Storage and Warehousing Terms of Service
1. DEFINITIONS.
“Company” means XLR8 Truck Lines, providing Services to Customer hereunder, including its officers, directors, employees, agents, and assigns while acting within the scope and course of their engagement.
“Contract” means a written agreement entered into by and between Company and Customer for the provision of and/or the Rate Schedule relating to the Services, only when such written agreement has been signed by the Company’s authorized signatories
“Customer” means the shipper, consignee, owner of the Property or its agents, including, without limitation, motor carriers, drayage companies, forwarders, brokers, and/or any entity that places or maintains Equipment at any of the Company’s Facilities.
“Equipment” means Customer’s containers, chassis, trailers, tractors, or other motor vehicle equipment stored, parked, or dropped at a Facility.
“Facility” means any storage, warehouse, parking, lot, or other location of real property for which Company maintains a license, leasehold, or ownership interest and provides Services. Unless otherwise agreed to in writing by and between Company and the Customer, such Facility may be secured, unsecured, open-air, protected, paved, unpaved, enclosed, opened, covered, uncovered, temperature controlled, without temperature control, or in any other form or condition as determined in Company’s sole and absolute discretion.
“Property” means the Customer’s merchandise, goods, cargo, and/or freight stored at a Facility, either directly at or within such Facility or on or within Customer’s Equipment.
“Rate Schedule” means the Company’s then current rates and charges applicable to the Services. Such Rate Schedule may be provided to Customer via email, written notice, or as contained in a Contract.
“Services” means those certain storage, warehousing, parking, cross-docking, and/or distribution services directly performed or caused to be performed by Company on behalf of the Customer relating to the Equipment and/or Property.
“Storage and Warehousing Terms of Service” or “TOS” means the terms and conditions published by Company as contained herein and which are electronically published on the Website.
“Website” means railcart.activetrac.net.
2. CUSTOMER ACCEPTANCE AND AGREEMENT TO TERMS OF SERVICE.
It is agreed that Company’s TOS shall govern the dealings between Company and Customer for all Services, and such TOS may be amended by Company from time to time, without notice to Customer. Customer acknowledges and agrees that by delivering Equipment and/or Property to a Facility, Customer hereby accepts and agrees abide and be bound by the TOS, together with any applicable Rate Schedule. In the event of any conflict between the TOS as printed herein and those electronically published on the Website, the Website version shall govern. Unless a Contract specifically waives or identifies the Contract as superseding these TOS, in the event of any conflict between these TOS as published on the Website and the terms and conditions set forth in a Contract, the terms and conditions of these TOS as published on the Website shall govern. It is expressly understood that these TOS do not cover or apply to any rights, obligations, terms or conditions of the motor carrier transportation, freight brokering, chassis management, drayage, 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.
3. RATE SCHEDULE.
Upon delivery of Equipment or Property to a Facility, Company grants to Customer a personal, temporary, revocable, and non-exclusive license to store Equipment and/or Property at the Facility and agrees to the provide Services at the rates and charges set forth in the applicable Rate Schedule, which is incorporated herein by reference and made a part hereof. Unless otherwise agreed to by Company in writing in the applicable Rate Schedule, Customer shall pay any minimum month recurring storage charges prior to the first day of each month. Such minimum monthly recurring storage charges are to be paid in full, regardless of actual count of the Equipment or Property stored at the Facility during the applicable month. The minimum month recurring storage charges during the initial month may be prorated based on the number of days in the month, with payment due before Customer’s storage of any Equipment or Property hereunder. Unless otherwise agreed to by Company in writing in the applicable Rate Schedule, Customer will pay all other invoices for Services under the Rate Schedule within ten (10) days of Company’s invoice date for such Services. No invoices may be subject to deduction, withholding, or setoff. Any such Rate Schedule, and the applicable rates for Services detailed therein, may be revised by Company, in its sole and absolute discretion upon sixty (60) days’ written notice. In addition to Company’s lien rights contained in Section 5, Customer recognizes that failure to pay invoices may result in an imposition of a lien on Property and/or Equipment, by third parties and/or by Company, for which Company will not be responsible. Invoices not timely paid are subject to monthly interest of 1.5% of the balance each month until paid in full, and that Customer will pay any and all collection and attorneys’ fees incurred by Company for the collection by Company, if necessary, of amounts due under late or unpaid invoices.
