General Terms And Conditions For Depot Services

General Terms And Conditions For Depot Services

CAI and Depot have entered into/or anticipate entering into an agreement related to the storage of certain intermodal shipping Equipment, including but not limited to 20’ and 40’ dry van, open top, flat rack, refrigerated and other specialized shipping Equipment (individually and collectively, the “Equipment”), pursuant to an arrangement whereby such transaction will be governed by these General Terms and Conditions containing the specific commercial terms and conditions relating to particular Equipment (these General Terms and Conditions and any Depot Services Agreement from time to time entered into by the parties are referred to herein collectively as the “Agreement”).

  1. TERM OF AGREEMENT
    This Agreement will remain in effect until terminated pursuant to Section E or F below.
  1. SERVICES TO BE PROVIDED BY DEPOT
    1. Storage of Equipment
      CAI agrees to pay to Depot the rates and fees for storage of Equipment as set forth in the Depot Services Agreement. As consideration for the rates and fees, Depot agrees to supervise the storage of the Equipment at the Facilities, and maintain the Equipment.  Depot will, upon not less than 24-hours notice, make Equipment available for reinspection by CAI, CAI’s customers or their respective representatives, in each case free of handling or other charges. 
    2. Reporting
      Report daily via Electronic Data Interchange (EDI) to CAI, by reference to Equipment numbers, (i) all movements of Equipment to and from the Facilities (which Equipment may be accepted or released only against CAI’s Acceptance or Release Number), and (ii) details of damage found to have been suffered by the Equipment if a damage estimate has specifically been requested by CAI and agreed to be issued by Depot.
    3. Equipment Interchange Report
      Complete an Equipment Interchange Receipt (hereinafter “EIR”) for each item of Equipment delivered to or released from the Facilities.  Depot shall be responsible without exception for obtaining on said EIR the signature of the customer/carrier or its trucker/representative returning or taking delivery of such item of Equipment and all of the other information required by such EIR.  If so directed, Depot will forward copies of the EIR to CAI without delay to CAI’s local office or to such other address as is from time to time notified to Depot, and Depot’s copy will be retained for a minimum of five (5) years from the date of issuance.
    4. Facilities Access
      Provide access to CAI’s representatives at all reasonable times to the Facilities and to such other locations at which Depot shall from time to time maintains records with respect to this Agreement and to the Equipment for the purpose of inspecting the work or services being carried out by Depot and of inspecting all records, invoices and other documents maintained by Depot in connection with the work being performed by it on CAI’s behalf.
    5. Additional Requirements
      1. Independent Contractor Status. It is recognized by the parties hereto that Depot is an independent contractor providing services to CAI on a contractual basis only, and that no other relationship, whether legal or financial, exists between Depot and CAI.  Depot will not at any time while this Agreement remains in force or thereafter use CAI’s name or logo in connection with its business or hold itself out as CAI’s representative in any way to any third party without CAI’s prior written or facsimile transmitted permission.
      2. Nondisclosure. Depot will not while this Agreement remains in force or thereafter disclose to any person not a director, officer, employee or representative of CAI any information of any kind relating to CAI’s business.
  2. INVOICING
    1. Such sums as shall be due from CAI to Depot hereunder will be invoiced monthly by Depot not later than the last day of the month following the month in which such sums are earned by Depot, and CAI will pay such sums within sixty (60) days of the date of receipt of such invoices; provided that if CAI disputes any portion of the sum shown by any such invoice to be due, any undisputed sum will be paid to Depot and reasons given for disputing the balance within the said sixty (60) day period.
    2. Such sums as may be due from Depot to CAI from time to time will be offset against the sums due to Depot from CAI pursuant to this Agreement.  However, if no monies are then due to Depot pursuant to Section C(1) hereof, the sums due to CAI will be invoiced by CAI from time to time and will be paid by Depot to CAI within sixty (60) days of receipt of the invoices therefor.
  3. LIABILITY AND INSURANCE
    1. In the event of loss of, damage to or destruction of Equipment or other CAI property located at the Facilities or at any other premises controlled by Depot, Depot will, notwithstanding Section D(3) below, pay to CAI, when invoiced therefor, as applicable, the repair cost for such Equipment or CAI property, the Casualty Value of such Equipment (as set forth in Section D(4) below), or the replacement cost of such other CAI property.  In addition, Depot will be liable to CAI for any financial loss of any kind suffered by CAI as a result of or in connection with any loss, theft or destruction of or damage to such Equipment or other CAI property arising from any failure by Depot properly to perform the Services under this Agreement.  Depot’s obligations under this Section are separate from and independent of those set forth in Section D(3) of this Agreement.
    2. Depot will indemnify and hold CAI harmless from and against all expenses, losses, liabilities, damages and costs of any kind or nature, including, but not limited to, legal fees and costs incurred by CAI or for which CAI may become liable, directly or indirectly, by reason of or in connection with any accident or occurrence resulting in:
      1. Loss or destruction of or damage to the Equipment while located at the Facilities or while under Depot’s control;
      2. Personal injury, illness, death, loss of wages and/or earning capacity, and/or loss of or damage to any property which may arise at the Facilities or any other premises controlled by Depot or as a result of or in any way connected with the repairs or maintenance carried out by Depot on any of the Equipment or otherwise respecting the Equipment; and
      3. Any and all exclusions, deductibles and coinsurance obligations contained in the insurance policies required to be provided by Depot under Section D(3) of this Agreement.
        • Depot’s obligations under this Section are separate from and independent of those set forth in Section D(3) of this Agreement.
    3. Depot will, before commencing any work of any kind on behalf of CAI, obtain from one or more reputable insurance companies a policy or policies of insurance reasonably satisfactory to CAI insuring against the risks and for at least the minimum limits of coverage set forth below (containing only standard exclusions and reasonable deductibles and/or co-insurance provisions) and will keep said policies, or acceptable replacements therefor, in effect throughout the term and during any wind-down period of this Agreement.  Depot will provide CAI with evidence of renewal or acceptable replacement(s) of said policies prior to their respective expiration date(s) for so long as Depot’s obligations under this Section remain in effect.  Depot will cause CAI to be named as additional insured and loss payee under such policies as its interests may appear, and shall periodically furnish CAI with certificates of insurance issued by the underwriters of such policies acknowledging CAI’s status as aforesaid and describing the coverages and principal exclusions of such policies.  Depot shall also, upon written request from CAI, provide CAI with certified copies of all policies purchased by Depot from time to time in compliance with Depot’s obligations under this Section. Depot’s purchase of insurance coverages in compliance with this Section D(3) shall not relieve Depot of any related obligations of Depot under Sections D(1) or D(2) of this Agreement to the extent that Depot’s liabilities to CAI thereunder exceed such insurance coverages and/ or any benefits paid to CAI thereunder.
      1. Comprehensive General Liability including products liability: US$1,000,000.00 combined aggregate for bodily injury and/or property damage per accident or occurrence (including US$1,000,000.00 per person bodily injury.)
      2. All risks physical loss and damage:  US$500,000.00 per event of loss.
  4. DEPOT CHARGES
    1. Any increase to the existing charges shall only become part of this Agreement upon execution by CAI and Depot of a written addendum hereto incorporating such modifications.
    2. CAI shall not be obligated to Depot for any cost associated with movement of the Equipment in the Depot Facilities unless specifically requested by CAI in writing.
  5. TERMINATION OF THE AGREEMENT
    1. Either party may terminate this Agreement without cause following the first (1st) anniversary of the effective date hereof by giving ninety (90) days prior written notice of termination to the other party hereto.
    2. Either party may terminate this Agreement for default if the other party hereto fails to comply with any of the terms of this Agreement or of any modification thereof by giving thirty (30) days prior written notice of termination for default to the defaulting party, specifying therein the details of such default.
    3. If a Receiver is appointed for Depot or Depot goes into liquidation, whether compulsory or voluntary (except for consolidation with or amalgamation into a solvent company), or any form or bankruptcy proceeding is filed by or against Depot, or if Depot enters into an arrangement with its creditors or suffers any distress or execution on its property, this Agreement will terminate immediately and without notice.
    4. If Depot ceases to be actively in the business of operating a container depot, if effective control of Depot passes out of the hands of [•], or if Depot proposes to relocate the operations presently conducted at the Facilities to other premises, CAI may terminate this Agreement by written notice of termination delivered to Depot sixty (60) days or such shorter period of time as may exist prior to the effective date of such cessation of operations, change of control or relocation of operations.  Whether CAI elects (i) to terminate this Agreement as aforesaid and move all CAI Equipment located in Depot’s current facility to alternative depot facility/ies reasonably acceptable to CAI, or (ii) to ratify such change in control and/or relocation of Depot’s operations, all costs associated with modification of this Agreement and relocation of the Equipment in Depot’s current facility (including, but not limited to drayage, handling, documentation and insurance) shall be for the account of and paid by Depot as provided by Section C(2) hereof.
