This Warehousing Terms & Conditions (“Warehousing Terms”) shall apply to all warehousing services performed by Forceget or its Affiliate to Customer, on Customer’s account, or on Customer’s behalf.
The term “Goods” means the cargo tendered by or on behalf of the Customer, excluding Hazardous, Dangerous or Regulated Goods (as described in Article XII below) for warehouse storage and handling services to be performed by the Forceget or its contractors pursuant these terms, and shall not include any and all assembling, labeling, decorating, coloring, dismantling, packaging, repackaging, sorting, building, servicing, distribution, shipping, carriage, transportation or similar work on the Goods. The term "Customer" includes the consignor, shipper, Customer, consignee, receiver and retriever of the Goods as well as any person, including any corporation, company or other legal entity having any interest in the Goods, or anyone acting on behalf of any such person. The term "Parties" shall refer to Forceget and Customer collectively and the term "Party" shall refer to either Forceget or Customer. The term “Fees” means the rates, charges, fees and expenses relating to storage services rendered to Customer, on Customer’s account, or on Customer’s behalf.
Unless otherwise defined in this Warehousing Terms, other words with Capital letter shall have the meaning attributed to them as set forth in the General Terms & Condition of Forceget.
Forceget shall receive and store the Goods in a storage warehouse at location(s) specified in the Order Form, and accordingly handle the Goods by only sticking shipping labels in accordance with the written shipping instructions of the Customer (hereinafter referred as “Services” or “services”) for the account of the Customer. No Goods are received until care and custody of the Goods has been accepted by Forceget in accordance with a non-negotiable Warehouse Receipt relating to those Goods, in the condition when received, except as noted on the non-negotiable Warehouse receipt. 48-hour notice is required for delivery and pickup of the Goods.
Unless otherwise provided in a separate written agreement between by the Parties, the Services provided under this Warehousing Terms shall not include any and all assembling, labeling, decorating, coloring, dismantling, packaging, re-packaging, sorting, building, servicing, distribution, shipping, carriage, transportation or similar work on the stored Goods. The Services and Warehousing Terms are not intended to be and shall in no event be construed as a contract-for-carriage.
If Foceget determines, in its sole discretion, that any special treatment or protection is necessary to preserve the Goods, or for the protection of other Goods stored in the warehouse, (i) Forceget may at any time terminate this Warehousing Terms and refuse the receipt of the Goods to the storage or take Customer’s stored Goods out of the warehouse at the expense of Customer, or (ii) may render additional service and add the reasonable charges for such to Customer’s account.
The Feesto be paid by Customer to Forceget, and the terms of payment of such rates and charges, are as specified in the Order Form and incorporated herein. All Fees are subject to change by Forceget on notice to the Customer. All account balances must be paid before due date.
Unless otherwise agreed in formal writing, Forceget shall invoice all Fees in USD currency and Customer shall remit payment in United States currency. Customer shall pay to Forceget all Fees with no right ofsetoff for any claim filed against Forceget or a Forceget Affiliate. Customer payments not received until the invoice due date will cause Customer account to be considered past due and late fees of 1.5% per month will apply.
Customer shall pay all applicable taxes and shall defend and indemnify Forceget and its Affiliates from and against all sales, use, personal property, or other taxes (including any penalties, fines or interest thereon), except for taxes on revenue earned by Forceget, imposed by any federal, state or local government or taxing authority with respect to the services performed by Foreceget under this Warehousing Terms.
Forceget is liable for loss or injury to the stored Goods caused by the failure of Forceget to exercise the level of care regarding the storage of Goods as a reasonably careful proprietor of a storage warehouse would exercise under similar circumstances.
