Warehouse Terms and Conditions

TERMS AND CONDITIONS OF WAREHOUSE SERVICES
(Please Read Carefully)

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

2. Definitions. As used in this Warehouse Receipt

a. “Company” means the individual or entity listed on the front side of this Warehouse Receipt providing the warehousing services hereunder including its officers, directors, employees and agents of the Company while acting within the scope and course of their employment;

b. “Customer” means the person, company, firm or other entity for whom the Goods are stored and to whom this Warehouse Receipt is issued and anyone else claiming an interest in the Goods;

c. “Goods” means the property tendered to Company by Customer for which Company has agreed to receive, handle and/or store pursuant to this Warehouse Receipt; and

d. “Warehouse”. Company’s warehouse complex identified on the front side of this Warehouse Receipt.

3. Customer’s Warranties, Indemnification.

a. Customer warrants that it is the lawful owner and/or has lawful possession of the Goods tendered for storage. Customer warrants that the Goods are not subject to any lien or security interest of others. Customer warrants that it has sole legal rights to store Goods tendered, to release Goods, and to instruct Company regarding delivery or disposition of the Goods. Customer further warrants that it has full power and authority to enter into the agreements incorporated into this Warehouse Receipt.

b. Customer agrees to notify all parties acquiring any interest in the Goods of the terms and conditions of this Warehouse Receipt and to obtain, as a condition of granting any interest, the agreement of such parties to be bound by such Contract Terms and Conditions.

c. Customer agrees to indemnify, defend, and hold Company harmless from any claims by third parties relating to the ownership, storage, handling or delivery of Goods, or from any other services provided by Company under this Warehouse Receipt. Such indemnification shall include any legal fees or costs incurred from any claim by a third party, regardless of whether or not litigation is actually filed.

d. Customers agrees to indemnify, and hold the Company harmless from any claims and/or liability, fines, penalties and/or attorneys’ fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.

4. Storage.

a. Pursuant to the terms and conditions of this Warehouse Receipt, Company agrees to receive, store, and release the Goods in accordance with Customer’s reasonable instructions.

b. If Company determines that the original palletization of Goods must be broken down for storage purposes, Company shall be authorized to break down the pallets without further notice required to Customer.

c. Storage Location. Company will store the Goods at its discretion at any one or more buildings at Company’s warehouse location identified on the front side of this Warehouse Receipt. The identification of any specific location with the Company’s warehouse complex does not guarantee that Goods shall be stored therein. Unless otherwise agreed in writing, Company may, at any time, at its expense, and without notice to Customer, remove any GOODS from any room or area of the WAREHOUSE to any other room or area thereof. Upon ten (10) days prior notice provided to Customer, Company may at its own expense, remove Goods to any other warehouse complex operated by Company.

d. Company may provide additional services to Customer as requested and as agreed. Additional handling charges will apply whenever Goods are pulled for distribution or release, whenever physical inventories are requested by Customer, and whenever additional services are requested that are not explicitly included in the monthly storage charge quoted to Customer. Such additional charges will be provided to Customer and will be invoiced to Customer in addition to any storage charges due.

5. Termination of Storage. Company reserves the right to terminate storage and to require the removal of the Goods, or any portion thereof, by giving Customer thirty (30) days advance written notice. Customer shall be responsible for payment of all charges attributable to said Goods within the stated period and for removing the Goods from the warehouse upon payment of all charges. If the Goods are not so removed, Company may exercise its rights under applicable law including but not limited to selling the Goods If, in the opinion of Company, Goods may be about to deteriorate or decline in value to less than the amount of Company’s lien, or may constitute a hazard to other property or to the Warehouse or persons, the Goods may be removed or disposed of by Company as permitted by law. All charges related thereto shall be paid by Customer.

