Last Updated Date: October, 2024
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GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
2. ORDER ACCEPTANCE
3. RENTAL CHARGES
4. PAYMENT
5. TERMINATION
6. REPRESENTATIONS AND WARRANTIES
7. GENERAL CUSTOMER COVENANTS
8. KEG MAINTENANCE
9. DEFAULT
10. INSURANCE
11. LIMITATION OF LIABILITY
12. INDEMNITY
13. FORCE MAJEURE
14. GENERAL
SCHEDULE 1 – POLICIES AND PROCEDURES
The following terms and conditions (the “General Terms”) shall apply to all services provided by Drink Logistics Inc., doing business as “Kegshare” (“Kegshare”) to the customer (the “Customer”) as set out in the Order (as defined below).
For the purposes of these General Terms, “we”, “us”, or “our” refers to Kegshare and “you”, or “your” refers to the Customer.
This document contains very important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that apply to you. Please read it carefully before purchasing any product or services from us. By purchasing any product or services from us, you agree to become bound by these terms and conditions.
If you are an individual, you confirm that you are of legal age to enter into this Agreement. If you are corporation or other entity, the individual signing the Order on behalf the Customer confirms that they have the legal authority to bind the Customer to these General Terms.
You may not order or obtain products or services from us if you: (i) do not agree to these General Terms; (ii) are an individual and are not the age of majority in your province or territory of residence; (iii) are prohibited from accessing or using our website or any of our website’s contents, products, or services by Applicable Law; or (iv) you are a consumer, as defined in the Business Practices and Consumer Protection Act SBC 2004.
These General Terms are subject to change by us at any time at our sole and absolute discretion without prior written notice to you. Any changes to these terms and conditions will be in effect as of the “Last Updated Date” referred to on our website and your continued use of our goods and services shall constitute your continued acceptance of these General Terms, as amended from time to time.
Unless otherwise defined herein or the context otherwise requires, the following terms shall have the following meanings:
(a) “Affiliate” has the meaning provided for in the Business Corporations Act (British Columbia).
(b) “Agreement” means collectively, the General Terms and any Orders made by the Customer, and the Policies and Procedures.
(c) “Applicable Laws” means all permits and all common law, equity, civil law and federal, state, provincial, municipal and local statutes, codes, ordinances, decrees, rules, regulations and by-laws, and judicial, executive, arbitral, administrative, ministerial, departmental or regulatory judgments, decrees, orders, decisions, rulings, awards, policies, requirements, standards and guidelines, at any time in force or effect, including CASL, privacy laws and any rule or policy of any recognized stock exchange binding on or affecting the Person referred to in the context in which such term is used.
(d) “Business Day” means any day other than a Saturday, Sunday or any statutory holiday in the Province of British Columbia, Canada.
(e) “Force Majeure Event” means any circumstance arising out of accidents, fires, storms, floods, earthquake, pandemics, explosion, wars, acts of terrorism, riots, rebellions, insurrections, blockages, acts of governments, governmental requirements and regulations, restrictions imposed by law, or any other similar conditions beyond a party’s reasonable control and that could not have been reasonably anticipated or avoided by that party, which prevents it from, or delays it in, performing its obligations under this Agreement.
(f) “General Terms” means the terms and conditions found in the body of this document titled “General Terms and Conditions”.
(g) “Governmental Authority” means any domestic or foreign government, whether federal, provincial, state, territorial, local, regional, municipal or other political jurisdiction, and any agency or authority, instrumentality, court, tribunal, board, commission, bureau, arbitrator, arbitration tribunal or other tribunal, or any quasi-governmental or other entity, insofar as it exercises a legislative, judicial, regulatory, administrative, expropriation or taxing power or function of or pertaining to government.
(h) “Home Region” means the home region you are located in as set out in the Order. The different regions are found on our Site.
(i) “Impacted Party” shall mean the party to this Agreement who is impacted by the Force Majeure Event causing it to fail or delay in fulling or performing any terms of this Agreement.
(j) “Keg” or “Kegs” means the kegs owned by Kegshare which are in the possession of or in use by the Customer.
(k) “Kegshare Access Partner” refers to any location where Kegs can be returned or where Kegshare arranges the release of Kegs for pick up by or delivery.
