Customer (identified on the front page) warrants that it is the owner and/or has lawful possession of the goods and has sole legal right to store and thereafter direct the release and/or delivery of such goods. Customer agrees to indemnify and hold harmless (including legal fees and costs) DeFili Solutions Inc., it’s officers, employees & authorized agents (“DeFili Solutions Inc.”) of and from any claim by others relating to ownership, storage and release of the goods, and/or any other services provided by DeFili Solutions Inc. under this Warehouse Receipt.
2. SERVICES PROVIDED
DeFili Solutions Inc. shall receive, store and release the goods in its Cold Storage Facility or its Warehouse Facility (individually a “Facility” and collectively the “Facilities”), as indicated on the front hereof. DeFili Solutions Inc. may provide other services as requested by Customer, at the rates set forth on the Rate Sheet; however, such addition al services shall be provided by DeFili Solutions Inc. not as a bailee or warehouseman but solely as agent for Customer.
3. TENDER FOR STORAGE AND HANDLING
Each shipment of Depositor’s property to the Warehouse constitutes a separate tender and the Warehouse may reject subsequent tenders of property whether identical or not. The Warehouse may also reject any tender of property which does not conform to all terms (including quantity and description) of the quotation issued by the Warehouse. All property shall be delivered to the Warehouse properly marked and packed for handling and storage. Unless arranged for in advance by the Depositor, the property may be placed in general storage at the Warehouse’s discretion without regard for temperature or humidity conditions and without responsibility for freezable property. The Depositor shall furnish prior to delivery to the Warehouse a manifest showing marks, brands, or sizes of the Packages to be kept and accounted for separately and the class of storage desired. Delivery of any or all of a Package of property shall be made without subsequent sorting except by special arrangement subject to a charge. Unless the Depositor shall otherwise specify in advance of receipt by the Warehouse, the property may be stored in bulk or assorted Packages at the discretion of the Warehouse. The contents of the containers or the property referred to on the face of this receipt were not inspected by the Warehouse for condition, form, color, nor for concealed loss, damage or leakage. The Warehouse undertakes to handle, store, and deliver property only in the Packages in which it was originally received. When deterioration or failure of containers or packages requires, the Warehouse at its discretion may repackage or re-cooper the contents and a charge for labor and material used shall be made. The Warehouse accepts no responsibility for such repair or replacement.
The Warehouse shall not be liable for demurrage or detention, delays in unloading inbound cars, trailers or other containers, or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless Warehouse has failed to exercise reasonable care.
5. STORAGE PERIOD AND CHARGES
(a) All charges for storage are per package or other agreed unit per month.
(b) Storage charges become applicable upon the date that Warehouse accepts care, custody and control of the goods, regardless of unloading date or date of issue of warehouse receipt.
(c) Except as provided in paragraph (d) of this section, a full month’s storage charge will apply on all goods received between the first and the 15th, inclusive, of a calendar month; one-half month’s storage charge will apply on all goods received between the 16th and last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter in advance on the first day of each calendar month.
(d) When mutually agreed by the Warehouse and the Depositor, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
6. RATES AND CHARGES
Whenever provision is made herein for a charge by DeFili Solutions Inc., such charges shall be based upon DeFili Solutions Inc.’s Rate Sheet in effect at the time such charge accrues or the service is performed, except that no increase in charge will be made on goods that are in storage without thirty (30) days mailed notice to the last known address of Customer. Rate Sheets shall be provided to Customer with initial deposit of goods into storage, and may thereafter be requested by Customer from DeFili Solutions Inc. Storage rates shall be computed according to the rate sheet. A warehouse handling charge shall be made for placing goods in storage and for removing goods to a platform for delivery, as set forth in the Rate Sheet. In addition, when a part lot is transferred in a Facility from one party to another and requires physical separation of the items in the lot, the charges of such separation shall be billed according to the rate sheet. Charges for additional services performed by DeFili Solutions Inc. shall be separately billed as such services are performed according to the Rate Sheet. Customer as well as the shipper, owner and consignee of the goods, and the goods themselves, shall remain jointly and severally liable for all charges.
All charges are net, due and payable without offset or deduction within ten (10) days from date of invoice. Charges due but not paid shall accrue interest at the rate of one percent (1%) per month from date due until paid in full. In addition, upon Customer’s failure to pay any sum when due, all charges relating to all of Customer’s lots stored at any time in the Facilities shall become immediately due and payable. Handling-out charges shall be due and payable at the time the entire lot of goods is removed from storage.
