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Warehousing Terms & Conditions

USA English

USA- STANDARD TERMS AND CONDITIONS FOR WAREHOUSING OF TRAFFIC TECH, INC.

DEFINITIONS

“Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking, reloading and forwarding, and such packaging supplies and other similar items, if any, that may be furnished by or on behalf of Owner to Warehouseman for receiving, handling, shipping, transporting and/or disposing of the goods or for use by Warehouseman in providing the Services.

“Owner”: shall mean the owner of the Stored Goods as well as its agent 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.

“Warehouseman”: shall mean Traffic Tech Inc. as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.

SERVICES

During the term of this Agreement, Warehouseman agrees to provide certain warehousing and related services as set forth on the Quotation (the “Services”) at the facility or facilities identified on the Quotation (collectively, the “Facility” or the “Warehouse”). In providing the Services, Warehouseman shall exercise such care with respect to the Goods under its custody and control as a reasonably careful person would exercise under like circumstances (the “Standard of Care”).

Warehouseman shall perform the Services pursuant to the Standard of Care. The rates and charges set forth in the Quotation shall 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 maintain an accurate count of all shipments of Owner Products into and out of the Facility. 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 other written documentation can prove to the contrary.

Warehouseman reserves the right to make such reasonable rules and regulations regarding the Services rendered under this Agreement as may from time to time be necessary for the care, safety, management, and security of the Facility.

WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION

Subject to the legislation in force governing warehouseman’s lien or right of retention in the state where the Stored Goods received are stored, the Warehouseman shall have a general warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the Goods to the warehouse and until all lawful charges for handling, storage, and preservation of the Stored Goods and for all lawful claims for money advanced, interest, insurance, transportation, labor and all other expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full. Warehouseman further claims a general warehouse lien on all such charges, advances and expenses with respect to any other goods stored by Owner at any other facility owned or operated by Warehouseman. In order to protect its lien, Warehouseman reserves the right to require advanced payment of all charges prior to shipment of Goods. Warehouseman shall be entitled to retain physical care, custody and control of Goods until all charges due thereon to Warehouseman shall have been fully paid, without liability to Owner or any other party, and if such charges have not been paid in full within a period of thirty (30) days after any breach, insolvency, or bankruptcy by Owner, Warehouseman may sell the Goods for Owner’s account on any terms that are commercially reasonable, and at such time as it may determine, after notification to all persons known to claim an interest in the Goods. After first taking from the net proceeds of such sale or sales, all charges due to Warehouseman hereunder and the expenses of such sale or sales, including attorney’s fees, Warehouseman shall pay over the balance, if any, of such sales proceeds to Owner

CHARGES

All charges applicable to the Services are set forth in the Quotation and Goods are stored on a month-to-month per package (or other agreed upon unit) basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month. The storage month begins on the date that Warehouseman accepts care, custody and control of the Goods, regardless of unloading date or date of issue of warehouse receipt.

The class of storage in which the Goods are to be stored, the amount or amounts owed hereon for disbursements or services rendered by the Warehouseman prior to receiving cargo and the rate per month per unit to be charged for storage of such Goods are set out in the Quotation provided to the Owner; said Quotation being expressly accepted prior to the commencement of the work.

Basic handling rates described in the Quotation are not covering the following items: marking, labelling, sampling, palletizing, repairs, measuring, weighing, inspection, physical inventory tracking, which shall be invoiced by the Warehouseman in addition to such basic handling rates.

Charges for additional services required by the Owner or necessitated by the nature of the Stored Goods together with handling charges upon delivery of the Goods out of storage, will be invoiced by the Warehouseman in addition to the monthly storage charge prescribed by the Quotation provided to the Owner.

Any charge made with respect to the Stored Goods shall conform to the Warehouseman’s rates in effect at the time the service is performed. Quotations for services not included in such rates will be given on request. No increase in regularly recurring charges will be made on Goods in storage until thirty (30) days after a notice of such increased charge has been mailed to the Owner of the Stored Goods, unless otherwise agreed by the Owner.

Owner agrees to pay Warehouseman in U.S. funds fifteen (15) days after receipt of invoice. Owner agrees to pay for any services performed by Warehouseman and not specified herein, as invoiced by Warehouseman. Payments received by Warehouseman may be applied first to late charges or the oldest storage charges due, at Warehouseman’s sole discretion. In the event that the Owner shall fail to pay when due any undisputed charge due and payable hereunder, then Warehouseman may withhold all Services hereunder. Failure by the Owner to comply with this provision shall be considered a material breach of this Agreement. If such breach continues for a period of thirty (30) days after written notice of the breach is received by the Owner, Warehouseman may terminate this Agreement immediately upon written notice to the Owner. 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.

In the event of a good faith dispute regarding any invoices, Owner shall pay the fees which are not in dispute and shall provide written notice of those fees which are in dispute within fifteen (15) days of receipt of invoice.

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 from the date that such invoices were due. Additionally, 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 from the original date that such invoices were due.

DELIVERY AND TRANSFER REQUIREMENTS

No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods. Unless otherwise provided in a separate Shipper-Broker Agreement between Owner and Warehouseman, it shall be Owner’s responsibility to arrange for the transportation of the Goods to the Facility. Warehouseman shall not be required to accept delivery of any Goods that are not accompanied by a receipt containing complete instructions properly authorized and executed by Owner. Owner shall, with respect to all Goods shipped to the Facility, identify Owner on the bill of lading or other contract of carriage as the named consignee, in care of the Facility and shall not identify either the Facility or Warehouseman as the consignee unless the shipment is specifically consigned to Warehouseman as the Owner. If, in violation of this Section 5.1, Goods are shipped to the Facility naming either the Facility or Warehouseman as the consignee on the bill of lading or other contract of carriage, Owner shall immediately notify the transporting carrier in writing, with a copy of such notice to Warehouseman, that the Facility and/or Warehouseman named as the consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, Warehouseman shall have the right to refuse such Goods and shall not be liable for any loss, misconsignment, 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 such Goods, including undercharges, demurrage, truck/intermodal detention and any other charges of any nature whatsoever.

If the loading and/or the 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.

Unless all unpaid charges incurred with respect to the Stored Goods to be delivered or transferred are paid in full or assumed by the transferee, delivery or transfer thereof may be refused.

In accordance with Section 3 above, the Warehouseman has a lien and/or a right of retention for all lawful charges for storage, cross-docking, breakdown, repacking, reloading, forwarding and preservation of the Stored Goods as well as for all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, cleaning of damaged Stored Goods and other charges and expenses in relation to such Stored Goods

All Goods shall be delivered to the Facility in a segregated manner, properly marked and packaged for handling. The Owner shall furnish or cause to be furnished to Warehouseman, at or prior to such delivery, a manifest containing detailed product identifying information and any instructions as to how the Goods shall be kept and/or accounted for. Warehouseman shall promptly report to Owner information regarding any Goods delivered to Warehouseman in a defective or deficient quality or quantity. Warehouseman may, without notice, move the Goods within the Facility. Warehouseman and the Owner will periodically discuss, review and revise, if necessary, the policies and procedures used by the parties in provision of the Services.

Owner shall timely inform Warehouseman of and provide Warehouseman with the most current and pertinent information concerning any special characteristics of the Goods including, but not limited to, 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 (the “Product Information Data”). Owner will provide all Material Safety Data Sheets (MSDS) for all Goods where applicable. Owner shall currently and promptly keep Warehouseman advised of applicable laws, rules and regulations of governmental authorities affecting or relating to the Goods and any health and safety practices that are required thereby. If the nature of the Goods or any special characteristics thereof, 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 governmental 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.

