Customer warrants that it is the owner and/or has lawful
possession of the goods and that it has sole legal right
to store and thereafter direct the release and/or delivery
of the goods. Customer agrees to indemnify and hold harmless
(including legal fees and costs) Keystone Cold, LLC. (hereinafter
"Keystone") of and from any claim by others relating
to the ownership, storage and release of the goods, and/or
any other services provided by Keystone under this Receipt.
2. Services. Keystone shall receive, store and release the
goods in its Facility identified on the face hereof. Keystone
may provide other services as requested by Customer, at
the rates set forth on Keystone's Rate Sheet or standard
rates for the same; such additional services shall be provided
by Keystone not as a bailee or warehouseman but, rather,
solely as agent for Customer.
3. Rates/Charges. Rates/Charges shall be as identified on
the face hereof and/or Keystone's Rate Sheet in effect at
the time such charge accrues or the service is performed.
Rate Sheets shall be provided at the time of deposit of
goods into storage and/or upon request. Additional handling
charges shall apply whenever goods are moved including to
a platform for delivery. When part of a lot is transferred
and/or physical separation of items is requested, labor
and other charges may also apply. Charges for additional
services performed by Keystone shall be separately billed
as such services are performed or upon delivery of goods.
Customer as well as the shipper, owner and consignee of
the goods, and the goods themselves, shall be jointly and
severally liable for all charges.
4. Payment. All charges are net, due and payable without
offset or deduction within ten (10) days from date of invoice.
Charges due but not paid shall accrue interest at one and
one-half percent (1 1/2%) per month from date due until
paid in full. Should Customer fail to pay any sum when due,
all charges relating to any of Customer's lots stored at
the Facility shall be immediately due and payable. Handling-out
charges shall be due and payable at the time the entire
lot of goods is removed from storage.
5. Warranties/Frozen Goods. In addition to the warranties
set forth in section 1, above, Customer warrants that the
information as to count, weight, description and condition
of the goods set forth on the face hereof and/or any delivery
documents are accurate and may be relied upon by Keystone.
Customer further warrants that all chilled or frozen goods
will be tendered with a uniform core temperature below that
at which the goods are to be stored, and that Keystone is
not responsible for freezing down or otherwise reducing
the temperature of the goods but, rather, only for maintaining
the ambient temperature in the Facility.
6. Special/Hazardous Goods. Customer must identify to Keystone
in writing and prior to deposit all goods requiring any
specialized handling or which are in any way dangerous and/or
hazardous, and Carrier must specifically agree to store
the same. If accepted by Keystone, Customer shall be solely
responsible for providing complete and accurate handling
and storage instructions, including relevant safety procedures
and contact information, and shall complete all documents
and comply with all laws applicable to such goods. If the
special, dangerous or hazardous character of the goods creates
a risk of harm to persons or property, or makes the continued
storage thereof impractical, Keystone shall be at liberty
to discharge, store and/or dispose of such goods at Customer's
risk and expense.
7. Lien Rights/Security Interest. Pursuant to TEX. Bus.
& Com. Code § 7.209 and
U.C.C. § 7-209, Keystone shall have a warehouseman’s
lien upon all goods and property deposited with it by Customer
and upon the proceeds from the sale thereof for all charges
provided herein, including charges for storage, handling,
processing, transportation and/or labor and all other charges
and expenses relating to all lots of the Customer’s
goods stored any time in any Facility, and also for all
reasonable charges and expenses for notice, advertisement
and sale of the goods where default has been made, and for
all costs, including legal fees and costs, incurred in enforcing
such lien, collecting charges or defending itself in the
event Keystone is made party to any litigation concerning
such goods and/or property. This lien may be enforced by
Keystone at any time. Additionally, Customer grants a security
interest to Keystone in the goods and all proceeds derived
from the goods, for all charges and expenses other than
described above (including money advanced and interest),
whether incurred before or after delivery, and Customer
agrees to execute and deliver all such documents as may
be required to perfect such security interest. If goods
are transferred in a Facility from the account of one party
to another, and should the charges relating to such goods
not be paid in full on the date of such transfer, the lien
for such charges shall attach to the goods retained in the
warehouse by the transferor and to the goods transferred
to the transferee. Keystone may require a transferee to
acknowledge such lien rights prior to such transfer. If
litigation is brought by one party against the other to
enforce any of the provisions herein, the substantially
prevailing party shall be entitled to recover its legal
fees and costs.
8. Additions to Lot. Additional goods hereafter delivered
by Customer as part of this lot while this Receipt is outstanding
shall be deemed to be included herein and shall be subject
to the terms and conditions of this Receipt.
9. Corrections. Unless written notice is given to Keystone
within ten (10) days after receipt by Customer, this Receipt
shall be deemed complete and correct.
