1. AGREEMENT TO TERMS AND CONDITIONS. It is agreed by Larkin Cold Storage Co. Inc. (“LCS”) and the customer identified on the front side of this Receipt (“Customer”) that these Terms and Conditions shall govern the dealings between LCS and Customer for all shipping logistics, warehousing and storage services. It is furthermore agreed that these Terms and Conditions are electronically published at http://www.larkin.com, and may be amended by LCS from time to time, without notice. In the event of any conflict between the Terms and Conditions as printed herein and the electronically published Terms and Conditions, the electronically published version shall control. Customer agrees to notify all parties acquiring any interest in the Goods of these Terms and Conditions and further agrees to indemnify and hold LCS harmless from any claim by third parties relating to the ownership, right, title or interest in the Goods, the shipping, storage, handling or delivery of Goods, or from any other services provided by LCS under this Receipt. Such indemnification shall include any legal fees and expenses incurred from any claim by a third party, regardless of whether litigation is actually filed.
2. TENDER; ACCEPTANCE. Customer represents and warrants that Customer is lawfully possessed of the property tendered to LCS by Customer which LCS has agreed to ship or store (the “Goods”) and has the sole right and legal authority to store them with LCS, to release them, and to instruct LCS regarding shipping, delivery or disposition of them. All goods delivered at LCS’s warehouse facility (the “Warehouse”) shall be properly marked and packaged for shipping, storage and handling. Customer shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. By delivering Goods to LCS for shipping or storage, Customer shall be deemed to have accepted these Terms and Conditions and affirmation that Customer has had the opportunity to review and inspect the Warehouse.
3. ACCURATE INFORMATION; COMPLIANCE. Customer will provide LCS with information concerning the Goods which is accurate, complete and sufficient to allow LCS to comply with all laws and regulations concerning the storage, handling and transporting of the Goods. If Goods tendered for shipping, storage at the Warehouse or other services do not conform to the description contained on the front side hereof, or conforming Goods are not tendered within 30 days from the proposal date without prior written acceptance by Customer, LCS may refuse to accept such Goods. If LCS accepts such Goods, Customer agrees to such rates and charges as may be assigned and invoiced by LCS and to all terms of this Contract. Customer is responsible for and warrants their compliance with all applicable laws, rules, and regulations including but not limited to customs laws, hazardous materials laws, import and export laws and governmental regulation of any state and country to, from, through or over which the shipment may be carried, and agrees to furnish such information and documentation as necessary to establish its compliance with such laws, rules and regulations. Customer is obligated to inform LCS at time of tendering if any shipments contain hazardous materials. All Goods which are or might become during shipping and handling, perishable, noxious, likely to affect or taint other goods, encourage vermin or pests, be dangerous, flammable or likely to cause damage or which are in any jurisdiction through which the Goods might pass during shipping be unlawful, anything of unique value, animals, fish or plants have been specifically drawn to the attention of the LCS. LCS assumes no liability to Customer or to any other person for any loss or expense due to the failure of Customer to comply with the provisions of this section, and Customer will indemnify and hold LCS harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees and expenses) which LCS pays or incurs as a result of Customer failing to fully discharge this obligation. Customer warrants its compliance with all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws, as well as with the U.S. Foreign Corrupt Practices Act and similar laws related to anti-corruption and anti-bribery.
4. SHIPMENTS TO AND FROM WAREHOUSE; SHIPPING LOGISTICS; DELIVERY. Customer agrees that all Goods shipped to LCS shall identify Customer on the bill of lading or other contract of carriage as the named consignee, in care of LCS, and shall not identify LCS as the consignee. If, in violation of this Contract, Goods are shipped to LCS as named consignee on the bill of lading or other contract of carriage, Customer agrees to immediately notify carrier in writing, with copy of such notice to LCS, that LCS named as consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, LCS shall have the right to refuse such Goods and shall not be liable for any loss or damage of any nature to such Goods. Whether LCS accepts or refuses Goods shipped in violation of this Section, Customer agrees to indemnify and hold LCS harmless from all claims for transportation, storage, handling and other charges relating to such Goods, including undercharges, truck/intermodal detention and other charges of any nature whatsoever. No Goods shall be delivered or transferred by LCS except upon receipt by LCS of Customer’s complete written instructions. LCS shall have no liability when relying on information contained in written instructions received. LCS shall have a reasonable time to carry out written delivery instructions. LCS shall not be liable for delays resulting from acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots or civil commotions, or any reason beyond LCS’s control. Goods remaining in storage due to such delays will continue to be subject to regular storage charges.
