Terms and Conditions

The following terms and conditions (“Terms & Conditions”) govern all services provided by Ancora Warehousing & Logistics, LLC (the “Company”).  Any act of tendering goods for storage or requesting other services by Company shall constitute acceptance of these Terms & Conditions and any additional terms contained in any quote/business confirmation issued by Company to Depositor.

SECTION 1 – DEFINITIONS.  As used herein, the following terms have the following meanings: (a) Depositor. The shipper, consignee, or owner of the Goods or the shipper’s, consignee’s, or owner’s contractors or agents, and anyone else claiming an interest in the Goods.  (b) Company.  Ancora Warehousing & Logistics, LLC, and officers, directors, employees and agents of the Company while acting within the scope and course of their employment.  (c) Goods. The merchandise, cargo, or freight that Depositor tenders for storage and/or any portion thereof and/or which Company has agreed to receive and/or store.

SECTION 2 - TENDER OF GOODS.

(a) Depositor represents and warrants that it is the owner or has lawful possession of the Goods and all right and authority to store them with Company and thereafter direct the release and/or delivery of the Goods. Depositor shall (i) tender any Goods for storage only during Company's posted business hours for the Warehouse; (ii) tender all Goods to the Warehouse properly marked and packed for storage and handling; (iii) provide Company with information concerning the Goods that is accurate, complete, and sufficient to allow Company to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods; (iv) tender no dangerous or hazardous Goods to Company for placing with it without Company’s express consent in writing and written acknowledgement that the Depositor has disclosed to Company all material information pertaining to the storage or transportation (or any other service to be rendered) which may affect Company’s risk and decision in agreeing

to store/handle/transport the Goods or to render other services for and on behalf of the Depositor; and (iv) furnish at or prior to tender of the Goods for storage a manifest in a form approved by Company listing any categories of Goods, brands or sizes to be separately kept and accounted for, and the types of storage and other services requested. b) Company may refuse to accept any goods for storage if the goods tendered for storage do not conform to the description provided by Depositor. (c) For all Goods shipped to the Company’s warehouse(s), Depositor shall ensure that the bill of lading or other contract of carriage ("Transportation Contract") as well as all declarations to government regulatory agencies (i) identify Depositor as the named consignee, in care of Company, and (ii) do not identify Company as the consignee. If any Goods are shipped to the Warehouse naming Company as named consignee, Depositor shall promptly notify the carrier in writing that Company is (i) the "in care of party" only and (ii) does not have any beneficial title or interest in the Goods.  Company may refuse to accept any Goods tendered for storage in violation of this provision, and shall not be liable for any loss or damage to, or mis consignment of, such Goods. Whether Company accepts or refuses goods shipped in violation of this Section 2, Depositor agrees to indemnify, defend, and hold Company harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of Company as consignee.  Depositor shall bear all the extra costs relating to container port storage and container demurrage (holding containers longer than allowed by the shipping line)  incurred by Depositor if i) Depositor fails to arrange for timely container transportation/pickup/return, or ii) if circumstances outside of Company’s control (i.e.: customs hold, x-ray exam, Coast Guard exam, damaged container,  truck/port strikes, port congestion, labor (union) issues etc.) result in the inability to pick up/return all containers before the last free day.  Company will not be held accountable for additional costs that may be incurred by Depositor for events beyond the control of Company. 

As Depositor’s logistics agent, Company may utilize service contractors (“Subcontractors”) to fulfill the requirements of Depositor’s engagement of Company.  Depositor understands and agrees that the Subcontractors are independent contractors with exclusive control over their respective employees, and are not agents, employees or authorized representatives of the Company.  Any claims for loss or damage shall be made by the Depositor, as the principal or a direct third-party beneficiary, against the respective Subcontractor(s) (stevedores, carriers, railroads, etc.) and not the Company. The Company shall be obligated to assist Depositor or Depositor’s insurance company in resolving any claims and obtaining recovery from the respective Subcontractor(s).

Depositor agrees to indemnify and hold Company harmless from all claims for transportation, storage, handling, and other charges relating to such goods, including Subcontractor charges, surcharges, undercharges, rail demurrage, truck/intermodal detention/demurrage, and other charges of any nature whatsoever.  

SECTION 3 - INDEMNITY. Depositor shall indemnify, defend, and hold harmless Company and its officers, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including undercharges, rail demurrage, truck/intermodal detention, or related charges and reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to/arising out of or resulting from any claim of a third party or Company arising out of or occurring in connection with the Services or from Company's or Depositor's negligence, willful misconduct, or breach of this Agreement (each a "Warehouse Claim"). Depositor shall not enter into any settlement of a Warehouse Claim without Company's or Indemnified Party's prior written consent.

SECTION 4 - ACCESS AND RELEASE OF GOODS.

(a) Depositor shall provide Company 24 hours' advance written instructions (each, a "Release Order") if it desires to order any Goods released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Company shall release the requested Goods to Depositor or its designee. (b) Depositor shall give Company a reasonable time after Company's receipt of Depositor's written instructions to carry out Depositor's instructions to release the Goods to Depositor or its designee. Company may without liability rely on any information contained in any written communication, including emails, from Depositor. Depositor shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods. A release order providing instructions to transfer Goods on the books of Company to any other depositor of goods in the Warehouse will not be effective until such release order is delivered to and accepted by Company. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date for the transferee will be established effective on the date of transfer.

SECTION 5 WAREHOUSE LIEN. Company shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Depositor's payment of all fees, charges and expenses hereunder in connection with the storage, transportation, preservation, and handling of the Goods.  Company may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.

SECTION 6 STORAGE AND HANDLING CHARGES.

(a) Depositor shall pay the storage charges and service fees at the rates set forth on the applicable quotation, Company's rate sheet in effect at the time such charges accrue or the services are performed, or as set forth in a communication to Depositor from Company.  All Goods are stored on a month-to-month basis.  Company may, upon thirty days’ written notice, revise its rate sheet during the time the Goods are in storage.  The Good are deemed to be received on the date that the Company accepts care, custody, and control of the Goods, regardless of unloading date or the date warehouse receipt is issued. (b) Handling charges cover the ordinary labor involved in receiving Goods at the warehouse door, placing Goods in storage, and returning Goods to the warehouse door for pickup. Handling charges are due and payable on receipt of Goods. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by Company in receiving and handling damaged Goods, and additional expenses in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the Depositor. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor. When Goods are ordered out in quantities less than in which received, Company may include an additional charge for each order or each item of an order. The Company shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless Company has failed to exercise reasonable care. (c) All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor shall be responsible for all such charges, costs, and taxes; provided, that Depositor shall not be responsible for any taxes imposed on, or with respect to, Company's income, revenues, gross receipts, personnel, or real or personal property. (d) If Company pays any lawful transportation charges on behalf of Depositor. Depositor shall promptly reimburse Company for such charges, and in any case within five (5) business days after receiving an invoice for such charges from Company.

SECTION 7 PAYMENT TERMS.

(a) Depositor shall pay all storage charges for each storage period in advance for (i) the initial month or partial month on the first day of storage and (ii) each succeeding month on the first day of such month. All charges for other Services are due and payable within ten (10) days from the date of invoice; provided that charges related to an entire lot of Goods shall be due and payable at the time the entire lot of Goods is removed from Storage.  Depositor shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded daily from the date due until paid in full. Depositor shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to suspend the release of any Goods or cease performance of any services if Depositor fails to pay any amounts when due hereunder.  In addition, Company reserves the right to require payment in full of all amounts owed by Depositor in advance of the release of the related Goods. Depositor shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company's breach, bankruptcy, or otherwise. (b) If Company in its reasonable discretion determines that Depositor's financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Company's other rights, it may without liability or penalty (i) accelerate all amounts due hereunder and (ii) modify the payment terms, including requiring Depositor to make advance payment of all storage charges prior to shipment of Goods.

SECTION 8 - LIMITED WARRANTY.

(a) Company shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by Company to exercise the level of care with regard to the Goods that a reasonably careful person would have exercised under the circumstances. Company is not liable for damages which could not have been avoided by the exercise of such care. (b) Company shall be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods only if Depositor establishes such loss occurred because of Company's failure to exercise the care required of Company under Section 8(a). Any presumption of conversion under applicable law shall not apply to a loss with respect to any Goods, and a claim for conversion must be established through affirmative evidence that Company converted the Goods to its own use. Depositor shall permit Company to inspect any damaged Goods for which a claim is submitted hereunder. (c) If Company is negligent in mis shipping any Goods, it shall pay reasonable transportation charges to return any mis shipped Goods to the Warehouse. (d) Company shall not be liable for any breach of this Section 8 unless: (i) Depositor gives written notice to Company of any claim within ten (10) days after release of the Goods by Company or (ii) Depositor is notified by Company that loss or damage to part or all of the Goods has occurred, as the case may be, reasonably described. No lawsuit or other action may be maintained by Depositor against Company for loss or damage to the Goods unless a timely written claim has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of:  three (3) months after the date of delivery of the Goods to Depositor or its nominee by Company or two (2) months after Depositor is notified by Company that loss or damage to part or all of the Goods has occurred. (e) IN NO EVENT SHALL COMPANY'S LIABILITY UNDER THIS SECTION 8 EXCEED (I) THE ACTUAL COST TO REPAIR, RESTORE AND/OR REPLACE ANY DAMAGED GOODS, OR (II) TEN (10) CENTS PER POUND FOR THE DAMAGED GOODS, WHICHEVER IS LESS. THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE DEPOSITOR'S SOLE AND EXCLUSIVE REMEDY AND COMPANY'S ENTIRE LIABILITY FOR ANY BREACH OF COMPANY'S OBLIGATIONS SET FORTH IN THIS SECTION 8.

SECTION 9 - LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE WHATSOEVER AND HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY DEPOSITOR OR COULD HAVE BEEN REASONABLY FORESEEN BY PERSON OR ENTITY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, COMPANY'S LIABILITY UNDER SECTION 8 OF THIS AGREEMENT, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE SERVICES RENDERED HEREUNDER OR $100,000, WHICHEVER IS LESS.  In the case of loss or damage to Goods for which Company is not liable, Depositor shall be responsible for all charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.

SECTION 10 - INSURANCE.

(a) Company does not represent or warrant that the Warehouse or the contents of the Warehouse cannot be destroyed by fire or any other cause. Company will not be required to maintain a watchman or a sprinkler system, and Depositor acknowledges that Company's failure to do so will not constitute negligence under Section 8(a) or otherwise. Goods are not insured by Company for the benefit of Depositor against fire or other casualty. Depositor shall, at its own expense, maintain and carry insurance in full force and effect against fire or other casualty with financially sound and reputable insurers. Upon Company's request, Depositor shall provide Company with a certificate of insurance from Depositor's insurer evidencing the insurance coverage. Depositor shall provide Company with five (5) days' advance written notice in the event of a cancellation or material change in Depositor's insurance policy. Except where prohibited by law, Depositor shall require its insurer to waive all rights of subrogation against Company's insurers and Company.

SECTION 11 - FORCE MAJEURE. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Depositor to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics/pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement;  (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, port congestion or inefficiencies, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of fifteen (15) consecutive days following written notice given by it, either Party/the other Party may thereafter terminate this Agreement upon three (3) days' written notice.

If Company has been unable to remove/deliver the Goods due to any reason specified in this Section 11, such Goods shall be subject to storage charges until such Goods are actually removed/delivered.

SECTION 12 - TERMINATION.

(a) In addition to any remedies that may be provided under this hereunder, Company may terminate services with immediate effect upon written notice to Depositor, if: (i) Depositor fails to pay any amount when due and such failure continues for ten (10) days after Depositor's receipt of written notice of nonpayment; (ii) Depositor has not otherwise performed or complied with its obligations under any of the provisions contained in this Term Sheet, in whole or in part; (iii) Depositor 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 Company had no notice at the time of deposit; or (v) the Goods are about to deteriorate or decline in value to less than the amount of the warehouse lien set forth in Section 6 before the end of the next succeeding storage month. (c) If services are terminated for any reason, Depositor shall promptly arrange the removal of all Goods from the warehouse, subject to payment of all outstanding fees and charges due hereunder. If Depositor does not promptly remove such Goods, Company 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. If Company, after a reasonable effort, is unable to sell the goods, it may dispose of them without liability in any lawful manner.

SECTION 13 – NOTICES

All written notices provided herein may be transmitted by any commercially reasonable means of communication, including email, and directed to Company at the address on the quote/business confirmation and to Depositor at its last known address.  Depositor is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five days of transmittal.

SECTION 14 - ASSIGNMENT. Depositor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Company. No assignment or delegation shall relieve Depositor of any of its obligations hereunder. Company may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Depositor's prior written consent.

SECTION 15 - SEVERABILITY. If any term or provision of this Term Sheet is invalid, illegal, or unenforceable in any specific situation or jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other situation or jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to give effect to the original intent of the Parties as closely as possible so that the transactions contemplated hereby will be consummated as originally contemplated to the greatest extent possible.

SECTION 16 – ARBITRATION.  Depositor and Company agree that disputes arising from this Agreement will be settled by binding arbitration, with Depositor selecting an arbitrator, Company selecting an arbitrator and with a representative chosen by each party jointly selecting a third arbitrator. The arbitration panel shall conduct the arbitration under the arbitration laws of the jurisdiction in which the warehouse is located and under the rules of the American Arbitration Association; provided, however, that upon any such arbitration, the arbitrator may not vary, modify or disregard the provisions contained in this Term Sheet.  In its sole discretion, Company may forego mandatory arbitration and instead seek a collection action to recover any monies owed by Depositor under this Term Sheet. The Depositor and the Company shall share equally the cost of arbitration.