4. FACILITY USE AND SHIPMENT LIMITATIONS.
Customer represents and warrants that all Property tendered for Services hereunder is properly marked, packaged, labeled and classified for handling and are fit for storage and any subsequent transportation as may be required. If Customer tenders Property to be stored by Company not inside or on corresponding Equipment, Customer shall not tender to or store such Property at any Facility if such Property is not properly packaged or which, in the reasonable opinion of Company, is not suitable for movement or storage within the Facility. Further, for any such Property not contained within or on Customer’s Equipment, Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes of the Property to be accounted for separately and the class of storage desired, if applicable.
Unless otherwise agreed by and between Company and Customer in writing, and subject to the applicable Rate Schedule, Company shall not be required to sort, restack, rework, repackage, or perform any other Services with respect to presentation or condition of the Property.
Customer may not sublease or assign its rights under these TOS. Notwithstanding this, Customer may use the Facility to store its or its customers’ Property or Equipment. Customer will access and use Facility only through its employees, agents, representatives, or independent contractors (“Customer Representatives”), for whom Customer will be liable under the terms of these TOS to the same extent as itself.
Customer represents and warrants that it maintains full financial responsibility for the Equipment and Property stored at the Facility and for its use of the Facility, and it will solely bear full cost for repair of damage caused in any way by Customer or any Customer Representative, except and to the extent any applicable cost or expense was caused by the gross negligence or intentional misconduct of Company. Customer represents and warrants that the Property, whether contained in or on any Equipment, will not include any materials that are illegal, hazardous, dangerous, or that require government permits to handle, store, or dispose. In the event of Customer’s breach of the foregoing provision, 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 Property and shall indemnify Company against all amounts, liabilities, claims, or damages arising in connection with the Property. Customer will use the Facility only in a reasonable, orderly, clean, and safe manner, without any alteration whatsoever of the Facility. Customer will comply with all rules and regulations that may be established from time to time by Company upon notice to Customer or any applicable Customer Representative.
Customer will comply with all Facility regulations by the owner, Company, or regulatory bodies, and all recorded covenants, conditions, and restrictions now or hereafter affecting the Facility, and all laws, statutes, codes, rules, and regulations in present force relating to or affecting its use of the Facility, will not cause encumbrances upon the Facility, and will not engage in any action prohibited by any lease or license terms between Company and any third party concerning the Facility or that is prohibited by the certificate of occupancy or business license for the Facility or which is prohibited by or will increase the rate of any standard form of fire insurance policy. Customer will not take or permit any action at the Facility that would obstruct or interfere with Company’s rights or the rights of any other occupant and will not allow the Facility to be used for any improper, immoral, or unlawful purpose.
Without limitation, Company may terminate or revoke Customer’s license to store Equipment or Property at the Facility immediately upon notice without liability to Company in the event that: (a) the license extended to the applicable Facility, or Customer’s use of the Facility, places Company in breach of any lease or third-party license agreement relating to the Facility or (b) Company loses its tenancy and/or license rights to the Facility for any reason. Company is not required to perform any work to ready the Facility for receipt of the Equipment or Property.
5. GENERAL LIEN RIGHTS
Company has a general lien on any and all Equipment and Property (and documents relating thereto) stored at the Facility and now or hereafter in Company’s possession, custody, or control as security for all existing and future indebtedness and obligations of Customer to Company. If Customer is in breach of any indebtedness or obligation to Company, Company shall have the right to do one or more of the following (a) withhold delivery or release of any Equipment or Property, even if the debt is not related to such Equipment or Property, (b) cease performance of Services, (c) require payment of any and all sums due to Company from Customer, and/or (d) effect the removal of all Equipment and Property at Customer’s expense. If any such indebtedness or obligation is unsatisfied, Company may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition of Equipment or Property made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from such sale or other disposition, after deduction for all sums owed to Company, shall be transmitted to Customer, and Customer shall be liable for any and all deficiency following sale or other disposition.