Forceget shall have no liability for loss of, or damage to, the Goods or any portion of the Goods, or delay in their retrieval by Customer, nor for any consequential damages associated with the Goods, resulting from, or proximately caused by, any or all of the following events:
a) an act, omission or order of Customer or the owner of the stored Goods or an agent or employee of either; b) insects, moths, vermin, depreciation, deterioration, obsolescence, and ordinary wear and tear; c) inherent defects, characteristics, infirmities, or fragilities of the Goods; d) any event beyond Forceget or its subcontractor’s reasonable control (“force majeure” event), to include but not be limited to hostile or warlike actions by any authority using military or police forces; acts of war; earthquake, flood, wind, lightning, heat, strikes, lockouts, labor disturbances, riots, equipment failure (to include electrical power, heat, light, air conditioning or communications equipment), civil unrest, acts of war or armed conflicts, acts of public authorities, pandemics, civil unrest or acts or threatened acts of public enemies, hijackers or assailing thieves or civil unrest or other acts of God; e) any event not attributable to the negligence of Forceget or its Affiliates or subcontractors participating in the performance of warehousing and handling services; f) any acts of third parties; g) breakage or damage to Chinaware, bric-a-brac, ceramics, glass, and similar items of brittle or fragile composition unless such breakage or damage results from the lack of reasonable care of the Goods by Forceget and the brittle or fragile nature of such items is described by Customer in this Warehousing Terms; h) events happening before acceptance of the Goods by Forceget; i) events happening after delivery of the Goods by Forceget to Customer or its agents; j) events happening at any time Forceget does not have custody and control of the Goods.
Customer shall reimburse Forceget for all efforts taken to mitigate Customer's losses under circumstances of any force majeure event, including but not limited to storage Fees. Forceget'sliability shall be predicated on a duty of reasonable care, and Forceget shall have no liability for any damages not directly attributable to Forceget's breach of such duty. Forceget makes no warranties, representations or guarantees, either express, implied, statutory, or otherwise, oral or written, with respect to warehousing and handling services furnished under these Warehousing Terms, including without limitation any implied warranties of merchantability or fitness for a particular purpose
Notwithstanding any provision in this Warehousing Terms, in the event Forceget is liable for Customer’s losses or damages, the total liability of Forceget arising in and out of this Warehousing Terms for the stored Goods shall not be more than two times the Fees invoiced by Forceget to Customer for storage and handling services. In the event Forceget is liable for Customer’s losses or damages, Forceget is not liable for any loss of profits, or special, indirect, punitive or consequential damages of any kind suffered by Customer for Customer’s loss, destruction, damage, or diminution in value of the Goods. Customer agrees Forceget has no duty to indemnify Customer for such losses. Customer agrees that Forceget has no duty to defend Customer against any lawsuit related to such Goods or their loss.
Customer warrants to Forceget that Customer has lawful possession of and legal right to the Goods. Customer shall pay all storage and other charges, together with all costs and expenses incurred by Forceget, including attorney fees, if any adverse or conflicting claims to the Goods arise between Customer and any other person or entity. Forceget is not a consignee of the Goods, and Customer will not name Forceget or any related businesses as a consignee.
Customer warrants to Forceget that the Goods are properly classified, described, packaged, marked and labeled, are free of hazardous substances and are in proper condition for transportation and storage according to all applicable regulations and laws of the United States Department of Transportation and other U.S. agencies.
Customer will indemnify, defend and hold Forceget harmless from all claims, actions, losses, costs, penalties, and expenses, including reasonable attorney’s fees incurred by Forceget, arising out of Customer’s failure to properly handle, manage, maintain, classify, care for, describe, package, mark, label the Goods.
These Goods will be ready for shipment to the Customer at the warehouse or pick-up by the Customer or its agent at Customer’s written request, upon proper identification of Customer or Customer’s Agent, and upon payment in full of all accrued Fees. 76-hours notice is required for readiness for shipment and pickup. No delivery will be made except upon written order. Access and delivery of the Goods is provided Monday through Friday during normal working hours of 8:30AM to 4:30PM at the warehouse. An additional charge will be made if access is granted on weekends in the discretion of Forceget.
Customer must arrange for its own merchandise and liability insurance at its account and expense. Forceget is not an insurer of Goods in its custody nor is it obligated to procure insurance for Customer covering the Goods in its custody. The procurement of insurance for the Goods covering the period of storage in the warehouse in the custody of Forceget, is the sole and complete obligation of the Customer. The warehouse in which Goods are located should be listed on Customer’s policy either as a warehouse location where Goods are stored or as property off premises/unnamed location for a full value of Goods. A copy of the related certificate of insurance shall be furnished to Forceget following the execution of this Warehousing Terms.
