Terms and Conditions – Kegshare
By clicking the “I Accept” button, Customer agrees and acknowledges that Customer has read, understands, accepts full responsibility for and is bound by these Terms and Conditions for the duration of the Rental Period.
2. Defined Terms
Capitalized terms used in these Terms and Conditions have the meaning ascribed to them in Section 20 (Definitions).
3. Keg Rental
Customer agrees to rent the Kegs from Kegshare for the duration of the Rental Period in accordance with the applicable Order and these Terms and Conditions. Kegshare reserves the right to refuse to supply any Kegs requested by Customer under these Terms and Conditions (for example, due to inventory shortages). Kegshare will provide all Kegs empty and unclean. Customer may store empty, unused Kegs with a Distributor for no extra cost (other than the applicable Rental Charges).
4. Rental Charges
Customer agrees to pay the Rental Charges in accordance with the Rate Table (which, for greater certainty, excludes applicable taxes) for the duration of the Rental Period. All Rental Charges are non-refundable. Customer acknowledges and agrees that Rental Charges and other fees contained in the Rate Table are solely in connection with Customer’s rental of the Kegs from Kegshare, and that Customer may incur additional charges from Distributor for the delivery and collection of Kegs, and for any other services agreed to between Customer and Distributor from time to time.
5. Rental Period
The Rental Period for a Keg commences on the date a Keg is released to a Distributor for delivery or collected by Customer from Distributor, in accordance with the applicable Order, and ends on the date that Customer either returns the Keg to Distributor or makes the Keg available for collection by Distributor, provided that Customer provides written notice to Kegshare informing Kegshare of Customer’s intention to return the Keg and terminate the applicable Rental Period at least prior seven (7) days prior to such date, unless otherwise agreed to in writing by Kegshare. Customer further acknowledges and agrees that the Rental Charges are based on a minimum three (3) year Rental Period for each Keg and that additional charges may apply if Customer wishes to reduce such minimum Rental Period for any Keg.
6. Surge Kegs
Notwithstanding anything herein to the contrary, a shorter Rental Period may apply if the Customer agrees to pay the applicable “Surge” Keg pricing set forth in the Rate Table. The Rental Period of a “Surge” Keg commences on the date a Keg is released to a Distributor for delivery or collected by Customer from Distributor, in accordance with the applicable Order, and ends on the date that Customer either returns the Keg to Distributor or makes the Keg available for collection by Distributor, provided that Customer provides written notice to Kegshare informing Kegshare of Customer’s intention to return the Keg and terminate the applicable Rental Period at least prior seven (7) days prior to such date, unless otherwise agreed to in writing by Kegshare. Customer further acknowledges and agrees that the Rental Charges are based on a minimum three (3) month Rental Period for each “Surge” Keg and that additional charges may apply if Customer wishes to reduce such minimum Rental Period for any “Surge” Keg.
7. Other Charges
In addition to the Rental Charges, Customer is also required to pay: (i) all applicable taxes; (ii) any applicable additional charges set forth in the Rate Table, including, without limitation, a cleaning fee, early termination fee or re-positioning fee; (iii) any amounts payable under Section 14 (Loss, Theft, Damage); (iv) any other applicable levy, fine, penalty or governmental charge arising out of these Terms and Conditions or Customer’s rental or use of the Kegs; and (v) any credit card or transactions fees charge to process payment via credit card.
All amounts owing under these Terms and Conditions will be charged to Customer on a monthly basis following the end of each calendar month during the Rental Period, and each such invoice is due immediately upon receipt by Customer. If Customer fails to make the required payment within thirty (30) days of the due date set forth in the applicable invoice, Customer will be required to pay Kegshare: (i) interest (calculated monthly) on the unpaid amount, at a rate equal to ten percent (10%) 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 Kegshare in recovering the unpaid amount. All amounts due under these Terms and Conditions shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Customer further acknowledges and agrees that if any payments due to Kegshare are not paid within thirty (30) days of the due date set forth in the applicable invoice, Kegshare will immediately freeze delivery of any additional Kegs to Customer. If Customer does not make the required payments within ninety (90) days of the date set forth in the applicable invoice, Customer shall permit Kegshare or its agent to enter into Customer’s premises for the purpose of recovering any Kegs in the possession or control of Customer. Customer shall be liable for all costs and expenses incurred by Kegshare in so recovering any Kegs.
9. Delivery and Return of Kegs
Kegs will be released for delivery or made available for pickup in accordance with the applicable Order. If Customer requests that the Kegs be delivered, risk and title to the Kegs pass to Customer upon delivery to the address specified in the applicable Order. If Customer requests that the Kegs be made available for pickup, risk and title to the Kegs pass to Customer upon collection of the Kegs by Customer from Distributor. Unless otherwise agreed to in writing by Kegshare, all Kegs will be delivered to or made available for pickup by Customer in full pallets or multiples thereof. Customer agrees 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 Customer. Customer agrees that it shall continue to be liable for Rental Charges applicable to a Keg, regardless of whether the notice required under Section 5 (Rental Period) has been provided, until Customer either returns the Keg to Distributor or makes the Keg available for collection by Distributor. If Customer does not make the Keg available for pickup within thirty (30) days of date indicated in the notice required by Section 5 (Rental Period), Kegshare shall have the right, but not the obligation, to enter, or have its agent enter, Customer’s premises for the purpose of recovering any Kegs that were subject to such notice. Customer agrees that it shall be liable for all costs and expenses incurred by Kegshare in so recovering any Kegs. For the avoidance of doubt, if Kegshare elects not to exercise such right, Customer shall continue to be liable for Rental Charges until the applicable Rental Period is terminated in accordance with these Terms and Conditions.
10. Customer Obligations
Customer must: (i) not at any time allow any third party (other than a Distributor) to use or have possession of the Kegs without Kegshare’s consent, which may be withheld in its sole discretion; (ii) comply, and ensure that its employees comply, with Kegshare Policies and Procedures, 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 its 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 system, 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 and (vii) not deface, vary or erase any identifying mark, number, notice or safety information on a Keg.
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, Customer has no option or right whatsoever to purchase any of the Kegs. Customer shall keep the Kegs free and clear of all liens and encumbrances.
Customer shall not sublease, subrent, assign or loan the Kegs without the prior written consent of Kegshare, which may be withheld in its sole discretion. Any such action by Customer, without Kegshare’s written consent, shall be void and of no effect. Kegshare may at any time, without notice to Customer, transfer or assign its obligations under these Terms and Conditions or any Kegs or any moneys or other benefits due or to become due hereunder.
Customer agrees that it 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. Unless Customer is determined to be at fault for the damage to a Keg pursuant to Section 14 (Loss, Theft, Damage), Kegshare will repair the Keg or provide a substitute (at its own cost), as soon as reasonably practicable after receiving the notice required under this Section 13 (Breakage)
14. Loss, Theft, Damage
During the Rental Period, so long as any Keg are in the possession or control of Customer, Customer is 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 Rental Period, a Keg that is in Customer’s possession or control breaks, becomes unsafe to use, is damaged beyond normal wear and tear, or is lost or stolen as a result of Customer’s negligence, willful misconduct, or its failure to follow: (i) Kegshare Policies and Procedures, (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 Customer 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, Customer must pay, at Kegshare’s sole discretion, the full cost to repair (if applicable) or replace the Keg. If Kegshare elects to repair a Keg that is damaged by Customer pursuant to this Section 13 (Loss, Theft, Damage), Customer is required to pay the applicable Rental Charges for such Keg while it is being repaired.
Kegshare makes no warranties, express or implied, as to the merchantability of the Kegs or their fitness for any particular purpose. There is no warranty that the Kegs are suited for Customer’s intended use, or that they are free from defects. Except as may be specifically set forth in these Terms and Conditions, Kegshare disclaims all warranties, either express or implied, made in connection with Customer’s rental of the Kegs and these Terms and Conditions.