For any Goods containing special characteristics or which are hazardous substances or materials, Owner agrees to timely furnish Warehouseman with all correct and proper information and instructions to permit Warehouseman to prepare the same for shipment, including shipping papers and certifications, in a manner which conforms such shipments with all applicable governmental regulations. Owner appoints Warehouseman as its agent for the purposes of preparing the shipments and signing the certifications and shipping papers covering the shipment.

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 thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.

If a checker is not furnished by the Owner or its carrier, the Warehouseman’s load or unload count shall be conclusively deemed to be correct and accepted by the Owner.

REMOVAL OF GOODS

The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.

Where Stored Goods are of a perishable nature or by keeping will deteriorate greatly in value or cause damage to other stored goods or the Warehouseman’s property or employees, the Warehouseman may give a notice to the Owner requiring him to satisfy all outstanding charges in connection with the Stored Goods and to remove them from the warehouse; should such person fail to remove the Goods within the period specified in the notice, the Warehouseman may sell the Stored Goods at public or private sale without advertising, and otherwise act with respect thereto and keep any proceeds of sale thereof as may be permitted or provided by the laws of the state where the Goods are stored, and in such case, the Owner shall be liable to the Warehouseman for any balance of charges accrued and unsatisfied on such Stored Goods.

Where in the opinion of the Warehouseman, the nature or condition of the Stored Goods creates a condition hazardous to the safekeeping and storage of other commodities in the warehouse or to any property or person, Warehouseman shall promptly notify the Owner and the Owner shall promptly thereupon claim its interest in such Goods and remove them from the Facility at the Owner’s sole cost and expense. 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 a 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.

Where loss or damage occurs to tendered, stored or handled Goods for which Warehouseman is not liable, Owner shall be responsible for cost of removing and disposing of such Goods and the cost of any environmental clean up in site remediation resulting from the loss or damage to the Goods. Damaged or unsalable Goods are to be removed from the Facility in accordance with the Owner’s instructions. If non-hazardous waste is generated from the Goods, Warehouseman shall dispose of the same. The Parties shall confer, if deemed necessary by Warehouseman, to determine if such waste is hazardous.

LIABILITY OF WAREHOUSEMAN

All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever unless such damage or loss resulted from a failure of Warehouseman to perform the Services in accordance with the Standard of Care or any damages which could not 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 and such damage was reported to Owner; (iv) attributable to concealed damage; and (v) as a result of the negligence or intentional misconduct of Owner or any of its employees, agents 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 (for the avoidance of doubt, this sentence does not include any indemnity obligations of Warehouseman pursuant to this Agreement). The Owner expressly releases Warehouseman from and agrees to indemnify, defend, and hold harmless Warehouseman against any and all claims for such loss or damage described in this Section 8.1, including, without limitation, costs and reasonable attorneys’ fees incurred by the Warehouseman in connection therewith.

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 not less than twenty four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above.

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 and signed by the Warehouseman. Accordingly, it is the sole responsibility of the Owner to insure the Stored Goods are insured at the Facility to cover loss of or damage to the Goods. As set forth above, if Owner carries any insurance on the Goods, Owner and Owner’s insurance carrier shall waive subrogation against Warehouseman. Copies of such waivers shall be furnished to Warehouseman on request.

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 or 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 other labor trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Stored Goods, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of the Warehouseman. No responsibility will be assumed for loss of or damages to Stored Goods by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by 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, or for damages resulting from the usage of the warehouse space; (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, or invitees or to any person or persons in or about the Facility. Warehouseman shall employ the same measure of care (but in no event less than reasonable 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 but not limited to 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, and without regard to the nature of the claim and the underlying theory or cause of action (whether in contract, tort, or otherwise).(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 and against the Owner.

