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| Terms and Conditions |
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| These terms and conditions constitute a contract between the “Craters Inc” and the “Owner” In the event Craters Inc renders services and issues a document containing terms and conditions governing such services, the terms and conditions set forth in that document shall govern those services to the extent it conflicts with this document. |
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| 1. DEFINITIONS |
| 1.1. “Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking or reloading, and such packaging supplies and other similar items, if any, that may be furnished by or on behalf of Owner to Warehouseman. |
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| 1.2.“Owner”: shall mean the owner of the Stored Goods as well as its agents and authorized representatives, and shall include the holder of a negotiable receipt, any party with a security interest in the Stored Goods and the party delivering the Stored Goods to the Warehouseman. Owner represents that it is a merchant and that the Goods are stored in the course of its business. |
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| 1.3.“Warehouseman” or “Craters Inc”: shall mean Craters Inc , Inc. as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns. |
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| 2. SERVICES |
| 2.1. Warehouseman agrees to provide certain warehousing and related services as set forth on the Quotation (the “Services”) at the facility or facilities identified in the Quotation (collectively the “Facility” or the “Warehouse”). In providing the Services, Warehouseman shall exercise such care with respect to the Goods in its custody and control as a reasonably careful warehouseman would exercise under like circumstances (the “Standard of Care”). |
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| 2.2. The rates and charges set forth in the Quotation cover ordinary labor and administration involved in receiving the Goods at the Facility’s door or dock, placing the Goods in storage at the Facility and returning the Goods to the Facility’s door or dock. Outbound shipments will be coordinated between Warehouseman and the Owner. Warehouseman shall report to the Owner the count taken on each inbound and outbound shipment and, once reported to the Owner, such count shall establish the number of cases and/or pallets received or shipped, unless Owner presents written documentation to the contrary within five days of receipt of Warehouseman’s count. |
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| 2.3. Warehouseman reserves the right to make such reasonable rules and regulations regarding the Services rendered as may be necessary for the care, safety, management and security of the Facility. |
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| 3. WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION |
| Subject to the applicable legislation governing warehouseman’s liens in the province, territory or state where the Facility is located, Craters Inc shall have a general warehouseman’s lien upon the Goods for all lawful charges for Services and for all other sums owed by Owner, as well as for any money advanced, interest, insurance, transportation, labor, weighing, coopering, cleaning, or other expenses, fees, charges, costs, liabilities and payments made or incurred by Craters Inc with respect to the Goods or with respect to any other goods stored by Owner at any other facility used, owned or operated by Craters Inc. To protect its lien, Craters Inc may require advance payment of all charges prior to release of any Goods. If Owner is in default of this Agreement or any other agreement with Craters Inc , and such default continues for thirty days after notice is sent by Craters Inc, then, upon notification to all persons known by Craters Inc to have an interest in the Goods, Craters Inc may sell so many of the Goods as are necessary to satisfy its lien and the expenses of such sale, including attorneys’ fees for Owner’s account on commercially reasonable terms, at such time as Craters Inc may determine. After first taking from the net proceeds of such sale an amount sufficient to satisfy its lien and the expenses of such sale, including attorneys’ fees, Craters Inc shall pay over the balance, if any, to Owner. |
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| 4. CHARGES |
| 4.1. Charges applicable to the Services are set forth in the Quotation. Warehouseman reserves the right to increase any of the charges in its Quotation upon 30 days’ prior written notice. Unless otherwise specified, Goods are stored on a month-to-month per package basis and charges are per calendar month. Any charges applicable to incoming Goods will be billed as of the date for which the Warehouseman accepts care, custody and control of the Goods, regardless of unloading date or date of issue of warehouse receipt. |
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| 4.2. Any cover marking, labeling, sampling, palletizing, repairs, measuring, weighing, inspection or physical inventory tracking or any additional services required by Owner are separate charges that are not covered in the Quotation, and shall be invoiced by the Warehouseman in addition to such basic handling rates. |
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| 4.3. The quoted rates are based on the Assumptions identified in the Quotation. In the event the information changes, is untrue or differs greatly from the description provided by Owner, then Warehouseman reserves the right to amend the Quotation or immediately terminate this Agreement. |
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| 4.4. Owner agrees to pay Warehouseman in U.S. dollars thirty (30) days after receipt of an invoice. In the event of a good faith dispute regarding an invoice, Owner shall pay any amounts that are not in dispute and, within fifteen (15) days of receipt of the invoice, provide written notice, detailing all bases for its dispute and the amounts that are in dispute, else Owner will be deemed to have waived any dispute with respect to the invoice. Payments received by Warehouseman may be applied first to late charges or the oldest storage charges due, at Warehouseman’s sole discretion. Failure by the Owner to timely pay all charges hereunder shall be considered a material breach of this Agreement, entitling Warehouseman to; (i) withhold Services; (ii) enforce its warehouseman’s lien;(iii) terminate this Agreement and/or; (iv) exercise any other remedy available at law or by virtue of this Agreement. In the event that Warehouseman elects to terminate the Agreement, such termination shall not relieve the Owner from payment or satisfaction of any amounts or obligations accrued and outstanding as of the effective time of termination. |
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| 4.5. If Owner fails to make payment of the invoices when due, Owner shall pay to Warehouseman a late payment charge at the rate of one and one half percent (1.5%) of such invoice amounts per month (or the highest rate permitted by applicable law, if less) from the date that such invoices were due. If any disputed portion of an invoice is later paid by Owner, or is determined subsequently to be due and owing to Warehouseman, Owner shall also pay Warehouseman interest on such amount at the rate of one and one half percent (1.5%) of such invoice amounts per month (or the highest rate permitted by applicable law, if less) from the original date that such invoices were due. |
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| 5. DELIVERY AND TRANSFER REQUIREMENTS |
| 5.1. Warehouseman reserves the right to refuse receipt of or release of Stored Goods at the Owner’s request unless the Warehouseman has received, under an acceptable form, written instruction by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods. It shall be Owner’s responsibility to arrange for the transportation of the Goods to and from the Facility, and Warehouseman shall not be liable for any chargebacks in relation thereto. All special instructions with respect to the Goods, including to the care, storage, movement or handling thereof, shall be written on the Quotation or otherwise specifically agreed to in writing by Warehouseman. Neither Craters Inc nor the Facility shall be designated as the owner or consignee of any Goods on any bill of lading or contract of carriage, and any contrary designations shall be of no legal effect. Warehouseman 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. If Warehouseman accepts the Goods shipped in violation of this Section 5.1. Owner agrees to indemnify, defend and hold Warehouseman harmless from all claims for transportation, storage, handling or other charges relating to such Goods, including undercharges, demurrage, truck/intermodal detention and any other charges of any nature whatsoever. |
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| 5.2. If the instructions for loading and/or delivery is made in any other way than the one set out in Subsection 5.1 above, then, notwithstanding acceptance of such instructions by the Warehouseman or its employees, delivery of such Stored Goods shall be wholly at the risk of the Owner and the Warehouseman shall not be held responsible for loss from error in the giving or receiving of such instructions. |
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| 5.3. Unless all unpaid charges incurred with respect to the Stored Goods are paid in full, delivery or transfer thereof may be refused until full payment is received. |
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| 5.4. All Goods shall be delivered to the Facility in a segregated manner, properly marked, and packaged for handling. Warehouseman may, without notice, move the Goods within the Facility. |
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| 5.5. Owner shall timely provide Warehouseman with the most current and pertinent information concerning any special characteristics of the Goods, including safety and health information, toxicological information, applicable environmental data, labeling and transportation information, and the procedures known to or developed by the Owner with respect to the receiving, storing, handling, shipping, transporting and/or disposing of the Goods (“Product Information Data”). Owner will provide all applicable Material Safety Data Sheets (MSDS) for all Goods. Owner shall advise Warehouseman of applicable laws, rules and regulations affecting the Goods. If the nature of the Goods requires Warehouseman, in order to be in compliance with applicable laws, rules and regulations, to: (i) alter or modify the Facility in any way; (ii) obtain any special permits or licenses; or (iii) provide special training to its employees, Owner shall be responsible for all such costs and expenses and shall cooperate with Warehouseman as is reasonably necessary. |
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| 5.6. For any Goods containing special characteristics, hazardous substances or hazardous materials, Owner agrees to timely furnish Warehouseman with all correct and proper information, instructions, shipping papers, and certifications necessary to permit Warehouseman to prepare the Goods for shipment in a manner which conforms such shipments with all applicable laws and regulations. Owner appoints Warehouseman as its agent for the purposes of preparing the shipments and signing the certifications and shipping papers covering the shipment. |
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| 6. ACCESS AND INSPECTION |
| The Owner of the Stored Goods or any person upon the written authority of the Owner may, subject to insurance regulations or other reasonable limitations imposed by the Warehouseman, have access to the Stored Goods for inspection if accompanied by a representative of the Warehouseman, whose time shall be charged to the Owner according to the Warehouseman’s rates in force at the time of such access. |
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| 7. REMOVAL OF GOODS |
| 7.1. Goods that are or may become of a dangerous, explosive, inflammable, radioactive, hazardous, biohazardous, cytotoxic or harmful to the environment that, in the opinion of the Warehouseman, may create a condition hazardous to any personnel or Stored Goods or to the property itself, may be rejected by Warehouseman or required by Warehouseman to be immediately removed from a Facility. In the event such Stored Goods are not immediately removed, they may be destroyed, dumped sold or otherwise disposed of as the Warehouseman reasonably sees fit, at Owner’s sole cost and expense and without liability on the part of the Warehouseman. |
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| 7.2. For any hazardous waste that is generated from the Goods during Warehouseman’s performance of the Services, Owner shall be considered the waste generator and waste transporter. Warehouseman’s obligations with respect to such hazardous waste shall be limited to preparing such waste for pickup at the Facility in accordance with Owner’s procedures for pickup and disposal by an Owner-approved and licensed carrier or transporter, under contract with Owner, for disposal at a permitted and licensed disposal site. Warehouseman shall not be liable or responsible for the actual disposal of such hazardous waste. |
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| 7.3. When loss or damage occurs to Goods for which Warehouseman is not liable, Owner shall be responsible for removing and disposing of such Goods and for the associated costs, including any environmental cleanup or site remediation resulting from the loss or damage to the Goods. If non-hazardous waste is generated from the Goods, Warehouseman may dispose of it at Owner’s expense or require the Owner to dispose of it. |
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| 7.4. Warehouseman reserves the right to move the Stored Goods five (5) days after notice is given to the Owner from the warehouse in which they may be stored to any other utilized warehouse. |
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| 8. LIABILITY OF WAREHOUSEMAN |
| 8.1. All Goods stored with the Warehouseman shall be at Owner’s risk. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods for any cause whatsoever unless such damage or loss resulted from Warehouseman’s failure to perform the Services in accordance with the Standard of Care and the damage could have been avoided by the exercise of such care. Additionally, Warehouseman shall not be liable for any loss or damage to the Goods: (i) caused by any defects in the manufacturing or packaging of such Goods; (ii) attributable to transportation providers failing to deliver the full shipment of expected Goods to the Facility or otherwise caused by the acts or omissions of such transportation providers; (iii) delivered to the Facility in damaged condition, regardless of whether such damage was reported to Owner; (iv) attributable to concealed damage; or (v) as a result of the negligence or intentional misconduct of Owner or any of its employees, agents, carriers or subcontractors. Notwithstanding the foregoing, under no circumstance will Warehouseman assume any liability for penalties, financial or otherwise, that may exist in contracts between Owner and any of Owner’s customers. The Owner expressly releases Warehouseman from and agrees to indemnify, defend, and hold harmless Warehouseman against any and all claims for loss or damage described in this Section 8.1, including, without limitation, costs and reasonable attorneys’ fees (including in house attorneys) incurred by the Warehouseman. |
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| 8.2. The quality, condition, contents and value of the Stored Goods are not known to the Warehouseman except as declared on the packing list by the Owner. The Warehouseman shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received from Owner not less than twenty four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above. |
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| 8.3. Storage rates do not include insurance. Goods stored are not insured by the Warehouseman and the charges do not include insurance unless specified in writing in the Quotation. |
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| 8.4. Without limiting the generality of Subsections 8.1 to 8.3 above, it is specifically declared and agreed that:
(i) the Warehouseman shall in no circumstances be liable for loss or damage or deterioration to the Stored Goods, or delay in the delivery, resulting from any of the following perils or circumstances: inaccuracies, obliteration or absences of marks, numbers, address or description; fire, explosion from any cause, flood, wind, storm, earthquake or other acts of God; irresistible force, war, insurrection, riot, civil or military authority, strikes, picketing or any labor trouble; shrinkage in weight, loss in quality or the inherent or perishable nature of the Stored Goods; insufficient boxing, crating or packaging; wear and tear; leakage or failure to detect the same; concealed damage; breakage, theft, mice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the warehouse, including the water system, sewer, drainage, electricity, theft or vandalism at the Warehouse; any cause that is beyond the control of the Warehouseman.
