STANDARD TERMS AND CONDITIONS
Incorporation of the Customer Operating Agreement: This Customer Operating Agreement (this “Agreement”) is made and entered into as of the “Effective Date” by and between the “Customer,” whose name, address, and date for all purposes are included in our mutual Engagement Agreement and WarehouseQuote.com, LLC, a Missouri limited liability company (“WHQ”), whose address for all purposes hereunder (including notices) is 3315 N Oak Trafficway, Kansas City, MO 64116.
1. Services: WHQ provides warehousing services through its third-party warehousing affiliates (individually referred to as a “WA” and collectively referred to as “WA’s”) located globally. Customer authorizes WHQ to deposit its products within WHQ’s network of WA’s. WHQ shall contract with WA’s to provide warehousing services for Customer’s products (“Goods”); provided, however that WHQ shall in no instance transport any of Customer’s Goods to or from any WA, such transportation being the sole responsibility of the Customer. In furtherance of the foregoing, WHQ is not, and shall not be deemed to be, a shipper (neither a contract or carrier shipper) of the Customer’s Goods and Customer shall not name WHQ on any bill of lading, airway bill, or other similar shipping manifest. WHQ shall also provide technological support between Customer and the WA’s where Customer’s Goods are stored during the term of this Agreement. Support shall include near real time inventory reporting of the location and quantity of Customer’s Goods within WHQ’s network of WA’s, including, communicating to the Customer any shipments, mis-shipments, or other appropriate tracking and location information reasonably requested by Customer. If any inventory inaccuracies are identified by WHQ, WA’s, or Customers, WHQ shall use its commercially reasonable efforts to locate and confirm the inaccuracies and to resolve such inaccuracy with the WA and Customer as necessary; provided, however that WHQ shall have no liability to WA or to Customer for any inventory inaccuracy unless specifically stated in the Agreement. If Customer’s Goods are delivered to WA and such Goods do not comply with the standards required by (1) WHQ to enable and maintain inventory data tracking; or (2) WA storage standards for the WA, WHQ shall instruct WA to place a hold on such Goods until WHQ causes Customer to bring the Goods into compliance with the required WA storage standards. During such hold period, Customer shall be liable for all of the following costs: (i) the costs charged by WHQ under the Agreement, (ii) all fees and labor costs charged back to WHQ by WA during the hold period, and (iii) a compliance fee, paid to WHQ, of twenty-five percent (25%) of the additional fees and labor costs charged by WA. WHQ may reference Customer and WHQ’s work together in marketing materials and the Customer hereby grants WHQ a license to accomplish that use.
2. Pricing and Collections: Customer’s pricing for WHQ’s services is set forth on our mutual Engagement Agreement. ACH instructions and WHQ’s W-9 are included within this Agreement as Payment Terms and Method. Payment for invoices from WHQ must be made by Customer via ACH and must be received by WHQ no later than 15 days from invoice date, unless explicitly stated in the Engagement Agreement. Whenever provision is made herein for a charge by WHQ, such charge shall be based upon WHQ’s Engagement Agreement attached to the Agreement as Exhibit A in effect at the time such charge accrues or the service is performed. The Engagement Agreement shall be provided to the Customer with or prior to the initial deposit of Goods into the WA’s. Placement and storage rates shall be computed as set forth in the Engagement Agreement. A warehouse handling charge shall be made for placing Goods in storage and for removing Goods to a platform for delivery, as set forth in the Engagement Agreement. Charges for other services performed by WHQ shall be billed as such services are performed according to the Engagement Agreement. The parties acknowledge that additional services and/or changes to current pricing my periodically arise. In those circumstances, WHQ shall quote the requested services and/or pricing in writing, which will become the applicable agreement moving forward. Any changes to pricing will be communicated to Customer 30 days prior to changes taking effect. Continued use of services following such notice of change will serve as acceptance of these terms and cost. Customer will be charged a service fee of 2% per month on all past due invoice amounts. WHQ shall be solely responsible for fees owed to WA’s for storage of Customer’s Goods and, provided that Customer is current on all invoices owed to WHQ, shall indemnify and hold Customer harmless from any claims by WA’s against Customer arising from WHQ’s failure to pay WA. Upon receipt of any notice from