6. LIABILITY LIMITS; “AS IS” FACILITY.
Company is not and shall not be required to maintain or contract any minimum form of security for the Facility. Any Equipment parked or Property stored at the Facility and/or the contents thereof, are stored by Customer at Customer’s sole risk. In the event of theft, vandalism, fire, or other damage or destruction of the Equipment or Property stored at the Facility and/or the contents thereof, in the absence of Company’s gross negligence or intentional misconduct, Company will have no liability to Customer whatsoever. Such liability limitation shall also apply to Company’s operation of any such Equipment for purposes of loading, unloading, moving, stacking, or parking the Equipment. If Customer nevertheless attempts to hold Company liable for loss or damage to the Equipment or Property, and/or the contents thereof, relating to or arising from Company’s performance of Warehouse Services, Customer acknowledges and agrees that Company’s liability shall be limited to a total amount of $10,000 per occurrence, provided such liability limitation will not apply in the event of Company’s willful misconduct. Further, any such liability for Equipment and Property shall begin as of the time the Equipment and/or Property is delivered to and accepted by Company for storage at the Facility, as evidenced by a written receipt signed by the Company, and end at the time the Equipment is made available to Customer or any Customer Representative for transport or the Property is loaded onto Customer’s or any Customer Representative’s Equipment and made available for transport. If Company maintains any security systems, security patrols, access control devices or other security measures, Company will have no liability to Customer whatsoever in the event the operation, use, or conduct or failure of the same resulting in loss or damage to Customer.
IN NO EVENT 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 EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), LOSS OF USE OF EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), COST OF SUBSTITUTED EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.
In the event there is a reasonable dispute as to whether Company is providing transportation services under the applicable transportation terms of service or these TOS at a particular point in time, it shall be presumed that Company was providing Services under these TOS.
Customer has inspected the Facility, acknowledges that the Facility is in a good, clean, and safe condition and repair and accepts the Facility in its "AS-IS" condition. Customer has no right at any time to make any alterations, modifications, or additions to the Facility. Unless specifically agreed to in writing, Company shall not be responsible for storage of the Equipment and Property in a temperature or humidity-controlled environment. Customer knowingly accepts that the Equipment and Property will be warehoused in a non-temperature/humidity-controlled environment. Company will not be responsible for any loss or damage to the Equipment or Property that result from fluctuations in temperature range or in humidity levels of the Facility.
Company will furthermore not be responsible for losses or damages incurred to Equipment or Property (and/or the contents thereof), unless otherwise agreed to in writing prior to tender of the Equipment or Property for storage.
7. INDEPENDENT CONTRACTOR
The relationship of Company and Customer to each other will at all times be that of independent contractors. None of the terms of these TOS, or any act or omission of either party will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the parties. Each party will provide sole supervision and will have exclusive control over the actions and operations of its employees and agents used to perform under these TOS.
Neither party has any right to control, discipline or direct the performance of any employees or agents of the other party. Neither party will represent to any third party that it is anything other than an independent contractor in its relationship to the other party.
8. INSURANCE
Company does not insure the Equipment or Property while in storage and the storage rates or charges billed to Customer do not include any insurance on the Equipment or Property. The Equipment and Property will therefore not be insured for any loss or damage, and the limitation of liability set forth in Section 6 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, Company has agreed to accept such increased liability in a signed writing prior to receipt of the Equipment and/or Property, 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 Equipment or Property for Customer’s benefit while the Equipment and Property are being stored at Facility.
In the event Customer will perform or arrange the performance of transportation of Equipment and/or Property and into or from the Facility, Customer will, or will ensure Customer’s Representatives, as applicable, obtain and keep in full force and effect during the term of these TOS, the following insurance: (i) occurrence based commercial comprehensive general liability insurance, including death and broad form property damage, personal injury, blanket contractual liability, completed operations, fire and legal liability coverage, with liability limits of not less than $1,000,000 per person per occurrence, with an aggregate limit of not less than $2,000,000; (ii) automobile or contingent automobile insurance, as applicable, for owned, as well as hired and non-owned vehicles with liability limits of not less than $1,000,000 per person per occurrence for bodily injury and $1,000,000 for property damage; (iii) workers’ compensation insurance in full compliance with the requirements of all applicable laws; (iv) cargo or contingent cargo insurance, as applicable, on an all-risk policy covering all Property located at the Facility in an amount not less than a single limit of $100,000 or the actual cash value or the amount specified in a bill of lading or receipt, whichever is greater; and (v) physical damage insurance covering all loss and damage to the Equipment while located at the Facility. Each policy will: (a) be issued by insurers which are approved by Company and authorized to do business in the state in which the Property is located; (b) name Company and such other persons or entities as requested by Company as additional insureds thereunder; (c) specifically provide that the insurance afforded will be primary, and any insurance carried by Company or any other additional insureds will be excess and non-contributing; (d) contain an endorsement that the insurer waives its right to subrogation against Company and any additional insureds; (e) require the insurer to notify Company and any other additional insureds in writing not less than thirty (30) days prior to any material change, reduction in coverage, cancellation, or other termination thereof; and (f) contain a cross-liability or severability of interest endorsement.
9. COMPANY REMEDIES
Upon any breach by Customer of these TOS, Company may, at is option, in addition to any other remedy or right it has hereunder or by law: (a) Declare all invoices due hereunder, or under any other agreement with Customer, immediately due and payable without notice or demand to Customer; (b) Place a lien on the Equipment and Property (and/or the contents thereof) as detailed herein; (c) Terminate these TOS immediately without period for cure; and/or (d) Pursue any other remedy available at law or equity.
10. CONFIDENTIALITY AND NON-SOLICITATION
Customer hereby agrees that during any period for which Company provides Services under these TOS (the “Service Period”) and for one (1) year after all of Customer Equipment and Property have been removed from the Facility, Customer will not either directly or indirectly, solicit or attempt to solicit, entice, or encourage any employee, independent contractor, consultant, or customer of Company with which Customer interacted at any point during the Service Period to terminate his, her, or its relationship with Company in order to become an employee, consultant, independent contractor or customer, to or for Customer. The parties acknowledge and agree that this ancillary restriction is reasonably necessary and collateral to the parties’ legitimate business collaboration and is narrowly tailored to match the scope of such collaboration. The agreement in this Section not to solicit employees is directly connected to the confidentiality covenants under these TOS and such restriction is for the purpose of protecting Company’s reasonable and legitimate business interests.
In the event of violation of this Section 10, the parties agree that the remedy at law, including monetary damages, may be inadequate and that the parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating party from further violation of these TOS in which case the non-prevailing party shall be liable for all costs and expenses incurred, including to reasonable attorneys’ fees.
11. MISCELLANEOUS
Notice of Claim and Filing of Suit. Company shall not be liable for any claim whatsoever for any loss, damage, or destruction of the Equipment or Property (and/or the contents thereof) 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. Any lawsuit or other claim against Company with respect to the Equipment or Property 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.
Contents of Agreement; Amendments. These TOS and any attachments referenced herein constitute the entire understanding of the parties regarding the transaction contemplated by them and supersedes any prior agreements or understandings between the parties. Except for and subject to the terms and conditions contained within a formal written Contract or as applicable under Company’s transportation terms of service, these TOS may not be modified, and its terms may not be waived except in writing, agreed by both parties. Company’s failure to insist upon strict compliance with any provision of these TOS 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 these TOS.
Assignment and Binding Effect. These TOS may not be assigned by any party without other’s prior written consent. Notwithstanding the foregoing, the following assignments or transfers by Company shall be allowed without the Customer’s consent: assignments or transfers to an entity; (a) that is merged or consolidated with Company, (b) that acquired all or substantially all of the Company’s assets, or (c) that controls, is controlled by, or is under common control with the Company. Subject to the foregoing, all of the terms and provisions of these TOS shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the assigning party.
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 Rate Schedule, unless otherwise instructed by either party in writing.
Governing Law; Jurisdiction and Venue. These TOS are governed, interpreted, and enforced in accordance with the laws of the State where the Facility is located without regard to any conflicts of law. Any action brought by either party under or in relation to these TOS will be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the State and County where the Facility is located. In any action arising out of or in connection with these TOS, the prevailing party will be entitled to recover from the other party the reasonable fees and expenses, including attorneys’ fees and related costs, incurred by the prevailing party in connection with the action.
Force Majeure. In the event that either party is prevented from performing its obligations under these TOS because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, pandemic, epidemic, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes or unionized refusal to work, such failures to perform (except for any payments due hereunder) will be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, do not constitute force majeure events.
Severability; Survival. In the event any of the terms of these TOS are determined to be invalid or unenforceable, no other terms will be affected, and the unaffected terms shall remain valid and enforceable as written. Provisions of these TOS, which by their terms or nature extend beyond the termination of these TOS, will remain effective after termination in accordance with their terms.
Interpretation. In any dispute or action relating to these TOS, these TOS will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of these TOS will be construed against Company on the basis that Company drafted them. These TOS will be viewed as if prepared jointly by Company and Customer.
Independent Legal Advice. Each party acknowledges that it was solely responsible and had the opportunity to obtain independent legal advice regarding these TOS.
Headings. The paragraph headings of these TOS are for convenience only; they form no part of these TOS and will not affect their interpretation.
1. DEFINITIONS.
“Company” means XLR8 Truck Lines, providing Services to Customer hereunder, including its officers, directors, employees, agents, and assigns while acting within the scope and course of their engagement.
