Terms and Conditions of Service

This is an important legal document that governs the terms and conditions of your contract with 3Commerce, Inc.

You should read what follows with care to assure your understanding of these Terms and Conditions. Modifications, alterations or updates to this site and these Terms and Conditions may be made from time to time by the owner of this site, 3Commerce Inc, or at any time. If the Customer choses to use the site, they must occasionally review these Terms and Conditions to see if they have been changed. The Customer will be considered to have accepted any changes if they continue the use of this site.

1. Definition and Scope

 

Article 1

Unless otherwise agreed, these conditions shall be applicable to any form of service provided by 3Commerce, Inc. including but not limited to Freight Forwarding, Freight Brokerage or 4PL Services (as defined below).

 

Article 2

2.1

Customer means the person or company for which 3Commerce, Inc. is rendering service, as well as its principals, agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the

Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives.

2.2

Freight Forwarding or 4PL Services means services of any kind relating to the carriage, consolidation, storage, handling, packing or distribution of any goods (as defined below) as well as ancillary and advisory services in connection therewith, including but not limited to customs and fiscal matters, declaring the goods for official purposes, procuring insurance of the goods

and collecting or procuring payment or documents relating to the goods.

2.3

Freight Brokerage: 3Commerce, Inc is a Freight Logistics Company which is also known as a “Freight Broker” and is registered as a transportation freight broker with the FMCSA under docket number FF-25774-P, with offices at 1615 South Congress Avenue, Suite 103, Delray Beach, FL 33445. 3Commerce, Inc is not acting as either a Motor Carrier, or Common Carrier, or Contract Carrier within the meaning of USC Title 49. Customer acknowledges that 3Commerce is a “freight broker” and NOT a “freight carrier”. Any freight crossing our, or our assigned agent’s, dock temporarily during transit or for long term storage shall be subject to our standard Warehouseman’s Limited Liability of $0.50/lb. unless additional insurance is purchased by the owner of the goods. Goods transiting docks of a common carrier during transport whilst on a through Bill of Lading will be subject to the conditions of carriage as set out tin section (3.1) BOL and Shipment Terms below.

2.4

Freight Carrier: The freight carrier is a duly licensed and registered company that provides all or part of the actual transportation of your shipment. Such freight carrier or carriers will be subject to all state and federal laws and regulations applicable to the transportation of the Shipment and, therefore, will be exclusively liable for the shipment. Customer understands and agrees that the freight company or companies that actually transport the Shipment (“Carrier”) will be exclusively responsible for the transportation and delivery of the shipment. 3Commerce is not a freight carrier.

2.5

Goods mean any and all goods including their packaging, entrusted to 3Commerce, Inc. by the Customer in relation to any services provided by 3Commerce, Inc. Such goods include any and all merchandise as well as all and any titles or documents that represent or may represent such goods.

2.6

SDR means Special Drawing Rights as defined by the International Monetary Fund.

2.7

In writing includes telegram, telex, telefax or any recording by electronic means.

 

 

2.8

Dangerous Goods means

(i) any Goods, materials or items, with hazardous properties which may present a potential hazard to human health and safety, infrastructure, to their respective means of transport, and/or to any type of living organisms, property or the environment;

(ii) any Goods, materials or items classified as hazardous by any local or international legislation or

organization;

(iii) any Goods that are or may become of a dangerous, inflammable, radioactive noxious or damaging nature.

2.9

Service means any instruction to forward goods offered, accepted for performance, or performed by 3Commerce, Inc., and any related act, any information or advice in respect thereof.

3.0

Third parties mean any non-contracting parties, in particular any natural or legal persons whom 3Commerce, Inc. deals with in the performance of its duties.

