KEGSHARE TOKEN AND MEMBER BENEFIT SERVICE – GENERAL TERMS AND CONDITIONS
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
1.1 Interpretation Unless otherwise defined herein or the context otherwise requires, the following terms shall have the following meanings in these Terms and Conditions: (a) “Deliver to Licensee Fee” means the fee established from time to time by Kegshare and as published on the Kegshare Price List applicable to each scan of a Keg on it being delivered to any location by You, or by a Distribution Partner, in accordance with these Terms and Conditions. (b) “Distribution Partner” means any person or entity contracted by Kegshare to deliver, collect and warehouse Kegs in the Kegshare Service. (c) “Early Termination Fee” has the meaning ascribed thereto in Section 7.2 (Early Termination) (d) “Event of Default” has the meaning ascribed thereto in Section 6.3 (Events of Default). (e) “Home Distribution Partner” is the closest warehouse of a Distribution Partner to Your manufacturing facility in which kegs are physically Released to You upon a “Released to Member Scan”. (f) “Keg” means a 304 grade stainless steel vessel owned by Kegshare and made available for use by its customers pursuant to the Kegshare Service. (g) “Kegshare” has the meaning ascribed thereto in the Recitals. (h) “Kegshare Network” means the internet platform located at kegshare.ca; (i) “Kegshare Price List” means the price list published by Kegshare on its website from time to time. (j) “Kegshare Service” means the shared Keg pool and associated membership benefits described in greater detail here: [NTD: Insert link to description of Kegshare Service on Kegshare website]; (k) “Kegshare Token” means a right, exercisable at any time during the applicable Token Lifespan, to access and use for a permitted purpose a Keg of a specified size and description from among the pool of available Kegs maintained by Kegshare in connection with the Kegshare Service. (l) “Membership Benefit Dues” means the monthly member benefits fee for each Kegshare Token established by Kegshare from time to time and as published on the Kegshare Price List. (m) “Overdraft” has the meaning ascribed thereto in 3.2 (Overdraft). (n) “Permitted Beverage” means beer or cider or any other beverage consented to in writing by Kegshare from time to time. (o) “Release to Member Scan Fee” means the fee established from time to time by Kegshare and as published on the Kegshare Price List applicable to each scan of a Keg on it being released to You in accordance with these Terms and Conditions. (p) “Repositioning Fee” means the fee established from time to time by Kegshare and published on the Kegshare Price List applicable to the repositioning of a Keg when a Return to Network Scan is completed by a Distribution Partner that is not Your Home Distribution Partner. (q) “Repurchase Price” means the price to have a Kegshare Token repurchased at a particular time, determined as (i) the initial purchase price of the Kegshare Token, multiplied by (ii) the number of months remaining on the Token Lifespan applicable to such Kegshare Token, divided by (iii) the number of months in the full term of a Token Lifespan. The Kegshare Repurchase Price Schedule [NTD: Insert link for repurchase schedule.] sets forth the applicable Repurchase Price for a Keg based on the size of such Keg and the number of months remaining on the Token Lifespan applicable to such Keg. (r) “Return to Network Scan Fee” means the fee established from time to time by Kegshare and published on the Kegshare Price List applicable to each scan of a Keg on it being collected by, or otherwise returned to a, Distribution Partner in accordance with these Terms and Conditions. (s) “Repurchase Offer” has the meaning ascribed there in Section 2.4 (Repurchase) (t) “Term” has the meaning ascribed thereto in Section 7.1 (Termination on Transfer, Expiry or Repurchase). (u) “Terms and Conditions” has the meaning ascribed thereto in the Recitals. (v) “Token Lifespan” means the lifespan applicable to a Kegshare Token, being a period of one hundred and twenty (120) consecutive months commencing on the date Kegshare receives payment for such Kegshare Token. (w) “Token Purchase Price” means the purchase price for a Kegshare Token established by Kegshare from time to time and as published on the Kegshare Price List based on the size of the Keg to which such token applies and whether such token is being purchased outright or financed. (x) “Token Transfer Fee” means the fee established from time to time by Kegshare and published on the Kegshare Price List applicable to the repurchase of a Kegshare Token by Kegshare or the transfer of a Kegshare Token to a third party. (y) “You” or “Your” has the meaning ascribed thereto in the Recitals.
2.1 Purchase of Kegshare Tokens You agree to purchase the Kegshare Tokens in accordance with these Terms and Conditions. The Kegshare Tokens may be purchased outright or financed over a period of between one (1) and four (4) years, at Your option. If You select to finance any Kegshare Tokens, You must read and agree to be fully bound by the Kegshare Purchase Finance Terms.
2.2 Token Purchase Price The Kegshare Price List sets forth the price of each Kegshare Token based on the size of the Keg You wish the Kegshare Token to access and the various purchase options offered by Kegshare. A Kegshare Token will not be available for use by You in the Kegshare Service unless Kegshare receives payment of the Token Purchase Price in full, in accordance with written instructions provided to You. 2.3 Expiry Upon Kegshare receiving payment of the Token Purchase Price in full for a Kegshare Token, the Kegshare Token will be made available to You for use in the Kegshare Service for a period of one hundred and twenty (120) consecutive months from the date of receipt of such payment, subject to earlier expiry in accordance with these Terms and Conditions. Immediately upon expiry, a Kegshare Token will no longer be available for use by You in the Kegshare Service, and will be of no further force or effect.
2.4 Repurchase / Transfer At any time during the Token Lifespan, upon providing Kegshare with written notice setting forth the specific number of Kegshare Tokens, You may offer Kegshare some or all of Your Kegshare Tokens that are not being used to access Kegs for repurchase (a “Repurchase Offer”). Kegshare, in its sole discretion, may elect to repurchase all or any portion of the Kegshare Tokens subject to the Repurchase Offer at the applicable Repurchase Price minus the Token Transfer Fee for each such Kegshare Token. Kegshare reserves the right to select to repurchase the Kegshare Tokens from You with the lowest Repurchase Price. You acknowledge and understand that the right granted to You to make a Repurchase Offer does not in any way obligate Kegshare to accept the Repurchase Offer or otherwise repurchase any Kegshare Tokens from You. If Kegshare elects not to repurchase some or all of the Kegshare Tokens that are subject to the Repurchase Offer, You may sell those unpurchased Kegshare Tokens to a third party with the prior written consent of Kegshare, provided that: (i) the third party agrees in writing, the form and substance of which must be reasonably satisfactory to Kegshare, to be bound by these Terms and Conditions; and (ii) You pay the Token Transfer Fee to Kegshare for each Kegshare Token so transferred. Any such sale by You without Kegshare’s explicit written consent shall be void and of no effect. If two (2) months have elapsed since the date of a Repurchase Offer, You must make another Repurchase Offer to Kegshare prior to being permitted to sell any Kegshare Tokens to a third party.
3.1 Standard Access Subject to Section 3.2 (Overdraft) below, each Kegshare Token purchased by You in accordance with these Terms and Conditions provides access to one (1) Keg of the specific size related to such Kegshare Token. In the Kegshare Network, You may request that a Kegshare Token be used to have a Keg of the applicable size assigned to You. Provided that all applicable fees in connection with Your account have been paid at the time of making such request, the Kegshare Token will then be marked in the Kegshare Network as “in use” and a Keg of the applicable size will be scanned as “released” upon being delivered to a location specified by You or made available for collection by You from Your Home Distribution Partner. When the Keg is: (i) returned to or otherwise collected by a Distribution Partner, (ii) inspected and determined to be in good condition, reasonable wear and tear excepted; and (iii) scanned into the Kegshare Network as “returned”, the “in use” Kegshare Token will immediately be marked in the Kegshare Network as “available” and can be used to have another Keg assigned to You. 3.2 Overdraft You may request that Kegshare grant You access to up to ten percent (10%) more Kegs than Kegshare Tokens that You have available from time to time (the “Overdraft”). Kegshare will only approve such request if Your account contains sufficient turnover history, but reserves the right to deny Your request for Overdraft for any other reason.
MEMBER BENEFITS AND FEES
4.1 Membership Benefit Dues In consideration of Kegshare granting You continued access to the Kegshare Service and the Kegshare Network during the Term, You agree to pay Kegshare the applicable Membership Benefit Dues, monthly, during each year of the Term, for each Kegshare Token allocated to You in the Kegshare Network. You acknowledge and understand that the requirement to pay the Membership Benefit Dues in respect of a Kegshare Token is not contingent upon or in any way connected with such Kegshare Token being used by You to have any Kegs assigned to You during the applicable month. 4.2 Scanning Fees Each time a Keg is scanned in the Kegshare Network as “released” as a result of being assigned to You, You agree to pay the Release to Member Scan Fee. Each time a Keg is scanned in the Kegshare Network as “delivered” as a result of being delivered by You or a Distribution Partner to Your customer, You agree to pay the Deliver to Licensee Scan Fee. Each time a Keg that was assigned to You is scanned as “returned” as a result of being collected by or returned to a Distribution Partner, You agree to pay the Return to Network Scan Fee. The applicable Release to Member Scan Fee and the Return to Network Scan Fee are each determined based on the location in which the Keg is released or returned, as set forth in the Kegshare Price List. 4.3 Repositioning Fee Each time a Distribution Partner other than Your Home Distribution Partner completes a Return to Network Scan, You agree to pay the Repositioning Fee. For the avoidance of doubt, Kegshare does not charge a Repositioning Fee when a Return to Network Scan is completed by Your Home Distribution Partner.
INVOICES AND PAYMENT
5.1 Invoices On the first day of each calendar month during the Term, the Kegshare Network will generate an invoice for Your current month’s rental / surge / token financing and membership fees plus Your previous month’s scanning and repositioning fees if applicable.
5.2 Payment Invoices are immediately due and payable and any credit card on file may be automatically charged on the date of the invoice.
LOST KEGS AND DEFAULT
6.1 Lost Kegs
You agree to notify Kegshare in writing immediately upon becoming aware that a Keg that has been assigned to You is misplaced or lost. In such event, You agree to immediately pay to Kegshare for each Keg so misplaced or lost: (i) the remainder of the Purchase Price for the applicable Kegshare Token if such Kegshare Token was being financed; and (ii) the Early Termination Fee. Upon Kegshare’s receipt of such notice, the Kegshare Token used to access such Keg will no longer be made available for use by You and the number of Kegshare Tokens to which You have access will be reduced accordingly. You acknowledge and agree that in the event You have a Keg that has been reported misplaced or lost by You is found and scanned back into the Kegshare Network as “returned”, Kegshare will not be required to increase the number of Kegshare Tokens available to You.
So long as any Kegs are in Your possession or control, You agree to be 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 a Keg that is Your possession or control breaks, becomes unsafe to use or is damaged beyond normal wear and tear as a result of either Your negligence, willful misconduct, or Your failure to follow: (i) Kegshare Policies and Procedures [NTD: Insert link to Policies and Procedures, if any], (ii) Kegshare’s instructions, to the extent such instructions have been provided by Kegshare, (iii) industry accepted safety guidelines, or (iv) any Applicable Laws, then You must immediately, as applicable: (i) stop using the Keg; (ii) notify Kegshare; 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 agree to pay, at Kegshare’s sole discretion, the full cost to repair (if applicable) or purchase a replacement Keg at the market prices. If Kegshare elects to repair a Keg that is damaged by You, the Kegshare Token used to access such Keg will not be made available to You while such Keg is being repaired. You agree that You will not repair or attempt to repair a damaged, broken or unsafe Keg without the prior written consent of Kegshare, which may be withheld in its sole discretion.