(ii) Warehouseman shall not be responsible or liable to Owner, or any person claiming by, through or under the Owner, for any loss of, damage or injury to any property or to any persons at any time in or about the Facility from theft, fire, explosion, falling plaster, bursting, breakage, leakage, steam, gas, electricity, water, dampness, sewage, lightning, rain, wind, snow, or any other cause whatsoever which is beyond the reasonable control of Warehouseman, nor shall Warehouseman be in any way responsible or liable to the Owner, or any person claiming by, through or under the Owner in case of any accident or injury, including death, to any of the Owner’s employees, agents, contractors or invitees or to any person or persons in or about the Facility. Warehouseman shall employ the same measure of care that Warehouseman employs in protecting its own products and personnel for purposes of ensuring that Owner’s property, employees, agents and invitees are not exposed to harm while in the Facility.
(iii) the Warehouseman shall in no circumstances be liable for any direct or indirect loss, consequential damages, or special damages, including loss of profit, loss of business, loss of business opportunities, loss of Owner goodwill or punitive or exemplary damages or the cost and expenses in providing or securing substitute revenues or substitute service providers, for any reason whatsoever even if Warehouseman has been advised of the possibility of the same;
(iv) all the Warehouseman’s charges incurred with respect to Goods lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Goods and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Stored Goods against the Owner.
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| 8.5. Subject to the limitations set forth herein, the liability of the Warehouseman shall be limited to: the lesser of the repair or Replacement Cost of lost or damaged Stored Goods while in Warehouseman’s care, custody and control, and only proportionally to the extent such loss or damage results from Warehouseman’s failure to perform the Services in accordance with the Standard of Care, but in no case shall the liability exceed fifty cents ($.50) per pound. For purposes of this Agreement, “Replacement Cost” shall mean the lower of Owner’s actual manufacturing or acquisition cost to replace the lost or damaged Goods at their pre-loss condition, less salvage value, if any. When determining Warehouseman’s responsibility for lost Goods, if any, Warehouseman may be entitled to an annual allowance of 5% (the “Allowance”) or as otherwise agreed to by the parties, which must be exceeded prior to Warehouseman being liable for any damage, loss, or shortages of Owner’s Goods. |
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| 8.6. Notwithstanding anything contained in this Agreement to the contrary, Owner hereby waives and releases, for itself and its insurers, any and all rights of recovery, claims, actions, or causes of action against Warehouseman, including its agents, contractors, officers, and employees, for loss of or damage to Goods that are within the Allowance or beyond the limitation contained herein. Owner covenants that no insurer shall hold any right of subrogation against Warehouseman. The failure of Owner to secure an appropriate clause in or endorsement to its insurance coverage, which waives the right of subrogation against Warehouseman, shall not in any manner affect the intended waiver and release hereunder and, if Owner’s insurance company seeks subrogation against Warehouseman because of the absence of such a waiver and release, then Owner shall defend, indemnify and hold Warehouseman harmless from and against such subrogation claim. |
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| 8.7 When errors in the shipment of the Goods occur, the liability of the Warehouseman, if any, shall be strictly limited to the transportation costs to be incurred to rectify any such error, and shall not, under any circumstances, include liability for damages due to the acceptance or use of said Goods. |
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| 8.8 The Warehouseman shall not be responsible for delays in loading or unloading, nor for demurrage charges or other time penalties arising from any delay. |
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| 9. OWNER OBLIGATIONS |
| The Owner warrants to Warehouseman that the Owner owns or otherwise has lawful possession of, and the legal right to store, all of the Goods tendered to Warehouseman hereunder. The Owner agrees to pay all storage and other charges which Warehouseman may incur or become liable for or by judgment be compelled to pay in connection therewith, as well as any costs incurred by Warehouseman in collecting same including reasonable attorneys’ fees, including in house attorneys. Owner agrees to pay all taxes and assessments whether federal, provincial, state or local, which may be assessed against the Goods at any time, and to hold Warehouseman harmless therefrom. |
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| 10. INDEMNITY |