Forceget is not responsible for loss of Goods due to inventory shortage or unexplained disappearance of stored Goods unless Customer affirmatively establishes such loss occurred due to Forceget’s failure to exercise the level of care regarding the Goods as a reasonably careful proprietor of a storage warehouse would exercise under similar circumstances. No legal presumptions as to the cause of losses shall apply to losses of Goods stored under this Warehousing Terms. In the event an inventory shortage of Goods occurs at the warehouse and such inventory shortage is not caused by theft, fire or any other insurable risk (whether or not such risk is actually covered by an insurance policy then in effect) and after diligent investigation, it is determined that such shortage was caused by the malfeasance of the employees or contractors of Forceget, Forceget will reimburse customer to the full extent of such shortage at the full landed duty paid cost. Unless within fifteen days after receipt of such invoice Customer notifies Forceget in writing that it disagrees with the inventory quantities, amount of the Fees, Customer will be to have accepted the amount of the inventory quantity and Fees stated on the invoice to Customer, and further waives any claim or cause of action against Forceget with respect thereto.
Forcegetshall have a general and continuing lien on any and all Goods of Customer coming into Forceget's actual or constructive possession or control for monies owed to Forceget with regard to the Goods on which the lien is claimed; (b) Forceget shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; (c) unless, within twenty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Forceget, guaranteeing payment of the monies owed, plus all Fees accrued or to be accrued, Forceget shall have the right to sell such Goods at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
Unless otherwise provided in a separate written agreement between Customer and Forceget, Forceget will not handle, receive, accept, store or arrange for the handling of: (i) any type of hazardous materials, dangerous Goods, or Goods containing hazardous materials or dangerous Goods regulated under Title 49 of the Code of Federal Regulations (“49 CFR”) or the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the International Air Transport Association (IATA) Dangerous Goods Regulations; or (ii) any type of Goods, which may be regulated by a governmental body, entity or agency, including but not limited to those Goods, which are regulated by the United States Food and Drug Administration, the United States Department of Agriculture, the United States Drug Enforcement Administration, the United States Bureau of Alcohol, Tobacco, Firearms and Explosives, and analogous regulatory agencies in countries in which the Services are provided (collectively, “Hazardous, Dangerous or Regulated Goods”). Customer covenants and warrants that it will not itself or through others offer, present or otherwise tender any Hazardous, Dangerous or Regulated Goods to Forceget, Forceget Affiliates, agents, servants or subcontractors. Customer further covenants and warrants that it will not itself or through others offer, present or Customer shall defend and indemnify Forceget, its employees, subcontractors, agents or servants from and against all claims related to or arising out of: (1) any action taken in relation to such actual or suspected Hazardous, Dangerous or Regulated Goods or Hazardous Waste, or (2) Customer’s noncompliance with applicable laws and regulations; or (3) the breach of any covenant of Customer contained in or made pursuant to this section and under this Warehousing Terms.
Forceget may at its discretion appoint Forceget Affiliates or third party vendor subcontractors for all or portions of the warehousing and handling services performed under these Warehousing Terms. Forceget may disclose to its Affiliates or third party vendors any Customer confidential information and other information reasonably necessary to perform the services under this Warehousing Terms.
Forcegetreservesthe right to limit quantities of Goods tendered for warehousing and/or handling services. Customer must effect removal of Goods from Forcege’s care, custody and/or control within the time specified by Forceget. In the event Customer fails to effect removal of Goods upon Forceget’s notice, Forceget may in its discretion take any commercially reasonable action, including, but not limited to, sale, destruction or disposal of the Goods. Customer shall reimburse Forceget for all expenses incurred as a result of disposition of Goods not timely retrieved upon Forceget’s notice.
