This contract for the purpose of ensuring the non-disclosure and performance of
the obligations (hereinafter referred to the “Contract”) is made by the relevant
parties as Shippinglot LLC which is situated at the address XXX
(hereinafter
referred to the “XXX”) in one side and XXX which is situated at the address XXX
(hereinafter referred to the “XXX”) in the other side on the date XXX. The
relevant parties of this contract hereby reached mutual agreement on the
belowstated
matters:
In addition to the aforesaid Mutual Contract of Non-Disclosure for Storage and
Performance, the terms and conditions of Storage, Logistics and Performance
(hereinafter referred to the “Terms and Conditions”) include the specific terms
and conditions in which Shippinglot LLC shall provide the storage and
logistics
services (hereinafter referred to the “Services”) which are clearly defined in
this
Contract either on its own or by means of its various subsidiaries and
promos
(hereinafter referred to the “XXX” jointly) for and on behalf of the present or
potential customers. Shippinglot LLC specifically retain the right to
alter,
change and append such Terms and Conditions without any further need of
serving additional notifications. The updated and valid version of the Terms and
Conditions are considered available at the website address XXX. The customers
are deemed undertook and accepted these valid and current Terms and
Conditions as of the date of performance whenever they provide and supply
commodities and services in this regard.
-
1. Descriptions of Terms.
The following terms are regarded as having the
meanings which are attributed to them in this contract as follows:
-
“Expenses”: The sums which are payable or which could be claimed
with
respect
to the related commodities and services including all sorts of
debts,
expenditures, advance payments, warehousing, shipping and logistics
expenses
to be incurred on behalf of the Customer or concerning the mentioned
commodities and services within the process of maintenance and sales
of the
related commodities and services in accordance with the laws and
regulations
which are valid and in force at that time or which shall be valid
and in
force at
any time in the future.
-
“Customer”: Any real-person individual, legal entity, corporation,
organization or
company for which the Commodities and Services are provided or
stored and
which are the parties of this Contract.
-
“Commodities”: The belongings, boxes, parcels, packages and similar
other
objects of the Customer which are utilized in order to provide and
supply the
relevant Services.
-
“Batches”: The items of commodities which are credited or accounted
individually by the Supplier.
-
2. Commodity and Service Suppliers.
The parties that supply the related
commodities and services in accordance with the Contract including their
promos, subsidiaries and associated units where promos, subsidiaries
and
associated units shall not have any responsibility or liability towards the
Customer in accordance with the Contract and the Terms and Conditions as
mentioned above. In addition to this, these promos, subsidiaries and
associated
units could not be kept liable on account of the actions or inactions of
Shippinglot LLC as well.
-
3. Supply of the Commodities.
-
(a) All of the commodities which are to be presented for the purpose
of
maintenance, handling and warehousing shall be solely transferred to
the storage
of the Supplier as shown in the Contract whenever these are wrapped
and
market in an appropriate manner to be specified by the Supplier. The
Supplier
shall use the original packages in order to maintain and transfer
such
Commodities.
-
(b) A declaration which contains the trademarks, dimensions,
denominations,
classifications and signs of the commodities shall be provided by
the Customer, if
an otherwise instruction is not given for these Commodities and
Services in the
Contract. In case the Contract does not contain such information or
instruction,
thereupon the Supplier shall be entitled to maintain and mix the
Commodities
either in diversified or combined manner and any potential
expenditures to be
suffered in this regard shall be applied in the prices and/or
proportions which are
expressed in the coverage of this Contract.
-
(c) If this matter is not stated, declared and undertaken in a
written form by the
relevant parties of this contract, then the separation of the
Commodities
according to the manufacturing data or other criteria shall not be
deemed under
the obligation of the Supplier whatsoever.
-
(d) It is guaranteed and undertaken by the Customer that the
Commodities which
are provided and supplied for the handling or maintenance purposes
are totally
free from any sorts of insects, bacteria or other kinds of polluting
agents and the
mentioned Commodities do not pose and/or shall not pose any risk and
peril for
the Supplier including its personnel, subsidiaries, promod and
associated firms
and units or for the storage itself. It is further undertaken by the
Customer to
compensate and keep harmless the Supplier, its managers, staff,
servants,
representatives, subcontractors, promod and associated units
(hereinafter
referred to the “Compensated Parties”) for and on account of all
kinds of
expenditures, damages, harms, losses, obligations, claims, cases or
other legal
processes to be suffered, incurred by and/or filed or initiated
against these
Compensated Parties, concerning or resulting from the infringement
of the
aforementioned guarantee, including but not limited to litigation
expenditures
and advocacy expenses at reasonable and acceptable sums.
-
4. Termination of Storage Services.
-
(a) On the condition of providing the prior written notice to the
Customer, the
Supplier shall be entitled to take away the related Commodities or
any part of
these commodities from the storage facilities on the date of
termination of the
duration of service storage which is determined in the Contract or
following the
expiration date of the XXX days beginning from serving this notice.
In case there
is any possibility that either the value or quality of the
Commodities shall worsen
within the course of time in proportion with the sums which are
specified in this
contract, then the Supplier, at its sole discretion, may also fix
any other period
for evacuation of the commodities from the storage facilities.
Before the date of
evacuation of the commodities, all of the related costs and
expenditures
concerning the Commodities and Services should be paid in advance.
Unless the
commodities are not evacuated as directed or stated and unless the
abovementioned
costs and expenditures are not paid completely without any delay,
then the Supplier shall have the right to dispose of the Commodities
through sale
and to perform the other appertained rights regarding these
mentioned
commodities in accordance with the laws and regulations which are
valid and in
force at that time.
-
(b) In case the Commodities shall pose any sort of risk either to
the persons or
properties in any manner, according to the reasonable consideration
of the
Supplier, then the Supplier shall be entitled to take the
Commodities away from
these places and locations in the legally allowable manner and in
which chase
the Supplier shall have no obligation or liability towards the
Customer as well.
Furthermore, the Customer shall be obliged to pay the
evacuation-related costs
and expenditures in full.
-
5. Places of Storage.
-
(a) The commodities which are maintained and stored in accordance
with the
Contract shall be kept in the stated structures, storages or depots
belonging to
the Supplier. The commodities could be stored anywhere inside or
outside the
exact positions which are specified in the mentioned field of
storage.
-
(b) The Supplier shall be entitled to change the places of the
commodities from
one section to another in the same storage facility, in case
otherwise is not
directed by the Customer to this effect.
-
6. Title of Commodities, Title Assignment and Delivery Conditions:
-
(a) The Customer shall keep the title to the Commodities if no
contrary provision
is inserted in the Contract. Any matter which is stated in the
Contract could not
be interpreted to imply or indicate any sort of restrictions or
forfeiture regarding
the encumbrances which are owned by the Supplier in accordance with
the laws
and regulations in force.
-
(b) The instructions to be given to the Supplier in written form are
considered
compulsory in order to assign the Commodities to the other parties
and the
expenditures relating to such assignments have to be also paid-up in
full in order
to effectuate such assignment transaction. Any such assignment to be
requested
shall contain a fee for this process. If there is not any signed
instruction which is
received from the Customer, the Supplier shall be free to disapprove
the
assignment of the Commodities towards or on behalf of any party.
-
(c) It is also possible to accept the delivery orders by telephone
upon the written
instructions of the Customer for empowering the Supplier in order to
perform
such delivery. In this case,
-
(i) Such telephone orders have to be verified in XXX
hours by the Customer upon the request of the Supplier and
-
(ii) the Customer shall bear the risk of ensuring the
accuracy of such
telephone orders. The Supplier and its promod and
associated firms and
subsidiaries shall not be kept liable for any cost or damage
arising from any
delivery which is made according to the authorized or
unauthorized order to
be placed by telephone. Besides, the Supplier is obliged to
implement the
required attention and diligence as shown for an identical
situation which
comprises identical Commodities.
-
(d) After placing the orders for the Commodities, the Supplier shall
have
appropriate period of time and shall have XXX days following the
delivery order
which specifies locating the Commodities incorrectly.
-
(e) The Commodities shall be subject to some storage expenses and
fines until
the delivery is properly completed in case the Supplier fails to
perform the
delivery appropriately within the required storage duration because
of the
reasons beyond its reasonable control.
-
(f) All of the delivery directions and demands of the Commodities
have to be
received as required concerning the encumbrance and guarantee
benefits of the
Suppliers and its promod and associated firms and subsidiaries.
-
(g) The Supplier and the Compensated Parties should be compensated
and kept
harmless by the Customer properly on account of the claims of rights
to be
initiated or filed about infringing the property rights of the
mentioned
Commodities. The Suppliers and its promod and associated firms
and
subsidiaries are always free to implement and seek any remedy
according to the
laws and regulations which are currently in force. The related
expenses and
expenditures to be paid by the Supplier in this regard in the
process of pursuing
and concluding such claims shall be at the cost of the Customer and
shall be
guaranteed by the encumbrances which are constituted by means of the
Terms
and Conditions.
-
(h) The Customer shall be able to supply a checklist in order to
confirm the total
cargo and item breakdown in the outgoing consignments. Unless this
action is
taken, then the records of the Supplier about the total cargo and
item breakdown
shall be considered valid and final.
-
(i) In case the request is made by the Customer to fulfill the
shipment of the
Consignments while it fails to state any certain shipping means or
company,
thereupon the Suppler shall have the freedom to choose any sort of
means of
transportation. All of the costs and expenditures of the transporter
as well as all
kinds of damages arising from any undue delay in the delivery
process shall be
under the sole responsibility of the Customer. The Customer agrees
and declares
that the Supplier shall not be responsible for any requests and
claims to be made
by the Customer due to the charges and expenses to be incurred in
the
transportation process and that it shall be the obligation of the
Customer to
follow and conclude the claims to be made regarding the transporter
or shipper
on this matter and the Customer shall not be entitled to keep the
Supplier or its
promod entities and subsidiaries liable for any sort of damages
and claims
whatsoever both at present and in the future.
-
7. Warehousing Expenses
-
(a) The invoices shall be issued as shown hereunder for various
services including
handling, warehousing and maintenance of the commodities and such
invoices
shall be payable whenever the invoice is received.
-
(b) If no contrary agreement is reached on this subject, then all of
the
commodities shall be maintained and warehoused on monthly basis.
There shall
be XXX USD / month cost for each box / parcel.
-
(c) If no other specific agreement is entered at this point, all of
the commodities
which are under ownership and possession of the Supplier, its
promod entities or
subsidiaries shall be maintained according to the ordinary rules and
implementations which are valid and in force in this organization
and either on
annual basis or with month-separated system. In case the warehousing
is chosen
on annual basis, then one complete month cost shall be charged for
each of the
moths of that year in which the commodities shall be maintained in
the
warehouse facility. In case of choosing the month-separated system,
then the
between the days 1 and 15, a complete one month cost shall be
charged. On the
other hand, for the commodities which are to be received between the
days 16
and the final day of that month, half-month can be charged. Apart
from that,
additional or different systems of charging the warehousing costs
could be also
brought and agreed by and between the relevant parties of this
contract as well.
-
(d) Unless otherwise stated, the prices which are provided by weight
shall be
calculated on gross weight basis and one ton shall imply XXX pounds
in this
regard.
-
8. Handling Expenses
-
(a) The handling expenses include the regular works which are
related with
taking over and transferring the Commodities in the storage facility
during the
working hours of that facility but exclude the works of loading and
unloading, if
no specific agreement is reached by the Supplier in the Contract or
in any other
contract.
-
(b) In addition to those which are specified in the above-mentioned
Article 8(a),
an additional expenses shall be requested for the other works to be
carried out
by the Supplier.
-
(c) Furthermore, the Supplier shall have the option to charge
additional costs for
any order or for a specific item of the order if there shall be any
sort of shortage
in quantity in the commodities received.
-
(d) Except for any other specific arrangement, the short-delivered
Commodities
by the Supplier shall be performed without any other classification
to be made.
-
(e) In case the commodities which are subject to particular freezing
conditions
are in question and if such specific conditions are not met, then
the Supplier shall
be entitled to charge an additional cost for this failure.
-
9. Wrapping and Transportation Expenses
-
(a) Shippinglot LLC and the shipping company shall specify
the transportation
expenses according to the preferred means of transportation and with
the prices
to be negotiated. Before consigning the commodities to the intended
destination
point, an estimation of the customs clearance expenditures could be
also made
by Shippinglot LLC for its customers but it is not
responsible for the subsequent
expenses which shall be incurred and paid to the port authorities
including the
taxes, dues, levies and other customs expenses to be invoiced.
-
(b) Shippinglot LLC shall invoice the Customer for each
parcel or batch to be
consigned. The prices which are stated in the invoices shall be
subject to
modifications with prior written notice as well.
-
10. Other Matters about Expenses and Payment Conditions
-
(a) The Customer shall be charged for the additional services at the
sole
discretion of the Supplier. Those services include but not limited
to the particular
storage locations or fabrics, recombination, overhauling, weight
scale
calculations, sorting or examination of the Commodities, additional
tests,
analyses, records and declarations for the quality and quantity of
the
Commodities, invoices for railway expenditures, handling costs and
shipping
commission fees.
-
(b) All of the expenses shall be stated in USD by the Supplier and
the invoices to
be issued shall be paid in USD by the Customers.
-
(c) All of the expenses shall be considered payable upon the receipt
of the
invoices and no reduction or discount shall be made from the sums
which are
specified on the invoices due to any claims, disputes at the
delivery, conflicted
matters or alleged loss or deterioration of the Commodities.
-
(d) A default interest shall be applied for the expenses which are
not paid on due
dates and the rate of such default interest shall be either 1.5% on
monthly basis
or at the highest rate which is permitted by the laws which are
currently in force.
-
(e) Other sale, utilization, property or other kinds of taxes,
levies, dues, tariffs
and any identical expenditures as well as the fines, interests and
other charges
to be accrued on them (hereinafter referred to the “Taxes”) which
are to be
charged for the Commodities which are the subject of this contract
are not
included in the expenses which are invoiced to the Customer and the
Customer
shall be responsible for all of these taxes in full. The Supplier,
its promod entities
and subsidiaries shall be held responsible by the Customer for all
of such taxes
and any related expenses and expenditures whatsoever irrespective of
their
manners or causes of occurrence. The Customer shall be kept liable
for all sorts
of losses, damages and claims to be incurred by the Supplier in any
manner
relating to these taxes and these taxes shall be deemed as
integrated
component of the Expenses and shall be further warranted by an
encumbrance
to be formed in accordance with the Terms and Conditions.
-
(f) The commodities shall be able to be examined by the Customer at
the storage
facilities according to the specific restrictions to be stated by
the Supplier and on
the condition of being under the supervision of a Supplier staff who
is appointed
for this purpose.
-
(g) In case any harm or loss are fund in the Commodities or in any
part of them in
the manner and nature to threaten soundness or quality of the
Commodities or
the properties or persons existing in the facility, according to the
final
consideration of the Supplier, then the Customer shall be obliged to
pay all of
such additional expenses and expenditures to be incurred by the
Supplier in
order to maintain those parts of the commodities or properties or
persons and to
avoid any further damage or loss in them. Whenever only one Customer
is not
responsible for such expenses and expenditures, then such expenses
and
expenditures shall be shared among them in proportion with their
roles in the
default in question or as to be determined solely by the Supplier.
-
(h) In case of outgoing consignments, the braces, fasteners or other
fixing items
shall be provided by the Supplier and their expenses shall be
invoiced to the
Customer.
-
(i) If additional expenses occur in loading, unloading, warehousing
and
processing transactions due to the damaged Commodities and if these
costs are
paid by the Supplier, then their sums shall be reimbursed to the
Supplier by the
Customer.
-
(j) With regard to bonded warehouse options, an additional expense
shall be
charged for warehousing and handling processes.
-
(k) The minimum charges could be taken into consideration for all of
the
warehousing, handling and other related services and works.
-
(l) The trade account shall be established for the expenses which
are specified
hereunder.
-
(m) It is herewith approved and accepted that the prices which are
fixed for the
Services as specified in the Contract by Shippinglot LLC are
essentially
dependent on the essential stipulations and main criteria which are
agreed by
the relevant parties of this Contract (hereinafter referred to the
“Operational
Criteria”). In case any modification or alteration shall be made in
those
Operational Criteria (which change may occur within the course of
time of
ordinary businesses) or if any “Modified Condition” takes place in
this regard
(which is also described hereinbelow) in the following manner:
-
(i) If such change or modification negatively influences the
capability of the
Supplier to perform the related and required services or
increases the burden of
the Supplier in terms of monetary expenses or liabilities,
or
-
(ii) If such change or modification diminishes the prices
and remunerations that
the Supplier should deserve in accordance with the Contract
under normal and
unchanged conditions,
Then, XXX shall serve to the Customer a written notification
to this effect. In such
notification, the potential influence of such modification
or change in the Criteria
or in the Conditions and also the respective expected
alteration to be caused due
to this change or modification in the currently valid prices
shall be clearly stated
by XXX (hereinafter referred to the “Notice”). In order to
avoid any confusion, as
mentioned in this Article 9(m), any expression to be
referenced to the term
“Modified Condition” shall have the following meanings:
-
(i) putting into force a new law, regulation or
statute or any modification to be
made in the laws, regulations or statutes which are
presently in force which takes
places following the date of performance of the
Services in accordance with this
contract by the relevant parties of this contract,
or
-
(ii) any modification, alteration or change to be
made in the approvals, consents,
rental agreements or similar other contracts and
permissions which are
essentially considered necessary in order to fulfill
the Services according to the
related terms and conditions of the Contract and
which takes places following the
date of execution of the Contract by the relevant
parties of this Contract.
In case any objection shall be raised by the
Customer against the suggested
alterations in the prices according to this Article
9(m), then the Customer shall be
obliged to serve a written notification about this
objection to XXX not later than
XXX days following the Notice. In case of failure of
the Customer in serving such
aforementioned notification in due period, thereupon
the relevant parties of this
contract shall continue to modify the Contract in
accordance with the said
changes or modifications in line with the
below-stated Article 20(e). In case the
said notification is properly served by the
Customer, then the amicable
discussions shall be carried out by the parties in
order to attain an agreement
concerning the suggested prices in XXX working days
following the receipt of the
notification of the Customer to this effect and the
parties shall use their best
efforts to handle the situation accordingly. As the
contrary provisions on this
subject in this Contract remain still valid, unless
the Parties reach a conclusion as
a result of the friendly negotiations as mentioned
above in XXX days period of
time as stated above, the Supplier shall be entitled
to terminate the Contract
which is influenced in that way by means of sending
a prior written notification to
the Customer appropriately and then the Customer
shall have to pay all of the
outstanding expenses and sums payable until the date
of termination of this
contract. Unless otherwise stated by the Supplier,
the undertakings regarding the
expected change or modification in the related
conditions and criteria shall not
be under the responsibility of the Supplier in any
manner as well.
-
11. Compensation
-
The Supplier, including all of its associated entities, subsidiaries
and agents, shall
be compensated and held harmless by the Customer for and against all
kinds of
damages and losses resulting from the Services or the performance
thereof,
including but not limited to the damage to the properties, personal
injuries or
development and progress losses or deformations in properties and in
connection
with the promotional, publicity, marketing, advertisement,
utilization, distribution
or sale losses and damages with respect to the Commodities concerned
in
question as well as the directions of the Customer concerning such
harmed,
damaged, compromised or lost commodities or those which are not
delivered on
predetermined due dates and which could not be attributed to the
failure,
negligence or lack of prudence of the Supplier either directly or
indirectly.
-
12. Damage Restriction and Obligation
-
(a) The Supplier and its promod entities, subsidiaries or agents
shall not be kept
responsible for any damage or loss of the commodities on account of
any reason
in case such damage or loss does not result from the direct
negligence or failure
of the Supplier party in performing the obligations which are
specified in the
contract with respect to the Commodities. The Supplier and its
promod entities,
subsidiaries or agents shall not be kept for the damages or losses
arising from
the failure in showing the reasonable extent of care in fulfilling
the related
obligations of the Contract.
Reserving the general meaning of the aforementioned provision, the
Supplier
shall have also no obligation for the damaged or lost Commodities
whenever:
-
(i) The cause of such damage or loss is any sort of
deficiency in the
wrapping or production conditions and processes of the
Commodities,
-
(ii) If such damage or loss could be attributed to the
shippers (either
contracted or hired in any other manner),
-
(iii) If the commodities are already consigned to the
Supplier in such
damaged or deformed condition,
-
(iv) If the hidden damage or database mistakes are deemed as
the root
cause of such damage or loss,
-
(v) If it is caused by the direct or indirect, deliberate or
undeliberate
misbehavior or failure of the Customer including its staff,
representatives, officers, agents and subcontractors (except
for the
Supplier itself), or
-
(vi) If such damages or losses are caused by the Force
Majeure
circumstances (which are described hereinunder) which are
beyond the
reasonable control of the parties of this Contract.
During any material inventory, all of the overages shall be set-off
against the
shortages in the mentioned material inventory towards the related
production
lines and all of the net overages as a consequence of any material
inventory
shall be transferred up and/or down in order to set-off the previous
and/or
future-oriented net material inventory shortages in turn.
-
(b) The Supplier and the Customer accept and undertake the required
level of
care which is required to be shown as stated in the aforementioned
Article
11(a) does not oblige the Supplier to supply any sprinkler system in
the
storage facility.
-
(c) If it is not otherwise stated and accepted in written form, then
the Supplier
shall not be obliged to maintain the Commodities in
humidity-monitored
atmosphere and shall not be kept for the deformation in the
Commodities in
any manner.
-
(d) If such seizure, confiscation or delays do not result from the
direct or
indirect delay or failure of the Supplier, then the Supplier may not
be held
liable for any seizure, confiscation or delays in the processes of
loading or
discharge of the pallets and trailers or any sort of delay in
getting the trailers
and pallets for the outgoing consignments.
-
(e) In case there is a certain legal responsibility of the Supplier,
its promod
entities, agents and subsidiaries for any damage or loss of the
commodities,
then the Customer herewith specifically agrees and undertakes that
the total
responsibility of the Supplier including its promod entities,
agents and
subsidiaries shall be restricted with the lower one of the
below-stated
amounts: (i) The expense which is spent by the Customer in the
replacement
or re-manufacturing of the mentioned lost or damaged commodity in
addition
to the reasonable costs of transportation of these commodities from
and to
the storage facility (on the condition of being within the current
market
prices), (ii) The acceptable market price of such damaged, destroyed
or lost
commodities as of the date on which the Customer is notified about
such
damage, destruction and/or loss, or (iii) XXX USD per pound for each
of the
mentioned damaged, destroyed and/or lost commodities.
-
(f) The Supplier and the Customer accept, declare and undertake that
they
have already discussed the reasonable restriction of obligation
dependent on
the total price of the Commodities as well as the mutual benefits of
the
relevant parties of this Contract and the prices to be charged. All
of the
subrogation rights are hereby waived by the Customer in the name of
its
insurers for any damage or loss which exceeds the restrictions of
obligation as
specified in this contract or such other restrictions of obligation
as stated in
the Contract.
-
(g) The only remedy of the Customer for the claims or actions to be
filed or
initiated against the Supplier and its promod entities, agents
and subsidiaries
on account of the loss, damage or destruction of the Commodities is
the
obligation which is mentioned in the above-stated Article 11(e) and
the same
shall be applied to all of the claims which include the inventory
shortages and
the claims for the disappeared items for unexplained reasons in case
the
Customer fails to evidence that the Supplier or its promod
entities, agents or
subsidiaries restored the Commodities to their initial intended
usage
purposes. The Customer also hereby renounces any sort of rights to
trust on
any assumption of transformations as imposed by the laws in force.
-
(h) Not only the Supplier but also the Compensated Parties shall be
compensated and held harmless by the Customer for and against all of
the
claims, no matter such claims are filed, for the lost, damaged or
destroyed
Commodities in the amounts which are higher than the restrictions
which are
defined in this Article 11. All of the damages or losses which are
suffered by
the Supplier or its promod entities, agents or subsidiaries
concerning such
claims shall referred to the Customer, shall be considered as an
integrated
component of the Expenses and further shall be also guaranteed by
the
encumbrance to be formed by the Terms and Conditions.
-
(i) The Supplier shall not be kept responsible against the Customer
for the
economic losses including the loss of income, loss of business,
merchantability, alternative transportation expenditures as well as
the
customer goodwill and any sort of particular, indirect and
consequential
damages and losses with regard to the Terms and Conditions, this
Contract or
the Services to be supplied in accordance with these Terms and
Conditions
and the Contract in any case irrespective of the fact that the
Supplier is
informed about such damages and losses or those claimed under any
legitimate means or other contractual commitments.
-
13. Claim Filing Process
-
(a) If these claims are not submitted in written form in the due
period of time
which could not exceed XXX days beginning from the earlier of the
following dates:
-
(i) the date on which the Supplier consigned the
Commodities to the customer or to its representative, agent
or any other
contracted party, or
-
(ii) the date on which the Customer is informed about
the damage, destruction or loss of the commodities or other
conditions
which cause such claims, then not only the Supplier but also
its promod
items, agents or subsidiaries shall not be kept responsible
for any kind of
claims relating to the commodities in question.
-
(b) The Supplier should be given the opportunity to examine the
Commodities
which are considered as the ground of the claims of the Customer as
a
precondition in order to initiate a legal action or to file a claim
by the
Customer.
-
(c) The Customer or the other parties are not able to file any claim
or initiate
any legal proceeding against the Supplier or its promod
entities, agents or
subsidiaries in the following cases:
-
(i) If the required written claim is not
filed in the due period of time which is stated in the
above-mentioned
Article 12(a),
-
(ii) If the Customer fails to present to the Supplier the
abovestated
opportunity to examine the commodities concerned properly as
stated in the above-mentioned Article 12(b) and
-
(iii) If the claim is not filed
or if the legal action is not initiated in XXX months period
of time beginning
from the earlier of the following dates:
-
(a) the date on which the Supplier
consigned the Commodities to the customer or to its
representative,
agent or any other contracted party, or
-
(b) the date on which the Customer is
informed about the damage, destruction or loss of
the commodities or
other conditions which cause such claims.
-
(d) The Supplier and the Compensated Parties shall be compensated or
held
harmless by the Customer for any claim of any kind to be filed out
of the
period of restriction. All of the damages or losses to be incurred
by the
Supplier or its promod entities, agents or subsidiaries
concerning such
claims shall referred to the Customer, shall be considered as an
integrated
component of the Expenses and further shall be also guaranteed by
the
encumbrance to be formed by the Terms and Conditions.
-
14. Insurance
-
In case the Supplier does not agree to provide such insurances on
behalf of the
Customer with regard to the Contract, then the Commodities shall not
be insured
and the prices to be charged to the Supplier shall not contain any
insurance fees.
The Supplier is herewith directed by the Customer not to make out
any sort of
insurance for the Commodities which are to be maintained and
warehoused in
accordance with this contract.
-
15. Encumbrance and Guarantee Benefit
-
(a) A first order general storage encumbrance (pledge) and guarantee
benefit in
the commodities shall be established by the Customer for the
Supplier and such
encumbrance and benefit shall also contain the maintenance,
carriage, handling
prices (including demurrage and terminal expenditures), labor,
insurance and
other sorts of expenses which are to be in question either at
present or in the
future concerning the Commodities, advance payments and borrowings
to be
secured and provided by the Supplier regarding the Commodities and
the
necessary prices for the storage and maintenance of the Commodities
or which
are incurred in their sales processes in accordance with the laws in
force. In
addition to this, another encumbrance (pledge) shall be established
on the
Commodities for the expenses, advance payments and expenditures
regarding
the properties which are maintained and warehoused by the Customer
in the
storage facilities which are owned or under the possession of the
Supplier or its
promod entities, agents and subsidiaries irrespective of their
exact locations and
irrespective of the time of locating them, whether these other
properties are
presently existing in the warehouse facilities or not.
-
(b) If any one of the Expenses is not paid on due date, then the
Supplier shall be
able to make use of the encumbrance by means of the sale of the
Commodities
on which the encumbrance is established, by means of pursuing legal
process, or
as provided by the laws in force. In case the Commodities shall be
sold as an
option, the Supplier shall serve notification to the Customer about
the payable
amount and the exact timing, location and nature of the suggested
sale process.
In all cases, at the sole discretion of the Supplier, the
encumbrance shall be
considered obtained within the city or region where the Commodities
are
maintained or warehoused on the date on which the encumbrance is
executed
and any sale process to be carried out shall be also performed in
that city or
region as well. All of the revenues to be obtained from the
Commodity sales shall
be utilized in order to satisfy the Expenses which are payable to
the Supplier and
the expenditures which are incurred by the Supplier as a consequence
of such
sale process. All of the revenues in excess of the above-mentioned
amounts
which are considered necessary in order to meet such sums shall be
transferred
into the accounts of the Customer properly. In case the required
sums could not
be obtained to pay these expenses as a result of the sale process,
then the
Supplier reserves the right to follow and recourse other sorts of
legal remedies in
order to obtain the complete range of the payable amounts.
-
16. Force Majeure Circumstances
In case the Supplier or the Customer shall be prevented or delayed to
perform
the obligations which are set forth in this contract on account of the
following
force majeure circumstances:
-
(a) warfare, public hostilities, terrorism actions,
riots, rebellions, burglaries of third parties, sabotage,
earthquakes, landslides,
natural disasters, floods, embargoes, law conflicts and labor
disagreements
(including strikes, lockouts and boycotts) or
-
(b) fires, air condition errors,
explosions, power interruptions, communication and power failures
including
heating, illumination and air-conditioning facilities (in case these
events which
are defined in the clause (b) are not because of the failure or
negligence of the
party that claims such relief in accordance with the Article 15) or
-
(c) other
situations or circumstances which are beyond the reasonable reach
and control
of the relevant parties of this contract (hereinafter referred to
the “Force Majeure
Circumstance” individually), thereupon the performance shall be
considered
suspended during the duration and in the coverage of the mentioned
force
majeure circumstances accordingly. This above-stated provision shall
not be
applicable to the monetary amounts which are owed by either party to
the other
party. The Supplier shall not be considered responsible for the
damages or losses
to the Commodities which are caused because of such aforementioned
Force
Majeure Circumstances and, on the other hand, the Customer shall
have the risk
of such damages and losses and shall have the obligation to make out
the
required insurances against such Force Majeure Circumstances as
well. In case
the Supplier shall try some other alternative methods in order to
maintain the
Commodities against the Force Majeure Circumstances, then the
Customer shall
be obliged to pay and cover all of the maintenance, warehousing,
handling and
similar other expense which are related with such other alternative
efforts of the
Supplier party.
-
17. Subcontracting
The Supplier shall have the option to use its parent company, promod
entities,
subsidiaries or other third-party providers and companies as subcontractors
for
all or some part of the Commodities or Services. In case the Supplier also
provides some customs commissioning or brokerage services relating the
Contract, then the Customer herewith empowers and delegates the XXX
(including all of its assignees and successors) in order to share the
records as
mentioned in 19 C.F.R., Chapters 111 and 163 including but not limited to
the
documents, papers, information and other details about the businesses of the
Customer including its parent company and associated and promod firms.
-
18. Dangerous Substances and other Commodities which are subject to
Regulations
In case the Supplier does not agree in the Contract to handle the dangerous,
hazardous or regulated commodities (which are described below in details),
then
the Supplier shall not process, accept, consign, transport, transfer,
maintain,
warehouse, arrange, dispose of or handle the following items and substances
in
any manner:
-
(a) any sort of dangerous substances, goods and materials
containing some specific hazards as regulated in the coverage of the
Chapter 49
of the Code of Federal Regulations (hereinafter referred to “49
CFR”) or the
International Civil Aviation Organization Technical Instructions for
the Safe
Transport of Dangerous Goods by Air and the International Air
Transport
Association (IATA) Dangerous Goods Regulation, or
-
(b) any other kinds of
commodities and substances that are to be regulated from time to
time by any
governmental authority, organization or corporation, including the
Commodities
that are regulated by the United States Food and Drug
Administration, the United
States Department of Agriculture, the United States Drug Enforcement
Administration, the United States Bureau of Alcohol, Tobacco,
Firearms and
Explosives and similar other regulating organizations and
administrations in the
territories in which the related Services are supplied (hereinafter
referred to the
“Dangerous, Hazardous or Regulated Substances”). It is herewith
agreed,
declared and guaranteed by the Customer that the Customer shall not
submit,
suggest or provide either directly or indirectly any sort of
Dangerous, Hazardous
or Regulated Substances to the Supplier, its promod entities,
agents and
subsidiaries in any manner in accordance with this Contract, apart
from those
which are particularly specified hereinunder. In addition to this,
it is also
declared, agreed and guaranteed by the Customer that it shall not
submit,
suggest or provide either directly or indirectly any kind of
“Dangerous Waste
Products” which are described in the Chapter 40 of the Code of
Federal
Regulations to the Supplier, its promod entities, agents and
subsidiaries in any
manner in accordance with this Contract on account of the fact that
the Supplier
shall not transport, transfer, accept, handle or maintain any one of
those
Dangerous Waste Products in any case. Reserving the general meaning
of the
aforementioned provision, the Supplier shall do any reasonable acts
which are
not in violation of the laws which are currently in force and which
are considered
by the Supplier useful or required regarding any real or threatened
Dangerous
Waste Products or Regulated Substances as well. The Supplier and the
Compensated Parties are hereby completely acquitted and released
from all sorts
damages and losses which may result from (i) The failure of the
Customer to
inform the Supplier in written form within XXX days period of time
about
providing, submitting or suggesting such Dangerous, Hazardous or
Regulated
Substances by the Supplier or by the other parties, or (ii) The
reasonable acts of
the Supplier which are not in violation of the laws which are
currently in force and
regarding the real or threatened Dangerous Waste Products or
Regulated
Substances concerning these Commodities. The Customer agrees to
defend and
keep harmless both the Supplier and the Compensated Parties from and
against
all of the damages and losses resulting from (1) any act of the
Supplier towards
such real or threatened Dangerous Waste Products or Regulated
Substances,
apart from the coverage which any one of such damages or loss arise
from the
deliberate actions or negligent actions at the Supplier side, (2)
the failure of the
Customer in complying with the related laws and regulations which
are presently
valid and in force, or (3) the infringement of any undertaking or
commitment of
the Customer as included and declared in this Article 17.
-
19. Laws of Importation and Exportation.
-
(a) It is agreed and undertaken by the relevant parties of this
contract that all of
the actions and transactions to be carried out and performed in the
coverage of
this contract, including those regarding the exportation,
importation,
transshipment, transit, transfer, delivery or acceptance of all of
the Commodities
in addition to the technology and software items which are supplied
to the
Supplier by the Customer or in its name (hereinafter referred to the
“Technology
and Software Items”) shall be subject to the applicable laws both
inside and
outside the United States including those statutes, laws and
regulations,
decisions, decrees and orders of the governmental authorities and
judicial
organizations or the other decisions and decrees which are still
deemed in force
in any country or territory in question (hereinafter referred to the
“Laws” with
regard to the intended targets of this Article 19) in relation with
the importation
and exportation of the Commodities, Technology and Software Items
including
the laws regarding the exportations and sanctions in economic nature
as well as
the Laws of customs procedures (hereinafter referred to the “Laws of
Importation
and Exportation”).
-
(b) The Customer hereby undertakes, declares and agrees:
-
(i) To take actions as the importer, exporter or other
primary party (according to
different cases) in accordance with all of the Laws of
Importation and Exportation.
-
(ii) The Customer is considered liable for observing the
Laws of Importation and
Exportation regarding the exportation, importation,
transshipment, transit,
transfer, delivery or acceptance of the related commodities,
technology and
software items from any relevant country in question:
-
(iii) The Customer is individually liable for (a) making the
accurate classification
according to the Laws of Importation and Exportation, (b)
getting all of the
necessary licenses and the other authorizations and
approvals, permits and
permissions for the purposes of the exportation,
importation, transshipment,
transit, transfer, delivery or acceptance of the related
commodities, technology
and software items, (c) arranging, completing and submitting
all of the proper
and accurate documents and papers for the governmental
agencies which are
considered necessary classification according to the Laws of
Importation and
Exportation, and (d) making sure that all of the documents
and papers relating to
the exportation issues, including the consignment and sales
documents and
papers which are issued and arranged regarding the Services
which are carried
out and fulfilled in accordance with the Contract, are in
compliance with and
maintained in line with the Laws of Importation and
Exportation in full.
