Aries Freight Systems Forwarding | Aries Warehouse | Aries Logistics Broker | Aries Freight Transport
Warehouse & Related Services Terms and Conditions
1. General Terms
(a) “Customer” shall refer to the person or entity tendering the goods, the person or entity holding title to the goods, and the owner of the goods and their employees, contractors, invitees, and agents.
(b) Aries Freight Systems, LP (“Contractor”) provides warehousing services at facilities leased to or owned by Contractor. The services provided by Contractor under these Terms and Conditions shall consist of receipt and storage of Customer-owned or Customer-controlled goods (“Materials”).
(c) Unless specifically agreed to in writing, the services do not include light assembly, specialized warehouse space, material drayage, repairing, coopering, sampling, weighing, inspection, physical warehouse checking, collections, or other special handling, each of which is subject to additional charges. Customer acknowledges that the rates specified in writing are subject to change on an annual basis upon thirty (30) days written notice from Contractor to Customer unless otherwise specified in writing.
(d) In the event the services under these Terms and Conditions are terminated for any reason other than (i) a default by Contractor or (ii) for convenience by Contractor, prior to the expiration of a term agreed to in writing by Customer and Contractor, Customer hereby agrees to pay Contractor the following: (A) the depreciation costs incurred and lease payments due and payable during the remainder of the unfulfilled term of all equipment, other assets and software leased or acquired by Contractor to perform the services, including any unamortized principal balance of capital equipment not paid for by Customer; (B) any rental payments due and payable under any facility lease during the remainder of the unfulfilled term, commensurate to the extent the facility was dedicated to performance of the services for Customer; and (C) any severance and redundancy costs of Contractor staff dedicated to providing the services, insofar and to the extent they cannot be deployed to Contractor’s other businesses.
(e) In the event transportation and logistics services are requested by Customer, Customer and its agents consent to the use of Contractor’s affiliated brokerage entity, Aries Logistics, LP, operating under MC-550399 to broker loads that Contractor does not perform using its own equipment and Contractor’s own affiliated freight forwarding operating authority under FF-12082, to perform freight forwarding services. Customer expressly agrees that it will not attempt to hold Aries Logistics, LP liable in the capacity of a motor carrier. Customer’s insertion of or Aries Logistics, LP (for a brokered load) as the carrier on a bill of lading or other document shall be for Customer’s convenience only and shall not affect the status of the actual motor carrier transporting the property or brokerage entity arranging for transportation. If Contractor provides freight forwarding services, they shall be subject to Contractor’s Freight Forwarding Terms and Conditions, which are available upon request. If Aries Logistics, LP provides logistics services, they shall be subject to Aries Logistics, LP’s Terms and Conditions, which are available upon request.
(f) As a convenience to Customer, invoices may be processed by Contractor’s affiliated entity and such administrative support in issuing invoices will not alter Contractor’s role in connection with a particular shipment. Contractor and Aries Logistics, LP are Texas business organizations, each of which (i) is solely responsible for its own debts and obligations, and (ii) is not responsible for the debts and obligations of any other entity unless expressly agreed in writing. Customer agrees that Contractor and Aries Logistics, LP shall not be liable, and Customer will not attempt to hold them liable, for the conduct of their affiliates or third parties. Similarly, Customer agrees that Contractor and Aries Logistics, LP are not engaged in a partnership, joint venture, joint enterprise, or similar venture.
2. Customer’s Representations.
(a) Customer represents and warrants that Customer has lawful possession of the goods and has the right and authority to tender those goods to Contractor. Customer agrees to indemnify and hold harmless Contractor from all loss, cost and expense (including reasonable attorneys' fees) which Contractor pays or incurs as a result of any dispute or litigation, whether instituted by Contractor or others, respecting Customer's right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to Contractor’s lien.
(b) Customer represents and warrants that the information concerning the goods it provides Contractor will be accurate, complete and sufficient to comply with all laws and regulations concerning the storage, handling, and transporting of the goods, and Customer shall indemnify, defend, and hold Contractor harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which Contractor pays or incurs as a result of Customer’s failure to comply with this provision.
3. Warehouse Receipt and Lien
(a) This Agreement is for the storage of goods for hire, in accordance with the terms hereof.
(b) Any warehouse receipt issued by Contractor in connection with this Agreement will be non-negotiable. A warehouse receipt, if issued by Contractor, may be issued in either physical or electronic form at Contractor’s option.
(c) To secure Customer’s performance under these Terms & Conditions, Customer grants to Contractor a lien and security interest against all of Customer’s non-exempt personal property that is in Contractor’s facilities or on Contractor premises. This is a security agreement for the purposes of the Uniform Commercial Code and Contractor may file a financing statement to perfect Contractor’s security interest under the Uniform Commercial Code. In addition to the charges described herein, Customer shall be liable for any and all expenses Contractor incurs to sell or dispose of the goods, including, but not limited to, attorney fees, transportation costs, administrative costs, and expenses necessary for the preservation of the goods. Contractor shall have the right to pay another service providers, whether hired by Contractor or not, for services provided with relation to transportation, handling, warehousing, or related services, including instances where Contractor provides such services, Contractor hires a third party to provide the services, or otherwise. Customer consents to such costs being included in Contractor’s lien and sale of the goods to satisfy such costs.
4. Delivery Requirements
(a) No Materials shall be delivered or transferred from each warehouse facility except upon receipt by Contractor of instructions properly documented by Customer in the normal course of its business. When no negotiable receipt is outstanding, goods may be delivered upon instructions by telephone in accordance with prior written authorization, in writing delivered by facsimile or by e-mail, but Contractor shall not be responsible for resulting loss or error.
(b) When a negotiable receipt has been issued no goods covered by that receipt shall be delivered or transferred on the books of Contractor, unless the receipt, properly endorsed, is surrendered for cancellation, or for endorsement of partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of goods may be made only upon order of a court of competent jurisdiction and the posting of security approved by the court as provided by law.
(c) When order receipts are presented to Contractor, a reasonable time, but not less than one and one-half (1.5) business days, shall be given to Contractor to carry out instructions, and if Contractor is unable to comply with such instructions because of acts of God, war, public economics, seizure under legal process, strikes, lockouts, riots and civil commotion, or any reason beyond Contractor’s control, or because of loss or destruction to goods for which Contractor is not liable, or because of any other excuse provided by law, Contractor shall not be liable for failure to carry out or perform such instructions, and goods in storage will continue to be subject to regular storage charges.
5. Liability and Limitation of Damages
(a) CONTRACTOR SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY CONTRACTOR TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL WAREHOUSE WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND CONTRACTOR IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. CONTRACTOR AND CUSTOMER AGREE THAT INTER AMERICAN TRANSPORTATION SERVICE’S DUTY OF CARE DOES NOT EXTEND TO PROVIDING A SPRINKLER SYSTEM AT THE WAREHOUSE OR ANY PORTION THEREOF.
(b) NOTWITHSTANDING SUBSECTION (A) ABOVE, CONTRACTOR SHALL NOT BE LIABLE IN ANY EVENT FOR: (1) SHRINKAGE OR UNEXPLAINED LOSS OR DISAPPEARANCE; (2) LOSS OF WEIGHT OF ANY MATERIALS; (3) LOSS OR DAMAGE TO MATERIALS RESULTING FROM IMPROPER PACKING, INSUFFICIENT COOPERAGE, BREAKAGE, BOXING, CRATING, WEAR AND TEAR, OR INHERENT QUALITIES OF THE MATERIALS; (4) LOSS OF MATERIALS BY LEAKAGE OR THROUGH FAILURE TO DETECT SAME; OR (4) CONCEALED LOSS OR DAMAGE.
(c) Contractor shall have no liability for damage to Materials or delay caused by a Force Majeure Event or intentional or malicious acts of third persons or any other organized opposition, by water sprinkler leakage, moths, vermin, insect, corruption, or depredation or other cause beyond the reasonable control of Contractor.
(d) Perishable Materials, or Materials which are susceptible to damage through temperature changes, or inherent vice, or other causes incident to general storage, are accepted in general storage at Customer’s sole risk for such damages as might result from general storage conditions.
(e) Contractor’ liability for loss of or damage to Materials shall in no event exceed $.50 per pound USD for all Materials in Contractor’s possession up to a maximum of $1,000,000 USD. Under no circumstances shall Contractor’s liability exceed the amount available to cover the loss or damage under Contractor’s Warehouse insurance policy and its liability is subject to the conditions, then existing coverage limits, and amount remaining under the policy for coverage
(f) Upon Customer’s request and Contractor’ receipt of the fully executed and completed Shipper’s interest Addendum in the form approved by Contractor (the “Shipper’s Interest Addendum”), Contractor will arrange to insure the Materials up to the insured value of the Materials at the time of storage as stated in the Shipper’s Interest Addendum by means of a shipper’s interest insurance policy (the “Shipper’s Interest Policy”). Customer understands that Contractor is not selling insurance and Customer agrees that it is responsible for reading and understanding the terms of the policy (available upon request). Contractor disclaims any warranties regarding the suitability of coverage its extent. Contractor shall have no obligation to arrange such Shipper’s Interest Policy. In the event Contractor has arranged such Shipper’s Interest Policy: (i) notwithstanding anything contained in this Section 5 to the contrary, Contractor shall be liable to the named beneficiary for loss or damage to the Materials specified in the Shipper’s Interest Addendum up to the insured value of the Materials stated in the Shipper’s Interest Addendum; (ii) the Shipper’s Interest Policy shall be primary to any policies maintained by Contractor; (iii) the named beneficiary of the Shipper’s Interest Policy shall pursue any claims for loss or damage to Materials directly against the insurance company named on the certificate of insurance evidencing such Shipper’s Interest Policy; and (iv) Contractor shall be liable only to the named beneficiary for loss or damage to Materials and if the named beneficiary is not the Customer, Contractor shall have no liability to Customer for loss or damage to Materials and Customer waives such claims accordingly.
6. Notice of Claim and Filing of Suit
(a) After delivery or the expected delivery date of the goods underlying the claims, a claim for Materials lost or damaged during storage shall not be valid unless Customer give notice to Contractor of such a claim and an opportunity for Contractor to investigate such claim as follows:
(i) Initial notification of visible damage to the Materials shall be made in writing on the Bill-of-Lading by the carrier at the time of tendering the Materials for delivery, and a signed receipt absent such notation shall be proof of apparent good order and condition at tender for delivery.
(ii) Initial notification of concealed loss or damage to the Materials shall be made in writing by the Customer or Consignee within twenty-four (24) hours of ultimate delivery.
(iii) Materials claimed to be damaged shall not be moved, unpacked or otherwise altered from the state in which they were discovered damaged until Contractor and its representatives shall be given a reasonable opportunity, but in no event less than five (5) business days after notice by Customer, to inspect the Materials claimed damaged.
(b) When Materials have not been tendered for delivery, Contractor shall give notice of known loss or injury to the Materials by giving notice to Customer, the depositor of record, or the last known holder of a negotiable warehouse receipt. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by Contractor.
(c) All claims by Customer against Contractor hereunder must be presented in writing to Contractor no later than either sixty (60) days after delivery of the Materials by Contractor, or sixty (60) days after Customer, the depositor of record, or the last known holder of a negotiable warehouse receipt is notified by Contractor that loss or injury to all or part of the Materials have occurred, whichever time is shorter. Such claim must contain sufficient information to identify the Materials as to which the claim is being made, the basis of the claim, and the amount of the claim. Upon Contractor’ receipt of a formal written claim and such other reasonable supporting documentation as Contractor may require in connection with such claim, Contractor shall have ninety (90) days to pay, deny, or offer to settle such claim.
(d) No action may be maintained by Customer against Contractor for the loss of injury to the Materials stored unless timely written claim has been given as provided in subsection (a) above and unless such action is commenced either within nine (9) months after date of shipment or delivery by Contractor or within nine (9) months after Customer, the depositor of record or the last known holder of a negotiable warehouse receipt is notified that loss or damage to all or part of the Materials has occurred, whichever is less.
7. Hazardous Materials
(a) Customer shall not submit any Materials for storage that are required by the U.S. Department of Transportation or other applicable government agency to be placarded as a hazardous material or dangerous good except when such Materials are fully and accurately described by the proper shipping name, are classified, packaged, marked and labeled/placarded, and in all respects in proper condition for transport according to applicable international and national governmental regulations. Notwithstanding the foregoing, Contractor may in its sole discretion refuse storage of such Materials.
8. Inventory System
(a) Contractor shall not be responsible for conducting a physical inventory or count of any Materials in the care, custody and control of Contractor. Contractor shall not be responsible for any inventory variance of any Materials owned by or in the care, custody and control of Customer. The parties agree that Materials covered by differing warehouse receipts may be commingled as commercially necessary.
9. Products Liability
(a) If the Services include modification or assembly of the Materials by Contractor, then Customer agrees at its expense to indemnify, defend, settle, release, and hold Contractor harmless from and against any claim, loss, suit, demand or proceeding which arises out of or is related to a claim of defective products or products liability, including but not limited to the modification or assembly of Materials by Contractor whether based on Contractor’ negligence, strict liability, breach of contract, tort, or otherwise. CONTRACTOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITIONS, QUALITY, DESCRIPTION, DURABILITY OR SUITABILITY OF THE MATERIALS IN ANY RESPECT OR FOR USE FOR ANY PARTICULAR PURPOSES OF CUSTOMER OR ANY OTHER THIRD PARTY.
10. Conditions Not Expressly Provided for Herein
(a) ANY TERMS OR CONDITIONS NOT HEREIN EXPRESSLY PROVIDED FOR SHALL BE DETERMINED IN ACCORDANCE WITH THE UNIFORM COMMERCIAL CODE AS ADOPTED BY THE STATE OF TEXAS.
11. Force Majeure.
(a) Contractor shall not be liable for failure to perform any of its obligations during any time in which such performance is prevented by fire, flood, hurricane, storm, weather-related incidents, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Contractor.
12. Governing Law; Venue.
(a) These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all disputes under these Terms and Conditions shall be filed in the appropriate county, state and federal courts located within Harris County, Texas.
13. Abandoned Property.
(a) Contractor may retain, destroy, or dispose of any property left on the Premises after termination of services under these Terms and Conditions by providing 60 days’ written notice to Customer by certified mail at Customer’s last known address.
(a) The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions, or to exercise any right in any one or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such failure or refusal be deemed a customary practice contrary to such provision or right.
(a) If any provision in these Terms and Conditions is held to be unenforceable the parties intend and request that the provision be reformed and replaced with a provision as close as the parties’ original intent as permitted by law, and that as much of these Terms and Conditions remain in effect as permitted by law.