Terms and Conditions | DGM New York

Terms & Conditions

All warehousing, handling, pick and pack, and related services provided by DGM (hereinafter “DGM ”) to the “Customer” will be subject to the terms and conditions set forth herein. Interpretation:

For purposes of interpreting these Terms and Conditions for Warehousing under Article 7 of the Uniform Commercial Code, or any State’s adaptation thereof, “DGM ” shall be the “Warehouse keeper”. For purposes of interpreting these Terms and Conditions for Warehousing, the use of the phrase “Terms and Conditions for Warehousing” shall refer to both the terms and conditions set forth in this document, and the terms and conditions of any agreement or contract into which these Terms and Conditions for Warehousing are incorporated by reference. The term “Facility” as used herein shall mean any warehouse facility of DGM, whether owned, rented or otherwise made available to DGM . Customer may review and inspect any Facility where its Goods will be warehoused upon reasonable written request to DGM.

Acceptance.

The incorporation of these Terms and Conditions for Warehousing into any agreement between Customer and DGM or the act of tendering Goods described herein for storage or other services by DGM shall constitute acceptance by Customer of the terms and conditions set forth herein. Any goods accepted by DGM shall constitute Goods under these Terms and Conditions for Warehousing.

Shipments to Warehouse.

Customer agrees that all Goods shipped to DGM not using DGM freight forwarding services shall identify Customer on the bill of lading or other contracts of carriage as the named consignee, in care of DGM, and shall not identify DGM as the consignee. If, in violation of these Terms and Conditions for Warehousing, Goods are shipped to DGM as named consignee on the bill of lading or other contract of carriage, Customer agrees to immediately notify carrier in writing, with copy of such notice to DGM, that DGM named as consignee is the “in care of party” only and has no beneficial title or interest in the Goods. Furthermore, DGM 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. Whether DGM accepts or refuses Goods shipped in violation of this provision, Customer agrees to indemnify and hold DGM harmless from all claims for transportation, storage, handling and other charges relating to such Goods, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature whatsoever.

Tender of Goods.

All Goods shall be delivered at the Facility properly marked and packaged for storage and handling. The Customer shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.

Storage Period and Charges.

Unless otherwise agreed in writing, all charges for storage are per package or other agreed unit per month.
The storage month begins on the date that DGM accepts care, custody and control of the Goods at its Facility, regardless of unloading date or date of issue of warehouse receipt.
Except as provided in paragraph (d) of this section, a full month’s storage charge will apply on all Goods received at a Facility between the first and the 15th, inclusive, of a calendar month; one-half month’s storage charge will apply on all Goods received between the 16th and the last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all Goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
When mutually agreed in writing by the DGM and the Customer, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.

Transfer or Removal of Goods.

Instructions by Customer to transfer Goods are not effective until delivered to and accepted by DGM USA, and all charges up to the time transfer is made are chargeable to the Customer. If a transfer involves rehandling the Goods, such will be subject to a charge. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer.
DGM reserves the right to move, at its expense, any Goods in storage within a Facility or from the Facility in which they may be stored to any other of DGM Facilities.
DGM may, upon written notice of not less than 30 days to the Customer and any other person known by DGM to claim an interest in the Goods, require the removal of any Goods. Such notice shall be given to the last known place of business of the person to be notified. If Goods are not removed before the end of the notice period, DGM may sell them in accordance with applicable law.
If DGM in good faith believes that Goods are about to deteriorate or decline in value to less than the amount of DGM is lien before the end of the 30-day notice period referred to in Section 6(c), DGM may specify in the notification any reasonable shorter time for removal of the Goods and if the Goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
If as a result of a quality or condition of the Goods of which DGM had no notice at the time of deposit, the Goods are a hazard to other property or to the Facility or to persons, DGM may sell the Goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the Goods. If DGM after a reasonable effort is unable to sell the Goods it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the Goods, DGM may remove the Goods from the Facility and shall incur no liability by reason of such removal.

Handling.

The handling charge, if any, covers the ordinary labor involved in receiving Goods at warehouse door, placing Goods in storage, and returning Goods to warehouse door. Handling charges are due and payable on receipt of Goods.
Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by DGM 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 Customer.
Labor and materials used in loading rail cars or other vehicles are chargeable to the Customer.
When Goods are ordered out in quantities less than in which received, DGM may make an additional charge for each order or each item of an order.
DGM shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers or other containers for outbound shipment unless DGM has failed to exercise reasonable care.

Delivery Requirements.

Except where Customer has engaged DGM’s services with respect to order fulfillment, no Goods shall be delivered or transferred except upon receipt by DGM of Customer’s complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, E-Mail or similar communication, provided DGM has no liability when relying on the information contained in the communication as received. Goods may be delivered upon instruction by telephone in accordance with Customer’s prior written authorization, but DGM shall not be responsible for loss or error occasioned thereby. Where Customer has engaged DGM’s services with respect to order fulfillment, then Goods may be delivered or transferred as set forth in the order or orders received.
When Goods are ordered out by Customer, or by a customer of Customer where Customer has engaged DGM’s services with respect to order fulfillment, a reasonable time shall be given DGM to carry out delivery instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots or civil commotions, or any reason beyond DGM’s control, or because of loss of or damage to Goods for which DGM is not liable, or because of any other excuse provided by law, DGM 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.