5. STORAGE PERIOD AND CHARGES; PAYMENT TERMS. Unless otherwise agreed in writing, all charges for storage are per package or other agreed unit per month. The storage month begins on the date that LCS accepts care, custody and control of the Goods, regardless of unloading date or date of issue of warehouse receipt. Except as provided below in this Section, a minimum of a full month’s storage charge will apply on all Goods received for storage. LCS will issue monthly invoices to Customer and Customer shall pay LCS within 30 days of the invoice date unless otherwise agreed by the Parties in writing. All invoices not paid within 30 days of invoice date will be subject to a late fee of the lesser of 1.5% per month and the maximum rate then allowable pursuant to applicable law. If it becomes necessary for LCS to utilize a collection agency and/or an attorney to collect any unpaid amount owed or to assist in effectuating the lien provisions herein, Customer shall be obligated to pay the collection agency fees and/or attorney fees and expenses, including court costs incurred, regardless of whether litigation is actually filed. LCS labor required for services other than ordinary handling and storage will be charged to Customer. Special services requested by Customer including but not limited to compiling of special stock statements; reporting marked weights, serial numbers or other data from packages; physical check of Goods; and handling transit billing will be subject to a charge. The failure by LCS to issue an invoice in any month shall not be deemed to constitute a waiver of LCS’s charges for such month, which charges may be invoiced in subsequent months. Payment for all shipping services shall be made 30 days following container loading of Goods for shipping at the EuroLarkin consolidation facility in France.
6. DELIVERY HINDRANCES. If at any time LCS’s performance is or is likely to be affected by any hindrance or risk of any kind (including but not limited to condition of Goods) not arising from any fault or neglect of LCS and which cannot be avoided by the exercise of reasonable effort, LCS may abandon the carriage of the goods under the respective contract and, where reasonably possible, make the goods or any part of them available to Customer at such place as LCS may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of LCS\ with respect to such goods shall cease. In any event, LCS shall be entitled to the agreed remuneration under the contract and Customer shall pay any additional costs resulting from the aforementioned circumstances.
7. TERMINATION OF STORAGE; REMOVAL OF GOODS. LCS may, upon written notice of not less than 30 days to Customer and any other person known by the LCS to claim an interest in the Goods, require the removal of Goods. Such notice shall be given to the last known place of business of the person to be notified. If Goods are not removed before the end of the notice period, LCS may, at its option, sell or dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of Goods, LCS may remove the Goods from the Warehouse and shall incur no liability by reason of such removal.
8. HANDLING AND BONDED STORAGE CHARGES. The handling charge for storage of Goods covers the ordinary labor involved in receiving Goods at Warehouse door, placing Goods in storage, and returning Goods to Warehouse door. Handling charges are due and payable on receipt of Goods. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. LCS shall not be liable for any damage to Goods or delays in obtaining and loading cars, trailers or other containers for outbound shipment unless LCS has failed to exercise reasonable care. A charge in addition to regular rates will be made for merchandise in bond. Where a warehouse receipt covers Goods in U.S. Customs bond, LCS shall have no liability for Goods seized or removed by U.S. Customs. Unless specifically included in shipping price on this Receipt, Customer shall, in addition to the shipping charges set forth on this Receipt, pay or reimburse LCS for, as the case may be, all import and custom duties, taxes and other governmental charges and fees applicable to the Goods shipped.