6. Customer’s Warranties & Tender for Storage.

a. Customer warrants that the Goods shall be delivered at the Warehouse properly marked, packaged, labeled and classified for handling and fit for storage and any transportation as may be required. Company will not accept Goods that are not properly packaged or which, in the reasonable opinion of Company, are not suitable for movement or storage within the warehouse.

b. Customer shall furnish at or prior to delivery, a manifest showing marks, brands or sizes to be accounted for separately and the class of storage desired, if applicable. Otherwise the Goods may be stored in bulk or assorted lots at the discretion of Company and at the applicable storage rate.

c. Company’s receipt and delivery of Goods shall be made without subsequent sorting except by special arrangement and subject to a charge.

d. Unless otherwise agreed to in writing, Company shall store and deliver Goods only in the packages in which they are originally received and shall not segregate Goods by production code date.

e. Hazardous Materials. Unless otherwise made known to Company in writing and accepted by Company, Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Company. If hazardous materials and/or dangerous goods are tendered for storage and accepted by the Company, a notation shall be so made on the face of this Warehouse Receipt. Customer warrants that the Goods shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Goods, to accurately describe the Goods, and to provide Company with all necessary or useful information for the safe storage and handling of the Goods including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Customer breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any such unfit Goods to Company, Company shall be entitled to exercise all available remedies including the immediate destruction or removal of the Goods from the warehouse without notice to Customer. In the event of the foregoing breach of Customer warranties, Customer shall be liable for all expenses costs, losses, damages, fines, penalties or other expenses of any sort incurred by Company in connection with the removal, or destruction, or handling of the Goods and shall indemnify Company against all amounts, liabilities, penalties, claims, or damages arising in connection with the Goods.

f. For all Goods tendered for storage, Customer shall supply such information and documents as are necessary to comply with all laws, rules and regulations. For all Goods, Customer shall provide to Company all documents or information necessary or useful for the safe and proper warehousing, handling, storage, and transportation (if any) of the Goods. If all such information and documents are not fully, accurately and timely provided to Company, Customer shall indemnify and hold Company harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) as a result of such failure.

g. 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.

h. Customer agrees that all Goods shipped to Company shall identify Customer on the bill of lading or other contract of carriage as the consignee, in care of Company, and shall not identify Company as the consignee. If, contrary to this requirement, Goods are shipped to Company as consignee, Customer shall indemnify and hold Company harmless from all claims for transportation, storage, handling and other charges relating to such Goods.

7. Payment Terms & Collection Expenses.

a. Storage charges commence upon the date that COMPANY accepts custody of the GOODS, regardless of unloading date or date RECEIPT is issued. Unless COMPANY specifies otherwise all storage charges are fully earned and are due and payable on the 1st day of storage for the initial month and thereafter on the 1st day of each storage month.

b. Handling Charges. Unless otherwise specified, handling charges cover only the ordinary labor and duties incidental to receiving and delivering unitized Goods on pallets at the Warehouse dock during Company’s normal business hours but do not include loading and unloading. Unless otherwise specified, a charge in addition to the regular handling charges will be made for any work performed by Company other than as specified in the preceding sentence, at Company’s then current rates which are available upon request. When Goods are ordered out in quantities less than in which received, Company may make an additional charge for each order or each item of an order. Delivery by Company of less than all units of any lot shall be made without subsequent sorting except by special arrangement which may be subject to an additional charge.

c. Company will issue the monthly statement, in advance to Customer and Customer shall pay Company within 15 days of the invoice date unless otherwise agreed by the Parties in writing. All invoices not paid within 15 days of invoice date will be subject to an interest charge, from the date said charge became due until paid, at the lesser of 1.5% per month and the maximum rate then allowable pursuant to applicable law. If it becomes necessary for Company to utilize a collection agency and/or an attorney to collect any unpaid amount owed or to assist in effectuating the lien provisions herein, Customer shall be obligated to pay the collection agency fees and/or attorney fees, and expenses including court costs incurred, regardless of whether litigation is actually filed.

