FreshOne

white-hd-logo-2

Warehousing and Storage Services Addendum

FreshOne Foods, LLC

Warehousing and Storage Services Addendum

The Warehousing and Storage Services Agreement and Warehouse Receipt (the “Agreement”), has been entered into by and between FreshOne Foods LLC, a Texas limited liability company, whose principal office address is 14180 Dallas Parkway, Suite 620, Dallas, Texas 75254 (“F1F” or “Company”) and Customer, whose name and address are included on its Bill of Lading or other shipping documents (each a “Party” and, collectively, the “Parties”), as of the date of tender/delivery of Goods by Customer to F1F (the “Effective Date”). It is agreed and understood that, upon Customer’s tender/delivery of Goods to F1F, Customer shall be deemed to have accepted this Agreement without modification or amendment (except as provided herein). It is further expressly acknowledged and agreed that the Agreement incorporates by reference all of the terms, conditions and provisions of this Addendum, which can be found at www.fresh-one.com/www-fresh-one-com-warehouse-and-storage-agreement, as such may be modified by FreshOne from time to time in its sole discretion (the “Addendum”).  Accordingly, in consideration of F1F’s acceptance of such tender/delivery by Customer, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to the following terms and conditions of the warehousing and storage services provided by F1F to Customer as follows:

1. It is expressly understood that this Warehouse Receipt does not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage, or other services that Company has provided or may provide to the Customer.

2. Definitions. As used in this Agreement:

(a) “Customer” means the person, company, firm, or other entity for whom the Goods are stored and the services contemplated hereby are provided, as identified on the Bill of Lading relating to the Goods tendered by such Customer; and,

(b) “Goods” means the property tendered to Company by Customer for which Company has agreed to store pursuant to this

(c) Ownership of Goods. Customer warrants that it is the lawful owner and/or has lawful possession of the Goods tendered for storage. Customer warrants that it has sole legal rights to store Goods tendered, to release Goods, and to instruct Company regarding delivery or disposition of the Goods. Customer agrees to notify all parties acquiring any interest in the Goods of the terms and conditions of this Agreement and further agrees to indemnify and hold Company harmless from any claim by third parties relating to the ownership, storage, handling or delivery of Goods, or from any other services provided by Company under this Agreement. Such indemnification shall include any legal fees or costs incurred from any claim by a third party, regardless of whether or not litigation is actually filed.

4. Storage

a. Company agrees to receive, store, and release the Goods in accordance with Customer’s reasonable instructions and subject to the terms, conditions and provisions of this

b. Customer agrees that all Goods must be stored on pallets consisting of single SKUs unless the pallet is being delivered and released as a single unit. Any Goods being delivered with the intent for F1F to provide pick & pack, direct-to-customer, or other services must be separated onto single SKU.

c. If Company determines that the original palletization of Goods must be broken down for storage purposes, Company shall be authorized to break down the pallets without further notice required to

d. Company may provide additional services to Customer as requested and as Additional charges for those services will be agreed upon with Customer and will be invoiced to Customer in addition to any storage charges due.

5. Termination of Company reserves the right to terminate storage and to require the removal of the Goods, or any portion thereof, by giving Customer thirty (30) days advance written notice. Customer shall be responsible for payment of all charges attributable to said Goods within the stated period and for removing the Goods from the warehouse upon payment of all charges. If the Goods are not so removed, Company may exercise its rights under applicable law including but not limited to selling the Goods.

6. Customer’s Warranties and Tender for

a.  Customer warrants that the Goods are properly marked, packaged, labeled and classified for handling and are fit for the safe and proper warehousing, handling, storage and transportation contemplated under this Agreement, all in accordance with applicable law, regulation or industry Customer shall supply such information and documents as are necessary to comply with all applicable laws, rules and regulations. Company will not accept Goods that are not properly packaged or which, in the reasonable opinion of Company, are not suitable for movement or storage within the warehouse or for transportation in accordance with applicable laws, rule and regulations.

b. Customer shall furnish, prior to or upon delivery of the Goods to Company, a manifest showing marks, brands or sizes to be accounted for separately and the class of storage desired, if applicable.

c. Hazardous Materials. Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Company. Customer warrants that the Goods shall be limited to the permissible materials and quantities described in the then-current and applicable federal, state and local regulations, and shall properly and accurately describe the Goods, and provide Company with all necessary or useful information for the safe storage and handling of the Goods, including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Customer breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any unfit Goods to Company, Company shall be entitled to exercise all available remedies including the immediate destruction or removal of the Goods from the warehouse without notice to In the event of the foregoing breach of any Customer warranties, Customer shall be liable for all expenses costs, losses, damages (including consequential and compensatory damages), fines, penalties or other expenses of any sort incurred by Company in connection with the removal, or destruction, or handling of the Goods and shall indemnify Company from and against all amounts, liabilities, claims, or damages arising in connection with the Goods.

d. Customer warrants its compliance with all applicable laws, rules, and regulations in respect of the Goods and the services requested to be performed by Company, including but not limited to customs laws, import and export laws, as well as with the S. Foreign Corrupt Practices Act and similar laws related to anti-corruption and anti-bribery.