(l) “Material Adverse Effect” means any result, fact, change, effect, event, circumstance, occurrence or development that, taken together with all other results, facts, changes, effects, events, circumstances, occurrences or developments has or would reasonably be expected to have a material and adverse effect from the perspective of a reasonable Person on the condition or in the organization, operations, affairs, business, properties, prospects or financial condition or position of your business, including changes arising as a result of any legislative or regulatory change, or revocation of any of your rights to carry on business, which individually or in aggregate has materially and adversely affected your business.
(m) “Order” means any accepted order form submitted by you and accepted by us or a service agreement between you and us.
(n) “Permitted Beverage” means beer, seltzer and hard cider. For the purposes of clarity, “permitted beverage” shall not include any other beverage, including, without limitation, soft drinks, wine, coffee, root beer, cola, soda, sports drinks, energy drinks, kombucha, any other fermented products, or other similar beverages.
(o) “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a joint venture, a trust, an association, a syndicate, an unincorporated organization, a Governmental Authority, an executor or administrator or other legal or personal representative, or any other juridical entity.
(p) “Policies and Procedures” means the policies and procedures provided in Schedule 1.
(q) “Privacy Policy” means the privacy policy located on the Site.
(r) “Rental Charges” means the daily rate rental fees, per-use rental fees, per-use fees or any other fees payable in accordance with the Order.
(s) “Repositioning” means the repositioning of Kegs from outside the Home Region to the Home Region.
(t) “Repositioning Fee” means the fees payable for the Repositioning of the Kegs at a rate as set out on our Site and subject to change from time to time in our sole discretion.
(u) “Site” means our website located at www.kegshare.ca, as may be amended or replaced from time to time.
(v) “Subsidiary” has the meaning provided for in the Business Corporations Act (British Columbia).
(w) “Term” shall commence on the effective date as indicated in each Order and terminate at the end of the rental period stipulated in the applicable Order, or any early termination in accordance with this Agreement.
(x) “Termination Date” means the date that is the last day of the Term either by expiry of the Term or early termination.
You agree that the Order is an offer by you to rent/lease from us certain products and services listed in the Order. You acknowledge, confirm and agree that we are under no obligation to provide you with any product or service until we have confirmed in writing our acceptance of a submitted Order, in form approved by us. We shall not be obligated to rent/ lease any product or provide any services to you, and we reserve the right to reject a submitted order form for any reason whatsoever.
Upon the acceptance of your Order of the Kegs, we shall coordinate with a Kegshare Partner to send the requested number of Kegs to you, or prepare the Kegs for you to pick up.
3.1. Rental Charges
You agree to pay to us the Rental Charges in accordance with this Agreement (which, for greater certainty, excludes applicable taxes) for the duration of the Term. All Rental Charges are non-refundable. You acknowledge and agree that the Rental Charges and other fees set forth in this Agreement are solely in connection with your rental of the Kegs from us, and that you may incur additional charges from a Kegshare Access Partner for the delivery and collection of Kegs, and for any other services agreed to between you and a Kegshare Access Partner from time to time.
3.2. Change of Pricing
All prices, discounts, and promotions posted on the Site are subject to change at our sole and absolute discretion without notice. The price charged will be clearly stated in the Order. Notwithstanding the foregoing, we reserve the right to change the prices from time-to-time in our sole and absolute discretion, including, without limitation, the Rental Charges upon, thirty (30) days prior written notice to you. Price changes will only apply to Orders placed after the time of the change. For the avoidance of doubt, each Order is a separate and distinct agreement between you and us and multiple Orders shall not be combined or construed together for any purposes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to the total price and will be itemized in the Order or in your confirmation email.
3.3. Errors
We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel or amend any Orders arising from such occurrences.
3.4. Additional Costs
You shall, at all times, be responsible for (a) the cost of delivery of the Kegs to your facility(ies) from the Kegshare Access Partner; (b) the cost of return shipping/collection of the Kegs from your facility(ies) to the Kegshare Access Partner; and (c) Keg draining and cleaning fees where we determine, in our sole discretion, that you have not complied with the Policies and Procedures.
4.1. Invoice
The Rental Charges owing under this Agreement shall be invoiced to you in accordance with the Order, and you must pay such invoices in accordance with the Order.
4.2. Method of Payment
All invoices shall be paid by pre-authorized credit card or debit from the Customer’s bank account on the due date of the invoice.
4.3. Place of Payment
The place of payment shall be Vancouver, British Columbia, Canada.
4.4. Payment Forms
You shall deliver to us any forms necessary for processing payment concurrently with the acceptance of the first Order.
4.5. Late Payment
(a) Late Fees
If you fail to make the required payment within twenty (20) Business Days of the due date set forth in the applicable invoice, you shall be required to pay us:
(i) interest (calculated monthly) on the unpaid amount, at a rate equal to fifteen percent (15%) per annum, provided that if such rate is not permitted by Applicable Law, the highest permissible rate shall be charged; and (ii) any costs or expenses incurred by us in recovering the unpaid amount. All amounts due under this Agreement shall be paid by you in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law). You further acknowledge and agree that if any payments due to us are not paid within twenty (20) Business Days of the due date set forth in the applicable invoice, we shall immediately freeze delivery of any additional Kegs to you.
(b) Recovery of Kegs
If you do not make the required payments within sixty (60) Business Days of the date set forth in the applicable invoice, you shall permit us or our agent(s) to enter into your premises for the purpose of recovering any Kegs in your possession or control, and you shall permit us to take possession of such Kegs whether they are empty or full. In the event the Kegs are held in the possession of a third party, upon our request, you must provide written authorization to such third party in a timely manner to release the Kegs to us whether or not the Kegs are filled or empty. You shall be liable for any costs and expenses incurred by us in recovering any Kegs.
5.1. Termination
Except as otherwise provided in Section 9 hereof, the Agreement may be terminated as follows:
(a) we may terminate this Agreement for any reason at any time by giving the Customer twenty (20) Business Days’ written notice.; and
(b) provided that the Customer has not committed an event of default which has not been remedied, the Customer may terminate this Agreement prior to the expiry of any applicable Term by providing ninety (90) days’ prior written notice to us.
5.2. Remedies
No termination provisions affect a party’s other rights under this Agreement or any other right or remedy under law or equity and termination of this Agreement for any reason will not prejudice the rights or obligations of either party accrued prior to such, including, without limitation, our right to receive payment from you for charges accrued pursuant to this Agreement.
5.3. Return of Kegs
On the Termination Date, you shall return all Kegs to a Kegshare Access Partner or make the Keg available for collection by a Distribution.
5.4. Late Return of Kegs
You agree that you shall continue to be liable to us for applicable charges in accordance with the Order, until the Keg is returned to a Kegshare Access Partner.
If prior to the expiry of the Term, the Customer does not (i) return the relevant Kegs to a Kegshare Access Partner; or (ii) return the relevant Kegs to Kegshare; or (iii) renew the Term for the relevant Kegs through a new Order, then the Customer acknowledges and confirms that the Customer shall continue to be bound by the terms of this Agreement and shall be charged, as a late fee and not as a penalty, and on a monthly basis (rounded up to the whole month) the applicable Rental Charges for the relevant Keg until same has been returned to Kegshare.
If you do not make the Keg available for pickup within twenty (20) Business Days of the Termination Date, we shall have the right, but not the obligation, to enter, or have our agent(s) enter, your premises for the purpose of recovering any Kegs whether or not they are filled or empty. In the event the Kegs are not returned to us in accordance with this Agreement and the Kegs are held in the possession of a third party, upon our request, you must provide written authorization to such third party in a timely manner to release the Kegs to us whether or not the Kegs are filled or empty. You agree that you shall be liable for all costs and expenses incurred by us in so recovering any Kegs.
For the avoidance of doubt, if we elect not to exercise such right, you shall continue to be liable for the applicable charges in accordance with the Order until the applicable Term expires or is terminated in accordance with this Agreement.
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us (each of which representations and warranties shall survive the execution and delivery of this Agreement) as follows:
(a) if you are a company, partnership, or similar corporate structure, you are duly organized and validly existing in good standing under the laws of the jurisdiction of your formation except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect;
(b) you have full power and authority to execute and deliver this Agreement and perform your obligations hereunder; (ii) the execution, delivery and performance of this Agreement by you has been duly authorized by all necessary or proper action; (iii) the entry into this Agreement and performance thereof shall not constitute a violation of any Applicable Law or contractual obligation of yours; and (iv) the execution, delivery or performance of this Agreement does not require the consent or approval of any Governmental Authority or any other Person;
(c) this Agreement has been duly executed and delivered by you or on your behalf and constitutes legal, valid, and binding obligations of yours, enforceable against you in accordance with its terms;
(d) you are not in default, and to your knowledge, no third party is in default, under or with respect to any contractual obligations, which alone or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect;
(e) all tax returns, reports and statements required by any Governmental Authority to be filed by you or any Subsidiary have been filed and no tax lien has been filed against you, any Subsidiary or any of your respective property; and
(f) there is no litigation is pending or, to your knowledge, threatened against you or any Subsidiary which seeks damages, injunctive relief or alleges criminal misconduct.