8. Transfer; Delivery.

a. Instructions by Customer to transfer Goods to the account of another are not effective until accepted by Company. Charges will be made for each transfer and for any rehandling deemed by Company to be required thereby. Company reserves the right not to deliver or transfer Goods except upon receipt of written instructions signed by Customer.

b. Customer may authorize Company in writing to accept telephone orders for delivery. In such case, delivery by Company pursuant to telephone order shall be at Customer’s risk.

c. Company shall have a reasonable time to make delivery after Goods are ordered out and shall have a minimum of ten business days after receipt of a delivery order in which to locate any misplaced Goods.

d. If Company is unable, due to any cause beyond its control, to effect delivery before expiration of the then current storage period, the Goods may, at Company’s discretion, be subject to storage charges for each succeeding storage period.

e. All instructions and requests for delivery and/or transfer of Goods are received subject to satisfaction of all charges, liens and security interests of Company. Upon termination of the storage relationship for any reason, Company may refuse to deliver the Goods until it has been fully paid for all charges then due it regardless of the payment terms otherwise applicable to such charges.

f. Company may require, as a condition to delivery, a statement from Customer holding Company harmless from claims of others asserting rights to the Goods. Company may also exercise any other remedy available to it under the law to resolve conflicting claims to the Goods. All costs, charges and expenses, including reasonable attorneys’ fees, incurred by Company relating in any way to Company’s activities referred to in this Section 8.f. shall be charged to Customer and shall be considered charges with respect to the Goods and subject to Company’s general warehouse lien.

g. If Company in good faith believes that the goods are about to deteriorate or decline in value in an amount less than the amount of the warehouse’s then current and otherwise outstanding storage or other charges before the end of the next succeeding storage month, Company may specify in the notification any reasonable shorter time for the removal of the goods, and failing their removal, Company may sell them at public sale held one week after a single advertisement or posting as provided by law.

h. If, as a result of a quality or condition of the goods of which the warehouse had no notice at the time of deposit or because of which the goods have deteriorated and become a hazard to other property or to Company or to any persons, Company, at its sole discretion, may sell the goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the goods. If Company after a reasonable effort is unable to sell the goods, it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale, or return of the goods, Company may remove the goods from the warehouse and it shall incur no liability by reason of such removal.

9. OTHER SERVICES AND CHARGES.

a. Other services rendered in the interest of Customer or the Goods are chargeable to Customer.

b. Customer may, subject to reasonable limitations, inspect the Goods when accompanied by an employee of Company whose time is chargeable to Customer.

c. In the event of damage or threatened damage to the Goods, Customer shall pay all reasonable and necessary costs of protecting and preserving the Goods and for clean-up and disposal of damaged and destroyed Goods. When such costs are attributable both to Goods of Customer and property of others, said costs shall be apportioned among Customer and others on a pro rata basis as determined by Company.

d. Company shall supply dunnage bracing and fastenings where it deems it appropriate on outbound shipments and the cost thereof is chargeable to Customer.

e. Any additional costs incurred by Company in unloading railcars or trucks containing damaged Goods are chargeable to Customer.

f. Company shall not be responsible for detention or demurrage charges or delays in loading or unloading unless such detention or demurrage charge or delay was caused solely by Company’s negligence.

g. An additional charge will be made for bonded storage.

h. Company may assess an additional charge when Goods, designated for cooler or freezer storage, are received at temperatures more than five degrees Fahrenheit above the applicable room temperature. Company shall not be responsible for blast freezing Goods unless Customer specifically requests such services in writing.

i. All storage, handling and other services may be subject to minimum charges.

j. Customer agrees to pay Company all costs, charges and expenses including reasonable attorney’s fees (“EXPENSES”) incurred by Company in connection with the storage, handling and/or disposition of the Goods, including without limitation, such EXPENSES relating to lawsuits (including Bankruptcy proceedings) involving in any way said Goods and/or Customer’s performance under this Warehouse Receipt. All such EXPENSES shall constitute charges with respect to the Goods and subject to Company’s general warehouse lien.

k. Customer shall reimburse Company for the cost of all pallets supplied by Company.

l. Company may charge Customer an energy surcharge in the event of an increase in Company’s energy costs by providing Customer with no less than 30 days prior notice.

