TERMS AND CONDITIONS
All property and other items are accepted by Jimmy Santos, Inc. d/b/a Santos International (the “Company”) for storage only under the following terms and conditions, and further subject to the provisions of Chapter 7 of the Texas Business and Commerce Code. The act of tendering goods and/or products to the Company, and or placing or storing goods and/or products with the Company, whether or not an agreement has been fully executed by the parties hereto, shall constitute the depositor’s acceptance of the terms set forth herein.
TENDER FOR STORAGE
1.1 The Company makes no representations or warranties regarding the goods or property received by it for storage. All goods are stored at the depositor’s sole risk. For the avoidance of doubt, the depositor acknowledges that all goods and property are received by the Company in and of a quality, quantity, content or condition which is unknown to the Company.
1.2 The depositor shall furnish, at or prior to delivery of its goods or property, a manifest showing marks, brands or sizes to be kept and accounted for separately and the class of storage desired. If the depositor does not provide such a manifest, the goods or property may be stored in bulk or assorted lots in freezer, cooler or general storage at the discretion of the Company, and charges for such storage will be made at the applicable storage rate.
1.3 Receipt and delivery of all or any goods or property shall be made without subsequent sorting except by special arrangement and subject to an additional charge. The Company will store and deliver Goods only in the packages in which they are originally received unless otherwise agreed to in writing.
1.4 Unless depositor shall have given, at or prior to delivery of the goods or property, written instructions to the contrary, the Company, in its discretion, may commingle and store in bulk different lots of goods or property, whether or not owned by the same depositor.
1.5 Unless the Company expressly agrees otherwise, any goods or products stored by the Company without charge, or solely for the benefit of the depositor, shall be stored without any obligation of the Company to maintain or care for such goods or products. Further, the Company shall have no obligation to guard or keep such goods or products free from waste, destruction or wear and the depositor waives any and all claims, including claims for damages, lost profits and the like, related to the storage, handling or loss of any such goods or products.
1.6 No goods shall be shipped to the Company as a named consignee.
1.7 A depositor shall notify the Company of the characteristics of any goods and/or products that may in any way be likely to cause damage to the Company’s facility or to other products that may be stored by the Company. The Company may refuse to accept any goods and/or products that, because of infestation, contamination or damage, might cause infestation, contamination or damage to the Company’s facility or to other goods or products in the custody of the Company and shall immediately notify a depositor of such refusal and shall have no liability for any demurrage, detention, transportation or other charges by virtue of such refusal.
STORAGE PERIOD AND CHARGES
2.1 Storage charges become applicable upon the date that the Company accepts care, custody and control of goods and/or products, regardless of unloading date or date of issuance of warehouse receipt.
2.2 In the event of an increase in the Company’s: (a) utilities rates; (b) electricity supply rates; (c) natural gas supply rates; (d) water supply rates; and/or (e) any and all government mandates, depositor’s storage fees will increase in an amount equal to such increase.
2.4 In the event of any change in the regulatory or legal rules applicable to a depositor, the Company and/or the products that results in increased costs to the Company, or in the event that a depositor requests additional specifications from the Company, whether as a result of its internal changes or directions from its customers, then Company shall have the option to charge all of the increased costs to the depositor.
2.5 The depositor shall be responsible for such other services rendered that are not otherwise agreed upon by the Company or for such other services that, in the Company’s opinion, are in the interests of the depositor or its products, at the Company’s then applicable rates. Such services may include, but are not limited to, the following: furnishing of special warehouse space or material, handling, packing, repairing, sampling, weighing, re-piling, inspecting, compiling stock statements, making collections, reporting or recording marked weights or numbers and handling shipments.
2.6 Except as otherwise agreed by Company in writing, a full month’s storage charge will apply on all goods received and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
2.7 When mutually agreed by the Company and the depositor, a storage month shall extend from a date in one calendar month to, but no including the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
2.8 Unless otherwise specified or elected by the Company, handling charges cover only the ordinary labor and duties incidental to receiving and delivering unitized goods and products on pallets at the warehouse dock during normal warehouse hours but do not include services outside of normal business hours and any additional work performed by the Company.
