TERMS OF SERVICE
This website is operated by Crescent Foods. Throughout the site, the terms “we”, “us” and “our” refer to Crescent Foods. Crescent Foods offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.
SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 10 - PERSONAL INFORMATION
SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Crescent Foods, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 14 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Crescent Foods and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 15 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 16 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
SECTION 17 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 4343 W 44th Pl, Chicago, IL, 60632, United States.
SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 20 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at email@example.com .
Receipt 2000Plus Groups, Inc. (d/b/a Crescent Foods)
CONTRACT TERMS AND CONDITIONS
SECTION 1 - DEFINITIONS
As used in this warehouse receipt ("Warehouse Receipt") the following terms have the following meanings: (a) STORER. The person, firm, corporation or other entity for whom the GOODS described herein are stored and to whom this Warehouse Receipt is issued and anyone else claiming an interest in the GOODS.
(b) WAREHOUSE. CRESCENT FOODS OR ANY OF ITS INDIVIDUAL AFFILIATED ENTITIES OR MANAGERS THAT MAY PROVIDE SERVICES TO STORERS. As used in Sections 9 and 10 hereof WAREHOUSE includes (a) officers, directors, managers, employees and agents of the WAREHOUSE and (b) in instances where WAREHOUSE manages a warehouse for a third-party owner, such third-party owner, in each case, while acting within the scope and course of their duties.
(c) LOT. Unit or units of GOODS which are separately identified by the WAREHOUSE.
(d) ADVANCE. All sums due or claimed to be due to WAREHOUSE from STORER or others relating to the GOODS regardless of the source, whether liquidated or not, including but not limited to loans, disbursements, charges made for or on account of STORER or GOODS, necessary for preservation of GOODS or reasonably incurred in their sale pursuant to law. (e) GOODS. The personal property and/or any portion thereof which is described herein and/or which WAREHOUSE has agreed to receive and/or store pursuant to this Warehouse Receipt.
SECTION 2 - TENDER FOR STORAGE
(a) All GOODS for storage shall be delivered at the warehouse properly marked and packed for handling. (b) STORER 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 desired. Otherwise the GOODS may be stored in bulk or assorted lots in freezer, cooler or general storage at the discretion of the WAREHOUSE and charges for such storage will be made at the applicable storage rate. (c) STORER will provide WAREHOUSE with accurate and complete information concerning the GOODS sufficient to allow WAREHOUSE to comply with all laws and regulations concerning the storage, handling and transportation of the GOODS. Without limiting the foregoing, STORER is solely responsible for determining and providing the weight of the GOODS unless such services are expressly stated and quoted in the Agreement. STORER warrants that the GOODS it tenders for storage are not infested with pests or bacteria and that the GOODS do not otherwise present a danger to persons or other goods under normal storage and handling conditions. STORER further warrants that the GOODS are not adulterated or misbranded under the provisions of any applicable federal, state or local law or regulation. STORER will indemnify, defend and hold WAREHOUSE harmless from all liabilities, suits, claims, losses, costs and expenses (including reasonable attorneys’ fees) arising from STORER’s failure to comply with this section. (d)Receipt and delivery of all or any units of a LOT shall be made without subsequent sorting except by special arrangement and subject to a charge.
(e) WAREHOUSE shall store and deliver GOODS only in the packages in which they are originally received unless otherwise agreed to in writing.
(f) Unless STORER shall have given, at or prior to delivery of the GOODS, written instructions to the contrary, WAREHOUSE, in its discretion, may commingle and store in bulk different lots of fungible GOODS, whether or not owned by the same STORER. (g) WAREHOUSE shall not be responsible for segregating GOODS by production code date unless specifically agreed to in writing.
(h) STORER agrees that all GOODS shipped to or from WAREHOUSE shall not identify WAREHOUSE as the consignee or shipper on any bill of lading or contract of carriage. If, contrary to this requirement, WAREHOUSE is listed as shipper or consignee, STORER shall indemnify and hold WAREHOUSE harmless from all claims for transportation, storage, handling and other charges relating to such designation.
(i) WAREHOUSE shall not be responsible for normal product deterioration that results from extended storage.
