Terms and Conditions
1. DEFINITIONS:
As used in this Warehouse Receipt the following terms have the following meanings.(a) “Customer” means the person, firm, corporation, or other entity for whom the goods described herein are stored. (b) “Company” means Detroit Cold Storage, LLC, a Michigan limited liability company. As used in Sections 9 and 10, Company includes equityholders, officers, directors, employees, agents, and affiliates of Detroit Cold Storage, LLC. (c) “Lot” means a unit or units of goods for which a separate account is kept by Company. (d) “Advance” means all sums due or claimed to be due to Company from Customer or other relating to the goods stored hereunder regardless of the source, whether liquidated or not, including but not limited to losses, disbursements, charges made for or on account of Customer or goods necessary for preservation of goods or reasonably incurred in their sale. (e) “Warehouse Receipt” means this warehouse receipt, including these Contract Terms and Conditions.
2. TENDER FOR STORAGE:
(a) Customer will deliver all goods at the warehouse, properly marked packed for handling. (b) 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 desired. Otherwise, the goods may be stored in bulk or assorted lots in freezer, cooler, or general storage at the discretion of the Company and charges for such storage will be made at the applicable storage rate. (c) Receipt and delivery of all or any units of a Lot shall be made without subsequent sorting except by special arrangement and subject to a charge. (d) Company shall store and deliver goods in the packages in which they are originally received. (e) Unless Customer gives, at or prior to delivery of the goods, written instructions to the contrary, Company, at its discretion, may commingle and store in bulk different lots of fungible goods, whether or not owned by the Customer. (f) Company shall not be required to segregate goods by production code date unless specifically agreed to in writing.3. TERMINATION OF STORAGE:
(a) Company may, upon notice, require the removal of the goods or any portion thereof, from the warehouse upon the payment of all charges attributable to said goods within a stated period not less than 30 days after such notification. If said goods are not so removed, Company may sell them as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said goods. (b) If, in the opinion of Company, the tendered goods are reasonably likely to deteriorate or decline in value to less than the amount of Company’s lien thereon, or may constitute a hazard to other property or to the warehouse or persons, the goods may be removed or disposed of by Company as permitted by law. All charges related to said removal shall be paid by Customer.4. STORAGE LOCATION:
(a) The goods received in connection with this Warehouse Receipt shall be stored at Company’s discretion at any one or more buildings at Company’s warehouse complex or at another commercially reasonable place controlled or contracted for by Company. (b) Subject to any contrary written instructions given by Customer, Company may, at any time, at its expense, remove any goods from any room or area of Company’s warehouse complex or other place of storage to any other room, area, or commercially reasonable location, provided only that, if Company moves any of Customer’s goods to a place not controlled by Company, Company will give to Customer at least 10 days’ notice thereof.5. STORAGE CHARGES:
(a) Storage charges commence upon the date that Company accepts care, custody, and control of the goods, regardless of unloading date or the date upon which this Warehouse Receipt is issued. Charges shall be computed separately for each Lot on one of the following optional bases. If no storage rates are quoted, Company will charge according to the Basis. (i) If storage rates are quoted on “Split-Month Basis” the storage month shall be a calendar month. A full month’s storage charge will apply to all goods received between the 1st and 15th of a calendar month. One-half month’s storage charge shall apply on the 1st day of the next calendar month and each month thereafter on all goods then remaining in storage. (ii) If storage rates are quoted on an “Anniversary Basis” the storage month shall extend from date of receipt in one calendar month to, but not including, the same date of the next month. If there is no corresponding date in the next month, the storage month shall extend to, and include, the last day of said month. A full month’s storage charge shall apply on receipt of goods and additional monthly storage charge shall apply for each successive storage month on all goods then remaining in storage. (b) Charges shall be applicable as set forth on the face of this Warehouse Receipt or, if no charges are so stated, in the applicable quotation, or, if no charges are stated in any of the foregoing, commercially reasonable rates. (c) Unless Company specifies otherwise, all storage charges are due and payable on the 1st day of storage for the initial month and thereafter on the 1st day of each calendar month. (d) Rates quoted by weight will, unless otherwise specified, be computed as gross weight and 2,000 pounds shall constitute a ton.6. HANDLING CHARGES:
(a) Unless otherwise specified or elected by Company, handling charges cover only the ordinary labor and duties incidental to receiving and delivering unitized goods on pallets at the warehouse dock during normal warehouse hours but do not include loading and unloading. (b) Unless otherwise specified, charges in addition to the regular handling charges will be made for any handling work performed by Company other than specified in Section 6(a). (c) When goods are ordered, but in quantities less than in which received, the Company may charge additional fees for each item of an order. (d) Delivery by Company of less than all units of any Lot or of less than all the fungible goods tendered by Customer shall be made without subsequent sorting except by special arrangement and subject to an additional charge.7. TRANSFER OF TITLE; DELIVERY:
