Customer's delivery of goods to the TrimTab Foods’ warehouse constitutes acceptance of and agreement to these Terms and Conditions.
Section 1: Services and Tender for Storage.
a) All Goods for storage shall be delivered to 900 Clark St., Sioux City, IA 51101 properly marked and packed for handling as reasonably determined by TrimTab. TrimTab shall store and deliver Goods in the packages in which they were originally received.
b) Customer shall provide, at or prior to tender of the Goods, a manifest showing marks, brands, sizes or other parameters to be kept and accounted for separately and the class of storage desired. If such manifest is not provided, TrimTab may store Goods at its discretion at then applicable rates.
c) TrimTab shall not be responsible for segregating Goods by production code date or otherwise unless specifically agreed in writing.
d) Customer warrants that the Goods tendered for storage are not infested with pests, bacteria or any other contaminants whatsoever and that the Goods do not now and will not in the future present or constitute a danger to TrimTab, its affiliates or its employees, to other products or to the warehouse. Customer hereby agrees to hold TrimTab and its affiliates harmless from and indemnify TrimTab and its affiliates against any all losses expenses, damages and costs, including reasonable attorneys’ fees and court costs arising from or attributable to a breach of the aforesaid warranty.
e) TrimTab must maintain Goods designated for temperature-controlled storage within appropriate temperature range and must follow established Standard Operating Procedures for services.
f) Customer is responsible for all shipping and handling charges associated with storing, transporting or transferring of Goods.
g) Customer may deliver and/or pickup their Goods only during warehouse hours with a scheduled appointment, unless otherwise agreed upon. Appointments must be scheduled 24 hours in advance. TrimTab reserves the right to change warehouse hours. Fees may apply for appointments scheduled within 24 hours of request.
h) TrimTab reserves the right to move Customer’s Goods throughout the storage facility in appropriate conditions as TrimTab may find necessary.
Section 2: Termination of Agreement.
a) In addition to any remedies that may be provided under the Agreement, TrimTab may terminate the Agreement with immediate effect upon written notice to Customer, if: (i) Customer fails to pay any amount when due under the Agreement and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; (ii) Customer has not otherwise performed or complied with its obligations under any of the provisions contained in the Agreement, in whole or in part; (iii) Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; (iv) the Goods are a hazard to other property within the Warehouse or to the Warehouse itself or to persons as a result of the quality or condition of the Goods of which TrimTab had no notice at the time of tender; or (v) the Goods are about to deteriorate or decline in value to less than the amount of the Warehousemen’s Lien.
b) The Agreement may be canceled by either Party upon thirty (30) days’ prior written notice with or without any cause or reason being given or required and may be terminated without notice by either party if no storage or other services are performed under the Agreement for a period of 180 consecutive days.
c) If the Agreement is terminated for any reason, Customer shall promptly arrange for the removal of all Goods from the Warehouse, subject to payment of all outstanding fees and charges due hereunder. If Customer does not promptly remove such Goods, TrimTab may without liability remove the Goods and sell the Goods at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Goods (to the last known place of business of the person to be notified) in the manner provided by law, including UCC 7. If TrimTab, after a reasonable effort, is unable to sell the Goods, it may dispose of them without liability in any lawful manner.
Section 3: Storage Charges and Storage Period.
a) Pricing for storage, handling and other services will be provided to Customer and may be subject to price changes. TrimTab must notify Customer of price changes in writing. If additional services are required or requested that are not listed in the executed Warehousing Rate Agreement, the price invoiced by TrimTab will be the effective rate unless otherwise notified in writing. Customer accepts the prices by continuing to use TrimTab’s services.
b) All Goods are stored on a month-to-month basis, unless agreed in writing. Each pallet is subject to a minimum storage period of one month. Monthly storage rates will not be prorated.
c) Charges for freezing, storage, handling and other services shall be billed in advance in the manner indicated herein and are due upon receipt of the invoice. Storage charges commence upon the date that the Goods are received for unloading and inspection for condition and count.
d) The storage month shall extend from the date the Goods are received 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.
e) Non-conforming pallets are subject to handling and storage surcharges.
f) Customer shall pay interest on all payments not received within ten (10) days of any invoice date at a rate of 1.5% per month, calculated and compounded daily from the date due until paid in full.
g) Any additional costs incurred by TrimTab in unloading, storing and handling damaged Goods are chargeable to Customer.
h) TrimTab has the sole discretion to reject Goods throughout the duration of storage and services and will promptly notify Customer of any such discretion.
i) In the event of actual or threatened damage to the Goods, or any portion thereof, Customer shall pay all reasonable and necessary costs of protecting and preserving the Goods and the clean up and disposal of damaged or destroyed Goods.
