1. Services.
A. GWS will provide or engage and manage third party service providers (“Third Party Service Providers”) to provide to Customer the services (“Services”) specified in GWS’s Quote (the “Quote”). GWS and Customer are collectively referred to herein as the “Parties” and individually as a “Party”). SIGNATURES ARE NOT REQUIRED. FORMAL ACCEPTANCE OF THE QUOTE AND/OR ITS SIGNATURE BY CUSTOMER IS HEREBY WAIVED BY THE PARTIES HERETO. CUSTOMER’S DELIVERING POSSESSION OF THE CARGO OR ISSUING A PURCHASE ORDER, OR ANY PERFORMANCE BY GWS PURSUANT TO THE QUOTE SHALL BE DEEMED TO BE EVIDENCE OF CUSTOMER’S ACCEPTANCE OF ALL OF THE PROVISIONS HEREOF. The Quote shall be subject to these Terms and Conditions (“Terms”) to the exclusion of all other terms and conditions (including without limitation any terms or conditions which Customer purports to apply in any document whatsoever and whenever, including in any purchase order), except that any prior written agreement signed by the Parties (e.g. Master Service Agreement, Statement of Work, Service Agreement or Non-Disclosure Agreement) will continue to apply and govern the Services. Services beyond those specified in the Quote or changes to the Services will be subject to additional charges. Customer acknowledges and agrees that upon issuance to Customer by GWS, whether in person, by mail, email, electronic delivery, design platform, or any other reasonable method of delivery, the Quote is considered issued within the meaning of the Uniform Commercial Code in effect in the jurisdiction where “Cargo,” as defined below, is stored (“UCC”), regardless of whether the Quote is signed by Customer.
B. If GWS will dispose of Customer’s assets (“Decommissioned Property”) as part of the Services, the following additional terms apply. Customer hereby authorizes and directs GWS to arrange for sale or disposal of the Decommissioned Property by whatever legal means GWS, in its sole discretion, deems appropriate. GWS will not take title to the Decommissioned Property and is acting as Customer’s agent in decommissioning it. Unless otherwise provided in writing, Customer acknowledges that the proceeds, if any, of the sale or other disposal of the Decommissioned Property shall be the exclusive property of GWS in exchange for GWS’s efforts in arranging the disposing or sale of the Decommissioned Property in addition to any amounts payable to GWS for such disposal. Customer on its own behalf and on behalf of its successors and assigns expressly waives and releases any and all claims against GWS, its affiliates and their respective owners, officers, employees, managers, directors, agents, assigns, successors, known or unknown, accrued or unaccrued related to or arising from the sale or disposal of the Decommissioned Property. Customer expressly waives and releases any and all claims and/or rights which may have existed with respect to the Decommissioned Property either under Customer and GWS’s original contract or under law, including any rights under the Uniform Commercial Code in effect in the jurisdiction where the Decommissioned Property is located. Customer shall provide GWS with a detailed inventory of all Decommissioned Property. If Customer fails to provide such inventory, GWS shall not be liable for wrongfully disposing of any items. Customer warrants that (i) there is no sensitive data, personal information or hazardous materials contained in any of the Decommissioned Property, (ii) it is the sole and exclusive owner of the Decommissioned Property with good and marketable title thereto, and that no other person or entity has, or claims to have, any interest secured or otherwise, in the Decommissioned Property and (iii) Customer has authority and capacity to execute the Quote and agree to these Terms. Customer shall defend, indemnify, protect and hold GWS and its agents, officers, employees and affiliates, harmless from and against any and all costs and expenses, including legal fees, arising out of breach of this warranty.
2. Independent Contractor Relationship. GWS performs services as an independent contractor. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other party. The Quote or these Terms will not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.
3. Term. The term of the Quote shall expire on the latest of: the date of completion of the Services or one year from the date the Quote is transmitted to Customer. The Quote may be terminated by either Party on thirty (30) days prior written notice to the other Party. If either Party fails to perform its obligations under these Terms or the Quote and the other Party is notified in writing of the specific details of such failure to perform and fails to cure such failure within ten (10) days after the written notice, then the Party who did not fail to perform may immediately terminate the Quote without penalty upon written notice. Termination of the Quote, for any reason shall not release either Party from any obligation, based on events that may have occurred before such termination. Upon termination, Customer shall pay GWS for all Services rendered through the date of termination.