SECTION 3 - TERMINATION OF STORAGE
(a) WAREHOUSE may, upon written notice, as required by law, require the removal of the GOODS, or any portion thereof, from the warehouse upon the payment of all charges attributable to said GOODS within a stated period, not less than 30 days after such notification. If said GOODS are not so removed, WAREHOUSE may sell them as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said GOODS.
(b) If, in the opinion of WAREHOUSE, GOODS may be about to deteriorate or decline in value to less than the amount of WAREHOUSE'S lien thereon, or may constitute a hazard to other property or to the warehouse or persons, the GOODS may be removed or disposed of by WAREHOUSE as permitted by law. All charges related to said removal shall be paid by STORER.
SECTION 4 - STORAGE LOCATION
(a) The GOODS shall be stored at WAREHOUSE’S discretion at any one or more buildings at WAREHOUSE'S warehouse complex identified on the front side of this Warehouse Receipt. The identification of any specific location within WAREHOUSE'S warehouse complex does not guarantee that the GOODS shall be stored therein.
(b) Subject to any contrary written instructions given by STORER, WAREHOUSE may, at any time, at its expense, and without notice to STORER, remove any GOODS from any room or area of the warehouse complex to any other room or area thereof. (c) Upon ten (10) days written notice to the STORER, WAREHOUSE may, at its expense, remove the GOODS to any other warehouse complex operated by WAREHOUSE.
SECTION 5- STORAGE CHARGES
(a) Storage charges commence upon the date that WAREHOUSE accepts care, custody and control of the GOODS, regardless of unloading date or date warehouse receipt is issued. Unless WAREHOUSE specifies otherwise, charges shall be computed separately for each LOT on an "ANNIVERSARY BASIS" the storage month shall extend from date of receipt in one calendar month to, but not including, the same date of the next month. If there is no corresponding date in the next month, the storage month shall end on the last day of said next month. A full month's storage charge shall apply on receipt of GOODS and an additional monthly storage charge shall apply to each successive storage month on all GOODS then remaining in storage.
(b) Charges shall be applicable as set forth in the rate quotation or other document issued by WAREHOUSE to STORER and/or in WAREHOUSE'S tariff.
(c) Unless WAREHOUSE specifies otherwise all storage charges are due and payable on the 1st day of storage for the initial month and thereafter on the 1st day of each calendar month.
(d) Rates quoted by weight will, unless otherwise specified, be computed on gross weight and 2,000 pounds shall constitute a ton.
SECTION 6 - HANDLING CHARGES
(a) Unless otherwise specified or elected by WAREHOUSE, handling charges cover only the ordinary labor and duties incidental to receiving and delivering unitized GOODS on pallets at the warehouse dock during normal warehouse hours but do not include loading and unloading.
(b) Unless otherwise specified, a charge in addition to the regular handling charges will be made for any work performed by WAREHOUSE other than specified in Section 6(a) at rates which are in effect from time to time, a copy of which rates are available upon request.
(c) When GOODS are ordered out in quantities less than in which received, the WAREHOUSE may make an additional charge for each order or each item of an order.
(d) Delivery by the WAREHOUSE of less than all units of any LOT or of less than all the fungible GOODS stored for STORER shall be made without subsequent sorting except by arrangement and subject to an additional charge.
SECTION 7 - TRANSFER OF TITLE; DELIVERY
(a) Instructions by STORER to transfer GOODS to the account of another are not effective until delivered to and accepted by WAREHOUSE. Charges will be made for each such transfer and for any re-handling of GOODS deemed by WAREHOUSE to be required thereby. WAREHOUSE reserves the right not to deliver or transfer GOODS to or for the account of others except upon receipt of written instructions properly signed by STORER.
(b) STORER may furnish written instructions authorizing WAREHOUSE to accept telephone orders for delivery. In such case, (1) WAREHOUSE may require that each telephone order be confirmed by STORER in writing within 24 hours, and (2) acceptance by WAREHOUSE of any telephone order shall be at the risk of STORER. WAREHOUSE will not be liable for any loss resulting from delivery made pursuant to telephone order, whether or not so authorized, unless caused by WAREHOUSE’s gross negligence or willful misconduct.