Section 5: Liability And Limitation of Damages.
a) TRIMTAB AND ITS AFFILIATES SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY LOSS OR DESTRUCTION OF OR DAMAGE TO THE GOODS, HOWEVER CAUSED, UNLESS SUCH LOSS, DAMAGE OR DESTRUCTION ARISES DIRECTLY AND EXCLUSIVELY FROM THEIR FAILURE TO EXERCISE SUCH CARE IN REGARD TO THE GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES. TRIMTAB AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSS OR DESTRUCTION OF OR DAMAGE TO GOODS THAT COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. ALL OVERAGES DURING ANY PHYSICAL INVENTORY SHALL BE NETTED AGAINST SHORTAGES IN SAID PHYSICAL INVENTORY ACROSS PRODUCT LINES AND ALL NET OVERAGES AS A RESULT OF ANY PHYSICAL INVENTORY SHALL BE CARRIED FORWARD AND/OR BACKWARD TO OFFSET PRIOR AND/OR FUTURE NET PHYSICAL INVENTORY SHORTAGES.
b) TrimTab and Customer agree that the duty of care referred to in subsection 5(a) does not require TrimTab to provide or maintain a sprinkler system at any warehouse.
c) Unless specifically agreed to in writing, TrimTab shall not be required to store Goods in a humidity-controlled environment.
d) TRIMTAB SHALL NOT BE RESPONSIBLE FOR DETENTION OR DEMURRAGE OR DELAYS IN LOADING OR UNLOADING TRAILERS OR DELAYS IN OBTAINING TRAILERS FOR OUTBOUND SHIPMENT UNLESS SUCH DETENTION, DEMURRAGE OR DELAY WAS CAUSED DIRECTLY AND EXCLUSIVELY BY TRIMTAB’S FAILURE TO EXERCISE REASONABLE CARE.
e) IN THE EVENT OF LOSS OR DESTRUCTION OF OR DAMAGE TO GOODS FOR WHICH TRIMTAB AND/OR ANY OF ITS AFFILIATES ARE LEGALLY LIABLE, CUSTOMER DECLARES THAT TRIMTAB AND ITS AFFILIATES’ TOTAL, INDIVIDUAL AND COLLECTIVE LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO CUSTOMER 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 CUSTOMER IS NOTIFIED OF LOSS, DAMAGE AND/OR DESTRUCTION, OR (3) $0.50 PER POUND FOR SAID LOST, DAMAGED, AND/OR DESTROYED GOODS. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER TENDER OF GOODS, CUSTOMER MAY, UPON WRITTEN REQUEST INCREASE TRIMTAB’S LIABILITY ON PART OR ALL OF THE GOODS IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION; AND FURTHER PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BY CUSTOMER AND ACCEPTED IN WRITING BY TRIMTAB BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE GOODS HAS OCCURRED.
f) The liability referred to in Section 5(e) shall be Customer’s exclusive remedy against TrimTab and its affiliates for any claim or cause of action whatsoever relating to loss or destruction of or damage to Goods and shall apply to all claims including inventory shortage and mysterious disappearance claims unless Customer proves by affirmative evidence that TrimTab converted the Goods to its own use. Customer waives any rights to rely upon any presumption of conversion imposed by law. IN NO EVENT SHALL CUSTOMER BE ENTITLED TO INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR DESCRIPTION.