Customer agrees that Customer is solely responsible for (a) properly classifying under the applicable import and export laws all Goods; (b) obtaining any required licenses and other authorizations for export, re-export, import, transshipment, transfer, or release; (c) correctly completing and filing with any government, as appropriate, all documents required under applicable laws and the import and export laws; and (d) ensuring that all export-related documents, including shipping and sales documents, generated in connection with the Goods conform to and are maintained in accordance with the applicable regulations and import and export laws. Notwithstanding any other provision in this Agreement to the contrary, Customer shall indemnify, defend, and hold harmless Forceget from and against all claims or investigations arising out of or in connection with Customer’s breach of applicable regulations, and import and export laws.
As a condition precedent for liability, any and all claims against Forceget for a potential or actual loss or damage to Goods must be filed in writing within sixty (60) days from the event giving rise to the claim, or such claim is otherwise waived. Any litigation brought by Customer against Forceget under this Warehousing Terms must be filed within one (1) year from the event giving rise to the claim, or such claims are otherwise waived.
The Parties agree to utilize the dispute resolution process to resolve any dispute, claim or question between them (“Dispute”) with respect to services under this Warehousing Terms as expeditiously as possible. The Parties shall keep confidential and shall not disclose to any person, except as may be required by law, all aspects of the Dispute and the Dispute resolution process. One Party shall give written notice to the other Party of the Dispute and request commencement of the Dispute resolution process. Then, the project managers from each Party shall meet within five business days to negotiate and use commercially reasonable effortsto promptly reach a resolution of the Dispute. If the Dispute is not resolved by the project managers within such five-day period, either Party may give notice to the other Party that the Dispute must be escalated to the senior officers of each Party, who will meet within ten business daysto negotiate and use commercially reasonable effortsto resolve the Dispute. In the event the senior officers are unable to resolve the Dispute within 60 days (unless the Parties mutually agree to extend their discussions) either Party may pursue arbitration.
If Customer’s jurisdiction of establishment is the United States, the Parties hereby irrevocably agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The controversy shall be submitted to and settled by one arbitrator. The arbitrators will be selected from the East Coast. The locale will be New York City, New York. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to enforce such award. The award of the arbitrators shall be final and binding, will be the sole and exclusive remedy between the parties. Notwithstanding anything herein to the contrary, Forceget will be entitled to seek interim relief or provisional remedies, and both parties are entitled to enforce judgments or awards, before any court having jurisdiction.
If Customer’s jurisdiction of establishment is outside of the United States, please refer to Article 17 (c ) of the General Terms & Conditions of Forceget, as incorporated herein by reference. To the extent permissible under controlling law, the parties agree that any disputes arising from services under the Warehousing Terms shall be determined under the laws of the state of New York, without regard to the conflicts of laws provisions therein. The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to the agreement for sale of Goods between the parties.
Assignment. The rights and obligations undertheseWarehousing Terms may not be transferred or assigned to a third party by the Customer without the prior written consent of the other Party. The rights and obligations under these Warehousing Terms may be transferred or assigned to a third party by Forceget without the prior written consent of Customer.
Amendments; Waiver; Severability. These Warehousing Terms can only be modified, amended and/or supplemented by a written instrument signed by the Parties. A waiver of any right by either Party will not constitute a waiver of such right on any subsequent occasion. Acceptance by Forecegt of the amounts (or lesser amounts) payable under for services under these Warehousing Terms shall not to be deemed a waiver of any default. If any provision of this Agreement is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Warehousing Terms.
Survival. The rights and obligations of this Agreement, which by their nature are intended to survive expiration or termination will survive, including but not limited to obligations for payment of Fees and indemnification, obligations relating to liability limitations and lien rights over Goods.
No Use of Trademarks. Neither Party may use the other Party’s or its affiliates’ name, logo, trademarks, service marks or trade names without the other Party’s prior written consent; provided however, Forceget may disclose Customer’s name as a reference to any current or prospective customer.
Intellectual Property Rights. Customer and Forceget acknowledge that the other has certain intellectual property rights that may be revealed or provided to the other Party in the course of performance and in accordance with this these Warehousing Terms. Each Party acknowledges that this Warehousing does not grant any right or title of ownership in their respective intellectual property rights to the other unless specifically provided otherwise in writing. Any intellectual property remains the originator’s property unless otherwise provided herein.