4. Third Party Service Providers. GWS and Third Party Service Providers shall have all licenses, permits and authorizations required to perform the Relocation Services for which they were engaged. If Third Party Service Providers are used, GWS will (i) trace, expedite and coordinate shipments hereunder; and (ii) provide information that Customer may require with respect to such shipment within a reasonable time of request.
5. Compensation. GWS shall be compensated for the Services and reimbursed for expenses advanced on behalf of Customer as established in the Quote or other written documentation agreed to by the parties. The fees and pricing are subject to increase annually, on January 1st. Unless the Quote provides otherwise, a 25% deposit is required prior to commencement of Services. Thereafter, Customer shall pay all accrued compensation for Relocation Services performed and reimburse all advanced expenses, without deduction or offset, within 30 days from the date of GWS’s invoice. All payment terms are subject to satisfactory credit review and approval. All invoices that are not paid within said 30-day period shall bear interest at the rate of 1.5% per month or the maximum legally chargeable interest, whichever is lower. Customer shall also pay all costs and expenses incurred in the course of enforcement or collection of the amounts due hereunder, including without limitation, reasonable attorney’s fees, whether or not a suit is filed. If Customer elects to cancel Services within 4 business days of the date scheduled, Customer agrees to pay a cancellation fee equal to 15% of the total estimated charges. If Customer elects to postpone services within 10 business days of the original date scheduled, Customer shall pay all costs incurred by GWS in preparation for services, including lodging and travel, and remobilization costs. Unless otherwise provided in the Quote, all fees for Services are based on the following: (i) a one-time placement of all Cargo, as defined herein, as directed by Customer; (ii) exclusive use and control of all loading and unloading areas, the arrangements for which are the responsibility of Customer; (iii) the site being paved and exclusive use of operable elevators and loading areas, as well as, unobstructed access to entrances, exits, elevators, loading areas, lobbies, hallways, offices, and rooms; and (iv) one continuous installation with non-union labor and with clear access to delivery and installation areas. Additional charges will be payable if multiple mobilizations are required. Installations into concrete, tile, or steel require an additional surcharge. Removal of existing product or the providing of blocking is not included in the Quote unless otherwise noted. Unless provided in the Quote, electrical and plumbing are not included. Additional trips incurred due to Customer delays will result in additional charges for actual travel expense plus loss of man hours. Additional charges will also apply for required downtime (including, without limitation, downtime resulting from unavailable space at scheduled installation time/date; Customer provided materials not on site at scheduled installation time/date; electrical wiring not completed; applicable blocking not installed; preceding work of others not completed at scheduled installation time/date). Customer agrees that GWS and/or Third Party Service Providers shall have a lien upon all property moved by or deposited with them. All property deposited for which all charges are not paid when due will be subject to sale in accordance with applicable law. GWS and/or Third Party Service Providers shall have a further lien for all monies advanced to any third party for the account of Customer and interest. GWS and Third Party Service Providers shall also have a lien on any goods in GWS’ or Third Party Service Provider’s possession or control for any charges payable to GWS for all previously unsatisfied obligations due to GWS by Customer. Such lien shall be enforced in accordance with the UCC.
6. Cargo Damage and Delay. When GWS arranges for Third Party Service Providers to provide Services, Customer understands and agrees that GWS will not be handling, transporting or storing goods under the Quote but will be arranging for the transportation and local distribution of such goods by Third Party Service Providers as a broker. In such cases, GWS shall not assume any liability for loss or damage of goods to be moved, stored, installed or handled hereunder (“Cargo”) or for delay and will not be liable for the acts or omissions of Third Party Service Providers. Customer shall indemnify and hold GWS harmless from and against any claims for Cargo loss, damage or delay. GWS will facilitate the claim process on the Customer’s behalf; meaning GWS will communicate carrier liability limitations, gather required documentation, file claim with the Third Party Service Provider, track claims status and periodically report, collect settlement funds, and disperse settlement to the Customer. Neither GWS (if GWS is actually providing Services, rather than arranging for third parties to do so) nor Third Party Service Providers procured by GWS shall assume any liability for Cargo loss or damage unless and until the parties hereto agree as to the terms and conditions of any Cargo valuation coverage to be provided. GWS and Third Party Service Provider and Customer may agree to procure Cargo valuation at such terms and rates as the parties may mutually agree. The terms of any such agreement shall be set forth in the Quote.
7. Limitation on Liability. In addition to the limitations set forth in Section 6 and in the Quote, GWS and Third Party Service Providers liability will be limited as follows:
A. Loss or Damage to Cargo. Liability for loss of or damage to Cargo shall be as set forth in this Section 7.A. Customer may elect additional coverage as specified in Section 7A.2.
1. GWS shall have no liability for loss or damage to Cargo or delay except when it moves, stores or handles Cargo on its own authority rather than arranging for such services by Third Party Service Providers. To the extent GWS is determined to have Cargo liability, its liability shall be limited to the extent as Third Party Service Provider’s liability is limited hereunder.
2. In the event Customer fails to select, in writing, and pay for actual cash value protection for loss or damage to Cargo, Third Party Service Provider’s liability for such loss or damage to the Cargo shall be the lesser of (i) $.60 per pound per article times the weight of the article up to a maximum of $100,000.00 per truckload or (ii) the repair cost of the article. In the event Customer selects in writing and pays for actual cash value protection for loss or damage to the Cargo, Third Party Service Provider’s liability for such loss or damage to the Cargo shall be the lesser of (i) the actual cash value of the article up to the value declared by Customer or (ii) the repair cost of the article, as determined by Third Party Service Provider. Customer acknowledges that actual cash value protection only provides coverage for the current value of the particular item of Cargo and does not provide for replacement cost of the item. If the actual cash/replacement value declared hereunder is less than 100% of the actual cash/ replacement value of the Cargo, GWS will only be liable for the proportion of any loss that the amount declared bears to 100% of the actual cash/replacement value. This liability shall apply to all articles of the Cargo at all times during the performance of Services by Third Party Service Providers, including without limitation during disassembly, removal, transportation, warehousing, delivery, reassembly and installation. Risk of loss to the Cargo or any relevant portion thereof shall pass to Customer as of the date and time when the Cargo or any relevant portion thereof has been delivered to Customer, and if the Services include installation, installed. If the valuation elected by Customer has a deductible, any settlement will be reduced by the deductible.
3. Customer shall note on the delivery paperwork and notify GWS of any visible damage to Cargo at the time of delivery or installation and any latent damage within 2 business days of delivery or installation. In addition, Customer must file a formal written claim, on forms provided by GWS, setting forth the details of the items lost or damaged, including Customer’s estimated value, within thirty (30) days after the date of delivery or the date of scheduled delivery if the items are lost. Customer must notify GWS of any damage to real or personal property other than Cargo prior to GWS leaving Customer’s facility each day of Services. In all cases, Customer agrees that claims will be settled only after all charges for the Services have been paid in full to GWS. Customer must bring any litigation within two years and one day after denial of any claim unless a particular state law permits for a shorter period in which case the claims must be brought within that shorter period. GWS and Third Party Service Providers shall have no further liability for loss or damage to the Cargo or any relevant portion thereof from and after such respective dates and times.
4. The cost payable by Customer for actual cash value protection shall be set forth in the Quote based on Customer’s declared value of the Cargo.
