These Terms and Conditions (the “Terms”), together with those contained in any rate quote provided by Company (the “Quote”, and together with the Terms, the “Conditions”), apply to the provision of any warehouse, storage, or handling services (“Services”) by Stacks Logistics LLC (the “Company”):

By tendering goods to the Company, Customer (as defined below) expressly accepts these Conditions and warrants that acceptance of these Conditions has been authorized by a representative of Customer.

The Company may change these Conditions at any time with or without notice to Customer.

 DEFINITIONS

“Claims” mean any and all liabilities, claims, losses, suits, actions, costs, fines, penalties, expenses (including attorney’s, paralegal’s and expert witness’ fees, and other costs of defense, investigation and settlement), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage, environmental damage, or any combination thereof, suffered or claimed to have been suffered by any person or entity as well as the costs of enforcing indemnification obligations and costs of containment, cleanup and remediation of spills, releases or other environmental contamination.

“Customer” means the person or entity at whose request, for whose benefit, or on whose behalf the Company provides any Services.

“Facility” means any warehouse facility operated by the Company or any warehouse facility contracted by the Company to provide Services for Customer.

“Goods” means the goods for which the Company is providing Services and includes packaging, pallets, packing materials, containers, and any related equipment.

“Parties” means the Company and Customer unless otherwise specified, and “Party” means the Company or Customer, as applicable.

“Service Agreement” means a written agreement signed by an authorized representative of Customer and the Company pertaining to the Services provided by the Company.

1.     APPLICATION OF THESE CONDITIONS

 

Except as otherwise expressly set forth herein, these Conditions apply to all the Company’s activities in arranging or providing Services. Where a specific Service Agreement is silent on any matter and does not expressly disclaim these Conditions, the provisions of these Conditions will apply with respect to such matter. In the event of a conflict between these Conditions and the terms and conditions set forth in any Quote, the terms and conditions of the Quote will govern.

2.     SERVICES REQUIRING SPECIAL ARRANGEMENTS

 

Customer will not request, and the Company will have no responsibility to provide Services with respect to pharmaceuticals; currency, negotiable instruments or securities of any kind; precious metals or stones; human remains; livestock; hazardous materials or dangerous goods; illegal goods, waste of any kind; or any other Goods with special requirements not identified at the outset by Customer. Customer will defend, indemnify and hold the Company harmless against any Claims as a consequence of the Company’s failure to make arrangements noted above.

3.     COMPANY’S GENERAL RESPONSIBILITIES AND DISCLAIMERS

 

1. Nothing in these Conditions or otherwise will be deemed to require or obligate the Company to accept Goods tendered by Customer for Services. If the Company agrees to provide Services, the Company will exercise reasonable care arranging for or providing Services in accordance with these Conditions. THE COMPANY IS NOT RESPONSIBLE FOR COMPLIANCE WITH TRANSIT, PICK-UP OR DELIVERY APPOINTMENT DATES OR TIMES AND WILL NOT BE LIABLE IN ANY WAY FOR TRANSPORTATION DELAYS.
2. The Company and its agents will remain at all times independent contractors vis-à-vis the Customer.

4.     CUSTOMER’S GENERAL RESPONSIBILITIES

Customer warrants that it is either the owner or the authorized agent of the owner of the Goods tendered for Services and that it has the authority to, and does, accept these Conditions for itself and where applicable, as agent for and on behalf of the owner, and these Conditions will be binding on such persons or entities.

5.     QUOTATIONS AND INVOICING

 

1. The Company will invoice Customer for the Services in accordance with the rates, charges, and provisions set forth in any Quote provided to Customer or the Service Agreement with Customer, and the Company will also be entitled to impose charges in accordance with the Company’s then current rules and accessorial charges as amended from time to time, which rules and accessorial charges are available upon request.
2. All Quotes and associated charges do not include any state, county or harmonized sales taxes, or other use or value-added taxes, duties or similar charges, and Customer will be liable for such taxes, duties or charges, if required by state or local authority.
3. Payment for the first month storage is due upon receipt of Goods and shall be billed monthly, in advance; all other fees and expenses shall be due and payable upon invoice.  Customer shall provide a valid credit card for the Company to keep on file at all times, and the Company shall use such credit card to satisfy each invoice automatically without any express authorization or approval from Customer. If Customer’s credit card becomes invalid or expired at any point during the term, Customer shall promptly replace it within three business days. Customer agrees that all overdue invoices will be subject to interest at 5% per month, on the outstanding balance or such maximum amount as provided under Florida law, plus collection costs and legal fees. Credit card authorization form is attached as Exhibit A.
4. Customer must notify the Company in writing of any dispute regarding a Company invoice within thirty (30) days of the date of the Company invoice. If Customer fails to timely notify the Company of the dispute, the Company’s invoice will be deemed to be final, and Customer will be deemed to have accepted such invoice in full and to have waived any and all Claims or defenses to paying such invoice. As a condition precedent to collecting such a Claim, Customer must initiate an arbitration or lawsuit for overcharges, duplicate payment, overcollection or other invoice-related dispute within six (6) months of the provision of the Services.
5. If Company discounts its rates in any manner to Customer based on Customer’s estimated quantity of goods to be stored or moved, period of storage or any other estimated quantity (“Customer’s Estimate”) and Customer’s Estimate is not met, then Company has the right to remove any such discounted rate from the amount owed by Customer.
6. If Customer’s Estimate is not met in connection with shipping or production work, the Company has the right to terminate any such shipping or production work as soon as it becomes aware thereof.
7. No refunds shall be given for any storage charges incurred, labor charges incurred, shipping or other work performed by the Company.
8. For accounts with an outstanding balance, all outstanding invoices must be paid in full before Company will release any products or pallets held in inventory.

6.     WAREHOUSE SERVICES

1. Customer shall ensure that all Goods are delivered to the Facility properly marked and packaged for storage and handling.
2. When Goods are ordered out of the Facility, 48 hours will be given to the Company to carry out these instructions unless special agreement has been provided, and if it is unable because of force majeure conditions, or because of loss of or damage to Goods for which the Company is not liable, or because of any other excuse provided by law, the Company will not be liable for failure to carry out such instructions, and Goods remaining in storage will continue to be subject to regular storage charges.
3. The Company’s custody and liability for the Goods and burden of risk will not begin until after both of the following events have occurred: (1) the Goods have been placed in the Facility for storage and (2) the Bill of Lading or delivery receipt for such inbound load has been signed by the Company. The Company’s custody and liability for the Goods and burden of risk will end after the Goods have been loaded into an outbound carrier.
4. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO GOODS TENDERED, STORED OR HANDLED HOWEVER CAUSED UNLESS SUCH LOSS OR DAMAGE RESULTED FROM THE FAILURE BY THE COMPANY TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND THE COMPANY IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
5. If at any time, discrepancies exist between Customer’s records and the physical inventory, the Company and Customer will provide to each other their records of all inventory adjustments from the time of the previous reconciliation to the time of the inventory count in which the discrepancy was found; and the Company’s records will be presumed to be correct, absent evidence to the contrary.
6. The Company may, upon written notice of not less than 48 hours’ notice to Customer, require the removal of any Goods from the Facility. If Goods are not removed before the end of the notice period, the Company may sell them in accordance with applicable law, and the net amount received from the sale thereof shall be deducted from the amount then owing by Customer to the Company.
7. Upon any termination of Services, Customer will cause all Goods to be removed from the Facility before the termination effective date; provided however, that the Company may require that all outstanding charges be paid before it permits the release of all remaining Goods from the Facility.
8. In the event of a conflict between this Section 6 and any other provision of these Conditions imposing liability on the Company for loss or damage to Goods with respect to which the Company is providing Services, this section will govern to the extent of the conflict.

7.     INSURANCE

 

Customer is responsible for maintaining property insurance covering the Goods, including loading and unloading, and shall name the Company as an additional insured.

8.     LOSS OR DAMAGE CLAIMS AND LIMITATIONS OF LIABILITY

 

1. Except to the extent otherwise expressly set forth herein, the Company is not liable for any claims for loss or damage to Goods whatsoever except to the limited extent that Customer’s direct damages are directly and proximately caused by the Company’s gross negligence or willful misconduct. The liability of Company, if any, with respect to any such claim shall be limited in accordance with these Conditions. 
2. As a condition to filing a claim against Company for loss, damage or delay to Goods, Customer on its own behalf and on behalf of the owner of the Goods will provide the Company with any and all information relating to the Claim, the earlier of (i) 60 calendar days after delivery of the Goods at the Facility to the outbound carrier for transportation out of the Facility or (ii) 60 days after Customer is notified by the Company that loss or damage to part or all of the Goods has occurred.
3. The Company will not be liable for the following: (1) damage to Goods or equipment to the extent due to packaging, loading, unloading, blocking, bracing or securing of the Goods; (2) damage to Goods or equipment to the extent due to inherent vice or defect in the Goods, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, deterioration of perishable products, or damages caused by heat or cold; (3) damage to Goods or equipment to the extent due to force majeure events; (4) damage to Goods or equipment to the extent due to an act, omission or default of Customer, including the consignor, the consignee, the beneficial owner of the Goods or other third party logistics provider; or (5) loss or damage of Goods that violate any applicable law or regulation, have not been accurately described. Customer will defend, indemnify and hold the Company harmless from any Claim for loss, damage or delay to Goods in excess of the liabilities assumed under, or the limitations contained in, these Conditions or filed other than in accordance with these Conditions.
4. In case of a Claim for loss or damage to Goods, Customer agrees not to withhold or set off outstanding invoices and will pay such invoices in full.
5. Customer is obligated to mitigate its damages for loss or damage to Goods and is not entitled to abandon the Goods. If Customer does not elect to salvage the Goods, any Claim for Goods loss or damage will nevertheless be reduced by a reasonable salvage allowance and by reasonable storage or other costs incurred while waiting for disposition instructions.
6. Notwithstanding anything contained in these Conditions, the maximum liability, whether the Claim is founded in contract, tort or otherwise, of the Company for loss or damage to Goods in any one occurrence will be limited to the applicable amounts set forth below.

 

• For loss or damage, the Company’s maximum liability will be limited to the lesser of (1) $5,000 per occurrence or (2) Customer’s landed cost of the lost or damaged Goods.

9.     INDEMNITY

 

1. Except for Claims for loss or damage to Goods, which are governed as set forth herein, the Company will defend, indemnify and hold Customer, its employees, and agents harmless from and against any and all Claims arising out of the Company’s performance under these Conditions to the extent such Claim is directly and proximately caused by (1) the negligence or intentional misconduct of the Company; (2) the Company’s or its employees’ or agents’ violation of applicable laws or regulations; or (3) the Company’s or its employees’ or agents’ failure to comply with these Conditions, except in each case to the extent such Claim represents consequential, punitive or special damages or is the result of the negligence or other wrongful conduct of the Customer or a Carrier.
2. Except for Claims for loss or damage to Goods, which are governed as set forth herein, Customer will defend, indemnify and hold the Company, its employees, and agents harmless from and against any and all Claims arising out of Customer’s acts or omissions where such Claim is caused by (1) the negligence or intentional misconduct of Customer; (2) Customer’s or its employees’ or agents’ violation of applicable laws or regulations; (3) Customer’s or its employees’ or agents’ failure to comply with these Conditions; or (4) the Company’s compliance with or reliance on Customer’s instructions; except in each case to the extent such Claim represents consequential, punitive or special damages or is the result of the negligence or other wrongful conduct of the Company or a Carrier.
3. If Customer or the Company receives a Claim for which the other party is responsible as an indemnifying party, the party receiving the Claim will promptly notify the other party and provide reasonable assistance and information requested in the defense against such Claim.

10.  FORCE MAJEURE

 

The Company will not be liable to Customer for delay or failure to perform the Services during any time in which such performance is prevented by fire, explosion, act of God (including floods, hurricanes, tornadoes, earthquakes, severe weather conditions and natural disasters); strike, lockout or labor shortage or disturbance; war, terrorism, embargo, quarantine, riot, civil disobedience, hijacking or robbery; the acts of any Government Authority; acts or omissions of Customer; or any other cause outside of the reasonable control of the Company. The Company will provide notice within a reasonable time to Customer of such delay or inability to perform.

11.  SEVERABILITY

 

In the event that any portion of these Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision will be severable and that the remaining provisions of these Conditions will continue in full force and effect. The representations and obligations of the Parties will survive the termination of these Conditions for any reason.

12.  NON-WAIVER; REMEDIES

 

Delay or failure of either Party to insist upon performance of any of these Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the Conditions, will not be construed as waiving any such terms, conditions, provisions, rights, or privileges, but the same will continue and remain in full force and effect as if no forbearance or waiver or delay had occurred. Consent or approval by a Party to any act requiring consent or approval will not be deemed to waive or render unnecessary consent or approval of any subsequent similar act.

13.  APPLICABLE LAWS AND JURISDICTION

 

These Conditions will be deemed to have been drawn in accordance with the statutes and laws of the state of Florida and in the event of any disagreement or dispute, the laws of Florida will apply, without regard to its choice or conflict of law rules, and suit must be brought exclusively in Miami Dade County Florida as each Party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving these Conditions or the Services.

14.  LIMITATION OF ACTIONS

 

Other than Claims for loss, damage or delay to Goods or invoice disputes, any action against the Company, whether such Claim is founded in contract or tort, is waived unless commenced within two (2) years of the date the conduct giving rise to the Claim occurred.

With respect to each individual request by Customer for Services, the rights and obligations arising under these Conditions will apply to the particular Company that actually performs the Services requested by Customer. In no event will Customer have any rights against any Company other than the legal entity actually providing such Services. Carrier will seek recourse only against the particular Company that performed the Services for the applicable Goods. Nothing herein will impose any liability or obligation, whether to Customer or to any third party, on the part of any Company other than the particular Company that performs the Services as to which any such liability or obligation relates.

IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE SERVICES ARE PROVIDED “AS IS”, AND THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE SERVICES PROVIDED HEREUNDER.