BENTLEY WORLD PACKAGING, INC.
Terms and Conditions
For purposes hereof, the “Company” refers to Bentley World Packaging, Ltd. and “Customer” refers to the customer of the Company purchasing goods and services from the Company. By tendering items to the Company, Customer expressly agrees that the following terms and conditions shall apply to all sales of goods and services (collectively, “Services”) by the Company to Customer.
- APPLICABILITY. These Terms and Conditions shall apply to all Services by the Company to Customer. If Customer shall breach any of these Terms and Conditions including, without limitation, failure to pay any amount to the Company when due, the Company may give Customer notice of termination and Customer shall, within seven (7) days of receipt of such notice, at Customer’s sole expense, remove all Products (as hereinafter defined) from the Warehouse (as hereinafter defined). In the event Customer fails to remove all of its Products from the Warehouse within seven (7) days after receipt of such notice, the Company may remove the Products from the Warehouse, at Customer’s expense, and shall incur no liability by reason of such removal.
2.1 Packaging Services.
- The Company shall provide the packaging services set forth in any quote provided by the Company and accepted by Customer (each, a “Quote”). The packaging services shall be performed by the Company in accordance with the specifications set forth in each such Quote and in all other respects in accordance with the terms and conditions set forth herein.
- Customer acknowledges and agrees that theaveragetime to complete such packaging services (which, for purposes of clarification, shall exclude any shipping or transit time, the “Time of Completion”) shall be as set forth in the Quote or, if no Time of Completion is provided for in the Quote, such time as the Company may reasonably require for the packaging services to be performed after receipt by the Company of all of the Products to be packaged. Customer further acknowledges and agrees that the Time of Completion will vary by work load. The Company makes no representation or warranty as to its ability or commitment to provide the packaging services within a shorter Time of Completion, unless the Company gives its prior written consent to a shorter Time of Completion.
- Customer further acknowledges and agrees that to the extent the packaging services include design or construction services, (i) Customer has had the opportunity to review the crates and packages and the design thereof and Customer warrants that such crates, packages and design thereof meet Customer’s requirements and specifications; and (ii) the Company is not making any representations or warranties with respect thereto. Customer further acknowledges and agrees that to the extent the packaging services include packing services, (i) Customer has had the opportunity to inspect the methods and materials used in packing and Customer warrants that such methods and materials meet Customer’s requirements and specifications; and (ii) the Company is not making any representations or warranties with respect thereto.
2.2 Warehousing Services. The Company will store the goods of Customer delivered by Customer to a Company facility (the “Warehouse”) and for which a Receipt has been issued (the “Products”) in a neat and orderly manner. The Company shall exercise such due care in regard to such Products as a reasonably careful warehouse provider would exercise in like circumstances. The Company shall promptly notify Customer of any condition respecting the Warehouse that would prevent or otherwise limit the Company’s performance of the Services.
- All Products tendered for packaging and/or storage shall be delivered to the Warehouse in a segregated manner, properly marked and packaged for handling. All deliveries will be made during normal business hours at Customer’s cost and risk and Customer shall give the Company not less than forty-eight (48) hours prior notice of any delivery of Product for packaging and/or storage at the Warehouse. Customer will include a detailed packaging list with each delivery of Products that will include part numbers, order numbers, quantities, number of boxes, skids, dimensions and weights. The Company agrees to notify the Customer, within seven (7) days of delivery, whenever the possibility of missing Products exists. In the event the Company fails to notify Customer of any discrepancies, the packaging list will be deemed to be correct for purposes of inventory reconciliation and determining responsibility for loss of Products. Customer represents and warrants that it is the lawful owner of the goods to be received by the Company.
- Customer represents and warrants that all hazardous materials provided to the Company have been prepared, labeled, shipped, packed and declared in accordance with the provisions of all applicable federal and state laws and regulations, as well as any other jurisdictional body having control over the labeling, packing or shipping of hazardous materials. Additionally, Customer must notify and receive written permission from the Company specifically authorizing the shipment of any hazardous substances prior to shipping the same to the Warehouse. In the event that the above conditions are not satisfied, Customer shall be fully liable for and shall indemnify and save harmless the Company against any and all loss, damage and expenses that the Company may sustain as a result of Customer’s breach of the foregoing representations and warranties.
- In addition to the requirements of Paragraph 2.3(b), Customer shall notify the Company of any other characteristics of any of Customer’s Products that may in any way be likely to be a hazard to other property, the Warehouse or persons. If, as a result of a quality or condition of the Products of which the Company had no notice at the time of delivery, the Products are a hazard to other property or to the Warehouse or to persons, the Company shall have the right to notify Customer and demand prompt removal of such Products from the Warehouse, and the Company shall not be obligated to perform any of the Services or any other obligations of the Company hereunder with respect to such Products. If, after providing such notice to Customer, such Products are not removed within two (2) business days, the Company may remove the Products from the Warehouse, at Customer’s expense, and shall incur no liability by reason of such removal.
- The Company will arrange for delivery of Products to such third parties or Customer and via such method of transportation as may be directed by Customer. Instructions to arrange for delivery of such Products to third parties shall not be effective unless such instructions are in writing, delivered to and accepted by the Company (which acceptance shall be provided not later than two (2) business days after receipt of such instructions). When Products are ordered by Customer to be delivered, a reasonable time, not to exceed forty-eight (48) hours after acceptance of such instructions, shall be given to the Company to arrange for such delivery (further subject to any applicable Time of Completion for packaging services). The Company agrees, when feasible and upon reasonable notice, to provide emergency shipping services; provided, however, that Customer may incur additional charges in connection therewith. Customer is responsible for insuring that insurance coverage acceptable to Customer is in place for products in transit. The Company shall have no responsibility for damage or loss to Products upon delivery to the carrier including, without limitation, any loss or damage of Products in transit. Customer shall be responsible for all transportation charges incurred in connection with the shipment of Products and if the Company is billed for any such transportation charges, Customer shall reimburse the Company for such charges.
- RECEIPT. In connection with each set of Products delivered by Customer to the Warehouse, the Company shall provide Customer upon delivery of such Products a receipt substantially in the form set forth on Exhibit A (“Receipt”). The terms of the Receipt are incorporated herein by this reference.
- PRICES AND PAYMENTS. All pricing shall be in accordance with the Quotes provided by the Company to Customer. With respect to warehousing services, the rates described herein cover the ordinary labor involved in receiving Products at the Warehouse, placing and maintaining such Products in storage and coordinating shipments of such Products with the carrier upon instruction by Customer. With respect to packaging services, the rates described herein cover the ordinary labor and materials involved in providing the packaging services set forth in the Quote. Customer may be charged for additional non-ordinary expenses or expenses incurred in providing services not contemplated hereunder (including, without limitation, over-time and double-time charges at the Company’s standard rates). All pricing may be subject to current minimum order rates and expediting fees. Goods not shipped after the expiration of thirty (30) days from the date that such goods are received by the Company shall be subject to additional storage charges. The Company shall have the right at any time or times, upon not less than sixty (60) days prior written notice to Customer, to increase the fees then charged to Customer hereunder. All prices are exclusive of all sales, use, excise or similar taxes applicable to the services provided by the Company and all such taxes shall be paid by Customer. All amounts payable by Customer shall be due thirty (30) days from the date of invoice. Terms and open account status are subject to change for failure to pay on a timely basis or impaired financial strength of Customer. Outstanding balances not paid when due shall be subject to interest, in addition to the principal amount due, at the lesser of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law, from the date of the invoice until paid. Customer agrees that, in the event any sums due the Company become subject to any collection activity, the Company shall be entitled to receive all reasonable costs and expenses of collection and/or suit including, but not limited to, attorneys’ fees.
- Storage charges become applicable upon the date that the Company accepts care, custody and control of the Products, regardless of unloading date or date of issue of the Receipt.
- Unless otherwise stated, storage rates and charges shall be computed and are due and payable as follows:
(i) Products received during the month shall be assessed the full month storage charge; and
(ii) A full month’s storage (renewal) charge will apply to all Products in storage on the first day of the next and succeeding calendar months.
- UNFORESEEN EVENTS. The Company shall not be liable for any delay, failure of delivery, or other nonperformance attributable to any circumstances beyond its reasonable control, including, without limitation any nonperformance because of strikes, work stoppages, accidents, shut down or delay of suppliers, government orders, fires, explosions, weather or other acts of God, embargoes, inability to secure transportation facilities or contingencies arising out of national defense activities, war or emergency conditions. Upon the occurrence of an event under this Paragraph 5, the Company shall use commercially reasonable efforts to fulfill outstanding Services without any additional costs, but if the occurrence of such event nevertheless increases the Company’s cost of performance, the Company may increase the prices to Customer immediately upon delivery of written notice.
- LIABILITY. With respect to warehousing services, the Company shall be liable for loss of or injury to all Products while under its care, custody and control when caused by its failure to exercise such care in regard to such Products as a reasonably careful person would exercise under like circumstances. With respect to packaging services, and in accordance with Paragraph 2.1(c), above, the Company warrants that any packages and crates constructed by the Company will conform to the design reviewed by Customer and that any packing services provided by the Company will conform to the methods and materials inspected by Customer. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES PROVIDED TO CUSTOMER OR THE CONDITION OF THE PACKAGING OR CRATING PROVIDED TO CUSTOMER, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED. The Company shall not be liable for damage which could not have been avoided by the exercise of such care or conformance with such designs, methods and materials or for loss or damage occasioned by casualty, fire and other hazards of the type typically covered under the property insurance required to be maintained by Customer under Paragraph 7. IN CONSIDERATION OF THE RATES HEREIN, THE COMPANY’S LIABILITY FOR SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGE TO PRODUCTS OR OTHER GOODS CONTAINED OR TO BE CONTAINED IN THE PACKAGES OR CRATES PROVIDED BY THE COMPANY IN CONNECTION WITH THE PACKAGING SERVICES, SHALL BE STRICTLY LIMITED TO THE PRICE PAID BY THE CUSTOMER FOR SERVICES RELATED TO THE LOST OR DAMAGED PRODUCTS OR GOODS DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF DAMAGE OR LOSS. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF PROFITS, NOR SHALL THE COMPANY BEAR ANY LIABILITY FOR THE ACTS OR NEGLIGENCE OF ANY SHIPPERS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, REGARDLESS OF CAUSE AND EVEN IF CAUSED BY THE COMPANY’S NEGLIGENCE, AND EVEN IF THE COMPANY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
- INSURANCE AND TITLE. Title to and ownership of and risk of loss for all goods delivered by Customer to the Company shall remain vested with Customer until such time as Customer transfers title and ownership to its end customers and at no time shall title or ownership or any risk of loss ever vest in the Company. Customer shall maintain at all times, at Customer’s expense, a policy of property insurance against fire, vandalism, malicious mischief and such other hazards as are from time to time included in a standard extended coverage endorsement insuring all Products of Customer located at the Warehouse equal to the value of the Products stored and the Company has no obligation to maintain property insurance insuring such Products against such risk of loss while at the Warehouse. Customer agrees to waive subrogation in favor of the Company as respects the Customer’s property insurance policy. At any time upon request of the Company, Customer shall provide the Company with an insurance certificate as proof of the coverage required under this Paragraph 7.
- NOTICE OF CLAIMS. The Company agrees to notify Customer promptly of any loss or damage known to Company, however caused, to Products packaged, stored or handled by the Company for Customer. Claims by Customer must be presented in writing to the Company no later than either sixty (60) days after delivery of the Products by the Company or sixty (60) days after Customer is notified by the Company that loss or injury to part or all of the Products has occurred, whichever time is shorter. Customer must make the original shipping cartons and packing available for inspection by the Company. Additionally, photographs of the damaged items and the packaging material must be provided.
- RELATIONSHIP OF THE PARTIES. Each party acknowledges and agrees that in performing the Services hereunder, the Company is acting as an independent contractor. Nothing contained herein shall be construed in such a manner as to create the relationship of principal and agent between the Company and the Customer or the relationship of employee/employee between the Customer and any individuals assigned by the Company to perform the Services, nor shall it be construed to find the Company a carrier, broker or third-party logistics provider.
- NON-WAIVER. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver of such right, power or privilege.
- GOVERNING LAW. These Terms and Conditions and all questions arising in connection herewith shall be governed by and construed in accordance with the laws of the State in which the Warehouse is located without regard to principles of conflicts of law thereunder. All disputes arising hereunder shall be resolved in state or federal courts with jurisdiction over the county where the Warehouse is located, to which exclusive jurisdictions the parties hereto irrevocably consent. The parties waive any objection to venue.
- ASSIGNMENT. Neither party shall assign any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
- ENTIRE AGREEMENT. These Terms and Conditions cannot be modified except in writing, signed by an authorized representative of Customer and an officer (CEO, President or Vice-President) of the Company. No agent, employee or representative of the Company other than an officer (CEO, President or Vice-President) of the Company may alter, amend or modify any term, provision or condition of these terms and conditions and any such waiver, alteration, amendment or modification must be in writing. Unless otherwise provided herein, any terms or conditions contained in any Quote, purchase orders, confirmations, acknowledgments, shipping orders or documents issued by Customer in connection with the provision of goods or services by the Company to Customer which are inconsistent with the terms hereof shall not apply, and any provision of services by the Company shall not constitute assent to any such inconsistent terms.
- SEVERABILITY. If any provision of these Terms and Conditions shall be held to be invalid, or illegal or unenforceable, the validity and enforceability of the remaining provisions shall not be affected or impaired thereby.