CLN Solutions Terms & Conditions
EXHIBIT B TERMS AND CONDITIONS
CLN Solutions and Customer agree that the following terms and conditions apply to the Warehouse Services Agreement:
1. Rates. The storage and handling rates set forth on Exhibit A are based on information supplied by the Customer to CLN Solutions concerning the quantity and nature of Goods, volumes and procedures specific to Customer’s needs. If actual quantity and/or volumes do not meet or exceed Customer’s information, or if Customer’s required procedures vary from Customer’s warranted Goods information and are more costly than the originally stated procedures, CLN Solutions and Customer agree that CLN Solutions may, at its sole discretion: (i) adjust the storage and handling rates accordingly and apply such adjusted rates retroactively and prospectively for the term of this Agreement, or (ii) terminate the Agreement. In the event of such termination, the Customer shall be responsible for all outstanding amounts owed to CLN Solutions, along with payment for expenses incurred by CLN Solutions in reliance on this Agreement, and any other damages suffered by CLN Solutions.
2. Title of Goods. Customer represents and warrants that Customer has lawfully possessed the Goods and has the right to and authority to store them with CLN Solutions. Customer shall retain title to all Goods and other property of Customer intended to be stored in or located in the Warehouse. Customer shall not transfer title of Goods to another party until CLN Solutions has evaluated the credit worthiness of that party and entered into a separate agreement with the new party. The parties agree that warehouse receipts may not be issued by CLN Solutions and this shal l not be construed as a failure to comply with the receipt provisions of Section 7 of the Uniform Commercial Code, and Customer shall not suffer any liability for such failure. Instead, the parties agree that the terms and provisions of this Agreement shall apply.
3. Indemnification. Customer agrees to indemnify and hold harmless CLN Solutions from all loss, costs and expenses (including reasonable attorneys’ fees) which CLN Solutions pays or incurs as a result of any dispute or litigation, whether instituted by CLN Solutions or others, respecting Customer’s right, title or interest in the Goods. Such amounts shall be charges in relation to the Goods and subject to CLN Solutions’ warehouse lien. Customer shall indemnify and hold CLN Solutions harmless from all loss, liabilities, claims, costs, penalty and expense (including reasonable attorneys’ fees) arising out of or incurred by CLN Solutions as a result of Customer’s failure to fully comply with its obligations under the Agreement, including all attached Exhibits.
4. Rights Under Uniform Commercial Code. In all instances where CLN Solutions stores and handles Goods for Customer, the parties agree that CLN Solutions is acting as a warehouseman as provided by law and the Uniform Commercial Code in the State of South Carolina, and as such is entitled to all rights, remedies, liens, and other protections afforded a warehouseman. Other than as described in the preceding paragraph, CLN Solutions shall not permit any lien or other encumbrance to be placed against the Goods while they are in CLN Solutions’ possessions.
5. Packaging, Bulk Transfer Services and Charges. From time to time, Customer may forward material to CLN Solutions for packaging into various containers, or bulk transfer into other conveyances. Customer shall provide CLN Solutions with written instructions reasonably in advance prior to the required packaging or transfer date. CLN Solutions shall perform these services with telephone instructions, in accordance with a prior written agreement; however, CLN Solutions shall not be held responsible for loss or error occasioned by oral instructions. Customer shall identify the name and type of the product and any markings to be placed on the exterior of the products packaging. CLN Solutions makes no warranty, express or implied, regarding the name or properti es of the material. All charges for packaging or bulk transfer services are per pound or other agreed unit. All charges for these services are due upon receipt of CLN Solutions’ invoicing for same.
6. Packaging Supplies and Transportation. From time to time, CLN Solutions shall be requested to provide packaging materials and/or pre-printed materials to be utilized in conjunction with the Services. These shall be charged to Customer as mutually agreed, in writing, prior to CLN Solutions’ performance of the Services. Customer warrants that it has authorization for the usage any artwork, logos trademarks that are incorporated into its products or packaging. CLN Solutions shall not be liable for any damage or actions resulting from the use of said supplies, when same conform to specifications provided by Customer. CLN Solutions also shall store packaging supplies owned by Customer for use in conjunction with CLN Solutions’ packaging service. CLN Solutions assumes no responsibility for insurance or protection of the material while in transit, and does not warrant said transportation services. In the event of any loss or damage occasioned during transit, Customer hereby agrees to hold CLN Solutions harmless for claims of such loss or damage. Any claims, damages, liabilities, or expenses resulting directly from such packaging or labeling, if resulting directly from and solely due to CLN Solutions’ error, shall be limited to CLN Solutions’ cost for repacking or re-labeling such product or Goods.
7. Rail Car Storage and Demurrage. Car storage charges shall be applied to any car constructively placed at the Warehouse where CLN Solutions has not received written or verbal packaging instructions within a 48-hour period beginning the time of constructive placement. Any product or material, which may be packaged, repackaged, labeled or relabeled, or otherwise identified by CLN Solutions shall be at the direction of the Customer. Claims for product shortages, based on railcar weights, shall be honored only if based on certified railroad weights. When CLN Solutions provi des Customer with periodic reports of stock balances or physical inventory, Customer shall review same for accuracy and report any discrepancy, in writing, to CLN Solutions within 60 days of receipt of such report. If no discrepancy is reported to CLN Solutions within said 60 days, CLN Solutions’ inventory shall be deemed to be correct and valid, and no subsequent claim of error may be asserted by Customer. CLN Solutions shall not be responsible for rail demurrage unless due to CLN Solutions’ gross negligence. Customer shall be notified of CLN Solutions’ total production volume and informed that CLN Solutions shall process railcars on a first come, first serve basis. If volume exceeds CLN Solutions’ capability, Customer is responsible for the demurrage. Additionally, CLN Solutions shall not be responsible for payment of rail demurrage due to inclement weather, rail work, packaging, equipment breakdowns, etc.
8. Delivery and Release of Goods. Customer shall deliver Goods to the Warehouse in a segregated manner, properly marked and packaged for handling. At or prior to delivery of the Goods, Customer shall furnish a manifest showing the Goods to be tendered for storage, with any instructions concerning storage, services, accounting, segregation or any other requirements relating to the Goods. CLN Solutions may inspect all inbound shipments for visible loss or damage. Where such apparent loss or damage occurs CLN Solutions shall endeavor to obtain a notation of such loss or damage by the carrier on the delivery receipt; prepare an inspection report; take photos of the damage; and forward the documents to Customer. CLN Solutions retains the right to refuse acceptance of shipments that arrive in damaged condition. The bill of lading and other shipping documents for all Goods shipped to CLN Solutions shall show Customer as the named Consignee, with CLN Solutions shown only as the “in care of” party. Customer shall indemnify and hold harmless CLN Solutions from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention, per diem, or charges of any nature, in connection with Goods shipped to/from CLN Solutions. If bill of lading is signed by Customer’s representative or trucking company representative and accepted CLN Solutions is thereby released from liability. Customer shall provide CLN Solutions with written instructions concerning the release or other disposition of Goods. Facsimile, Internet, Electronic Data Interchange (EDI), or other similar communication is satisfactory, provided CLN Solutions may rely upon the information contained in the communication as received. Customer shall determine the quantity of Goods to be loaded into various modes of transportation and shall indemnify and hold CLN Solutions harmless where such quantities exceed any legal limit or governmental regulation. When Customer requests that CLN Solutions tender Goods to a carrier, Customer authorizes CLN Solutions to rely upon weights provided by the Customer in completing shipping documents as an agent for Customer. Any penalty, loss expenses, or fines incurred by CLN Solutions in reliance upon same shall be paid by Customer. Unless clearly stated to the contrary in writing, such “weights” supplied by Customer shall include Goods, packaging material, pallets, and dunnage supplies.
9. Hazardous, Dangerous, Contaminated, Illegal and/or Scandalous Goods. “HAZARDOUS Goods” are defined as any chemical or regulated substance, whether regulated or identified as such by the Department of Transportation, EPA, OSHA, any state or local regulatory agency. Customer agrees that it shall not tender any HAZARDOUS Goods to CLN Solutions for storage or handling without giving CLN Solutions written notice prior to delivery to the Warehouse of the following: commercial and scientific name(s) of the HAZARDOUS Goods; specific product information necessary or helpful for CLN Solutions to comply with the storage, reporting, record keeping, employee training, notification and similar requirements of the laws and regulations applicable to the HAZARDOUS Goods; all other product information pertaining to the safe and proper handling and storage, and compatibility with other Goods; written copies of the federal, state, and local laws, rules, regulations and ordinances applicable to the storage and handling of the HAZARDOUS Goods; Customer’s EPA waste generator identification number, which CLN Solutions shall use in the event of a spill or exposure; and other information pertaining to Customer’s Goods that CLN Solutions requires in order to store, handle or transport the HAZARDOUS Goods. Upon CLN Solutions’ acceptance of the HAZARDOUS Good s, Customer shall provide CLN Solutions on a continuous and current basis with: accurate and up-to-date information concerning all of the Customer’s HAZARDOUS Goods, including data required to be filed with federal, state and local authorities; current laws, ordinances, rules and regulations of federal, state, municipal and other regulatory authorities relating to the HAZARDOUS Goods; and a written response plan to be implemented in the event of an incident, including fire, spill, damage, or natural disaster. The response plan shall include the following: the names, addresses, telephone and fax numbers of those persons, representatives, services, governmental agencies and other contacts that Customer wishes to have notified in the event of an emergency; action to be taken by CLN Solutions to minimize potential personal injury, property damage, environmental damage, and other such action as Customer wishes CLN Solutions to take. Customer shall indemnify and hold CLN Solutions harmless from all claims, suits, losses, liability and expense on account of injury to or death of persons or damage to property associated with the HAZARDOUS Goods except to the extent that such injury, death or damage is caused solely by CLN Solutions’ negligence; Customer shall obtain and provide CLN Solutions a copy of Pollution and Contamination Remediation Insurance to adequately cover remediation and clean up for site contamination or environmental exposure associated with Customer’s HAZARDOUS Goods. Customer shall name CLN Solutions as additional insured on the policy. Customer shall provide CLN Solutions with proof of insurance and shall require the insurer to provide CLN Solutions with thirty (30) day written notification in the event of any change in the policy or termination of the policy. Customer shall notify CLN Solutions in writing, prior to storage, of the HAZARDOUS, flammable, combustible, or toxic nature of any Goods offered for storage, and of any special storage and handling requirements for all Goods. Customer shall be liable for all loss, damage, injury or claim resulting from providing incomplete and/or inaccurate product information. Customer shall be responsible and shall indemnify CLN Solutions for all loss, damage, injury, claim and expenses resulting from mislabeled product. Customer shall be responsible for complying with all reporting requirements of any and all governmental agencies requiring same. Customer shall be responsible for providing current, accurate and complete Material Safety and Data Sheets (MSDS) if applicable. Customer warrants and represents that it is not aware of any HAZARDOUS conditions associated with its Goods, except those disclosed to CLN Solutions in writing prior to delivery of such Goods. Customer shall immediately notify CLN Solutions of any dangerous or HAZARDOUS conditions when Customer becomes aware of same. Customer shall be liable and shall indemnify CLN Solutions for all damages; both direct and consequential, including lost profits, resulting from any incident related thereto. Any Goods stored or warehoused for Customer: (i) which result in the emission of toxic or obnoxious fumes, odors, airborne contaminants; (ii) which may be contaminated; (iii) which emit a pollutant; or (iv) the storage of which is determined to be a violation of zoning for fire regulations applicable to the location of the Warehouse, may be immediately removed to another location by CLN Solutions or by Customer, at Customer’s expense. Customer shall be liable for all damages or injury, by its Goods to any property or person. Customer shall be responsible for the cost of clean-up and removal of its Goods should any incident arise which renders the Goods unacceptable to CLN Solutions or Customer. CLN Solutions reserves the right to refuse acceptance of Customer’s shipments that arrive in damaged condition, whether or not there is a threat of environmental exposure, hazard to existing product on the site location, or threat to CLN Solutions’ safety. CLN Solutions shall put the Customer on notice of such refusal. In the event of a release of Customer’s HAZARDOUS Goods, regardless of fault or cause, Customer shall be liable for: all costs associated with implementing Customer’s response plan; removal and disposal of Customer’s damaged HAZARDOUS Goods; and removal of all debris and contaminated material attributable to Customer’s HAZARDOUS Goods. Customer also is liable for environmental clean up, restoration and site remediation and assumes the burden of proving that there is no tangible relation between its’ HAZARDOUS Goods and the site contamination requiring such clean up and restoration. Customer warrants that none of the Goods shipped to CLN Solutions by it or on its behalf shall include any illegal or scandalous products.
10. Damaged Goods. CLN Solutions shall, as soon as is reasonably practical, notify Customer of any and all observed damages to Customer’s Goods. Upon such notification from CLN Solutions, Customer shall have thirty (30) days to determine the status of the Goods. If Customer determines that the Goods are damaged, and the Goods shall remain in the Warehouse, then CLN Solutions reserves the right to increase storage rate on DAMAGED Goods up to three (3) times the base rate. If CLN Solutions determines that damaged or spoiled GOODS present an immediate hazard to other property or to the warehouse or to persons, CLN Solutions shall notify Customer, and Customer shall promptly remove the Goods from the Warehouse. Pending such disposition, CLN Solutions may remove the Goods from the Warehouse, at Customer’s sole expense, and shall incur no liability by reason of such removal.
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11. Loss Limitation. CLN Solutions shall be liable for loss of or injury to the Goods while under its care, custody, and control when caused solely by its gross negligence. Where loss or injury occurs to stored Goods, for which CLN Solutions is not liable, the Customer shall be responsible for, and shall indemnify CLN Solutions for, the cost of removing and disposing of such Goods and the cost of any environmental clean up and site remediation resulting from the loss or injury to the Goods. Goods which are subject to damage through temperature or humidity changes or other causes incident to general storage shall be received in general storage only at Customer’s risk for such damage as might result from general storage condition. Goods are not insured by CLN Solutions for the benefit of Customer against fire or any other loss, damage, or injury. CLN Solutions is not liable for contamination to any product whatsoever. Customer acknowledges that damages are limited to two (2) times the monthly storage charge per article, item or unit of weight. CLN Solutions shall not be liable for any loss of profit or special, indirect or consequential damages of any kind. CLN Solutions shall not be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods. Any presumption of conversion imposed by law shall not apply to such loss. A claim by Customer of conversion must be established by affirmative evidence that CLN Solutions converted the Goods to CLN Solutions’ own use.
12. CLN Solutions shall provide the following policies and limits of insurance:
COVERAGE LIMITS Workmen’s Compensation Statutory $500,000 Employer’s Liability $250,000 Comprehensive General Liability with Agreementual Coverage $1,000,000 per occurrence Warehousemen’s Legal Liability $1,000,000 per occurrence
The policies shall be with carriers who are “A” rated by Best’s Insurance Reports. CLN Solutions shall provide Customer with insurance certificates reflecting such coverage upon written request, which certificates shall provide that the carrier shall not terminate or reduce the coverage without first giving Customer thirty (30) days prior written notice. CLN Solutions shall provide Customer with copies of the policies for inspection upon Customer’s written request. CLN Solutions provides no insurance whatsoever on Customer’s Goods in their care, custody, or control. Insurance covering loss or damage to Customer Goods (a) where CLN Solutions is not liable, or (b) which exceeds the limitation of damages if CLN Solutions is liable, shall be maintained by Customer.
13. Independent Agreementor. CLN Solutions shall act as an independent agreementor under this Agreement. It shall perform its obligations under this Agreement using its own employees or agents. It shall decide on the manner and means of accomplishing those obligations and shall direct, control and supervise its employees. It shall comply with all payroll tax, withholding, social security, unemployment and related employer obligations. CLN Solutions nor Customer shall hold itself out as an agent of or joint venture the other party and shall have no authority to act on behalf of the other except to the extent necessary to accomplish its obligations under this Agreement.
14. Force Majure. Neither party shall be liable to the other for failure to perform its obligations under this Agreement if prevented from doing so because of an act of God, strikes, fire, flood, contamination, infestation, war, civil disturbance, and interference by civil or military authority or other causes beyond the reasonable control of the 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 CLN Solutions to continue to protect the GOODS, the Customer agrees to pay the storage or similar charges associated with CLN Solutions’ obligation during the continuance of the force majeure event. Customer understands and agrees that in the event of a force majeure, Customer is obligated to clean up its product and provide site remediation attributable to contamination caused by Customer’s product.
15. Audit of Records. A physical inventory of all Goods shall be conducted by CLN Solutions, at its expense, each year at a date agre ed upon by the parties, with a full written report provided by CLN Solutions to the Customer. Customer may take additional physical inventories as requested by Customer at Customer’s expense.
16. Non Solicitation and Confidentiality. Customer shall not solicit CLN Solutions employees and agrees not to hire CLN Solutions employe es for a period of two years from the termination of the Agreement. CUSTOMER AND ITS AGENTS AND EMPLOYEES, SHALL PRESERVE AND KEEP CONFIDENTIAL ALL INFORMATION CONCERNING CLN SOLUTIONS’S SALES, CUSTOMERS, BUSINESS.
17. Assignment. Either party shall have the right to transfer and/or assign this agreement to any third party, providing written notice is provided to the other party ten (10) days prior to the effective date of the transfer. Changes in ownership of either party through sale, trade, divestiture, or any other means with the exception of bankruptcy, do not constitute grounds to terminate the Agreement.
18. Default. Customer shall be in default if Customer fails to pay to CLN Solutions, when due, any sum of money due hereunder, and su ch failure continues for five (5) days from the due date. A party shall be in default if such party fails to perform or observe any of the covenants or provisions of this Agreement imposed upon such party (other than payment of money) and such failure continues for thirty (30) days after the non-defaulting party shall have given the defaulting party written notice of such failure, stating specifically the cause for which the notice of default is given. In the event of a default by either party, the non-defaulting party may, in addition to any other remedies available at law or in equity, terminate this Agreement. Customer shall be held liable for and shall compensate CLN Solutions for any upfront investments made on behalf of Customer, e.g., equipment, lease, etc. in the event of termination for default by Customer.
19. Notice of Loss or Damage. Customer must give CLN Solutions written notice of a claim for loss or damage to GOODS. Such written claim must be made before the earlier to occur: (i) the expiration of sixty (60) days after delivery of the Goods by CLN Solutions, or (ii) the expiration of sixty (60) days after Customer is given written notice by CLN Solutions that loss or damage to the Goods has occurred.
20. Time to File Action. No action may be maintained by Customer against CLN Solutions for loss or damage to the Goods unless written notice of claim has been given as provided in paragraph 23 above and unless such action is commenced before the earlier to occur: (i) the expiration of three (3) months after the date of delivery by CLN Solutions or (ii) the expiration of three (3) months after Customer is notified by CLN Solutions that loss or damage to the Goods has occurred.
21. Notices. Any notice to either party to this Agreement by the other shall be deemed to have been properly given if in writing sent via a nationally recognized overnight carrier to said party or such other address or person as either party may designate by notice to the other party hereunder. A notice hereunder shall be deemed to have been given as of the date it was received. If it is not received, then it shall be deemed given on the date first presented by the postal authorities or overnight carrier for receipt.
22. Dispute Resolution. Any controversy or claim arising out of or related to this Agreement, or the breach thereof, shall be res olved by confidential, private, binding, non-appeal able arbitration pursuant to the Federal Arbitration Act and pursuant to the procedures set forth herein. South Carolina substantive law shall apply. South Carolina rules of evidence shall apply as determined by the Arbitrator. No formal rules of civil procedure shall apply; provided, however, the discovery rules set forth in the South Carolina Rules of Civil Procedure shall apply. Arbitration shall be administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that this Agreement shall control in the event of a conflict. Any disputes regarding procedures, the method by which the arbitration shall be conducted or arbitrability of issues shall be resolved only by the arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Arbitration shall be by one (1) arbitrator, who shall be an attorney familiar with commercial transactions. The place of arbitration shal l be Charleston, South Carolina. The arbitration costs and expenses shall be borne by the non-successful party to the arbitration. In the event that there is no clearly defined successful party, each party shall pay its individual arbitration costs and expenses as determined by the arbitrator. In the event that a party is successfully able to maintain an action in a court of law contrary to these arbitration provisions, BOTH CUSTOMER AND CLN SOLUTIONS HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY LAWSUIT RELATING TO THIS AGREEMENT.
23. Applicable Law. The provisions of this Agreement shall be construed and interpreted according to the laws of the State of South Carolina.
24. Severability. If any term of provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement or any other application of such term or provision shall not be affected thereby.25. Authority. Customer and the person executing this Agreement on behalf of Customer have full corporate right, power, and authority to execute, deliver, and perform this Agreement without obtaining any consents or approvals from any other person. This Agreement, when executed and delivered by Customer and CLN Solutions, shall constitute the legal, valid, and binding Agreement of Customer, enforceable against Customer in accordance with its terms. Other negotiated services shall be billed per CLN Solutions’ then current standard charges which may be adjusted as required.
26. Headings; Counterparts. Headings are provided for convenience only and do not modify, enlarge, or otherwise affect the terms and provisions hereof. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. No party hereto may raise the use of electronic mail, facsimile or telecopier as a defense to the enforcement of this Agreement or any amendment executed in compliance with this provision.
27. Non-Waiver. The failure of either party to enforce any of the terms or conditions of this Agreement at any time shall not in any way affect or be deemed to modify or waive their respective right thereafter to enforce or compel strict compliance with such term or condition. The acceptance of money by CLN Solutions shall not constitute a waiver of any preceding breach by Customer of any term, covenant or condition of this Agreement, regardless of CLN Solutions’ knowledge of such preceding breach at the time CLN Solutions accepted such money. Waiver by CLN Solutions of any term, covenant, or condition contained in this Agreement may only be made by a written document signed by CLN Solutions.
28. Mutual Drafting. The Customer acknowledges and agrees this Agreement is the product of negotiation and, accordingly, no presumption against the drafting party shall be made or enforced. Additionally, each the Customer acknowledges they have had the opportunity to consult with counsel of their choosing with regards to this Agreement and have either done so or freely elected not to do so.
29. Discretion of CLN Solutions. CLN Solutions shall be responsible for selecting the area within the Warehouse for storing the Goods and may, without notice, move the Goods within the Warehouse. CLN Solutions shall comply with the operating procedures set forth in any operating manual prepared by Customer, provided that Customer shall furnish a copy to CLN Solutions in advance and obtain CLN Solutions’ written consent to the provisions of the manual or any amendments to the manual. CLN Solutions shall not be liable for loss or damage to the Goods resulting from complying with Customer’s operating procedures.
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