“Contract” means a written agreement entered into by and between Company and Customer for the provision of and/or the Rate Schedule relating to the Services, only when such written agreement has been signed by the Company’s authorized signatories
“Customer” means the shipper, consignee, owner of the Property or its agents, including, without limitation, motor carriers, drayage companies, forwarders, brokers, and/or any entity that places or maintains Equipment at any of the Company’s Facilities.
“Equipment” means Customer’s containers, chassis, trailers, tractors, or other motor vehicle equipment stored, parked, or dropped at a Facility.
“Facility” means any storage, warehouse, parking, lot, or other location of real property for which Company maintains a license, leasehold, or ownership interest and provides Services. Unless otherwise agreed to in writing by and between Company and the Customer, such Facility may be secured, unsecured, open-air, protected, paved, unpaved, enclosed, opened, covered, uncovered, temperature controlled, without temperature control, or in any other form or condition as determined in Company’s sole and absolute discretion.
“Property” means the Customer’s merchandise, goods, cargo, and/or freight stored at a Facility, either directly at or within such Facility or on or within Customer’s Equipment.
“Rate Schedule” means the Company’s then current rates and charges applicable to the Services. Such Rate Schedule may be provided to Customer via email, written notice, or as contained in a Contract.
“Services” means those certain storage, warehousing, parking, cross-docking, and/or distribution services directly performed or caused to be performed by Company on behalf of the Customer relating to the Equipment and/or Property.
“Storage and Warehousing Terms of Service” or “TOS” means the terms and conditions published by Company as contained herein and which are electronically published on the Website.
“Website” means railcart.activetrac.net.
2. CUSTOMER ACCEPTANCE AND AGREEMENT TO TERMS OF SERVICE.
It is agreed that Company’s TOS shall govern the dealings between Company and Customer for all Services, and such TOS may be amended by Company from time to time, without notice to Customer. Customer acknowledges and agrees that by delivering Equipment and/or Property to a Facility, Customer hereby accepts and agrees abide and be bound by the TOS, together with any applicable Rate Schedule. In the event of any conflict between the TOS as printed herein and those electronically published on the Website, the Website version shall govern. Unless a Contract specifically waives or identifies the Contract as superseding these TOS, in the event of any conflict between these TOS as published on the Website and the terms and conditions set forth in a Contract, the terms and conditions of these TOS as published on the Website shall govern. It is expressly understood that these TOS do not cover or apply to any rights, obligations, terms or conditions of the motor carrier transportation, freight brokering, chassis management, drayage, 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.
3. RATE SCHEDULE.
Upon delivery of Equipment or Property to a Facility, Company grants to Customer a personal, temporary, revocable, and non-exclusive license to store Equipment and/or Property at the Facility and agrees to the provide Services at the rates and charges set forth in the applicable Rate Schedule, which is incorporated herein by reference and made a part hereof. Unless otherwise agreed to by Company in writing in the applicable Rate Schedule, Customer shall pay any minimum month recurring storage charges prior to the first day of each month. Such minimum monthly recurring storage charges are to be paid in full, regardless of actual count of the Equipment or Property stored at the Facility during the applicable month. The minimum month recurring storage charges during the initial month may be prorated based on the number of days in the month, with payment due before Customer’s storage of any Equipment or Property hereunder. Unless otherwise agreed to by Company in writing in the applicable Rate Schedule, Customer will pay all other invoices for Services under the Rate Schedule within ten (10) days of Company’s invoice date for such Services. No invoices may be subject to deduction, withholding, or setoff. Any such Rate Schedule, and the applicable rates for Services detailed therein, may be revised by Company, in its sole and absolute discretion upon sixty (60) days’ written notice. In addition to Company’s lien rights contained in Section 5, Customer recognizes that failure to pay invoices may result in an imposition of a lien on Property and/or Equipment, by third parties and/or by Company, for which Company will not be responsible. Invoices not timely paid are subject to monthly interest of 1.5% of the balance each month until paid in full, and that Customer will pay any and all collection and attorneys’ fees incurred by Company for the collection by Company, if necessary, of amounts due under late or unpaid invoices.
4. FACILITY USE AND SHIPMENT LIMITATIONS.
Customer represents and warrants that all Property tendered for Services hereunder is properly marked, packaged, labeled and classified for handling and are fit for storage and any subsequent transportation as may be required. If Customer tenders Property to be stored by Company not inside or on corresponding Equipment, Customer shall not tender to or store such Property at any Facility if such Property is not properly packaged or which, in the reasonable opinion of Company, is not suitable for movement or storage within the Facility. Further, for any such Property not contained within or on Customer’s Equipment, Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes of the Property to be accounted for separately and the class of storage desired, if applicable.
