|1. Services. LMPSIDGM agrees to provide to you, the Client, such services as we, the parties, shall agree upon, which may include consultancy on and services conceming transport by air, road andlor sea of hazardous materials, as hereinafter defined; making arrangements on your behalf to obtain transport permits or exemptions, both national and intemational; providing or arranging for the warehousing, care, packaging or shipping of hazardous materials; andlor inspecting consignments prepared or packaged for shipment. You acknowledge that LMPSIDGM shall never act as a carrier or be deemed to be a carrier, common or private, absent LMPSIDGM's explicit written agreement to the contrary. It is expressly understood that LMPS/DGM assumes no obligation or liability for any technical advice fumished by it, including, without limitation, technical advice with respect to the use of its services, all such technical advice being given and accepted at your risk.
2. Applicability. These Terms and Conditions shall govern all services provided to you by LMPSIDGM, now or in the future; all quotations, confirmations of orders. orders, contracts between LMPSIDGM and you, now or in the future; and all acts and activities of LMPSIDGM in relation to you or on your behalf, now or in the future. The term "LMPSIDGM", as used herein, shall include LMPSIDGM's successors and assigns, its parent, subsidiary or affiliated companies or entities and its employees, officers, directors, independent contractors andlor agents. The terms "you," "your" and "the Client" shall mean any party to these Terms and Conditions other than LMPSIDGM, together with its representatives, employees, successors or assigns. You authorize LMPSIDGM to engage, at its sole discretion and without your prior consultation, third parties to perform services on your behalf
3. Acceptance of Terms. LMPSIDGM's acceptance of any order is expressly subject to your assent to each and all of the Tenns and Conditions set forth herein and your assent to these terms and conditions shall be conclusively presumed from your receipt of this document or from your shipment or provision of hazardous materials or other goods to LMPSIDGM. These Terms and Conditions supersede all prior statements, proposals, negotiations, representations andlor agreements by and between the parties and shall constitUle the entire agreement of the parties. No addition to or modification of these Terms and Conditions shall be binding upon LMPSIDGM unless specifically agreed to by LMPSIDGM in writing. If your purchase order or other correspondence contains terms or conditions contrary to or in addition to the terms and conditions set forth below, LMPSIDGM objects to such terms or conditions and acceptance of any order by LMPSIDGM shall not be construed as assent to such contrary or additional terms and conditions or constitute a waiver by LMPSIDGM of any of the Terms and Conditions set forth herein. No verbal arrangement between you and LMPSIDGM shall constitute a contract binding on LMPSIDGM unless, and only to the extent, confirmed in writing by LMPSIDGM. No course of dealing, course of performance or usage of trade, if any, shall constitute a waiver of any of these Terms and Conditions.
4. Information Provided by Client. The tenn "hazardous material," as used herein, sltall mean any object or material that, if transported or stored, may cause a significant hazard to the health of human beings or animals, to safety or to property. The term "technical specifications," as used herein, shall mean the correct and accurate technical name andlor composition of any hazardous material presented to LMPSlDGM, all information of which you are aware that may be relevant to the safe handling of said hazardous material and any other information LMPSIDGM shall request. LMPSIDGM shall not accept any hazardOUS materials unaccompanied by complete and correct technical specifications and if LMPSIDGM at any time confirms in writing particular technical specifications provided by you, such technical specifications shall be binding between the parties absent prompt written protest by you. You explicitly acknowledge that LMPSIDGM will act on the basis and accuracy of the teclmical specifications provided by you or on your apparent behalf and that any inaccuracies in said technical specifications may have very serious consequences. You therefore warrant the accuracy of all such technical specifications and agree to indemnify, defend and hold harmless, at your expense, LMPSIDGM from any and all liability, claims, or financial losses, costs, damages (including special, indirect or consequential damages and losses or damages attributable to delay), penalties or punishments, including interest payments thereon and attorneys' fees, arising directly or indirectly from any inaccuracies in such technical specifications, regardless of your fault with respect to the inaccuracies. If LMPSIDGM demonstrates by a preponderance of the evidence that a financial loss may have been the consequence of inaccuracies in such technical specifications, it is thereafter to be presumed that such loss was and is attributable to said inaccuracies, absent clear and convincing evidence presented by you that the financial loss is not attributable in whole or in part to said inaccuracies.
5. Other Liability of Client. You agree to indemnify, defend and hold harmless LMPSIDGM to the same extent set forth above with respect to (a) any actions or inactions of any person aCling on your behalf or with your apparent authority whom LMPSIDGM has permitted to enter its grounds or any facility it operates; (b) any circumstance in which, at the time goods are presented to LMPSIDGM, said goods are not accompanied by the requisite or correct documents necessary for transport, including any customs documents; (c) "force majeure events," which, as used herein, means any circumstances that LMPSIDGM could not reasonably avoid and the consequences of which it could not reasonably prevent, including but not limited to fire, explosion. flood, accident, earthquake, tornado. epidemic or other casualties or acts of God; strikes or lockouts, war, riot, civil disobedience or other emergency; acts of civil or military authorities; compliance with orders, quarantine restrictions, priorities or requests of any governmental agencies; or embargos; and (d) your breach of any of these Terms and Conditions.
6. Liability of LMPSIDGM. No promise or affirmation of fact made by any employee, agent or representative ofLMPS/DGM other than in these Terms and Conditions shall constitute a warranty or give rise to any liability or obligation. Catalogs, circulars and similar pamphlets of LMPSIDGM are issued for general information purposes only and shall not be deemed !o modify the provisions hereof or create any warranties. LMPSIDGM shall be liable for damage to andlor loss of goods presented to it only insofar as you demonstrate that such damage andlor loss originated in the period from the moment, following unloading of the goods, thaI custody of the goods was physically assumed by LMPSIDGM for the purpose of performing contracted·for services (i.e., "taking delivery") up to and including the moment that the goods, following performance of the contracted·for services but prior to the loading of the goods, are made available by LMPSIDGM to you, your beneficiary or agent, or a carrier of the goods, whether engaged by LMPSIDGM or not (i.e.• "delivery").
|LMPSIDGM shall have no liability for loss incurred in or as a result of (a) loading and unloading goods; (b) transit of goods; (c) inaccuracies in technical specifications provided by you or on your apparent behalf; (d) a breach of your to", contract, equitable or other duties; or (e) a force majeure event. You shall be responsible for filing and pursuing claims with carriers for loss or damage in transi!. In any event, unless LMPSIDGM's reckless negligence or willful misconduct, undertaken with knowledge of the likelihood of damage andlor loss, is the sole and direct cause of any such damage andlor loss, LMPSIDGM's liability for damage to andlor loss of goods shall be limited to $12,000 per event of loss or series of events of loss with the same cause, plus the goods' invoice value at the time of taking delivery, to be demonstrated by you, or, if such value cannot be demonstrated, on the basis of the goods' fair market value at lhe time of the loss, to be demonstrated by you, up 10 a maximum of $6 per pound of damaged or lost gross weigh!. You hereby waive any and all claims against LMPSIDGM other than contract claims governed by these Terms and Conditions. IN NO EVENT SHALL LMPSIDGM BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, LIQUIDATED, PENAL OR OTHER DAMAGES FOR DAMAGE TO AND/OR LOSS OF GOODS, DELAY IN OR FAILURE TO
DELIVER OR PERFORM IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE. You must give LMPSIDGM notice in writing of any and all damage to andlor loss of goods allegedly resulting from deficiem performance by LMPSIDGM with ten (10) days of delivery of said goods or waive any and all such claims. Your right to bring suit against LMPSIDGM with respect to an order shall expire nine months after that order was awarded and is contingent on your prior delivery of all data, documents, statements, affidavits andlor official papers related to your suit or the underlying claim of damage andlor loss as LMPSIDGM has requested.
7. Insurance. Any insurance procured by LMPSIDGM on your behalf shall be for your benefit and of your risk only. LMPSIDGM shall procure such insurance only after written order accurately describing the risks to be covered and written acceptance thereof by LMPSIDGM. LMPSIDGM may refuse, at its sole option, an order to procure insurance. You acknowledge that LMPSIDGM has not influence on acceptance or refusal by any underwriter or insurer of the risks presemed for coverage.