9. LIABILITY AND LIMITATION OF DAMAGES. LCS shall not be liable for the actions of any third party shipper nor for any loss or damage to Goods transported, tendered, stored or handled however caused unless such loss or damage resulted from the failure by LCS to exercise such care in regard to them as a reasonably careful person would onkeyup="exercise under like circumstances. LCS shall not be liable to Customer or any other party for any action taken or not taken by LCS in compliance with instructions received from Customer, and in no event shall LCS liability for the loss or destruction of Goods exceed the amount paid hereunder for the shipping or storage of such Goods. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF COMPANY’S DUTIES, NEGLIGENCE LIABILITY WITHOUT FAULT OR ANY OTHER LEGAL THEORY OR BASIS, SHALL LCS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, LOSS OF USE OF GOODS, COST OF SUBSITUTED GOODS, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT LCS HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.
10. OPTIONAL INSURANCE OFFERING. LCS does not insure the Goods while in transit or storage and the storage rates or charges billed to Customer do not include any insurance on the Goods. The Goods will therefore not be insured for any loss or damage, and the limitation of liability set forth in paragraph 9 shall apply in all circumstances where LCS is legally liable for such loss or damage, unless Customer has requested in writing that LCS obtain insurance for Customer’s benefit, and Customer has paid the required premium to LCS for such additional insurance. Except as provided above, LCS will not obtain insurance on the Goods for Customer’s benefit while the Goods are being transported by LCS or stored at LCS’s facility.
11. NOTICE OF CLAIM AND FILING OF SUIT. Claims by Customer and all other persons must be presented in writing to LCS within a reasonable time, and in no event any later than the earlier of: (i) 15 days after delivery of the Goods by LCS, (ii) 15 days after Customer is notified by LCS that loss or damage to part or all of the Goods has occurred, (iii) in the case of delay in delivery or non-delivery, within 15 days of the date on which the Goods should have been delivered or, (iv) in all other cases, within 15 days of the event giving rise to the claim. No lawsuit or other action may be maintained by Customer or others against LCS for loss or damage to the Goods unless timely written claim has been given as provided in the foregoing sentence and unless such lawsuit or other action is filed in accordance with Section 14 hereof by no later than the earlier of: (i) one year after date of the date of mailing of the aforementioned written notice to LCS. When Goods have not been delivered, notice may be given of known loss or damage to the Goods by mailing of a letter via certified mail or overnight delivery to Customer.
12. SEVERABILITY; WAIVER. If any provision of this Contract, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions of this Contract shall not be affected thereby but shall remain in full force and effect. LCS’s failure to require strict compliance with any provision of this Contract shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this Contract. The provisions of this Contract shall be binding upon the heirs, executors, successors and assigns of both Customer and LCS; contain the sole agreement governing Goods tendered to LCS; and, cannot be modified except by a writing signed by LCS and Customer.
13. LIEN. LCS shall have a general warehouse lien for all lawful charges for shipping, storage and preservation of the Goods, for any other services provided by LCS to Customer, lawful claims for money advanced, interest, insurance, transportation, labor, weighing coopering, and other charges and expenses in relation to such Goods, and for the balance on any other accounts that may be due. LCS further claims a general warehouse lien for all such charges, advances and expenses with respect to any other Goods stored by Customer in any other facility owned or operated by LCS. LCS reserves the right to require advance payment of all charges prior to shipment of Goods. and may refuse to surrender possession of the Goods until all charges or debts are paid in full. If such amounts remain unpaid for 30 days after LCS’s demand for payment, LCS may sell the Goods at public auction or private sale or in any other manner reasonable and shall apply the proceeds of such sale to the amounts owed. Customer remains responsible for any deficiency outstanding to LCS.
14. GOVERNING LAW AND JURISDICTION. This Contract and the legal relationship between Customer and LCS shall be governed by and construed in accordance with the substantive laws of the State of New York, including Article 7 of the New York Uniform Commercial Code, without regard to the conflict of laws principles of the State of New York. All lawsuits or other actions involving disputes, claims or controversies relating in any way to this Contract or the legal relationship between Customer and LCS shall be brought only in the appropriate state or federal court located in the Southern District of the State of New York."