2.9 Other services rendered in the interest of depositor or its goods or products are chargeable to depositor. Such services may include, but are not limited to, the following: furnishing of special warehouse space or material, repairing, coopering, sampling, weighing, re-piling, inspecting, compiling stock statements, making collections, furnishing revenue stamps, reporting or recording marked weights or numbers, handling railroad expense bills and handling shipments.
2.10 In the event of damage or threatened damage to its products or goods, the depositor shall pay all reasonable and necessary costs of protecting and preserving such products or goods. When the costs of protecting and preserving stored property are attributable to more than one depositor, said costs shall be apportioned among all affected depositors on a pro rata basis to be determined by the Company.
2.11 The depositor agrees to pay the Company all costs and advances including reasonable attorneys’ fees incurred by the Company in connection with the storage, handling and/or disposition of the depositor’s goods or products, including without limitation, such costs, advances and/or fees relating to lawsuits (including Bankruptcy proceedings) involving in any way said goods or products and/or depositor’s performance under its agreement with the Company.
2.12 The Company shall have a lien against all goods and products and on the proceeds thereof for all charges for storage, handling, transportation (including demurrage and terminal charges), insurance, labor and other charges present or future with respect to such goods and products, advances or loans by the Company in relation to such goods or products and for expenses necessary for preservation of the goods or products or reasonably incurred in their sale pursuant to law. The Company further claims a lien on the goods and products for all such charges, advances and expenses in respect to any other property stored by depositor in any warehouse owned or operated by the Company, or its subsidiaries, wherever located and whenever deposited and without regard to whether or not said other property is still in storage.
TRANSFER, TERMINATION OF STORAGE,
REMOVAL OF GOODS
3.1 Instructions to transfer goods on the books of the Company, and all charges up to the time transfer is made are chargeable to the depositor of record. If a transfer involves re-handling, the goods such will be subject to a charge. When goods in storage are transferred from one party to another through issuance of a new warehouseman receipt, a new storage date is established on the date of transfer.
3.2 The Company may, upon written notice to the depositor of record and any other person known by the Company to claim an interest in the goods, require the removal of any goods by the end of the next succeeding storage month. Such notice shall be given to the last known place of business or abode of the person to be notified. If goods are not removed before the end of the next succeeding storage month, the warehouseman may sell them in accordance with applicable law.
3.3 If the Company reasonably believes that the goods are about to deteriorate or decline in value to less than the amount of the statutory warehouseman’s lien before the end of next succeeding storage month, the Company may specify in the notification any reasonable shorter time for removal of the goods and in case the goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
3.4 If, as a result of a quality or condition of the goods of which the Company had no notice at the time of deposit the goods are a hazard to other property or to the warehouse or to persons, the Company may sell the goods at public or private sale without advertisement on reasonable notification to all persons know to claim an interest in the goods. If the Company after a reasonable effort is unable to sell the goods, it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the goods, the Company may remove the goods from the warehouse and shall incur no liability by reason of such removal.
3.5 The Company may, upon written notice, as required by law, require the removal of the goods or products, or any portion thereof, from the warehouse upon the failure to make payment of all charges attributable to said goods and products within a stated period, not less than thirty (30) days after such notification. If said goods and products are not so removed, the Company may sell them as abandoned goods as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said goods and products.
3.6 If, in the opinion of the Company, a depositor’s goods or products may be about to deteriorate or decline in value to less than the amount of the Company’s lien thereon, or may constitute a hazard to other property or to the warehouse or persons, the goods or products may be removed or disposed of by the Company as permitted by law. All charges related to said removal shall be paid by the depositor.
3.7 Instructions by the depositor to transfer goods or products to the account of another are not effective until delivered to and accepted by the Company. Charges will be made for each such transfer and for any re-handling of goods and products deemed by the Company to be required thereby. The Company reserves the right to decline to deliver or transfer goods or products to or for the account of others, except upon receipt of written instructions properly signed by depositor.
3.8 The Company shall have a reasonable time to make delivery after goods or products are ordered out and shall have a minimum of ten (10) business days after receipt of a delivery order during which to locate any misplaced goods or products. If the Company has exercised reasonable care and is unable, due to causes beyond its control, to effect delivery before expiration of the current storage period, the goods or products will be subject to storage charges for each succeeding storage period.
3.9 All instructions and requests for delivery of goods or products, or for transfer of title, are received subject to satisfaction of all charges, liens and security interests of the Company with respect to the goods or products, whether for accrued charges, advances or otherwise.
3.10 The Company may require, as a condition precedent to delivery, a statement from the depositor holding the Company harmless from claims of others asserting a right superior to the depositor for possession of the goods or products. Nothing herein shall preclude the Company from exercising any other remedy it may have available to it for resolving conflicting claims to possession of the goods or products. All costs, including attorneys’ fees, incurred by the Company relating in any way to the Company’s activities referred to in this Section 3.10 shall be charged to depositor shall attach as a lien on the goods and products.
4.1 The handling charge covers the ordinary labor involved in receiving goods at warehouse door, placing goods in storage, and returning goods to warehouse door. Handling charges are due and payable on receipt of goods.
4.2 Unless otherwise agreed, labor for unloading and loading goods will be subject to a charge. Additional expenses incurred by the warehouseman in receiving and handling damaged goods, and additional expense in unloading from or loading into cars or other vehicles not a warehouse door will be charged to the depositor.
4.3 Labor and materials used in loading rail cars and other vehicles are chargeable to the depositor.
4.4 When goods are ordered out in quantities less than in which received, the Company may make an additional charge for each order or each item of an order.
4.5 The Company shall not be liable for demurrage, delays in unloading or loss or waste unless the damage is the result of the Company’s gross negligence.
4.6 In the event that a depositor requires any change in its designated space requirements at the Company’s facility, it shall provide the Company with ninety (90) days advance written notice of the requested change. If the Company is unable or unwilling to provide the change, the Company shall notify the depositor.
5.1 No goods shall be delivered or transferred except upon receipt by the Company of complete instructions properly signed by the depositor. However, when no negotiable receipt is outstanding, goods may be delivered upon instructions by telephone in accordance with a prior written authorization, but the Company shall not be responsible for loss or error occasioned thereby.
5.2 When a negotiable receipt has been issued no goods covered by that receipt shall be delivered, or transferred on the books of the Company unless the receipt, properly indorsed, is surrendered for cancellation, or for indorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed delivery of goods may be made only upon order of a court of competent jurisdiction and the posting of security approved by the court as provided by law.
5.3 When goods are ordered out a reasonable time shall be given the Company to carry out instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond the Company’s control, or because of loss or destruction of goods for which the Company is not liable, or because of any other excuse provided by law, the warehouseman shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
EXTRA SERVICES (SPECIAL SERVICES)
6.1 Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor.
6.2 Special services required by depositor including but not limited to compiling of special stock statements, reporting marked weights, serial numbers or other data from packages, physical check of goods, and handling transit billing will be subject to charge.
6.3 Dunnage, bracing, packaging materials or other special supplies, may be provided for the depositor at a charge in addition to the Company’s cost.
6.4 By prior arrangement, goods may be received or delivered during other than usual business hours, subject to a charge.
6.5 Communication expense including postage, teletype, telegrams, or telephone, will be charged to the depositor if such concern more than normal inventory reporting or if, at the request of the depositor, communications are made by other than regular United States Mail.
6.6 Unless specifically agreed to in writing, the Company shall not be required to store goods or products in a humidity-controlled environment or be responsible for tempering such goods or products.
6.7 Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor. Special service requested by the depositor, including, but not limited to, compiling of special stock statements, reporting marked weights, serial numbers or other data from packages, physical check of goods and/or products, special data entry, customer communications and handling transit billing will be subject to additional charges to the depositor.
6.8 Dunnage, bracing, packing material or other special supplies will be provided for the depositor at charges in addition to the Company’s cost. Unless boxes, pallets or other concealed containers are packaged by the Company, the Company shall not be liable for any loss or damage. The Company shall not be liable for damages due to mold, mildew, cracking of joints or veneer, pad imprints or surface blemishes due to build-up or deterioration from long term storage.
7.1 The Company does not handle in bond merchandise
7.2 All products and goods shall be stored at the Company’s discretion at any one or more buildings at the Company’s warehouse. The identification of any specific location within Company’s warehouse does not guarantee that the products or goods shall be stored therein.