WHQ that the Goods must be removed from the WA because such Goods have deteriorated in value and/or are causing a hazard to the WA or other goods stored at the WA, Customer shall promptly remove such Goods from the WA and shall indemnify WHQ for all costs incurred by WHQ relating to the removal. As specifically set forth in the Agreement, all charges are net, due and payable without offset or deduction, as set forth in the Agreement and the applicable Engagement Agreement. If Customer has not paid WHQ for outstanding invoices by the 61st day after the original invoice date, WHQ shall provide written notice to Customer of such default. If Customer does not thereafter pay WHQ the total amount of all outstanding invoices within ten (10) days from the date of such written notice, WHQ may exercise all remedies at law or in equity, including, but not limited to: placing a hold on the account, removing the Customer’s Goods from the WA’s and/or arranging for the sale of Customer’s Goods. WHQ may exercise such remedies in WHQ’s sole discretion. If WHQ arranges for the sale of Customer’s Goods, WHQ shall be entitled to the portion of the sales proceeds equaling the amount of the outstanding invoice(s) plus a 25% surcharge plus any fees paid relating to such sale. Promptly after such sale of the Customer’s Goods, WHQ shall remit to Customer any sales proceeds in excess of the fees collected above.
3. Term, Termination, Transfer, and Removal of Goods: Either WHQ or Customer may terminate this Agreement upon written ninety (90) day notice to the other party. Customer acknowledges and agrees that before inventory is fully removed from WA the Customer must pay all past, present and future charges owed to WHQ. Customer shall remain liable for all charges from WHQ for storing its Goods at the WA’s until Customer removes such Goods. WAs shall have the sole discretion to select the area within the WAs to store the Goods and may, without notice, move the Goods within the WA. Prior to cargo being fully depleted from an individual WA, all past, present and future charges must be paid in full. WHQ, at its own expense of transfer, may move, with 5 days’ prior notice, any Goods in storage from a WA in which they may be stored to any other WA within the WHQ network; in which case such WA shall be deemed the WA for all purposes hereunder. Upon not less than ninety (90) days’ prior written notice to the Customer, WHQ may require the removal of the Goods, or any portion thereof, and the immediate payment of all amounts owing hereunder, for any reason, with or without cause, and whether or not there has been any default by the Customer. Such notice shall be given by delivery in person or certified mail addressed to the last known place of business or abode of the person to be notified.
4. Description of Goods: Customer represents and warrants to WHQ that there are no potential health, safety or environmental hazards associated with the storage and handling of the Goods. The Goods shall be delivered to WHQ by Customer properly marked and packaged for handling. Customer acknowledges that WA may, at its sole discretion, reject any shipment of Goods that it deems to be improperly marked, packaged or contains any hazardous material. Where Goods are delivered to the WA and do not conform to the foregoing provisions or where Customer does not furnish WHQ with accurate, complete and sufficient information to allow WA to comply with all laws and regulations concerning the storage and handling of the Goods, Customer shall indemnify and hold WHQ harmless from all claims for transportation, storage, handling and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature whatsoever. Customer warrants that the information as to count, weight, description and condition of the Goods set forth on any delivery document is accurate and complete and may be relied upon by WHQ. The Customer acknowledges and agrees that WHQ has no obligation to verify the quantity, content, condition or quality of concealed Goods delivered to WHQ for storage. The Customer further warrants that all individual packages, pieces and items are clearly marked.
5. Liability Limitation: Customer hereby declares any right of recovery, damages, or other claim for losses or damages are limited to $0.25 per pound, and not greater than the replacement or restoration cost of goods. Such limitation shall apply to any damage or loss, however caused, including by the intentional act or omission of WA’s or WHQ’s employees or by the shortage of, disappearance of, or failure to deliver and/or mis delivery of the Goods. Notwithstanding anything to the contrary, under no circumstances shall WHQ hereto be liable to the Customer for indirect, incidental, consequential, special or exemplary damages, including chargebacks of any kind (even if such WHQ has been advised of the possibility of such damages).