(c) WAREHOUSE shall have a reasonable time to make delivery after GOODS are ordered out and shall have a minimum of 10 business days after receipt of a delivery order in which to locate any misplaced GOODS.
(d) If WAREHOUSE has exercised reasonable care and is unable, due to causes beyond its control, to effect delivery before expiration of the current storage period, the GOODS will be subject to storage charges for each succeeding storage period. (e) All instructions and requests for delivery of GOODS or transfer of title are received subject to satisfaction of all charges, liens and security interests of WAREHOUSE with respect to the GOODS whether for accrued charges or ADVANCES or otherwise. (f) WAREHOUSE may require, as a condition precedent to delivery, a statement from STORER holding WAREHOUSE harmless from claims of others asserting a superior right to STORER to possession of the GOODS. Nothing herein shall preclude WAREHOUSE from exercising any other remedy available to it under the law to resolve conflicting claims to possession of the GOODS. All costs, including attorney's fees, incurred by WAREHOUSE relating in any way to WAREHOUSE'S activities referred to in SECTION 7(f) shall be charged to STORER and shall, for purposes of Section 12 below, be considered “charges present or future with respect to such GOODS” and shall attach as a lien on the GOODS.
(g) Unless otherwise agreed, the goods will be delivered to STORER at WAREHOUSE’S warehouse loading dock. STORER must arrange for transportation and loading.
SECTION 8 - OTHER SERVICES AND CHARGES
(a) Other services rendered in the interest of STORER or the GOODS are chargeable to STORER. If charges for such services are not listed in the agreement or rate quotation between STORER and WAREHOUSE, then such services will be charged pursuant to WAREHOUSE’s current published tariff.
(b) All ADVANCES are due and payable immediately. All charges are due and payable upon the date of invoice. All charges and ADVANCES not paid within 30 days from the due date are subject to an interest charge, from the date said charge or ADVANCE became due until paid, at the lesser of 1.5% per month or the maximum amount allowed by law.
(c) STORER may, subject to insurance regulations and reasonable limitations, inspect the GOODS when accompanied by an employee of WAREHOUSE whose time is chargeable to STORER.
(d) In the event of damage or threatened damage to the GOODS, STORER shall pay all reasonable and necessary costs of protecting and preserving the GOODS. When the costs of protecting and preserving stored property are attributable to more than one STORER, said costs shall be apportioned among all affected STORERS on a pro rata basis to be determined by the WAREHOUSE.
(e) WAREHOUSE shall supply dunnage, bracing and fastenings where it deems it appropriate on outbound shipments and the cost thereof is chargeable to STORER.
(f) Any additional costs incurred by WAREHOUSE in unloading cars or trucks containing damaged GOODS are chargeable to STORER.
(g) WAREHOUSE shall not be responsible for demurrage or detention charges, or for any delays in loading or unloading unless such charges or delays were caused solely by WAREHOUSE'S negligence. STORER agrees to indemnify and hold WAREHOUSE harmless from any and all claims for delays, undercharges, rail demurrage, truck/intermodal detention and any other similar charges relating to STORER’S GOODS, except to the extent such charges or delays were caused solely by WAREHOUSE’s negligence.
(h) A charge in addition to regular storage and handling rates will be made for bonded storage.
(i) WAREHOUSE may assess an additional charge when GOODS, designated for cooler or freezer storage, are received at temperatures more than 5 degrees Fahrenheit above the applicable storage room temperature; however WAREHOUSE shall not be responsible for blast freezing GOODS unless STORER specifically requests such services in writing. (j) All storage, handling and other services may be subject to minimum charges that may change without notice. (k) STORER agrees to pay WAREHOUSE all costs and ADVANCES including reasonable attorney's fees incurred by WAREHOUSE in connection with the storage, handling and/or disposition of the GOODS, including without limitation, such costs, ADVANCES, and/or fees relating to lawsuits (including Bankruptcy proceedings) involving in any way said GOODS and/or STORER'S performance under this agreement. All such costs, ADVANCES, and fees, for purposes of SECTION 12 below, shall constitute "charges present or future with respect to such GOODS".