Unless otherwise agreed by and between Company and Customer in writing, and subject to the applicable Rate Schedule, Company shall not be required to sort, restack, rework, repackage, or perform any other Services with respect to presentation or condition of the Property.
Customer may not sublease or assign its rights under these TOS. Notwithstanding this, Customer may use the Facility to store its or its customers’ Property or Equipment. Customer will access and use Facility only through its employees, agents, representatives, or independent contractors (“Customer Representatives”), for whom Customer will be liable under the terms of these TOS to the same extent as itself.
Customer represents and warrants that it maintains full financial responsibility for the Equipment and Property stored at the Facility and for its use of the Facility, and it will solely bear full cost for repair of damage caused in any way by Customer or any Customer Representative, except and to the extent any applicable cost or expense was caused by the gross negligence or intentional misconduct of Company. Customer represents and warrants that the Property, whether contained in or on any Equipment, will not include any materials that are illegal, hazardous, dangerous, or that require government permits to handle, store, or dispose. In the event of Customer’s breach of the foregoing provision, 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 Property and shall indemnify Company against all amounts, liabilities, claims, or damages arising in connection with the Property. Customer will use the Facility only in a reasonable, orderly, clean, and safe manner, without any alteration whatsoever of the Facility. Customer will comply with all rules and regulations that may be established from time to time by Company upon notice to Customer or any applicable Customer Representative.
Customer will comply with all Facility regulations by the owner, Company, or regulatory bodies, and all recorded covenants, conditions, and restrictions now or hereafter affecting the Facility, and all laws, statutes, codes, rules, and regulations in present force relating to or affecting its use of the Facility, will not cause encumbrances upon the Facility, and will not engage in any action prohibited by any lease or license terms between Company and any third party concerning the Facility or that is prohibited by the certificate of occupancy or business license for the Facility or which is prohibited by or will increase the rate of any standard form of fire insurance policy. Customer will not take or permit any action at the Facility that would obstruct or interfere with Company’s rights or the rights of any other occupant and will not allow the Facility to be used for any improper, immoral, or unlawful purpose.
Without limitation, Company may terminate or revoke Customer’s license to store Equipment or Property at the Facility immediately upon notice without liability to Company in the event that: (a) the license extended to the applicable Facility, or Customer’s use of the Facility, places Company in breach of any lease or third-party license agreement relating to the Facility or (b) Company loses its tenancy and/or license rights to the Facility for any reason. Company is not required to perform any work to ready the Facility for receipt of the Equipment or Property.
5. GENERAL LIEN RIGHTS
Company has a general lien on any and all Equipment and Property (and documents relating thereto) stored at the Facility and now or hereafter in Company’s possession, custody, or control as security for all existing and future indebtedness and obligations of Customer to Company. If Customer is in breach of any indebtedness or obligation to Company, Company shall have the right to do one or more of the following (a) withhold delivery or release of any Equipment or Property, even if the debt is not related to such Equipment or Property, (b) cease performance of Services, (c) require payment of any and all sums due to Company from Customer, and/or (d) effect the removal of all Equipment and Property at Customer’s expense. If any such indebtedness or obligation is unsatisfied, Company may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Any notice required to be given of a sale or other disposition of Equipment or Property made at least ten (10) days before a proposed action constitutes fair and reasonable notice. Any surplus from such sale or other disposition, after deduction for all sums owed to Company, shall be transmitted to Customer, and Customer shall be liable for any and all deficiency following sale or other disposition.
6. LIABILITY LIMITS; “AS IS” FACILITY.
Company is not and shall not be required to maintain or contract any minimum form of security for the Facility. Any Equipment parked or Property stored at the Facility and/or the contents thereof, are stored by Customer at Customer’s sole risk. In the event of theft, vandalism, fire, or other damage or destruction of the Equipment or Property stored at the Facility and/or the contents thereof, in the absence of Company’s gross negligence or intentional misconduct, Company will have no liability to Customer whatsoever. Such liability limitation shall also apply to Company’s operation of any such Equipment for purposes of loading, unloading, moving, stacking, or parking the Equipment. If Customer nevertheless attempts to hold Company liable for loss or damage to the Equipment or Property, and/or the contents thereof, relating to or arising from Company’s performance of Warehouse Services, Customer acknowledges and agrees that Company’s liability shall be limited to a total amount of $10,000 per occurrence, provided such liability limitation will not apply in the event of Company’s willful misconduct. Further, any such liability for Equipment and Property shall begin as of the time the Equipment and/or Property is delivered to and accepted by Company for storage at the Facility, as evidenced by a written receipt signed by the Company, and end at the time the Equipment is made available to Customer or any Customer Representative for transport or the Property is loaded onto Customer’s or any Customer Representative’s Equipment and made available for transport. If Company maintains any security systems, security patrols, access control devices or other security measures, Company will have no liability to Customer whatsoever in the event the operation, use, or conduct or failure of the same resulting in loss or damage to Customer.