8. CUSTOMER WARRANTIES
In addition to the warranties set forth in section 1, above, Customer warrants that the information as to count, weight, description and condition of the goods set forth on any delivery documents are accurate and may be relied upon by DeFili Solutions Inc. Customer further warrants that all individual packages, pieces and items are clearly marked and that all goods requiring refrigeration have a core temperature equal to or colder than the temperature at which such goods are to be stored. Customer agrees that goods received by DeFili Solutions Inc. may be stored at the ambient temperature maintained at the Facility identified, unless the Special Instructions box on the front page has been completed to the contrary, and DeFili Solutions Inc. shall not be responsible for loss or damage to goods without Special Instructions stored at the ambient temperature routinely maintained at the Facility. Customer acknowledges that no freezer, chill or other refrigeration services are available at the Warehouse Facility; such refrigeration services shall be available only at the Cold Storage Facility.
9. LIEN AND SECURITY INTEREST
DeFili Solutions Inc. shall have a warehouseman’s lien upon all goods and property deposited with it by Customer and upon the proceeds from the sale thereof for all charges provided herein, including charges for storage, handling, processing, transportation and/or labor and all other charges and expenses relating to all lots of the Customer’s goods stored any time in any Facility, and also for all reasonable charges and expenses for notice, advertisement and sale of the goods where default has been made, and for all costs, including legal fees and costs, incurred in enforcing such lien, collecting charges or defending itself in the event DeFili Solutions Inc. is made party to any litigation claim or proceeding such goods and/or property. This lien may be enforced by DeFili Solutions Inc. at any time. In addition, Customer grants a security interest to DeFili Solutions Inc. in the goods and all proceeds derived from the goods in a maximum amount of $1,000,000 for all charges and expenses in addition to those described above (including money advanced and interest), whether incurred before or after delivery, and Customer agrees to execute and deliver all such documents as may be required to perfect such security interest. If goods are transferred in a Facility from the account of one party to another, and should the charges relating to such goods not be paid in full on the date of such transfer, the lien for such charges shall attach to the goods retained in the warehouse by the transferor AND to the goods transferred to the transferee. DeFili Solutions Inc. may require a transferee to acknowledge such lien rights prior to such transfer. In the event a proceeding is brought by one party against the other to enforce any of the provisions herein, the substantially prevailing party shall be entitled to recover its legal fees and costs.
10. ADDITIONS TO STORAGE LOT
Additional goods hereafter delivered by Customer as part of this lot while this Warehouse Receipt is outstanding shall be deemed to be included herein and shall be subject to the terms and conditions of this Warehouse Receipt.
Unless written notice is given to DeFili Solutions Inc. within ten (10) days after receipt hereof by Customer, this Warehouse Receipt shall be deemed complete and correct.
DeFili Solutions Inc. may, upon thirty (30) days written notice to Customer, with or without cause, require the removal of the goods or any portion thereof and payment of all charges hereunder, whether or not there has been default by Customer. If the goods are not removed, DeFili Solutions Inc. may sell the goods and exercise any other rights it may have by law. Without limiting the foregoing, DeFili Solutions Inc. may require the removal of the goods or any portion thereof upon ten (10) days written notice if in its opinion the goods have or may have deteriorated in value to less than the amount of DeFili Solutions Inc.’s lien on such goods.
13. LIABILITY AND LIMITATION OF DAMAGES
(A) THE WAREHOUSE SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY THE WAREHOUSE TO EXERCISE SUCH CARE IN REGARD TO SUCH GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND THE WAREHOUSE IS NOT LIABLE FOR ANY LOSS OR INJURY: (i) WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE IN THE HANDLING, STORAGE, PACKING, UNPACKING, SHIPPING AND RECEIVING OF THE GOODS, AND WHILE THE GOODS ARE AWAITING SUCH OPERATIONS; or (ii) WHICH ARISES FROM NATURAL DECAY, LEAKAGE, RODENTS, INFESTATIONS, FIRE, FLOOD, STRIKES, LOCKOUTS, BOYCOTTS, OTHER LABOR DISTURBANCE, WEATHER, PROVDENTIAL CAUSES, AND THE ACT OF ANY GOVERNMENTAL AGENCY OR PUBLIC ENEMY. WAREHOUSE SHALL HAVE NO LIABILITY FOR ANY ACTION, OR INACTION OF CARRIERS, INCLUDING ANY CARRIER’S FAILURE TO COMPLY WITH APPLICABLE LAWS OR REGULATIONS.
(B) GOODS ARE NOT INSURED BY WAREHOUSE AGAINST LOSS OR INJURY HOWEVER CAUSED.