Subject to the limitations set forth herein, and without limiting the generality of the foregoing, in any event, the liability of the Warehouseman shall be limited to the ”Replacement Cost” of lost or damaged Stored Goods while the Goods are in Warehouseman’s care, custody and control 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 dollars ($50.00) per pallet. 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, plus shipping and handling costs less salvage value, if any. When determining Warehouseman’s responsibility for lost Goods, Warehouseman shall be entitled to an annual allowance (the “Allowance”) as defined in the Quotation or 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, in order to account for normal handling losses such as evaporation, shrinkage, line loss, clingage, measurement errors, temperature variations, scale variations, and the like.

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, its agents, contractors, officers, or employees for loss of or damage to Goods that are within the Allowance or in excess of fifty dollars ($50.00) per pallet and 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 respective insurance coverage, which waives the right of subrogation as provided for above, 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.

When errors in the shipment of the Goods occur, the liability of the Warehouseman 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.

The Warehouseman shall not be responsible for delays in loading or unloading railway cars, trailers or other containers, nor for demurrage charges or other time penalties arising from any delay which cannot be reasonably avoided by the Warehouseman in the normal course of its business.

OWNER OBLIGATIONS

The Owner represents and warrants to Warehouseman that the Owner is the owner of the Goods at all times that they are in the custody of Warehouseman or otherwise has the lawful possession of and 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, but not limited to, reasonable attorneys’ fees. Owner agrees to pay all taxes and assessments whether Federal, state or local which may be assessed against the Goods at any time, and to hold Warehouseman harmless therefrom.

INDEMNITY

Each Party hereto (the “Indemnitor”) shall indemnify, defend, and hold harmless the other Party and any affiliated and controlling entities of such Party, and the directors, employees, officers, agents, subcontractors, licensors and suppliers of all of them (the “Indemnitee”) from and against all third party liabilities, claims, suits, demands, actions, fines, damages, losses, costs and expenses (including reasonable attorneys’ fees) (“Claims”) for injury to or death of any person or damage to or loss of real property and improvements thereon or tangible personal property to the extent caused by or resulting from such Party’s negligent acts or omissions or those of its employees or agents, except to the extent caused by the Indemnitee; provided, however, that this Section 10.1 shall not apply to any loss or destruction of, or any damage to Goods for which the Services are provided.

Owner shall indemnify, defend and hold harmless Warehouseman and its Indemnitees from and against any third party Claims including, but not limited to, third party Claims arising out of or in connection with: (i)  the design, manufacture, distribution, marketing, use or sale of the Goods; (ii) lost, damaged or undelivered Goods; (iii) Goods which are not timely delivered; (iv) any and all receiving or shipping charges of any kind, including without limitation, demurrage or detention charges, unless such charges are the result of Warehouseman’s negligent acts or omissions; (v)  any and all loss, injury or damage to the Goods shipped to Warehouseman as consignee which are refused and returned by Warehouseman to their originating point and all costs associated therewith; (vi) any and all losses and other damages, including fines, penalties or charges, which Warehouseman may incur (including reasonable attorneys’ fees and costs), resulting from Owner’s failure to provide timely and accurate Product Information Data; and (vii) the performance or nonperformance of the Services, except as provided for in Section 10.1 above.

The Indemnitee shall provide prompt written notice of any Claim, tender defense or settlement to the Indemnitor, and fully cooperate in the defense of the Claim; provided that the failure to give such notice shall not affect the Indemnitee’s right to indemnification hereunder unless the failure to give such notice materially and adversely affects the rights, remedies, or liability of the Indemnitor with respect to such Claim. Should the Indemnitor fail to honor a timely request for indemnification, then the Indemnitee shall be entitled to all reasonable attorneys’ fees and costs incurred in the enforcement of the right of indemnification hereunder.

No compromise or settlement of a Claim may be effected by the Indemnitor without the Indemnitee’s consent unless: (i) there is no finding or admission of any violation of law or any violation of the rights of any person by Indemnitee; (ii) there is no effect on any other Claim that may be made by or against Indemnitee; (iii) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (iv) the compromise or settlement contains, as an unconditional term thereof, the giving by the claimant or the plaintiff of the Indemnitee a release from all liability in respect of such Claim. The Indemnitee shall have no liability with respect to any compromise or settlement effected without its consent.