3.1

BOL and Shipment Terms: Any BOL generated under these Terms and Conditions is NON- NEGOTIABLE, has been prepared by the enrolled Customer itself, or by the Carrier or 3Commerce on behalf of Customer, and shall be deemed, conclusively, to have been prepared by Customer. The General Rules Tariffs issued by the Carrier actually providing the transportation of the shipment will in every instance take precedence over any BOL terms and over 3Commerce’s Terms and Conditions stated herein, except that any attempt to designate 3Commerce as a “Carrier” shall be void, and provided that the following shall be allowed only under such circumstances as may be specified in 3Commerce’s agreement with Carrier: (a) direct billing of rates and charges by Carrier to Customer, (b) recourse by Carrier against any other party to the shipment for payment of such rates and charges, and (c) exercise by Carrier of any statutory or common-law lien it otherwise might have upon Customer’s freight. In the case of conflict between these Terms and Conditions and those set forth by the Carrier’s General Rules Tariff, the Carrier’s General Rules Tariff shall control with exception and provisos just stated. If a matter is not covered by such General Rules Tariff, however, these Terms and Conditions shall control. Any applicable provisions of the Carrier’s General Rules Tariff and 3Commerce’s Terms and Conditions including, but not limited to, all liability limitations shall apply not only to the selected Carrier but to its agents and subcontracted carriers.

 

Article 3

The performance of services includes and is not limited to;

• All contracts for the transportation of goods, irrespective of whether they concern freight forwarding, carriage, warehousing, customs brokerage or other services common to the forwarding trade. These also include logistical services commonly provided by freight forwarders in connection with the carriage or storage of goods.
• Services as agent; whereas 3Commerce, Inc. acts in its own name or in its Principal’s name, but always on the latter’s behalf, and pursuant thereto in providing all and any such services as may be necessary in respect thereof, performing all and any required formalities and concluding any such agreements as are necessary for such purpose
• Services as Principal; when 3Commerce, Inc. performs the carriage of goods in its own name and by its own means of transport, when it issues a transport document in its own name, when the instructions explicitly show that 3Commerce, Inc. assumes a carrier obligation.
• Services as warehouseman; it is agreed that Company’s Warehouse Receipt Terms and Conditions shall govern the dealings between Company and Customer for all warehousing and storage services. It is furthermore agreed that Company’s Warehouse Receipt Terms and Conditions are electronically published at http://www.3commerceinc.com, and may be amended by Company from time to time, without notice. In the event of any conflict between these Warehouse Receipt Terms and Conditions as printed herein and the electronically published Warehouse Receipt Terms and Conditions, the electronically published version shall control. It is expressly understood that this Warehouse Receipt does not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage or other services that Company has provided or may provide to the Customer; and that those separate services shall be governed by their respective Terms and Conditions outlined herein.

 

Article 4.

The Customer warrants that the goods entrusted by it to 3Commerce, Inc. under its instructions are its property, or that as an authorized agent of the owner, the Customer has the right of control of such goods, and that consequently it accepts these conditions not only for itself but also for and on behalf of his principal and for and on behalf of the owner.

 

1. Performance of the Contract

 

Article 5

The Customer shall provide 3Commerce, Inc. with all shipment details, including, but not limited to, nature of goods; required route, and complete, correct and accurate descriptions, instructions and directives. In the case of import freight the instructions shall be given to 3Commerce, Inc. in writing no later than two (2) working days before the expected customs clearance date. Customer AGREES TO PAY FOR ALL SERVICES AS ACTUALLY PROVIDED by 3Commerce and the Carrier. 3Commerce, Inc reserves the right to amend or adjust these charges and to re-invoice the Customer in the following events: (i) if the original quoted amount was based upon incorrect information provided by the Customer; or (ii) if additional services by the carrier were required; or (iii) if the Customer authorized the carrier to perform the pick up, transportation and delivery functions other than contemplated by the BOL. Any dispute by the Customer of any invoice issued by 3Commerce, Inc shall be made in writing, specifically indicating the nature of the dispute and dame within 30 days from the date of the invoice. In the event 3Commerce, Inc does not receive timely written notice of the dispute the charges will be conclusively presumed to be valid.