7.3 The Company may, at any time, at its expense, and without notice to depositor, remove any products or goods from any room or area of its warehouse to any other room or area thereof.
LIABILITY AND LIMITATION OF DAMAGES
8.1 THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS, PACKING MATERIALS OR OTHER MATERIALS PACKAGED OR STORED, HOWEVER CAUSED, UNLESS SUCH LOSS OR INJURY RESULTED FROM THE COMPANY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT. THE COMPANY IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF COMMERCIALLY REASONABLE CARE.
8.2 GOODS ARE NOT INSURED BY THE COMPANY AGAINST LOSS OR INJURY HOWEVER CAUSED. THE DEPOSITOR DECLARES THAT DAMAGES RELATING TO ERRORS IN PACKAGING ARE LIMITED TO THE COSTS OF REPACKAGING. ALL OTHER DAMAGES ARE LIMITED TO FIFTY CENTS ($0.50) PER POUND PROVIDED OR ACTUAL DAMAGES, WHICHEVER IS LESSER.
8.3 THE COMPANY DOES NOT GUARANTEE QUALITY OF THE GOOD OR PRODUCTS, WHETHER BEFORE OR AFTER STORAGE.
8.4 THE COMPANY MAKES NO REPRESENTATINS OR WARRANTIES ON GOODS RECEIVED FOR PACKAGING AND STORAGE AND THEREFORE DEPOSITOR SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES OF EVERY KIND, FOR INJURY TO OR DEATH OF ANY PERSON OR PERSONS AND FOR DAMAGE TO OR LOSS OF PROPERTY, ARISING OUT OF OR ATTRIBUTED, DIRECTLY OR INDIRECTLY TO DEPOSITOR’S AND/OR DEPOSITOR’S AGENT’S HANDLING OF THE GOODS.
8.5 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DEPOSITOR WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER AGAINST THE COMPANY ANY SPECIAL, DIRECT, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. DEPOSITOR ACKNOWLEDGES AND AGREES THAT ITS ACTUAL DAMAGES, IF ANY, SHALL IN NO EVENT EXCEED THE AMOUNTS ALREADY PAID TO THE COMPANY BY DEPOSITOR.
8.6 IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO GOODS OR PRODUCTS FOR WHICH THE COMPANY IS LEGALLY LIABLE, DEPOSITOR DECLARES THAT COMPANY’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST OF GOODS OR PRODUCTS; OR (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND/OR DESTROYED GOODS ON THE DATE DEPOSITOR IS NOTIFIED OF LOSS, DAMAGE AND/OR DESTRUCTION. The Company’s liability herein shall be depositor’s exclusive remedy against the Company for any claim or cause of action whatsoever relating to loss, damage and/or destruction of goods or products and shall apply to all claims including inventory shortage and mysterious disappearance claims unless depositor proves by affirmative evidence that the Company converted the goods or products to its own use. The depositor waives any rights to rely upon any presumption of conversion.
8.7 As a condition precedent to making any claim and/or filing any suit, depositor shall provide the Company with a reasonable opportunity to inspect the goods or products which are the basis of the depositor’s claim.
8.8 NO LAWSUIT OR OTHER ACTION MAY BE MAINTAINED BY DEPOSITOR OR OTHERS AGAINST THE COMPANY WITH RESPECT TO THE GOODS OR PRODUCTS UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN THIS SECTION 8.8 AND UNLESS DEPOSITOR HAS PROVIDED THE COMPANY WITH A REASONABLE OPPORTUNITY TO INSPECT THE GOODS AND PRODUCTS AS PROVIDED IN SECTION 8.7 AND UNLESS SUCH LAWSUIT OR OTHER ACTION IS COMMENCED WITHIN SIXTY (60) DAYS AFTER DEPOSITOR LEARNS OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS AND/OR DESTRUCTION OF AND/OR DAMAGE TO THE GOODS AND PRODUCTS.
8.9 Goods or products are not insured by the Company and the storage rates do not include insurance on the goods or products unless the Company has agreed, in writing, to obtain such insurance for the benefit of depositor.
