Terms and Conditions
1. Scope and Definitions: These Terms and Conditions govern the warehousing arrangement more fully described in the Agreement executed by both parties to which these Terms are attached.
a) The terms “Company” and “Warehouseman” as used in these Terms and Conditions includes any business units, divisions, affiliates or subsidiaries of the Company or the Warehouseman named therein.
b) The term “Product” or “Products” shall refer to any finished products, materials, ingredients or any other item provided to Warehouseman by Company for storage and packing.
c) The term “Facility” shall mean the location that the warehousing services shall take place.
Warehouseman hereby acknowledges and agrees that it shall remain the party liable for performance under these Terms and the Agreement.
2. Services: Warehouseman shall perform customary dedicated warehousing services at the Facility (“Services”). Warehouseman shall receive the Products, unload the Product, place the Products into storage, maintains an inventory of the Products, repack when required, upon Company’s request, return the Products to the facility door, load outbound trailers for transporting the Products and create the required shipping documentation while providing the necessary facilities, sanitation, equipment, security, labor and supervision to properly conduct such Services. The Facility shall be kept between 55- and 85-degrees Fahrenheit.
3. Condition of the Products: Company represents and warrants to Warehouseman that there are no known potential health, safety and/or environmental hazards associated with the storage and handling of such Products. In addition to the indemnification specified herein, Company will indemnify and hold harmless Warehouseman from all direct cost and expense (including reasonable attorney’s fees) incurred by Warehouseman as a result of Company’s breach of this representation, except to the extent caused by Warehouseman’s failure to meet the Standard of Care. Warehouseman shall identify such unconforming Products and communicate it to Company upon discovery.
4. Standard of Care: The parties acknowledge and agree that Company has entrusted and shall rely on Warehouseman for the safe, accurate and secure storage and handling of Company’s Products. Accordingly, Warehouseman shall at all times perform its duties and obligations under this Agreement in accordance with the best industry practices and standards. In addition to complying with all the other terms and conditions of this Agreement, Warehouseman shall also comply with all federal, state and local laws, rules and regulations with respect to the storage, handling and labeling. Warehouseman shall be responsible for any damages or expenses arising from double stacking super sacks or bags of Products.
5. Inventory Reconciliation, Loss or Damage:
a) Company shall have the right to cause Warehouseman to take physical inventories. Warehouseman shall provide one such inventory annually at no cost to Company and Company agrees to pay Warehouseman the cost of any additional inventories it may request at the hourly rate provided in the Agreement. Warehouseman shall furnish personnel and equipment to conduct such inventories. The company shall have the right to observe the taking of such physical inventories.
b) Warehouseman’s inventory record shall determine the number of Products shipped to and from the Facility based on electronic data interchange (“EDI”). All discrepancies in monthly inventory records shall be resolved as soon as practicable, but in any case, no later than seven (7) days. Company shall present any and all claims for loss or damage in writing to Warehouseman within thirty (30) days after Company learns of the loss or damage. Warehouseman will be afforded a reasonable opportunity to inspect damaged Products, research shortages, investigate claims, and respond to Company.
c) Company shall keep its Products continuously insured under a standard all risks property insurance policy for loss or damage.
d) The amount of any inventory shortage or loss or damage shall be further reduced by a loss allowance of .25% of the estimated bottles handled by WWI per year (the “Loss Allowance.”)
6. Insurance: For as long as this Agreement remains in force and effect, the following insurances shall be acquired and maintained by Warehouseman:
a) Statutory workers’ compensation coverage in accordance with the law of any state where Services are being performed.
b) Employer’s liability with a limit of not less than $1,000,000.00 per occurrence.
c) Commercial General Liability in the amount of $1,000,000.00 per occurrence and $2,000,000, general aggregate and umbrella/excess liability of not less than $5,000,000.00.
d) Warehouseman’s Legal Liability with a limit of not less than $1,000,000.00 to cover loss or damage to Company’s Products caused by Warehouseman’s negligent or intentional misconduct in the operation of the Facility.
e) Each party shall specifically name the other as an additional insured on all policies, shall provide that insurance providers shall give the other with thirty (30) days’ prior written notification of any cancelation and each insurance policy shall contain a waiver of subrogation in favor of the other party; and
f) Each party shall provide to the other party Certificates of Insurance evidencing the insurance policies and coverage required hereunder.
7. Force Majeure: Neither party shall be liable to the other for any failure to perform or delay in performance (other than a failure or delay in payment) to the extent such failure or delay is caused by circumstances beyond its reasonable control, including without limitation acts of God or nature, fire, flood, explosion, casualty, war, action or request of governmental authority, accident, labor trouble or shortage, unavailability of material, supplies, power, equipment or transportation. If any force majeure event exceeds one hundred and twenty (120) calendar days, Company may immediately terminate this Agreement without any further obligation or liability to Warehouseman.
8. Title; Warehouse Lien: Company shall retain title to all Products, equipment, supplies, and other property of Company intended to be stored or located at the Facility. Warehouseman shall not grant any security interest, charge or lien against any such Products, equipment, supplies or property, or cause any security interest, charge or lien to be placed against same; provided, however, that nothing contained herein or any other paragraph shall be construed to require Warehouseman to discharge or release any security interests, charges or liens not caused or granted by Warehouseman, its agents or employees; and provided, further, that nothing contained herein shall be construed to waive, limit, or impair the warehouseman’s lien against the stored Products, equipment, supplies, property or any other products of Company stored at the Facility or other facilities for unpaid charges or to limit or impair Warehouseman’s right to exercise its warehouseman’s lien under Sections 7-209 and 7-210 of the Uniform Commercial Code (“UCC”). WWI’s general warehouseman’s lien on products stored shall be for unpaid, undisputed charges of any kind rendered pursuant to this Agreement or at the request of Company whether for the Products in storage or Products that are being delivered. Warehouseman is not entitled hereunder to exercise its lien with respect to more Products than reasonably necessary, if sold in a commercially reasonable manner, to ensure the satisfaction of Company’s outstanding obligations.
9. Facility Inspection and Audit: Warehouse Provider shall, at its expense, conduct an annual food quality audit approved in advance by the Company’s corporate quality. Warehouse Provider shall make corrective improvements on the recommendation of the audit. Warehouse Provider shall notify Company if it becomes aware of any non-routine inquiry, injury, inspection or other action of any federal, state or local government agency involving the Facility and Warehouse Provider shall provide Company with copies of any resulting reports.
10. Movement, Transfer and Termination:
a) Instructions to transfer Goods on the books of Warehouseman are not effective until delivered to Warehouseman, and all charges up to the time transfer is made in accordance with such instructions are chargeable to Customer. If a transfer requires re-handling of the Goods by Warehouseman, then Warehouseman may assess a charge for this service in accordance with the Quote. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer. Warehouseman shall have the right to assess an administrative charge for processing and issuing the new warehouse receipt in accordance with the fee set forth in Quote. Warehouseman shall have the right to move Customer’s Goods from the Facility to any other of Warehouseman’s warehouses, after providing not less than fourteen (14) days’ advance written notice to Customer of such move if relocation of cargo is necessary to protect the integrity of the Goods or otherwise protect the Customer’s vested interested therein. If Customer objects to the proposed move within the 14-day period and elects to take delivery of the Goods in lieu of such movement, then Warehouseman shall not assess storage charges for the current storage month. Customer shall expeditiously arrange transportation to take delivery of the Goods and bear all related costs and expenses.
b) Warehouseman may without notice to Customer move the Goods within and between the buildings which comprise the Facility, provided that Warehouseman shall take due care to protect the Goods and shall reimburse Customer for any damage to the Goods caused by the negligence or intentional misconduct of Warehouseman, within the limits of liability.
c) If Warehouseman reasonably believes that the Goods have become, or may become, an immediate hazard to other property, to the Facility, or to any person, then Warehouseman may immediately dispose of the Goods and, in such instance, Warehouseman shall have no duty to provide advance notice to Customer or any other person believed to have an interest in the Goods; provided however, that Warehouseman shall use commercially reasonable efforts to provide advance notice to Customer in writing or by telephone. Warehouseman shall prepare a written record of the circumstances giving rise to the disposal, including a description of the hazard, or potential hazard, and the cause (if known). Customer shall bear the costs and expenses of disposal, and Warehouseman shall not bear any liability of any kind arising from its disposal of the Goods under such circumstances, unless Warehouseman’s decision was grossly negligent or made in bad faith. If Warehouseman in good faith believes that the Goods are about to deteriorate or decline in value, or have so deteriorated or declined in value (i.e. the Goods are perishable, have a limited shelf-life or expiration, etc.), to less than the amount of Warehouseman’s lien before the end of the next succeeding storage month, Warehouseman may immediately exercise its warehouseman’s lien as provided by law. Warehouseman may, upon written notice to Customer or any other person known by Warehouseman to claim an interest in the Goods, require the removal of the Goods by the end of the next succeeding month (the end of the month following the month in which notice is given). If Customer has not removed the Goods by the end of the next succeeding month as directed, then Warehouseman shall have the right to dispose of the Goods by public or private sale to recover any unpaid balance owed by Customer to Warehouseman. Any remaining proceeds from such sale shall be remitted to Customer.
