THIS CONTAINER AGREEMENT (this “Agreement”) by and among Zippy Shell Incorporated (“Zippy Shell”), the Franchisee(s) (as described below), and “Customer”, whose name and addresses are set forth in the Addendum, is effective as of the date Customer accepts this Agreement by returning a signed copy of the Addendum to Zippy Shell, or the date the Container(s) are dropped off in accordance with this Agreement, whichever is earlier (the “Effective Date”), for the purpose of storing and/or transporting Container(s) on the terms and conditions set forth herein.
NOW THEREFORE, for and in consideration of the mutual promises and assumption of obligations described in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS - In addition to terms defined in this Agreement, the following terms shall have the following meanings:
“Addendum” means that Customer Order Confirmation and Agreement which is incorporated herein by reference and made a part of this Agreement. The Addendum sets forth the Origin, Destination, Arranged Transportation Price and Monthly Rental Fee. The taxes, Fees and TOTAL Price provided for in the Addendum are estimates, subject to change and may vary depending on the actual nature of the Services.
“Container(s)” means those Zippy Shell portable storage container(s) provided for in the Addendum, and includes any trailers or conveyances provided with the Container(s). Containers are available in the following sizes:
Large Size Container: 7.0’H x 6.7’W x 15.5’ L; “Maximum Load”: 5,000lbs Budget Size Container: 7.0’H x 6.7’W x 10.0’ L; “Maximum Load”: 3,500lbs
“Destination” means the Customer Designated Destination as provided for in the Addendum.
“Due Dates” means the Arranged Transportation Price Due Dates, the Monthly Rental Fee Due Dates and the Fee Due Dates.
“Fees” means the fees, costs, expenses and penalties provided for in the Fee.
“Facility” means any storage facility owned or operated by a Franchisee or agents operating under authority of Zippy Shell that is providing Services under this Agreement.
“Fee Schedule” means the Fee Schedule attached hereto which is incorporated herein by reference and made a part of this Agreement.
“Franchisee(s)” means such franchisees of Zippy Shell that are providing Services under this Agreement and may also include other agents operating under authority of Zippy Shell.
“Origin” means the Customer Designated Point of Origin as provided for in the Addendum.
“Local Storage” means the storage of the Container(s) at a Facility or Facilities selected by Zippy Shell in its sole discretion, including local transportation to and from the Origin and Destination locations and the Facility or Facilities selected by Zippy Shell. For purposes of Local Storage, the Origin and Destination locations shall be the same location, unless otherwise noted in the Addendum.
“Services” means Local Storage and Transportation.
“Transportation” means the transportation of the Container(s) between Facilities, and includes, if deemed necessary by Zippy Shell, in its sole discretion, temporary storage during transportation.
Terms used herein but not otherwise defined shall have the respective meanings provided for in the Addendum.
2. SERVICES; TERM.
i. LOCAL STORAGE. If provided for in the Addendum, Zippy Shell agrees to arrange for the Local Storage of the Container(s) at a Facility or Facilities selected by Zippy Shell in its sole discretion. Local Storage shall include local transportation to and from the Origin and Destination locations and the Facility or Facilities selected by Zippy Shell. Local Storage does not include transportation between Facilities. Zippy Shell shall attempt to store Container(s) at the Facility closest to the Origin. Each Franchisee providing Local Storage under this Agreement will provide the Local Storage, including local transportation between the Origin and Facility or the Destination and Facility. CUSTOMER ACKNOWLEDGES AND AGREES THAT ZIPPY SHELL DOES NOT PERFORM LOCAL STORAGE, INCLUDING LOCAL TRANSPORTATION, UNDER THIS AGREEMENT AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE CONTENTS OF A CONTAINER THAT OCCURS DURING SUCH LOCAL STORAGE.
TRANSPORTATION. If provided for in the Addendum, Zippy Shell, as Customer’s agent and on Customer’s behalf, agrees to arrange for the Transportation of the Container(s) between the Facilities with one or more motor carriers or brokers (as determined by Zippy Shell in its sole discretion) for the purpose of delivering the Container(s) from the Origin to the Destination. Zippy Shell is not a motor carrier, freight forwarder, or warehouseman. Zippy Shell shall have complete discretion in selecting the routing, storage locations, and all handling, collection and delivery details required to successfully accomplish the transportation and storage necessary hereunder. CUSTOMER ACKNOWLEDGES AND AGREES THAT ZIPPY SHELL DOES NOT PERFORM TRANSPORTATION UNDER
THIS AGREEMENT AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE CONTENTS OF A CONTAINER THAT OCCURS DURING TRANSPORTATION.
ii. SERVICE AREA. Origin and Destination addresses must be in a Zippy Shell ZipMove® service area (“Service Area”). Additional Fees may apply depending on the Service Area. Any changes to the Origin or Destination requested by Customer may be subject to additional charges or may not be possible if outside of the Service Area.
iii. TERM. The term of this Agreement commences as of the Effective Date and continues thereafter month-to-month until terminated.
i. RATES; DUE DATES. The rates and charges applicable to the Services hereunder are specified in the Addendum and the Fee Schedule attached hereto. See also xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxx/xxxxxxxxxxxxxxxx. All payments shall be paid in full without deduction, prior notice, demand, further invoice or an offset of any kind. All rates and Fees are subject to adjustment upon 30 days’ prior written notice to Customer. Zippy Shell may, at any time, cancel special pricing promotions for Services. Customer will pay any applicable sales and use taxes imposed on any transaction hereunder.
(a) The Monthly Rental Fee is as specified in the Addendum. Customer shall pay the Monthly Rental Fee in advance of delivery of the Container(s) (the “First Rental Payment”), and pay the subsequent rent on the monthly anniversary of the First Rental Payment, or the last day of the month if the corresponding date does not exist in the subsequent month (the “Monthly Rental Fee Due Dates”). Customer shall be responsible for the Monthly Rental Fee for each Container from the time the Container is initially delivered to Customer at the Origin (unless Customer rejects a Container as provided below) until the Container is returned to the Destination in Return Condition or, if not returned in Return Condition, until Zippy Shell rehabilitates the Container to Return Condition.
(b) The Arranged Transportation Price is as specified in the Addendum, and is subject to change based upon changes in shipment information, including Origin, Destination, number of Containers, and dates. Customer shall pay fifty percent (50%) of the Arranged Transportation Price prior to the initiation of the Transportation, and pay the balance upon delivery of the Container(s) to the Destination (plus any applicable Fees) (the “Arranged Transportation Price Due Dates”) or on the 45th day that your container remains in storage with Zippy Shell, whichever day comes first.
(c) The TOTAL Price is as specified in the Addendum and does not include any taxes, Fees or special services except as indicated in the Special Instructions to the Addendum. The TOTAL Price is provided for planning purposes only, is subject to change as set forth herein and may vary depending on the actual nature of the Services, taxes and Fees. Fees for non-covered motor carrier services may be provided in the rules, pricing authorities, schedules, tariffs, and similar documents of the motor carrier performing the services, and Customer shall be responsible for any additional fees. Customer will be charged for any additional fees incurred (“Fee Due Dates”).
ii. CREDIT CARD; DUE DATES. Customer may make payment by credit card only. Customer will not be entitled to a refund of any prepaid amounts under any circumstances. Customer hereby authorizes Zippy Shell to charge Customer’s credit card (using Customer’s signature on the Addendum which shall be kept on file by Zippy Shell as authorization for each charge) for the Arranged Transportation Price, the Monthly Rental Fee and the other additional Fees incurred by Customer under this Agreement on the applicable Due Date during the term of this Agreement. Zippy Shell shall provide Customer with a receipt for each such charge. Zippy Shell shall have no liability to Customer for charges applied to Customer’s credit card so long as such charges are applied in good faith. If the Customer fails to pay the Arranged Transportation Price, the Monthly Rental Fee or any other Fees incurred by Customer under this Agreement by the respective Due Date, or Customer’s credit card is refused or declined for any reason, Customer shall be charged, in addition to any other amounts due and any fees incurred by Zippy Shell as a result of the refused or declined credit card which shall be paid by Customer, a Late Fee.
4. CONTAINER LEASE.
i. LEASE. Customer agrees to lease the Container(s) from Zippy Shell, and Zippy Shell agrees to lease the Container(s) to the Customer, pursuant to the provisions of this Agreement. Zippy Shell shall, to the extent provided for in the Addendum, arrange for the Local Storage and Transportation of each Container leased hereunder. The lease of each Container will commence upon initial delivery of the Container at the Origin (unless Customer rejects a Container as provided below) and continue until the Container is returned to the Destination in Return Condition or, if not returned in Return Condition, until Zippy Shell rehabilitates the Container to Return Condition.
ii. USE. Except as otherwise provided herein, Customer shall be entitled to exclusive possession and use of each Container from the date of Container Acceptance until the earliest of the date the Container is picked-up at the Destination or the date Zippy Shell terminates this Agreement. Customer shall not move a Container or arrange for the movement of a Container. Customer shall not alter or xxxx a Container in any way. Customer is responsible for supplying and applying a lock to the Container. Customer acknowledges and agrees that Containers are not suitable for the storage of objects which have extraordinary or sentimental value to Customer or others, including, but not limited to, heirlooms or precious, invaluable or irreplaceable property. Customer acknowledges and agrees not to store the following items in a Container: money, bank notes, scrip, securities, accounts, deeds and evidences of debt;
letters of credit and notes other than bank notes; records; documents; writings; works of art; photographs; bullion, gold, goldware, silver, silverware, platinum, coins, precious metals and pewter; stored value cards and smart cards; manuscripts, personal records, and stamps; jewelry, watches, furs, precious and semiprecious stones; firearms; aircraft, hovercraft, motor vehicles and engines; trailers; property not owned by Customer or for which Customer is not legally liable; computer software or programs, media or computer data contained on hard disks or drives.
iii. DELIVERY AND PICK-UP. Upon initial delivery of a Container, Customer has 24 hours days to inspect and accept the Container. Customer will be deemed to have accepted a Container (“Container Acceptance”) unless Customer notifies Zippy Shell in writing that Customer is rejecting a Container. Upon use of a Container, Customer acknowledges and agrees that Customer has had an opportunity to examine the Container and that such Container is satisfactory for all purposes for which Customer shall use it. If Customer rejects a Container, within the acceptance period, the Monthly Rental Fee for the container will be deemed to have not commenced or accrued. If Customer rejects a Container for its own convenience, Customer shall be liable for certain Fees. Customer shall return each Container by notifying Zippy Shell that the Container(s) are ready for pick-up at the Destination in Return Condition. “Return Condition” shall mean empty, clean, and in the same condition at the time of initial delivery at the Origin, less normal wear and tear, as determined by Zippy Shell in its sole discretion. Customer shall incur a Cleaning Fee in the event a Container is not returned in Return Condition. Customer assumes full risk for all damage resulting from the delivery, placement and retrieval of the Container(s) and relieves Zippy Shell and Franchisees from any responsibility for such damage.
iv. NO ENCUMBRANCES. Customer shall not encumber, grant a security interest in, transfer, subcontract, sublease, or assign any Container or its interests and obligations pursuant to this Agreement (any a “Restricted Transfer”), nor shall a Restricted Transfer that occurs by operation of law or otherwise of Customer’s interest in the Containers or this Agreement be effective against Zippy Shell. No Restricted Transfer of Customer’s interest in the Container(s) or this Agreement shall relieve Customer from any of its obligations to Zippy Shell under this Agreement.
v. LOSS AND DESTRUCTION. Customer accepts all responsibility for damage to or theft of the Container that occurs from the time a Container is delivered to Customer until it is picked-up, regardless of Customer’s fault or negligence, the fault or negligence of any other person or acts of God (e.g., fire, rain, wind, etc.). Customer shall notify Zippy Shell in writing of any loss of, destruction of, or damage to a Container within 5 hours of such event. Customer’s obligation to pay the Monthly Rental Fee on the lost or completely destroyed container (as determined by Zippy Shell in its sole discretion) shall cease as of the date of the notice of loss or destruction. Zippy Shell may deem a damaged Container as destroyed if, in its sole discretion, it determines that the repair cost exceeds the replacement value of the Container. Customer shall be liable for a $2,500 replacement costof a Container that is lost or destroyed or, if the Container is damaged or not returned in Return Condition, the cost of repairing the damage and restoring the Container to Return Condition unless the loss, destruction, or damage arises from delivery or pick-up of the Container by a Franchisee provided such loss, destruction, or damage was not caused by an inherent vice of the Container’s contents or Customer’s acts or omissions. Customer hereby acknowledges and agrees Zippy Shell does not represent or guarantee the safety or security of a Container or of the contents stored therein and this Agreement does not create any contractual duty for Zippy Shell to create or maintain such safety or security.
vi. VALUATION LIMIT. Customer represents and warrants that the value of the contents in each Container does not exceed the greater of $5,000 or the declared value listed in the Insurance Addendum (the “Valuation Limit”). If the value of the contents in each container is in excess of the $5,000 value, proof of insurance must be provided or additional insurance must be purchased from Zippy Shell.
5. LOCAL STORAGE OF LEASED CONTAINER(S).
i. SCHEDULING. Customer can schedule Container delivery and pick-up between 9 am to 7 pm daily with the exception of federal holidays. Customer shall coordinate all scheduling through Zippy Shell. Customer shall provide at least 7 days’ advance notice of a proposed delivery date, and Zippy Shell will make reasonable efforts to accommodate such date. Customer acknowledges and understands that Zippy Shell makes no assurances or guarantees regarding the time of pick-up or delivery of any Container. Additional Origin Fees and Destination Fees may apply for Origin and Destination locations outside the Service Area.
ii. ACCESS FOR DELIVERY AND PICK-UP. Customer hereby authorizes Zippy Shell, Franchisees and their agents to enter upon the real property at the Origin, Destination, and any other Container location (and into the Container) whenever Zippy Shell or a Franchisee deems it necessary to perform or enforce any rights of Zippy Shell or a Franchisee under this Agreement or any local, state or federal law. Customer represents and warrants that Customer has (1) an ownership or leasehold interest in such real property and/or that Customer is an authorized agent of the owner(s) or leaseholder(s) of such real property; and (2) has the right and authority to permit Zippy Shell’s and the Franchisees’ unrestricted entrance upon such real property to perform their obligations under this Agreement.
iii. PICK-UP AND DELIVERY. Customer shall provide a safe, level, and legal space for each Container at the Origin and Destination location which is at least 20 feet long by 10 feet wide. In the event that a Franchisee is unable to deliver the Container(s) to the Origin or Destination because of the conditions at the location, including, but not limited to, that the Franchisee is unable to access the location or the location is deemed unsuitable for the Container(s), the delivery shall be aborted and Customer shall incur an Aborted Drop-Off Fee. In the event that the Origin or Destination location is not suitable for pick-up of a Container because of the conditions at the Origin or
Destination location (including, but not limited to, that Franchisee is unable to access the location), or if Franchisee is unable to tow the Container(s) due to overloading, uneven packing, or any other safety reason, the pick-up shall be aborted and Customer shall incur an Aborted Pick-up Fee. Customer does not need to be present at time of pick-up or delivery and hereby authorizes unattended delivery and pick-up. At the time of delivery, the Container(s) will be placed at the Customer-designated location and a wheel lock will be applied. Customer will enter the Container by removing the lock box on the rear of the Container.
iv. PICK-UP DEADLINE. Within 3 days after a Container is initially delivered at the Origin location, Customer shall tender the Container for pick-up and notify Zippy Shell that the Container is ready for pick-up. If the Container is not ready for pick-up at the end of the 3-day period, an Extended Container Fee shall apply each day until the Container is ready for pick-up.
v. STORAGE. A Franchisee will store the Container(s) at a Facility, as arranged by Zippy Shell. Zippy Shell may relocate a Container to any Facility or other storage location at its expense and in its sole discretion. If Customer does not have an overdue unpaid balance with Zippy Shell and provides 1 days’ advance written notice to Zippy Shell, Customer may access a Container while stored in a Facility from 9:00 am to 5:00 pm local time at the Facility, Monday through Friday (excluding federal holidays). Customer must present a photo ID when accessing Container(s) at a Facility and will have one (1) hour of access to the contents of the Container(s).
vi. RE-DELIVERY. For each 6-month period that a Container is in storage at a Facility, Customer shall receive one free delivery and pick-up of a Container to and from the Origin location for the exclusive purpose of accessing items in the Container. If a Customer requests a Container delivery and pick-up more than one time in any 6-month period, Customer may incur a Re-Delivery Access Fee. Re-delivery and pick-up shall be subject to the provisions in Section
5.1 through Section 5.4.
vii. LIABILITY DURING STORAGE. Each Franchisee that stores a Container under this Agreement shall be responsible for damages for loss of, and damage to, the contents of the Container (as measured by the replacement value of the contents) occurring during storage and caused by the Franchisee’s failure to exercise care with regards to the goods that a reasonably careful person would exercise under similar circumstances, subject to the following limitations of liability:
(a) No Franchisee will be liable for loss or damages to such goods during storage that could not have been avoided by the exercise of the care specified above in this Section.
(b) FRANCHISEE’S LIABILITY FOR LOSS OR DAMAGE DURING STORAGE SHALL BE LIMITED TO THE GREATER OF THE VALUATION LIMIT OR THE MINIMUM LIABILITY PERMITTED BY LAW.
(c) If Customer refuses delivery of a Container, the delivering Franchisee’s liability shall be that specified in this Section until delivery can be made. Additional Fees may apply as provided in the Fee Schedule.
viii. LIABILITY DURING LOCAL TRANSPORTATION. Each Franchisee that transports a Container as a motor carrier shall be liable for loss of, and damage to, the contents of the Container (as measured by the replacement value of the contents) occurring during transportation, except to the extent caused by an act of God, the public enemy, public authority, an act of Customer, or the inherent vice of the Container’s contents. THE FRANCHISEE’S LIABILITY FOR LOSS AND DAMAGE UNDER THIS SECTION SHALL BE LIMITED TO THE VALUATION LIMIT . Customer acknowledges and agrees that the transportation that a Franchisee performs does not include storage at a Facility. To the extent a Franchisee merely arranges transportation, such service and the Franchisee’s liability are set forth in Section 6.
6. INTER-FACILITY TRANSPORTATION OF LEASED CONTAINER(S). Zippy Shell shall arrange all transportation of the Container(s) between Facilities with one or more motor carriers who shall transport the Container(s), or through brokers, who shall arrange transportation with one or more motor carriers. To the extent the Franchisee that serves the Origin or Destination is not a motor carrier, either Zippy Shell or the Franchisee will arrange the transportation of the Containers between the Facility and the Origin or Destination, as applicable, for the purpose of pick-up, and delivery. Pick-up and delivery shall be subject to the provisions in Section 5.1 through Section 5.4. Customer understands that Zippy Shell neither owns nor operates the vehicles that will transport the Container(s) between Facilities or otherwise. Zippy Shell and its Franchisees have the right to arrange Container transportation on any terms whatsoever provided that such terms do not conflict with this Agreement. Zippy Shell and its Franchisees shall not be liable for loss of or damage to the contents of a Container occurring during or because of the transportation that they arrange under this Agreement. UNLESS OTHERWISE PROVIDED IN THE ADDENDUM, CUSTOMER AUTHORIZES ZIPPY SHELL AND THE FRANCHISEES TO ARRANGE TRANSPORTATION OF ITS PROPERTY AT LIMITED LIABILITY RATES AND WAIVE ANY CARRIER’S, BROKER’S, OR WAREHOUSE’S LIABILITY FOR LOSS OR DAMAGE TO A CONTAINER OR ITS CONTENTS.
7. LOADING AND UNLOADING. Customer shall be solely responsible for properly loading, blocking, and bracing the contents of each Container for transportation and storage, and unloading each Container. Customer shall not load a Container beyond its Maximum Load. Zippy Shell and Franchisees will not perform nor arrange for any loading or unloading services.
8. DELAY. Zippy Shell and its Franchisees shall not be liable for delays in the performance of the Services or transportation of a Container or its contents. The Customer Designated Pick up Date and Customer Designated Delivery Date are for planning purposes only.
9. PROHIBITED ITEMS. Customer shall not place and warrants that no Container shall contain the following items: hazardous materials (as defined at 49 U.S.C. § 5102), contraband, illegal or commercial items, aerosols, ammunition, animals or people (alive or deceased), batteries, charcoal, chemistry sets, cleaning agents, fertilizer, fireworks, food in glass jars, matches, motor oil, nail polish, nail polish remover, paint, perishable goods, pesticides, plants, poisons, pool chemicals, propane tanks, sterno, weed killers, and weapons. Customer shall not store any motorized vehicle such as an automobile or motorcycle in a Container. Should Customer store any motorized vehicle in a Container, Customer acknowledges and agrees that neither Zippy Shell nor a Franchisee will be held accountable or liable for any damage to the vehicle. The use of Container(s) for the conduct of business or for human or animal habitation or transportation is prohibited. If a Container contains a prohibited material as identified above (“Prohibited Item”), Zippy Shell, a Franchisee, and any carrier transporting the Container under this Agreement may enter the Container and remove the Prohibited Item, dispose or sell the Prohibited Item at Customer’s expense, refuse to transport the Container, terminate transportation and storage of the Container before delivery to the Destination (and Customer shall be responsible for subsequent transportation and Container security), return the Container to the Origin as further provided for in this Agreement, or demand that Customer immediately remove the Prohibited Item. Customer shall be responsible for paying all fees, costs and expenses incurred by Zippy Shell, the Franchisees or any carrier transporting a Container as a result of the Prohibited Items. Additional Fees may apply.
10. RIGHT TO ENTER, INSPECT AND REPAIR CONTAINER. Customer grants Zippy Shell, Franchisees’, their respective agents and the representatives of any governmental authority, including police and fire officials, access to Container(s) as required by applicable laws, and grants them the right, but not the obligation, to enter Container(s) for the purpose of examining Container(s) or the contents thereof or for the purpose of making repairs or alterations and taking such other action as may be necessary or appropriate to preserve the Container(s), or to comply with applicable laws.
11. REFUSAL OF SERVICE. Zippy Shell reserves the right in its sole discretion to refuse to provide services for, without limitation (i) any shipment that by reason of the dangerous or other character of its contents may, in the sole discretion of Zippy Shell, damage other items or Container(s), (ii) any shipment that is improperly packed, or that contains Prohibited Items, (iii) any shipment consigned to a person or entity that is restricted or debarred, (iv) any shipment for which Customer fails to pay when due any amounts owing, or (v) any shipment for which Zippy Shell deems it unsafe to deliver or economically or operationally impractical to provide the Services.
12. TERMINATION. Zippy Shell may terminate this Agreement for any or no reason effective immediately upon written notice to Customer. Customer may terminate this Agreement at any time after giving written notice to Zippy Shell and such termination shall be effective as of the last day of the applicable rental month. Notwithstanding the foregoing, Customer shall only be entitled to terminate this Agreement provided there are no outstanding amounts owing to Zippy Shell and Customer is not in default under this Agreement. This Agreement shall automatically terminate upon completion of the Services provided that Customer shall remain responsible for any and all amounts incurred under this Agreement.
13. DEFAULT. The following events shall be deemed to be events of default (each an “Event of Default”) by Customer under this Agreement: (a) Customer fails to pay any amount on the respective Due Date; (b) Customer fails to comply with any term, provision or covenant of this Agreement, other than the payment of any amounts due under this Agreement, and does not cure such failure within ten (10) days after written notice thereof to Customer; (c) Customer abandons a Container, or (d) Zippy Shell refuses delivery as provided in Section 11 above.
14. REMEDIES UPON EVENT OF DEFAULT. ALL EXPENSES INCURRED BY ZIPPY SHELL AND FRANCHISEES THAT ARE CONNECTED WITH THE COLLECTION OF ANY AND ALL OUTSTANDING BALANCES OWED BY CUSTOMER WILL BE REIMBURSED BY CUSTOMER (INCLUDING REASONABLE ATTORNEYS’ FEES AND OTHER EXPENSES). Upon an Event of Default, Zippy Shell and Franchisees may immediately deny Customer access to the Container to the extent permitted by applicable law and Zippy Shell may immediately terminate this Agreement upon notice to Customer. Upon termination for any reason, Customer shall immediately surrender the Container to Zippy Shell or a Franchisee. If Customer fails to do so, Zippy Shell may, without prejudice to any other remedy, deny Customer access to the Container and Zippy Shell and Franchisees may enter upon Customer’s premises to take possession of the Container(s). Zippy Shell and Franchisees shall also be permitted to remove Customer, without being liable for prosecution or any claim of damages therefore. Customer hereby agrees to reimburse Zippy Shell and Franchisees the amount of all loss and damage which Zippy Shell or Franchisees may suffer as a result thereof, whether through inability to re-lease the Container on satisfactory terms or otherwise. These remedies are cumulative and any or all thereof may be exercised instead of or in addition to each other or any other remedies legally available to Zippy Shell and the Franchisees.
15. CONDITION OF CONTAINER UPON TERMINATION; DAMAGE WAIVER. Upon termination of this Agreement for any reason, Customer shall remove all of the contents from the Container(s) (unless such contents are subject to lien rights as provided herein) and immediately deliver possession of the Container to Zippy Shell or Franchisees in Return Condition. Customer shall incur a Cleaning Fee in the event a Container is not returned in Return Condition. Customer agrees that any contents left in the Container shall be deemed abandoned by Customer, and Customer authorizes Zippy Shell to remove such contents from the Container and dispose of or sell them at Customer’s expense.
16. FORCE MAJEURE. To the extent that any party’s performances hereunder, except payment obligations, is precluded or delayed by a Force Majeure Event, such performance shall be excused for the time necessitated by such Force Majeure Event. Further, neither Zippy Shell no any Franchisee shall bear liability for any loss or damage resulting from a Force Majeure Event. “FORCE MAJEURE” means any event beyond a party’s control, including, without limitation, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, epidemics, governmental orders relating to the foregoing,
insurrections, riots, sabotage, earthquakes, floods, acts of God, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions or failure in electrical power, heat, light, air conditioning or communications equipment.
17. NO WARRANTY. NEITHER ZIPPY SHELL NOR ANY FRANCHISEES MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, AND EACH OF ZIPPY SHELL AND THE FRANCHISEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
18. MILITARY STATUS
In the event that Customer Customer’s spouse is in a branch of the United States Military, the name and address of Customer’s or Customer’s spouse military is set forth in the Addendum provided. If during the term of this Agreement the Customer or the
Customer’s spouse is on active military duty the Customer agrees to notify Zippy Shell of this status change and complete and return an executed Rental Agreement Addendum Regarding U.S. Service members Civil Relief Act within 15 business days of such status change.
19. LIMITATION OF LIABILITY. NEITHER ZIPPY SHELL NOR THE FRANCHISEES, NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO ADEQUATELY INSURE THE CONTENTS IN THE CONTAINER(S). SUBJECT TO SECTION 2, ZIPPY SHELL SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY CUSTOMER RESULTING FROM THE SERVICES TO THE EXTENT THEY EXCEED THE VALUATION LIMIT AND DO NOT ARISE FROM ZIPPY SHELL’S NEGLIGENCE. SUBJECT TO LIMITATIONS OF LIABILITY IN SECTIONS 5 AND 6, A FRANCHISEE SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY CUSTOMER RESULTING FROM THE SERVICES TO THE EXTENT THEY EXCEED THE VALUATION LIMIT AND DO NOT ARISE FROM THE FRANCHISEE’S NEGLIGENCE. Customer may purchase Property Protection from Zippy Shell under a Property Protection Agreement for an additional cost ATTACHED AS AN ADDENDUM TO THIS CONTRACT AND REFERENCED in the Content Protection Document.
20. INDEMNIFICATION. Customer shall indemnify and hold Zippy Shell and each of its affiliates and Franchisees, and each of their respective directors, officers, employees, shareholders and agents (the “Indemnitees”) completely and totally harmless from and against all claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses (including, without limitation, attorneys’ fees and expenses) alleged or ultimately assessed against Indemnitees of any kind arising from, as a result of, or in connection with Customer’s use of Container(s) or Facilities, Customer’s violation of law, Customer’s breach of this Agreement or Customer’s (or its agents’) negligence or intentional misconduct.
21. GENERAL LIEN. CUSTOMER HEREBY GRANTS TO ZIPPY SHELL A PRIORITY CONTRACTUAL ZIPPY SHELL’S LIEN UPON ALL PROPERTY, NOW OR AT ANY TIME HEREAFTER STORED IN THE CONTAINERS(S) TO SECURE THE PAYMENT OF ALL AMOUNTS PAYABLE UNDER THIS AGREEMENT. IN THE EVENT CUSTOMER IS IN BREACH OF THIS AGREEMENT, ZIPPY SHELL MAY EXERCISE THE ENFORCEMENT OF ITS LIEN AGAINST ALL PROPERTY OF CUSTOMER STORED IN THE CONTAINER(S) IN ACCORDANCE WITH ALL APPLICABLE LAWS. WHEN ZIPPY SHELL COMMENCES THE ENFORCEMENT OF ITS LIEN, IT MAY REMOVE ANY LOCK ON A CONTAINER TO ASSESS THE PROPERTY THEREIN AND SELL OR OTHERWISE DISPOSE OF THE PROPERTY. ZIPPY SHELL SHALL ATTEMPT TO RETURN TO CUSTOMER THE PROCEEDS, IF ANY, FROM THE SALE OF THE PROPERTY IN EXCESS OF AMOUNTS OWED TO ZIPPY SHELL AND THE COST ZIPPY SHELL INCURS IN ENFORCING ITS LIEN. AS ZIPPY SHELL HAS NO KNOWLEDGE OF THE CONTENTS STORED IN THE CONTAINER(S), CUSTOMER HEREBY WAIVES ANY OBLIGATION THAT ZIPPY SHELL PROVIDE A DESCRIPTION OF THE PERSONAL PROPERTY IN CUSTOMER’S CONTAINER(S), TO THE EXTENT REQUIRED BY APPLICABLE LIEN LAWS.