10. Lien Rights. Company shall have a general and continuing warehouse lien on the Goods tendered by Customer and upon any and all property belonging to Customer in Company’s possession, custody or control and on the proceeds thereof for all charges, advances or amounts of any kind due to Company under this Warehouse Receipt or under any prior or subsequent invoices issued to Customer by Company (including charges for storage, handling, transportation, detention, demurrage, terminal charges, insurance, labor, and any other charges incurred present or future with respect to the Goods, advances or loans by COMPANY in relation to the GOODS and for expenses necessary for the preservation of the GOODS or reasonably incurred in their sale pursuant to law). COMPANY further claims a general and continuing warehouse lien on the Goods for all other such charges, advances and expenses due Company or any related entity from Customer for property stored by Customer in any warehouse owned or operated by Company or any related entity wherever located. Company reserves the right to require advance payment of all charges prior to releasing Goods regardless of otherwise applicable payment terms. Company shall refuse to surrender possession of the Goods until all charges or debts are paid in full. If such amounts remain unpaid for 30 days after Company’s demand for payment, Company may sell the Goods at public auction or private sale or in any other manner reasonable, and shall apply the proceeds of such sale to the amounts owed. Customer remains responsible for any deficiency outstanding to Company.

11. Liability and Limitation of Damages

a. Company shall not be liable for any loss or destruction of or damage to the Goods, however caused, unless such loss, damage or destruction resulted from Company’s failure to exercise such care in regard to the Goods as a reasonably careful person would exercise under like circumstances. Company is not liable for damages which could not have been avoided by the exercise of such care. Company and Customer agree that Company’s duty of care referred to herein shall not extend to providing a sprinkler system at the warehouse complex or any portion thereof. Unless specifically agreed to in writing, Company shall not be required to store Goods in a humidity controlled environment or be responsible for tempering Goods. Customer knowingly accepts that the Goods will be warehoused in a non-temperature/humidity controlled environment. Company will not be responsible for any loss or damage to the Goods that result from fluctuations in temperature range or in humidity levels of the warehouse. Company will furthermore not be responsible for losses or damages incurred to Perishable Goods, unless otherwise agreed to in writing prior to tender of the Goods for storage.

b. Company shall not be liable to damages by rust, fire, water, leakage, breakage, vermin, or weather.

c. In no event shall Company be liable for any losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or in part, of its responsibilities under this Warehouse Receipt, resulting from circumstances beyond the control of either Company or its sub-contractors, including but not limited to: acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical or equipment failures; cyber attacks; civil commotions or riots; hazards incident to a state of war; hijacking; robbery; theft; acts of terrorism; embargoes; acts or omissions of customs or quarantine officials; acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else who may have an interest in the shipment; incidents or deteriorations to means of transportation; acts of carriers related to security; the nature of the freight or any defects thereof; inherent vice of the goods; perishable qualities of the merchandise; fires; frost or change of weather; sprinkler leakage; floods; wind; storm; moths; public enemies; or other causes beyond its control.

d. Company shall not be liable for any fragile articles injured or broken unless packed by its employees and unpacked by them at the time of delivery and shall not be liable otherwise except for its own gross negligence.

e. Company shall not be liable for pilferage or theft, unless such loss or damage is caused by the failure of Company to exercise such ordinary care required by law.

f. Company shall not be liable for concealed damage, or for losses incurred due to the concealed damage of the Goods.

g. In no event shall Company be responsible for loss or damage to documents, stamps, securities, artwork, heirlooms, jewelry or other articles of high and unusual value unless a special agreement in writing is made between Company and Customer with respect to such articles.

