“Company” shall mean Crate This, LLC.
“Customer” shall mean the person or entity engaging Company to provide the Goods and Services, and may include the consignor, consignee, or agent of the Customer.
Customer and Company may be referred to individually as “Party” or jointly as “Parties.”
“Goods” shall mean packaging and crating materials provided by Company.
“Services” shall mean packing, crating, handling, temporary warehousing and in-state transportation services provided or arranged by Company.
“Cargo” shall mean the item or items to be packed, crated, temporarily stored, transported or otherwise handled.
“Vendor” shall mean any third party that Company arranges to provide Services for Customer.
“Terms” shall mean these Terms and Conditions, as amended from time to time.
The Company agrees to sell and the Customer agrees to buy Goods and or Services in accordance with these Terms, which shall govern all aspects of the relationship between Customer and Company.
Company shall use best efforts to meet any performance dates to render the Services. However, notwithstanding the foregoing, any statement by Company with regard to the delivery date, time or related scheduling is merely an estimate by Company is not to be construed as a warranty or guaranty of any particular time for performance. In no event shall Company be liable for delay.
Cargo will be picked up at a dock or on the ground floor. All pricing assumes a one-person pick up. If additional personnel is required, or there are stairs or other obstacles, then additional charges may apply. Customer shall notify Company in advance of any special pickup conditions or needs.
If Customer requires delivery of the Cargo to a consignee, then Company may contact consignee for instructions and delivery windows. All pricing assumes a one-person delivery to the ground floor or dock. If the Cargo is oversized, over-dimensioned, or overweight, then Company will deliver the Cargo to the tail of the vehicle and consignee will be responsible for unloading the Cargo. Additional charges may apply for additional personnel, special vehicles, special delivery instructions, or other additional services beyond the scope of a standard delivery.
Company may, in its sole discretion, deliver the Goods to Customer “collect on delivery” (“COD”). If proper payment is not made at the time of delivery, then the delivery will not be completed, the Goods will be returned to Company, and Customer will be liable for any associated costs. If Company mistakenly delivers the Goods without proper payment upon delivery, Company retains all of its rights to pursue payment from the Customer, and mistaken delivery will not constitute a waiver.
Quotations as to rates, fees, or other charges are for informational purposes only and are subject to change without notice. Company reserves the right to adjust all final rates, prices, and charges based on the actual weights, dimensions, quality of the Cargo, and any declared higher value by the Customer. Any adjustments related to the foregoing will be added to the final invoice and Customer agrees to pay any and all charges resulting therefrom.
With respect to the Services, Customer shall (i) cooperate with Company in all matters relating to the Services and provide such access to Customer's premises and equipment as may reasonably be requested by Company, for the purposes of performing the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; (iii) provide such Customer materials or information as Company may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Customer shall inspect the Goods upon/within a commercially reasonable time of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Company in writing of any nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Company.
Subject to Company’s limits of liability set forth herein, if Customer timely notifies Company of any nonconforming Goods, then Company shall, in its sole discretion, (i) replace such nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Notwithstanding the foregoing, if Goods are delivered COD, then Customer shall not have a right to inspect or to receive a partial delivery.
Customer acknowledges and agrees that the remedies set forth herein are Customer's exclusive remedies for the delivery of Nonconforming Goods.
All Prices 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 Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Company's income, revenues, gross receipts, personnel or real or personal property or other assets.
Customer shall be responsible for any fees or expenses incurred in handling the Cargo that are caused by Customer’s actions or inactions, including any storage fees following a failure to take delivery, incorrect information provided by Customer or its agent, parking related fines, charges or related fees incurred by Company because of the location of the Cargo or the Customer’s location for shipping and delivery.
Company reserves the right to charge storage fees related to any Cargo that remains in its possession for any reason for a period longer than 72 hours from the completion of the Services. Storage rates are to be billed at the rate of $25 per piece per week.
Customer grants Company a general lien on all Cargo in its possession, custody or control for which charges remain unpaid. To the extent the Cargo remains in Company’s possession and are subject to unpaid charges for more than 60 days, Company assumes legal title to said Cargo and shall have the right to dispose of said Cargo in a commercially reasonable manner. Any proceeds from such disposition shall be applied to the amounts due Company. Any amounts that remain due after the proceeds are applied to the Customer’s account, if any, will remain the responsibility of the Customer.
Customer shall pay all amounts due to Company within 30 days of the invoice date. Overdue invoices shall accrue interest at the rate of 1.5% per month. Customer shall be responsible for all costs of collection, including but not limited to reasonable attorneys’ fees.
Customer shall not withhold payment of any undisputed amounts due and payable by reason of any set-off or offset of any claim or dispute with Company or any other party whether relating to breach, bankruptcy or otherwise.
COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE GOODS AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. For the avoidance of doubt, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITYOR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
COMPANY’S LIABILITY IS LIMITED TO $.50 PER POUND UP TO A MAXIMUM OF $50.00 PER CRATE UNLESS A GREATER AMOUNT IS DECLARED PRIOR TO THE SERVICES BEING RENDERED AND APPLICABLE CHARGES PAID THEREON. A DECLARATION OF HIGHER VALUE IS NOT AND DOES NOT CONSITUTE INSURANCE OR THE PURCHASE THEREOF. COMPANY SHALL ONLY BE LIABLE IF IT FAILS TO USE ORDINARY CARE. NO PRESUMPTION OF NEGLIGENCE SHALL ARISE FROM DELIVERY OF DAMAGED GOODS OR CARGO, AND CUSTOMER SHALL HAVE THE BURDEN OF PROOF THAT COMPANY WAS NEGLIGENT.
COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, DELAY, MISDELIVERY, OR NON-DELIVERY OR OTHER RESULT CAUSED BY (A) THE ACT, DEFAULT OR OMISSION OF THE CUSTOMER, (B) IMPROPER OR INSUFFICIENT PACKING, SECURING OR ADDRESSING OF THE CARGO BY CUSTOMER OR THIRD PARTIES, (C) INHERENT VICE OR DEFECT OF THE CARGO, (D) CARGO OF EXTRAORDINARY VALUE, INCLUDING BUT NOT LIMITED TO ELECTRONIC OR COMPUTER EQUIPMENT, WORKS OF ART, JEWELRY, MONEY, PRECIOUS METALS, GEMS, FURS, COINS, BUILLION, SECURITIES AND OTHER NEGOTIABLE ITEMS, OR CARGO WORTH MORE THAN $100,000, (E) PREVIOUSLY DAMAGED CARGO OR PACKAGING, OR (F) A FORCE MAJUERE EVENT OR OTHER EVENT BEYOND COMPANY’S REASONABLE CONTROL.
Customer agrees that Company may utilize Vendors to perform some or all of the Services. Company shall use commercially reasonable efforts to engage reliable and reputable Vendors. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE OR LOSS CAUSED BY ANY VENDOR, NOR SHALL COMPANY BE LIABLE FOR NEGLIGENT SELECTION OF THE VENDOR.
Customer is responsible for obtaining and maintaining appropriate insurance, at its own expense, to cover any CARGO loss or liability associated with the Goods or the Services. Company shall not be obligated to obtain any insurance in connection with this Agreement.
All invoices must be paid before a claim can be processed.
All claims must be made in writing and received by Company within 5 business days after the date of acceptance by Customer or its agents.
All damaged Cargo must be retained in its original packaging and crating for inspection by Company and its agents.
Customer will take commercially reasonable steps to mitigate any loss or damage to the Cargo.
Proof of loss satisfactory to Company and its insurance carrier must be promptly furnished to Company, including photographs of the damaged Cargo, invoices and proof of payment of any repairs and replacements.
Any other supporting documents relating to the Cargo.
All suits on any denied claim must be commenced no later than 2 years from the date the claim was denied.
Where claims are not filed, or suits are not commenced in accordance with this Agreement, Company shall not be liable and the claim will not be paid.
If Company is liable for any claim, then it shall have the benefit of any insurance that may have been effected upon or on account of said Cargo, so far as the foregoing shall not void the applicable policies or contracts of insurance. If the Company receives the benefit of Customer’s insurance, then Company shall reimburse Customer for the applicable insurance premium attributable to the Cargo, if reasonably ascertainable.
Any glass, fragile items, or electronic equipment must be identified as such by Customer prior to Company performing the Services or a claim for loss or damage will be denied.
Company is only responsible for the Cargo identified and described on the bill of lading or sale invoice. Customer warrants that the sale invoice contains an accurate description of the Cargo and that any claim for loss or damage will only be entertained if a description of the Cargo is contained on the sale invoice or bill of lading.
Customer and consignee are jointly and severally liable for payment of any transportation charges, unless the Customer indicates on the Bill of Lading that the freight charges are “collect” and “without recourse to the consignor,” and Company agrees in writing.
Company reserves the right to open and inspect all Cargo and reserves the right to refuse any Cargo. Company shall not package, crate, transport or handle any hazardous material, illegal items, or contraband.
Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
No waiver of any term herein is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise 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.
All non-public, confidential or proprietary information of the Parties, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the other Party in writing. Upon either Party’s request, the other Party shall promptly return all documents and other materials. The non-breaching Party shall be entitled to injunctive relief for the other Party’s breach of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Party at the time of disclosure; or (c) rightfully obtained by the Party on a non-confidential basis from a third party.
Customer shall indemnify, defend and hold harmless Company, including its officers, employees and affiliated companies, from and against any and all third party claims, demands, losses, damages, costs and expenses (including reasonable attorney’s fees, costs and expenses incidental thereto), connected with or resulting from injury to or death of persons or injury to tangible property, or violation of any applicable law or regulation arising out of Customer’s negligent acts or omissions or willful misconduct or violation of any law or regulation, in connection with the Goods or Services, provided that Company gives Customer (i) prompt written notice of any such claim; and (ii) at the Customer’s request, such reasonable assistance and information as is available for the defense of such claim. Customer shall not settle any claim on behalf of Company without its prior written consent, with shall not be unreasonably withheld or delayed.
The obligations of Company hereunder shall be suspended, and any failure or delay in performance shall be excused, for the duration of a Force Majeure Event, which shall include acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), public enemy, 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 Company’s workforce), impassible roads or bridges, or telecommunication breakdown or power outage.
The relationship between Customer and Company is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, 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.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule. Customer agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the U.S. District Court for the District of Massachusetts, or Suffolk County Superior Court, in each case located in the City of Boston, and Customer irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the address designated by the receiving party. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), electronic mail (with read-receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: indemnification, confidential information, governing law, submission to jurisdiction, and survival.
Company reserves the right to amended or modified these Terms from time to time in its sole discretion with or without notice to Customer.
These Terms expressly incorporate by reference the terms and conditions contained in the Company’s bill of lading, and together comprise the entire agreement between Customer and Company relating to the Goods and Services, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order. Acceptance of Customer’s purchase order by Company shall solely confirm the scope Services to be rendered, Goods to be sold, and the rate to be charged but shall not constitute Company’s acceptance of any of Customer’s terms and conditions and shall not serve to modify or amend these Terms.