Extra Services (Special Services.)

DGM labor required for services other than ordinary handling and storage will be charged to Customer.
Special services requested by Customer including but not limited to compiling of special stock statements; reporting marked weights, serial numbers or other data from packages; physical check of Goods; and handling transit billing will be subject to a charge.
Dunnage, bracing, packing materials or other special supplies, may be provided for the Customer at a charge in addition to DGM’s cost.
By prior arrangement, Goods may be received or delivered during other than usual business hours, subject to a charge.
Communication expense including postage, overnight delivery, or telephone may be charged to Customer if such concern more than normal inventory reporting or if, at the request of Customer, communications are made by other than regular United States Mail.

Bonded Storage.

A charge in addition to regular rates will be made for goods in bond.
Where a warehouse receipt covers Goods in U.S. Customs bond, DGM shall have no liability for Goods seized or removed by U.S. Customs.

Minimum Charges.

A minimum handling charge per lot and a minimum storage charge per lot per month will be made. When a warehouse receipt covers more than one lot or when a lot is in assortment, a minimum charge per mark, brand, or variety will be made.
A minimum monthly charge to one account for storage and/or handling will be made. This charge will apply also to each account when one Customer has several accounts, each requiring separate records and billing.

LIABILITY AND LIMITATION OF DAMAGES.

DGM 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 DGM TO EXERCISE SUCH CARE IN REGARD TO SUCH GOODS AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND DGM IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
GOODS ARE NOT INSURED BY DGM AGAINST LOSS OR DAMAGE HOWEVER CAUSED.
CUSTOMER DECLARES THAT DAMAGES ARE LIMITED TO THE LESSER OF 50¢ PER POUND OR $50.00 PER WAREHOUSE RECEIPT, PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THESE TERMS AND CONDITIONS FOR WAREHOUSING AS PROVIDED IN SECTION 1 BE INCREASED UPON CUSTOMER’S WRITTEN REQUEST ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT AN ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION.
WHERE LOSS OR DAMAGE OCCURS TO TENDERED, STORED OR HANDLED GOODS, FOR WHICH DGM IS NOT LIABLE, CUSTOMER SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR DAMAGE TO THE GOODS.

Notice of Claim and Filing of Suit.

Claims by the Customer and all other persons must be presented in writing to DGM within a reasonable time, and in no event any later than the earlier of: (i) 60 days after delivery of the Goods by DGM, or (ii) 60 days after Customer is notified by DGM that loss or damage to part or all of the Goods has occurred.
To lawsuit or other action may be maintained by the Customer or others against DGM for loss or damage to the Goods unless timely written claim has been given as provided in paragraph (a) of this section and unless such lawsuit or other action is commenced by no later than the earlier of: (i) nine months after date of delivery by DGM or (ii) nine months after Customer is notified that loss or damage to part or all of the Goods has occurred.
No Liability for Consequential Damages. DGM shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
Liability for Shipping Errors. If DGM negligently ships Goods to the wrong address, DGM shall pay the reasonable transportation charges incurred to return the misshipped Goods to the Facility. If the consignee fails to return the Goods, DGM’s maximum liability shall be for the lost or damaged Goods as specified in Section 12 above, and DGM shall have no liability for damages due to the consignee’s acceptance or use of the Goods whether such Goods be those of the Customer or another.
Mysterious Disappearance. DGM shall be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods only if Customer establishes such loss occurred because of DGM’s failure to exercise the care required of DGM under Section 12 above. A discrepancy rate of 0.5% is acceptable on the total inventory value at the time of any physical inventory count. Any missing merchandise over and above this rate according to DGM’s computer records is payable by DGM at the rate stated in Section 12 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by Customer of conversion must be established by affirmative evidence that the DGM converted the Goods to DGM’s own use.
Right to Store Goods. Customer represents and warrants that Customer is lawfully possessed of the Goods and has the right and authority to store the Goods with DGM. Customer agrees to indemnify and hold harmless DGM from all loss, cost and expense (including reasonable attorneys’ fees) which DGM pays or incurs as a result of any dispute or litigation, whether instituted by DGM or others, respecting Customer’s right, title or interest in the Goods. Such amounts shall be charges in relation to the Goods and subject to DGM’s lien.
Accurate Information. Customer will provide DGM with information concerning the Goods which is accurate, complete and sufficient to allow DGM to comply with all laws and regulations concerning the storage, handling and transporting of the Goods. Customer will indemnify and hold DGM harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which DGM pays or incurs as a result of Customer failing to fully discharge this obligation.