 

Article 6

3Commerce, Inc. is not obliged to examine, nor is responsible for, the accuracy or correctness of the instructions and information provided by the Customer. 3Commerce, Inc. is neither obliged to check the authenticity of signatures on any messages or documents relating to the Goods, nor to check the authority of the signatories, unless there exist reasonable doubts concerning the latter. In all other situations, such information shall be accepted in good faith, and 3Commerce, Inc. shall perform its duties with a reasonable degree of care, diligence, skill and judgment.

 

Article 7

3Commerce, Inc. shall carry out the services according to the Customer’s instructions as agreed per Article 5. In the absence of precise instructions, or in the event where instructions are inaccurate or incomplete or not according to contract, 3Commerce, Inc. may at the risk and expense of the Customer act as it deems fit. Unless otherwise agreed, 3Commerce, Inc. may, without notice to the Customer, arrange to carry the goods on or under deck, consolidate the goods with other shipments and choose or substitute the means, route and procedure to be followed in the handling, stowage, storage and transportation of the goods

 

Article 8

3Commerce, Inc. is entitled to, in the performance of his duties, employ third parties, servants and agents who show normal professional qualifications. The Customer is aware of the latter’s contractual conditions and the customer shall be bound by such conditions.

 

Article 9

No insurance will be affected by 3Commerce, Inc., except upon (i) express instructions (including the value to be insured and the specific risks to be covered) given in writing by the Customer, and (ii) written confirmation by 3Commerce, Inc. All insurance effected is subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, 3Commerce, Inc. shall not be under any obligation to affect a separate insurance on each consignment, but may declare it on any open or general Policy held by 3Commerce, Inc.

 

Article 10

If the delivery is impossible for reasons beyond 3Commerce, Inc.’s reasonable control, such as the consignee’s refusal to accept the consignment, 3Commerce, Inc. shall be entitled to the carriage charges for the return of the consignment.

 

Article 11

3Commerce, Inc. shall have a lien on the goods and any documents related to the goods of the Customer in the possession of the Company, as well as any documents relating to these goods, for all sums payable by the Customer to the Company. The Company shall have the right to sell these goods by public auction or private sale without notice to the Customer.

 

• Customers’ Duties and Liability

 

Article 12

The Customer shall accept liability for:

• the conditions of, and any liability arising from, the condition of the goods;
• providing clear and correct instructions;
• making goods available in time, completely and in a useful way;
• providing complete, correct and valid documentation;
• unless 3Commerce, Inc. was informed thereof previously and in writing, that goods entrusted to 3Commerce, Inc. are not of dangerous; perishable, flammable or explosive nature;
• unless agreed otherwise, to examine all documents submitted by 3Commerce, Inc. upon receipt and that the Customer will verify whether they are in accordance to the instructions given to 3Commerce, Inc.; and
• information regarding weight and mass of the goods.

 

Article 13

The Shipper and Consignee shall be liable, jointly and severally, for all charges payable on account of any shipment, including, but not limited to, transportation charges and all duties, equipment, services rendered, customs assessments, governmental penalties and fines, taxes and 3Commerce, Inc.’s attorney fees and legal costs related to the shipment, and such other sums advanced or disbursed by 3Commerce, Inc. on account of such shipment.

 

Article 14

The Shipper and the Consignee shall be liable, jointly and severally, to pay or indemnify, protect, defend and hold 3Commerce, Inc. harmless from and against any and all claims, liabilities, fines, penalties, damages, costs or other sums (including attorneys’ fees and costs) that may be incurred, suffered or disbursed for any violation of any of these Terms and Conditions of Service or any other default of the shipper, consignee or such other party with respect to a shipment.

