Standard Piano Storage Contract Warehousemen Terms and Conditions
Piano Artisans Inc.
633 West Katella Ave.,
Suite’s L , N, O & P,
Orange CA 92867
1. Applicability. These Standard Piano Storage Warehouseman Terms and Conditions (these “Terms and Conditions”) govern Piano Artisans Inc. (“Company”) warehousing, storing, and related services (individually and collectively, the “Services”) for those certain goods (the “Goods”) and for that certain depositor (the “Depositor”), each as more specifically set forth in a Work Order Request Form, in Company’s warehouse currently located at 633 W. Katella Ave., Suites L, N, O, & P, Orange, CA 92867 (the “Warehouse”). If Company intends to move the Warehouse to a different location, it will provide advance written notice thereof to the Depositor. The Services shall be provided pursuant to these Terms and Conditions, along with the information set forth on Work Order Request Form (the “Work Order”). These Terms and Conditions and the Work Order are sometimes collectively referred to herein as the “Agreement.” Company and Depositor are sometimes each referred to as a “Party” and collectively as the “Parties.”
2. Acceptance of Work Order and these Terms and Conditions. Depositor shall be considered to have accepted all the terms of the Work Order and these Terms and Conditions upon the earlier of either (a) executing the Work Order or these Terms and Conditions, including, without limitation, by electronic signature or other confirmation by electronic means; or (b) by depositing, or causing to be deposited, the Goods in the Warehouse. Company reserves the right to refuse acceptance of the Goods if Depositor does not tender the Goods in material compliance with all requirements set forth in the Work Order and these Terms and Conditions.
3. Term. The term of the Agreement commences upon acceptance by Depositor as set forth in Section 2 hereof and shall continue in full force and effect until the Goods are released from the Warehouse and all charges due to Company are paid in full unless terminated earlier in accordance with the provisions of these Terms and Conditions (the “Term”).
4. Storage Charges, Expenses, Additional Charges, and Taxes.
(a) Monthly Storage Charges. The monthly storage charges and related fees are set forth on the face of the Work Order. Goods are stored on a month-to-month basis. All rates are subject to change by Company every twelve (12) months.
(b) Expenses. In addition to the monthly storage charges, Depositor shall be responsible for the expenses set forth on the face of the Work Order and/or monthly invoice to Depositor (which may include labor and insurance charges).
(c) Additional Charges. If Depositor requests additional services other than those contemplated for hereunder, such services shall be billed to Depositor at Company’s then current rate therefor. No additional services shall be rendered by Company until and unless Depositor executes a written addendum (or additional Work Order issued pursuant to the Agreement) hereto setting forth any such services and related fees. Additional services may include, by way of example, receiving goods outside of normal business hours, supplying packing materials, or providing insurance for some or all the Goods.
(d) Taxes. All charges are exclusive of all applicable sales, use, and excise taxes, along with any other applicable taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable hereunder by Depositor. Depositor shall not be responsible for any taxes or similar charges to the extent imposed on Company’s income, revenues, or real or personal property.
5. Payments and Fees. Payments for the Services shall be made by Depositor to Company hereunder monthly pursuant to Company’s invoice issued in connection therewith. Payment shall be made by Depositor by the due date of such invoice. Invoices will be issued in advance of the month to which they relate. All payments hereunder shall be made in U.S. Dollars and delivered to Company at the address set forth on the face of the Work Order or by other means that the Company may designate in its sole discretion. Any amounts not paid by Depositor within five (5) business days of when due shall be subject an additional service charge of 15% of the amount past due. As set forth in these Terms and Conditions, release of Goods is subject to Depositor’s full payment obligations having been met in advance. If any amounts due to Company from Depositor becomes past due for any reason, Company may, at its option and without further notice, withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Company obligations hereunder. Notwithstanding the foregoing, Company reserves the right to enforce the lien granted to Company by these Terms and Conditions and all other rights afforded to Company under contract, by law, and in equity.
6. Tender of Goods. Depositor shall tender the Goods pursuant to the terms and conditions set forth in the Work Order, these Terms and Conditions, and Company’s reasonable instructions communicated to Depositor in connection therewith. Additionally, deposits should be:
(a) Made during Company’s normal business hours with proper advance written notice to the Company (along with Company’s prior approval of such date(s) and time(s) to properly prepare for any such delivery).
