Warehouse Services Terms and Conditions

Last Updated: December 9, 2024

THESE TERMS AND CONDITIONS, TOGETHER WITH ANY TERMS, CONDITIONS, AND DOCUMENT EXPRESSLY INCORPORATED, (COLLECTIVELY, THE “AGREEMENT”) GOVERN YOUR ACCESS AND USE OF ZONPREP.COM (THE “SITE”) AND THE SERVICES OFFERED BY EXTERNAL POWER SUPPLY LLC D/B/A ZONPREP (HEREINAFTER TERMED CONTRACTOR). AS USED IN THIS AGREEMENT, “YOU,” “YOUR,” AND “DEPOSITOR” MEANS THE INDIVIDUAL WHO REQUESTS OR RECEIVES SERVICES PERFORMED BY CONTRACTOR AND, AS APPLICABLE, THE ENTITY FOR WHOM SUCH INDIVIDUAL REPRESENTS AND HAS THE AUTHORITY TO BIND TO THIS AGREEMENT. CONTRACTOR AND DEPOSITOR MAY BE REFERRED TO HEREIN AFTER INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”

PLEASE READ THE AGREEMENT CAREFULLY BEFORE YOU BEGIN OR CONTINUE TO USE THE SITE OR THE SERVICES. BY ACCESSING OR OTHERWISE USING THIS SITE OR UTILIZING THE SERVICES PROVIDED BY CONTRACTOR, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SITE OR UTILIZE THE SERVICES PROVIDED BY CONTRACTOR. YOU ACKNOWLEDGE THAT ANY CONTRACTS, BILLS OF LADING, WAYBILLS, WAREHOUSE RECEIPTS, TARIFFS, CIRCULARS, AND OTHER SHIPPING DOCUMENTS ISSUED BY CONTRACTOR OR THIRD-PARTY SERVICE PROVIDERS APPLY TO THIS AGREEMENT TO THE EXTENT NOT IN CONFLICT WITH THIS AGREEMENT.

CONTRACTOR RESERVES THE RIGHT TO AMEND AND UPDATE THIS AGREEMENT AT ANY TIME, IN OUR SOLE AND ABSOLUTE DISCRETION, BY POSTING A REVISED AGREEMENT ON THE SITE. THIS AGREEMENT WAS LAST REVISED ON THE DATE PROVIDED ABOVE. IF YOU USE THE SITE AFTER AN AMENDED AGREEMENT HAS BEEN POSTED, YOU WILL BE DEEMED TO HAVE AGREED TO SUCH AMENDED AGREEMENT.

Subject to the foregoing, and in consideration of the mutual covenants and conditions contained herein, the PARTIES agree as follows:

1. TERM. This Agreement shall commence on the date DEPOSITOR accepts the Agreement or receives services from CONTRACTOR, whichever occurs earlier (the “Effective Date”) shall continue thereafter in full force and effect unless terminated as provided herein. Either PARTY has the right to terminate this Agreement at any time by serving not less than 180 days prior written notice to that effect upon the other PARTY. DEPOSITOR shall ensure all inventory is removed from the FACILITIES prior to the effective date of termination (Termination Period) and CONTRACTOR shall provide reasonable care and co-operation to allow for such removal. During this Termination Period until completion of move-out, CONTRACTOR will continue to provide all services at the rates as agreed upon, and DEPOSITOR will continue to pay all bills pursuant to the terms of this Agreement.

2. SERVICES TO BE PERFORMED.

(A) CONTRACTOR shall receive, store, provide kitting, labeling, and other agreed upon value-added services, prepare for shipment, and/or engage third party transportation providers for the movement of DEPOSITOR’S GOODS at, to, and/or from the FACILITIES. The specific services that CONTRACTOR shall provide DEPOSITOR, during the term of the Agreement, are set forth in an appendix or other mutually-executed writing (each, an “Appendix”).