5. Customer acknowledges that Third Party Service Provider has no ability or authority to adequately inspect or test any internal portions or components of any Cargo and agree that Third Party Service Provider shall not be liable for any internal damage to any Cargo or equipment failure which is not accompanied by related external damage and shall be responsible only for reasonably apparent external damage (and related internal damage) thereto and then only to the extent provided herein. Customer will adequately lock, password protect, backup and or encrypt any data or personal information contained in any file, on any computer or electronic media to be moved, stored or handled by GWS. Third Party Service Provider shall have no liability for loss or damage to any of the information or data which is represented by, stored on, or contained in the Cargo, whether in printed or computer readable form. In addition, Third Party Service Provider shall not be responsible for, however caused, loss of data or personal information or personal data, including protected health information and personally identifiable information, unauthorized access thereto, or breach of privacy or software programs that fail to function properly even if there is visible damage to the data bearing asset. If any claim is made against GWS for such loss of data or software or privacy breach, Customer shall defend, indemnify and hold GWS harmless against any and all damages, claims, losses or expenses, including attorney’s fees, arising out of such claim.
6. Exceptions. Third Party Service Provider shall not be liable for loss or damage to Cargo or for delay caused by or resulting from (i) an act, omission, or order of Customer or any third party, (ii) normal deterioration or ordinary wear and tear, (iii) defect or inherent vice of the article, including susceptibility to damage because of atmospheric or climatic conditions such as temperature and humidity changes, (iv) a Force Majeure Event as defined below, (v) concealed damage or (vi) other causes beyond the reasonable control and without the fault of Third Party Service Provider.
7. Exclusions. Third Party Service Provider shall have no responsibility for: (i) perishable articles, (ii) contents of refrigerators or deep freezers, (iii) specimens, biomaterials, cryogenic materials or chemicals, (iv) cash, currency, checks, money, deeds, evidence of debt, securities, bank notes, or other valuable papers, or articles of extraordinary value, that is, articles having a value of greater than $100.00 per pound, unless GWS is notified in writing and a value declared and coverage obtained pursuant to Section 7.A.2), (v) breakage of articles of a brittle or fragile nature, unless directly caused by damage to the outside of the carton or unless professionally packed by Third Party Service Provider, (vi) losses or damages to the extent caused by the packing, loading, transportation or unloading of shipments by persons other than Third Party Service Provider, (vii) damage to previously damaged or repaired items unless due to Third Party Service Provider negligence (viii) risks of contraband or illegal transportation or trade and (ix) any loss extending beyond the direct physical loss or damage to the Cargo.
8. Customer acknowledges that having GWS move a copy machine or other equipment may void any warranty or violate any lease with respect to the copy machine or equipment. Some leases or warranties mandate that the manufacturer, lessor or an authorized agent move the copy machine or equipment. GWS shall have no liability for violations of any such lease or warranty and strongly recommends that Customer review the terms of any lease or warranty prior to GWS providing Services hereunder. In addition, GWS shall not be responsible for damage to any copy machine or equipment not properly serviced and prepared for moving the day before Services are provided.
9. In addition, prior to Third Party Service Providers handling any assets that could present a health hazard, Customer or its agent shall decommission and decontaminate such assets and Third Party Service Providers shall not be liable for any loss or damage, and Customer shall indemnify GWS and Third Party Service Providers for any claims, arising out of improper decommissioning or sterilization.
10. Customer may also elect full replacement cost protection (excluding copiers) at rates to be agreed upon by the parties provided that Customer provides a valued inventory of the Cargo and those values can be independently verified. Coverage options for self-constructed or one of a kind items will need to be individually determined. In the event Customer selects full replacement cost protection for loss or damage to the Cargo, Third Party Service Provider’s liability for such loss or damage to the Cargo shall be the lesser of (i) the full replacement cost of the article up to the declared valuation as specified by Customer or (ii) the repair cost of the article, as determined by Third Party Service Provider.
11. Notwithstanding anything herein to the contrary, that valuation for copy machines is limited to $.60 cents per pound per item and valuation for electronics is limited to actual cash value even when full replacement coverage is elected on the balance of the Cargo.
12. If GWS moves, stores or handles Cargo on its own authority rather than arranging for a Third Party Service Provider to do so, the foregoing limitations on liability also apply to GWS’s performance of such Services.