 

1. 3Commerce, Inc.’s Duties and Liability

 

Article 15

Liability 3Commerce, Inc.’s liability shall be limited in any event pursuant to Article 13. 3Commerce, Inc. shall not be liable for any loss of or damage or delay to any shipment that occurs before the shipment is accepted by 3Commerce, Inc. and in its possession, or after the shipment has been delivered without limiting the generality of the above paragraph, 3Commerce, Inc. shall not be liable for any loss or damage, incomplete or otherwise inadequate delivery (including, but not limited to, failure to follow shipper or consignee instructions), non-delivery, missed pickup, penalties, expenses, or delay, caused in whole or in part by:

• The act, default or omission of the shipper, consignee or any other party claiming an interest in the shipment;
• The nature of the shipment, defect, or inherent vice of the product, including but not limited to loss or damage to perishable or temperature sensitive items, to the extent the loss or damage results from exposure to heat or cold, inadequate, inappropriate or defective packaging, or the perishable nature of the product;
• Failure of the shipper or consignee to observe any requirements or obligations contained in these Terms and Conditions of Service, including, but not limited to, improper or insufficient packaging, securing or marking of any shipment;
• Acts of God, weather conditions, environmental or dangerous goods incidents, perils of the air, public enemies, public authorities acting with actual or apparent authority, acts or omissions of custom officials, authority of law, quarantine, riots, strikes, work stoppages or slowdowns, or other labor disputes or disturbances, local or national disruptions in ground or air transportation networks or systems due to events beyond 3Commerce, Inc.’s reasonable control, disruption or failure of communication and information systems, disruption or failure of utilities, civil commotions or hazards incident to a state of war, acts of assailing thieves, hijackings, mechanical delay of aircraft, ship, ground transportation or other equipment failures for all international shipments.
• Acts or omissions of any person other than 3Commerce, Inc.; or
• Compliance with laws, governmental regulations or requirements, or any cause beyond 3Commerce, Inc.’s control.

 

Article 16

3Commerce, Inc. is not liable for theft of goods in its possession, custody or control, unless the Customer shows that theft took place as a result of circumstances which 3Commerce, Inc., in view of the contract with the Customer, should have avoided or which he should have reasonably foreseen.

 

Article 17

3Commerce, Inc. shall not be liable for loss of, damage to, or irretrievability of data stored on media of any type, or for loss of information.

 

Article 18

3Commerce, Inc. does not guarantee a fixed time of delivery, dates of arrival and departure. Any indication of a time or date for delivery is an approximation and shall not be binding upon 3Commerce, Inc.

 

Article 19

Claims and Limitation of Liability: 3Commerce does not insure or indemnify Customer against losses, damages, delays or other liability resulting from or incurred in connection with any shipment. In the event of a claim, Customer shall look solely to the Carrier and/or Customer’s own insurance in the event of a claim for damage or loss. If Customer is not the consignee, it agrees to cause the consignee to inspect the shipment at the time of delivery, and to document any damage on the delivery receipt prior to signing. Because the transportation of Customer’s freight is performed exclusively by the Carrier and not performed by 3Commerce, the Customer agrees to hold 3Commerce harmless for services (i.e. transportation of freight) performed by the Carrier. Customer agrees to pay 3Commerce as per this Agreement regardless of any disputes that may or may not occur with the Carrier. Customer further understands and agrees that it will be subject to, and bound by, the Carrier’s specific limitations as to claims, losses and/or damages, and that it will not be able to recover any damages or losses in excess of such limitations. Customer acknowledges and agrees to its responsibility to confirm cargo liability amounts with the respective Carriers by calling 3Commerce for confirmation of any particular cargo liability amount and purchasing additional insurance on any value based items requiring greater than $0.50/lb. release value.

If liability has not been excluded through the applicable statutes or international conventions, liability is limited to the following:

 

• In the event that 3Commerce, Inc. acts as a carrier and transportation services are provided to the Customer, the applicable Bill of Lading terms and conditions shall apply and 3Commerce, Inc.’s liability shall be determined in accordance with national law and the international conventions applicable to the relevant mode of transport. In the absence of any applicable national law or international convention, 3Commerce, Inc.’s liability shall be limited to USD 0.50/LB
• In the event that 3Commerce, Inc. provides customs brokerage services to the customer, 3Commerce, Inc.’s liability shall be limited to USD 50 per set of shipment documents. Except as required by law, 3Commerce, Inc. assumes no liability for advice and/or recommendations regarding customs classifications, duties or any other taxes.

 

Article 20

Claims Assistance: Although 3Commerce is not a carrier and does not assume liability for cargo loss or damage in connection with Shipments it arranges, it will endeavor to assist Customer, on Customer’s request, with cargo loss and damage claims as Customer’s agent. If Customer desires such assistance, it must file cargo claim in writing with 3Commerce within 48 hours of delivery. 3Commerce will assist Customer in the submission of Customer’s claim to the Carrier but is in no event responsible for payment of such claims and makes no representation, warranty or guaranty as to the outcome of such claims or the availability of insurance coverage from which the Carrier may pay such claims. The filing of a claim does not relieve Customer of its responsibility for payment of freight charges. Customer’s account must be paid in full prior to 3Commerce providing assistance to Customer in processing a claim against the Carrier for loss or damage. Claims will be processed only after all freight charges have been paid. Claimants may not set off any amounts of pending claims from any charges owed to 3Commerce, Inc., and the Customer waives any and all rights, including any statutory or common law rights, to set off the amount of any claim against charges owed to 3Commerce, Inc.

 

Article 21

In no event shall 3Commerce, Inc. be liable for loss of merchantability or any special, incidental or consequential damages due to mis delivery, incomplete or otherwise inadequate delivery, delay, loss or damage whether or not 3Commerce, Inc. had knowledge that such damages might be incurred.

 

Article 22

Third Party Coverage: Although 3Commerce is not an insurance company or insurance agent, it will endeavor to assist Customer, on Customer’s request, in obtaining third-party coverage through insurers with which 3Commerce maintains commercial relationships. Should Customer purchase such third-party coverage through the assistance of 3Commerce and subsequently decide to cancel the Shipment after the coverage has been purchased, the fees for third-party coverage are non-refundable and will not be credited to Customer’s account.

 

1. Payment Terms

 

Article 23

The Customer has to relieve 3Commerce, Inc. immediately of costs related to freight, overage demands, customs duties, taxes or other dues directed against 3Commerce, Inc. for being an agent for or possessor of the goods owned by third parties, when 3Commerce, Inc. is not responsible for such payments.

 

 

 

 

1. Liens

 

Article 24

3Commerce, Inc. shall have a general and continuing lien on any and all property coming into the possession of 3Commerce, Inc. for monies owed to 3Commerce, Inc. in respect of the shipment for which the lien is claimed, a prior shipment, or both, for all sums due and payable. In the event of non-payment of any sum payable to 3Commerce, Inc., 3Commerce, Inc. may hold and dispose any shipment it possesses at a public or private sale, in satisfaction of all monies due and payable. If the proceeds of the sale are not sufficient to satisfy 3Commerce, Inc.’s lien for all monies due and payable, the shipper and consignee remain liable for the balance of any unpaid charges payable on account of the shipment. The rights provided by this section shall be in addition to all other rights allowed by law to 3Commerce, Inc. to recover the unpaid amounts.

 

VII.           Inspection

Article 25

3Commerce, Inc. may, but shall not be obligated to, inspect any shipment. Cargo items tendered may be subject to additional inspection or security outside of 3Commerce, Inc.’s control by transportation carriers or government agencies.

• Warehouse Receipt Terms and Conditions

Article 26

Agreement to Terms and Conditions. It is agreed that Company’s Warehouse Receipt Terms and Conditions shall govern the dealings between Company and Customer for all warehousing and storage services. It is furthermore agreed that Company’s Warehouse Receipt Terms and Conditions are electronically published at http://www.3commerceinc.com, and may be amended by Company from time to time, without notice. In the event of any conflict between these Warehouse Receipt Terms and Conditions as printed herein and the electronically published Warehouse Receipt Terms and Conditions, the electronically published version shall control. It is expressly understood that this Warehouse Receipt does not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage or other services that Company has provided or may provide to the Customer; and that those separate services shall be governed by their respective Terms and Conditions which are provided separately and are posted on the above referenced website.

Article 27

Definitions. As used in this Warehouse Receipt:

 

1. “Company” means the individual or entity listed on the front side of this Warehouse Receipt providing the warehousing services hereunder including its officers, directors, employees and agents of the Company while acting within the scope and course of their employment;
2. “Customer” means the person, company, firm or other entity for whom the Goods are stored and to whom this Warehouse Receipt is issued; and
3. “Goods” means the property tendered to Company by Customer for which Company has agreed to store pursuant to this Warehouse Receipt.

Article 28

Ownership of Goods. Customer warrants that it is the lawful owner and/or has lawful possession of the Goods tendered for storage. Customer warrants that it has sole legal rights to store Goods tendered, to release Goods, and to instruct Company regarding delivery or disposition of the Goods. Customer agrees to notify all parties acquiring any interest in the Goods of the terms and conditions of this Warehouse Receipt and further agrees to indemnify and hold Company harmless from any claim by third parties relating to the ownership, storage, handling or delivery of Goods, or from any other services provided by Company under this Warehouse Receipt. Such indemnification shall include any legal fees or costs incurred from any claim by a third party, regardless of whether or not litigation is actually filed.

 

Article 29

Storage.

1. Pursuant to the terms and conditions of this Warehouse Receipt, Company agrees to receive, store, and release the Goods in accordance with Customer’s reasonable instructions.
2. If Company determines that the original palletization of Goods must be broken down for storage purposes, Company shall be authorized to break down the pallets without further notice required to Customer.
3. Storage Location. Company will store the Goods at its discretion at any one or more buildings at Company’s, or its duly appointed agent’s, warehouse location identified on the front side of this Warehouse Receipt. The identification of any specific location with the Company’s warehouse complex does not guarantee that Goods shall be stored therein. Upon ten (10) days prior notice provided to Customer, Company may at its own expense, remove Goods to any other warehouse complex operated by Company.
4. Company may provide additional services to Customer as requested and as agreed. Additional handling charges will apply whenever Goods are pulled for distribution or release, whenever physical inventories are requested by Customer, and whenever additional services are requested that are not explicitly included in the monthly storage charge quoted to Customer. Such additional charges will be provided to Customer and will be invoiced to Customer in addition to any storage charges due.

Article 30

Termination of Storage. Company reserves the right to terminate storage and to require the removal of the Goods, or any portion thereof, by giving Customer thirty (30) days advance written notice. Customer shall be responsible for payment of all charges attributable to said Goods within the stated period and for removing the Goods from the warehouse upon payment of all charges. If the Goods are not so removed, Company may exercise its rights under applicable law including but not limited to selling the Goods.

Article 31

Customer’s Warranties & Tender for Storage.

 

1. Customer warrants that the Goods are properly marked, packaged, labeled and classified for handling and are fit for storage and any transportation as may be required. Company will not accept Goods that are not properly packaged or which, in the reasonable opinion of Company, are not suitable for movement or storage within the warehouse.
2. Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes to be accounted for separately and the class of storage desired, if applicable.
3. Company’s receipt and delivery of a LOT (or partial LOT) shall be made without subsequent sorting except by special arrangement and subject to a charge.
4. Hazardous Materials. Unless otherwise made known to Company in writing and accepted by Company, Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Company. If hazardous materials and/or dangerous goods are tendered for storage and accepted by the Company, a notation shall be so made on the face of this Warehouse Receipt. Customer warrants that the Goods shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Goods, to accurately describe the Goods, and to provide Company with all necessary or useful information for the safe storage and handling of the Goods including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Customer breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any such unfit Goods to Company, Company shall be entitled to exercise all available remedies including the immediate destruction or removal of the Goods from the warehouse without notice to Customer. In the event of the foregoing breach of Customer warranties, Customer shall be liable for all expenses costs, losses, damages, fines, penalties or other expenses of any sort incurred by Company in connection with the removal, or destruction, or handling of the Goods and shall indemnify Company against all amounts, liabilities, claims, or damages arising in connection with the Goods.
5. For all Goods tendered for storage, Customer shall supply such information and documents as are necessary to comply with all laws, rules and regulations. For all Goods, Customer shall provide to Company all documents or information necessary or useful for the safe and proper warehousing, handling, storage, and transportation (if any) of the Goods. If all such information and documents are not fully, accurately and timely provided to Company, Customer shall indemnify Company for all consequences of such failure.
6. Customer warrants its compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws, as well as with the U.S. Foreign Corrupt Practices Act and similar laws related to anti-corruption and anti-bribery.

Article 32

Payment Terms & Collection Expenses. Warehousing and storage accounts are due and payable monthly, in advance. Company will issue the monthly statement, in advance to Customer and Customer shall pay Company within 15 days of the invoice date unless otherwise agreed by the Parties in writing. All invoices not paid within 15 days of invoice date will be subject to a late fee of 1.5% per month, or the maximum rate then allowable pursuant to applicable law. If it becomes necessary for Company to utilize a collection agency and/or an attorney to collect any unpaid amount owed or to assist in effectuating the lien provisions herein, Customer shall be obligated to pay the collection agency fees and/or attorney fees, and expenses including court costs incurred, regardless of whether litigation is actually filed.

Article 33

Lien Rights. Company shall have a lien on the Goods tendered by Customer and upon any and all property belonging to Customer in Company’s possession, custody or control for all charges, advances or amounts of any kind due to Company under this Warehouse Receipt or under any prior or subsequent invoices issued to Customer by Company (including charges for storage, handling, transportation, demurrage, terminal charges, insurance, labor, and any other charges incurred). Company shall have a lien on the Goods and may refuse to surrender possession of the Goods until all charges or debts are paid in full. If such amounts remain unpaid for 30 days after Company’s demand for payment, Company may sell the Goods at public auction or private sale or in any other manner reasonable, and shall apply the proceeds of such sale to the amounts owed. Customer remains responsible for any deficiency outstanding to Company.

Article 34

Liability.

1. Company shall not be liable for any loss or destruction of or damage to the Goods, however caused, unless such loss, damage or destruction resulted from Company’s failure to exercise such care in regard to the Goods as a reasonably careful person would exercise under like circumstances. Company is not liable for damages which could not have been avoided by the exercise of such care. Company and Customer agree that Company’s duty of care referred to herein shall not extend to providing a sprinkler system at the warehouse complex or any portion thereof.
2. In no event shall Company be liable for any loss or damage caused by:
3. acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical or equipment failures; cyber attacks; civil commotions; hazards incident to a state of war; acts of terrorism; acts or omissions of customs or quarantine officials; acts of carriers related to security; the nature of the freight or any defects thereof; inherent vice of the goods; perishable qualities of the merchandise; fires; frost or change of weather; sprinkler leakage; floods; wind; storm; moths; public enemies; or other causes beyond its control;
4. fragile articles injured or broken, unless packed by Company’s employees and unpacked by them at the time of delivery;

iii. pilferage or theft, unless such loss or damage is caused by the failure of Company to exercise such ordinary care required by law; and

1. concealed damage, or for losses incurred due to the concealed damage of the Goods.
2. Monetary Maximum Liability: In the event of loss or damage to the Goods for which Company is legally liable, Company’s liability shall be limited to actual value of the Goods, subject to a maximum of USD $.50 per pound of goods stored, unless Customer declared a higher value for the goods and Company agrees in writing to purchase insurance for the Goods at Customer’s benefit, and Customer has paid the supplementary charge in accordance with the terms herein.
3. In no event shall Company be responsible for loss or damage to documents, stamps, securities, artwork, heirlooms, jewelry or other articles of high and unusual value unless a special agreement in writing is made between Company and Customer with respect to such articles.
4. No Consequential Damages. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF COMPANY’S DUTIES, NEGLIGENCE LIABILITY WITHOUT FAULT OR ANY OTHER LEGAL THEORY OR BASIS, SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, LOSS OF USE OF GOODS, COST OF SUBSITUTED GOODS, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.

Article 35

Optional Insurance Offering. Company does not insure the Goods while in storage and the storage rates or charges billed to Customer do not include any insurance on the Goods. The Goods will therefore not be insured for any loss or damage, and the limitation of Liability set forth in paragraph 9 shall apply in all circumstances where Company is legally liable for such loss or damage, unless the Customer has requested in writing that Company obtain insurance for the Customer’s benefit, and the Customer has paid the required premium to Company for such additional insurance. Except as provided above, Company will not obtain insurance on the Goods for Customer’s benefit while the Goods are being stored at Company’s facility.

Article 36

Temperature or Humidity Controlled Storage. Unless specifically agreed to in writing, Company shall not be responsible for storage of the Goods in a temperature or humidity controlled environment. Customer knowingly accepts that the Goods will be warehoused in a non-temperature/humidity controlled environment. Company will not be responsible for any loss or damage to the Goods that result from fluctuations in temperature range or in humidity levels of the warehouse. Company will furthermore not be responsible for losses or damages incurred to Perishable Goods, unless otherwise agreed to in writing prior to tender of the Goods for storage.

Article 37

Inspection & Security. All shipments are subject to inspection by Company; by Company’s Carriers for any transportation services provided, if any; and by any duly authorized government or regulatory entities, including but not limited to the U.S. Transportation Security Administration, U.S. Customs and Border Protection, and like entities. Notwithstanding the foregoing right to inspect shipments, Company is not obligated to perform such inspection except as mandated by law. Further, Company reserves the right to unilaterally reject any shipment that it deems unfit for transport, or for storage under this Warehouse Receipt, after inspection.

Article 38

Notice of Claim and Filing of Suit.

1. Company shall not be liable for any claim whatsoever for any loss, damage, or destruction of the Goods unless it is timely filed, in writing, within a maximum of sixty (60) days after Customer knew, or should have known by the exercise of reasonable care, of such loss or damage.
2. Time Bar. Any lawsuit or other claim against Company with respect to the Goods shall be forever waived unless commenced within two (2) years after Customer knew, or should have known by the exercise of reasonable care, about such loss or damage.

Article 39

Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the sender, and shall be directed to Company and Customer at the address set forth on the front side of the Warehouse Receipt, unless otherwise instructed by either party in writing.

Article 40

Governing Law. This Warehouse Receipt shall be governed by the laws of the State where the Company’s warehouse is located, as identified on the face of the Warehouse Receipt, without reference to its conflict of laws principles.

Article 41

Merger; Waiver; Severability, etc. This Warehouse Receipt constitutes the entire understanding between Customer and Company regarding the storage of the Goods and services provided. This Warehouse Receipt supersedes all prior or contemporaneous verbal or written negotiations, statements, representations, or agreements. This Warehouse Receipt may not be modified except for a written agreement between Customer and an officer of Company. If any section or portion of this Warehouse Receipt is held by any court to be illegal or unenforceable it shall not affect the legality or enforceability of the remaining provisions or terms and conditions herein. Company’s failure to insist upon strict compliance with any provision of this Warehouse Receipt shall not constitute a waiver or estoppel to later demand strict compliance thereof and shall not constitute a waiver of or estoppel to insist upon strict compliance with all other provisions of this Warehouse Receipt.

 

Article 42

Headings Not Binding. The use of headings in this Warehouse Receipt are for ease of reference only. Headings shall have no effect and are not considered to be part of or a term of these Warehouse Receipt Terms and Conditions.

 

1.   Severability, Jurisdiction and Governing Law

 

Article 43

Severability. In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.

Article 44

Governing Law; Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Delaware without giving consideration to principals of conflict of law. Customer and Company (a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of Delaware; (b) agree that any action relating to the services performed by Company, shall only be brought in said courts; (c) consent to the exercise of in personam jurisdiction by said courts over it, and (d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.