(a) Instructions by Customer to transfer goods to the account of another person are not effective until delivered to, and accepted by, Company in writing. Charges will be made for each such transfer and for any re-handling of goods deemed by Company to be required thereby. Company may condition delivery or transfer goods of goods to, or for the account of, any person other than Customer upon receipt of written instructions properly signed by Customer. (b) Customer may furnish written instructions authorizing Company to accept telephone orders for delivery, in such case (1) Company may, but need not, require that each telephone order be confirmed Customer in writing within 24 hours and (2) acceptance by Company of any telephone order be at the risk of Customer, subject only to the gross negligence of Company. Company will not be liable for any loss resulting from delivery made pursuant to telephone order, whether or not so authorized, unless Company was grossly negligent with respect thereto. (c) Company shall have a reasonable time after goods are ordered out to make delivery and shall have a minimum of 10 business days after receipt of a delivery order in which to locate any misplaced goods. (d) If Company has exercised reasonable care and is unable, due to causes beyond its control, to effect delivery before expiration of the current storage period, the goods will be subject to storage charges for each succeeding storage period. (e) All instructions and requests for delivery of goods or transfer of title are received subject to satisfaction of all charges, liens, and security interests of Company with respect to the goods, whether for accrued charges or Advances or otherwise. (f) Company may require, as a condition precedent to delivery, an obligation by Customer to hold harmless Company against third-party claims alleging Company’s improper delivery of goods to Customer.8. OTHER SERVICES AND CHARGES:
(a) Other services rendered in the interest of Customer of the goods are chargeable to Customer. Such services may include the following: furnishing of special warehouse space or material, repairing, coopering, sampling, weighing, re-piling, inspecting, compiling, stock statements, making collections, furnishing revenue stamps, reporting or recording marked weights or numbers, handling railroad expense bills, and handling shipments. (b) All Advances are due and payable immediately. All charges are due and payable upon the date of invoice. All charges and Advances not paid within 30 days from the due are subject to an interest charge from the date said charge or became due until paid at the agreed rate. (c) Customer may, subject to insurance regulations and reasonable limitations, inspect the goods stored under this Warehouse Receipt when accompanied by employee of Company whose time is chargeable to Customer. (d) In the event of damage or threatened damage to stored goods, Customer shall pay all reasonable and necessary cost of protecting and preserving the goods. When the costs of protecting and preserving stored goods are attributable to more than one person who has bailed goods with Company, said costs shall be apportioned among Customer and all other such persons on a pro rata basis to be determined by the Company. (e) Company shall supply dunnage bracing and fastenings where it deems appropriate on outbound shipments and the cost thereof is chargeable to Customer. (f) Any additional costs incurred by Company in unloading cars containing damaged goods are chargeable to Customer. (g) Company shall not be responsible for demurrage or delays in loading or unloading cars or delays in obtaining cars for outbound shipments unless such demurrage or delay was caused solely by Company’s negligence. (h) A charge in addition to regular storage and handling rates will be made for banded storage. (i) Company may assess an additional charge when goods designated for freezer storage are received at temperatures above 5 degrees Fahrenheit. (j) All storage, handling, and other services may be subject to minimum charges. (k) Customer will pay Company all costs and Advances including reasonable attorney’s fees incurred by Company in conjunction with third-party claims to which Company has been made a party relating in any way to Company’s performance under this Warehouse Receipt.9. LIABILITY AND LIMITATION OF DAMAGES:
(a) Company shall not be liable for any loss, damage, destruction to goods, however caused, unless such loss, damage or destruction resulted from Company’s failure to exercise care with regard to the goods that a reasonably careful person would exercise under similar circumstances. Company is not liable for damages that could not have been avoided by the exercise of such care. (b) Company and Customer stipulate that Company’s duty of care referred to in Section 9(a) does not extend to providing a sprinkler system at warehouse complex or any portion thereof. (c) Unless specifically agreed to in writing Company shall not be required to store goods in humidity- controlled environment or temper goods.(d) IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO STORED GOODS FOR WHICH THE COMPANY IS LIABLE, CUSTOMER DECLARES THAT COMPANY’S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING:
(1) THE ACTUAL COST TO CUSTOMER OF REPLACING OR REPRODUCING THE DAMAGED GOODS TOGETHER WITH TRANSPORTATION COSTS TO WAREHOUSE,
(2) THE FAIR MARKET VALUE OF THE GOODS ON THE DATE CUSTOMER IS NOTIFIED OF LOSS, DAMAGE OR DESTRUCTION,
(3) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGED OR DESTROYED GOODS
(4) $0.50 PER POUND OF GOODS, PROVIDED, HOWEVER, THAT (i) WITHIN A REASONABLE TIME AFTER RECEIPT OF THIS WAREHOUSE RECEIPT, CUSTOMER MAY, UPON NOTICE TO COMPANY, INCREASE COMPANY’S LIABILITY ON PART OR ALL OF THE GOODS STORED UNDER THIS WAREHOUSE RECEIPT (IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION) AND NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS, DAMAGE OR DESTRUCTION TO THE PORTION OF THE GOODS STORED UNDER THIS WAREHOUSE RECEIPT HAS OCCURRED. (e) The limitation of liability referred to in Section 9(d) shall be Customer’s exclusive remedy against Company for any claim or cause of action whatsoever by Customer under this Warehouse Receipt unless Customer proves by affirmative evidence that Company converted the goods to its own use. Customer waives any right to rely upon any presumption of conversion imposed by law. IN NO EVENT SHALL Customer BE ENTITLED TO INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES.