TERMS AND CONDITIONS
In these Standard Terms and Conditions:
a. “Contract” means the Receipt to which these Standard Terms and Conditions are included.
b. “Customer” means the owner of the Goods or the party for whose account the Goods are stored;
c. “Deposit” means Goods deposited at GearBank by the Customer;
d. “Electronic Commerce Act” means the Electronic Commerce Act, 2000, S.O. 2000, Chapter 17 (Ontario) and as amended from time to time;
e. “Goods” means the property that is described in the Receipt;
f. “Receipt” means a non-negotiable GearBank receipt or GearBank acknowledgement of receipt and which acknowledges in writing GearBank’s receipt for storage of Customer’s Goods;
g. “Terms and Conditions” means this schedule and the Receipt within which it is included.
h. “GearBank” means the issuer of the Receipt, its employees, servants, successors and assigns; and,
i. “warehouse” means the secure warehouse used by GearBank for the storage of the Customer’s Goods from time to time.
a. Services to be Furnished. GearBank will provide the services described in the Contract to which these Terms and Conditions are attached (the “Services”). The Customer acknowledges that all Services shall continue indefinitely until the Contract is terminated.
b. Storage. Where Services are for the storage and management of Goods, GearBank shall provide a Receipt to the Customer in the form of a confirmation of receipt of the Goods, as applicable.
c. Purchase Orders. In the event that Customer issues a purchase order or issues any instructions to GearBank covering the Services provided by the GearBank, any terms and conditions in such purchase order or any other instructions that constitute terms and conditions which are in addition to those set forth in the Contract including these Terms and Conditions or which establish conflicting terms and conditions to those set forth in the Contract including these Terms and Conditions are expressly rejected by GearBank and the Customer agrees that the Contract and Schedules therein, including these Terms and Conditions, shall be paramount.
a. Receipt. Subject always to legislation in force governing receipts in the province where the Goods are stored, the Customer agrees that Receipt:
a. implicitly includes all of the provisions, terms and conditions of the Contract; and,
b. when printed or acknowledged or e-mailed to the Customer at its e-mail address last known to GearBank, shall be the record of the Goods under Deposit between the Customer and GearBank.
a. Deposit. All Goods tendered for storage shall be delivered properly marked and packaged for handling. The Customer shall furnish at or prior to such delivery, a manifest showing Goods to be kept and accounted for separately, and the class of storage and other services desired. The Terms and Conditions herein form a part of each Receipt and are implied within each Receipt.
b. Ownership Warranty. The Customer warrants that the Customer is the owner of the Goods and has full authority to store the Goods in accordance with this Agreement. The Customer will be required to reimburse GearBank for any expenses reasonably incurred (including reasonable legal fees) by reason of GearBank’s Compliance with the Customer’s instructions in the event of a dispute concerning the ownership, custody or disposition of the Goods.
c. Insurance. The Customer agrees to obtain and maintain at its own expense insurance for the Goods against damage by fire and extended perils coverage and such other insurance covering the Goods against such losses as a reasonable owner acting prudently would obtain. The Customer acknowledges that the Record Centre does not insure the Goods.
a. Containers and Packing. The Customer shall use only such containers for storing Goods as are approved by GearBank (the ‘‘Container’‘) and shall ensure that the Goods they deposit into such Container are packed, wrapped and secured in such manner so as to ensure that no damage will occur to such Goods so long as the Container remains visibly damage-free. The Customer agrees that they will have no claim against GearBank arising out of damage to their Goods so long as there is no concurrent visible damage to the Container.
b. Damage Goods. GearBank reserves the right to refuse acceptance of shipments in a damaged condition.
c. Responsibility for Containers and Goods. The Customer is responsible for (i) checking the Container to make sure they it is free of damage before packing the Container with their Goods; (ii) sealing each Container before pick-up by GearBank; (iii) packing and cushioning all Goods to help protect against loss or damage due to overloading, shifting or movement of the Goods in the Container during transportation to, from or within GearBank; and (iv) immediately unpacking each Container upon final delivery to the Customer at the end of the storage period and returning each Container in substantially the same condition as delivered to the Customer, ordinary wear and tear excepted. GearBank will wait up to 20 minutes for the Customer to unload the Container and Goods upon delivery to the Customer. If the Customer requires additional time to unload the Container, the Customer may, for an additional cost, schedule a separate service for GearBank to return and pick-up the empty Container at a later date. The Customer is responsible for any damage to, loss or theft of a Container while in the Customer’s possession, and must reimburse GearBank for all expenses reasonably incurred by GearBank to replace or restore any Container that is damaged, lost or stolen while in the Customer’s possession. The replacement fee for a single GearBank Container varies from $30.00 to $350.00 depending on the type of Container. Such additional costs, if any, will be charged to the Customer’s account. GearBank is not responsible for ordinary wear and tear to the Customer’s Goods while in storage or in transit, or for any damage to the Customer’s Goods caused by shifting or movement of the Customer’s Goods in the Container during transportation or shipping of the Goods to or from the pick-up and delivery locations.
d. Maximum Weight Limit for Boxes. The maximum weight limit for each Container is 75lbs for a small Container and 100lbs for a large Container. If the published maximum weight limit is exceeded, an additional handling and storage fee will be added to the Customer’s charges at $2 for each pound over the limit. GearBank reserves the right to refuse to pick-up any Box that it believes exceeds the maximum weight limit.
e. Right to Inspect. In the event of an emergency, suspected criminal activity, suspected storage of prohibited property or upon default of any of the Customer’s obligations under this Agreement, GearBank shall have the right to inspect the contents of the Boxes. GearBank is also authorized to comply with any subpoena, search warrant or similar government order related to the Property and shall not be liable to the Customer for any loss or damage to the Property resulting from any such order.
6. OBLIGATIONS OF GEARBANK
a. Facilities. GearBank shall provide secure warehouse facilities (hereinafter the ‘‘Facilities’‘).
b. Storage Area. GearBank shall be responsible for selecting the warehouse for storing the Goods and may, without notice, move the Goods from one warehouse to another warehouse from time to time, but shall not, without the Customer’s prior consent, move Goods to a location outside of a warehouse.
c. Equipment. GearBank shall provide all required equipment to carry out its obligations hereunder with the exception of data processing hardware and software required by the Customer, which shall be provided to and maintained by the Customer at the Customer’s sole cost.
d. Staffing. GearBank shall obtain, maintain and employ sufficient personnel, equipment, shipping and other facilities and resources necessary to perform the storage and such other services to be performed by it as described in this Contract.
e. Compliance with Laws. GearBank shall comply with all federal, provincial and municipal laws and regulations applicable to the services rendered hereunder, including without limitation, those in respect of environmental, transportation and health and safety matters.
f. Temperature and Climate Control. GearBank will use reasonable efforts to maintain the temperature of the warehouse in which the Goods are stored at between 55°F and 85°F. GearBank does not regulate humidity levels within the warehouse. The Customer agrees and confirms that it will not store any Goods that require a climate controlled environment.
7. TERM, CHARGES AND PAYMENT
a. Term. This term of the Contract shall continue on a month-to-month basis until terminated by either the Customer or GearBank in accordance to and subject to these Terms and Conditions
b. Minimum Charge of Three Months. The minimum charge by GearBank is agreed to be three months of storage representing an amount to compensate GearBank for establishing this service for the Customer. In the event that the Contract is terminated earlier than three months following its commencement the Customer agrees to first pay an amount equivalent to a total of three months of the charges from the commencement of the storage of Goods as described in the Customer’s Order Details charges before requesting GearBank to release the Customer’s Goods and before GearBank is obliged to release the Goods to the Customer.
c. Charges. Charges and rates for the services shall be as set out in your Order Details included with your storage receipt. Charges for storage shall remain fixed for the first year of this Contract and may thereafter be changed by GearBank at any time upon thirty (30) days’ written notice to the Customer. Charges for services may be adjusted by GearBank at any time upon thirty (30) days’ written notice to the Customer.
d. High Volume Demands. The Customer acknowledges that high volume requests by the Customer for Services and other customers may require GearBank to delay the Services or require appointments for Services without notice to the Customer.
e. Payment. Payment of GearBank charges are due when billed. The Customer shall be liable for late charges at the rate equal to one percent (1%) per month calculated from the date of the invoice until the date payment is received and compounded monthly together with all accrued interest thereon and all costs, charges and expenses incurred by GearBank in connection therewith. If the Customer is late in the payment of any three 3 or more undisputed invoices in a 12-month period, GearBank may require payment by certified cheque or wire transmittal, at GearBank’s option.
f. Lien. All charges are due and payable prior to the delivery or transfer of the Goods including at the termination of the Contract. GearBank shall have a lien upon, right of retention and security interest in all Goods of Customer deposited at any time by Customer in any warehouse operated by GearBank. Such lien, right of retention and security interest shall be for all charges, advances and expenses in relation to all Goods of Customer, whether or not previously released from GearBank. In the event of nonpayment of any such amounts, GearBank has the right, after reasonable notice, to destroy or dispose of the Customer’s Goods in any manner that it may reasonably think fit to satisfy its lien, subject to legislation in force governing the disposition of such Goods in the province where such Goods are stored. Where GearBank decides, in its sole and exclusive discretion, to deliver or transfer the Goods prior to receipt of payment of all charges, advances and expenses in relation to the Goods, the Customer shall deliver to GearBank, immediately upon its request, a signed acknowledgment of indebtedness on an invoice or other statement of account.
g. Payment on Termination. In the event of termination of the Contract, all amounts due for Services rendered up to the effective date of termination shall become immediately due and payable. Upon termination of the Contract the Customer shall receive back all Deposits upon payment of all charges outstanding and including in connection with the return of all Goods by GearBank to the Customer in advance by certified cheque or wire transmittal and GearBank shall have no obligation to provide further Services to Customer.
h. No Set-Off. Claims for loss or damage to Goods shall not be set off or otherwise deducted by the Customer from amounts owing for the receipt, storage, shipping and delivery of Goods or the performance of any Services by GearBank.
i. Termination Rights. Either party may terminate this Agreement upon providing at least ten (10) days prior notice to the other party. Upon notice of termination, the Customer must pay all outstanding charges, including but not limited to the storage charges for the month in which the termination occurs and the charges associated with the final delivery of the Property to the Customer. If the Customer terminates within the first three (3) months of this Agreement, the Customer must still pay the three-month minimum storage charge. Upon receipt of all charges due to GearBank, GearBank will deliver the Property to the Customer. If GearBank continues to hold Property after the termination of this Agreement, the rates and terms of this Agreement will remain in effect until all Property has been delivered to the Customer.
a. Right to Rely on Instructions. GearBank may act in reliance upon any instruction, instrument, or signature reasonably believed by GearBank to be genuine, and may assume that any of Customer’s employees or any employee of Customer’s affiliates or subsidiaries or sub-contractors giving any written notice, request, or instruction purportedly on behalf of the Customer has the authority to do so.
b. Compliance with Contracts, Laws and Regulations. Customer shall be responsible for, and warrant compliance with, all contractual restrictions and all applicable laws, rules and regulations, including but not limited to environmental laws and contractual restrictions and laws governing the confidentiality, retention and disposition of information contained in any materials delivered to GearBank.
c. Cooperation and Assistance. Customer shall cooperate with GearBank with regard to the performance of the Services, subject to normal security requirements and in a manner that is not unnecessarily disruptive to Customer’s business operations, by providing to GearBank such information, data, access to premises, management decisions and approvals as may be reasonable to permit GearBank to perform the Services hereunder. Customer shall cooperate with GearBank’s reasonable operational requirements, as modified from time to time, regarding Containers, delivery/pick-up volumes, security, access and similar matters.
d. Material Descriptions. Itemized lists or descriptions of contents of materials submitted by the Customer to GearBank shall be generally considered for record-keeping, reconciliation, and reference purposes only, and are not to be considered proof that said documents contained on such lists and descriptions are in fact contained in the materials accepted. GearBank will make provision for validation of such document contents in advance and under special terms and fees at the request of the Customer.
9. NOTICE AND LIMITATION PERIODS FOR CLAIMS
a. Definitions. The following words shall have the meanings described:
i. Notice Period means:
1. ninety days (90) following the discovery of a claim;
2. where the claim is by the Customer in respect of Goods that the Customer has received, no longer than ninety (90) days after delivery or return to the Customer of the Goods alleged to have been damaged; and,
3. ninety (90) days after the Customer is notified by GearBank that loss, damage or destruction to part or all of the Goods has occurred.
ii. ‘‘Commencement of Arbitration’‘ means:
1. the Customer or GearBank has served on the other of them a notice to appoint or to participate in the appointment of an arbitrator; or,
2. the Customer or GearBank has served on the other of them a notice demanding arbitration under the agreement.
iii. ‘‘Statement of Claim’‘ means the document recognized by a court of competent jurisdiction that, when issued, commences a court proceeding.
b. Notice Period. Each and every claim by the Customer or GearBank must be particularized with reasonable details and presented in writing promptly during the Notice Period. The Customer and GearBank hereby release each other from each and every claim not presented to the other in writing within the Notice Period.
c. Limitation Period. No court action or arbitration proceeding may be maintained against the Customer or GearBank by the other of them for loss, damage or destruction of Goods unless:
i. A claim was presented to the other in writing within the Notice Period; and,
ii. an action is commenced in a court of competent jurisdiction or a Commencement of Arbitration was made within one (1) year following the day upon which the Notice Period ended (the ‘‘Limitation Period’‘).
d. Action. The Customer and GearBank hereby release each other from each and every claim that was not set out in a Statement of Claim that was issued in a court of competent jurisdiction or by the Commencement of Arbitration within the Limitation Period.
a. Confidentiality. GearBank shall use the same degree of care to safeguard the Customer’s Goods collected as it uses to safeguard its own property. Notwithstanding such obligation, GearBank may release the Customer’s Goods in order to comply with any subpoena or court order and, in such case, GearBank will endeavor to provide notice of such release to the Customer unless prohibited by law. Customer shall pay GearBank’s reasonable costs of such release of Goods.
11. LIMITATION OF LIABILITY OF GEARBANK
a. Standard of Care. The responsibility of GearBank is the reasonable care and diligence required by the laws of the province where the Goods are store and provided that all Goods are stored at the Customer’s risk of loss, damage or delay in delivery unless the Customer establishes such loss, damage or delay occurred because of GearBank’s failure to exercise the care required by the laws of the province where the Goods are stored.
b. Condition of Goods. The quality, condition, contents and value of the Goods are not known to GearBank except as declared by the Customer and as specifically described by GearBank on the face of the Receipt.
c. Insurance. Goods covered by the Receipt are not insured by GearBank other than as described within the Receipt. The Customer agrees to obtain and maintain at its own expense such insurance as it may require.
d. Instructions. GearBank shall have no responsibility for errors resulting from the corruption of electronically transmitted data, or from verbal or telephoned shipping instructions, unless written confirmation of such instructions is received not less than three business days prior to the shipment of the Goods.
e. Risk of Loss. Without limiting the generality of the foregoing, it is specifically declared that all Goods are stored at the owner’s risk of loss, damage or delay in the delivery caused by or through inaccuracies, obliteration or absence of marks, numbers, address or description, act of God, irresistible force, enemies of the Queen, civil or military authorities, insurrection, riot, strikes, terrorist acts, picketing or any other labour trouble, water, steam, sprinkler leakage, floods, rain, wind, storm, fire, frost, vermin, heating or corruption, deterioration, drainage, dampness, rust, decay, collapse of the building, inevitable accident, depreciation or perishing by a lapse of time, changes in temperature, interruption or loss of power, contact with or odors from other goods or other sources, inherent defects, lack of any special care or precaution, injury to Goods insufficiently protected or arising from the nature of the Goods, loss in part, insufficient boxing, crating, storing or packing, ordinary wear and tear in handling, leakage, concealed damage or any cause beyond the control of GearBank or failure to detect any of the foregoing. All storage and other applicable charges must be paid on Goods stored for an additional time, or lost or damaged by any of the above causes.
