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Effective 12.19.22
Retroship Warehouse Terms
These Warehouse Terms shall only apply to Retroship Service Agreements in which Customer has elected to receive Warehouse Services from Retroship. By executing the Service Agreement and accepting the Warehouse Services, Retroship and Customer agree to these Warehouse Terms and the General Terms. Capitalized terms not defined herein are defined in the General Terms.
Retroship may from time to time change these Warehouse Terms. Any changes are effective immediately upon posting on Retroship’s website at shipretro.com/warehouse-terms
1. Definitions.
“Facility” means any storage or warehouse locations provided to Customer from time to time by the Retroship Group.
“Goods” means the merchandise or property that the Customer tenders to Retroship for Warehouse Services.
The “Retroship Group” means Retroship, Inc. as well as its Affiliates, Carriers, related companies, agents, representatives, and companies that own and operate the Facilities.
“Warehouse” means Retroship, Inc. as well as its Affiliates, related companies, agents, representatives, and companies that own and operate the Facilities.
“Warehouse Services” means the provision of logistics services in Facilities, including, but not limited to inbound receiving, storage, picking and packing, outbound, and related warehouse administrative functions related to Customer’s Goods.
2. Acceptance. (a) In the event that Goods tendered for storage or other Services do not conform to the description contained in the applicable SOW, Warehouse may refuse to accept such Goods. If Warehouse accepts such Goods, Customer agrees to Fees as may be reasonably assigned and invoiced by Warehouse. (b) Any merchandise or property that the Customer tenders to Retroship for Warehouse Services and accepted by Warehouse shall constitute Goods under the Agreement. (c) Except to the extent Warehouse agrees to a minimum amount of Warehouse space in an SOW, Warehouse does not make any guarantees related to Facility space or storage capacity.
3. Shipping. (a) Customer shall provide advance notice of at least one business day for all inbound shipments to Warehouse, via an advanced shipment notification “ASN” or other comparable method. (b) Customer shall not designate Warehouse as the consignee for any Goods under any bill of lading, or any other transportation contract, receipt, or delivery document. Under no circumstances will Warehouse be considered the consignee for purposes of identifying the “importer” under 21 U.S.C. § 384a. If, in violation of the terms of the Warehouse receipt or the Agreement Goods arrive at a Facility and Warehouse is the named consignee, Customer agrees to notify the Carrier in writing prior to such shipment, with a copy of such notice to the Facility. The notice shall specify that the Facility is in fact a warehouse that has no beneficial title or interest in such Goods. (c) Customer further agrees to indemnify and hold Warehouse harmless from any and all claims for unpaid transportation charges, including, without limitation, undercharges, demurrage, detention, or charges of any nature, that arise out of or are in any way connected to the Goods. If Customer fails to notify the carrier as the preceding sentence requires, Warehouse shall have the right to refuse such Goods and it shall not be liable or responsible for any loss, injury, or damage that arises out of or is in any way connected to such Goods.
4. Tender for Storage. (a) All Goods shall be delivered at the Facility properly marked and packaged for storage and handling. Customer shall provide a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other Services desired. (b) Warehouse shall not be responsible for the condition the Goods arrive in prior to being tendered to Retroship, including, but not limited to hidden, concealed, or latent defects in the Goods. In addition, concealed shortages, concealed damages, inherent vice of the Goods, and tampering will not be the responsibility of Warehouse. (c) Warehouse does not represent, warrant, or guarantee that any Facility will maintain any specific temperature level or humidity ranges, and Warehouse shall not be liable for such.
5. Storage Period and Charges. (a) Unless otherwise agreed in writing, all Fees for storage are as stated in the applicable SOW. (b) The storage month begins on the date that Warehouse accepts custody and control of the Goods, regardless of unloading date or date of issue on the warehouse receipt. (c) Unless otherwise agreed upon in writing, Fees for a full month of storage will apply the month the Goods are received, and for each month thereafter, as set forth in the SOW. (d) All storage charges are due as set forth in the Service Agreement or SOW.
6. Transfer, Termination of Storage, Removal of Goods. (a) Instructions to transfer Goods from Warehouse are not effective until delivered to and accepted by Warehouse, and all charges up to the time transfer is made are chargeable to Customer. If a transfer of Goods involves rehandling the Goods, such transfer will be subject to a charge. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of such transfer. (b) Warehouse reserves the right to move, at its expense, after written notice (including email) is sent to the Customer, any Goods in storage from the Facility in which they may be stored to any other of Warehouse’s Facilities. (c) Warehouse may without notice move the Goods within and between, any one or more of the warehouse buildings which comprise the Facility that Warehouse identifies. (d) Except as set forth herein, Customer is responsible for all costs relating to the transfer of Goods from the Facility. (e) Subject to local law, after termination of the Agreement, if Customer does not retrieve its Goods within ten days, Warehouse may remove the Goods from the Facility and shall incur no liability by reason of such removal. (f) Upon expiration or termination of this Agreement, Warehouse shall be compensated in full for any Services performed through the effective date of expiration or termination.
7. Handling. (a) The handling charges set forth in the SOW cover the ordinary labor involved in receiving Goods at the Facility’s warehouse door, placing Goods in storage, and returning Goods to the Facility’s warehouse door. Additional expenses outside the scope of the SOW incurred by Warehouse in receiving and handling damaged Goods, and additional expenses in unloading from or loading into vehicles not at the Facility’s warehouse door will be charged to Customer at the Accessorial Rate. (c) Warehouse shall not be liable to Customer 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 or inbound shipment. Customer shall indemnify, defend, and hold Warehouse harmless from all loss, costs, penalties, claims, expenses (including reasonable attorney’s fees) for transportation, storage, handling, and other charges related to the Goods, including but not limited to undercharges, rail demurrage, truck/intermodal detention, and other charges asserted by any third-party. (d) Warehouse shall not be liable for chargebacks of any kind.
8. Outbound Transfer Requirements. (a) Goods shall not be delivered or transferred until receipt by Warehouse of Customer’s complete written instructions. Written instructions include, but are not limited to, FAX, EDI, E-Mail or similar communication, provided Warehouse shall not have liability when relying in good faith on the information contained in the communication as received from Customer. (b) For the outbound transfer of Goods, a reasonable time shall be given for Warehouse to carry out such instructions.
9. Extra Services. (a) Warehouse labor required for Services other than those set forth in the applicable SOW (i.e., out of scope services) will be charged to the Customer at the Accessorial Rate. The “Accessorial Rate” is an hourly rate set forth in the SOW and will be applied to Services requested by Customer that are not set forth in the SOW, including, but not limited to, compiling of special stock statements, reporting marked weights, cycle counts, serial numbers counts, or compilation of other data, or physical checks of Goods. (b) Warehouse may provide dunnage, bracing, packing materials or other special supplies, at a charge in addition to Warehouse’s cost, as specified in the applicable SOW. (c) If Goods are received outside of Warehouse’s normal and usual business hours, it may be subject to a charge. (d) Warehouse may take physical inventories and cycle counts as requested by Customer, at Customer’s expense based on the Accessorial Rate.
10. Minimum Charges. A minimum handling charge or minimum storage charge per month will only be made if set forth in the applicable SOW or otherwise agreed upon by the Parties in writing.
11. Liability and Limitation of Damages. (a) Warehouse shall not be liable for any loss or damage to Goods tendered, stored, or handled, however caused, unless such loss or damage occurs while in the custody and control of warehouse and resulted from the failure by Warehouse to exercise such care in regard to the Goods as a reasonably careful person would exercise under like circumstances (“Standard of Care”); Warehouse is not liable for damages which could not have been avoided by the exercise of such Standard of Care. (b) Where loss or damage occurs to Goods in Warehouse’s custody or control, for which Warehouse is not liable, Customer shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental cleanup and site remediation resulting from the loss or damage to the Goods (if any). (c) If Customer’s Goods are lost, damaged, stolen, or destroyed due to Warehouse’s breach of its Standard of Care, Retroship will assist Customer with filing a claim against the applicable Party on behalf of Customer or provide such other reasonable assistance. (d) Customer declares that damages are limited to the lesser of $0.20 per pound, or the damage cap in the General Terms. At Customer’s expense, such liability insurance may be increased on part or all of the Goods upon Customer’s request and mutual written agreement of the Parties. Except to the extent caused by Warehouse’s gross negligence or willful misconduct, in no instance shall any one claim exceed the limit of Warehouse’s liability insurance. (e) Any claims filed by Retroship on Customer’s behalf or other assistance rendered by Retroship shall in no way constitute a waiver of any provisions of the Agreement.
12. Customer Insurance. Goods are not insured by Warehouse against loss or damage however caused, and Customer is solely responsible for obtaining all property and other insurance to cover any losses that may be sustained related to Warehouse Services, including, without limitation, any loss, damage, or destruction to the Goods.
13. Notice of Claim and Filing of Suit. (a) Claims by Customer must be presented in writing to Warehouse within a reasonable time, and in no event later than the earlier of: (i) sixty (60) days after removal of the Goods from Warehouse; or (ii) sixty (60) days after Customer is notified by Warehouse that loss or damage to part or all of the Goods has occurred. Each claim must contain information necessary to identify the Goods affected, the basis for liability, and the amount of the alleged loss or damage, as well as all appropriate supporting documentation. (b) No lawsuit or other action may be maintained by Customer or others against Warehouse for loss or damage to the Goods unless timely written claim has been given as provided in paragraph (a) of this section and unless such lawsuit or other action is commenced by no later than the earlier of: (i) nine (9) months after date of removal of the Goods Warehouse; or (ii) nine (9) months after Customer is notified that loss or damage to part or all of the Goods has occurred.
14. Liability for Mis-Shipment. If Warehouse negligently mis-ships Goods in breach of the Standard of Care, Warehouse shall pay the reasonable transportation charges incurred to return the mis-shipped Goods to the Facility, and to re-ship a corrected order via the original shipping method at Warehouse’s cost. Warehouse’s maximum liability for Goods it negligently mis-ships is as specified in Section 11 above, and Warehouse shall not have liability for damages due to the consignee’s acceptance or use of the Goods. Any and all claims made pursuant to this Section must be in compliance with the requirements set forth in Section 13.
15. Force Majeure. If the cause of a Force Majeure Event nevertheless requires Warehouse to continue Warehouse Services, Customer agrees to pay the storage or similar charges associated with Warehouse’s obligation during the continuance of the Force Majeure Event. All Goods are stored, handled, and transported are at Customer’s sole risk of loss, damage, or delay caused by such Force Majeure Event.
16. Damage or Mysterious Disappearance of Goods. The limitation of liability referred to in Section 11 above shall be Customer’s exclusive remedy against Warehouse for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the Goods and shall apply to all claims including inventory shortage and mysterious disappearance claims unless Customer proves by affirmative evidence that Warehouse converted the Goods to its own use. Warehouse may be liable for loss of Goods due to inventory damage, shortage, or unexplained or mysterious disappearance of Goods only if (i) Customer establishes such loss occurred because of Warehouse’s failure to exercise the Standard of Care under Section 11; and (ii) such loss is greater than 0.5% of total inventory of Goods tendered to the Warehouse on an annual basis. Any presumption of conversion imposed by law shall not apply to such loss and a claim by Customer of conversion must be established by affirmative evidence that the Warehouse converted the Goods to the Warehouse’s, as applicable, own use.
17. Right to Store Goods. Customer represents and warrants that Customer is lawfully in possession of the Goods and has the right and authority to store them with Warehouse. Customer agrees to indemnify and hold Warehouse harmless from all loss, cost and expense (including reasonable attorneys’ fees) which Warehouse pays or incurs as a result of any dispute or litigation, whether instituted by Warehouse or others, respecting Customer’s right, title or interest in the Goods. Customer further represents and warrants that, Customer will not use the Services to store Goods that are illegal or that are, in the reasonable opinion of Warehouse, dangerous, hazardous, harmful, unsafe.
18. Accurate Information. (a) Customer represents and warrants to Warehouse that there are no known potential health, safety, and/or environmental hazards associated with the storage and handling of the Goods that have not been disclosed to and acknowledged by Warehouse. (b) Customer will provide Warehouse with information concerning the Goods, which is accurate, complete, and sufficient to allow Warehouse to comply with all laws and regulations concerning the storage, handling, and transporting of the Goods, including, if applicable, safety data sheets. (c) Customer will indemnify and hold Warehouse harmless from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which Warehouse pays or incurs as a result of Customer failing to fully discharge this obligation.
19. Non-Circumvention. Customer agrees to refrain from any direct or indirect contact or solicitation of any member of the Retroship Group without the involvement or consent of Retroship. During the Term of the Agreement and for a period of two (2) years after, Customer shall not directly or indirectly solicit the provision of Services from any Retroship Group or Warehouse where: (a) the availability of actual or potential Services from the Retroship Group Facility first became known to the Customer as a result of Retroship; or (b) where the Customer was actually provided Services by the Retroship Group Facility as a result of Retroship. Any actual or reasonably suspected violation of this Section 19 shall be grounds for immediate termination of the applicable Agreement by Retroship with written notice to Customer. Customer agrees that money damages may not be a sufficient remedy for any breach of this Section 19, and that, in addition to all other remedies, Retroship shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Customer expressly acknowledges that this Section 19 is necessary to protect the legitimate business interests of Retroship and is reasonable under the circumstances. Customer must provide at least 48 hours’ notice to Retroship via service@Retroship.com prior to requesting to visit a Facility. Customer shall not visit a Facility unless Retroship has approved such visit, and such visit does not disrupt the Warehouse’s operations.
20. General and Specific Lien. Warehouse shall have a general and specific warehouse lien for all lawful charges for Services and in relation to the Goods under this Agreement, regardless of whether a specific receipt is issued. Warehouse reserves the right to exercise its lien rights under the terms of any applicable law and/or agreement between the Customer and Warehouse. Warehouse may enforce this lien if Customer is in breach of the Agreement, including by prohibiting the removal of some or all of such Goods until all Fees owed to Warehouse are paid in full, and in the event any amounts are past due by more than sixty (60) days, by selling some or all of the merchandise in accordance with applicable law. Unless expressly stated otherwise in writing, Warehouse will not subordinate its lien to any lender, financial institution, or any other third party.
21. Document of Title. Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the Parties. Any inconsistencies between the terms of the warehouse receipt and the Agreement shall be governed by the Agreement.
22. Governing Law. These Warehouse Terms and the legal relationship between the parties hereto shall be governed by and construed in accordance with the law specified in the General Terms, including Article 7 of the Uniform Commercial Code as ratified in that state, notwithstanding its conflict of laws rules.
23. Yard Storage. “Yard Storage” means the placement of Goods, including containers or trailers with Goods, with or without tractors, empty or loaded, secured or unsecured, in the yard of Warehouse for the benefit of the Customer and/or the Customer’s Goods. The liability of Warehouse for any Yard Storage of containers or trailers, whether loaded or empty, secured or unsecured, shall be subject to these Warehouse Service Terms