Terms and Conditions of Service

Customer Support

SHIPDEPOT shall provide warehousing, storage, handling, delivery and related services (the “Services”) for the goods (“Goods”) to Depositor, which are tendered for storage by Depositor from time to time under these Terms and Conditions.

These Terms and Conditions, together with the quotations, constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms and Conditions, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

Depositor acknowledges that SHIPDEPOT will only issue non-negotiable warehouse receipts.

Depositor acknowledges that the act of receiving or shipping goods described herein will constitute acceptance of the rate quote and assumption as described on the rate and assumption exhibits accompanying this Agreement.

TENDER OF GOODS FOR STORAGE.

Depositor represents and warrants that it is the owner or has lawful possession of the Goods and all right and authority to store them with SHIPDEPOT and thereafter direct the release and/or delivery of the Goods. Depositor shall

Tender any Goods for storage only during SHIPDEPOT’s posted business hours for the warehouse;
Tender all Goods to the warehouse properly marked and packed for storage and handling;
Provide SHIPDEPOT with information concerning the Goods that is accurate, complete and sufficient to allow SHIPDEPOT to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Goods; and
Furnish at or prior to tender of the Goods for storage a manifest in a form approved by SHIPDEPOT listing any categories of Goods, brands or sizes to be separately kept and accounted for, and the types of storage and other services requested.

SHIPDEPOT may refuse to accept any Goods for storage. Before tendering Goods that require specialized handling or which are dangerous or hazardous, Depositor shall identify such Goods and special handling requirements to SHIPDEPOT in writing and SHIPDEPOT may decline to store such Goods. Depositor is solely responsible for providing complete and accurate handling and storage instructions for any nonconforming Goods, including any applicable safety procedures. If SHIPDEPOT accepts any such nonconforming goods for storage, Depositor agrees to rates and charges as may be assigned and invoiced by SHIPDEPOT as well as all of these Terms and Conditions .

For all Goods shipped to the warehouse, Depositor shall ensure that the bill of lading or other contract of carriage as well as all declarations to government regulatory agencies

identify Depositor as the named consignee, in care of SHIPDEPOT, and
do not identify SHIPDEPOT as the consignee.

If any Goods are shipped to the warehouse naming SHIPDEPOT as named consignee on the Transportation Contract, Depositor shall promptly notify the carrier in writing that SHIPDEPOT is

the “in care of party” only and
does not have any beneficial title or interest in the Goods.

INDEMNITY

Depositor shall indemnify, defend, and hold harmless SHIPDEPOT and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including undercharges, rail demurrage, truck/intermodal detention or related charges and attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party arising out of or resulting from any claim of a third party or SHIPDEPOT arising out of or occurring in connection with the Services or from SHIPDEPOT’s or Depositor’s negligence, willful misconduct or breach of these Terms and Conditions (each a “Warehouse Claim”). Depositor shall not enter into any settlement of a Warehouse Claim without SHIPDEPOT’s or Indemnified Party’s prior written consent.

ACCESS AND RELEASE OF GOODS.

When Goods are to be released from the warehouse, Depositor shall give SHIPDEPOT a reasonable time after SHIPDEPOT’s receipt of Depositor’s Release Order to carry out Depositor’s instructions to release the Goods to Depositor or its designee. SHIPDEPOT may without liability rely on any information contained in any Release Order or other communication from Depositor. Depositor shall be responsible for all shipping, handling and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Goods. A Release Order providing instructions to transfer Goods on the books of SHIPDEPOT to any other depositor of goods in the warehouse will not be effective until such Release Order is delivered to and accepted by SHIPDEPOT. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date for the transferee will be established effective on the date of transfer.

TRANSFER OF GOODS.

SHIPDEPOT may move, upon five (5) days’ notice to Depositor, any Goods in storage from the warehouse to any of the other storage facilities owned or leased by SHIPDEPOT. SHIPDEPOT may, without notice, move any or all of the Goods from one location within the warehouse or other warehouse in which the Goods are stored to another location within the same facility.

WAREHOUSE LIEN.