IN NO EVENT 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 EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), LOSS OF USE OF EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), COST OF SUBSTITUTED EQUIPMENT OR PROPERTY (AND/OR THE CONTENTS THEREOF), DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.
In the event there is a reasonable dispute as to whether Company is providing transportation services under the applicable transportation terms of service or these TOS at a particular point in time, it shall be presumed that Company was providing Services under these TOS.
Customer has inspected the Facility, acknowledges that the Facility is in a good, clean, and safe condition and repair and accepts the Facility in its "AS-IS" condition. Customer has no right at any time to make any alterations, modifications, or additions to the Facility. Unless specifically agreed to in writing, Company shall not be responsible for storage of the Equipment and Property in a temperature or humidity-controlled environment. Customer knowingly accepts that the Equipment and Property will be warehoused in a non-temperature/humidity-controlled environment. Company will not be responsible for any loss or damage to the Equipment or Property that result from fluctuations in temperature range or in humidity levels of the Facility.
Company will furthermore not be responsible for losses or damages incurred to Equipment or Property (and/or the contents thereof), unless otherwise agreed to in writing prior to tender of the Equipment or Property for storage.
7. INDEPENDENT CONTRACTOR
The relationship of Company and Customer to each other will at all times be that of independent contractors. None of the terms of these TOS, or any act or omission of either party will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the parties. Each party will provide sole supervision and will have exclusive control over the actions and operations of its employees and agents used to perform under these TOS.
Neither party has any right to control, discipline or direct the performance of any employees or agents of the other party. Neither party will represent to any third party that it is anything other than an independent contractor in its relationship to the other party.
8. INSURANCE
Company does not insure the Equipment or Property while in storage and the storage rates or charges billed to Customer do not include any insurance on the Equipment or Property. The Equipment and Property will therefore not be insured for any loss or damage, and the limitation of liability set forth in Section 6 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, Company has agreed to accept such increased liability in a signed writing prior to receipt of the Equipment and/or Property, 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 Equipment or Property for Customer’s benefit while the Equipment and Property are being stored at Facility.
In the event Customer will perform or arrange the performance of transportation of Equipment and/or Property and into or from the Facility, Customer will, or will ensure Customer’s Representatives, as applicable, obtain and keep in full force and effect during the term of these TOS, the following insurance: (i) occurrence based commercial comprehensive general liability insurance, including death and broad form property damage, personal injury, blanket contractual liability, completed operations, fire and legal liability coverage, with liability limits of not less than $1,000,000 per person per occurrence, with an aggregate limit of not less than $2,000,000; (ii) automobile or contingent automobile insurance, as applicable, for owned, as well as hired and non-owned vehicles with liability limits of not less than $1,000,000 per person per occurrence for bodily injury and $1,000,000 for property damage; (iii) workers’ compensation insurance in full compliance with the requirements of all applicable laws; (iv) cargo or contingent cargo insurance, as applicable, on an all-risk policy covering all Property located at the Facility in an amount not less than a single limit of $100,000 or the actual cash value or the amount specified in a bill of lading or receipt, whichever is greater; and (v) physical damage insurance covering all loss and damage to the Equipment while located at the Facility. Each policy will: (a) be issued by insurers which are approved by Company and authorized to do business in the state in which the Property is located; (b) name Company and such other persons or entities as requested by Company as additional insureds thereunder; (c) specifically provide that the insurance afforded will be primary, and any insurance carried by Company or any other additional insureds will be excess and non-contributing; (d) contain an endorsement that the insurer waives its right to subrogation against Company and any additional insureds; (e) require the insurer to notify Company and any other additional insureds in writing not less than thirty (30) days prior to any material change, reduction in coverage, cancellation, or other termination thereof; and (f) contain a cross-liability or severability of interest endorsement.