SECTION 9 - LIABILITY AND LIMITATION OF DAMAGES
(a) WAREHOUSE shall not be liable for any loss, damage or destruction to GOODS, however caused, unless such loss, damage or destruction resulted from the WAREHOUSE'S failure to exercise such care in regard to the GOODS as a reasonably careful person would exercise under like circumstances. WAREHOUSE is not liable for damages which could not have been avoided by the exercise of such care
(b) WAREHOUSE and STORER agree that WAREHOUSE'S duty of care referred to in Section 9(a) above does not extend to providing a sprinkler system at the warehouse complex or any portion thereof.
(c) Unless specifically agreed to in writing, WAREHOUSE shall not be required to store GOODS in a humidity controlled environment or be responsible for tempering GOODS.
(d) IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO GOODS FOR WHICH THE WAREHOUSE IS LEGALLY LIABLE, STORER DECLARES THAT WAREHOUSE'S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO STORER OF REPLACING, OR REPRODUCING THE LOST, DAMAGED, AND/OR DESTROYED GOODS TOGETHER WITH TRANSPORTATION COSTS TO WAREHOUSE, (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND/OR DESTROYED GOODS ON THE DATE STORER IS NOTIFIED OF LOSS, DAMAGE AND/OR DESTRUCTION, (3) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGED AND/OR DESTROYED GOODS, (4) $0.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED GOODS; PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER RECEIPT OF THIS WAREHOUSE RECEIPT, STORER MAY, UPON WRITTEN REQUEST INCREASE WAREHOUSE'S LIABILITY ON PART OR ALL OF THE GOODS IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION; FURTHER PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE GOODS HAS OCCURRED.
(e) The WAREHOUSE’S liability referred to in Section 9(d) shall be STORER'S exclusive remedy against WAREHOUSE for any claim or cause of action whatsoever relating to loss, damage or destruction of GOODS and shall apply to all claims including inventory shortage, misshipment and mysterious disappearance claims unless STORER proves by affirmative evidence that WAREHOUSE converted the GOODS to its own use. STORER waives any rights to rely upon any presumption of conversion imposed by law. In no event shall either party be liable for incidental, special, punitive, or consequential damages, loss of profit, revenue or goodwill. For the purposes of this Section 9, “loss, damage or destruction” shall include any claim or cause of action whatsoever relating to the GOODS.
SECTION 10 – ARBITRATION AND NOTICE OF CLAIM
(a) In lieu of litigation, STORER and WAREHOUSE agree to submit any dispute that arises out of or is in any way connected to this Warehouse Receipt to binding arbitration administered by Judicial Arbitration and Mediation Service, Inc. and its Streamlined Arbitration Rules and Procedures then in force. The parties shall be bound by the arbitration decision and a party receiving an award may enter judgment upon the same in any federal or state court of competent jurisdiction in the applicable jurisdiction. The parties shall conduct any arbitration in the county where the warehouse facility is located, to the exclusion of all other places.
(b) WAREHOUSE shall not be liable for any claim of any type whatsoever for loss and/or destruction of and/or damage to and/or charges or invoices for GOODS unless such claim is presented, in writing, within a reasonable time, not exceeding the earlier of (i) 60 days after delivery of GOODS by WAREHOUSE or (ii) 60 days after STORER learns or, in the exercise of reasonable care, should have learned of such loss, destruction, damage or the basis for any other claim against WAREHOUSE.
(c) As a condition precedent to making any claim and/or commencing an arbitration, STORER shall provide WAREHOUSE with a reasonable opportunity to inspect the GOODS which are the basis of STORER'S claim.
(d) NO ARBITRATION MAY BE COMMENCED BY STORER OR OTHERS AGAINST WAREHOUSE WITH RESPECT TO THE GOODS UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN PARAGRAPH (b) OF THIS SECTION AND UNLESS STORER HAS PROVIDED WAREHOUSE WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AS PROVIDED IN PARAGRAPH (c) OF THIS SECTION AND UNLESS SUCH ARBITRATION IS COMMENCED WITHIN NINE (9) MONTHS (OR TWO (2) YEARS IN THE STATE OF TEXAS ONLY) AFTER STORER LEARNS OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS AND/OR DESTRUCTION OF AND/OR DAMAGE TO THE GOODS OR THE BASIS FOR ANY OTHER CLAIM AGAINST WAREHOUSE.