(B) CONTRACTOR shall comply with the operating procedures set forth in any operating manual prepared by DEPOSITOR, provided that DEPOSITOR shall furnish a copy to CONTRACTOR in advance and obtain CONTRACTOR’S written consent to the provisions of the manual or any amendments to the manual. CONTRACTOR shall not be liable for loss or damage to the GOODS resulting from complying with DEPOSITOR’S operating procedures.

(C) CONTRACTOR and DEPOSITOR will agree on service timeframe standards for all activities including container unload, small parcel shipments, TL and LTL shipments, returns processing, kitting, cycle counts, etc.. CONTRACTOR will follow methods and instructions that DEPOSITOR may provide from time to time, as detailed in the Appendix; provided that DEPOSITOR shall obtain CONTRACTOR’S written consent to the methods and instructions. CONTRACTOR shall not be liable for loss or damage to the GOODS resulting from complying with DEPOSITOR’S methods and instructions.

3. FACILITIES. CONTRACTOR shall provide sufficient space in the facility located at 80 Liberty Industrial Parkway, McDonough, GA 30253, any location owned, leased, or operated by CONTRACTOR or its affiliates, any third-party facility under contract with CONTRACTOR or its affiliates, or a combination thereof (hereinafter collectively termed FACILITIES) to allow CONTRACTOR to provide services consistent with the scope of services provided in the Appendix. CONTRACTOR may transfer GOODS between FACILITIES as it deems necessary, in its sole discretion, to provide the services. These FACILITIES shall be used for the storing and handling of the GOODS and, absent CONTRACTOR’S written agreement, CONTRACTOR shall otherwise be permitted to use the FACILITIES to store or handle the inventories of third parties.

4. SHIPPER’S AGENT.

(A) For the limited purpose of engaging third party transportation providers on DEPOSITOR’S behalf, DEPOSITOR hereby appoints CONTRACTOR to act exclusively as its true and lawful agent. DEPOSITOR hereby grants CONTRACTOR the authority to manage the inbound and outbound transportation of GOODS as it relates to the FACILITIES. CONTRACTOR hereby accepts DEPOSITOR’S appointment as its agent and agrees to perform as such according to the terms and conditions set forth in this Agreement. CONTRACTOR’S scope of agency does not include any non-transportation warehousing services provided by CONTRACTOR. For the avoidance of doubt, DEPOSITOR understands and acknowledges that CONTRACTOR is not responsible, and hereby disclaims liability, for any loss, damage, or delay to GOODS arising from the movement of GOODS by the third-party transportation providers and CONTRACTOR’S liability for loss or damage to GOODS with respect to CONTRACTOR’S warehousing services shall be as provided in Section 10 of this Agreement. 

(B)         CONTRACTOR will have full power and authority to perform, either directly or indirectly through an affiliate company, all tasks required or necessary in order to accomplish the transportation of GOODS on DEPOSITOR’S behalf, including to negotiate and bind DEPOSITOR to contracts with third party transportation providers. DEPOSITOR acknowledges that CONTRACTOR is neither offering nor performing any transportation services. DEPOSITOR shall defend, indemnify, and hold CONTRACTOR harmless from any and all claims arising from CONTRACTOR’S acts or omissions within the scope of CONTRACTOR’S agency, including, but not limited to, payment obligations for third party transportation providers. 

(C)         As between CONTRACTOR and DEPOSITOR, CONTRACTOR shall perform under this Agreement as an unrelated independent contractor and neither its employees nor agents will be deemed those of DEPOSITOR. CONTRACTOR will assume full responsibility for selecting, engaging and discharging its respective employees, agents, servants, or helpers and for otherwise directing and controlling its services.  CONTRACTOR will assume full responsibility for complying with all applicable laws and regulations for the benefit of its employees and under no circumstances will DEPOSITOR be liable for the debts or obligations of CONTRACTOR for the wages, salaries, or benefits of CONTRACTOR’S

employees.  DEPOSITOR and CONTRACTOR acknowledge that they are entirely independent of one another, they are not economically dependent on each other, and that there is no functional integration between the PARTIES.     