-
(iv) It shall be considered the responsibility of the
Customer to supply the correct
instructions to be given in written form to the Supplier and
the shipper before the
exportation, importation, transshipment, transit, transfer,
delivery or acceptance
of the related commodities, technology and software items
and these mentioned
instructions shall comply with the Laws of Importation and
Exportation and these
instructions shall specify all of the information which are
necessary for the
Supplier to observe the mentioned Laws regarding the
processes of exportation,
importation, transshipment, transit, transfer, delivery or
acceptance as well, and
-
(v) Without changing the general meaning of the contrary
provisions which are
specified and inserted in the Contract and in the Terms and
Services, the
Customer shall compensate and keep harmless the Supplier as
well as the
Compensated Parries for and against all of the damages,
losses, investigations
and similar other processes resulting from or concerning any
one of the following
circumstances and events: (a) the infringement of the
Customer of this Article 19,
(b) The compliance of the Supplier or the shipper with the
instructions of the
Customer concerning the exportation, importation,
transshipment, transit,
transfer, delivery or acceptance of the related commodities,
technology and
software items, or (c) the failure of any governmental
personnel including any
employee who represents and acts on behalf of any
governmental organization in
the United States or other countries, regarding the
exportation, importation,
transshipment, transit, transfer, delivery or acceptance of
the related
commodities, technology and software items.
-
20. Guarantees
All of the guarantees of the relevant parties of this contract which are
specifically
stated in the Contract and in the Terms and Conditions are the only
guarantees
which are made by the relevant parties of this contract and for all of the
other
guarantees, direct, indirect, implied or actual guarantees or guarantee for
particular purpose of usage and merchantability and those of title or
nonviolation
or those resulting from the way and method of performance, course of
processing, utilization or commercialization.
-
21. Commissioning Fees for Transport
It is herewith agreed and declared that the Customer could make use of the
Supplier in order to fulfill some specific commissioning services
(hereinafter
referred to the “Commissioning Services”) in order to arrange and find, as a
commissioning agent, particular motor transportation services to be carried
out
and operated by the third-party motor transporters (hereinafter referred to
the
“Transporters”) in order to carry and consign the cargoes of the Customer
and/or
its customers to, from and between various addresses and locations to be
determined by the Customer in 48 states of the United States in accordance
with
the prices which shall be fixed in written form by means of the mutual
agreement
of the Supplier and the Customer. In which case, the sums which are deemed
payable for such Commissioning Services shall be reimbursed by the Customer
according to the Contract and the Terms and Conditions. Relating to this
subject,
the Customer shall be able to submit a cargo suggestion for carriage to be
transmitted by the Customer to the Supplier in written form and this
suggestion
could be also sent by means of the electronic means of communication
(hereinafter referred to the “Cargo Suggestion”). After receiving this Cargo
Suggestion from the Customer, the Supplier shall make its best efforts
commercially in order to arrange the required motor transporter services
from
the Transporters with regard to the cargoes which are defined in such Cargo
Suggestion (hereinafter referred to the “Cargo”) according to the criteria
which
are also stated in this Cargo Suggestion. In case and in the coverage of the
capability of the Supplier to manage this arrangement, then the Supplier
shall
approve its terms properly to the Customer in written form and such approval
could be sent in electronic environment as well. Whenever the Supplier
issues
and sends this approval for the Cargo Suggestion, the related provisions of
the
Contract including the Terms and Conditions shall be considered integrated
parts
of such Cargo Suggestion in order to administer its conditions. In addition
to this,
in case no arranged agreement or written Cargo Suggestion is received by the
Supplier, then using the Transporter which is arranged and organized by the
Supplier for the Customer shall imply the indirect acceptance and agreement
of
the Customer of the prices, conditions and rules of the Contract and the
Terms
and Conditions. In the process of utilization of the commissioning services
of the
transporters in this contract, the Supplier shall affirm and declare that
the
Transporters have the required motor transportation powers and permits which
are issued and accepted by the United States Department of Transportation
(if it
is not exempted from the mentioned obligation) and the insurances with
-
(a)
cargo insurance with the minimum liability limit amount of XXX USD
per
occurrence,
-
(b) vehicle liability obligation with the minimum amount of XXX USD
per occurrence as combined single limit physical injury and property
damages,
and
-
(c) extensive general liability with the minimum liability limit
with the
amount of XXX USD per occurrence.
Each of the transporters which are chosen
by the Supplier in order to carry the cargoes of the Customer shall be
responsible
for the actual damages and losses to be suffered by the commodities of the
Customer as stated in this contract but not the Supplier. Each one of the
foregoing liabilities of the Transporters shall be considered started upon
loading
the commodities of the Customer into the trailer or trailers of that
Transporter
with the sound seals. With respect to this aspect, the Customer agrees and
undertakes that the relevant rights and obligations of the Parties regarding
the
commissioning services shall be deemed subject to the Commissioning Terms
and Conditions which are published in electronic environment on the official
website address of the Supplier at XXX, as altered, modified, added or
changed
from time to time (hereinafter referred to the “Commissioning Terms and
Conditions”). The aforementioned Commissioning Terms and Conditions are
considered inserted in the Terms and Conditions by reference as if the
Commissioning Terms and Conditions are originally stated in them with
complete
coverage. The Supplier reserves the right to change, alter, add or modify
these
Terms at any time at its discretion without serving any sort of prior
written
notification as well. By means of delivering the Cargo Suggestion to the
Supplier,
the Customer accepts these Terms including the Commissioning Terms and
Conditions which are valid and in force at the time of delivering this Cargo
Suggestion to the Supplier. In case any dispute of disagreement shall occur
between the Commissioning Terms and Conditions and the Terms and Conditions
or this Contract regarding the Commissioning Services, then the
Commissioning
Terms and Conditions shall be considered valid and prevailing one.
-
22. Miscellaneous Provisions
-
(a) The failure of the Supplier on putting pressure in order to
ensure the complete
compliance with the provisions of the Contract and those of the
Terms and
Conditions shall not form any waiver to demand compliance with them
again in
the future and shall not form any waiver to ensure compliance with
all of the
other remaining provisions of the Contract and those of the Terms
and
Conditions.