Section 6: Notice of Claim and Filing of Action
a) NEITHER TRIMTAB NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY CLAIM OF ANY TYPE WITH RESPECT TO GOODS UNLESS SUCH CLAIM IS PRESENTED IN WRITING WITHIN A REASONABLE TIME, WHICH SHALL IN NO EVENT EXCEED SIXTY (60) DAYS FROM THE EARLIER OF: (1) THE DATE TRIMTAB DELIVERED THE GOODS; OR (2) THE DATE WHEN CUSTOMER LEARNED, OR IN THE EXERCISE OF REASONABLE CARE SHOULD HAVE LEARNED, OF THE LOSS, DAMAGE, DESTRUCTION OR OTHER EVENT OR CONDITION GIVING RISE TO THE CLAIM.
b) As a condition to making any claim and as a condition precedent to filing any suit, Customer shall provide TrimTab 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 TRIMTAB OR ITS AFFILIATES WITH RESPECT TO THE GOODS UNLESS A WRITTEN CLAIM HAS BEEN MADE WITHIN THE TIME PERIOD SET FORTH IN SUBSECTION 11(a) AND UNLESS CUSTOMER HAS PROVIDED TRIMTAB WITH A REASONABLE OPPORTUNITY TO INSPECT GOODS AS PROVIDED IN SUBSECTION 11(b) AND UNLESS SUCH ACTION IS COMMENCED WITHIN NINE (9) MONTHS AFTER THE EARLIER OF: (1) THE DATE TRIMTAB DELIVERED THE GOODS; OR (2) THE DATE WHEN CUSTOMER LEARNED, OR IN THE EXERCISE OF REASONABLE CARE SHOULD HAVE LEARNED, OF THE LOSS, DAMAGE, DESTRUCTION OF OTHER EVENT OR CONDITION GIVING RISE TO THE CLAIM.
Section 7: Insurance
Goods are not insured by TrimTab and the storage rates do not include insurance.
Section 8: Lien and Security Interest
CUSTOMER GRANTS TO TRIMTAB A FIRST PRIORITY GENERAL WAREHOUSE LIEN UPON AND SECURITY INTEREST IN THE GOODS and on the proceeds thereof for all Charges including all charges for storage, handling, transportation, labor and other charges present or future with respect to the Goods and for expenses necessary for preservation of the Goods or reasonably incurred in their sale pursuant to law.
Section 9: Miscellaneous
a) Customer certifies it is the sole and lawful owner of Goods (defined as the property tendered to TrimTab by Customer for which TrimTab has agreed to store pursuant to these Terms and Conditions), which is not subject to any lien or security interest of others.
b) TrimTab’s failure to insist upon strict compliance with any provision of this Agreement shall not constitute a waiver or estoppel to later demand strict compliance therewith and shall not constitute a waiver or estoppel to insist upon strict compliance with all other provisions of this Agreement.
c) In the event any section of this Agreement or part thereof shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining sections and parts shall not, in any way, be affected or impaired thereby.
d) The interpretation, construction and validity of this Agreement shall be governed by, and construed in accordance with the laws of the state of Iowa.
e) This Agreement supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements, representations and undertakings between TrimTab and Customer whether written or oral and shall not be changed, amended or modified except by written agreement signed by representatives of TrimTab and Customer.
Section 10: Arbitration.
In the event that a dispute arising under this Agreement cannot be resolved by the parties within thirty (30) days after receipt by one party from the other party of notice of a dispute or such additional time as the parties may agree upon in writing, the matter shall be submitted to the American Arbitration Association (the “AAA”) for resolution. The matter shall be heard before a sole arbitrator in the city nearest the warehouse location. The dispute shall be resolved by binding arbitration under the rules and administration of the AAA, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. IN CONSIDERING OR FIXING ANY AWARD UNDER THESE PROCEEDINGS, NEITHER PARTY SHALL BE ENTITLED TO SEEK OR RECOVER INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR DESCRIPTION. The costs of the arbitration, including any AAA administration fee, arbitrator’s fee, and costs for the use of facilities during the hearings, shall be borne equally by the parties. Attorneys’ fees may be awarded to the prevailing party at the discretion of the arbitrator. Each party’s other costs and expenses shall be borne by the party incurring them.