7. Payment Terms & Collection Expenses. Company shall issue monthly invoices to Customer for warehousing and storage services provided to Customer, which shall be due and payable within 14 days of the invoice date unless otherwise agreed by the Parties in All invoices not paid by the due date will be subject to a late fee of 2% per month, or the maximum rate then allowable under applicable law. If it becomes necessary for Company to utilize a collection agency and/or an attorney to collect any unpaid amount owed or to assist in effectuating the lien provisions herein, Customer shall be obligated to pay all costs of collection, including without limitation agency fees, attorneys fees, court costs and other reasonably incurred expenses.

8. Lien Rights. F1F will be considered a warehouseman as described in Article 7 of the Uniform Commercial Code (“UCC”), as adopted in the State of Texas, and shall be entitled to all rights and subject to all obligations described Company shall have, and Customer hereby grants to Company, a warehouseman’s lien on any and all Goods tendered by Customer and upon any and all property belonging to Customer in Company’s possession, custody or control, and upon the proceeds from the sale thereof, for all charges, advances or amounts of any kind due to Company or its affiliates under this Agreement or under any prior or subsequent invoices issued to Customer by Company or its affiliates (including charges for storage, handling, transportation, demurrage, terminal charges, insurance, labor, and any other charges incurred). Company may refuse to surrender possession of the Goods until all charges or debts are paid in full. If such amounts remain unpaid for 30 days after Company’s demand for payment (or as otherwise required under applicable law), Company may sell the Goods at public auction or private sale or in any other manner reasonable, and shall apply the proceeds of such sale to the amounts owed. Customer shall remain responsible for any financial deficiency outstanding to Company.

a. Company shall not be liable for any loss of, destruction of, or damage to the Goods, however caused, unless such loss, damage or destruction resulted from Company’s gross negligence while the Goods are in its care and Company shall not be liable for damages which could not have been avoided in undertaking its exercise of such care.

b. In no event shall Company be liable for any loss or damage caused by:

i. acts of God, public authorities acting with actual or apparent authority, disease, virus or infection, strikes, labor disputes, weather, mechanical or equipment failures, cyber-attacks, civil commotions or disturbances, hazards incident to a state of war, acts of terrorism, acts or omissions of customs or quarantine officials, acts of carriers related to security, the nature of the freight or any defects thereof, inherent vice of the goods, perishable qualities of the merchandise, fires, frost or change of weather, sprinkler leakage, floods, wind, storm, moths, insects or other varmints, public enemies, or other causes beyond its control;

ii. fragile articles that are damaged or broken, unless packed by Company’s employees and unpacked by them at the time of delivery;

iii. pilferage or theft, unless such loss or damage is caused by the failure of Company to exercise such ordinary care required by law; or,

iv. concealed or latent damage, or losses incurred due to the concealed or latent damage of the

c. Limitation of Liability: In the event of loss or damage to the Goods for which Company is liable, Company’s maximum liability shall be limited to the actual value of the Goods, subject to a maximum of USD $.50 per pound of goods stored, unless: i) Customer declared in writing a higher value of the goods at the time of tender; ii) Company agreed in writing to such value and to purchase insurance for Customer’s benefit in respect of the Goods so tendered; and, iii) Customer has paid Company the supplementary charge in accordance with the terms so described.

d. In no event shall Company be responsible for loss or damage to documents, stamps, securities, artwork, heirlooms, jewelry or other articles of high and unusual value unless a special and specific agreement in writing is made between Company and Customer with respect to such

e. No Consequential Damages. IN NO EVENT, WHETHER AS A RESULT OF A BREACH OF COMPANY’S DUTIES, NEGLIGENCE, LIABILITY WITHOUT FAULT OR ANY OTHER LEGAL THEORY OR BASIS, SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO CUSTOMER’S LOSS OF PROFITS, USE, MARKET VALUE OR INCOME IN RESPECT OF THE GOODS, ATTORNEYS FEES, WRONGFUL OR DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, OR DAMAGE TO PROPERTY, OR THE COST OF SUBSITUTED GOODS, WHETHER OR NOT COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT

9. Insurance

a. Prior to or concurrently with the initial tender of Goods by Customer to Company (and not less than annually thereafter), each Party will deliver (for purposes of this Section, the “Delivering Party”) to the other Party (for purposes of this Section, the “Receiving Party”) with certificates of insurance (and/or such other evidence as a Party may reasonably request) that the following insurance coverages are in force on behalf of the Delivering Party: i) comprehensive general liability insurance reflecting minimum coverage as follows: i) $1,000,000 for each occurrence/$2,000,000 in the aggregate for bodily injury; and $500,000 per occurrence/$2,000,000 in the aggregate for property damage; ii) Commercial Auto Liability insurance with limits of $1,000,000 per occurrence for Bodily Injury and Property Damage. Such insurance will apply to both owned and non-owned vehicles; iii) Workers’ Compensation insurance covering the Delivering Party’s obligations under all applicable laws and Employers Liability insurance in the amount of $500,000 per occurrence; and, iv) Umbrella Excess Liability insurance in the amount of $5,000,000.

All policies of insurance (and such certificates of insurance) will: x) name the Receiving Party as an additional insured (except Workers Compensation); y) provide for waiver of underwriters rights of subrogation against the Receiving Party; and, z) provide that such coverage may not be canceled or altered except upon not less than 30 days prior written notice being given to Receiving Party.

b. Customer acknowledges that the storage rates and charges billed to Customer do not include any insurance on the Goods beyond the coverage detailed in paragraph 9a of this Agreement. Customer may request that the Company obtain additional insurance for the Customer’s benefit; provided that the Customer pays the required premium to Company for such additional insurance. Except as provided above, Company will not obtain additional insurance on the Goods for Customer’s benefit while the Goods are being stored at Company’s

c. Company will not be responsible for losses or damages incurred to Perishable Goods beyond their expiration

d. Inspection & Security. All shipments are subject to inspection by Company or Company’s Carriers for any transportation services provided, if any, and by any duly authorized government or regulatory entities, including but not limited to the S. Transportation Security Administration and U.S. Customs and Border Protection. Notwithstanding the foregoing right to inspect shipments, Company is not obligated to perform any inspections except as mandated by law. Further, Company reserves the right to unilaterally reject any shipment that it deems unfit for transport, or for storage under this Agreement, after inspection.

10. Default and Termination.

(a)Notwithstanding the Term, FreshOne shall have the right to terminate this Agreement, without penalty, as follows:

(i) Client’s insolvency, liquidation, or if Client has a receiver appointed for any of its assets:

(ii) Client’s failure to maintain its account in good standing, by allowing its invoices to age more than 60 days past due; or,

(iii) Client’s breach of this Agreement and a failure to cure such breach (or be diligently proceeding to effect a cure) within 30 days of written notice from FreshOne specifying such breach.

(b) Notwithstanding the Term, Client shall have the right to terminate this Agreement, without penalty, as follows:

(i) FreshOne’s material breach of this Agreement and a failure to cure such breach (or be diligently proceeding to effect a cure) within 30 days of written notice from Client specifying such breach; or,

(ii)FreshOne’s insolvency, liquidation, or if FreshOne has a receiver appointed for any of its

(c) Upon any expiration or termination of this Agreement, provided that Client’s account is paid in full, FreshOne will promptly deliver to Client all of Client’s Products and Packaging Materials in FreshOne’s possession or control, and shall continue to comply with this Agreement until such items have been returned to Client. The provisions of Sections 2, 4, 5 and 8 of the Agreement and Sections 3, 5, 7, 8, 9, 10, 12, 13, 14, 15 and 16 of this Addendum shall survive any termination of expiration of this

  1. Notice of Claim and Filing of Suit

(a) Company shall not be liable for any claim whatsoever for any loss, damage, or destruction of the Goods unless it is timely filed, in writing, within a maximum of sixty (60) days after Customer knew or should have known by the exercise of reasonable care of such loss or

(b) Any lawsuit or other claim against Company with respect to the Goods shall be forever waived unless commenced within one year after Customer knew or should have known by the exercise of reasonable care about such loss or damage.

14. Notices. All written notices herein may be transmitted by any commercially reasonable means of communication providing delivery receipt to the  sender, and shall be directed to Company at the address listed above and to Customer at the address provided by the Customer for billing, unless otherwise instructed by either Party in writing.

15. Governing Law. This Agreement shall be governed by the laws of the State of Texas, without reference to its conflict of laws

16. Merger; Waiver; Severability. This Agreement, including any agreement into which this Agreement may be incorporated by reference, constitutes the entire understanding between Customer and Company regarding the storage of the Goods and services provided and, as such or so incorporated, supersedes all prior or contemporaneous verbal or written negotiations, statements, representations, or In the event of a conflict between the terms of this Agreement and the Addendum, the terms of the Agreement shall prevail.

17. This Agreement may not be modified except for a written agreement between Customer and an officer of Company. If any section or portion of this Agreement is held by any court to be illegal or unenforceable it shall not affect the legality or enforceability of the remaining provisions or terms and conditions herein. Company’s failure to insist upon strict compliance with any provision of this Agreement shall not constitute a waiver or estoppel to later demand strict compliance thereof nor to insist upon strict compliance with all other provisions of this Agreement.

18. Headings Not The use of headings in this Agreement are for ease of reference only. Headings shall have no effect and are not considered to be part of or a term of these Terms and Conditions.