8. Prices and Payments. All prices stated by LMPSIDGM shall be exclusive of applicable taxes and specific to the circumstances as they exist at the time of said statemen!. In the event of any subsequent increase in LMPSIDGM's costs, including, but not limited to, purchase prices, cosl of wages, taxes, social security premiums, freight costs, insurance costs. changes in exchange rates and the like, LMPSIDGM shall be entitled to adjust any previously-stated prices accordingly. All payments shall be due in full prior to the commencement of services. If, in deviation of this policy, LMPSIDGM agreement to payment in arrear, such payment is to be made no later than the earlier of eight days following the invoice date or the due dale stated on the invoice. You waive all righls to offset claims for payment of fees, costs or other amounts owed to LMPSIDGM against any other claims and waive all rights to suspension of any payment owed by you. In the event of late payment, LMPSIDGM shall be entitled without further notice to charge, at its option, the maximum rate of interest allowable by law, administrative costs equal to 10% of the outstanding amount and any judicial andlor extra-judicial collection costs, including attorneys' fees associated with all that is due to LMPSIDGM. LMPSIDGM shall be entitled to demand, at any time, whether before or during perfonnance, satisfactory surety to ensure compliance with your payment obligations and may suspend performance if you fail to pledge such surety. LPMSIDGM shall be entitled to hold, on your account and at your risk, any and all funds, money, goods andlor documents of yours or imended for you and may refuse anyone demanding their release until such time as you shall have made payment in full of all amounts owing either 10 LMPSIDGM or such third party. LMPSIDGM shall have a lien against all such items as security for any and all amounts you owe to LMPS/DGM, regardless of whelher such amounts are related to the held items. LMPSIDGM may, in its sole discretion, substitute an equivalent surety for such lien.
9. Termination. LMPSIDGM may terminate, without giving you notice or opportunity to cure, any contract between the parties in the event that (a) you breach, or LMPSIDGM can reasonably expect you to breach, any provision of these Terms and Conditions or any contract between the parties; (b) you cease operation of your business in whole or in substantial part; (c) any material change in control of your business; (d) the sale of all or substantially all of your assets; (e) if you are not a natural person, you lose your legal entity status, are dissolved or are effectively liquidated; (I) are declared bankrupt or a receiver or trustee in bankruptcy is appointed on your behalf; (g) if you are a natural person, you die; (h) you enter into any plan of reorganization or for the benefit of creditors; or (i) seizure of any or all of your goods is ordered. You agree that upon termination, LMPSIDGM may (a) suspend performance of any of its contractS with you; (b) dissolve, without judicial intervenlion, any or all contracts between the parties, including those in which you are not in default, in whole or in part, at LMPSIDGM's option and effective immediately; (c) seek specific performance of any of your contractual obligations or other injunctive relief, LMPSIDGM's right to which you hereby irrevocably consent; and (d) collect damages, including, at minimum, damages to property, los! profits, costs, attorneys' fees and interest.
10. Delivery of Goods. You must take delivery of any goods previously presented to LMPSIDGM upon LMPSIDGM's completion of the comracted-for services andlor upon dissolution, termination or nullification of any applicable contract between the parties on any grounds, subject to an immedialely claimable warehousing fee, not subject to miligation, of $400 per day that you refuse to take delivery and without prejudice to LMPSIDGM's right of lien against any goods in its possession.
11. Miscellaneous. You may not assign your rights or obligations hereunder except as specifically provided herein. If any provision of these Terms and Conditions, as applied to any party or to any circumstance, shall be found by a court !o be void, invalid or unenforceable, the same shall in no way affect any other provision, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms and Conditions or any contract between the parties. Any and all contracts between the parties shall be governed by the laws of the State of lIIinois, withoul respect 10 the choice of law provisions Ihereof, and the parties irrevocably submit to the exclusive personal and subject matter jurisdiction and venue of the state and federal courts sitting in Cook County, Illinois, for the resolution of disputes thereunder.