    5. Immediately upon the effective termination date of this Agreement (as provided in this Section or in Section E above), Depot will make available for pick-up by CAI all Equipment then in its possession.  If any item of Equipment (other than an item of Equipment delivered to Depot in damaged condition, the repair cost of which has not yet been estimated or an item in the course of repair or maintenance pursuant to Section F(7) below is not made available to CAI within three working days of the effective date of termination of this Agreement, Depot agrees to pay CAI rental charges at CAI’s then current spot lease rate for a like item of Equipment for each day that such item of Equipment remains in the possession of Depot and to indemnify CAI against all costs and expenses of any kind, including, but not limited to, legal costs and fees, which CAI may incur as a result of or in connection with Depot’s failure to make such Equipment available to CAI.
    6. Immediately upon the effective termination date of this Agreement, all documents or property belonging to CAI that is in Depot’s possession will be returned promptly to CAI.
    7. Depot will at no time while this Agreement remains in force or thereafter assert any lien of any kind, whether materialman’s, mechanics’, workman’s, repairman’s, employee’s, drayman’s, garage-man’s or any other like liens arising in the ordinary course of business or by operation of law against any of the Equipment or any other property of CAI.
    8. The termination of this Agreement for any reason will not release either party from the obligation to pay any sums owed to the other party or from the obligation to perform any duty or discharge any liability arising before such termination.
    9. CAI WILL NOT BE LIABLE TO DEPOT WHILE THIS AGREEMENT IS IN FORCE OR AFTER THE TERMINATION THEREOF FOR ANY REASON WHATSOEVER, FOR ANY CONSEQUENTIAL OR ECONOMIC LOSS WHATEVER, WHEREVER, AND HOWEVER ARISING, INCLUDING, WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, ANY LOSS OF PROFITS, PRESENT OR PROSPECTIVE, OR ANY LOSS IN CONNECTION WITH ANY EXPENDITURE, INVESTMENT OR COMMITMENT MADE BY DEPOT RELATING TO THIS AGREEMENT OR DEPOT’S DUTIES HEREUNDER.
  6. MISCELLANEOUS
    1. Notices
      All notices required or permitted to be given to either party pursuant to this Agreement shall be sent to the address set forth in the Depot Services Agreement. Any such notice shall be deemed to have been duly given or made and to have become effective (i) if delivered by hand, overnight courier, or facsimile to a responsible officer of the party to which it was addressed, at the time of receipt thereof by such officer or the time stamp of such facsimile, and (ii) if sent by registered, certified or first-class mail, postage prepaid, on the fifth business day following the mailing thereof.
    2. Limitation on Assignability
      Depot will have neither the right nor the power to assign its interest in this Agreement nor to delegate the Services hereunder.
    3. Governing Law
      THIS AGREEMENT, (INCLUDING ANY ADDENDA OR AMENDMENTS HERETO) (A) CONSTITUTE THE COMPLETE AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER OF THIS AGREEMENT AND REPLACE AND SUPERSEDE ANY PRIOR UNDERSTANDINGS OR AGREEMENTS REGARDING THE SAME (B) IS BINDING UPON THE PARTIES, THEIR PERMITTED SUCCESSORS AND ASSIGNS AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA AND, EXCEPT WHERE INCONSISTENT THEREWITH, WITH THE LAWS OF THE STATE OF CALIFORNIA, AND (C) MAY ONLY BE AMENDED OR MODIFIED PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH CAI AND DEPOT. WITH RESPECT TO ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT, CAI MAY REQUIRE THAT ANY DISPUTE OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL, AT CAI’S SOLE OPTION AND DISCRETION, BE BROUGHT ONLY IN STATE OR FEDERAL COURTS HAVING JURISDICTION OVER THE CITY AND COUNTY OF SAN FRANCISCO OR BEFORE THE AMERICAN ARBITRATION ASSOCIATION IN SAN FRANCISCO UNDER ITS COMMERCIAL ARBITRATION RULES. DEPOT CONSENTS TO JURISDICTION AND VENUE IN THOSE COURTS. CAI MAY OPT TO COMMENCE OR ALLOW PROCEEDINGS IN ANY OTHER JURISDICTION.
    4. Counterparts
      This Agreement may be executed in multiple counterparts all of which, taken together, shall be deemed to constitute but one and the same instrument.
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