SHIPDEPOT shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Depositor’s payment of all fees, charges and expenses hereunder in connection with the storage, transportation, preservation, and handling of the Goods as well as for like charges and expenses in relation to any other goods whenever deposited with SHIPDEPOT by Depositor. SHIPDEPOT may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.

STORAGE AND HANDLING CHARGES.

Depositor shall pay the storage charges and service fees at the rates as set forth in these Terms and Conditions. Rates are subject to change by SHIPDEPOT at any time after the one (1) year anniversary of the date of these Terms and Conditions or at any time upon a material change in the volume of Depositors Goods stored at the warehouse. All Goods are stored on a month-to-month basis. A full month’s storage charge will apply to all Goods received between the first and the last day of a calendar month, and a full month’s storage charge will apply to all Goods in storage on the first day of a calendar month.

Handling charges cover the ordinary labor involved in receiving Goods at the warehouse door, placing Goods in storage, and returning Goods to the warehouse door for pickup. Handling charges are due and payable on receipt of invoice. Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by SHIPDEPOT in receiving and handling damaged Goods, and additional expenses in unloading from or loading into cars or other vehicles not at the warehouse door will be charged to the Depositor. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor. SHIPDEPOT shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless SHIPDEPOT has failed to exercise reasonable care. Additional charges apply to other specified services at the rates set forth on these Terms and Conditions in effect at the time such charges accrue or the services are performed, and will be separately billed as such services are performed.

All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor shall be responsible for all such charges, costs, and taxes; provided, that Depositor shall not be responsible for any taxes imposed on, or with respect to, SHIPDEPOT’s income, revenues, gross receipts, personnel, or real or personal property.

Depositor is subject to and shall pay the minimum handling charge per receipt or order and a minimum storage charge per month specified on these Terms and Conditions if defined, as it may be amended from time to time, when such charge accrues or the service is performed.

A charge in addition to the rates set forth in these Terms and Conditions shall accrue for Goods subject to a U.S. Customs bond. Where a warehouse receipt covers such Goods, SHIPDEPOT will have no liability for Goods seized or removed by U.S. Customs.

All technology charged to cover the ordinary labor involved in design, scoping, customizing, or developing integrations or connections are due and payable whether services are implemented or initiated unless otherwise agree to in writing.

PAYMENT TERMS.

Depositor shall pay all storage charges for each storage period in advance for

the initial month of storage and
each succeeding month on the first day of such month.

All charges for other Services are due and payable upon receipt of invoice. Depositor shall make all payments hereunder in US dollars. Depositor shall pay interest on all payments not received within ten days of any invoice date at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded daily from the date due until paid in full. Depositor shall reimburse SHIPDEPOT for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which SHIPDEPOT does not waive by the exercise of any rights hereunder), SHIPDEPOT shall be entitled to suspend the release of any Goods or cease performance of any services if Depositor fails to pay any amounts when due hereunder. In addition, SHIPDEPOT reserves the right to require payment in full of all amounts owed by Depositor in advance of the release of the related Goods. Depositor shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SHIPDEPOT, whether relating to SHIPDEPOT’s breach, bankruptcy or otherwise. Should Depositor be placed On Hold due to non-payment, a reinstatement fee shall apply as defined in these Terms and Conditions.

If SHIPDEPOT in its sole discretion determines that Depositor’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to SHIPDEPOT’s other rights, it may without liability or penalty

accelerate all amounts due hereunder and
modify the payment terms, including requiring Depositor to make advance payment of all storage charges prior to shipment of Goods.

In order to request a credit with respect to charges for Services, Depositor must notify SHIPDEPOT within sixty (60) days after the incident giving rise to such credit request.

LIABILITY FOR LOSS OR DAMAGE TO GOODS.

SHIPDEPOT shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by SHIPDEPOT to exercise the level of care with regard to the Goods that a reasonably careful person would have exercised under the circumstances. SHIPDEPOT is not liable for damages which could not have been avoided by the exercise of such care. SHIPDEPOT is not liable for damages identified at time of receipt, or for all Goods identified as carton fatigue damage while in SHIPDEPOT’s care, custody, and control.

SHIPDEPOT shall be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods only if Depositor establishes such loss occurred because of SHIPDEPOT’s failure to exercise the care required of SHIPDEPOT under this section. Any presumption of conversion under applicable law shall not apply to a loss with respect to any Goods, and a claim for conversion must be established through affirmative evidence that SHIPDEPOT converted the Goods to its own use. Depositor shall permit SHIPDEPOT to inspect any damaged Goods for which a claim is submitted hereunder.

If SHIPDEPOT is negligent in mis-shipping any Goods, it shall pay, as Depositor’s exclusive damages and subject to the limitation of liability contained in this section, reasonable domestic transportation charges to return only the mis-shipped Goods to the Warehouse using the similar shipping service level as the original shipment, contracted by SHIPDEPOT.

SHIPDEPOT shall not be liable for any breach of this Section 9 unless:

Depositor gives written notice to SHIPDEPOT of any claim within thirty (30) days after release of the Goods by SHIPDEPOT or
SHIPDEPOT provides Notice to Depositor, including a reasonable description of the facts and circumstances, that loss or damage to part or all of the Goods has occurred, as the case may be. No lawsuit or other action may be maintained by Depositor against SHIPDEPOT for loss or damage to the Goods unless a timely written claim has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of: six (6) months after the date of delivery of the Goods to Depositor or its nominee by SHIPDEPOT or six (6) months after Depositor becomes aware that loss or damage to part or all of the Goods has occurred

SHIPDEPOT’s liability for loss or damage to Goods shall be limited to the lesser of $0.50 per pound or $1.00 per cubic foot, provided, however, that such liability may at the time of acceptance be increased upon Depositor’s written request on part or all of the GOODS hereunder in which event an additional monthly charge will be made based upon such increased valuation. The remedies set forth in this section 9 shall be depositor’s sole and exclusive remedy and SHIPDEPOT’s entire liability for any breach of SHIPDEPOT’s obligations set forth in this section 9.

CONSEQUENTIAL DAMAGES AND INSURANCE.

In no event shall SHIPDEPOT be responsible or liable for any consequential, indirect, incidental, or special damages of any type or nature whatsoever and however arising, including, without limitation, exemplary, or punitive damages, chargebacks lost profits or revenues, or diminution in value, arising out of or relating to any breach of any provision of these Terms and Conditions, whether or not the possibility of such damages has been disclosed in advance by depositor or could have been reasonably foreseen by person or entity, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall SHIPDEPOT’s aggregate liability under these Terms and Conditions including, but not limited to, SHIPDEPOT’s liability under section 9 of these Terms and Conditions, exceed the total of the amounts paid to SHIPDEPOT for the services rendered hereunder.

Goods are not insured by SHIPDEPOT on a first-party “all risk” basis against loss or damage however caused.

In the case of loss or damage to Goods for which SHIPDEPOT is not liable, Depositor shall be responsible for all charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.

TERMINATION

In addition to any remedies that may be provided under these Terms and Conditions, SHIPDEPOT may terminate these Terms and Conditions with immediate effect upon written notice to Depositor, if:

Depositor fails to pay any amount when due under these Terms and Conditions and such failure continues for ten (10) days after Depositor’s receipt of written notice of nonpayment;
Depositor has not otherwise performed or complied with its obligations under any of the provisions contained in these Terms and Conditions, in whole or in part;
Depositor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors;
the Goods are a hazard to other property within the warehouse or to the warehouse itself or to persons as a result of the quality or condition of the Goods of which SHIPDEPOT had no notice at the time of deposit; or
the Goods are about to deteriorate or decline in value to less than the amount of the warehouse lien set forth in Section 6 before the end of the next succeeding storage month.

These Terms and Conditions may be canceled by either Party upon thirty (30) days’ prior written notice with or without any cause or reason being given or required and may be terminated without notice by either party if no storage or other services are performed under these Terms and Conditions for a period of 180 consecutive days. Cancellation does not apply to multi-year agreements or agreements longer than thirty (30) day terms.