Severability and Waiver.

If any provision of these Terms and Conditions for Warehousing, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions of these Terms and Conditions for Warehousing shall not be affected thereby but shall remain in full force and effect.
DGM’s failure to require strict compliance with any provision of these Terms and Conditions for Warehousing shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of these Terms and Conditions for Warehousing.
The provisions of these Terms and Conditions for Warehousing shall be binding upon the heirs, executors, successors and assigns of both Customer and DGM; together with any agreement into which they have been incorporated by reference contain the sole agreement governing Goods tendered to the DGM; and, cannot be modified except by a writing signed by DGM and Customer.
Lien. DGM 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, forwarding, 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. DGM further claims a general warehouse lien for all such charges, advances and expenses with respect to any other Goods stored by the Customer in any other facility owned or operated by DGM. In order to protect its lien, DGM reserves the right to require advance payment of all charges prior to shipment of Goods.
Documents of Title. Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the parties.
Governing Law and Jurisdiction. These Terms and Conditions for Warehousing and the legal relationship between the parties hereto shall be governed by and construed in accordance with the substantive laws of the State of Wisconsin, notwithstanding its conflict of laws rules. Any lawsuit or other action involving any dispute, claim or controversy relating in any way to these Terms and Conditions for Warehousing shall be brought only in the Circuit Courts of Racine County, Wisconsin or the Federal District Court for the Eastern District of Wisconsin in Milwaukee, Wisconsin.

Conditions of Sale

These conditions shall be incorporated into all contracts between Nissen Packaging (the Company) and any person or company (the Customer) for the supply by the Company of goods to the Customer. The Company contracts upon the terms of these Conditions only and any printed or other standard terms emanating from the Customer shall be excluded, but even if incorporated shall be treated as of no effect, and in any event the terms of these conditions shall prevail. All goods tendered by the Company are tendered on the terms of these conditions and acceptance of delivery by the Customer shall be an acceptance of these conditions.
Payment must be made in advance of despatch of goods.
Title to any goods shall remain vested in the Company until all monies owing to the Company have been paid and until payment, the Customer is required to keep and store the goods in such a way that they are clearly identifiable as the Company’s property. Until all monies owing to the Company have been paid the Customer will keep the goods in a fiduciary capacity for the Company. The Customer will be entitled to sell and deliver the goods to its customer within the normal course of its business but the Company shall be entitled to receive any monies due under the order from the Customer or from the purchaser out of the resale price.
Quotations are open for acceptance up to 7 days from their date unless otherwise stated or they are earlier withdrawn or modified or the Company agrees to later acceptance. The Company shall not be under any obligation to process the order until written confirmation of the order has been given by the Customer.
Any shortages, pilferages or damages in transit must be notified to both the carriers and the Company within three working days of delivery. No claim will otherwise be accepted and delivery shall be deemed to have been properly made.
Non-delivery must be notified to the Company within 7 days of the date of the Company’s invoice. No claim will otherwise be accepted and delivery will conclusively be deemed to have been properly made.
Goods shall be deemed to be accepted unless they are rejected within 7 days of delivery and shall also be deemed to be fully in accordance with the contract unless written complaint is despatched to the Company within 7 days of delivery. Goods sold to a Customer outside the United Kingdom, whether supplied direct to the Customer or through his agent shall be inspected by or on behalf of the Customer before packing and after such inspection or collection by or on behalf of the Customer shall be deemed to be fully in accordance with the contract.
The Company’s liability arising in respect of any contract shall be limited to the contract price for the particular goods in respect of which the liability arises. In no circumstances whatsoever shall the Company be liable to the Customer for any loss of profit or any loss for which the Customer may be liable to any third party.
The Company may cancel or suspend the contract without liability on its part in the event of its performance being affected by industrial action, unavailability of equipment or materials or any other cause beyond its reasonable control and in so far as its performance is so affected the Company shall not in any event be liable for any failure on their part to perform.
The Contract shall be construed in all respects in accordance with English law and in any dispute as to the terms, conditions or subject matter hereof or arising hereunder shall be referred to a single arbitrator appointed by agreement between the parties hereto, or in default of such agreement by the President for the time being of the Law Society of England on the application of either party. The Arbitration Acts shall apply to any arbitration hereunder.
Prices quoted are based on currency exchange rates at the time of order. The Company reserves the right to revise the price stated overleaf if at any time before delivery of the goods there is any material increase in the cost to it of production or of any duties taxes and charges payable by it as sellers of the goods and provided that the customer shall have the right on notification of any such increases in price to cancel the order or any part thereof.
The Customer shall not apply any trade mark or name of which the Company is the registered proprietor or registered user to the goods without the Company’s consent and the Customer shall not apply any trade mark or name of which the Company is the registered proprietor or registered user to or in relation to the goods if the goods have been processed or treated in any way not approved by the Company.
The goods will be at the Customer’s risk in all respects from the time of delivery and from that time the Customer will fully and effectually insure them.