Legal - Philly Cold Storage

PHILLY COLD, LLC – CONTRACT TERMS AND CONDITIONS FOR STORAGE

ACCEPTANCE
1. These Contract Terms and Conditions for Storage, including any additional terms or accessorial charges that may be provided (the “Agreement”), are accepted by the act of tendering products (“Goods”) for storage by, or accepting other services provided by Philly Cold, LLC (“Philly Cold”). You, or your organization, (the “Depositor”) has had the opportunity to review and inspect the warehouse facility, Philly Cold Storage, located at 3200 S. Lawrence Street – Philadelphia, PA 19148 (the “Facility”).
2. In the event that Goods tendered for storage or other services do not conform to the description provided by Depositor or any third-party acting as representative for Depositor, or the conforming Goods are tendered after 30 days from receipt of a proposal or quote from Philly Cold, without prior written acceptance, then Philly Cold may refuse to accept such Goods. If Philly Cold accepts such Goods, Depositor agrees to the rates and charges as may be assigned and invoiced by Philly Cold and to all terms and conditions of this Agreement.
3. Any Products or Goods accepted by Philly Cold shall constitute Goods under this Agreement.
4. This Agreement may be canceled by either party upon 30 days’ written notice and is canceled if no storage or other services are performed under this Agreement for a period of 180 days.
TENDER FOR STORAGE
1. Depositor agrees that all Goods for storage shall be delivered to the Facility in a segregated manner, properly marked and packaged for storage and handling.
2. Depositor shall furnish, at or prior to delivery, a manifest showing marks, brands or sizes to be kept and accounted for separately and the class of storage and other services desired. Otherwise, the Goods may be stored in bulk or assorted lots in freezer, cooler or general dry storage at the discretion of Philly Cold and at the applicable storage rate.
3. Philly Cold is not a guarantor of the condition of such Goods under any circumstances, including, but not limited to hidden, concealed, or latent defects in the Goods. Concealed shortages, damage, inherent vice or tampering will not be the responsibility of Philly Cold.
4. Receipt and delivery of the Goods shall be made without sorting except by special arrangement which may be subject to a charge.
5. Unless otherwise agreed to in writing, Philly Cold shall store and deliver Goods only in the packages in which they are originally received and shall not segregate Goods by production code date.
SHIPMENTS TO AND FROM PHILLY COLD
1. Depositor agrees that all Goods shipped to Philly Cold shall identify Depositor on the bill of lading or other contract of carriage as the consignee, in care of Philly Cold, and shall not identify Philly Cold as the consignee. If, contrary to this requirement, Goods are shipped to Philly Cold as consignee or shipped from Philly Cold as named shipper or consignor on the bill of lading or other contract of carriage, Depositor agrees to immediately notify carrier in writing, with copy of such notice to Philly Cold, that Philly Cold named as consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, Philly Cold shall have the right to refuse such Goods and shall not be liable for any loss, mis-consignment, or damage of any nature to, or related to, such Goods. The parties agree that, regardless of whether Philly Cold is incorrectly identified as named consignee, or Depositor fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall Philly Cold be considered the consignee for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether Philly Cold is named as an “agent” for purposes of 21 U.S.C. § 350d or receives notification from the U.S. government with respect to confirmation of Philly Cold’s status as “agent” under 21 U.S.C. § 350d, under no circumstances shall Philly Cold be an agent for purposes of identifying the “importer”. Philly Cold shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether Philly Cold accepts or refuses Goods shipped in violation of this Section, Depositor agrees to indemnify and hold Philly Cold harmless from all claims for transportation, storage, handling, and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention, and any fines, penalties, costs and expenses (including attorney’s fees), and other charges of any nature whatsoever resulting from Depositor’s failure to comply with the requirements of this Section.
TERMINATION OF STORAGE
1. Philly Cold may, upon written notice, require the removal of the Goods, or any portion thereof, from the Facility within a stated period, not less than 30 days after such notification. Such notice shall be given to the last known place of business of the person to be notified. If said Goods are not removed, Philly Cold may sell them as provided by law and shall be entitled to exercise any other rights it has under the law with respect to said Goods.
2. If, in the good faith opinion of Philly Cold, Goods may be about to deteriorate or decline in value to less than the amount of Philly Cold’s lien before the end of the 30-day notice period referred to in Section 4(a), Philly Cold may specify in the notification any reasonable shorter time for removal of the Goods and if 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. If as a result of a quality or condition of the Goods of which Philly Cold had no notice at the time of deposit, the Goods are a hazard to other property or to the Facility or to persons, Philly Cold may: i) sell the Goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the Goods, ii) return Goods freight collect, or iii) dispose of Goods. Pending such disposition, sale or return of the Goods, Philly Cold may remove the Goods from the Facility and shall incur no liability by reason of such removal.
4. If, after a reasonable effort, Philly Cold is unable to sell the Goods pursuant to its lien or this Section 4, Philly Cold may dispose of the Goods in any lawful manner and shall incur no liability by reason of such disposition.
STORAGE LOCATION
1. The Goods shall be stored, at Philly Cold’s discretion, at any one or more buildings at the Facility. Philly Cold may, without notice, move the Goods within and between any one or more of the warehouse buildings which comprise the Facility.
2. Upon ten days’ written notice to Depositor, Philly Cold may, at its expense, move the Goods to any other warehouse operated by Philly Cold.
STORAGE CHARGES
1. Unless otherwise agreed in writing, all charges for storage are per package or other agreed unit per month as per available space.
2. Storage charges commence upon the date that Philly Cold accepts care, custody and control of the Goods, regardless of unloading date or date the warehouse receipt is issued.
3. If storage rates are quoted on a “SPLIT MONTH BASIS” the storage month shall be a calendar month. A full month’s storage charge will apply to all Goods received between the 1st and 15th, inclusive, of a calendar month. One half month’s storage charge will apply on all Goods received between the 16th and last day, inclusive, of a calendar month. A full month’s storage charge shall apply on the 1st day of the next calendar month and each month thereafter on all Goods then remaining in storage.
4. If storage rates are quoted on an “ANNIVERSARY BASIS” the storage month shall extend from date of receipt in one calendar month to, but not including the same date of the next month. If there is no corresponding date in the next month, the storage month shall end on the last day of said next month. A full month’s storage charge shall apply on receipt of Goods and an additional monthly storage charge shall apply on each successive storage month on all Goods then remaining in storage.
5. Philly Cold’s storage and other charges are set forth in the rate quotation or other document issued by Philly Cold to Depositor and/or Philly Cold’s tariff and may be increased on 30 days’ notice.
6. Unless Philly Cold specifies otherwise, all storage charges are fully earned and are due and payable on the 1st day of storage for the initial month and thereafter on the 1st day of each storage month.
7. Rates quoted by weight will, unless otherwise specified, be computed on gross weight.
HANDLING CHARGES
1. Unless otherwise specified, handling charges cover only the ordinary labor involved in receiving Goods at the Facility door, placing Goods in storage and returning Goods to the Facility door during Philly Cold’s normal business hours. Handling charges are due and payable on receipt of Goods.
2. Unless otherwise specified, a charge in addition to the regular handling charges will be made for labor for unloading and loading Goods and any work performed by Philly Cold other than as specified in Section 7(a). Additional expense in unloading from or loading into cars or other vehicles not at the Facility door will be charged to Depositor.
3. Labor and materials used in loading rail cars or other vehicles are chargeable to Depositor.
4. When Goods are ordered out in quantities less than in which received, Philly Cold may make an additional charge for each order or each item of an order.
5. Delivery by Philly Cold of less than all units of any lot shall be made without subsequent sorting except by special arrangement which may be subject to an additional charge.
TRANSFER; DELIVERY
1. Instructions by Depositor to transfer Goods to the account of another are not effective until accepted by Philly Cold. Charges will be made for each transfer, and 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 warehouse receipt, a new storage date is established on the date of transfer.
2. No Goods shall be delivered or transferred except upon receipt by Philly Cold of Depositor’s complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, E-Mail or similar communication, provided Philly Cold has no liability when relying on the information contained in the communication as received. Goods may be delivered upon instruction by telephone or electronically in accordance with Depositor’s prior written authorization, but Philly Cold shall not be responsible for loss or error occasioned thereby. Philly Cold 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.
3. Philly Cold shall have a reasonable time to make delivery after Goods are ordered out and shall have a minimum of ten business days after receipt of a delivery order in which to locate any misplaced Goods.
4. If Philly Cold is unable, due to any cause beyond its control, to effect delivery before expiration of the then current storage period, the Goods may, at Philly Cold’s discretion, be subject to storage charges for each succeeding storage period.
5. Upon termination of the storage relationship for any reason, Philly Cold may refuse to deliver the Goods until it has been fully paid for all charges then due regardless of the payment terms otherwise applicable to such charges.
CHARGES AND OTHER SERVICES
1. All charges not paid within 30 days from the due date are subject to an interest charge, from the date said charge became due until paid, at the lesser of 2% per month or the maximum amount allowed by law. Any dispute as to the amount of the invoice shall be claimed in writing within 30 days from the date of invoice. Depositor may not offset payment of invoices under any circumstances without the prior written consent of Philly Cold.
2. Philly Cold shall supply dunnage, bracing, packing materials, fastenings, and other special supplies at Depositor’s request or where it deems appropriate on outbound shipments and the cost thereof is chargeable to Depositor.
3. Depositor shall indemnify, defend, and hold Philly Cold harmless from all loss, costs, penalties, claims, expenses (including reasonable attorney’s fees) for transportation, storage, handling and other charges related to the Goods, including but not limited to undercharges, rail demurrage, truck/intermodal detention and other charges, asserted by any third-party. Philly Cold shall not be liable to Depositor 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 such detention or demurrage charge or delay was caused solely by Philly Cold’s failure to exercise reasonable care as determined by industry practice.
4. An additional charge will be made for bonded storage. Where a warehouse receipt covers Goods in U.S. Customs bond, Philly Cold shall have no liability for Goods seized or removed by U.S. Customs.
5. Philly Cold may assess an additional charge when Goods, designated for cooler or freezer storage, are received at temperatures more than five degrees Fahrenheit above the applicable room temperature. Philly Cold shall not be responsible for blast freezing Goods unless Depositor specifically requests such services in writing.
6. All storage, handling and other services may be subject to minimum charges as agreed upon by the parties.
7. Depositor shall reimburse Philly Cold for the cost of all pallets supplied by Philly Cold.
8. Philly Cold may charge Depositor an energy surcharge in the event of an increase in Philly Cold’S energy costs by providing Depositor with no less than 30 days prior notice.
9. Philly Cold shall not be responsible for chargebacks of any kind.
LIABILITY AND LIMITATION OF DAMAGES
1. Philly Cold shall not be liable for any loss or destruction of or damage to Goods tendered, stored or handled, however caused, unless such loss, destruction or damage resulted from Philly Cold’s failure to exercise such care in regard to the Goods as a reasonably careful person would exercise under like circumstances. Philly Cold shall not be liable for any loss or destruction of or damage to Goods that could not have been avoided by the exercise of such care.
2. Philly Cold and Depositor agree that Philly Cold’s duty of care referred to in Section 10(a) does not extend to providing a sprinkler system at the Facility or any portion thereof.
3. Unless specifically agreed to in writing, Philly Cold shall not be required to store Goods in a humidity-controlled environment or be responsible for tempering Goods.
4. IN THE EVENT OF LOSS OR DESTRUCTION OF OR DAMAGE TO GOODS FOR WHICH PHILLY COLD IS LEGALLY LIABLE, DEPOSITOR DECLARES THAT PHILLY COLD’S LIABILITY SHALL BE LIMITED TO THE LESSER OF THE FOLLOWING: (1) THE ACTUAL COST TO DEPOSITOR OF REPLACING, OR REPRODUCING THE LOST, DAMAGED, AND DESTROYED GOODS TOGETHER WITH TRANSPORTATION COSTS TO PHILLY COLD, (2) THE FAIR MARKET VALUE OF THE LOST, DAMAGED, AND DESTROYED GOODS ON THE DATE DEPOSITOR IS NOTIFIED OF SUCH LOSS, DAMAGE AND DESTRUCTION, (3) 50 TIMES THE MONTHLY STORAGE CHARGE APPLICABLE TO SUCH LOST, DAMAGED AND DESTROYED GOODS, (4) $0.50 PER POUND FOR SAID LOST, DAMAGED, AND DESTROYED GOODS. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER RECEIPT OF THIS AGREEMENT, DEPOSITOR MAY REQUEST, IN WRITING, AN INCREASE IN PHILLY COLD’S LIABILITY ON PART OR ALL OF THE GOODS IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION; FURTHER PROVIDED THAT NO SUCH REQUEST SHALL BE VALID UNLESS MADE BEFORE LOSS OR DESTRUCTION OF OR DAMAGE TO ANY PORTION OF THE GOODS HAS OCCURRED.
5. Philly Cold’s liability referred to in Section 10(d) shall be Depositor’s exclusive remedy for any claim or cause of action whatsoever relating to loss or destruction of or damage to Goods and shall apply to all claims including inventory shortage and mysterious disappearance claims unless Depositor proves by affirmative evidence that Philly Cold converted the Goods to its own use. Depositor waives any right to rely upon any presumption of conversion imposed by law.
6. Where loss or damage occurs to tendered, stored, or handled Goods, for which the Philly Cold is not liable, Depositor shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental cleanup and site remediation resulting from the loss or damage to the Goods.
7. If Philly Cold negligently mis-ships Goods, Philly Cold, at its option, shall pay the reasonable transportation charges to return the mis-shipped Goods to the Facility or the value of the mis-shipped Goods based upon Section 10(d). Philly Cold shall have no liability whatsoever for any damages due to the consignee’s acceptance or use of the Goods.
CONSEQUENTIAL DAMAGES
1. With respect to any claim arising from or related to this Agreement, or otherwise arising from the relationship of the parties, in no event will Philly Cold be liable for special, indirect, exemplary, punitive, or consequential damages of any kind, including but not limited to lost profits, lost sales, or damages due to business interruption, regardless of whether such damages were foreseeable or Philly Cold had notice of the possibility of such damages.
RECALL
1. In the event a recall, field alert, product withdrawal or field correction (“Recall”) may be necessary with respect to any Goods provided under this Agreement, Depositor shall immediately notify Philly Cold in writing. Philly Cold will not act to initiate a Recall without the express prior written approval of Depositor unless otherwise required by applicable laws. The cost of any Recall shall be borne by Depositor. Depositor shall indemnify and hold harmless Philly Cold from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which Philly Cold pays or incurs as a result of a Recall.
NOTICE OF CLAIM AND FILING OF SUIT
1. Philly Cold shall not be liable for any claim of any type whatsoever including, without limitation, any claim for loss or destruction of or damage to Goods by Depositor or others unless such claim is presented, in writing, within a reasonable time, not exceeding the earlier of (1) 60 days after delivery of Goods by Philly Cold or (2) 60 days after Depositor learned or, in the exercise of reasonable care, should have learned of such loss or destruction of or damage to the Goods or the basis for any other claim against Philly Cold. Each claim must contain information necessary to identify the Goods affected, the basis for liability and the amount of the alleged loss or damage, as well as all appropriate supporting documentation.
2. As a condition precedent to filing any lawsuit or other action, Depositor shall provide Philly Cold with a reasonable opportunity to inspect the Goods which are the basis of Depositor’s claim.
3. NO LAWSUIT OR OTHER ACTION MAY BE MAINTAINED BY Depositor OR OTHERS AGAINST Philly Cold UNLESS A TIMELY WRITTEN CLAIM HAS BEEN MADE AS PROVIDED IN SECTION 13(a) AND UNLESS SUCH LAWSUIT OR OTHER ACTION IS COMMENCED WITHIN THE EARLIER OF (1) NINE (9) MONTHS AFTER DELIVERY OF Goods BY Philly Cold OR (2) NINE (9) MONTHS AFTER Depositor LEARNED OR, IN THE EXERCISE OF REASONABLE CARE, SHOULD HAVE LEARNED OF THE LOSS OR DESTRUCTION OF OR DAMAGE TO THE Goods OR THE BASIS FOR ANY OTHER CLAIM AGAINST Philly Cold.
4. When Goods have not been delivered, notice may be given of known loss or damage to the Goods by mailing a letter via certified mail or overnight delivery to the Depositor. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by Philly Cold.
INSURANCE
1. Goods are not insured by Philly Cold and the storage rates do not include insurance on the Goods.
LIEN
1. Philly Cold shall have a general warehouse lien against the Goods and on the proceeds thereof for all charges for storage, handling, transportation (including detention, demurrage and terminal charges), insurance, labor and other charges present or future with respect to the Goods, advances or loans by Philly Cold in relation to the Goods and for expenses necessary for the preservation of the Goods or reasonably incurred in their sale pursuant to law. Philly Cold further claims a general warehouse lien on the Goods for all other such charges, advances and expenses due Philly Cold or any related entity from Depositor for property stored by Depositor in any warehouse owned or operated by Philly Cold or any related entity wherever located. Philly Cold reserves the right to require advance payment of all charges prior to releasing Goods regardless of otherwise applicable payment terms. Unless expressly stated otherwise in writing, Philly Cold will not subordinate its lien to any lender, financial institution, or any other third party.
FORCE MAJEURE
1. Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under this Agreement, except for Depositor’s obligation to pay for services rendered by Philly Cold, when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, viruses, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of Goods, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the party. Upon the occurrence of such an event the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires Philly Cold to continue to protect the Goods, Depositor agrees to pay the storage or similar charges associated with Philly Cold’S obligation during the continuance of the force majeure. All Goods are stored, handled, and transported at Depositor’s sole risk of loss, damage, or delay caused by any of the above.
AUTHORITY
1. Depositor represents and warrants that it is lawfully possessed of the Goods and has the right and authority to store them with Philly Cold. Depositor agrees to indemnify and hold harmless Philly Cold from all loss, cost, and expense (including reasonable attorneys’ fees) that Philly Cold pays or incurs as a result of any dispute or litigation, whether instituted by Philly Cold or others, respecting Depositor’s right, title, or interest in the Goods. Such amounts shall be charges in relation to the Goods and subject to Philly Cold’s warehouse lien.
ACCURATE INFORMATION
1. Depositor represents and warrants to Philly Cold that there are no known potential health, safety and/or environmental hazards associated with the storage and handling of the Goods that have not been disclosed to and acknowledged by Philly Cold. Notwithstanding, Depositor will provide Philly Cold with information concerning the Goods that is accurate, complete, and sufficient to allow Philly Cold to comply with all laws and regulations concerning the storage, handling, and transporting of the Goods. Depositor will indemnify and hold Philly Cold harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) that Philly Cold pays or incurs as a result of Depositor failing to fully discharge this obligation.
INVENTORIES
1. Philly Cold will take physical inventories, and cycle counts as requested by Depositor, at Depositor’s expense. Representatives of Depositor and Philly Cold personnel, as well as any independent auditor or designee, may be present when any physical inventory is taken.
NOTICES
1. All written notices required herein may be transmitted by any commercially reasonable means of communication and directed to Philly Cold at the address on the front hereof and to Depositor at its last known address. Depositor is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section 20 within five days of transmittal.
CONFIDENTIALITY
1. The parties shall keep in confidence and not disclose to any third party (i) the terms of this Agreement, and (ii) any confidential or proprietary information (“Confidential Information”) that either learns about the other party, such as, but not limited to, the rates, value, origin, destination, or consignee of any Goods or shipment made hereunder. The parties may disclose such terms and information to the extent required by law, to obtain financing, to substitute service providers to the extent necessary to provide such substitute service, or to auditors retained for the purpose of assessing the accuracy of freight bills.
2. Philly Cold will maintain and enforce safety and physical security procedures with respect to its possession and maintenance of Confidential Information that comport with the standard of care outlined in Section 10(a) of this Agreement, and which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure, removal or access of Confidential Information. Philly Cold will not be liable for any breach of security or unauthorized access affecting Confidential Information which could not be avoided by the exercise of such reasonable care.
WAIVER, SEVERABILITY AND ASSIGNMENT
1. Philly Cold’s failure to insist upon strict compliance with any provision of this Agreement shall not constitute a waiver of or estoppel to later demand strict compliance with said provision or to insist upon strict compliance with all other provisions of this Agreement.
2. In the event any Section of this Agreement or part thereof shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining Sections and parts shall not, in any way, be affected or impaired thereby.
3. Depositor shall not assign or sublet its interest or obligations herein, including, but not limited to, the assignment of any monies due and payable, without the prior written consent of Philly Cold.
DOCUMENTS OF TITLE
1. Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the parties.
GOVERNING LAW AND JURISDICTION
1. This Agreement and the legal relationship between the parties hereto shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, including Article 7 of the Uniform Commercial Code as ratified in that state, notwithstanding its conflict of laws rules. Any lawsuit or other action against Philly Cold involving any dispute, claim or controversy relating in any way to this Agreement must be brought in the Commonwealth of Philadelphia, in Philadelphia County, or if Federal, in the Eastern District of Pennsylvania where Philly Cold is located.
ENTIRE AGREEMENT
1. This Agreement constitutes the entire agreement between Philly Cold and Depositor relating to the Goods 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 Philly Cold and Depositor.

Revised 10/1/24