5. RATES AND CHARGES.

(A) The PARTIES shall execute schedules of rates and charges that will apply to the services provided by CONTRACTOR (each, a “Rate Schedule”).  These rates will remain fixed without increase for twelve (12) months from Go Live Date, which is defined as date that DEPOSITOR first deposits any GOODS into the FACILITIES or requests CONTRACTOR to engage third party transportation providers, whichever occurs first. After the first twelve (12) months, CONTRACTOR may then implement rate increases, not to exceed 10 percent (10%) per year, upon notice to DEPOSITOR.

(B) A charge in addition to regular rates will be made for merchandise in bond. Where a warehouse receipt covers GOODS under bond, CONTRACTOR shall have no liability for GOODS seized or removed by U.S. Customs and Border Protection.

(C) Rates may be subject to an additional surcharge in the event of a new or additional city, county, state, or federal tax or fee related to the storage or services provided, and rates may be subject to additional charges in the event of a change in the scope of services.

6. GOODS.

(A) DEPOSITOR represents and warrants that DEPOSITOR is lawfully possessed of the GOODS and has the right to and authority to store them with or offer them to CONTRACTOR. DEPOSITOR agrees to defend, indemnify, and hold harmless CONTRACTOR from all loss, cost, and expense (including reasonable attorneys’ fees) that CONTRACTOR pays or incurs as a result of any dispute or litigation, whether instituted by CONTRACTOR or others, respecting DEPOSITOR’S right, title, or interest in the GOODS. Such amounts shall be charged in relation to the GOODS and subject to CONTRACTOR’S warehouse lien.

 

(B) DEPOSITOR represents and warrants to CONTRACTOR 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 CONTRACTOR. Notwithstanding the foregoing, DEPOSITOR will provide CONTRACTOR with information concerning the GOODS that is accurate, complete, and sufficient to allow CONTRACTOR to comply with all laws and regulations concerning the storage, handling, and transporting of the GOODS. DEPOSITOR will defend, indemnify, and hold CONTRACTOR harmless from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) that CONTRACTOR pays or incurs as a result of DEPOSITOR failing to fully discharge this obligation.

(C) If, as a result of a quality or condition of the GOODS of which CONTRACTOR had no notice at the time of deposit, the GOODS are a hazard to other property or to the FACILITIES or to persons, CONTRACTOR 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 at DEPOSITOR’S sole cost and expense. Pending such disposition, sale, or return of the GOODS, CONTRACTOR may remove the GOODS from the FACILITIES at DEPOSITOR’S sole cost and expense and shall incur no liability by reason of such removal. CONTRACTOR will make all reasonable efforts to resolve any such issue with DEPOSITOR, prior to proceeding with any such disposition of GOODS.

 

7. DELIVERY AND RELEASE OF GOODS.

(A) DEPOSITOR shall deliver the GOODS to the FACILITIES in a segregated manner, properly marked and packaged for handling. At or prior to delivery of the 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. CONTRACTOR 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 CONTRACTOR.

(B) DEPOSITOR agrees that all GOODS shipped to and from CONTRACTOR shall identify DEPOSITOR on the bill of lading or other contract of carriage as the named consignee, in care of CONTRACTOR, and shall not identify CONTRACTOR as the consignee. If, in violation of this Agreement, GOODS are shipped to CONTRACTOR as named consignee or shipped from the CONTRACTOR 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 CONTRACTOR, that CONTRACTOR named as consignee is the “in care of party” only and has no beneficial title or interest in the GOODS. Furthermore, CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR be considered the consignee for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether CONTRACTOR 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 CONTRACTOR’S status as “agent” under 21 U.S.C. § 350d, under no circumstances shall CONTRACTOR be an agent for purposes of identifying the “importer”. CONTRACTOR shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether CONTRACTOR accepts or refuses GOODS shipped in violation of this Section, DEPOSITOR agrees to defend, indemnify, and hold CONTRACTOR 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.

8. TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS.

(A) No GOODS shall be delivered or transferred except on receipt by CONTRACTOR of DEPOSITOR’S complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, email, or similar communication, provided CONTRACTOR 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 CONTRACTOR shall not be responsible for loss or error occasioned thereby. CONTRACTOR 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. When GOODS are ordered out, a reasonable time shall be given to CONTRACTOR to carry out instructions.

(B) CONTRACTOR will specify the address of the FACILITIES and provide building specs and security details. CONTRACTOR reserves the right to move, at its expense, four (4) days after notice is sent by email, certified mail, or overnight delivery to DEPOSITOR, any GOODS in storage from the FACILITIES in which they may be stored to any other FACILITY. CONTRACTOR will store the GOODS at the FACILITIES and may move the GOODS within and between, any one or more of the warehouse buildings which comprise the FACILITIES.

(C) CONTRACTOR reserves the right to require advance payment of all past, present, and future charges prior to removal of the GOODS from the FACILITIES.

9. HANDLING.

(A) The handling charge covers the ordinary labor involved in receiving GOODS at warehouse door, placing GOODS in storage, and returning GOODS to warehouse door.

(B) Unless otherwise agreed in writing, labor for unloading and loading GOODS will be subject to a charge. Additional expenses incurred by CONTRACTOR in receiving and handling damaged GOODS, and additional expense in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the DEPOSITOR.

(C) Labor and materials used in loading rail cars or other vehicles are chargeable to DEPOSITOR.

10. LIABILITY AND LIMITATION OF DAMAGES.

 

(A) CONTRACTOR shall not be liable for any loss or damage to GOODS tendered, stored, or handled however caused unless such loss or damage resulted from the failure by CONTRACTOR, or, as applicable, the third-party warehouse operator’s failure, to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances. CONTRACTOR is not liable for damages that could not have been avoided by the exercise of such care.

(B) CONTRACTOR shall be granted a shrinkage allowance of 1% of GOODS tendered to CONTRACTOR by DEPOSITOR during any program calendar year. Base inventory level for annual shrinkage allowance will be total inventory dollars at landed cost on move-in date, and then on 1^st of every subsequent year.

(C) GOODS are not insured by CONTRACTOR against loss or damage, however caused.

(D) In the event of unintentional loss or damage to the GOODS for which CONTRACTOR is legally liable, DEPOSITOR declares that CONTRACTOR’S liability for damages are limited to $0.50/lbs., and in no instance shall any one claim exceed the limit of CONTRACTOR’S liability insurance; provided, however, that such liability may at the time of acceptance of this Agreement be increased upon DEPOSITOR’S written request on part or all of the GOODS hereunder and CONTRACTOR’S written acceptance of such increased liability in which event an additional monthly charge will be made based on such increased valuation.

(E) The limitation of liability referred to in Section 10(D) above shall be DEPOSITOR’S exclusive remedy against CONTRACTOR for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the GOODS and shall apply to all claims including inventory shortage and mysterious disappearance claims unless DEPOSITOR proves by affirmative evidence that CONTRACTOR converted the goods to its own use, sold the goods, or if internal theft has occurred in contractor premises. Any presumption of conversion imposed by law shall not apply.

(F) Where loss or damage occurs to tendered, stored, or handled goods, for which the CONTRACTOR is not liable, the 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.

11. LIABILITY FOR CONSEQUENTIAL DAMAGES. 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 CONTRACTOR be liable for special, indirect, exemplary, punitive, or consequential damages of any kind, including, but not limited to, lost profits, lost sales, delays, or damages due to business interruption, regardless of whether such damages were foreseeable or CONTRACTOR had notice of the possibility of such damages.

12. LIABILITY FOR MIS-SHIPMENTS AND CHARGEBACKS.

 

(A) If CONTRACTOR negligently mis-ships GOODS, CONTRACTOR shall pay the reasonable transportation charges incurred to return the mis-shipped GOODS to the FACILITIES. If the consignee fails to return the GOODS, CONTRACTOR’S maximum liability shall be for the lost or damaged GOODS as specified in Section 10(D) above, and CONTRACTOR shall have no liability for damages due to the

consignee’s acceptance or use of the GOODS whether such GOODS be those of the DEPOSITOR or another.

(B) CONTRACTOR shall not be responsible for chargebacks of any kind.

(C) Any and all claims made pursuant to this Section must be in compliance with the requirements set forth in Section 21.

13. 13. RECALL. In the event a recall, field alert, product withdrawal, or field correction (together, “Recall”) may be necessary with respect to any GOODS provided under this Agreement, DEPOSITOR shall immediately notify CONTRACTOR in writing. CONTRACTOR 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 defend, indemnify, and hold harmless CONTRACTOR from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which CONTRACTOR pays or incurs as a result of a Recall.

13. INSURANCE. CONTRACTOR shall provide the following policies and limits of insurance:

(A)         Workers’ Compensation:                                                                      Statutory minimums

(B)         Comprehensive General Liability (with contractual coverage):          $2,000,000 combined single limit

(C)         Warehouseman’s Legal Liability:                                                        $1,000,000 per occurrence

(D)         Insurance covering loss or damage to DEPOSITOR’S GOODS (a) where CONTRACTOR is not liable, or (b) which exceeds the limitation of damages if CONTRACTOR is liable, shall be maintained by DEPOSITOR. Any third-party FACILITY used by CONTRACTOR shall maintain similar insurance policies, at the indicated minimums, as required of CONTRACTOR under this Section.

15. 15. BILLING AND PAYMENT. CONTRACTOR shall provide DEPOSITOR with an invoice for services performed showing all charges due and owing. DEPOSITOR agrees to pay the invoices as submitted, without deduction, setoff, or hold back, within twenty-four (24) hours after receipt. Any invoice over fifteen (15) days past its due date may be assessed a service charge of one percent (1%) APR per month or a charge otherwise permitted by law. Any dispute as to the amount of the invoice shall be claimed in writing within thirty (30) days from date of invoice. DEPOSITOR may not offset or withhold payment of invoices under any circumstances without the prior written consent of CONTRACTOR.

16. 16. LIEN. CONTRACTOR shall have a general warehouse lien for all lawful charges for storage and preservation of the GOODS; also, for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing coopering, and other charges and expenses in relation to such GOODS, and for the balance on any other accounts that may be due. CONTRACTOR further claims a general warehouse lien for all such charges, advances, and expenses with respect to any other GOODS stored by the DEPOSITOR in any other facility owned or operated by CONTRACTOR. In order to protect its lien, CONTRACTOR reserves the right to require advance payment of all charges prior to shipment of GOODS if agreement is terminated and depositor moves its goods out, otherwise standard net twenty-four (24) hour payment terms will apply. Unless expressly stated otherwise in writing, CONTRACTOR will not subordinate its lien to any lender, financial institution, or any other third party.

17. FORCE MAJEURE. 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 CONTRACTOR, 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 (including but not limited to quarantine or other employee restrictions) 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 CONTRACTOR to continue to protect the GOODS, the DEPOSITOR agrees to pay the storage or similar charges associated with CONTRACTOR’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.

18. 18. INVENTORIES. A physical inventory or alternative mutually agreed upon system of inventory verification of all GOODS shall be conducted by CONTRACTOR at intervals as agreed upon by the PARTIES. CONTRACTOR will take such additional physical inventories as requested by DEPOSITOR, at DEPOSITOR’S expense. Representatives of DEPOSITOR and CONTRACTOR personnel, as well as any independent auditor or designee, may be present during any inventory.

19. 19. AUDIT OF RECORDS. DEPOSITOR has the right, during normal business hours and upon reasonable notice of at least seventy-two (72) hours, to inspect the GOODS and to count their inventory and to meet with CONTRACTOR as necessary, pertaining to operations under this Agreement.

20. 20. DEFAULT. If either PARTY shall fail to perform any of the covenants or obligations of performance and payment imposed upon it under and by virtue of this Agreement (except where such failure is excused under other provisions of this Agreement), the other PARTY shall give the defaulting PARTY written notice, stating specifically the cause for which the notice of default is given. If, within a period of thirty (30) days after such notice, the defaulting PARTY does not commence with diligence to remove and remedy the default then the PARTY not in default may cancel this Agreement without any further obligation by furnishing the defaulting PARTY a thirty (30) day notice of cancellation.

21. 21. NOTICE OF CLAIM AND FILING OF SUIT.

(A) Claims by DEPOSITOR and all other persons must be presented in writing to CONTRACTOR within a reasonable time, and in no event any later than the earlier of: (i) sixty (60) days after delivery of the GOODS by CONTRACTOR, or (ii) sixty (60) days after DEPOSITOR is notified by CONTRACTOR that loss or damage to part or all of the GOODS has occurred, whichever time is shorter. 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.

(B) No lawsuit or other action may be maintained by DEPOSITOR or others against CONTRACTOR for loss or damage to the GOODS unless timely written notice of claim has been given as provided in Section 21(A), and unless such lawsuit or other action is commenced by no later than the earlier of: (i) nine (9) months after the date of delivery by CONTRACTOR, or (ii) within nine (9) months after DEPOSITOR is notified by CONTRACTOR that loss or damage to part or all of the GOODS has occurred, whichever time is shorter.

(C) When GOODS have not been delivered, notice may be given of known loss or damage to the GOODS via email 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 CONTRACTOR.

22. 22. NOTICES. Notices may be provided by facsimile, email, or express courier (signature required). DEPOSITOR is presumed to have knowledge of the contents of all notices transmitted in accordance with this Section within five (5) days of transmittal. Each PARTY may update their address for notices by providing notice to the other PARTY consistent with this Section.

TO DEPOSITOR: The address provided by DEPOSITOR in initial account setup.

[

 

TO CONTRACTOR:                                                                                                    

External Power Supply LLC dba ZonPrep

80 Liberty Industrial Parkway

McDonough, GA 30253

[email protected]

23. 23. DOCUMENTS OF TITLE. Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the PARTIES. Any inconsistencies between the terms of the warehouse receipt and this Agreement shall be governed by this Agreement.

24. 24. ENTIRE AGREEMENT. All mutually executed Appendices, Rate Schedules, or other documents are hereby incorporated into and made a part of this Agreement. This Agreement embodies the entire agreement and understanding between the PARTIES and supersedes all prior agreements and understandings between them relating to the subject matter hereof.

25. 25. GOVERNING STATE LAW. This Agreement and the legal relationship between the PARTIES hereto shall be governed by and construed in accordance with the substantive laws of the state where the FACILITY(IES) is/are located, including Article 7 of the Uniform Commercial Code as ratified in that state, notwithstanding its conflict of laws rules. Any lawsuit or other action involving any dispute, claim, or controversy relating in any way to this Agreement shall be brought only in the appropriate state or federal court in the state where the FACILITY(IES) is/are located.

26. 26. SEVERABILITY, WAIVER, AND ASSIGNMENT.

(A) If any term of provision of this Agreement, or any application thereof, shall be invalid or unenforceable, by order, decree, or judgment of a court of competent jurisdiction the remainder of this Agreement or any other application of such term or provision shall not be affected thereby but shall remain in full force and effect.

(B) CONTRACTOR’s failure to require strict compliance with any provision of this Agreement shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this Agreement.

(C) The provisions of this Agreement shall be binding upon the heirs, executors, successors, and assigns of both DEPOSITOR and CONTRACTOR; contain the sole agreement governing GOODS tendered to the CONTRACTOR; and cannot be modified except by a writing signed by CONTRACTOR and DEPOSITOR.

(D) DEPOSITOR shall not assign or sublet this Agreement or its interest or obligations herein, including, but not limited to, the assignment of any monies due and payable, without the prior written consent of CONTRACTOR.

(E) CONTRACTOR may, in its sole and absolute discretion, assign this Agreement to an affiliate or subsidiary company or to any third party upon notice to DEPOSITOR.