(b) At or prior to delivery of Goods, Depositor shall furnish a manifest showing the Goods to be tendered for storage, with any instructions concerning storage, services, accounting, segregation, or any other requirements relating to the Goods.
(c) Notwithstanding anything set forth in the Agreement, Company reserves the right to refuse acceptance of hazardous items, in whole or in part, in its sole discretion. To the extent that Company first discovers after acceptance of the Goods that some or all their contents are hazardous, Company shall be entitled, at Depositor’s sole risk and expense, to either: (i) immediately dispose of any such items; or (ii) require Depositor to promptly pick up and remove such items from the Warehouse.
(d) If Depositor tenders the Goods by way of shipment, the corresponding carriage agreement shall specify the Depositor, and not the Company, as the consignee (in care of Company). Without limitation on the foregoing, Company does not, and will not, maintain beneficial title or interest in the Goods. Without in any way limiting Depositor’s indemnification obligations set forth elsewhere in these Terms and Conditions, Depositor agrees to indemnify and hold harmless Company from all claims for unpaid transportation charges, including undercharges, demurrage, detention, or charges of any nature, in connection with Goods shipped to Company.
(e) Company, in its discretion, will comply with the reasonable requests of Depositor’s lender(s), if any, with respect to the Goods; provided, that: 1) The requests are in writing signed by Depositor and the lender; 2) Depositor agrees to pay Company for any additional services required by compliance with the lender’s requests; 3). Upon assuming control of the Goods, the lender shall be bound by the Agreement and agrees to pay Company for all outstanding amounts owed under the Agreement and fulfill any other obligations of Depositor; and 4). Company shall not be required to subordinate its lien created by these Terms and Conditions to the ender.
(f) Depositor represents and warrants that it is the owner or lawful possessor of the Goods, and that the entering into of the Agreement does not and will not result in Depositor being in violation of any law, rule, regulation, or agreement with any third party.
7. Services.
(a) Company shall receive and store the Goods at a climate-controlled facility.
(b) Company will exercise such care regarding the Goods as a reasonably careful person would
exercise under like circumstances.
(c) Any other specific services to be provided by Company as set forth in the Work Order shall be
performed by Company in a good and workmanlike manner.
8. Indemnification. Depositor shall indemnify, defend, and hold harmless Company, along with Company’s employees, officers, directors, shareholders, parent, subsidiaries, agents, contractors, successors, affiliates, and permitted assigns (collectively, the “Indemnified Parties”) from and against any loss, cost, expense, liability, or damage of any kind or nature (including without limitation reasonable outside attorneys’ fees and related costs) arising directly or indirectly out of Depositor’s breach of any of the terms of this Agreement (including without limitation its payment obligations) and/or its negligence or willful misconduct. Depositor may not settle any potential suit hereunder without Company’s prior written approval, with such approval not to be unreasonably withheld, conditioned, or delayed. If Depositor fails to assume the defense of a claim or Company reasonably determines that Depositor has failed to diligently assume and maintain a prompt and vigorous defense of any claim, Company may assume sole control of the defense of any claim and all related settlement negotiations with counsel of its own choosing, and Depositor will pay all reasonable costs and expenses (including reasonable outside attorneys’ fees) incurred by Company in such defense within thirty (30) days of each of Company’s written requests therefor.
9. Release of Goods. Provided that Depositor has paid all invoices in full, Depositor shall be entitled to request a release of the Goods tendered to Company. To do so, Depositor must provide Company with written notice detailing the Goods it would desire to have released. Company will use commercially reasonable efforts to release the requested Goods within a reasonable time following receipt of such written notice. Depositor shall be responsible for all costs and expenses associated therewith (including, without limitation, carrier, and other third-party charges). The Company may, without liability, rely upon the information and directions received in such written notice or other communication(s) with respect to such release.
10. Warehouse’s Lien on Goods. Company is hereby granted a warehouse’s lien on the Goods immediately upon their tender hereunder as well as upon the proceeds from any sale thereof in order to secure all of Depositor’s payment obligations hereunder (including without limitation all reasonable fees and expenses incurred in connection with the notice, advertisement, and sale of the Goods in the event of a default by Depositor; all reasonable costs, including outside attorneys’ fees, incurred in enforcing such lien; collection charges; and any costs the Company incurs in defending itself in the event it is made a party to any litigation concerning such Goods). Subject to the terms hereof and any applicable law, Company may enforce the lien at any time and from time to time, by selling the Goods in whole or in part, and applying the proceeds against the fees due to Company hereunder. Without limiting the foregoing, Company, in Company’s sole discretion, may impose an additional $275 dumping fee in addition to all other charges if Company takes possession of the Goods pursuant to the terms hereof.
11. Limited Warranty. Company shall not be liable for any loss, damage, or destruction, in whole or in part, to the Goods, other than if and to the extent that such loss, damage, or destruction is caused directly by Company’s gross negligence or willful misconduct with respect to its obligations hereunder. Depositor shall permit Company to inspect any claimed damage to the Goods at its convenience. In the case of loss, damage, or destruction to Goods for which Company is not liable, Depositor shall be responsible for all charges and related expenses of any kind incurred in removing and disposing of any such Goods. DEPOSITOR ACKNOWLEDGES AND AGREES THAT IT WAIVES ITS RIGHT TO MAKE ANY CLAIM OR FILE ANY LAWSUIT UNDER THIS SECTION 11 IF WRITTEN NOTICE DETAILING ANY ALLEGED LOSS, DAMAGE, OR DESTRUCTION HAS NOT BEEN PROVIDED BY DEPOSITOR TO COMPANY HEREUNDER (ALONG WITH A PROMPT AND REASONABLE OPPORTUNITY FOR COMPANY TO INSPECT THE APPLICABLE GOODS) WITHIN THREE BUSINESS (3) DAYS FOLLOWING DEPOSITOR’S RECEIPT OF THE GOODS ONCE RELEASED BY COMPANY. THE REMEDIES SET FORTH IN THIS SECTION 11 SHALL BE DEPOSITOR’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF COMPANY’S OBLIGATIONS UNDER THIS SECTION 11.
12. Limitation of Liability. IN NO EVENT SHALL COMPANY 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, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THE RECEIPT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE TO THE COMPANY OR COULD HAVE BEEN REASONABLY FORESEEN BY THE COMPANY, 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 COMPANY’S AGGREGATE LIABILITY UNDER THE RECEIPT, INCLUDING, BUT NOT LIMITED TO, COMPANY’S LIABILITY UNDER SECTION 10. HEREIN, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY HEREUNDER FOR THE SERVICES RENDERED OR $1 PER POUND STORED WITH COMPANY, WHICHEVER IS LESS.
13. Termination. Company may terminate the Agreement immediately upon the occurrence of (i) Depositor’s breach of any of the terms hereof, including without limitation, its obligations to make all payments in a timely manner; (ii) Depositor’s insolvency, bankruptcy (including the filing of a petition in connection therewith), or involvement in proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (iii) Company’s discovery, after the Goods have been tendered, that they, in whole or in part, are hazardous. The Agreement will also terminate immediately and without further notice of any other affirmative action by the Company, upon the ninetieth (90th) day following the last day that storage or other Services have been performed by Company hereunder. Company also maintains the right to terminate Agreement, in its sole discretion and without cause, at any time by providing sixty (60) days’ prior written notice to Depositor.
If the Receipt is terminated for any reason, Depositor shall promptly make arrangements to have all Goods removed from the Warehouse, subject to payment of all outstanding fees and other charges of any kind due hereunder. If Depositor does not promptly remove such Goods, Company may, without liability of any kind, 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 Company, after a reasonable effort, is unable to sell the Goods, it may dispose of them without liability in any lawful manner.
14. Force Majeure. Company shall not be liable or otherwise held responsible for any delay or failure in fulfilling any obligation set forth in the Work Order when such delay or failure is caused by or arises out of acts or circumstances beyond the reasonable control of Company, including without limitation, acts of God, flood, earthquake, explosion, fire, inclement weather, governmental actions, invasion war, or hostilities, terrorist threats or acts, riot, or other civil unrest, revolution, insurrection, national emergency, epidemic, pandemic, local disease outbreak, public health emergency, communicable diseases, quarantines, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers, or inability or delay in obtaining supplies of any kind, or power outage(s), or other similar or different occurrences beyond the reasonable control of the Party. Additionally, if Company is or has been unable to remove and/or deliver the Goods, in whole or in part, due to any force majeure event, the Goods shall continue to be subject to the storage and related charges until they are removed and/or delivered.