We make no warranties, express or implied:
(i) as to the condition or merchantability of any product, including, without limitation, the Kegs, or their fitness for any particular purpose. Except as may be specifically set forth in this Agreement, we disclaim all warranties, either express or implied, made in connection with your use of the Kegs and or any product or service provided by us pursuant to the terms of this Agreement; or
(ii) with respect to any third-party product, including any (i) warranty or condition of merchantability, fitness for a particular purpose, or title; or (ii) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
You covenant and agree with us that during the Term you shall:
(a) conduct and continue to operate your business;
(b) furnish us with prompt written notice of (i) the occurrence of a Material Adverse Effect, specifying the nature and extent thereof, (ii) your becoming aware of the filing or commencement of, or your receipt of any written threat or written notice of intention of any Person to file or commence any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against you that would reasonably be expected to result in a Material Adverse Effect, and (iii) any other development that results in, or would reasonably be expected to result in a Material Adverse Effect;
(c) pay or perform your obligations that, if not paid or performed, would reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) you have set aside on your books adequate reserves with respect thereto and (iii) the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect;
(d) notify us promptly in writing upon learning of the existence, threat, or commencement of any litigation threatened against you or any Subsidiary;
(e) comply with all laws, rules, regulations, and orders of any Governmental Authority applicable to you or your property and maintain all permits and licenses necessary to conduct your business, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
(f) provide us with such information, financial or otherwise, available to you as reasonably requested by us in connection with this Agreement; and
(g) be bound by, and continue to be liable to us, for (i) any applicable taxes; (ii) any and all handling fees, scanning fees, Repositioning Fees, reallocation fees, or any other charges detailed on the Site or this Agreement and any such amounts are in addition to amounts due for Keg rental (iii) any cleaning fees or early termination fees; (iv) any other applicable levy, fine, penalty or governmental charge arising out of this Agreement or your use of the Kegs; (v) any credit card or transactions fees charged to process payment via credit card; and (vi) any additional charges in accordance with Section 3 of the General Terms.
8.1. Customer Covenants
You covenant and agree with us that during the Term you shall:
(a) use the Kegs for your own business use only, and not for resale, export, or personal, family or household use and all rented/leased Kegs are intended for final delivery to locations within Canada only;
(b) not at any time allow any third party (other than a Kegshare Access Partner) to use or have possession of the Kegs without our prior written consent, which may be withheld at our sole discretion;
(c) comply, and ensure that your employees comply, with the Policies and Procedures, any applicable industry accepted safety guidelines, any additional instructions specified by us, and all Applicable Laws when using, operating, loading, securing, or transporting Kegs;
(d) use, and ensure that your employees use, the Kegs solely for their intended purpose and in accordance with this Agreement;
(e) fully clean and sterilize each Keg prior to use;
(f) ensure that Kegs are only filled with and used for the short-term storage of a Permitted Beverage and for the dispensing of such Permitted Beverage through a draught system, and not used for ageing of any beverages;
(g) not in any way alter, modify (including, without limitation, with stickers, markings, or brandings of any sort), damage or repair the Kegs without our prior written consent, which may be withheld by us at our sole discretion; and
(h) not deface, vary, or erase any identifying mark, number, notice, or safety information on a Keg.
8.2. Keg Breakage
You agree that you shall not repair or attempt to repair a damaged, broken, or unsafe Keg without our prior written consent, which may be withheld by us at our sole discretion. Unless you are determined to be at fault for the damage to a Keg pursuant to Section 11 of the General Terms, we shall repair the Keg or provide a substitute (at our own cost), as soon as reasonably practicable after receiving the notice required under this Section.