16. Limitation of Liability
During the Rental Period, in no event shall Kegshare be: (i) responsible to Customer or any other party for any loss, damage or injury caused by, resulting from or in any way connected with the Kegs, their operation or their use, Kegshare’s failure to deliver the Kegs as required hereunder, Kegshare’s failure to repair or replace non-working Kegs, or Customer’s use of any software provided by Kegshare, or any errors contained therein; or (ii) liable for any incidental, consequential, punitive or special damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of a Keg from the time the risk and title to the Keg passes to Customer in accordance with Section 9 (Delivery and Return of Kegs) until the time such Keg is returned to Kegshare, 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 the cost of fulfilling its obligations under Section 13 (Breakage).
To the fullest extent permitted by law, Customer agrees 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 the operation, use, possession or rental of the Kegs. This indemnity provision also applies to any claims asserted against Kegshare based upon strict or product liability causes of action. Notwithstanding the foregoing, Customer 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, Customer expressly and specifically agrees 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 Customer enjoys 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.
Kegshare may immediately terminate its obligations under these Terms and Conditions by giving written notice to Customer in the event that Customer: (i) breaches any term of these Terms and Conditions and fails to remedy the breach within seven (7) days of written notification of the breach; or (ii) becomes insolvent, makes an assignment in bankruptcy, has a receiver, agent or other official having similar powers appointed either privately or by a court of competent jurisdiction, by or on behalf of a creditor of Customer over Customer or any or all of its property or assets, or makes a proposal to its creditors under any Applicable Law. Either party may terminate their obligations under these Terms and Conditions for any reason by giving the other party 30 days’ written notice. If Customer so terminates prior to the expiry of an applicable Rental Period, such Rental Period will continue as if the obligations under these Terms and Conditions had not expired or terminated and these Terms and Conditions will continue to apply until the expiry of the applicable Rental Period. Nothing in this Section 18 (Termination) affects a party’s other rights under these Terms and Conditions or any other right or remedy under law or equity and termination of these Terms and Conditions for any reason will not prejudice the rights or obligations of either party accrued prior to such, including, without limitation, Kegshare’s right to receive payment for Rental Charges accrued under these Terms and Conditions.
19. Force Majeure
Neither party will be liable for a delay in performance of an obligation under these Terms and Conditions (other than an obligation to pay money) due to causes beyond the party’s control, including but not limited to acts of God, war, terrorism, civil commotion, riots, government orders or regulations, fires, floods, strikes, lockouts or other labour disputes and inability to obtain transportation over land or sea.
20. Definitions In these Terms and Conditions:
“Applicable Laws” means all applicable provisions of laws, statutes, rules, regulations, official directives and orders of all federal, provincial, territorial, municipal and local governmental bodies (whether administrative, legislative, executive or otherwise) having jurisdiction over Customer, its products or its business; “Customer” means the person or entity that is receiving the Kegs, as specified in the Order; “Distributor” means the person or entity contracted by Kegshare to deliver, collect and warehouse Customer’s Kegs; “Kegs” means any kegs rented by Customer from Kegshare, used for packaging and dispensing Permitted Beverages; “Kegshare” means FreshTAP Logistics Inc. d/b/a Kegshare; “Kegshare Policies and Procedures” means the policies, procedures and guidelines published by Kegshare on its website, and as may be amended by Kegshare from time to time; “Order” means an order placed by Customer on Kegshare’s website and accepted by Kegshare, which is subject to these Terms and Conditions, and which contains, among other things: (i) the name of the Customer; (ii) the number and size of Kegs being rented; and (ii) the delivery address; “Permitted Beverages” means beer, wine or cider, or any other beverage consented to in writing by Kegshare; “Rate Table” means the rate table published by Kegshare on its website from time to time containing the standard rental pricing schedule, the surge pricing schedule and the additional fees charged by Kegshare, all of which are subject to change at any time; “Rental Charges” means the rental charges applicable to Customer set forth in the standard rental pricing schedule provided for in the Rate Table, as updated by Kegshare from time to time; “Rental Period” means the rental period for a Keg as determined pursuant to Section 5 (Rental Period); “Software” means the inventory and distribution management software further developed and enhanced for Kegshare’s exclusive benefit and its specific business; and “Terms and Conditions” means these Terms and Conditions and any associated Order.