B. General Limit and Consequential Damages. GWS’s total liability arising under the Quote, other than for loss or damage to Cargo, shall be limited to the amount paid to GWS by Customer under the Quote. In addition, in no event will GWS or Third Party Service Providers be liable for any delay damages or special, indirect or consequential damages of or to Customer, including but not limited to lost profits, lost business revenue, failure to realize expected savings or other commercial or economic loss of any kind, even if GWS is advised of the possibility thereof.
8. Use of Equipment. Customer assumes full responsibility for damage to or loss of any moving or other equipment or materials delivered at Customer’s request for Customer’s use, either before or after relocation. GWS makes no representations or warranties as to the condition of the equipment or materials. Customer shall inspect the equipment and materials prior to use. Customer uses such equipment and materials at its own risk and shall be responsible for any damage to the equipment or materials or to person or property arising out of such use and shall defend, indemnify and hold GWS harmless against any claims, damages, losses or expenses, including attorneys’ fees, arising out of use of the equipment. Customer agrees to pay a rental fee for the use of this equipment and materials and an additional delivery and/or pick up charge for such rental equipment and materials, both payable at GWS or the third party’s standard rates. Payments are due within thirty (30) days following the date of an invoice from GWS.
9. Dispute Resolution.
A. If the parties, after reasonably diligent efforts (but in no event greater than ten (10) business days), are unable to resolve any dispute arising in connection with the Quote, such dispute shall be referred to a senior official of Customer and a senior official of GWS. If these persons are unable to resolve such dispute after reasonably diligent efforts not exceeding thirty (30) business days, the matter shall be referred to binding arbitration.
B. Any controversy or claim arising out of or relating to this contract, or the breach thereof which is sought to be arbitrated, shall be arbitrated in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in a court of law. Arbitration shall be by a single arbitrator if the amount in controversy is $50,000 or less; otherwise, there shall be a panel of three (3) arbitrators. The parties shall jointly agree on the arbitrator(s) within ten (10) business days after the demand for arbitration is filed; if the parties cannot so agree, the arbitrator(s) shall be selected in the manner prescribed under the Commercial Arbitration Rules of the American Arbitration Association.
C. The cost of arbitration proceedings, including, without limitation, the arbitrator’s compensation and expenses, hearing room charges, court reporter transcript charges, etc., shall be borne by the parties equally. The arbitrator may award the prevailing party its reasonable attorneys’ fees and costs incurred in connection with the arbitration. The arbitrator is specifically instructed to award attorneys’ fees for instances of abuse in the discovery process.
D. The arbitration proceedings shall be held in Cincinnati, Ohio.
E. All discovery disputes shall be decided by the arbitrator. The arbitrator is empowered: (a) to issue subpoenas to compel pre-hearing document or deposition discovery; (b) to enforce the discovery rights and obligations of the parties; and (c) to otherwise control the scheduling and conduct of the proceedings.
F. The arbitrator(s) is empowered to render an award of general compensatory and equitable relief (including without limitation, injunctive relief) but is not empowered to award exemplary, special or punitive damages.
G. The parties hereby submit to the jurisdiction of the United States district Court for the Southern District of Ohio and the courts of the County of Butler as the exclusive forums for enforcement of and/or challenge to any arbitration awards.
10. Insurance. GWS shall maintain insurance coverages in at least the amounts set forth below. Upon the request of Customer, GWS shall deliver promptly to Customer certificates of insurance made out by the applicable insurer(s) or their authorized agents evidencing the insurance required under this section. All coverages are subject to any exclusions of the policies.