Termination. Keystone may, upon thirty (30) days written
notice to Customer, with or without cause, require the
removal of the goods or any portion thereof and payment
of all charges hereunder, whether or not there has been
default by Customer. If the goods are not removed, Keystone
may sell the goods and exercise any other rights it may
have by law. Without limiting the foregoing, Keystone
may require the removal of the goods or any portion thereof
(10) days written notice if in its opinion the goods have
or may have deteriorated in value to less than the amount
of Keystone's lien on such goods.
Keystone shall be responsible for exercising reasonable
care under the circumstances, and shall not be liable
for any loss, damage or injury to the goods that could
not have been avoided by the exercise of such reasonable
care. In the event of loss, damage, shortage, failure
to deliver and/or misdelivery involving the goods for
which Keystone is legally liable, Keystone shall be responsible
only for the lessor of (1) the actual cost of the product
at the time of receipt or (2) thirty cents (30¢)
per pound for such goods. If Customer has declared a higher
value and if Keystone has expressly agreed to the same,
Keystone shall be responsible for such only to the extent
of such declared higher value or the actual cost to repair,
restore and/or replace such goods, whichever is less.
An excess valuation charge may be assessed in the event
a higher value is declared by Customer. Customer agrees
that the foregoing shall be its exclusive remedy against
Keystone for any claim or cause of action whatsoever relating
to the goods or services hereunder.
12. Consequential Damages. KEYSTONE SHALL NOT BE RESPONSIBLE
OR LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES
OF ANY TYPE OR NATURE WHATSOEVER AND HOWEVER ARISING,
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF
INCOME, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION,
LOSS OR USE AND/OR LOSS OF ABILITY TO USE UNDAMAGED COMPONENT
OR SYSTEM PARTS, WHETHER RESULTING FROM NEGLIGENCE, BREACH
OF CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH
DAMAGES MAY HAVE BEEN FORESEEABLE BY ANY PERSON OR ENTITY.
13. Insurance. The goods are not and shall not at any
time be insured by Keystone. The charges assessed hereunder
do not include any insurance coverage.
14. Access and Delivery. The goods shall be ready for
delivery upon forty-eight
(48) hours notice to Customer upon presentation of a Release
Order executed by Customer, provided that all charges
have been paid in full. Keystone shall not be responsible
for any delay in delivery caused by conditions beyond
its control. No transfer of this Warehouse Receipt shall
be recognized unless all charges are paid, the transfer
is entered on Keystone's books and an additional charge
is assessed therefor. An additional charge will also be
assessed for any access to or partial delivery of goods.
If Keystone has been unable to remove/ deliver the goods
due to causes beyond its control, the goods shall be automatically
subject to storage charges for the next succeeding storage
period. Customer 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, and Customer agrees to indemnify
and hold harmless (including legal fees and costs) Keystone
of and from any liability, expenses and cost arising out
of and/or relating to any claim made by any such carrier
and/or third party.
15. Claims. Customer shall notify Keystone in writing
of any loss, damage, shortage, failure to deliver and/or
misdelivery of the goods within three (3) business days
from the date and time when such was initially discovered
by Customer. Customer must retain and permit Keystone
to inspect the relevant goods. All claims must be presented
to Keystone in writing within thirty (30) days after discovery
of such, and any suit must be commenced within two (2)
years following date claim was, or should have in the
exercise of diligence, been made. Failure to comply with
any of the foregoing shall preclude Customer from maintaining
any claim or suit against Keystone.
16. Extension of Benefits. All limitations upon, and exceptions
and defenses to, liability granted to Keystone shall be
automatically extended to all parent, subsidiary and affiliated
entities and all subcontractors of Keystone and the owners,
directors, officers, employees and agents of each of the
17. Law and Forum. The terms of storage and anything related
to this agreement are governed by the laws of the State
of Texas. All disputes, claims, and litigation relating
to this matter shall lie exclusively in Hidalgo County,
Texas. Customer agrees that Keystone shall recover its
reasonable legal fees and costs if it substantially prevails
in any litigation with Customer. THE PARTIES EXPRESSLY
WAIVE TRIAL BY JURY.
18. Execution. This Receipt may be executed in two or
more counterparts, each of which shall be deemed an original
and all of which together shall constitute a single instrument.
A facsimile signature shall be equivalent to an original.
19. Integration. The headings used above are for convenience
of reference only, and may not be construed so as to give
any substantive meaning to the agreement between the parties.
This Receipt, in conjunction with any Rate Sheet and Release
Order issued in connection herewith, constitutes the entire
agreement between Keystone and Customer, and may not be
altered or amended unless through a writing signed by