreement.
Section 23. Notice
(A)
All notices required
under this agreement
directed to ABC shall be to the
ABC Initials Date Customer
Initials Date
attention of:
ABC Logistics LLC Attn: Legal Department
Address:
(B)
All notices required
under this agreement
directed to DEPOSITOR
shall be to the
attention of:
(C)
Notices may be provided by facsimile, email,
or express courier
(signature required) and deemed delivered on date given.
IN WITNESS
WHEREOF, the parties
hereto have duly executed this Agreement in duplicate the day and year first above written.
ABC Logistics
LLC BY
Signature
Print Name
Title
Date
DEPOSITOR –
BY
Signature
Print Name
Title
Date
ABC Initials Date Customer
Initials Date
SCHEDULE A SCOPE OF AGREEMENT
ABC Initials Date Customer
Initials Date
SCHEDULE B
RATES AND COSTS FOR SUBJECT WAREHOUSE(S)
1)
Receiving and QC of returns from
multiple marketplaces
2)
Fulfillment of orders from the
returns Inventory
SCHEDULE B
RATES AND COSTS
FOR SUBJECT WAREHOUSE(S)
1)
Receiving and QC - $5.00 per selling unit.
2)
Storage: $40 per pallet per month
3)
Fulfillment per unit $2.50 including box/polybag
4)
Minimum Monthly billing of $500
ABC Initials Date Customer
Initials Date
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