15. Governing Law; Arbitration: The Agreement shall be governed by the laws of the State of California without giving effect to its conflict of laws principles. Any dispute, controversy or claim arising out of or related in any manner to this Agreement which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one arbitrator sitting in Orange County, California. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of California. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the Parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, incidental damages, special damages, exemplary damages, punitive damages, or specific performance. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except that: (a) a Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm; and (b) Company may, without resort to arbitration, enforce any lien granted by the Agreement in any court of competent jurisdiction and in any manner permitted under applicable law for such a lien.
16. Collection Expenses. If Company incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due hereunder, Depositor agrees to reimburse Company for all such costs, expenses and fees
17. Insurance. At Depositor’s discretion and sole expense, Depositor may provide adequate liability insurance for Goods deposited in the Warehouse facility. Company shall be named as an “Additional Insured” at no cost to Company on any such policy.
18. Additional Limitation of Liability. Notwithstanding anything to the contrary in the Agreement and without limiting any limitation of liability set forth hereinabove, DEPOSITOR ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE IN ANY WAY FOR: (A) UN-ADHERING OF GLUE JOINTS INCLUDING VENEER, INTERNAL FELTS, KEY TOPS AND/OR ALL OTHER ASPECTS OF THE GOODS; (B) DEGRADATION/ CRACKING/PEELING/FADING OF THE FINISH ON THE GOODS; (C) CRACKS ON/IN THE LIDS, SOUNDBOARD, CASE OR COMPONENTS UNLESS CAUSED BY MOVING DAMAGE RESULTING FROM COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) THE WARPAGE OR CRACKING OF KEY TOPS; (E) THE OXIDATION OF THE METAL HARDWARE I.E. COPPER STRINGS, STEEL STRINGS AND/OR BRASS, STEEL OR NICKEL HARDWARE; (F) WARPAGE OF THE ACTION ASSEMBLY, HAMMER SHANKS, FLANGES AND/OR SIMILAR COMPONENTS; (G) ELECTRONIC FAILURE, E.G., PLAYER PIANO SYSTEMS, CONTROL UNITS, HUMIDIFICATION, DEHUMIDIFICATION, OR LIGHTING; OR (H) THE CONDITION/PLAYABILITY OF A VINTAGE PLAYER PIANO SYSTEM OR ANY OF ITS COMPONENTS.
19. Partial Invalidity. If any provision or portion of the Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. Assignment. Depositor may not assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of Company. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Depositor of any of its obligations under this Agreement, and as such, Depositor shall remain primarily liable in connection therewith.
21. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each a “Notice”) shall be in writing and addressed to the Parties at the address set forth herein or otherwise designated by the receiving Party in writing. All Notices shall be delivered by (i) personal delivery, (ii) nationally recognized overnight courier (with all fees pre-paid), (iii) facsimile or email (with confirmation of transmission), or (iv) certified or registered mail, return receipt requested and postage prepaid. Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
22. Relationship of the Parties. The Parties hereto are independent contractors and as such, its employees, contractors, and personnel performing any services under this Agreement shall at no time be considered an employee of the other Party.
23. Survival. Following the Term of the Agreement, all provisions set forth herein which, by their very nature, are intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting representations and warranties, indemnifications, limitation of liability, insurance, accrued payment obligations, and governing law and dispute resolution.
24. Third Party Beneficiaries. The Agreement 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, the Indemnified Parties (as defined in these Terms and Conditions.) shall be entitled to enforce the Indemnity provision set forth herein as third-party beneficiaries thereto.
25. Waiver. No waiver of any term or right in the Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Agreement thereafter.
26. Rights Cumulative. The Parties’ respective rights and remedies as set forth herein shall be cumulative and not exclusive of any rights and remedies provided by law or equity.
25. Counterparts. The Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page. Nothing contained in this section shall prohibit acceptance of the Agreement by Depositor in accordance with the Section 2 of these Terms and Conditions.
27. Entire Agreement; Modification. The Agreement, and any exhibits or attachments incorporated in the Agreement, is the entire agreement between the Parties with respect to its subject matter and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to the Agreement shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives, or attorneys regarding the Agreement, except to the extent such representations are expressly set forth in the Agreement.