h. If Company negligently misships Goods, Company, at its option, shall pay the reasonable transportation charges to return the misshipped GOODS to the Warehouse or the value of the misshipped Goods based upon Section 12.

i. COMPANY shall have no liability whatsoever for any damages due to the consignee’s acceptance or use of the Goods.

j. No Consequential Damages. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF COMPANY’S DUTIES, NEGLIGENCE LIABILITY WITHOUT FAULT OR ANY OTHER LEGAL THEORY OR BASIS, SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, LOSS OF USE OF GOODS, COST OF SUBSITUTED GOODS, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.

k. Maximum Monetary Liability: In the event of loss or damage to the Goods for which Company is legally liable, Company’s liability shall be limited to actual value of the Goods, subject to a maximum of USD $.50 per 100 pounds of goods stored, unless Customer declared a higher value for the goods and Company agrees in writing to purchase insurance for the Goods at Customer’s benefit, and Customer has paid the supplementary charge in accordance with the terms herein. Company’s liability referred herein shall be Customer’s exclusive remedy for any claim or cause of action whatsoever relating to loss or destruction of or damage to Goods. Customer waives any right to rely upon any presumption of conversion imposed by law.

12. Optional Insurance Offering. Company does not insure the Goods while in storage and the storage rates or charges billed to Customer do not include any insurance on the Goods. The Goods will therefore not be insured for any loss or damage, and the limitation of Liability set forth in paragraph 11 shall apply in all circumstances where Company is legally liable for such loss or damage, unless the Customer has requested in writing that Company obtain insurance for the Customer’s benefit, and the Customer has paid the required premium to Company for such additional insurance. Except as provided above, Company will not obtain insurance on the Goods for Customer’s benefit while the Goods are being stored at Company’s facility.

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

14. Notice of Claim and Filing of Suit.

a. Company shall not be liable for any claim whatsoever for any loss, damage, or destruction of the Goods unless it is timely presented, in writing, within a reasonable time, not exceeding the earlier of (1) 60 days after delivery of Goods by Company or (2) 60 days after Customer learned or, in the exercise of reasonable care, should have learned of such loss or destruction of or damage to the Goods or the basis for any other claim against Company.

b. As a condition precedent to filing any lawsuit or other action, Customer shall provide Company with a reasonable opportunity to inspect the Goods which are the basis of Customer’s claim.

c. NO LAWSUIT OR OTHER ACTION MAY BE MAINTAINED BY CUSTOMER OR OTHERS AGAINST COMPANY UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN SECTION 14.a AND UNLESS STORER HAS PROVIDED COMPANY WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AS PROVIDED IN SECTION 14.b. AND UNLESS SUCH LAWSUIT OR OTHER ACTION IS COMMENCED WITHIN THE EARLIER OF (1) NINE (9) MONTHS AFTER DELIVERY OF GOODS BY COMPANY OR (2) NINE (9) MONTHS AFTER STORER LEARNED OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS OR DESTRUCTION OF OR DAMAGE TO THE GOODS OR THE BASIS FOR ANY OTHER CLAIM AGAINST COMPANY.

d. Any lawsuit or other action against Company must be brought in the state or province where the Warehouse is located and will be governed by the laws of such state or province.

15. Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the sender, and shall be directed to Company and Customer at the address set forth on the front side of the Warehouse Receipt, unless otherwise instructed by either party in writing. Customer is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section 15 within five days of transmittal.

16. Governing Law, Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State where the Company’s warehouse is located, as identified on the face of the Warehouse Receipt, without giving consideration to principles of conflict of law. Customer and Company (a) irrevocably consent that the United States District Court and the State courts of Georgia located in the County of Clayton in the State of Georgia shall have the exclusive jurisdiction over any action arising out of or in any way relating to the services performed by Company; (b) consent to the exercise of in personam jurisdiction by said courts over it, and (c) further agree that any action to enforce a judgment may be instituted in any jurisdiction.

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

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