If these Terms and Conditions is terminated for any reason, Depositor shall promptly arrange the removal of all Goods from the warehouse, subject to payment of all outstanding fees and charges due hereunder. If Depositor does not promptly remove such Goods, SHIPDEPOT may without liability remove the Goods and sell the Goods at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Goods (to the last known place of business of the person to be notified) in the manner provided by law. If SHIPDEPOT, after a reasonable effort, is unable to sell the goods, it may dispose of them without liability in any lawful manner.

WAIVER.

No waiver by SHIPDEPOT of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by SHIPDEPOT. No failure by SHIPDEPOT to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise by SHIPDEPOT of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

FORCE MAJEURE.

SHIPDEPOT shall not be liable or responsible to Depositor, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SHIPDEPOT including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. If SHIPDEPOT has been unable to remove/deliver the Goods due to any reason specified in this Section 13, such Goods shall be subject to storage charges until such Goods are actually removed/delivered.

THIRD-PARTY BENEFICIARIES.

Except as specified in the next sentence, these Terms and Conditions is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.

Notwithstanding the foregoing, all limitations upon, and exceptions and defenses to, liability granted to SHIPDEPOT shall be automatically extended to all parent, subsidiary and affiliated entities and all subcontractors of SHIPDEPOT and the owners, directors, officers, employees and agents of each of the foregoing.

CHOICE OF LAW AND FORUM.

All matters arising out of or relating to these Terms and Conditions are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

LITIGATION COSTS AND EXPENSES.

Should SHIPDEPOT institute any legal suit, action or proceeding to enforce these Terms and Conditions, SHIPDEPOT shall be entitled to receive, and Depositor shall pay, in addition to all other remedies to which SHIPDEPOT may be entitled, the costs and expenses incurred in conducting the suit, action or proceeding, including attorneys’ fees and expenses, court costs and other expenses, even if not recoverable by law (including, without limitation, all fees, taxes, costs and expenses incident to appellate, bankruptcy and post-judgment proceedings).

WAIVER OF JURY TRIAL.

Each Party acknowledges and agrees that any controversy that may arise under these Terms and Conditions, including exhibits and other attachments to these Terms and Conditions, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms and Conditions, including any exhibits and other attachments to these Terms and Conditions, and the transactions contemplated hereby.

SURVIVAL.

Subject to the limitations and other provisions of these Terms and Conditions:

(a)the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of these Terms and Conditions; and

(b) any other provision that, in order to give proper effect to its intent, must survive the expiration or earlier termination of these Terms and Conditions, shall so survive.

NOTICES.

All notices, requests, consents, claims, demands, waivers and other communications under these Terms and Conditions must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a notice is effective only

(a) on receipt by the receiving Party, and

(b) if the Party giving the notice has complied with the requirements of this Section.

SEVERABILITY.

If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any specific situation or jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other situation or jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify these Terms and Conditions to give effect to the original intent of the Parties as closely as possible so that the transactions contemplated hereby will be consummated as originally contemplated to the greatest extent possible.

AMENDMENTS.

No amendment to or modification of or rescission of these Terms and Conditions is effective unless it is in writing, identified as an amendment to or rescission of these Terms and Conditions and signed by an authorized representative of each Party.

CUMULATIVE REMEDIES.

All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Depositor’s rights under Section 9 are Depositor’s exclusive remedies for the events specified therein.

ASSIGNMENT.

Depositor shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms and Conditions without the prior written consent of SHIPDEPOT. Any purported assignment or delegation in violation of this Section 23 shall be null and void. No assignment or delegation shall relieve Depositor of any of its obligations hereunder. SHIPDEPOT may at any time assign, transfer or subcontract any or all of its rights or obligations under these Terms and Conditions without Depositor’s prior written consent.

SUCCESSORS AND ASSIGNS.

These Terms and Conditions is binding on and inures to the benefit of the Parties to these Terms and Conditions and their respective permitted successors and permitted assigns.

COUNTERPARTS.

These Terms and Conditions may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of these Terms and Conditions delivered by facsimile or email shall be given the same legal effect as delivery of an original signed copy of these Terms and Conditions.

RELATIONSHIP OF THE PARTIES.

The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, franchise, business trust, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from these Terms and Conditions.