CLAIMS

All claims for lost or damaged Goods must be made in writing either (i) immediately upon discovery of damage, or (ii) within 15 days of the happening of the event on which the claim is based or 5 days of its discovery if later. No action may be maintained by Owner for loss or damage to Goods unless a timely written claim has been given as provided above and unless such action is commenced within twelve (12) months from the date of such written claim. Warehouseman must be afforded an opportunity to inspect damaged Goods. Warehouseman shall not be responsible for shrinkage in weight, nor for loss or damage to Goods resulting from improper or insufficient packing, boxing, crating, wear or tear or inherent qualities of the Goods. In the case of Goods lost or misplaced, Warehouseman shall be allowed thirty (30) days in which to locate such Goods, after receipt of written notices, before being liable for non-delivery.

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 nor Warehouseman, nor any of its or their employees, are or shall be deemed to be employees of the other. The Owner and Warehouseman agree to comply with all laws, rules, rulings, regulations, standards and ordinances applicable to them as such employers. The Owner and Warehouseman acknowledge and agree that each is an independent contractor whose operations are independent, separate, and apart from those of the other.

APPLICABLE LAWS

Owner and Warehouseman agree to personal jurisdiction and exclusive venue in the United States District Court for the Eastern Division of the Southern District of Ohio or, if federal subject matter jurisdiction is not available, in state court in Franklin County, Ohio.

INTERPRETATION

In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.

GENERAL PROVISIONS

If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.

Warehouseman’s failure to require strict compliance with any provision of these standard terms and conditions shall not constitute a waiver to later demand strict compliance with that or any other provisions of these standard terms and conditions.

These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns, provided the Owner may not assign its rights and obligations under these standard terms and conditions without the prior written consent of the Warehouseman.

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 but without that Party’s consent.

Canada English

CDN STANDARD TERMS AND CONDITIONS FOR WAREHOUSING OF TRAFFIC TECH, INC.

DEFINITIONS

“Goods” or “Stored Goods”: shall mean the goods delivered to the Warehouseman for storage and/or cross-docking, unloading, breakdown, repacking, reloading and forwarding

“Owner”: shall mean the owner of the Stored Goods as well as its agent 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.

“Warehouseman”: shall mean Traffic Tech Inc. as well as its parents, affiliates, subsidiaries, agents, employees, authorized representatives, successors and assigns.

AGREEMENT

Subject to the legislation in force governing warehousing in the province where the goods are stored, the terms and conditions hereinafter set out, when delivered or mailed (by electronic means or mail) to the Owner of the Goods, at his address last known to the Warehouseman shall constitute the agreement between the Owner and the Warehouseman provided that the Owner may, within ten (10) days after such delivery or mailing, notify the Warehouseman in writing that he does not accept the agreement and forthwith thereafter shall pay the Warehouseman’s lien or right of retention for charges and remove the Goods. If such notice is not given, then this agreement shall govern all Stored Goods.

WAREHOUSEMAN’S LIEN AND RIGHT OF RETENTION

Subject to the legislation in force governing warehouseman’s lien or right of retention in the province where the Stored Goods received are stored, the Warehouseman shall have a warehouseman’s lien or right of retention upon the Stored Goods from the delivery of the goods to the warehouse and until all expenses, fees, charges, costs, liabilities and all other payments and expenses made or incurred by the Warehouseman towards said Stored Goods have been paid or reimbursed to the Warehouseman in full.

CHARGES

All Goods are stored on a month-to-month basis, unless otherwise provided. The rates of storage, as provided in the Warehouseman’s Quotation are per calendar month

The class of storage in which the Goods are to be stored, the amount or amounts owed hereon for disbursements or services rendered by the Warehouseman prior to receiving cargo and the rate per month per unit to be charged for storage of such Goods are set out in the Quotation provided to the Owner; said Quotation being expressly accepted prior to the commencement of the work.

Basic handling rates described in the Quotation are not covering the following items: marking, labelling, sampling, palletizing, repairs, measuring, weighing, inspection, physical inventory tracking, which shall be invoiced by the Warehouseman in addition to such basic handling rates.

Charges for additional services required by the Owner or necessitated by the nature of the Stored Goods together with handling charges upon delivery of the Goods out of storage, will be invoiced by the Warehouseman in addition to the monthly storage charge prescribed by the Quotation provided to the Owner

Any charge made with respect to the Stored Goods shall conform to the Warehouseman’s rates in effect at the time the service is performed. Quotations for services not included in such rates will be given on request. No increase in regularly recurring charges will be made on Goods in storage until thirty (30) days after a notice of such increased charge has been mailed to the Owner of the Stored Goods, unless otherwise agreed by the Owner.

DELIVERY AND TRANSFER REQUIREMENTS

No Stored Goods shall be delivered or transferred unless the Warehouseman has received, under an acceptable form, written instruction signed by the Owner at least twenty-four (24) hours before the loading and/or the partial or total delivery of the Stored Goods.

If the loading and/or the 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.

Unless all unpaid charges incurred with respect to the Stored Goods to be delivered or transferred are paid in full or assumed by the transferee, delivery or transfer thereof may be refused.

In accordance with Section 3 above, the Warehouseman has a lien and/or a right of retention for all lawful charges for storage, cross-docking, breakdown, repacking, reloading, forwarding and preservation of the Stored Goods as well as for all lawful claims for money advanced, interest, insurance, transportation, labour, weighing, cleaning of damaged Stored Goods and other charges and expenses in relation to such Stored Goods.

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 thereof when and only when accompanied by a representative of the Warehouseman for that purpose, whose time shall be charged according to the Warehouseman’s rates in force at the time of such access.

If a checker is not furnished by the Owner or its carrier, the Warehouseman’s load or unload count shall be conclusively deemed to be correct and accepted by the Owner.

REMOVAL OF GOODS

The Warehouseman may, upon written notice to the Owner of the Stored Goods and to any other person known by the Warehouseman to claim an interest in the Stored Goods, require the removal of the Stored Goods by the end of the next proceeding storage month. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business of the party to be notified.

Where Stored Goods are of a perishable nature or by keeping will deteriorate greatly in value or cause damage to other stored goods or the Warehouseman’s property or employees, the Warehouseman may give a notice to the Owner requiring him to satisfy all outstanding charges in connection with the Stored Goods and to remove them from the warehouse; should such person fail to remove the Goods within the period specified in the notice, the Warehouseman may sell the Stored Goods at public or private sale without advertising, and otherwise act with respect thereto and keep any proceeds of sale thereof as may be permitted or provided by the laws of the province where the Goods are stored, and in such case, the Owner shall be liable to the Warehouseman for any balance of charges accrued and unsatisfied on such Stored Goods.

Where in the opinion of the Warehouseman, the nature or condition of the Stored Goods creates a condition hazardous to the safekeeping and storage of other commodities in the warehouse or to any property or person, the Warehouseman may forthwith remove such Stored Goods from the warehouse and shall thereupon give notice to the Owner of such removal and the location thereof, as may be permitted or required by the laws of the province where the goods are stored. In such case the Owner shall be liable for all storage and other charges of the changed location and any and all liability on the party of the Warehouseman for the safekeeping of such Goods shall cease.

LIABILITY OF WAREHOUSEMAN

All Goods stored with the Warehouseman shall be at Owner’s risks. The Warehouseman shall not be liable for any loss or damage or deterioration to the Stored Goods whether through its negligence or for any other cause whatsoever

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 not less than twenty four (24) hours prior to the shipment of the Goods, as provided in Subsection 5.1 above.

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 and signed by the Warehouseman. Accordingly, it is the sole responsibility of the Owner to insure the Stored Goods are insured.

Without limiting the generality of Subsections 8.1 to 8.3 above, it is speciffically 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 or 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 other labour trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Stored Goods, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of the Warehouseman. No responsibility will be assumed for loss of or damages to Stored Goods by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by 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, or for damages resulting from the usage of the warehouse space;

(ii) the Warehouseman shall in no circumstances be liable for any direct or indirect loss, consequential damages, special damages or loss of profit as a result of the non-delivery or delay in delivery of the Stored Goods or re-routing of any shipping of the Stored Goods, for any reason whatsoever.

(iii) 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 and against the Owner.

Without limiting the generality of the foregoing, in any event, the liability of the Warehouseman arising from legal liability, if any, shall be limited to the declared value of the Stored Goods or the minimum cost value of the loss or damage to the Stored Goods, whichever is the lesser, but in no case shall the liability exceed fifty dollars ($50.00) per pallet. If during storage, the value per pallet of the Stored Goods shall change and the Owner of the Goods so declared in writing to the Warehouseman, a revision of the storage rates in accordance with such new value may be made.

The Warehouseman shall not be responsible, in any case or under any circumstances, whether negligent or not, for any loss or damage to Stored Goods unless and until written notice of such loss or damage, together with full detailed particulars thereof, is given to the Warehouseman within thirty-six (36) hours after the Owner of the Stored Goods becomes aware of such loss or damage or takes delivery of the Stored Goods or any portion thereof, whichever event may first happen.

Where Stored Goods are in Canada Customs Bond, the Warehouseman shall not be liable or responsible for any seizure of such Stored Goods by the Government of Canada or any agency or officer thereof, for any reason whatsoever.

When errors in the shipment of the Goods occur, the liability of the Warehouseman 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.

The Warehouseman shall not be responsible for delays in loading or unloading railway cars, trailers or other containers, nor for demurrage charges or other time penalties arising from any delay which cannot be reasonably avoided by the Warehouseman in the normal course of its business.

INDEMNITY

Without prejudice to any of the foregoing terms and conditions, the Owner shall indemnify and save harmless the Warehouseman from and against all costs, demands, liabilities, responsibilities and causes of action (including reasonable attorney’s fees and disbursements) arising out of or in connection with either, directly or indirectly, the Stored Goods, any other goods of the Owner or instructions of the Owner, including, without limitation, any dispute or litigation, whether instituted by Warehouseman or others, respecting Owner’s right, title or interest in the Goods. Such amounts shall be charged to the Owner in relation to the Goods and subject to Warehouseman’s lien or right of retention.

APPLICABLE LAWS

This and all agreements related hereto between the Warehouseman and the Owner shall be governed by the laws and regulations applicable in the Province where the Goods received are stored.

INTERPRETATION

In the event that there is a conflict between the terms and conditions herein contained and any other warehouse receipt or documents, whether issued by the Owner, the Warehouseman or any other party, the terms and conditions hereof shall prevail.

GENERAL PROVISIONS

If any provision of these standard terms and conditions, or any application thereof, should be construed or held to be invalid or unenforceable, the remaining provisions shall not be affected thereby but shall remain in full force and effect.

Warehouseman’s failure to require strict compliance with any provision of these standard terms and conditions shall not constitute a waiver to later demand strict compliance with that or any other provisions of these standard terms and conditions.

These provisions shall be binding upon the Owner and its successors, legal representatives and permitted assigns, provided the Owner may not assign its rights and obligations under these standard terms and conditions without the prior written consent of the Warehouseman.

ENFORCEMENT OF THE PRESENT AGREEMENT

Upon delivery of this warehousing agreement and acceptance of the rates and conditions disclosed in the quotation, the terms and conditions contained herein will become automatically in force.