| Owner shall defend, indemnify and hold harmless Craters Inc and its affiliates, including their agents, employees, insurers, customers, shippers, receivers, successors, assigns, directors, officers, representatives and contractors, against all claims, fines, taxes, penalties, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs or expenses, as well as all resulting outside or in-house attorneys’ fees, costs or expenses, which directly or indirectly arise out of: (i) Owner’s or its employee, agent or subcontractor’s breach of any term of this Agreement or any other agreement, violation of any law or regulation, negligence, recklessness or willful misconduct; (ii) the design, manufacture, distribution, marketing, defect, use or sale of the Goods; (iii) the transportation of the Goods to or from the Facility, including any charges incidental thereto (such as demurrage or detention); or (iv) the hazardous nature of the Goods. |
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| 11. CLAIMS |
| All claims for lost, damaged or delayed Goods, or any other claims arising out of this Agreement that are made against Craters Inc, must be made in writing no later than the earlier of (i) ten days after the Goods involved in the claim are transported from the Facility or (ii) If the Goods are currently stored in the Warehouse, five days after Owner discovers or should have discovered the event giving rise to the claim. The written claim must specify all bases for the claim and the amount being claimed. Craters Inc shall be afforded a timely opportunity to inspect damaged Goods. Failure to provide timely written notice or permit Craters Inc to inspect damaged Goods will result in a waiver of the claim. Any legal proceeding regarding such claim must be commenced within twelve months from the date of such written claim. |
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| 12. INDEPENDENT CONTRACTOR |
| This Agreement is not and shall not be construed as an agreement of joint venture, partnership, agency, franchise, or employment between the Parties or their respective employees. Each Party has sole authority and responsibility to employ, discharge, discipline, and otherwise control and direct its employees, and neither the Owner or Warehouseman, nor any of their employees, are or shall be deemed to be employees of the other. |
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| 13. TERMINATION |
| Warehouseman may terminate this Agreement for any reason by providing at least 30 days written notice to Owner. In such an instance, Owner shall arrange to pay all outstanding charges and transport the Goods away from the Facility prior to the expiration of the 30-day period. |
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| 14. APPLICABLE LAWS |
| Owner and Warehouseman agree to personal jurisdiction and exclusive venue in the United States District Court for the Western District of Pennsylvania or, if federal subject matter jurisdiction is not available, in state court in Allegheny County, Pennsylvania. This and all agreements related hereto between the Warehouseman and the Owner shall be governed by the laws and regulations applicable in the province, state or territory where the Goods received are stored. |
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| 15. GENERAL PROVISIONS |
| 15.1. If any provision of this Agreement, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected and shall remain in full force and effect. |
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| 15.2. Warehouseman’s failure to require strict compliance with any provision of this Agreement shall not constitute a waiver to later demand strict compliance with that or any other provisions of this Agreement. |
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| 15.3. These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns. |
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| 15.4. Neither Party may assign its rights or delegate or subcontract its duties and obligations under this Agreement to any other person or entity without the prior written consent of the other; provided, however, that either Party may assign the Agreement to an affiliate or a successor-in-interest upon notice to the other party without consent. |
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| 16. Governing Law, Consent to Jurisdiction and Venue. |
| These terms and conditions of service and the relationship of the parties shall be construed according to the laws of Pennsylvania without giving consideration to principles of conflict of law. Customer and Company consent to the jurisdiction of the United States District Court for the Western District of Pennsylvania or, if federal jurisdiction is lacking, to the state courts in Allegheny County, Pennsylvania.
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| (*) These terms and conditions are adapted and substantially the same as those approved by the National Customs Brokers and Forwarders Association of America, Inc. (Revised 6/16) |
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