8.10 The Company shall not be liable for demurrage, delays in unloading inbound shipments or delays in obtaining and loading vehicles for outbound shipments. If, as a result of the unusual nature of the weight and dimensions of any goods and/or products, or delivery driver’s collective bargaining or employment agreement, the delivery driver cannot or will not place items on the Company’s dock, the Company may assist the driver with unloading. Labor furnished by the Company under those circumstances is chargeable to the depositor as a handling charge. If the depositor inspects the goods and/or products while in storage, the depositor will assume liability for the goods and/or products. The depositor declares that damages are limited to any bailee insurance provided by the Company, if any. The depositor shall obtain and pay for insurance on all of its products and goods placed with the Company and that it will provide the Company with a certified and endorsed copy of such insurance upon tender of goods. If a depositor fails to obtain such insurance, then the Company may obtain such insurance on the depositor’s behalf and charge the cost of such insurance to the depositor. The depositor, for itself and its insurers, hereby waives all claims against the Company for loss or damage to any good or product, however caused.
NOTICE OF CLAIMS AND FILING OF SUIT
9.1 Claims by the depositor and all persons must be presented in writing to the Company within a reasonable time, and in no event longer than either ninety (90) days after delivery of the goods by the Company or ninety (90) days after depositor of record or the last known holder of a negotiable warehouse receipt is notified by the Company that loss or injury to part or all of the goods has occurred, whichever time is shorter.
9.2 No action may be maintained by the depositor or others against the Company or loss or injury to the goods stored unless timely written claim has been given as provided in Section 9.1 and unless such action is commenced either within six (6) months after date of delivery by the Company or within six (6) months after depositor or record on the last known holder of a negotiable warehouse receipt is notified that loss or injury to part or all of the goods has occurred whichever time is shorter.
9.3 When good have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by the Company.
9.4 THE COMPANY DISCLAIMS LIABLILTY TO ITS CUSTOMERS THAT FIRST PRODUCT STORED WILL BE FIRST PRODUCT SHIPPED OUT UPON RECEIPT OF CUSTOMER SHIPPING ORDERS. THE COMPANY DOES NOT GUARANTEE “FIRST IN, FIRST OUT” FOR PRODUCT STORED IN ITS WAREHOUSE.
9.5 The depositor shall provide the Company with advance written notice of the proposed shipment of any hazardous material, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 5101, et seq. or any other applicable statute, regulation or other law (“Hazardous Material”). Prior to the transportation, the depositor shall provide the Company with a current Material Safety Data Sheet or any other Hazardous Material document required to be prepared and provided by the depositor or its agent for the Hazardous Material shipment. THE DEPOSITOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY AND ITS OFFICERS, EMPLOYEES, AGENTS AND INSURERS, AGAINST ALL CLAIMS, LIABILITIES, LOSSES, FINES, REASONABLE ATTORNEY FEES AND OTHER EXPENSES ARISING OUT OF OR RELATED TO, EXPOSURE TO OR RELEASE OF ANY HAZARDOUS MATERIAL, INCLUDING WITHOUT LIMITATION, FINES OR EXPENSES RELATING TO THE REMOVAL OR TREATMENT OF HAZARDOUS MATERIAL OR ANY OTHER REMEDIAL ACTION PERTAINING TO THE HAZARDOUS MATERIAL UNDER FEDERAL, STATE OR FOREIGN LAW.
9.6 The Company shall not acquire title to or assume risk of loss for any of the goods or products on behalf of a depositor, and shall not, in the course of providing any services, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, the goods and/or products.
10.1 Any provision herein which is in conflict with any local, state or Federal law applicable to the transaction involved shall be imperative as to such transaction but shall not void or affect the legality of any other provision. These terms and conditions, and the Company’s handling and storage for any depositor, shall be governed by the laws of the State of Texas, without reference to its choice of law principles. Exclusive venue for any cause of action between the Company and a depositor shall lie in Hidalgo County, Texas.
10.2 Except to the extent prohibited by law, upon the request of any party hereto, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise), now existing or hereafter arising between the parties, shall be resolved by binding arbitration in accordance with the terms of this contract. The foregoing matters shall be collectively referred to as “Disputes.” Any party hereto may bring an action in court to compel arbitration of any Dispute. All Disputes shall be resolved by binding arbitration and, unless otherwise agreed upon by the parties hereto, any arbitration hereunder shall be administered by the American Arbitration Association (the “AAA”). Any arbitration hereunder shall be administered in accordance with the terms of this contract, the Arbitration Rules for the Real Estate Industry of AAA, and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code). The parties hereto acknowledge and agree that the relationship between the parties, including the transaction contemplated herein, involves interstate commerce. If it is determined that the Federal Arbitration Act is inapplicable, Disputes shall be resolved in accordance with the provisions of the Texas General Arbitration Act, Tex. Civil Practice Remedies Code §171.00, et seq. In the event of any inconsistency between this contract and such statutes and rules, this contract shall control. Judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction. To the maximum extent practicable, an arbitration proceeding brought hereunder shall be concluded within one hundred eighty (180) calendar days of the filing of the Dispute with the arbitrator. Arbitration proceedings hereunder shall be conducted at a location in Hidalgo County, Texas, agreed to in writing by the parties, or, in the absence of such an agreement, selected by the arbitrator. The arbitrator shall be empowered to impose sanctions and to take such other actions as the arbitrator deems necessary to the same extent as a judge would be allowed pursuant to the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure and applicable law. To the extent permitted by applicable law, the arbitrator shall have the power to award and allocate recovery of all costs and fees (including attorneys’ fees, administrative fees and arbitrators’ fees) between the parties. The provisions of this paragraph shall survive any termination, amendment or expiration of this contract, unless the parties otherwise expressly agree in writing. This paragraph may be amended, changed or modified only by the express provisions of a writing which specifically refers to this paragraph and which is signed by all of the parties hereto.
10.3 The Company’s failure to insist upon strict compliance with any provision of these terms and conditions shall not constitute a waiver or estoppel to a later demand for strict compliance therewith and shall not constitute a waiver or estoppel to insist upon strict compliance with all other provisions hereof.
10.4 In the event any section of these terms and conditions or part thereof shall be declared invalid, illegal and/or unenforceable, the validity, legality and enforceability of the remaining sections and parts shall not, in any way, be affected or impaired thereby.
10.5 By depositing goods and/or products with the Company, each depositor represents and warrants that it either: (i) is the lawful owner of such goods and products which are not subject to any lien or security interest of others; or (ii) is the authorized agent of the lawful owner and/or any holder of a lien or security interest and has full power and authority to enter into the agreement incorporated herein. Each depositor further agrees to notify all parties acquiring any interest in the goods and products of the terms and conditions of these terms and conditions and to obtain, as a condition of granting such an interest, the agreement of such parties to be bound by the terms and conditions of these terms and conditions.
10.6 All written notices provided herein may be transmitted by any commercially reasonable means of communication and shall be directed to the Company at the address indicated on the front hereof and to depositor at its last known address. A depositor is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five days of transmittal.
10.7 These terms and conditions shall constitute the entire agreement between the Company and a depositor relating to the goods and products and supersedes all existing agreements between them whether written or oral and shall not be changed, amended or modified except by written agreement signed by representatives of the Company and the depositor.
10.8 The Company shall not be liable for loss or damage that results from Act(s) of God, inclement weather, riots, strikes, labor difficulties, accident interruption or failure of means of transportation, epidemics, earthquakes or ay act or order of any public authority, act or default of depositor or some subsequent owner of the goods, the inherent nature of the goods or services, public enemy, and acts of terrorism or war, and/or any other cause of event, similar or dissimilar.
10.9 A DEPOSITOR, BY ITS TENDER OF GOODS OR PRODUCTS TO THE COMANY, DOES HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, PARTNERS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES (COLLECTIVELY THE “COMPANY GROUP”), FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, SUITS AND LIABILITIES OF EVERY KIND WHATSOEVER, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS’ FEES (INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION AND REASONABLE ATTORNEYS’ FEES INCURRED BY THE COMPANY GROUP IN ENFORCING THE PROVISIONS HEREOF), ARISING OUT OF OR FROM, INCIDENT TO, OR RESULTING FROM, THE GOODS OR PRODUCTS, THESE TERMS AND CONDITIONS OR THE COMPANY’S WAREHOUSE.