22. ADDITIONAL STATE LIENS:
IN THE EVENT CUSTOMER IS IN DEFAULT OF THIS RENTAL AGREEMENT (AS DEFINED IN CLAUSE Error! Reference source not found.), ZIPPY SHELL MAY EXERCISE THE ENFORCEMENT OF ITS LIEN INCLUDING DENIAL OF ACCESS TO THE CARTRIDGE(S) BY THE CUSTOMER, AGAINST ALL PROPERTY OF CUSTOMER STORED IN THE CARTRIDGE(S) IN ACCORDANCE WITH ALL APPLICABLE LAWS INCLUDING, WHEN ZIPPY SHELL COMMENCES THE ENFORCEMENT OF ITS LIEN, PROPERTY MAY BE SOLD OR OTHERWISE DISPOSED TO SATISFY THE APPLICABLE LIEN LAW, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING STATE SPECIFIC LAWS AND CODES:
ALABAMA: ALABAMA CODE SECTIONS 8-15-31 & -32, PROCEEDS, IF ANY, FROM THE SALE OF THE PROPERTY IN EXCESS OF AMOUNTS OWED TO ZIPPY SHELL, WILL BE HELD BY ZIPPY SHELL FOR THE CUSTOMER TO CLAIM FOR A PERIOD OF THREE (3) YEARS, AFTER WHICH, IT SHALL BECOME THE PROPERTY OF ZIPPY SHELL. CALIFORNIA: CALIFORNIA BUSINESS. & PROFESSIONAL CODE SECS. 21702 ET. STORED PROPERTY WILL BE SUBJECT TO A CLAIM OF LIEN AND MAY BE SOLD TO SATISFY THE LIEN IF THE RENT OR OTHER CHARGES DUE REMAIN UNPAID FOR FOURTEEN (14) CONSECUTIVE DAYS. IN ADDITION TO ANY ZIPPY SHELL’S LIEN. IN THE EVENT CUSTOMER IS IN DEFAULT OF THIS RENTAL AGREEMENT, ZIPPY SHELL MAY ENFORCE DENIAL OF ACCESS TO THE CONTAINER(S), ALL PROPERTY STORED IN THE CONTAINER(S) UNDER THIS AGREEMENT AND SEQ MAY BE SOLD OR OTHERWISE DISPOSED TO SATISFY THE APPLICABLE LIEN LAW. COLORADO: COLORADO PROPERTY CODE SECTION 44A-40 THROUGH 44A -46. CONNECTICUT: OPERATOR MAY SELL OCCUPANTS PROPERTY IN ACCORDANCE WITH SECTION 42-159 OF THE CONNECTICUT STATUTES IF OCCUPANT
FAILS TO PAY RENT WHEN DUE. FLORIDA: OPERATOR MAY SELL OCCUPANT’S PROPERTY IN ACCORDANCE WITH SECTION 83-806 OF THE FLORIDA STATUTES IF THE OCCUPANT FAILS TO PAY RENT AND OTHER CHARGES WHEN DUE. IDAHO: IDAHO PROPERTY CODE TITLE 55 SECTION 55-2303 THROUGH 55-2306. ILLINOIS: SECTION 770 ILCS 95 OF THE COMMERCIAL LAW ARTICLE OF THE ANNOTATED CODE OF ILLINOIS (“SELF STORAGE ACT”). MARYLAND: SECTION 18-503 OF THE COMMERCIAL LAW ARTICLE OF THE ANNOTATED CODE OF
MARYLAND (“SELF STORAGE ACT”) SHALL APPLY TO THE TERMS OF THIS AGREEMENT, AND ZIPPY SHELL SHALL BE AFFORDED THE LIEN AND ENFORCEMENT RIGHTS PROVIDED THEREUNDER. MICHIGAN: MICHIGAN PROPERTY CODE ANNOTATED IN SECTION 13. IN THE EVENT THE CUSTOMER DEFAULTS ALL EXPENSES INCURRED BY LESSOR THAT ARE CONNECTED WITH THE COLLECTION OF ANY AND ALL OUTSTANDING
BALANCES OWED BY TENANT WILL BE ASSESSED TO THE TENANT (INCLUDING REASONABLE ATTORNEY’S FEES AND OTHER EXPENSES).PROPERTY MAY BE SOLD OR OTHERWISE DISPOSED OF AT THE FACILITY OR NEAREST SUITABLE LOCATION TO SATISFY THE APPLICABLE LIEN LAW. PROCEEDS, IF ANY, FROM THE SALE OF THE PROPERTY IN EXCESS OF AMOUNTS OWED TO LESSOR, WILL BE PAID TO THE STATE TREASURER IF UNCLAIMED BY THE OCCUPANT WITHIN ONE YEAR AFTER SALE OF THE PROPERTY. NEW JERSEY: SECTION 2 OF P.L. 1983, C.136 “SELF-SERVICE STORAGE ACT” . NEW YORK: NEW YORK PROPERTY CODE SECTION 182 ET SEQ. NORTH CAROLINA: NORTH CAROLINA PROPERTY CODE SECTION 44A-40 THROUGH 44A -46.
PENNSYLVANIA: PENNSYLVANIA STATUTES 73 P.S. SECTION 1901 ET SEQ. FOR ANY APPLICABLE COSTS (INCLUDING AUCTIONEER COMMISSIONS, ATTORNEY FEES, ADVERTISING COSTS, ETC.) THAT ARE NOT SATISFIED, THE TENANT WILL REMAIN FULLY LIABLE FOR. TENNESSEE: TENNESSEE CODE ANNOTATED TITLE 66, CHAPTER 31. TEXAS: TEXAS PROPERTY CODE SECTION 59 ET SEQ., VIRGINIA: VIRGINIA CODE ANNOTATED CODE SECTION 8.2A-523 ET SEQ. IN THE EVENT THE CUSTOMER DEFAULTS ZIPPY SHELL HAS THE RIGHT TO TAKE POSSESSION OF ALL THE CUSTOMER’S PROPERTY IN THE CONTAINER UNTIL THE CUSTOMER IS CURRENT. UPON NOTICE TO THE CUSTOMER, ZIPPY SHELL RETAINS THE RIGHT TO DISPOSE OF SAID
PROPERTY AND PROCEEDS WILL BE APPLIED TOWARD SATISFYING CUSTOMER’S OUTSTANDING BALANCE. REMAINING PROCEEDS WILL BE RETURNED TO CUSTOMER. WASHINGTON, D.C.: SECTION 2- 8 of “SELF-
SERVICE STORAGE ACT of 2003” IF THE OPERATOR HAS A LIEN ON TENANTS STORED PROPERTY FOR RENT AND OTHER CHARGES, THE OPERATOR MAY SELL TENANTS PROPERTY FOR RENT AND OTHER CHARGES IF THE OCCUPANT IS IN DEFAULT FOR MORE THAN 60 DAYS. WISCONSIN: SECTION 704.90 OF THE WISCONSIN STATUTES
23. COMPLIANCE WITH LAW. Customer shall not violate any law relating to the Services, its obligations under this Agreement, or this Agreement. Further, it is the responsibility of Customer to comply with all laws, rules, regulations, orders, requirements and decrees of any federal, state or local government, government officials and/or agencies. Neither Zippy Shell nor Franchisee shall not be responsible for action taken or fines or penalties assess against the contents in the Containers due to Customer’s failure to comply with any such laws, rules, regulations, orders, requirements and decrees. If an authority requires that a Container be removed from Customer’s premises, Zippy Shell or a Franchisee will attempt to notify Customer of such requirement; provided, however, Customer gives Zippy Shell and Franchisee full authority to comply with such requirements, and releases Zippy Shell and Franchisees of any liability for any resulting damage to Customer’s premises or property. Additionally, if Customer is renting or leasing the premises where a Container is located, and the landlord of the premises requests that a Container be removed or relocated, Customer gives Zippy Shell and Franchisees full authority to comply with the landlord’s request, and releases Zippy Shell and Franchisees of any liability for any resulting damage to Customer’s property or the premises and shall indemnify and hold harmless Zippy Shell and Franchisees from any claims by the landlord for damage to the premises. Customer further understands that should a Container be removed by any person other than Zippy Shell or a Franchisee, Customer assumes all fees and costs, including, but not limited to, attorneys’ fees, and any removal or storage fees and further agrees to pay Zippy Shell for any damages that are associated with such removal and storage.
24. SHIPPING DOCUMENTS. Upon request by Customer, Zippy Shell shall provide copies of the bills of lading or receipts that the carrier providing transportation issues at the Origin and Destination with respect to the Transportation provided for in this Agreement.
25. NOTICE OF BROKER AUTHORITY. Zippy Shell provides the Transportation Service and arranges transportation related to Local Storage under its Broker authority, issued by the Federal Motor Carrier Safety Administration under Docket MC817621.
26. RELEASE OF CUSTOMER INFORMATION. Customer hereby authorizes Zippy Shell to release any information regarding Customer, the Local Storage, and the Transportation as may be required by law or requested by governmental authorities or agencies, law enforcement agencies or courts including, but not limited to, officials from local and state code enforcement agencies.
27. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Delaware in each case located in the city of Wilmington and county of New Castle County and each party hereto irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party hereto acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and
difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
28. NOTICES. Except as otherwise expressly provided in this Agreement, any written notices or demands required or permitted to be given under the terms of this Agreement may be personally served or may be served by first class mail or certified mail, deposited in the United States mail with postage thereon fully prepaid and addressed to the party to be served at the address of such party provided for in this Agreement. Service of any such notice or demand shall be deemed complete on the date delivered, if personally delivered, or if mailed, shall be deemed delivered after deposit in the United States mail, with postage thereon fully prepaid and sent to the last known address of the intended recipient as provided for in this Agreement. In addition, Zippy Shell may communicate with Customer and provide Customer with any written notices required by applicable law or authorized under this Agreement via electronic mail if Customer has provided Zippy Shell with an electronic address. Customer shall immediately notify Zippy Shell of any change of address. Notices to Zippy Shell shall be sent to 0000 00xx Xxxxxx XX, Xxxxxxxxxx X.X. 00000. Notices to Franchisees shall be delivered to the applicable address available at xxx.xxxxxxxxxx.xxx
29. SUCCESSORS AND ASSIGNS. Customer shall not assign or sublease the Container(s) or any portion thereof without in each instance the prior written consent of Zippy Shell. Zippy Shell may assign or transfer this Agreement without the consent of Customer and, after such assignment or transfer, Zippy Shell shall be released from all obligations under this Agreement occurring after such assignment or transfer. All of the provisions of this Agreement shall apply to, bind and be obligatory upon the heirs, executors, administrators, representatives, successors and assigns of the parties hereto.
30. ENTIRE AGREEMENT. This Agreement and the documents incorporated herein constitute the sole and entire agreement of the parties hereto with respect to the Services, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such Services. In the event of any inconsistency between the statements in the body of this Agreement and those in documents incorporated herein, the statements in the body of this Agreement will control. There are no representations, warranties, or agreements by or between the parties, which are not fully set forth herein, and no representative of Zippy Shell or the Franchisees is authorized to make any representations, warranties or agreements other than as expressly set forth herein. This Agreement may only be amended by a writing signed by both parties.
31. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
32. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
33. WAIVER. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
34. GENERAL. A signed copy of the Addendum delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Addendum. Zippy Shell is an independent contractor. The title of, and headings in, this Agreement are for reference only and shall not affect the interpretation of this Agreement. The sections on indemnification, limitation of liability, governing law, jurisdiction, waiver of jury trial, entire agreement, severability and such other sections intended to survive termination shall survive termination of this Agreement.
35. TERMS ARE SUBJECT TO CHANGE. Customer understands that the terms and conditions under which the Services are provided are subject to change. In the event the terms and conditions are modified, the revised version of the Container Agreement shall be posted to Zippy Shell’s website at xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxx/xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Unless Customer and Zippy Shell otherwise agree in writing, by its signature to the Addendum and by using the Services after the Effective Date, Customer hereby consents to such modifications and agrees that the modified terms and conditions shall apply to all services performed and shipments handled from and after the Effective Date. Customer is advised to take note of the most current Container Agreement posted on Zippy Shell’s website and which is also available to Customer upon request.
AGREEMENT TO INSURE
Name of Customer
Mailing Address of Customer agrees to include the above named customer as an insured on one shipment or lot in storage as designated below, under and subject to the terms and conditions of policy number issued to
by The Hanover Insurance Company, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 covering:
a. One shipment of household goods, personal effects and other personal property used or to be used in a dwelling when a part of the equipment or supply of such dwelling as defined in the Named Insureds tariffs while traveling under xxxx of lading issued by the Named Insured;
b. Storage of one or more lots of household goods, personal effects and other personal property (described above) while in storage pursuant to warehouse receipt(s) issued by the Named Insured.
DECLARED VALUE AND AMOUNT OF INSURANCE: Choose one of the following by “X” below:
Actual Cash Value (Depreciated Value): $
Repair to goods $
We will pay NO CLAIM unless the adjusted “loss” exceeds $
To Be Shipped Via:
To Be Stored At:
FROM (City and State) TO (City and State) STORAGE
FROM (First Day of Storage) TO (Last Day of Storage)
NOTE: Maximum term of coverage is 365 days (1 Year) – You need another agreement after 365 days of coverage.
Date 20 (Signature of Shipper)
Date 20 (Signature of Carrier)
Insurance provided is subject to the terms and conditions of the Household Goods Cargo Portfolio policy
Page 1 of 3
441‐0034 03 15
RESUME OF COVERAGE PROVIDED
The following briefly outlines the salient features of the policy but is not the policy. For exact wording, except wording shown in quotes, refer to the policy. If there is any conflict between the policy and this Agreement to Insure, the provision of the policy will prevail.
COVERED CAUSES OF LOSS
Covered Causes of Loss means ALL RISKS OF DIRECT PHYSICAL “LOSS” to Covered
Property except for those causes of “loss” listed in the Exclusions.
We will not pay for “loss” caused by or resulting from any of the following. Such loss(s) are excluded whether they occur alone or in combination with other ‘perils’ or ‘events’ which otherwise would be covered.
a. Governmental Action; (refer to policy)
b. Nuclear Hazard; (refer to policy)
c. War and Military Action; (refer to policy)
d. Wear and Tear, gradual deterioration, latent defect, inherent vice or any condition of or within Covered Property which causes it to destroy itself;
e. Insects, vermin, rodent or other pest(s);
f. Misappropriation, secretion, conversion, infidelity or any dishonest act on the part of anyone entrusted with your property – except for common carriers;
x. Xxxxx, loss of market or use, or consequential loss(s) of any kind or nature;
h. Earthquake or earth movement(s); (refer to policy)
i. Flood; (refer to policy)
j. (exactly as written) . . . “Mechanical or electrical derangement of musical instruments, including but not limited to piano, harpsichord, organ, television, radio, refrigerator, freezer, washing machine, dryer, sound recording or playing equipment, including parts or components thereof, electronic or mechanical game(s), computers, or like similar articles unless evidenced by eternal damage;” UNLESS THE FOLLOWING PROPERTY IS PACKED, PACKAGED OR PREPARED FOR SHIPMENT BY THE NAMED INSURER (CARRIER) OR HIS AGENT(s):
k. (exactly as written) . . . “Breakage, marring, chipping, denting, scratching, tearing or ripping of china, glass, glassware, statuary, porcelain, painting, etching or print, bric-a- brac or similar property of a brittle, fragile or delicate nature, unless loss or damage is caused directly by fire, lightning, explosion, tornado, cyclone, windstorm, hail, collision, upset or overturn of transporting conveyance, collapse of bridges, trestles, culverts, elevated roadways, manhole covers, roadway drain gratings, docks, piers, wharves, or bulkheads, riot or civil commotion, or by stranding, sinking or collision of public ferry.
DUTIES IN THE EVENT OF LOSS
You must see that the following are done in the event of “loss” to Covered Property;
1. Notify us in writing about the “loss”;
2. Give us details about how the “loss” occurred;
3. Protect, as far as is within your power, the property from further damage;
4. Permit us to inspect both the property and your records proving “loss”
5. Submit, if requested, to examination under oath;
6. Cooperate with any investigation;
7. Complete a signed sworn proof of “loss” on form(s) we will supply within 60 days of our request.
We will not pay for “loss” in any one occurrence until the amount of the adjusted “loss” exceeds the deductible shown in the Agreement to Insure. We will then pay amount of the adjusted “loss” in excess of the deductible, up to the declared value and amount of insurance shown in the Agreement to Insure.
All Covered Property must be insured for its actual cash value which is the cost to replace with property of like kind, condition and quality, at a price negotiated between a willing buyer and a willing seller as of the time of “loss” or you will incur a penalty. The penalty is that we will not pay the full amount of any
loss. Instead, we will determine the most we will pay using the following steps:
a. Divide the amount actually insured by the amount that should have been insured;
b. Multiply the adjusted loss, before application of the deductible, by the figure determined in step a (above).
VALUATION AND AMOUNT OF INSURANCE
1. When Actual Cash Value (Replacement Cost minus depreciation) is indicated:
The value of covered property will be the least of the following amounts:
(a) The actual cash value of that property;
(b) The cost of reasonably restoring that property to its condition immediately before “loss”; or
(c) The cost of replacing that property with substantially identical property.
2. When Replacement Cost is indicated:
The value of covered property will be based on the Replacement Cost without any deduction for depreciation. The replacement cost is limited to the cost of repair or replacement with similar materials and used for the same purpose. The payment will not exceed the amount necessary to repair or replace the damaged or destroyed property.
3. The following provision applies to both valuation provisions.
Regardless of the valuation provision that you choose, we will not pay more than the Declared Value and the Amount of Insurance indicated on this Agreement to Insure.
In the event of “loss” the value of property will be determined as of the time of “loss”.
NO BENEFIT TO BAILEE
No person or organization, other than to you, having custody of Covered Property will benefit from this insurance.
You agree to assign to us, after settlement of your “loss” any rights you may have to recover damages from another. You agree to do nothing after “loss” to impair these rights.