a. General Liability $1,000,000 per occurrence/annual aggregate
b. Worker’s Compensation Statutory
c. Employer’s Liability $1,000,000 per occurrence/annual aggregate
d. Automobile Liability $1,000,000 per occurrence/annual aggregate
e. Umbrella/Excess $2,000,000 per occurrence/annual aggregate
11. Non-solicitation. Customer shall not, during the term of the Quote and for a period of two (2) years thereafter, either directly or indirectly, hire or entice or induce or attempt to entice or induce any employee, agent or Third Party Service Provider (other than nationwide motor carriers solely providing interstate transportation services in connection with the Quote) providing Services to Customer pursuant to that Quote to leave the employ of, or to terminate, modify or alter his, her or its relationship, whether contractual or otherwise, with GWS to work with Customer or with any person or entity with whom Customer is or becomes affiliated or associated in any way or hire such person or entity, directly or indirectly, to perform Services to Customer or any person or entity with whom Customer is or becomes affiliated or associated without the involvement of GWS unless agreed to in writing by GWS. Customer acknowledges and agrees that the restrictions set forth herein are reasonable in scope, duration, and area and are reasonably necessary to protect the legitimate business interests of GWS, and particularly the other party’s interest in protecting its confidential information, trade secrets, potential patents, and potential copyrights relating GWS’s business. If any provision of this Section is held to be unenforceable due to the scope, duration or area of its application, the parties intend and agree that the court making such determination shall modify such scope, duration or area, or all of them to what the court considers reasonable, and such provision shall then be enforced in such modified form.
12. Confidentiality; Intellectual Property. The parties acknowledge that they may have access to customer lists, list of vendors providing Services to GWS in connection with the Quote, or names or service, process, or other information of a proprietary nature of the other party during the course of the Quote which is not common knowledge of the general public or is otherwise confidential or proprietary to such party. Customer and GWS therefore agree that all information provided to the other that is identified as proprietary or confidential by the party providing the information or by its nature or use is confidential, shall be treated in utmost confidence and shall not be disclosed to any third party, shall be used by Customer or GWS, as the case may be, for purpose of the Quote only and shall not be used to the detriment of the disclosing party. Neither party shall be bound to keep confidential any information: (a) which was known to such party prior to disclosure as evidenced by such party’s prior written records; (b) which is available to the public without fault of the receiving party; (c) which was independently developed by such party’s employees without access to confidential information; or (d) which is required to be disclosed to comply with any applicable law or court order, provided the disclosing party gives the other party prior notice of a required disclosure and an opportunity to intervene by obtaining a court order. The parties agree that because of the unique nature of the confidential information of the parties the party disclosing such information (the “disclosing party”) will suffer irreparable harm in the event the party receiving such information fails to comply with any of its obligations set forth herein and that monetary damages will be inadequate to compensate the disclosing party for such breach. Accordingly, the parties agree that the disclosing party, in addition to any other remedies available to it at law or in equity, will be entitled to temporary, preliminary and permanent relief to enforce the terms of this Section.
Ownership of Intellectual Property. GWS’ systems, processes, procedures, technologies, software, interfaces, copyrights, trademarks or service marks, patents, trade dress, trade names, trade secrets and know-how (and any goodwill appurtenant thereto), moral rights, any rights of publicity and any other proprietary rights and intellectual property, whether registered or not (the “GWS Intellectual Property”) is the property of GWS, along with any improvements or other modifications to the GWS Intellectual Property. Customer shall have no rights in the GWS Intellectual Property except the right to receive the Services pursuant to the Quote. Customer shall not directly or indirectly through or with one or more other persons (i) decompile, disassemble or reverse engineer the GWS Intellectual Property or copy any ideas, features, functions or graphics of the GWS Intellectual Property; (ii) use the GWS Intellectual to develop a competing service; (iii) provide, lease, lend, or otherwise use or allow others to use the GWS Intellectual Property for its own benefit or for the benefit of any third party; or (iv) remove any GWS copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the GWS Intellectual Property. GWS Intellectual Property is confidential information of GWS.
13. Force Majeure. In the event either party is unable to meet its contractual obligations as a result of an Act of God, war, cyberattack, insurrection, strikes, derailments, government action or any causes beyond its control (each, a “Force Majeure Event”), that party’s contractual obligation affected by the Force Majeure Event shall be suspended for the duration of same; provided, however, that the parties shall make all reasonable efforts to continue to meet their obligations during the duration of the Force Majeure Event; and provided, further, that the party declaring Force Majeure Event shall notify the other party promptly in accordance with Section 18 and by email when the Force Majeure Event begins, of the Force Majeure Event and when the Force Majeure Event is expected to terminate.
14. Conflicting Language; Additional Terms. In the event of a conflict between the language of these Terms and the Quote, the provisions of these Terms control, unless the Quote expressly states that it will control. GWS objects to any terms proposed in any Customer’s purchase order or other documentation which add to, vary from, or conflict with these Terms and the Quote. If GWS’s offer to perform service has been issued in response to Customer’s offer and if any of the terms and conditions herein add to, vary from or conflict with any terms of Customer’s offer, then the acceptance by Customer of GWS’s tender to perform services shall constitute an acceptance of Customer’s offer subject solely to the express terms and conditions set forth herein and in the Quote, and any additional, different or conflicting terms in Customer’s offer are rejected by GWS, so that these Terms and the Quote constitute the entire agreement between Customer and GWS with respect to the subject matter hereof and the subject matter of Customer’s offer. Services shall be subject to the terms of Third Party Service Provider’s tariffs except to the extent in conflict with these Terms.
15. Saving Clause. If any term of these Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this savings clause should materially and adversely affect the economic substance of the transactions contemplated hereby, the party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.
16. Abandonment. If, for thirteen (13) consecutive months after the date GWS notified Customer of a default under the Quote, Customer fails to cure the default and/or remove the Cargo from storage, Customer’s actions or inactions shall be deemed to be Customer’s clear and unequivocal intent to relinquish all right, title, and interest in and to the Cargo, including future ownership or enjoyment of and to the Cargo, and such Cargo shall thereafter be considered abandoned by Customer. In such event, GWS may terminate the Quote and dispose of the Cargo in addition to other remedy available under law. Nothing in this Section shall be construed to limit GWS’ warehouseman’s lien pursuant to Section 5 of these Terms.
17. Notice. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered in person or when received if given by Federal Express or other nationally recognized overnight courier service, or five (5) business days after being deposited in the United States mail, postage prepaid, registered or certified mailed to the address referenced in the Quote.
8. Miscellaneous.
A.These Terms and Conditions and the Quote shall be governed by, and construed in accordance with, the federal laws and judicial decisions applicable to the interstate transportation of goods, to the extent applicable, and in all other respects in accordance with the laws of the state of Ohio (without regard to conflict of law principles).
B. These Terms and the Quote hereto constitutes the entire agreement between the parties hereto, there being no prior or contemporaneous agreements, oral or written, not integrated herein. No waiver, alteration or modification of any of the provisions of these Terms or the Quote, as the case may be, shall be binding upon either party unless in writing and signed by a duly authorized representative of the party against whom such waiver, alteration or modification is sought to be enforced.
C.Waiver by either party of any breach or failure to comply with any provision of these Terms or the Quote by the other party shall not be construed as or constitute a continuing waiver of such provision, or a waiver of any other breach of or failure to comply with any other provision of these Terms or the Quote.
D.These Terms shall apply to and bind the successors and assigns of the parties; provided, however, that neither party hereto may assign the Quote, in whole or in part, or any rights granted herein without the prior written consent of the other party. Any transfer, assignment or delegation of the Quote or of any of the rights or duties herein granted or imposed, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void, and at the option of the party whose written consent should have been obtained, the Quote may be terminated.
E. This Section, Sections 1.B, 2, 6, 7, 8, 9, 11, 12, 13, 14, 15, and 16, and payment obligations for Services rendered shall survive any termination of the Quote.
F.Each undersigned individual signing on behalf of a party represents and warrants that he or she is fully authorized to execute the Quote for and on behalf of their respective party and that such signature creates a binding and enforceable obligation of such party. If Customer is entering into the Quote for services to be rendered to its customer or any third party, Customer represents and warrants that it has been authorized by its customer or third party to engage GWS to perform the services hereunder in accordance with the terms and conditions of the Quote and these Terms, including the limitations on liability set forth herein. Each party agrees to defend, indemnify and hold the other party harmless against any and all claims arising out of breach of this Section.
Eff. 10.10.24