1. Customer. For the purpose of this Agreement, the “Customer” is the person named on the Active Green+Ross invoice and may also include any person lawfully entitled to the Tires as the bearer of the Active Green+Ross invoice.
2. Company. For the purpose of this Agreement, the “Company” is the incorporation listed at the bottom of the customer’s final invoice. The Company may be noted as a numbered incorporation, by a specific name, or any combination of both.
3. Tires. “Tires” means the tires and if applicable, wheels/rims delivered to the Company by the Customer, and accepted by the Company from the Customer, for storage by the Company.
4. Storage Location: The Customer agrees that the Company may change the Storage Location from time to time at its own discretion without notice to the Customer.
5. Tire Retrieval. The Customer acknowledges that the Company requires reasonable time to retrieve and make the Tires available to the Customer. The Customer agrees to provide the Company not less than four (4) business days advance notice request for the Tires.
6. Payment. The Customer agrees to pay all charges set forth in the terms of this Agreement when due, including all other amounts payable hereunder and all applicable taxes thereon at the start of the Initial Term and thereafter at the start of each Renewal Term, if applicable, until the termination of this Agreement.
7. No Refund. No portion of the Customer’s payment for the Initial Term will be refunded once the tires have been received into storage by the Company.
8. Initial Term. The initial term of this Agreement (the “Initial Term”) starts on the date that the Customer delivered the Tires to the Company and has paid all charges, and ends six (6) months thereafter.
9. Renewal Terms. This Agreement will automatically renew for additional six-month term(s) starting on the expiry of the previous Term, unless: (i) the Tires are, or are determined by the Company to no longer be in the Company’s possession; or (ii) this Agreement has otherwise been terminated. By leaving the Tires in the Company’s possession the Customer has agreed to renew the Term of this Agreement. The Customer will pay the Company for each Renewal Term either: (i) the same amount as the previous Term; or (ii) an increased amount equal to not more than 15% of the payment of the previous Term, as the Company may determine.
10. Default of payment. A default of payment shall occur when the Customer fails to pay any sum in full when due.
11. Notice of Default. Upon an act of default by the Customer, the Company will provide the Customer with written notice of the default, in keeping with the Repair and Storage Liens Act for the Province of Ontario, using the last contact information the Customer provided. In the event the Customer fails to respond to the Company within sixty (60) days of such notice, the Customer shall be deemed to have abandoned the Tires. In the event of abandonment, without
terminating this Agreement (unless so elected by the Company), the Company shall be entitled to take possession of such abandoned property and dispose of it at its sole discretion and the customer agrees to have relinquished all title and monetary value of the Tires.
12. Continuing Obligation. Termination of this Agreement will not relieve the Customer of any liabilities or obligations incurred prior to such termination and the Customer will at all times remain fully liable for all damages, costs and expenses incurred by the Company on account of the Customer’s default under this Agreement, including, but not limited to, all costs, claims, legal fees and disbursements.
13. Release. Except as specifically provided in this Agreement, the Customer hereby agrees to waive, release and further discharge all claims against the Company, its employees, contractors, agents, successors or others for whom it is responsible at law, that the Customer has or may in the future have against the Company for any loss, damage, expense or injury, including death, that the Customer and/or the Company may suffer as a result of the services provided by the Company and/or the use, storage of the Tires, wheresoever the storage occurs, or the transport of the Tires or damage to the Tires or anything related thereto by the Customer or the Company, including, without limitation, negligence, gross negligence, willful misconduct, breach of this Agreement or any other contract, non-compliance with licencing, or breach of any statutory or other duty of care on the part of the Company and/or the Customer.
14. Limited Liability. The liability of the Company for any damages, whether special, indirect, incidental, consequential or punitive damages (collectively, the “Consequential Damages”) including, but not limited to, loss of profit or revenue incurred by the Customer (or any other person or company) as a result of the Company’s acts or omissions, including but not limited to negligence causing damage, failure to deliver, loss or theft or damage, or late or delayed delivery of the Tires, shall be limited as provided in this Agreement.
15. Security Interest. The Customer grants to the Company a security interest in the Tires to secure the payment of all indebtedness and liabilities, present or future, absolute or contingent, joint or several, including all advances of current or running accounts and all future advances and readvances, and whether the same is reduced from time to time and thereafter increased or entirely extinguished and thereafter incurred again. the Company may register the security interest in the appropriate registry at the Company’s sole discretion.
16. Stolen, Misplaced or Damaged items. Should the Customers tires/wheels be stolen, misplaced, damaged as a result of fire, water or any other means during the Term of the Agreement, they will be replaced by the Company with products of like kind and quality (LKQ), based on the age and condition of the tires/wheels when they were received from the Customer. Photos of the tires/wheels, measurements of the tires tread depths and a general report on the overall condition of the tires/wheels will be recorded by the Company upon receiving possession of the tires/wheels from the Customer. At no time will there be betterment on any stolen, misplaced or damaged items, and any consideration for replacement tires/wheels will be at the sole discretion of the Company and may not be identical to those that were originally received into storage.
17.Severability. If any part or provision of this Agreement is found to be invalid or unenforceable, the validity or enforceability in such or part or provision may not affect the remaining parts or provisions of this Agreement which will continue in full force and effect.
18. No Waiver of Right. Any forbearance by the Company in enforcing any of its rights under this Agreement in the event of a default by the Customer will not constitute a waiver of the Company’s right to require the Customer to comply strictly with the terms of this Agreement.