f. Removal. Where loss, damage or destruction occurs to the Goods, for which GearBank is not liable, the Customer shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental cleanup and site remediation resulting from the loss, damage or destruction to the Goods.
12. LIMITATION OF DAMAGES
a. Limitation of Liability. The liability of GearBank, if any, for loss or destruction of, or damage to Goods on Deposit is limited to the Value of each Deposit as defined herein.
b. Value of Deposit. Customer declares for the purposes of the Contract that the Value of all Goods on Deposit is not more than the limits of coverage disclosed on the Receipt (the ‘‘Value’‘). Customer acknowledges that GearBank will not accept for Deposit any Goods that have a value greater than as defined above as the Value at the Charges and Rates set out in this Contract. Customer acknowledges that it has declined to declare an excess valuation, for which an excess valuation fee would have been charged.
c. Shipping. When errors in shipment occur, the liability of GearBank shall be strictly limited to the transportation costs involved to rectify any such error, and shall not, under any circumstances, include liability for damages due to the acceptance or use of or inability to us said Goods.
d. Maximum Liability. Notwithstanding the definitions of Value, the maximum liability of GearBank combined for all claims for the provision of Services or failure to provide Services is limited to all charges paid by the Customer to GearBank during the six months prior to the Claim for the loss or destruction or damage.
e. Limitation of Types of Damages. Under all circumstances, GearBank shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
a. Access. The Customer acknowledges that it shall not have access to GearBank other than as authorized by GearBank so that GearBank can preserve security and confidentiality to other customers of GearBank.
14. HAZARDOUS GOODS
a. Hazardous Substances. ‘‘Dangerous’‘ means any material that is highly flammable, explosive, toxic, radioactive, medical waste, organic material which may attract vermin or insects, or otherwise dangerous or unsafe to store or handle without special precautions or which is regulated under any federal or provincial law or regulation relating to hazardous materials or that contains data that is illegal under any statute of Canada or of the province in which GearBank that has received such data is located. The Customer shall not deliver to GearBank any material considered Dangerous. In the event of the accidental or negligent transfer of Dangerous Goods, the Customer agrees to immediately arrange to appropriately, safely and legally assume custody of such Dangerous materials at their expense and to indemnify GearBank from any property damage or personal injury resulting from such transfer of Dangerous material.
b. Instructions. It is the Customer’s responsibility to provide GearBank in advance with detailed, written information and instructions on any of its Articles that may be considered Dangerous whether or not they are regulated under the Transportation of Dangerous Goods Act R.S.O. 1990, Chapter D.1 as amended from time, the Environmental Protection Act R.S.O. 1990, Chapter E.19, as amended from time to time to time or other applicable legislation.
c. Customer Warranty. The Customer warrants that the Goods, the packaging and marking thereof and the Goods:
i. comply in all respects with the provisions of any federal or provincial legislation or regulations governing the handling or storage of dangerous goods;
ii. are not a contaminant as defined pursuant to the Environmental Protection Act R.S.O. 1990, Chapter E.19, as amended from time to time;
iii. present no potential health, safety and/or environmental hazards associated with the storage and handling of its Goods;
iv. are not Dangerous;
v. are free of Dangerous substances and any other hazardous or Dangerous conditions; and,
vi. are not negotiable instruments, jewelry, check stock or other items that have intrinsic value.
d. Indemnity. The Customer assumes all liability for costs incurred and/or damages resulting from Customer’s failure to comply with its warranty in the preceding section. The Customer shall indemnify, defend and hold GearBank (including its officers, directors, parent and affiliated companies, employees, servants and agents) harmless from and against any loss, liability, damage, penalty, demand, expense, claim of whatever type or nature by or on behalf of any person, including but not limited to damage or destruction of property or injury (including death) to any person, arising out of the Goods being stored at GearBank or tendered for transportation or handled by third parties retained by GearBank.
e. Removal. Any Dangerous Goods not removed from GearBank immediately may be destroyed, dumped, sold or otherwise disposed of as GearBank reasonably sees fit, the whole at the risk and expense of the Customer and without liability on the part of GearBank.
a. Severability. If any provision of the Contract, Terms and Conditions or Receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction the remaining provisions of this Receipt shall not be affected thereby but shall remain in full force and effect.
b. Non-Waiver. GearBank’s failure to require strict compliance with any provision of the Contract, Terms and Conditions or Receipt shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provisions of the Contract, Terms and Conditions or Receipt.
c. Successors. The provisions of this Receipt shall be binding upon the Customer’s heirs, executors, successors and assigns and cannot be modified except in writing signed by GearBank.
d. Jurisdiction. The Parties agree that these Terms and Conditions shall be governed by the laws of the Province of Ontario and such federal laws as are applicable therein. By accepting the services provided under these Terms and Conditions, the Customer irrevocably attorns to the exclusive jurisdiction of the Courts the Province of Ontario.
e. Electronic. Contract, Terms and Conditions or other documents, including this Receipt, may be issued either in physical or electronic form at the option of the Parties. Where provincial law permits, the Contract, Terms and Conditions or other documents, including this Receipt may be signed in paper form, by facsimile signature or by electronic signature in accordance with applicable provincial law such as the Electronic Commerce Act, 2000 (Ontario). Electronic signature includes delivery by e-mail scanned to Adobe Portable Document Format (PDF)
f. Currency. Unless specified otherwise, all statements of or references to dollar amounts in these Terms and Conditions are to lawful money of Canada.
g. Force Majeure. Neither GearBank nor Customer shall be liable to the other for failure to perform its obligations under this Contract if prevented from doing so because of an act of God, strikes, fire, flood, war, civil disturbance, interference by civil or military authority or other causes beyond the reasonable control of the party, including damage to or destruction of the Facilities in whole or in part. Upon the occurrence of such an event, the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires GearBank to continue to protect the Goods, the Customer agrees to pay the charges provided for herein plus all additional costs incurred by GearBank to protect the Goods. The provisions of this Section shall not under any circumstances operate to excuse the Customer from prompt payment of rates and charges payable under this Contract.
h. Number, Gender, Effect of Headings. Words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders, and words importing persons shall include firms and corporations and vice versa. The division of this Contract into Articles and Sections and the insertion of headings are for convenience of reference only, and shall not affect the construction or interpretation of this Contract.
i. Entire Agreement. There are no covenants, representations, warranties, agreements or other conditions expressed or implied, collateral or otherwise, forming part of or in any way affecting or relating to this Contract, save as expressly set out or incorporated by reference herein and this Contract constitutes the entire agreement duly executed by the parties, and no amendment, variation or change to this Contract shall be binding unless the same shall be in writing and signed by the parties. Any changes in Services or Facilities or Term or any other detail in the Contract and Schedules shall not affect any other provision of the Contract or Schedules unless specifically amended in writing.
j. Modification. Any amendment or modification to this Contract shall be effective only if in writing and signed by each party hereto.
k. Guardian. The performance of services shall not cause GearBank to be a ‘‘custodian’‘ of any Goods or ‘‘designee’‘ of Customer with respect to any Goods.
l. The Customer agrees that all documents may be signed either in paper form, by facsimile signature or by electronic signature in accordance with the Electronic Commerce Act. Electronic signature includes delivery by e-mail scanned to Adobe Portable Document Format (PDF) and documents generated electronically, including the Receipt and these Standard Terms and Conditions, by the web-site through which the Customer connects and interacts with GearBank