TERMS AND CONDITIONS OF SERVICE
Last Updated: March 21, 2022
The following Terms and Conditions of Service (these “Terms”) govern all locker storage services (the “Services”) that you and your company (“you,” “your,” or the “Customer”) may solicit or receive from Locker Suites, LLC (“Locker Suites”) and its service providers. Customer and Locker Suites may be individually referred to as a “Party” or jointly as the “Parties” as used herein. These Terms include all documents referenced here or issued by Locker Suites.
Please read carefully. These Terms constitute a legally binding contract between Locker Suites and Customer. Locker Suites may update these Terms from time-to-time and the Terms in force at the time of tender will govern. Customer accepts and agrees to be bound and abide by these Terms by the act of requesting deliveries or otherwise receiving Services from Locker Suites. If Customer does not wish to be bound by these Terms then it must not request deliveries to Locker Suites or use its Services.
[Please review the Privacy Policy for Locker Suites. This document describes Locker Suite’s collection, use, and disclosure of your personal information Locker Suites may collect from you in connection with your use of the Services.] Locker Suites cares about the integrity and security of your personal information. However, Locker Suites cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
5.1 Subject to these Terms, Locker Suites grants to you a limited, non-exclusive, non-transferable, non-assignable, revocable license to download, install, and use the App on a product owned or controlled by you for your personal or business purposes and as described in these Terms. You may not modify, reverse engineer, decompile, or disassemble the App, in whole or in part, or create any derivative works from or sublicense any rights in the App, unless otherwise expressly authorized in writing by Locker Suites. You may not translate or otherwise attempt to create the source code from the App, or rent, lease, grant a security interest in, or otherwise transfer any rights to, copy, distribute, transmit, display, perform, reproduce, publish, license, or transfer the App, or remove or alter any trademark, logo, copyright, patent or other proprietary notices in the App.
5.2 You represent and warrant that you have all rights, title, interest, and consent necessary to provide any of the information, documentation, data, pictures, text, graphics, articles, photographs, video, images, illustrations, or other materials that you upload to the App or otherwise provide to Locker Suites (collectively, “Your Content”). You represent and warrant that you will not contribute any of Your Content that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; or (vi) jeopardizes the security the App or any other user of the App.
6.1 In connection with the license of the App hereunder, the Parties acknowledge and agree that Locker Suites is expressly not selling to you, and you are not acquiring any right, title or interest in or to, any patents, copyrights, trade secrets, trademarks, service marks, trade names, or the company name of Locker Suites (collectively, “Locker Suites Intellectual Property”), and you will use the App strictly in accordance with our standards, policies and procedures as specified by us from time to time.
6.2 Restrictions on Use. You shall not:
(a) make the App or the Services available to, or use the App or the Services for the benefit of, anyone other than yourself, except expressly permitted in these Terms;
(b) market, sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease, or authorize or permit access or use of any portion of the App or the Services except as expressly permitted in these Terms;
(c) reverse engineer, decompile, or disassemble the App or the Services, except and only to the extent that such activity is expressly permitted by applicable law;
(d) interfere with or disrupt the integrity or performance of the App or the Services;
(e) copy the App or the Services or any part, feature, function thereof;
(f) alter the App or any part, feature, function thereof;
(g) export or use the App in violation of U.S. law, including Department of Commerce export administration regulations;
(h) remove any copyright and other proprietary notices contained in the App;
(i) use the App in a manner which infringes or violates any of the intellectual property, proprietary, or other rights of any third party; or
(j) access and use the App in any manner that is inconsistent with these Terms.
You may choose to, or Locker Suites may invite you to submit comments, suggestions, or ideas about the Services, including how to improve the Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Locker Suites under any fiduciary or other obligation. Locker Suites may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Locker Suites does not waive any rights to use similar or related ideas previously known to Locker Suites, developed by its employees, or obtained from other sources.
You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use Your Content (including all related intellectual property rights) solely in connection with providing the Services and as directed by you. Furthermore, you understand that Locker Suites retain the right to reformat, modify, create derivative works of, excerpt, and translate any Your Content submitted by you.