SECTION 11 - INSURANCE
GOODS are not insured by WAREHOUSE and the storage rates do not include insurance on the GOODS.
SECTION 12 - LIEN
WAREHOUSE shall have a general warehouse lien against the GOODS and on the proceeds thereof for all charges for storage, handling, transportation (including detention, demurrage and terminal charges), insurance, labor and other charges present or future with respect to the GOODS, ADVANCES or loans by WAREHOUSE in relation to the GOODS and for expenses necessary for preservation of the GOODS or reasonably incurred in their sale pursuant to law. WAREHOUSE further claims a general warehouse lien on the GOODS for all such charges, ADVANCES and expenses in respect to any other property stored by STORER in any warehouse owned or operated by WAREHOUSE or its subsidiaries wherever located and whenever deposited and without regard to whether or not said other property is still in storage, including all sums owed to WAREHOUSE by STORER arising from any other transactions or obligations.
SECTION 13 – DATA
Notwithstanding anything to the contrary in this Warehouse Receipt or any other agreement between the parties, WAREHOUSE reserves the right to (i) use any STORER data to provide services to STORER, to improve existing services or create new services, or for WAREHOUSE’s internal purposes and (ii) compile and analyze its collective STORER data and to prepare reports, studies, analyses and other work product resulting from such compilation and analysis on an anonymous basis (collectively, the “Data Derivations”). WAREHOUSE shall have exclusive ownership rights to, and the exclusive right to use such Data Derivations for any purpose; provided, however, however that WAREHOUSE shall not use STORER’s name in connection with such Data Derivations or otherwise distribute Data Derivations which are identifiable as STORER’s data without obtaining the prior consent purpose;.
SECTION 14 – FORCE MAJEURE
WAREHOUSE shall not be responsible for delays, failures, or omissions resulting from any cause that is beyond its reasonable control and is not due to its own negligence, including, but not limited to, riots, fires, earthquakes, hurricanes, floods, storms, drought, lightning, epidemics, war, disorders, hostilities, interference by civil or military authorities, labor disputes or controversies, transportation embargoes, fuel or energy shortages, power interruptions or failures, equipment malfunction or breakdown, or acts of God.
SECTION 15 - WAIVER - SEVERABILITY
(a) WAREHOUSE'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 or estoppel to insist upon strict compliance with all other provisions of this Warehouse Receipt.
(b) In the event any section of this Warehouse Receipt or part thereof shall be declared invalid, illegal and/or unenforceable, the validity, legality and enforceability of the remaining sections and parts shall not, in any way, be affected or impaired thereby.
SECTION 16 - AUTHORITY
STORER represents and warrants that it either (i) is the lawful owner of the GOODS which are not subject to any lien or security interest of others; or (ii) is the authorized agent of the lawful owner and/or any holder of a lien or security interest and has full power and authority to enter into the agreement incorporated into this Warehouse Receipt. STORER 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 such an interest, the agreement of such parties to be bound by the terms and conditions of this Warehouse Receipt. STORER will indemnify, defend and hold WAREHOUSE harmless from all liabilities, suits, claims, losses, costs and expenses (including reasonable attorneys’ fees) arising from STORER’s failure to comply with this section.
SECTION 17 - NOTICES
All written notices provided herein may be transmitted by any commercially reasonable means of communication and directed to WAREHOUSE at the address on the front hereof and to STORER at its last known address. STORER is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five days of transmittal.
SECTION 18 - ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS
This agreement shall constitute the entire agreement between WAREHOUSE and STORER relating to the GOODS and supersedes all existing agreements between them whether written or oral and shall not be changed, amended or modified except by written agreement signed by representatives of WAREHOUSE and STORER. Without limiting the foregoing, WAREHOUSE hereby reserves the right to transfer and/or assign (in whole or in part) the rights, duties and obligations of WAREHOUSE under this agreement to any affiliate of WAREHOUSE without the consent or approval of STORER. In the event of any such transfer and/or assignment (in whole or in part) to any such WAREHOUSE affiliate, WAREHOUSE may continue to collect and receive all or any portion of the amounts payable hereunder by STORER as agent for and on behalf of such affiliate-transferee/assignee and notify STORER thereof in writing.