(C) LIABILITY OF WAREHOUSE FOR LOSS OR DAMAGE TO THE GOODS STORED OR HANDLED, HOWEVER CAUSED, SHALL BE LIMITED TO THE ACTUAL DAMAGE OR LOSS TO SUCH GOODS, PROVIDED, THAT IN NO EVENT SHALL SUCH LIABILITY EXCEED $50 PER PACKAGE OF SUCH GOODS DESCRIBED ON THE FACE OF THIS RECEIPT. PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY UPON WRITTEN REQUEST OF DEPOSITOR BE INCREASED AT THE TIME THAT THE GOODS ARE RECEIVED AT THE WAREHOUSE OR WITHIN A REASONABLE TIME AFTER RECEIPT OF THE WAREHOUSE RECEIPT ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED LIABILITY.
(D) THE LIMITATION OF PARAGRAPHS 13(A) AND (C) SHALL NOT APPLY TO CLAIMS FOR LOSS OR DAMAGE ARISING OUT OF CONVERSION OF DEPOSITOR’S GOODS TO WAREHOUSE’S OWN USE.
The goods are not, and shall not at any time be, insured by DeFili Solutions Inc. It is agreed that the charges assessed hereunder do not include any insurance coverage.
15. ACCESS AND DELIVERY
The goods shall be ready for delivery upon forty-eight (48) hours’ notice to Customer upon presentation of a Release Order executed by Customer, provided that all charges have been paid in full. DeFili Solutions Inc. shall not be responsible for any delay in delivery caused by conditions beyond its control. No transfer of this Warehouse Receipt shall be recognized unless all charges are paid, the transfer is entered on DeFili Solutions Inc. books and an additional charge is assessed therefore. An additional charge will also be assessed for any access to or partial delivery of goods. If DeFili Solutions Inc. has been unable to remove/deliver the goods due to causes beyond its control, the goods shall be automatically subject to storage charges for the next succeeding storage period. Customer shall be responsible for all shipping, handling and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the goods, and Customer agrees to indemnify and hold harmless (including legal fees and costs) DeFili Solutions Inc. of and from any liability, expenses and cost arising out of and/or relating to any claim made by any such carrier and/or third party.
Customer shall notify DeFili Solutions Inc. in writing of any loss, damage, shortage, failure to deliver and/or misdelivery of goods within three (3) business days from the date and time when such was initially discovered by Customer. Customer must retain and permit DeFili Solutions Inc. to inspect such goods. All claims must be presented to DeFili Solutions Inc. in writing within thirty (30) days after discovery of such loss, damage, shortage, failure to deliver and/or misdelivery, and any lawsuit must be commenced within nine (9) months following the date claim was made. Failure to comply with any of the foregoing shall preclude Customer from maintaining any claim or suit against DeFili Solutions Inc..
17. LAW AND FORUM
The validity, interpretation and performance of this Agreement and any dispute connected herewith shall be governed and construed in accordance with the laws of the State of New York.
DeFili Solutions Inc.’s failure to insist upon the strict compliance with any provision hereof shall not constitute a waiver or estoppel of its right to later demand strict compliance. If any provision hereof is found to be invalid, illegal and/or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions hereof shall remain intact.
19. COUNTERPARTS AND FACSIMILE SIGNATURES
This Warehouse Receipt may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute a single instrument. A facsimile signature to this Warehouse Receipt shall be deemed equivalent to an original signature.
The headings used in these terms and conditions are for convenience of reference only, and may not be construed so as to give any substantive meaning. This Warehouse Receipt, in conjunction with any Rate Sheet and Release Order issued in connection herewith, constitutes the entire agreement between DeFili Solutions Inc. and Customer, and may not be altered or amended unless through writing signed by both parties.
21. THIRT PARTY BENEFICIARY INDEMNITY
Except as expressly provided herein, no person other than Depositor and the Warehouse shall have any right or privilege hereunder, and Depositor shall indemnify and hold Warehouse harmless for claims against Warehouse brought by third party privies of Depositor against Warehouse whenever such claims, arising out of loss or damage to Depositor’s property stored hereunder exceed the limits provided in paragraph 11 hereof.
22. ACCURATE INFORMATION
Depositor will provide Warehouse with information concerning the stored goods which is accurate, complete and sufficient to allow Warehouse to comply with all laws and regulations concerning the storage, handling and transporting of the stored goods. Depositor will indemnify and hold Warehouse harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which Warehouse pays or incurs as a result of Depositor failing to fully discharge this obligation.