Terms and Conditions

STANDARD TERMS AND CONDITIONS

1. Agreement.

(a) These Terms and Conditions (“Terms”) have been incorporated by reference into a proposal, quotation, confirmation, contract, agreement or other written instrument issued or signed by Glenway Edison Corporation, a New Jersey corporation, d/b/a Glenway Distribution (“Glenway”) regarding the warehousing of items and the provision of related services (collectively, “Glenway Warehouse Document”). These Terms and the Glenway Warehouse Document issued by Glenway to you, the customer (“Customer”) or shipper (“Shipper”), shall be collectively referred to herein as the “Terms” or the “Agreement.”

(b) The Agreement, including any attachments, exhibits or other written documents that are explicitly incorporated by reference by the text of the Agreement, constitutes the entire agreement between Glenway and Customer or Shipper regarding the subject matter of the Agreement and may not be modified except in a writing signed by a duly authorized employee of Glenway and Customer or Shipper.

(c) Glenway shall not be bound by the terms or conditions of any purchase order, order confirmation, acceptance or other instrument issued by Customer or Shipper (collectively, “Customer Document”), unless such Customer Document is counter-signed by an authorized employee of Glenway. Glenway’s performance under the Agreement shall not, under any circumstances, be deemed Glenway’s acceptance of any of the terms or conditions contained in a Customer Document. If Customer or Shipper issues a Customer Document to procure the services described in a Glenway Warehouse Document, then such issuance shall be deemed to constitute Customer or Shipper ’s acceptance of the terms and conditions of this Agreement, but all other terms and conditions contained in the Customer Document shall be of no force or effect and shall not be deemed to supersede, replace, modify, augment, enhance, delete, remove, amend or otherwise alter any of the terms and conditions of this Agreement. Acceptance of or payment for any of the services covered by this Agreement shall also be deemed to constitute Customer or Shipper ’s acceptance of all of the terms and conditions of this Agreement.

(d) It is further intended that these Terms shall apply to all pick up and delivery of containers by Glenway pursuant to agreements of drayage; all shipments from or to Glenway’s facilities by Glenway for or on behalf of Glenway’s Customers or Shippers; and all point to point shipments made by Glenway for or on behalf of Glenway’s Customers or Shippers, and that these Terms shall apply to all Bills of Lading that Glenway may generate or that may be presented to Glenway by a Customer or Shipper.

(e) In the event of any conflict between the terms of a Glenway Warehouse Document and these Terms, the terms and conditions of the Glenway Warehouse Document shall take precedence.

2. Storage.

(a) Glenway agrees to warehouse Customer’s stock of items described in the Glenway Warehouse Document (“Items”) which are (a) in sealed containers, (b) non-combustible, (c) non-explosive, and (d) not deemed Hazardous Substances under any Federal, State or local Environmental Law for Customer in the Warehouse, as may be delivered by Customer to Glenway from time to time.

(b) Customer shall arrange for the delivery of Items to the Warehouse in sealed containers at Customer’s cost.

3. Loading. Glenway agrees, upon reasonable advance notice during Glenway’s regular business hours, to load the Items on trucks supplied by Customer at the Warehouse, pursuant to written instructions from Customer. Customer agrees to pay Glenway’s fees and charges for all loading and unloading services, in addition to any storage or related charges.
4. Fees and Charges.

(a) Customer shall pay Glenway storage, handling and other fees as set forth in the Glenway Warehouse Document.

(b) Any special services requested by Customer other than those specifically addressed by this Agreement may be provided by Glenway, at its discretion, at a mutually agreed upon charge prior to Glenway being obligated to render such special services.

(c) Glenway shall invoice Customer for all charges arising pursuant to this Agreement, and Customer shall make payments to Glenway.

(d) Glenway reserves the right to periodically increase the rates set forth in the Glenway Warehouse Document on 45 days’ notice to Customer. Within 10 business days of receipt of a rate increase notice, Customer shall have the right to terminate this Agreement on 45 days’ written notice to Glenway.

(e) Storage Charges accrue on a calendar month basis and one full month’s storage charges will apply on all goods which are in the Warehouse for one or more days during any calendar month.

5. Storage and Delivery Requirements.

(a) All Items delivered by Customer to Glenway for storage at the Warehouse shall be delivered by Customer to the Warehouse and appropriately marked and packaged for handling. At least 24 hours prior to the time of delivery of any Items to the Warehouse, Customer shall provide Glenway with a list of the Items to be delivered (packing list) and any special storage or handling instructions.

(b) Customer represents and warrants that (i) it is the owner of the Items, (ii) it is authorized to deliver the Items to the Warehouse and (iii) no Hazardous Materials (as that term is defined in any Federal or New Jersey state environmental law), or explosive or combustible Items shall be delivered to the Warehouse.

(c) Instructions to transfer goods are not effective until delivered to Glenway, and all charges up to the time transfer is made are chargeable to Customer.

(d) When goods are ordered to be shipped out, a reasonable time shall be given to Glenway to carry out instructions, and if it is unable because of acts of God, weather, power failures, computer failures, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond Glenway’s control, or because of loss or destruction of goods for which Glenway is not liable, or because of any other excuse provided by law, Glenway 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.

6. Liability and Insurance.

(a) Customer or Shipper hereby agree that, except for the gross negligence or willful misconduct of Glenway, Glenway has no responsibility whatsoever to Customer or Shipper or any other party, including any creditors, transferees, successors or assignees for any loss or damage to the Items from any cause whatsoever or from any failure to perform or failure to timely perform any services rendered under or in connection with this Agreement.

(b) GLENWAY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER. GLENWAY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NEED, ACCURACY, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

(c) To the extent permitted by applicable law, in no event will either party be liable under any legal theory for any special, indirect, consequential, exemplary or incidental damages, however caused, arising out of or relating to this Agreement, even if such party has been advised of the possibility of such damages. Neither party’s liability to the other party under this Agreement shall exceed the total amounts paid or payable by Customer or Shipper under this Agreement during the then-current term of this Agreement.

(d) Customer or Shipper shall, at its own cost and expense, maintain during the Term, a policy or policies of insurance insuring the Items against loss or damage due to fire and other casualties covered within the classification of fire and extended coverage, vandalism coverage and malicious mischief, sprinkler leakage, water damage and special extended coverage on the building in which the Items are stored. Such coverage limit shall be at least the full replacement value of the Items. As a condition to Customer or Shipper ’s right to deliver any Items to the Warehouse, Customer or Shipper shall deliver certificates of insurance evidencing compliance with the terms of this Section 5.

(e) Customer shall maintain during the Term the following coverages at its sole cost and expense:
(i) Commercial General Liability and Excess Coverage Insurance covering the insured against claims of bodily injury, personal injury and property damage arising out of the warehousing operations contemplated by this Agreement, assumed liabilities or use of the Warehouse, including a Broad Form endorsement covering the insuring provisions of this Agreement, and the performance by Customer of the indemnity agreements set forth in this Agreement, for limits of liability not less than $5,000,000.
(ii) Physical Damage Insurance covering all equipment, supplies, the Items and all other items of Customer’s property at the Warehouse with a minimum limit of the higher of (a) the value of the Items being stored or (b) $7,500,000. The certificate for such insurance can be combined with other property provided it specifically notes that at least $7,500,000 of the coverage is designated specifically for the Items at the Warehouse.
(iii) Automobile liability insurance covering owned, hired and non-owned vehicles, with a minimum limit of liability of $1,000,000.
(iv) Workers compensation insurance with statutory limits and employer’s liability coverage of not less than the greater of (i) the minimum requirements under applicable law, or (ii) $500,000.
(f) The minimum limits of policies of insurance required of Customer under this Agreement shall in no event limit the liability of Customer under this Agreement. Such insurance shall: (i) name Glenway, Glenway Holdings, Inc. and their mortgagees, affiliates, officers, directors, shareholders, members, employees, agents and affiliates as additional insureds; (ii) specifically cover the liability assumed by Customer under this Agreement; (iii) be issued by an insurance company having a rating of not less than A-VIII in Best’s Insurance Guide or which is otherwise reasonably acceptable to Glenway; (iv) be primary insurance vis-a-vis Glenway as to all claims thereunder, and provide that any insurance carried by Glenway is excess and non-contributing with any insurance requirement of Customer; and (v) provide that said insurance shall not be canceled or coverage materially or adversely changed unless thirty (30) days’ prior written notice shall have been given to Glenway. Customer shall deliver duplicate copies of said policy or policies or original certificates thereof to Glenway on or before the effective date of this Agreement and at least ten (10) days before the expiration dates thereof. Any insurance required to be carried by Customer pursuant to the provisions of this Agreement may be written as either a primary or umbrella policy (or both), and may be carried under a blanket policy or policies, provided that each such policy shall in all respects comply with the provisions of this Section 5 and shall set forth the specific dollar amount of the coverage of such policy that is applicable solely to this Agreement and such dollar amount shall not be less than the amount required hereunder.
(g) Customer agrees that all insurance provided under this Agreement shall contain a waiver of all subrogation rights against Glenway.
(h) Notwithstanding anything to the contrary contained in this Section 5, Glenway shall have the right, from time to time, but not more frequently than once every year and on not less than (90) days written notice to Customer, to require Customer to reasonably increase the limits of the coverages required to be carried by Customer pursuant to the provisions of this Section 5.
(i) Notwithstanding anything to the contrary contained in this Section 5, the Shipper or Customer agree that in no event shall Glenway’s liability for loss or damage to a Shipper or Customer exceed the lesser of Fifty Dollars ($50.00) or Fifty Cents ($.50) per pound, unless the Bill of Lading or other written agreement shall specify a liability in excess of the preceding amount.
(j) The provisions of this Section 5 shall not expire and shall survive the expiration of the Term or earlier termination of this Agreement and shall continue for so long as any liability may be claimed against Glenway. .
7. Indemnity. Customer or Shipper shall defend, indemnify and hold Glenway, together with its officers, directors, shareholders, members, affiliates, licensees, invitees, successors, assigns, landlord and landlord’s mortgagee and agents harmless from and against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees and disbursements) arising out of or in connection with (a) access to the Warehouse exercised by Customer or Shipper and (b) the acts, errors and omissions of Customer or Shipper or its agents, subcontractors or employees. The provisions of this Section 6 shall survive the expiration of the Term or earlier termination of this Agreement.

8. Default and Termination.
(a) Either party shall have the right to declare the other party in default under this Agreement and terminate this Agreement immediately if the other party: (i) fails to comply with any term or condition of this Agreement and continues to fail to comply for 15 days after written notice thereof from the non-defaulting party; (ii) commences any proceeding under Chapter 7 or 11 of the United States Bankruptcy Code or any other proceeding seeking relief from creditors or the reorganization or composition of debts or the liquidation or distribution of assets, including but not limited to, any assignment for the benefit of creditors or the making of a proposal for the composition of debts; or (iii) has a proceeding of the kind and nature described in subparagraph (ii) above commenced against it by any third party and such proceeding is not dismissed within 30 days of its commencement.
(b) If any Items are not picked up by Customer or Shipper within 45 days from the expiration or sooner termination of this Agreement (with payment of all outstanding fees and fees for the removal of the Items being a condition precedent to Glenway’s obligation to tender the Items), Glenway shall have the right to discard or dispose of the Items at Customer or Shipper ’s expense. If Customer or Shipper terminates this Agreement, after paying all fees and expenses owed to Glenway, Glenway shall tender the goods to Customer or Shipper ’s truckers at the Warehouse.
(c) All unpaid storage and handling charges shall accrue interest at the rate of ten percent (10%) per annum, or the maximum rate permitted by law, whichever is less, commencing 45 days after the date said payments are due and continuing until the date of payment.

9. Financing Statements. Glenway shall have the right to file appropriate UCC financing statements to reflect its warehouseman’s lien pursuant to N.J.S.A. 12A:7-209. Any sale to enforce said lien will be conducted in accordance with applicable law, including without limitation compliance with N.J.S.A 12A:7-210(2)(a).

10. Independent Contractors. Glenway and Customer or Shipper are independent contractors and shall not be construed as having any partnership, joint venture or other relationship. Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act.

11. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflicts or choice of law principles. All disputes arising out of or related to this Agreement shall be heard exclusively in a State or Federal court located in Middlesex County, New Jersey.

12. Amendment. This Agreement may only be modified or amended by a writing executed by both parties.

13. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior negotiations and understandings of every kind. This Agreement may not be assigned, including by operation of law, by Customer or Shipper without the prior written consent of Glenway.

14. Attorney’s Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, shall be entitled to the full amount of all reasonable expenses, including all court costs and attorneys’ fees paid or incurred in good faith.

15. Headings. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and shall not be used in any way to construe or interpret this Agreement.

16. Construction. This Agreement shall be deemed to have been drafted by both parties and, in the event of a dispute, no party hereto shall be entitled to claim that any provision should be construed against any other party by reason of the fact that it was drafted by one particular party.

17. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer, nor shall anything herein confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.

18. Survival. Sections 3(b), 3 (c), 6, 7(b), 7(c) and 9-19 shall survive the expiration or termination of this Agreement.

19. Notices. Except as otherwise provided, all notices hereunder shall be made in writing and sent via commercial overnight courier with verification of delivery to the parties’ respective addresses above.

20. Warehouseman’s Lien. Nothing in this Agreement shall be deemed to limit Glenway’s right to assert a Warehouseman’s Lien against the Customer or Shipper pursuant to N.J.S.A. 12A:7-201 et seq. and to exercise any and all rights as allowed pursuant thereto.

[END OF STANDARD TERMS AND CONDITIONS]