6. Recall: In the event a recall, field alert, product withdrawal or field correction (together, “Recall”) may be necessary with respect to any Goods provided under this Agreement, Customer shall immediately notify WHQ in writing. WHQ will not act to initiate a Recall without the express prior written approval of Customer unless otherwise required by applicable laws. The cost of any Recall shall be borne by the Customer. Customer shall indemnify and hold WHQ and WA harmless from all loss, cost, penalty and expense (including reasonable attorney’s fees) which WHQ or WA pays or incurs as a result of a Recall.
7. Customer’s Insurance Obligations: WHQ requires Customer to maintain all necessary insurance on Customer’s products while such products are in the WA’s. Customer acknowledges that WHQ is not providing Customer with insurance on Customer’s Goods while such products are within the WA’s. Customer agrees to indemnify, defend, and hold WHQ harmless from any claims, liability, fines, penalties and attorneys’ fees arising from damage alleged to have been sustained by WA resulting from Customer’s Goods while deposited at such WA. Customer shall at its sole cost and expense, maintain in full force and effect the following types and amounts of insurance, or Customer shall elect to self-insure any portion thereof:
- Special Causes of Loss Insurance – Insuring the Goods in an amount not less than the actual replacement cost thereof, subject to any commercially reasonable deductible amounts as determined solely by Customer,
- Pollution Insurance – if Goods include a hazardous material exposure, Pollution Liability limits of at least $1,000,000 each occurrence and aggregate. WHQ shall be included as additional insureds.
- General Liability Insurance – $1,000,000 per occurrence and $2,000,000 aggregate
- Umbrella Liability $2,000,000 minimum
- Cargo Coverage On an all risk basis for any and all transportation exposures, whether related to an owned vehicle or a third party contract or common carrier, in a coverage amount and subject to any deductible amounts as determined solely by Customer. (if applicable), equivalent to the replacement cost of the property hauled or transported by the WA during relocation of the goods.
- Waiver of Subrogation Customer shall waive and provide proof of waiver of all rights against WHQ, its agents, officers, directors, employees and customers under all policies.
- Additional Insured WHQ and all their respective affiliates, subsidiaries, successors, directors, officers, employees’, customers,
agents and any other party as required by WHQ must be endorsed on all applicable policies as an “Additional Insured
8. Indemnity: To the fullest extent permitted by law, Customer agrees to indemnify, defend and hold harmless WHQ, WA and their respective agents, officers, directors, employees and related companies harmless from and against any and all loss of any kind, damages of any kind, claims of any kind (including third parties), expenses, including, but not limited to attorney’s fees arising out of or resulting from Customer’s negligent acts or omissions in performance of its obligations under this contract. Customer shall indemnify WHQ from all loss, cost and expense which WHQ pays or incurs as a result of any dispute or litigation, whether instituted by WA, Customer or Third Parties, respecting Customer’s right, title or interest in the Goods.
9. Rights to Goods: The Customer warrants that it is the owner and/or has lawful possession of the Goods and has sole legal right to store the Goods at the WA’s and thereafter direct the release and/or delivery of such Goods from the WA’s; provided, however that WHQ shall in no instance transport any of Customer’s Goods to or from the WA, such transportation being the sole responsibility of the Customer. The Customer agrees to indemnify and hold harmless (including legal fees and costs) WHQ of and from any claim by others relating to ownership, storage and release of the Goods. At all times that the Customer’s Goods are located at the WA’s, legal title to such Goods shall remain with Customer that WHQ maintains. Customer may request that WHQ destroy Customer’s Goods that are stored within a WA by written notice to WHQ; provided, however that WHQ shall first have ten (10) days to determine whether WHQ agrees to undertake such destruction responsibility and what the price for such work shall be.
10. Claims: (a) Claims by the Customer and all other persons must be presented in writing to WHQ within a reasonable time, and in no event any later than the earlier of: (i) Thirty (30) days after delivery of the Goods by the WA or (ii) Thirty (30) days after Customer is notified by WHQ that loss or damage to part or all of the Goods has occurred.