6.3 Events of Default
Each of the following is an “Event of Default” under these Terms and Conditions: (i) Your failure to pay any fees or otherwise make any payment to Kegshare by the applicable due date arising under these Terms and Conditions or in connection with Your purchase of Kegshare Tokens or use of the Kegs; (ii) Your failure to otherwise comply with or perform any of Your obligations under these Terms and Conditions or, if applicable to You, the Kegshare Purchase Finance Terms; and/or (iii) any default by You under a credit or similar agreement in which Your assets have been provided as security. 6.4 Remedies Upon an Event of Default occurring Kegshare may, in its sole and absolute discretion: (i) enter upon any premises leased or owned by You during normal business hours for the sole purpose of recovering any Kegs that have not been collected by or otherwise returned to a Distribution Partner; (ii) suspend or terminate Your Kegshare Tokens and/or prohibit You, either temporarily or permanently, from accessing the Kegshare Network; and/or (iii) demand immediate payment for any and all amounts owing under these Terms and Conditions. Kegshare is not responsible for losses that may occur as a result of recovering any Kegs in accordance with this Section 6.4 (Remedies). Upon the occurrence of an Event of Default and Kegshare electing to recover any Kegs, any product inside such Kegs is forfeited without pay and will be destroyed by Kegshare.
7.1 Termination on Expiry, Transfer or Repurchase
These Terms and Conditions, as applicable to a Kegshare Token, are effective as of the date the order for such Kegshare Token is submitted to Kegshare from the Site, and terminate upon the earlier of (such period, the “Term”): (i) the expiry of the Token Lifespan applicable to such Kegshare Token; (ii) the date upon which such Kegshare Token is repurchased by Kegshare in accordance with Section 2.4 (Repurchase); (iii) the date upon which such Kegshare Token is transferred, sold or assigned to a third party approved in accordance with Section 2.4 (Repurchase / Transfer); and (iv) the date upon which You return all Kegs in Your possession to Kegshare or its agent and Kegshare receives the Early Termination Fee, in full, in accordance with Section 7.2 (Early Termination). For the avoidance of doubt, You acknowledge and agree that You continue to be bound by and subject to these Terms and Conditions for as long as You are in possession of any Kegs or unexpired Kegshare Tokens. Upon the expiry of the Term applicable to a Kegshare Token, such Kegshare Token will no longer available for use by You in the Kegshare Service, and will be of no further force or effect, provided however, that You must continue to pay the required Membership Benefit Dues and any other applicable fees until the date that all the Kegs in Your possession or control or in the Kegshare Network as being assigned to You are collected by or otherwise returned to a Distribution Partner.
7.2 Early Termination In the event You wish to exit the Kegshare Service prior to the expiry of all Your Kegshare Tokens, and You are unable to have Your Kegshare Tokens repurchased by Kegshare or sold to a third party, You may provide written notice to Kegshare of Your intention to exit the Kegshare Service. You agree to continue to pay the required Membership Benefit Dues and any other applicable fees until the date that all the Kegs in Your possession or control or in the Kegshare Network as being assigned to You are collected by or otherwise returned to a Distribution Partner. Following such date, You agree to pay a fee to Kegshare equal to the Membership Benefit Dues for three (3) months in respect of each unexpired Kegshare Token in Your possession (the “Early Termination Fee”). Following Kegshare’s receipt of such fee in respect of a Kegshare Token, such Kegshare Token will be deemed to have immediately expired.
8.1 Your Obligations
You must: (i) notify Kegshare immediately upon becoming aware that a Keg that has been assigned to You is lost or misplaced; (ii) comply, and ensure that Your employees comply, at all times with Kegshare Policies and Procedures [NTD: Insert link to Policies and Procedures, if any], any applicable industry accepted safety guidelines, any specified Kegshare instructions and all Applicable Laws when using, operating, loading, securing or transporting Kegs; (iii) use, and ensure that Your employees use, the Kegs solely for their intended purpose and in accordance with these Terms and Conditions (iv) fully clean and sterilize each Keg prior to use: (v) 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 Kegshare Network, and not used for ageing of any beverages; (vi) not in any way alter, modify (including, without limitation, with stickers, markings, or brandings of any sort), damage or repair the Kegs without the consent of Kegshare, which may be withheld in its sole discretion; (vii) not deface, vary or erase any identifying mark, number, notice or safety information on a Keg; and (viii) immediately notify Kegshare in writing if any creditor which has security over Your assets notifies of You that You are in default of Your obligations under the applicable credit or similar agreement. 8.2 Title/Ownership These Terms and Conditions are not a contract of sale, and title to the Kegs shall at all times remain with Kegshare or its agent. Unless covered by a specific supplemental agreement signed by Kegshare, You acknowledge and agree that You have no option or right whatsoever to purchase any of the Kegs. You further agree to keep the Kegs free and clear of all liens and encumbrances.