8.1 Shipment Pickup. You agree that any and all Shipments must be picked up by you from the Locker Space within forty-eight (48) hours of the Shipment’s arrival into the Locker Storage Facility. Locker Suites reserves the right to transfer all Shipments remaining in the Locker Space more than forty-eight (48) hours after arrival at the Locker Storage Facility into an overflow room, separate and apart from the Locker Space. Similarly, Shipments may be immediately placed in an overflow room if Locker Space is unavailable. All Shipments not picked up from the Locker Storage Facility within seven (5) days of arrival shall result in a surcharge of $1 per day, charged daily. Furthermore, special arrangements will need to be made for a scheduled pickup of these packages directly from staff. You are responsible for checking the Shipments to ensure that they are your package and must promptly return any package that is not yours. Delivery of Shipments to the Locker Storage Facility is limited to only the transportation providers, delivery services, or couriers approved by Locker Suites (“Approved Couriers”). Locker Suites will provide notice to you through these Terms or other communication regarding the list of Approved Carriers. Locker Suites reserves the right to refuse to accept or process a delivery of a Shipment from a non-Approved Carrier.
8.2 Delivery.
Only packages that are 24″x24″x24″ or smaller and weigh less than 30lbs are eligible for concierge delivery. You agree to be available, in-person, for delivery at the time you request through our App. Delivery from any Locker Suites Facility is only available within a half-mile radius. This service is not included as part of your monthly Service Fees. Additional fees will be incurred for use of this service as per Locker Suites published rates, which may change from time to time. Delivery to any location is not guaranteed by the payment of the Service Fees. Locker Suites reserves the right to discontinue this service at any time.
9.1 Waiver of Liability. You acknowledge and agree that Locker Suites may not own or have any established property interest in a Locker Storage Facility. If Locker Suites does not own or have any established property interest in a Locker Storage Facility, you hereby release the owner or the entity with an established property interest in the Locker Storage Facility from any and all liability in connection with the Services or the operation of the Locker Space.
9.2 Packet Sniffers. By acceptance of these Terms and the use of the Services, you hereby acknowledge and agree that you will not utilize nor facilitate the use of packet sniffers, packet analyzers, protocol analyzers, network analyzers, or any other piece of hardware or software used to monitor to network traffic to monitor activity at any Locker Storage Facility or Locker Space utilized by Locker Suites.
9.3 No Guarantee.
(a) You acknowledge and agree that by payment of the Service Fees (as defined below), you are permitted access to the Locker Storage Facility and Locker Space, as applicable, when you have a package in the respective space but you will in no way be granted any ownership or property interest in the Locker Storage Facility or Locker Space. Locker Suites does not warrant, guarantee, nor make any commitment whatsoever that Locker Space will be available to you at any given time. The risks associated with the availability of Locker Space are solely on you, as the customer. If there is no available Locker Space for your Shipments, Locker Suites will place your Shipment within the established overflow room at the Locker Storage Facility.
(b) You acknowledge and agree that if you request delivery from Locker Suites, Locker Suites makes no guarantees whatsoever of its ability to deliver a package to you in the time you request. Furthermore, Locker Suites may place limitations and refuse to deliver any package as per its sole discretion. If Locker Suites refuses delivery or delivery fails for any reason, it is still your responsibility to ensure your package is picked up from the Locker Storage Facility within the timeframe specified in these terms.
9.4 Locker Space Not Assigned. You agree that by acceptance of these Terms and the use of the Services, you will not be given a dedicated locker in the Locker Space, even if you are assigned a Suite Number. Your use of the Services and payment of the Service Fees provides you the ability to use the Service and available Locker Space. You agree that you are not renting Locker Space or any space within the Locker Storage Facility from Locker Suites. You will not have the control to choose which Locker Space is utilized for your individual Shipments.
9.5 Required Validation for Access. Prior to the performance of Services, you agree to provide Locker Suites a current copy of your and any other person’s utilizing the Services active, valid, state-issued driver’s license and active credit card. Locker Suites reserves the right to deny access to the Services, the Locker Storage Facility, or the Locker Space if, in its sole discretion, it finds your driver’s license inadequate to verify your identity or the credit card to be invalid. You acknowledge and agree that if your access to a Locker Storage Facility or Locker Space is denied due to an invalid, expired, or otherwise unauthorized driver’s license or credit card, Locker Space will not be in any way responsible or liable. It is your obligation to notify Locker Suites and update the driver’s license and credit card on file as needed. Your access to the Locker Storage Facility and Locker Space is dependent on the following: (a) your possession of a valid package code; or (b) being authenticated and logged into the Locker Suites App. Locker Suites reserves the right to deny access to the Locker Storage Facility or Locker Space if you are not in strict compliance with this Section. You agree to receive email and text notifications from Locker Suites while Locker Suites is providing the Services to you. You shall be responsible for all applicable telecommunication or carrier fees as a result of such communications.
9.6 You agree that your subscription with Locker Suites entitles you to access at only one (1) Locker Storage Facility at any given time. You are able to change the preferred Locker Storage Facility for the delivery of your Shipments, but in no instances will you be offered access to more than one (1) Locker Storage Facility. Your desired change to a new Locker Storage Facility is dependent on the availability of Locker Space at the new Locker Storage Facility. Locker Suites reserves the right to refuse to accept a change in your preferred Locker Storage Facility in its discretion, including but not limited to, in the event Locker Space availability is or would become limited. In the event you change your preferred Locker Storage Facility, all Shipments at the prior Locker Storage Facility will be mailed to the new Locker Storage Facility via ground mail. You are responsible for such mailing plus a service fee of $10 per package.
9.7 Locker Suites, or any other entity in control of the Locker Storage Facility, may utilize video or photographic surveillance technology in or around the Locker Storage Facility. You agree that while you are accessing the Locker Storage Facility or Locker Space, you consent to such video or photographic activities. You hereby consent for Locker Suites to utilize the video or photographic footage as part of its ordinary business activities, including but not limited to improvements to technology or marketing activities. You agree that you will not be entitled to any financial compensation or remunerations for Locker Suites’ use of such video or photographic footage.
9.8 Required Validation for Delivery. You will provide us with whatever proof of identity Locker Suites may reasonably request; (l) you will provide our driver with your state issued ID when the delivery arrives that proves that you are the intended recipient, and, if such state issued ID was not issued by the state in which such delivery occurs, upon request, you will provide such other form(s) of identification as may be requested by the driver. Locker Suites may decline your delivery request for any reason. A non-refundable $20 inconvenience fee (“Inconvenience Fee”) will be automatically charged to you if your delivery has been declined for any reason or if you are unavailable or unreachable during the time of delivery.
10. Shipment Restrictions. You acknowledge and agree that Locker Space is only available for Shipments with the following maximum dimensions: 24”x24”x24” (“Maximum Dimension”), including packaging and labeling. Locker Suites reserves the right to place any Shipments in excess of the Maximum Dimensions into the overflow room at the Locker Storage Facility or place a shipment in the overfloow room if Locker Space is unavailable. Overflow space can accommodate larger packages but in no scenario can you ship a package to our facility with the smallest dimension greater than 32″ or a singular dimension greater than 70″ or a weight greater than 75 lbs. You acknowledge and agree that your payment of the Service Fees and subscription with Locker Suites permit you to have delivered to our facility and to pick up a maximum of fourty (40) Shipments per month with no more than five (5) packages arriving on a single day. Any Shipments in excess of this amount may be refused by Locker Suites without liability.
11. Service Fees. You agree to pay Locker Suites the service fees established and according to the payment schedule set forth by Locker Suites (the “Service Fees”). You accept and agree that any expenditures, third party fees, or other charges assessed to Locker Suites by a Seller, transportation provider, delivery service, or courier, which are incidental to the Services, shall be charged to you for payment in addition to the Service Fees. The Service Fees shall include a monthly service fee for the use of the Services and any additional penalty incurred. You agree that by payment of the Service Fees, you do not have any interest in the Services, Locker Suites App, or any Locker Storage Facility or Locker Space. Locker Suites may provide you the opportunity to pay a contract-based fee rate, which shall be paid in full at the onset of the contract. No refund or pro-ration will be provided for early termination. Any fees which Locker Suites may charge you for the Services are due immediately. When you initiate a transaction with us, Locker Suites’ third party payment processor will authorize your credit or debit card for the full amount of your purchase. Locker Suites, at its sole discretion, may make promotional offers with different features and different rates to any customer. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. Locker Suites may change the fees for the Services in its sole discretion.
12 Warranty Disclaimers and Release.
12.1 The Services are provided “as-is” and “as available” and Locker Suites expressly disclaims any warranties of any kind, whether express or implied, including the warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Locker Suites makes no warranty that the Services: (a) will meet your requirements or expectations; (b) will be available on an uninterrupted, timely, secure, or error-free basis; (c) will be accurate, reliable, free of viruses, or other harmful code, complete, legal, or safe; (d) result in any revenue, profits, or cost reduction.
12.2 Locker Suites does not assess the suitability, legality, regulatory compliance, quality or ability of any Locker Space, and Locker Suites makes no warranty regarding the foregoing. By using the Services, you and your Customer or shipments, as applicable, may be exposed to situations that are potentially dangerous, offensive, harmful, unsafe, or otherwise objectionable. Your use of the Services is at your own risk. Your interactions with other companies and third parties are solely between you and such companies or third parties. You agree that Locker Suites will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any other Customer or third party, Locker Suites is under no obligation to become involved.
12.3 You hereby release Locker Suites (and its officers, directors, employees, agents, successors, insurers, and assigns) of and from, and hereby waive and relinquish, each and every past, present, future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage) arising from your use of the Services, or in any way related to other companies or third parties.
12.4 The exercise of this right does not alleviate, amend, eliminate, or abridge your obligation to adhere to applicable Laws, nor does it impose an affirmative responsibility on Locker Suites to verify your adherence to applicable Laws.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GOPUFF HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES OR THE PRODUCTS (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. LOCKER SUITES DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, (D) DEFECTS IN THE SERVICES WILL BE CORRECTED OR (E) THAT THE APP WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY LOCKER SUITES OR ITS AUTHORIZED AGENT OR REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL ANY LOCKER SUITES ENTITY BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF LOCKER SUITES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES, INCLUDING ANY LOSS OF PROPERTY OR REVENUES OR ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND LOCKER SUITES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. If, for any reason, a court finds Locker Suites liable for damages notwithstanding the foregoing, in no event shall the Locker Suites’ total liability for all damages arising out of or in connection with the Services or this Agreement exceed the amount paid by you to Locker Suites for your use or receipt of the Services. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You agree that the above limitations of liability together with the other provisions in this Agreement that limit liability are essential terms of this Agreement and that Locker Suites would not be willing to perform the Services or grant you the rights set forth in this Agreement but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce Locker Suites to grant you the rights set forth in this Agreement. This section shall survive termination or expiration of this Agreement for any reason.
14.1 All Shipments delivered or stored at a Locker Storage Facility shall be at your risk. Locker Suites shall not be liable for any loss, theft, or damage or deterioration to the Shipments whether through its negligence or for any other cause whatsoever unless such damage or loss resulted from a failure of Locker Suites to perform the Services in accordance with such care as a reasonably careful person would exercise under like circumstances or any damages which could not have been avoided by the exercise of such care. Additionally, Locker Suites shall not be liable for any loss or damage to the Shipments: (a) caused by any defects in the manufacturing or packaging of such Shipments; (b) attributable to transportation and delivery providers failing to deliver the full shipment of expected Shipments inside the Locker Storage Facility or otherwise caused by the acts or omissions of such transportation providers; (c) delivered to the Locker Storage Facility in damaged condition and such damage was reported to you; (d) attributable to concealed damage; and (e) as a result of the negligence or intentional misconduct of you, Seller, or any of your or its employees, agents, or subcontractors. Notwithstanding the foregoing, under no circumstance will Locker Suites assume any liability for penalties, financial or otherwise, that may exist in contracts between you and Seller. You expressly release Locker Suites from and agree to indemnify, defend, and hold harmless Locker Suites against any and all claims for such loss or damaged described in this Section, including, without limitation, costs and reasonable attorneys’ fees incurred by Locker Suites in connection therewith.
14.2 The quality, condition, contents, and value of the Shipments are not known to Locker Suites except as declared to Locker Suites by you.
14.3 Shipments delivered and stored in Locker Space are not insured by Locker Suites and the Service Fees do not include insurance unless specified in writing and signed by Locker Suites. Accordingly, it is the sole responsibility of you to ensure that the Shipments are insured at the Locker Space to cover loss of or damage to the Shipments. If you carry any insurance on the Shipments, you and your insurance carrier waive all subrogation against Locker Suites. Copies of such waiver shall be furnished to Locker Suites upon request.
14.4 Without limiting the generality of Sections 14.1 to 14.3 above, you specifically acknowledge and agree that:
(a) Locker Suites shall in no circumstances be liable for loss or damage or deterioration to the Shipments resulting from any of the following perils or circumstances: inaccuracies, obliteration or absence of marks, numbers, address, or description, fire or explosion from any cause, flood, wind, storm, earthquake or other acts of God, irresistible force, ware, insurrection, riot, civil or military authority, strikes, picketing or any other labor trouble, shrinkage in weight, loss in quality or due to the inherent or perishable nature of the Shipments, insufficient boxing, crating or packaging, for wear and tear or any cause beyond the control of Locker Suites. No responsibility will be assumed for loss of or damages to Shipments by leakage or failure to detect the same or for concealed damage, or for loss or damage caused by breakage, theft, ice, vermin, sprinkler leakage, steam, frost, heating or corruption, rust, decay or water or other damages resulting from defects in the structure of the Locker Storage Facility, including the water system, sewer, drainage, electricity, theft or vandalism at the Locker Storage Facility, or for damages resulting from the usage of the Locker Storage Facility or Locker Space;
(b) Locker Suites shall not be responsible or liable to you, or any person claiming by, through or under you, for any loss of, damage or injury to any property or to any persons at any time in or about the Locker Storage Facility from theft, fire, explosion, falling plaster, bursting, breakage, leakage, steam, gas, electricity, water, dampness, sewage, lightning, rain, wind, snow, or any other cause whatsoever which is beyond the reasonable control of Locker Suites, nor shall Locker Suites be in any way responsible or liable to you, or any person claiming by, though or under you in case of any accident or injury including death to any of your employees, agents, or invitees or to any person or persons in or about the Locker Storage Facility. Locker Suites shall employ the same measure of care (but in no event less than reasonable care) that Locker Suites employs in protecting its own products and personnel for purposes of ensuring that you and your Shipments are not exposed to harm while in the Locker Storage Facility.
(c) Locker Suites shall in no circumstances be liable for any direct or indirect loss, consequential damages, or special damages, including but not limited to loss of profit, loss of business, loss of business opportunities, loss of Customer goodwill or punitive or exemplary damages or the cost and expenses in providing or securing substitute revenues or substitute service providers, for any reason whatsoever even if Locker Suites has been advised of the possibility of the same, and without regard to the nature of the claim and the underlying theory or cause of action (whether in contract, tort, or otherwise).
(d) all Locker Suites’ charges incurred with respect to Shipments lost or damaged as a result of any such peril, including without limitation the costs of removing and disposing of such Shipments and the costs of any environmental cleanup and site remediation, shall constitute a charge on the remaining Shipments and against you.
(e) Subject to the limitations set forth herein, and without limiting the generality of the foregoing, in any event, the liability of Locker Suites shall be limited to the “Replacement Cost” of lost or damaged Shipments while the Shipments are in Locker Suites’ care, custody and control to the extent such loss or damage results from Locker Suites’ failure to perform the Services in accordance with the standard of care set forth above, but in no case shall the liability exceed one hundred dollars ($100.00) per Shipment irrespective of the contents of the Shipment or the nature of your claim. For purposes of these Terms, “Replacement Cost” shall mean the lower of your actual manufacturing or acquisition cost to replace the lost or damaged Shipments at their pre-loss condition, plus shipping and handling costs less salvage value, if any. When determining Locker Suites’ responsibility for lost Shipments, Locker Suites shall be entitled to an annual allowance (the “Allowance”) of 2.5% of the throughput of Shipments through any Locker Storage Facility in the previous twelve (12) months, which must be exceeded prior to Locker Suites being liable for any damage, loss, or shortages of your Shipments.
(f) Notwithstanding anything contained in these Terms to the contrary, you hereby waive and release for yourself and your insurers, any and all rights of recovery, claims, actions, or causes of action, against Locker Suites, its agents, contractors, officers, or employees for loss of or damage to Shipments that are within the Allowance or in excess of one hundred dollars ($100.00) per Shipment and you covenant that no insurer shall hold any right of subrogation against Locker Suites. Your failure to secure an appropriate clause in, or endorsement to, your respective insurance coverage, which waives the right of subrogation as provided for above, shall not in any manner affect the intended waiver and release hereunder and, if your insurance company seeks subrogation against Locker Suites because of the absence of such a waiver and release, then you shall defend, indemnify and hold Locker Suites harmless from and against such subrogation claim.
(g) Locker Suites shall not be responsible for delays in delivery by the transportation providers, nor for demurrage chargebacks or other time penalties arising from any delay which cannot be reasonably avoided by the Locker Suites in the normal course of its business.
15.1 You shall indemnify, defend, and hold harmless Locker Suites and any affiliated and controlling entities of Locker Suites, and the directors, employees, officers, agents, subcontractors, licensors and suppliers of all of them (“Locker Suites Indemnitees”) from and against all third party liabilities, claims, suits, demands, actions, fines, damages, losses, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) for injury to or death of any person or damage to or loss of real property and improvements thereon or tangible personal property to the extent caused by or resulting from your negligent acts or omissions or willful misconduct or those of your employees or agents; provided however, that this Section shall not apply to any loss or destruction of, or any damage to Shipments for which the Services are provided.
15.2 You shall further indemnify, defend, and hold harmless Locker Suites and the Locker Suites’ Indemnitees from and against any third party Claims including, but not limited to, third party Claims arising out of or in connection with: (a) the use or purchase of the Shipments; (b) lost, damaged or undelivered Shipments; (c) Shipments which are not timely delivered; (d) any and all receiving or shipping charges of any kind, including without limitation, demurrage or detention charges, unless such charges are the result of Locker Suites’ negligent acts or omissions; (e) any and all loss, injury, or damage to the Shipments shipped to Locker Suites which are refused and returned by Locker Suites to their originating point and all costs associated therewith; (f) any and all losses and other damages, including fines, penalties, chargebacks, or other charges which Locker Suites may incur (including reasonable attorneys’ fees and costs), resulting from your failure to provide timely and accurate information to Locker Suites; and (g) the performance or non-performance of the Services, except to the extent of Locker Suites’ negligent acts or omissions.
15.3 Locker Suites shall provide prompt written notice of any Claim, tender defense or settlement to you, and fully cooperate in the defense of the Claim, provided that the failure to give such notice shall not affect the Locker Suites or the Locker Suites Indemnitees’ right to indemnification hereunder unless the failure to give such notice materially and adversely affects the rights and remedies, or liability of you with respect to such Claim. Should you fail to honor a timely request for indemnification, then Locker Suites shall be entitled to all reasonable attorneys’ fees and costs incurred in the enforcement of the right of indemnification hereunder.
15.4 No compromise or settlement of a Claim may be effected by you without Locker Suites’ consent unless: (a) there is no finding or admission of any violation of law or any violation of the rights of any person by Locker Suites; (b) there is no effect on any other Claim that may be made by or against Locker Suites; (c) the sole relief provided is monetary damages that are paid in full by you; and (d) the compromise or settlement contains, as an unconditional term thereof, the giving by the claimant or the plaintiff of Locker Suites a release from all liability in respect of such Claim. Locker Suites shall have no liability with respect to any compromise or settlement effected without its consent.