9. COMPANY REMEDIES
Upon any breach by Customer of these TOS, Company may, at is option, in addition to any other remedy or right it has hereunder or by law: (a) Declare all invoices due hereunder, or under any other agreement with Customer, immediately due and payable without notice or demand to Customer; (b) Place a lien on the Equipment and Property (and/or the contents thereof) as detailed herein; (c) Terminate these TOS immediately without period for cure; and/or (d) Pursue any other remedy available at law or equity.
10. CONFIDENTIALITY AND NON-SOLICITATION
Customer hereby agrees that during any period for which Company provides Services under these TOS (the “Service Period”) and for one (1) year after all of Customer Equipment and Property have been removed from the Facility, Customer will not either directly or indirectly, solicit or attempt to solicit, entice, or encourage any employee, independent contractor, consultant, or customer of Company with which Customer interacted at any point during the Service Period to terminate his, her, or its relationship with Company in order to become an employee, consultant, independent contractor or customer, to or for Customer. The parties acknowledge and agree that this ancillary restriction is reasonably necessary and collateral to the parties’ legitimate business collaboration and is narrowly tailored to match the scope of such collaboration. The agreement in this Section not to solicit employees is directly connected to the confidentiality covenants under these TOS and such restriction is for the purpose of protecting Company’s reasonable and legitimate business interests.
In the event of violation of this Section 10, the parties agree that the remedy at law, including monetary damages, may be inadequate and that the parties shall be entitled, in addition to any other remedy they may have, to an injunction restraining the violating party from further violation of these TOS in which case the non-prevailing party shall be liable for all costs and expenses incurred, including to reasonable attorneys’ fees.
11. MISCELLANEOUS
Notice of Claim and Filing of Suit. Company shall not be liable for any claim whatsoever for any loss, damage, or destruction of the Equipment or Property (and/or the contents thereof) 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. Any lawsuit or other claim against Company with respect to the Equipment or Property 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.
Contents of Agreement; Amendments. These TOS and any attachments referenced herein constitute the entire understanding of the parties regarding the transaction contemplated by them and supersedes any prior agreements or understandings between the parties. Except for and subject to the terms and conditions contained within a formal written Contract or as applicable under Company’s transportation terms of service, these TOS may not be modified, and its terms may not be waived except in writing, agreed by both parties. Company’s failure to insist upon strict compliance with any provision of these TOS 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 these TOS.
Assignment and Binding Effect. These TOS may not be assigned by any party without other’s prior written consent. Notwithstanding the foregoing, the following assignments or transfers by Company shall be allowed without the Customer’s consent: assignments or transfers to an entity; (a) that is merged or consolidated with Company, (b) that acquired all or substantially all of the Company’s assets, or (c) that controls, is controlled by, or is under common control with the Company. Subject to the foregoing, all of the terms and provisions of these TOS shall be binding upon and inure to the benefit of and be enforceable by the successors and permitted assigns of the assigning party.
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 Rate Schedule, unless otherwise instructed by either party in writing.
Governing Law; Jurisdiction and Venue. These TOS are governed, interpreted, and enforced in accordance with the laws of the State where the Facility is located without regard to any conflicts of law. Any action brought by either party under or in relation to these TOS will be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the State and County where the Facility is located. In any action arising out of or in connection with these TOS, the prevailing party will be entitled to recover from the other party the reasonable fees and expenses, including attorneys’ fees and related costs, incurred by the prevailing party in connection with the action.
Force Majeure. In the event that either party is prevented from performing its obligations under these TOS because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, pandemic, epidemic, war, riots, rebellion, acts of God, acts of lawful authorities, fire, strikes, lockouts or other labor disputes or unionized refusal to work, such failures to perform (except for any payments due hereunder) will be excused for the duration of such occurrence. Economic hardships, including, but not limited to, recession and depression, do not constitute force majeure events.
Severability; Survival. In the event any of the terms of these TOS are determined to be invalid or unenforceable, no other terms will be affected, and the unaffected terms shall remain valid and enforceable as written. Provisions of these TOS, which by their terms or nature extend beyond the termination of these TOS, will remain effective after termination in accordance with their terms.
Interpretation. In any dispute or action relating to these TOS, these TOS will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of these TOS will be construed against Company on the basis that Company drafted them. These TOS will be viewed as if prepared jointly by Company and Customer.
Independent Legal Advice. Each party acknowledges that it was solely responsible and had the opportunity to obtain independent legal advice regarding these TOS.
Headings. The paragraph headings of these TOS are for convenience only; they form no part of these TOS and will not affect their interpretation.