Kegshare represents and warrants to You that all Kegs made available to You under these Terms and Conditions shall: (i) be of merchantable quality intended for the purpose contemplated hereunder; (ii) be of good material and workmanship; (iii) be free from any defects in materials, workmanship and design; and (iv) meet standard industry practices and procedures. 8.4 Disclaimer Except as may be specifically set forth in these Terms and Conditions, Kegshare disclaims all warranties, either express or implied, made in connection with Your purchase of the Kegshare Tokens or use of any Kegs and these Terms and Conditions. The data contained in the Kegshare Network is expressly provided as-is. Kegshare makes no warranty of any kind, express or implied, concerning this information, including but not limited to any warranties of merchantability or fitness for any particular purpose. Kegshare further assumes no responsibility or legal liability concerning such data’s accuracy, reliability, completeness, timeliness, or usefulness. 8.5 Limitation of Liability In no event shall Kegshare be: (i) responsible to You or any other party for any loss, damage or injury caused by, resulting from or in any way connected with the Kegshare Tokens, the Kegs, their respective operation or use, including as a result of Your failure to clean and sterilize each Keg prior to its use, Kegshare’s failure to make Kegs available as required hereunder, Kegshare’s failure to repair or replace non-working Kegs, or Your use of the Kegshare Network or any software provided by Kegshare, or any errors contained therein; or (ii) liable for any incidental, consequential, punitive or special damages. You acknowledge and assume all risks inherent in the operation, use and possession of a Keg from the time a Keg is collected by or otherwise assigned to You until the time such Keg is collected by or otherwise returned to a Distribution Partner, and will take all necessary precautions to protect all persons and property from injury or damage from a Keg. Kegshare’s maximum aggregate liability for breach of these Terms and Conditions (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort or otherwise, shall in no circumstances exceed three (3) months’ fees received by Kegshare from You under these Terms and Conditions. 8.6 Indemnity To the fullest extent permitted by law, You agree to indemnify, defend and hold Kegshare, and any of its 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, attorneys’ 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 Your purchase of any Kegshare Tokens, Your operation, use, possession or rental of the Kegs or Your use of any data contained in the Kegshare Network. This indemnity provision also applies to any claims asserted against Kegshare based upon strict or product liability causes of action. Notwithstanding the foregoing, You shall not be obligated to indemnify Kegshare for that part of any loss, damage or liability caused solely by the willful misconduct or gross negligence of Kegshare. 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 shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity You enjoy from suits by its own employees. The duty to indemnify will continue in full force and effect notwithstanding the expiration or early termination of these Terms and Conditions. 8.7 Notices All notices, accountings and payments (each, a “Notice”) required or permitted hereunder must be in writing and delivered by email and will be deemed to have been given on the Business Day following such email transmission.
These Terms and Conditions are subject to change at any time, at Kegshare’s sole discretion, upon written notice. 8.9 Severability Any provision of these Terms and Conditions that is or becomes unenforceable shall be unenforceable to the extent of such unenforceability without invalidating the remaining provisions hereof. To the extent permitted by applicable law, each of the parties hereby waives any provision of law that renders any provision hereof unenforceable in any respect. 8.10 Entire Agreement These Terms and Conditions constitute the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in these Terms and Conditions. For the avoidance of doubt, these Terms and Conditions do not apply to any rental of Kegs under a previous or different program or service offered by Kegshare that is not the Kegshare Service. 8.11 Independent Legal Advice You hereby acknowledges and agrees that You have had the opportunity to seek independent legal advice with respect to the terms of these Terms and Conditions and have either obtained such advice or, notwithstanding such opportunity, wish to enter into the Agreement without the benefit of such advice. 8.12 Governing Law. These Terms and Conditions 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, and the parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia.