STANDARD TERMS AND CONDITIONS FOR WAREHOUSING
1 – DEFINITIONS
1.1. “Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking, reloading and forwarding
1.2. “Owner”: shall mean the owner of the Stored Goods as well as its agent and authorized representatives and shall include the holder of a negotiable receipt, any party with a security interest in the Stored Goods and the party delivering the Stored Goods to the Warehouseman.
1.3. “Warehouseman”: shall mean 1456661 Ontario Incorporated o/a Texpress (“Texpress”). as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.
AGREEMENT
Subject to the legislation in force governing warehousing in the province where the goods are stored, the terms and conditions hereinafter set out, when delivered or mailed (by electronic means or mail) to the Owner of the Goods, at his address last known to the Warehouseman shall constitute the agreement between the Owner and the Warehouseman provided that the Owner may, within ten (10) days after such delivery or mailing, notify the Warehouseman in writing that he does not accept the agreement and forthwith thereafter shall pay the Warehouseman’s lien or right of retention for charges and remove the Goods. If such notice is not given, then this agreement shall govern all Stored Goods.
WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION
Subject to the legislation in force governing warehouseman’s lien or right of retention in the province where the Stored Goods received are stored, the Warehouseman shall have a warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the goods to the warehouse and until all expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full.
CHARGES
4.1. All Goods are stored on a month-to-month basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month.
4.2. The class of storage in which the Goods are to be stored, the amount or amounts owed hereon for disbursements or services rendered by the Warehouseman prior to receiving cargo and the rate per month per unit to be charged for storage of such Goods are set out in the Quotation provided to the Owner; said Quotation being expressly accepted prior to the commencement of the work.
4.3. Basic handling rates described in the Quotation are not covering the following items: marking, labelling, sampling, palletizing, repairs, measuring, weighing, inspection, physical inventory tracking, which shall be invoiced by the Warehouseman in addition to such basic handling rates.
4.4. Charges for additional services required by the Owner or necessitated by the nature of the Stored Goods together with handling charges upon delivery of the Goods out of storage, will be invoiced by the Warehouseman in addition to the monthly storage charge prescribed by the Quotation provided to the Owner
4.5. Any charge made with respect to the Stored Goods shall conform to the Warehouseman’s rates in effect at the time the service is performed. Quotations for services not included in such rates will be given on request. No increase in regularly recurring charges will be made on Goods in storage until thirty (30) days after a notice of such increased charge has been mailed to the Owner of the Stored Goods, unless otherwise agreed by the Owner.
DELIVERY AND TRANSFER REQUIREMENTS
5.1. No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods.
5.2. If the loading and/or the delivery is made in any other way than the one set out in Subsection 5.1 above, then, notwithstanding acceptance of such instructions by the Warehouseman or its employees, delivery of such Stored Goods shall be wholly at the risk of the Owner and the Warehouseman shall not be held responsible for loss from error in the giving or receiving of such instructions. 5.3. Unless all unpaid charges incurred with respect to the Stored Goods to be delivered or transferred are paid in full or assumed by the transferee, delivery or transfer thereof may be refused.
5.4. In accordance with Section 3 above, the Warehouseman has a lien and/or a right of retention for all lawful charges for storage, cross-docking, breakdown, repacking, reloading, forwarding and preservation of the Stored Goods as well as for all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, cleaning of damaged Stored Goods and other charges and expenses in relation to such Stored Goods.
ACCESS AND INSPECTION
6.1. The Owner of the Stored Goods or any person upon the written authority of the Owner may, subject to insurance regulations or other reasonable limitations imposed by the Warehouseman, have access to the Stored Goods for inspection thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.
6.2. If a checker is not furnished by the Owner or its carrier, the Warehouseman’s load or unload count shall be conclusively deemed to be correct and accepted by the Owner.
REMOVAL OF GOODS
7.1. The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.
7.2. Where Stored Goods are of a perishable nature or by keeping will deteriorate greatly in value or cause damage to other stored goods or the Warehouseman’s property or employees, the Warehouseman may give a notice to the Owner requiring him to satisfy all outstanding charges in connection with the Stored Goods and to remove them from the warehouse; should such person fail to remove the Goods within the period specified in the notice, the Warehouseman may sell the Stored Goods at public or private sale without advertising, and otherwise act with respect thereto and keep any proceeds of sale thereof as may be permitted or provided by the laws of the province where the Goods are stored, and in such case, the Owner shall be liable to the Warehouseman for any balance of charges accrued and unsatisfied on such Stored Goods.
7.3. Where in the opinion of the Warehouseman, the nature or condition of the Stored Goods creates a condition hazardous to the safekeeping and storage of other commodities in the warehouse or to any property or person, the Warehouseman may forthwith remove such Stored Goods from the warehouse and shall thereupon give notice to the Owner of such removal and the location thereof, as may be permitted or required by the laws of the province where the goods are stored. In such case the Owner shall be liable for all storage and other charges of the changed location and any and all liability on the party of the Warehouseman for the safekeeping of such Goods shall cease.
LIABILITY OF WAREHOUSEMAN
8.1. All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever.
8.2. The quality, condition, contents and value of the Stored Goods are not known to the Warehouseman except as declared on the packing list by the Owner. The Warehouseman shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received not less than twenty four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above.
8.3. Storage rates do not include insurance. Goods stored are not insured by the Warehouseman and the charges do not include insurance unless specified in writing and signed by the Warehouseman. Accordingly, it is the sole responsibility of the Owner to insure the Stored Goods are insured.
8.4. Without limiting the generality of Subsections 8.1 to 8.3 above, it is specifically declared and agreed that:
8.4.1. the Warehouseman shall in no circumstances be liable for loss or damage or deterioration to the Stored Goods, or delay in the delivery, resulting from any of the following perils or circumstances: inaccuracies, obliteration or absences of marks, numbers, address or description, fire or explosion from any cause, flood, wind, storm, earthquake or other acts of God, irresistible force, war, insurrection, riot, civil or military authority, strikes, picketing or any other labour trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Stored Goods, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of the Warehouseman. No responsibility will be assumed for loss of or damages to Stored Goods by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by breakage, theft, mice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the warehouse, including the water system, sewer, drainage, electricity, theft or vandalism at the warehouse, or for damages resulting from the usage of the warehouse space;
8.4.2. the Warehouseman shall in no circumstances be liable for any direct or indirect loss, consequential damages, special damages or loss of profit as a result of the non-delivery or delay in delivery of the Stored Goods or re-routing of any shipping of the Stored Goods, for any reason whatsoever.
8.4.3. all the Warehouseman’s charges incurred with respect to Goods lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Goods and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Stored Goods and against the Owner.
8.5. Without limiting the generality of the foregoing, in any event, the liability of the Warehouseman arising from legal liability, if any, shall be limited to the declared value of the Stored Goods or the minimum cost value of the loss or damage to the Stored Goods, whichever is the lesser, but in no case shall the liability exceed fifty dollars ($50.00) per pallet. If during storage, the value per pallet of the Stored Goods shall change and the Owner of the Goods so declared in writing to the Warehouseman, a revision of the storage rates in accordance with such new value may be made.
8.6. The Warehouseman shall not be responsible, in any case or under any circumstances, whether negligent or not, for any loss or damage to Stored Goods unless and until written notice of such loss or damage, together with full detailed particulars thereof, is given to the Warehouseman within thirty-six (36) hours after the Owner of the Stored Goods becomes aware of such loss or damage or takes delivery of the Stored Goods or any portion thereof, whichever event may first happen.
8.7. Where Stored Goods are in Canada Customs Bond, the Warehouseman shall not be liable or responsible for any seizure of such Stored Goods by the Government of Canada or any agency or officer thereof, for any reason whatsoever.
8.8. When errors in the shipment of the Goods occur, the liability of the Warehouseman shall be strictly limited to the transportation costs to be incurred to rectify any such error, and shall not, under any circumstances, include liability for damages due to the acceptance or use of said Goods.
8.9. The Warehouseman shall not be responsible for delays in loading or unloading railway cars, trailers or other containers, nor for demurrage charges or other time penalties arising from any delay which cannot be reasonably avoided by the Warehouseman in the normal course of its business.
INDEMNITY
Without prejudice to any of the foregoing terms and conditions, the Owner shall indemnify and save harmless the Warehouseman from and against all costs, demands, liabilities, responsibilities and causes of action (including reasonable attorney’s fees and disbursements) arising out of or in connection with either, directly or indirectly, the Stored Goods, any other goods of the Owner or instructions of the Owner, including, without limitation, any dispute or litigation, whether instituted by Warehouseman or others, respecting Owner’s right, title or interest in the Goods. Such amounts shall be charged to the Owner in relation to the Goods and subject to Warehouseman’s lien or right of retention.
APPLICABLE LAWS
This and all agreements related hereto between the Warehouseman and the Owner shall be governed by the laws and regulations applicable in the Province where the Goods received are stored.
INTERPRETATION
In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.
GENERAL PROVISIONS
12.1. If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.
12.2. Warehouseman’s failure to require strict compliance with any provision of these standard terms and conditions shall not constitute a waiver to later demand strict compliance with that or any other provisions of these standard terms and conditions.
12.3. These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns, provided the Owner may not assign its rights and obligations under these standard terms and conditions without the prior written consent of the Warehouseman.
ENFORCEMENT OF THE PRESENT AGREEMENT
Upon delivery of this warehousing agreement and acceptance of the rates and conditions disclosed in the quotation, the terms and conditions contained herein will become automatically in force.
Subject to the legislation in force governing warehousing in the province where the goods are stored, the terms and conditions hereinafter set out, when delivered or mailed (by electronic means or mail) to the Owner of the Goods, at his address last known to the Warehouseman shall constitute the agreement between the Owner and the Warehouseman provided that the Owner may, within ten (10) days after such delivery or mailing, notify the Warehouseman in writing that he does not accept the agreement and forthwith thereafter shall pay the Warehouseman’s lien or right of retention for charges and remove the Goods. If such notice is not given, then this agreement shall govern all Stored Goods.
Subject to the legislation in force governing warehouseman’s lien or right of retention in the province where the Stored Goods received are stored, the Warehouseman shall have a warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the goods to the warehouse and until all expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full.
4.1. All Goods are stored on a month-to-month basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month.
5.1. No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods.
6.1. The Owner of the Stored Goods or any person upon the written authority of the Owner may, subject to insurance regulations or other reasonable limitations imposed by the Warehouseman, have access to the Stored Goods for inspection thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.
7.1. The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.
8.1. All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever.
Without prejudice to any of the foregoing terms and conditions, the Owner shall indemnify and save harmless the Warehouseman from and against all costs, demands, liabilities, responsibilities and causes of action (including reasonable attorney’s fees and disbursements) arising out of or in connection with either, directly or indirectly, the Stored Goods, any other goods of the Owner or instructions of the Owner, including, without limitation, any dispute or litigation, whether instituted by Warehouseman or others, respecting Owner’s right, title or interest in the Goods. Such amounts shall be charged to the Owner in relation to the Goods and subject to Warehouseman’s lien or right of retention.
This and all agreements related hereto between the Warehouseman and the Owner shall be governed by the laws and regulations applicable in the Province where the Goods received are stored.
In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.
12.1. If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.
Upon delivery of this warehousing agreement and acceptance of the rates and conditions disclosed in the quotation, the terms and conditions contained herein will become automatically in force.