(a) Customer Knows Terms Hereof. It is the responsibility of the Customer to (i) read and acknowledge that Customer has read the General Terms, (ii) acknowledge that Customer has sufficient time within which to read these General Terms and review them with Counsel of Customer’s choosing, at Customer’s sole discretion, cost and expense, and (iii) provide notice and copy(s) of these General Terms to all Customer agents or representatives.
(b) Duty to Disclose Information. The Customer has an affirmative, non-delegable duty to disclose to Company any and all information required by Company to allow Company to fulfill its contractual obligations to Customer. The scope of the required information shall be in the Company’s sole discretion.
(c) Company Lien. Customer hereby grants Company a general and continuing lien on any and all property of Customer in Company’s actual or constructive possession or control for all purposes, including (but not limited to) a lien in an amount sufficient to retire all debts Customer owes to Company for current and/or prior shipment(s), or monetary obligations of any kind owed by Customer to Company.
(d) Company Lien Notice. Company shall provide written notice to Customer of its intent to exercise such lien (“Lien Notice”), the exact amount of monies due and owing, as well as any on-going storage or other charges. Upon receipt of a Lien Notice, Customer shall notify all parties having an interest in Customer property of the Company’s lien rights, and the Company’s intent to exercise any such lien.
(e) Company Right to Sell Customer Property. Upon issuance of a Lien Notice to Customer, Company shall have the right to sell Customer’s property at public or private sale or auction. (“Liquidation Sale”). Customer may avoid a Liquidation Sale if, within thirty (30) days of receiving a Lien Notice, Customer irrevocably posts cash or a letter of credit as sight, in favor of Company, as security (“Security”). Security shall be in a sum sufficient to pay all monies owed Company for services rendered or to be rendered, including currently accrued and future storage charges, and all related costs of collection, as hereafter provided. If the amount due Company by Customer is the subject of a bona fide dispute, Customer may avoid Liquidation Sale by posting an appropriate bond in favor of Company. (“Bond”) The Bond shall be underwritten by a financial Company rated AAA or better by Moody’s rating service, and the Bond shall be in an amount no less than 110% of the market value of the total amount of money due the Company. The Bond shall guarantee the Customer’s payment to the Company of monies owed as of the date of the Lien Notice, plus storage charges accrued or to be accrued, collection fees, costs and reasonable attorneys’ fees (collectively the Security and/or the Bond shall be referred to herein as “Collateral”). Any sale proceeds actually received by Company following liquidation of the Collateral that exceed the amount stated in the Lien Notice, inclusive of all collection costs as hereafter described (“Net Proceeds”) shall be tendered to Customer within a reasonable time.
(f) Company Can Share Customer Data. Customer agrees to allow Company to share Customer’s aggregate sales and account data with its subsidiaries, related companies, affiliates, agents and/or representatives.
(g) Customer Indemnifies Company. Customer hereby indemnifies, defends and holds the Company harmless from, against, and in respect of any and all loss, liability, deficiency, penalty, or damage suffered or incurred by the Company resulting from any violation of U.S. law, false representation, breach of warranty, or breach of any covenant or agreement by the Customer contained in the General Terms, or in any other agreement between the parties, certificate, document, or instrument delivered to the Company by the Customer pursuant to any agreement between the parties or in connection therewith.
(h) Customer Payment; Customer Late Payment Fees. Customer agrees to (i) timely pay Company for services rendered, strictly in accord with the terms of any agreement by which the Company provides services to the Customer, and to pay Company an administrative fee of $250.00 (in addition to all other collections costs – see below) for each late payment (“Late Payment Fee”). (ii) The Customer shall pay all Late Payment Fees assessed by the Company together with the amount of the original invoice (plus all other collection fees due) within thirty (30) days following the original due date of the invoice for which the Late Payment Fee was assessed. (iii) Failure to pay the Late Payment Fee, original invoice amount and any other collection costs within thirty (30) days of the original due date shall result in the assessment of an additional Late Payment Fee of $250.00, payable together with the invoice amount within the following thirty (30) days. (iv) The Customer will pay Company a recurring Late Payment Fee of $25.00 per invoice in succeeding thirty (30) day intervals as long as any Customer account remains in arrears. Customer agrees to pay all such fees until the invoice, all accrued Late Payment Fees, and other applicable collection costs are paid in full.