(b) No lawsuit or other action may be maintained by the Customer or others against the WA for loss or damage to the Goods unless timely written claim has been given as provided in paragraph (a) of this section and unless such lawsuit or other action is commenced by no later than the earlier of: (i) Nine (9) months after date of delivery by the WA or (ii) Nine (9) months after Customer is notified that loss or damage to part or all of the Goods has occurred.
(c) When Goods have not been delivered, notice may be given of known loss or damage to the Goods by e-mail, mailing of a letter via certified mail or overnight delivery to the Customer. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by the WA.
11. Lien and Security Interest: WHQ and WA’s shall have a warehouseman’s lien upon all Goods of the Customer deposited or stored within WHQ’s network of WA’s, and upon the proceeds from the sale thereof, in accordance with provisions of all applicable laws, for all lawful charges for storage and preservation of the Goods; also for all 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 or for any other services that may have been rendered, and also for all reasonable charges and expenses for notice, advertisement and sale of the Goods where default has been made, and for all costs, including legal fees, incurred in enforcing such lien, collecting charges or defending itself in the event WHQ is made party to any litigation concerning such Goods. This lien may be enforced by WA’s and WHQ at any time and from time to time. In addition, the Customer hereby grants to WA’s and WHQ a security interest in the Goods and all proceeds derived there from, in accordance with the Uniform Commercial Code of the jurisdiction in which the WA is located, for the full amount of the fees, charges and expenses identified above, and interest thereon, whether incurred before or after delivery, and the Customer agrees to execute and deliver all such documents as may be required to perfect such security interest. In order to protect its lien, WHQ and WA reserve the right to require advance payment of all charges prior to shipment of Goods.
12. Invoice Disputes: In the event that the Customer believes an invoice has been submitted incorrectly or inaccurately, the Customer must notify WHQ within ten (10) days of the Customer’s receipt of the invoice in question. Failure to notify WHQ within this timeframe will serve as Customer’s acceptance of the invoice and commitment to pay in full.
13. Force Majeure: Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under this Contract when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, viruses, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of GOODS, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the affected party. Upon the occurrence of such an event the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires WA to continue to protect the GOODS, Customer agrees to pay the storage or similar charges associated with WA’s and WHQ’s obligation during the continuance of the force majeure. All GOODS are stored, handled, and transported at Customer’s sole risk of loss, damage, or delay caused by any of the above.
14. Notices: All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed received (i) upon delivery if personally served, (ii) upon delivery by e-mail with no response indicating that the email has been rejected, (iii) on the fifth (5th) business day after mailing if mailed by registered mail, return receipt requested, or (iv) on the next business day if sent by reputable overnight delivery service to:
If to WHQ:
WarehouseQuote
3315 N Oak Trafficway
Kansas City, MO 64116
E-mail: CustomerNotice@warehousequote.com
If to Customer:
At the address first provided herein
15. Entire Agreement: This Agreement, including all exhibits and attachments incorporated herein, sets forth the understanding between WHQ and Customer relating to the subject matter hereof and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. This Agreement is made by and between WHQ and the Customer. This Agreement, including all exhibits and attachments hereto, is effective on the Effective Date.
16. Confidentiality: Customer and WHQ agree to maintain the terms of this Agreement, including the Engagement Agreement, confidentially and not disclose such terms to any other party without the other party’s consent. Regarding non-circumvention, it is expressly agreed by customer that customer shall not directly or indirectly initiate, solicit, seek to bypass, compete, avoid, or circumvent WHQ’s relationship with the WA.
17. Law and Forum: This Agreement shall be construed in accordance with, and governed by, the laws of the state of Missouri. Notwithstanding any provision requiring arbitration of claims, any litigation arising out of this Agreement or performance hereunder must be filed in any state or federal court located in Kansas City, Missouri, with the substantially prevailing party entitled to recover its reasonable legal fees and costs.
18. Severability: WHQ’s failure to insist upon the strict compliance with any provision hereof shall not constitute a waiver or stop its right to demand strict compliance. If any provision hereof is found to be invalid, illegal and/or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions hereof shall remain intact.
19. Counterparts and Signatures: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute a single instrument. Any electronic or facsimile signature to this Agreement shall be deemed equivalent to an original signature.
20. Exhibits and Attachments: All exhibits and attachments referred to herein are hereby incorporated by this reference.