8.3. Loss, Theft, Damage
During the Term, so long as any Keg is in your possession or control, you are solely responsible for the safe storage, use, and care of such Kegs and must take all necessary steps to protect the Kegs from loss, theft, or damage. If, at any time during the Term, a Keg that is in your possession or control breaks, becomes unsafe to use, is damaged beyond normal wear and tear, or is lost or stolen as a result of your negligence, wilful misconduct, or your failure to follow: (i) the Policies and Procedures, (ii) our instructions, to the extent such instructions have been provided by us, (iii) industry accepted safety guidelines, or (iv) any Applicable Laws, then you must immediately, as applicable: (i) stop using the Keg; (ii) notify us in writing; and (iii) take all necessary steps to prevent injury to Persons or property resulting from the Keg’s condition and further damage to the Keg. In such a circumstance, you must pay, at our sole discretion, the full cost to repair (if applicable) or replace the Keg. If we elect to repair a Keg that is damaged by you, then you shall be required to pay the applicable Rental Charges for such Keg while it is being repaired.
8.4. Defective Keg
In the event a Keg is defective at no fault of you as determined by us in our sole opinion and deemed no longer saleable our sole opinion, we shall reimburse you the Duty Paid Cost (as you have reported to the Canada Revenue Agency) paid for the defective Keg provided that you have provided written notice to us of the defect within five days of discovery of such defect and provide us with proof of the reported Duty Paid Cost. We have the right to inspect the Keg to determine if the Keg is defective and no longer saleable.
8.5. Audit
Upon forty-eight (48) hours’ notice to you, we may conduct an onsite keg audit of the Kegs at your place of business. You acknowledge and confirm that the performance of any inspection, audit or verification hereunder shall not constitute your waiver of your right to dispute any information provided by you or future enforcement of any right or provisions under this Agreement.
9.1. Event of Default
We shall be entitled to exercise the rights and remedies set out below on the occurrence of any one or more of the following events, each of which is an event of default (herein called an “Event of Default”) under this Agreement:
(a) you fail to perform any of your obligations (including failure to pay any amount when due) under this Agreement as determined by us in our sole and absolute discretion, and the default continues for five (5) days;
(b) you make an assignment for the benefit of your creditors, become insolvent, commit any act of bankruptcy, cease or threaten to cease to do business as a going concern, or seek any arrangement or composition with your creditors; or
(c) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced by or against you or a substantial part of your property.
9.2. Remedies
Upon the occurrence of an Event of Default, and if not remedied in the timeframe as provided for herein, we may:
(a) declare this Agreement to be terminated and require you to immediately cease use of the Kegs or any part thereof and to assemble all Kegs in your possession or under your control and make them available to us at such place or places which we may reasonably determine;
(b) seek the appointment of a receiver or receiver manager to take possession of the Kegs, whether such Kegs are full or empty, and to enforce any of our remedies with respect thereto without prior notice or hearing; and/or
(c) grant extensions of time and other indulgences, take and give up securities, grant releases and discharges, without prejudice to any of our other rights and remedies hereunder.
In the event this Agreement terminates under this Section, then the remaining Rental Charges due for the remainder of the Term shall become due and payable immediately.
You hereby irrevocably authorize any third party which may have possession of the Kegs to release the Kegs to us in the event we exercise our rights or remedies pursuant to this Section or pursuant to any other term of this Agreement, whether the Kegs are empty or full.
To the maximum extent permitted by Applicable Law, you waive all claims, damages, and demands against us, our Affiliates, agents, and the officers, directors, and employees of any of them arising out of the repossession and retention of Kegs except as are determined in a final judgment by a court of competent jurisdiction to have arisen solely out of the gross negligence or wilful misconduct of such person. You will remain liable for any deficiency if the Kegs or any portion thereof are not recovered or recoverable by us and to pay all amounts to which we are, or ought to be, entitled.
Notwithstanding anything contained elsewhere in this Agreement, no Event of Default shall be considered cured or remedied under this Agreement until all defaults under this Agreement are cured and all amounts owing under this Agreement are paid.
9.3. Remedies Cumulative
Our rights and remedies in this Agreement are cumulative and nonexclusive of any other rights and remedies which we may have under any other agreement or at law or in equity.
During the Term, you shall, at your own expense, maintain and carry in full force and effect at least the following types of insurance coverage, (a) commercial general liability insurance, including bodily injury, property damage, products, and completed operations, and advertising liability, which policy will include contractual liability coverage insuring the activities of your business under this Agreement with a limit of not less than two million dollars ($2,000,000.00), a per occurrence limitation of one million dollars ($1,000,000.00); (b) a worker’s compensation and insurance account in good standing with the applicable provincial workers’ compensation board; and (c) any other insurance policies required in the Order. Upon our request, you must name us as an additional insured to such insurance policies. Upon our request, you must provide proof of insurance to us.
In no event shall we be liable to you or any third party for any loss of use, revenue, or profit, or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, punitive, or aggravated damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not you have been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose, including but not limited to, (i) any loss, damage or injury caused by, resulting from or in any way connected with the Kegs, their operation or their use, (ii) our failure to deliver the Kegs as required hereunder, (iii) our failure to repair or replace non-working Kegs, or (iv) your use of any software provided by us, or any errors contained therein.
You acknowledge and assume all risks inherent in the operation, use, and possession of a Keg from the time possession of Keg passes to you, and you shall take all necessary precautions to protect all Persons and property from injury or damage from a Keg.
In no event shall our aggregate liability to you arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the amount of monies paid by you to us in the Order that gave rise to the claim by you against us.
The limitation of liability set forth in this Section 10 shall not apply to liability resulting from our gross negligence or wilful misconduct.
To the fullest extent permitted by Applicable Law, you agree to indemnify, defend and hold us, and any of our directors, officers, agents, servants, or employees, and Affiliates, parents and subsidiaries, harmless from and against any and all liability, claims, loss, damage or costs (including, but not limited to, solicitor’s fees, loss of profit, business interruption or other special or consequential damages, damages relating to property damage, bodily injury, or damages relating to wrongful death) arising out of or related to the operation, use, possession or rental of the Kegs. This indemnity provision also applies to any claims asserted against us based upon strict or product liability causes of action.
Notwithstanding the foregoing, you shall not be obligated to indemnify us for that part of any loss, damage or liability caused solely by our wilful misconduct or gross negligence. In furtherance of, but not in limitation of the indemnity provisions in this Agreement, you expressly and specifically agree that the foregoing obligation to indemnify us shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity that you enjoy from suits by your employees. The duty to indemnify will continue in full force and effect notwithstanding the expiration or early termination of this Agreement.
All indemnities hereunder shall survive any termination of this Agreement unless expressly released in writing by us.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any terms of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent the Impacted Party’s failure or delay is caused by or results from Force Majeure Event(s).
The Impacted Party shall give written notice within THREE (3) Business Days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of TWENTY (20) Business Days following written notice given by it under this Section 13, then either party may thereafter terminate this Agreement upon TEN (10) Business Days written notice.
For the avoidance, an inability to pay money owing shall not constitute a Force Majeure Event.
Termination of this Agreement pursuant to this Section 13 shall not relieve you from any obligations to make payment to us for goods or services delivered by us or agreed to be delivered by us prior to the date of termination.
14.1. Time of the Essence
Time shall be of the essence in this Agreement.
14.2. No Waivers
The failure or delay by us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision shall be effective only if in writing and signed by our duly authorized representative.
14.3. No Third-Party Beneficiaries
This Agreement is not and is not intended to confer any rights or remedies upon any Person or entity other than you.
14.4. Notices
All notices exchanged under this Agreement shall be delivered as follows:
(a) To you, at the applicable address or e-mail address set forth in the Order, which shall be deemed to have been received on the Business Day next following the date of sending.
(b) To us by personal delivery, overnight courier, or registered or certified mail to Drink Logistics Inc. dba. Kegshare, 6060 Silver Drive, 3rd floor, Burnaby, BC V5H 0H5. Notices provided by personal delivery shall be effective immediately, notices provided by overnight courier shall be effective one (1) Business Day after they are sent and notices provided by registered or certified mail shall be effective three (3) Business Days after they are sent.
Either party may change the address for notice by written notice to the other party within five (5) Business Days of changing their address for notices contained herein.
14.5. Privacy
We respect your privacy and are committed to protecting it. The Privacy Policy located on the Site, at www.kegshare.ca/privacy-policy/, governs the processing of all personal information collected from you in connection with your purchase of goods and services from us.
The terms of the Privacy Policy, as amended from time to time, are hereby incorporated by reference and shall form part of this Agreement with the same effect and for all purposes as if set forth in this Agreement, mutatis mutandis, together with any referenced definitions or schedules and any cross-referenced provisions.
14.6. Title/Ownership
Title to the Kegs shall at all times remain with us or our agent(s). Unless covered by a specific supplemental agreement signed by us, you have no option or right whatsoever to purchase any of the Kegs. You shall keep the Kegs free and clear of all liens and encumbrances.
14.7. Transfer of Risk
The Kegs shall be released for delivery or made available for pickup in accordance with the Order. If You request that the Kegs be delivered, then risk to the Kegs shall pass to you upon delivery to the address specified in the Order. If you request that the Kegs be made available for pickup, then risk to the Kegs shall pass to you upon collection of the Kegs by you from a Kegshare Access Partner. Unless otherwise agreed to in writing by us, all Kegs shall be delivered to or made available for pickup by you in full pallets or multiples thereof. You agree that all Kegs must be returned in the same condition as when received, save and except for ordinary wear and tear, and without any stickers, markings or branding of any sort not found on the Kegs upon their delivery to you.
14.8. Governing Law
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction). The Parties irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia sitting in the City of Vancouver for interpretation hereof and settlement of any disputes.
14.9. Severability
Each provision of this Agreement is declared to constitute a separate and distinct covenant and to be severable from all other such separate and distinct covenants. A declaration of invalidity or unenforceability of any provision or covenant, or part thereof, in this Agreement by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision or covenant, or part thereof, in this Agreement unless in either case as a result of such determination this Agreement would fail in its essential purpose.
In the event and to the extent of any conflict or inconsistency between the clauses of the General Terms and the schedules and/or any annexures to the schedules, or between any of those clauses, schedules or annexures and an Order or the Site then (unless expressly stated otherwise), the conflict or inconsistency shall be resolved in accordance with the following descending order of precedence (from high priority to low priority):
(a) first, the schedules and/or any annexures to the schedules to the Order;
(b) second, the Order;
(c) third, the General Terms;
(d) fourth, the schedules and/or any annexures to the schedules to the General Terms; and
(e) fifth, the Site.
14.10. Further Assurance
The parties shall at all times do, execute, acknowledge, and deliver such acts, deeds, and agreements as may be reasonably necessary or desirable to give full force and effect to this Agreement.
14.11. Set off
Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy we have or may have, we may, without prior written notice to you, set off or recoup any liability you owe to us which we determine you are liable for whether such liability is matured or unmatured, liquidated or unliquidated, or arises under this Agreement or otherwise.
14.12. Assignment
You shall not assign any of your rights or delegate any of your obligations under this Agreement, including leasing, subleasing, assigning, or loaning the Kegs, without our prior written consent, which may be unreasonably withheld. Any purported assignment or delegation in violation of this Section 14.12 is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement. We may at any time, without notice to you, transfer or assign our obligations under this Agreement, or any Kegs, or any monies, or other benefits due or to become due hereunder.
14.13. Successors and Assigns
This Agreement shall endure to the benefit of and be binding upon the parties and their heirs, executors, administrators, personal representatives, respective successors and permitted assigns.
14.14. Entire Agreement
This Agreement shall be deemed the final and integrated agreement between you and us on the matters contained in this Agreement.
SCHEDULE 1 – POLICIES AND PROCEDURES
Keg Locations
Our Kegs are only scanned in and out at distribution points. That means if you are doing self distribution or using non-Kegshare distributors, we do not have any scanning visibility. As a result, you are responsible for the whereabouts of your Kegs at any given time.
Sending Kegs out of your Home Region
If you are sending the Kegs out of your Home Region, please be sure that the location is in a region we operate in. You may not send the Kegs to a region we do not operate in. Please refer to our Site for the current list of regions.
Kegs must be returned to one of our Kegshare Access Partners in that region in order to have access to a new Keg back at your home warehouse. A list of current Kegshare Access Partners and locations can be found on our Site.
Keg Size Exchange Rules
If you are looking to exchange current Kegs into a new sized Keg, a new Order will be signed and will begin a new term at the date of the new Order.
Keg Orders and Quantities
All the Kegs must be ordered for delivery or pick-up from a Kegshare Access Partner. Some of our Kegshare Access Partners require orders in full pallet quantities. Full pallet quantities are as follows:
19.5L keg – 20
30L keg – 16
50L keg – 8
If you do not order the Kegs in full pallet quantities when required, your order will not be processed, and you may receive an email from us letting you know that you will have to re-submit your order with the correct amount.
Keg Cleaning
The Kegs must be cleaned by you before the first use and upon receipt at your brewery. All the Kegs are brand new or returned and have not been cleaned. You must follow the minimum cleaning procedure provided on our Site.