-
(b) In case any article of the Contract or that of the Terms and
Conditions or any
component of them shall be hold invalid, illegal or inapplicable,
then the validity,
legality or applicability of the remaining articles or chapters of
them shall not be
influenced or harmed by that in any manner.
-
(c) It is agreed, declared and guaranteed by the Customer that
either (i) it is the
legitimate owner of the Commodities and these are not subject to any
sort of
encumbrance, mortgage, pledge or other interests, or (ii) it is the
competent
agent of the legitimate owner and that of the encumbrance or pledge
holders
(these encumbrances, pledges or other interests are herewith
subordinated to
the encumbrances, pledges or other interests of the Supplier) and
further is has
the complete right and power in order to make the Contract. The
Customer also
agrees to serve notification to all of the relevant parties
obtaining interests in the
Commodities about the terms and conditions of the Contract
(including the Terms
and Conditions) and to receive the agreement of such parties to
comply with and
observe the terms and conditions of the Contract (including the
Terms and
Conditions) as a precondition of giving such interests.
-
(d) All kinds of necessary notifications to be provided in this
contract shall be
served by means of reasonable ways and methods of communication and
sent to
XXX at the address XXX to the attention of XXX and to the Customer
at its most
recent address. The Customer is considered that it is already
familiar with all of
the notices which are sent in accordance with this Article 20(d)
upon receipt or in
XXX days following transmitting them, whichever shall occur firstly.
If the
applicable laws do not require any longer period of time, then XXX
days of notice
for any sale or disposal shall be considered quite reasonable,
however still the
notifications with shorter periods could be also served if it is
required by the
conditions and nature of the Commodities.
-
(e) The respective terms and conditions of the Contract and those of
the Terms
and Conditions shall be considered valid and binding on the
Customer, its
assignees, agents, representatives and successors and these could be
modified
only by means of a written document which is arranged by the
relevant party.
Such modifications and changes shall be deemed binding and effective
on the
Supplier whenever it is duly signed by an authorized employee of
XXX.
-
(f) The below stated rules of interpretation shall be valid for the
Contract and the
Terms and Conditions as follows: (i) All expressions which are
stated in singular
shall contain also plural forms and vice versa, according to the
contextual
requirements, (ii) unless otherwise specified, all of the references
and uses of the
term “days” shall imply the calendar days only, (iii) all of the
headings and
chapters which are put forward in this Contract and in the Terms and
Conditions
are inserted for reference convenience purposes only and these shall
not be used
to interpret the essential meaning of the Contract or the Terms and
Conditions or
any integrated component of them, (iv) The expressions “include” and
“including” shall be construed with the meaning of “include, without
any
restriction” and “including, without any restriction” respectively,
and (v) the
expressions “herein”, “hereinunder”, “hereunder” and “hereto” and
similar other
words shall refer to the Contract (including its annexes and
appendixes) and the
Terms and Conditions in its entirety and these could be modified,
changed,
added and altered from time to time as well and shall not refer to
only a
particular chapter, article or clause which are included in the
Contract or the
Terms and Conditions. Both the Customer and the Supplier agree that
they
looked for and obtained all kinds of required recommendations and
suggestions
to be required in order to constitute the complete comprehension of
all of the
rights and obligations in this contract and that the arrangement and
formation of
this Contract (including the Terms and Conditions) have been
achieved as a
consequence of the collective efforts of the relevant parties of
this contract. The
wording which is agreed in order to express their reciprocal
intentions and
purposes as well as the resulting document shall not be interpreted
more strictly
for any one of the parties than the other party in any manner as
well.
-
(g) It is not possible and it is not allowed to transfer and assign
the rights and
obligations of the Customer to a third party without obtaining the
prior written
approval of XXX in accordance with this Contract (including the
Terms and
Conditions). No provision of this Contract or the Terms and
Conditions shall be
interpreted to form any right with regard to any other party than
the Supplier and
the Customer and the Contract and the Terms and Conditions shall not
be
regarded as to the benefit or interest of any other third party.
-
(h) The Contract and the Terms and Conditions shall be interpreted
and governed
according to the laws of the State of XXX without any reference to
the principles
of conflicts of law. In order to encourage equitable solution of the
jurisdiction
processes which may occur in this contract, each of the parties
herewith waives
any rights to make application for the trial by jury during the
litigations. In case of
any action, legal proceeding or any other claims to be initiated or
filed to obtain
relief regarding the Contract and the Terms and Conditions
(including the
insolvency, dissolution, bankruptcy, liquidation or arrangement
processes), then
the prevailing party of these processes shall pay all of the
advocacy fees,
litigation expenses and expenditures and the other related costs and
expenses
which are incurred in each of these actions, proceedings and claims
to be
initiated or filed as a component of the court decree or decision.
Any sort of
disputes, differences, claims or disagreements which may occur
between the
Customer and the Supplier in any manner concerning the Terms and
Conditions
or this contract shall be presented to the court of XXX in XXX which
has the
required jurisdiction on the matter in question. In case of any such
dispute or
disagreement, the Customer accepts acknowledging services outside
the state
according to the current rules of civil procedures and the state
law, as the case
requires. The related provisions of this contract shall continue to
be valid even
following the termination or expiration of the Contract as well.
-
(i) The Contract (including the Terms and Conditions) cancels and
invalidates all
of the previous discussions, agreements, contracts, protocols,
commitments and
declarations which were made by and between the Customer and the
Supplier
regarding the subject of this contract. The parties agree that there
is no verbal
contracts or declarations or commitments between the relevant
parties of this
contract in the manner of influencing the Contract or the Terms and
Conditions in
any manner. As the generality of the aforementioned provisions is
maintained,
apart from those which are specifically stated in the Terms and
Conditions, any
expressions or terms which are printed on the carriage documents and
papers
such as waybills or delivery and transport vouchers including those
which are
arranged and delivered by the Customer, the Supplier, any
transporter or shipper
or service provider of the Supplier shall not in any way alter or
cancel the terms
of the Contract (including the Terms and Conditions) and such
documentations
shall be regarded as the receipt papers only.
Shippinglot LLC |
|
By: |
XXX |
Name and Surname: |
XXX |
Position: |
XXX |
Date: |
XXX |
Company: |
XXX |
By: |
XXX |
Name and Surname: |
XXX |
Position: |
XXX |
Date: |
XXX |