11. Warehouse- Insurance, Liability and Limitation of Damages: Warehouseman shall not be liable for any loss, damage or injury to the Goods however caused except to the extent: (i) such loss, damage or injury resulted from the negligent acts or omissions of Warehouseman; or (ii) the original packaging of any damaged Goods was altered between the time the Goods were tendered to Warehouseman and the time they were tendered in return to the earlier of Customer or its Carrier, or evidenced exterior physical damage that was not recorded by Warehouseman and communicated to Customer upon tendering of the Goods to Warehouseman at the Facility. In the case of (ii) above, Warehouseman will only be liable for loss or damage to the Goods where (a) the Customer or its Carrier identified the altered or damaged packaging prior to loading of the Goods onto Customer’s transport and (b) the Goods were unpackaged and inspected and the loss or damage recorded prior to loading onto Customer’s transport. Notwithstanding anything to the contrary contained in this paragraph 9(a), Warehouseman shall in no event be liable for any loss, damage or injury to the Goods not caused by the negligent acts or omissions of Warehouseman, such as, but not limited to, fire, theft and force majeure events. In no event shall Warehouseman be liable for more than $0.10 per lb. for loss, damage or injury to the Goods, and IN NO EVENT SHALL ANY SUCH LIABILITY EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00) PER OCCURRENCE. Customer represents and warrants that it maintains first party property and casualty insurance coverage on the Goods, and that Customer shall maintain such insurance at all times pertinent to this Agreement, including without limitation, at the time of tender of the Goods to Warehouseman, throughout the time that the Goods are stored at the Facility, and at the time the Goods are transferred out of the Facility. Customer recognizes and understands that Warehouseman does not and will not maintain first party property and casualty insurance coverage on the Goods at any time, and that any potentially relevant insurance coverage maintained by Warehouseman is fault-based liability insurance only. Where loss or injury occurs to Goods for which Warehouseman is not responsible, Customer shall be responsible for the cost of removing and disposing of such Goods, including without limitation, the cost of any resulting environmental cleanup and/or site remediation. Customer expressly agrees that Warehouseman shall not be liable for any special, indirect, punitive, exemplary or consequential damages of any kind, including without limitation lost profit, loss of good will, lost use, lost business, or chargebacks or fines imposed by Customer’s customer or consignee, arising out of, or in any way connected to, this Agreement.
12. Access & Inspection: Company shall, upon reasonable advance notice, have access to those areas of the Facility occupied by its Products to observe the performance of the Services, the condition of those areas, and the adequacy of the Facility’s security measures; provided however that Company shall not unreasonably interfere with Warehouseman’s operations at the Facility. Warehouseman shall cooperate in any insurance audit from Depositor’s carrier and Warehouseman agrees to follow good industry standards for the protection of the Facility and Products, such as industry standards for fire protection, flood protection, and pest control for food grade storage.
13. Independent Contractor; Agency: Warehouseman shall be an independent contractor under this Agreement and shall assume all the rights, obligations and liabilities applicable to an independent contractor. Without limiting the generality of the foregoing, Warehouseman shall make all required or applicable withholdings from the wages of Warehouseman’s employees assigned to perform the Services. Warehouseman shall not for any purpose be deemed an agent of Company. Warehouseman shall not represent to anyone in any manner, express or implied, that WWI is an employee or agent, or that Warehouseman personnel are employees or agents, of Company. Nothing in this Agreement shall be construed to confer on Warehouseman any authority, express or implied, to bind or commit Company to any third party in any way whatsoever, except that Warehouseman shall have authority on behalf of Company to accept shipments and to issue bills of lading and other transportation documents in respect of Company’s Products. Company shall have no control or right to exercise any control whatsoever over Warehouseman’s employees in their performance of Warehouseman’s obligations under this Agreement. Company shall not have any right to establish the rate of pay, benefits, hours of work or other terms and conditions of Warehouseman’s employees, nor shall Company select, supervise, direct or in any other way control the employees of Warehouseman.
14. Late Payment and Offset Rights: In the event of non or late payment (a payment received more than 30 days after the invoice date) Warehouseman reserves the right to charge a 1.5% interest rate on the existing amount du, capped at 18% annum. Furthermore, Customer shall not offset any undisputed invoice amount, for any reason.
15. Entire Agreement: This Agreement and any and all attachments referenced herein constitute the entire agreement between the parties hereto on the subject matter hereof, and supersedes all prior proposals, oral or written.
16. Cooperation of Parties: Each party agrees to provide all relevant information available to it, subject to applicable law, with respect to its business, business plans and projections, as may be necessary for the parties to jointly carry out the purposes of this Agreement and for no other purpose. Nothing in this Agreement requires disclosure of confidential business information not specifically required to achieve the stated purposes and goals stated in this Agreement.
17. Severability: If any term or provision of this agreement or any application thereof shall be invalid or unenforceable, the remainder of this agreement or any other application of such term or provision shall not be affected thereby.
18. Modification: Any amendment of or modification to this Agreement shall be effective only if in writing and signed by the party sought to be charged therewith.
19. Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute one agreement.
20. Headings: All paragraph headings in this Agreement are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
21. Removal: No Product shall be removed from the Facility by anyone other than employees of WWI.
22. Entire Agreement: This Agreement and all appendices, attachments and exhibits referenced herein constitutes the entire agreement between the parties hereto on the subject matter hereof, and supersedes all prior proposals, oral or written.
23. Choice of Law and Venue: All issues concerning the construction, interpretation, validity and enforceability of these Terms and Conditions and the Agreement, and any other dispute arising out of this Agreement, whether in a court of law shall be governed by and construed and enforced in accordance with the laws of the State where the services are being provided and the exclusive venue for any action shall be in Erie County, Pennsylvania.