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Last Updated: November 22, 2023
ARTICLE 1
INTERPRETATION
1.1 Definitions.
In addition to terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings, unless the context otherwise requires:
(a) Affiliate or Affiliates means any Person directly or indirectly controlled by, controlling, or under common control with a party, including any of the foregoing which becomes an Affiliate after the date of a Contract. Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and controlled have correlative meanings.
(b) Applicable Law means those laws (common or statutory), rules, regulations, codes, administrative and judicial orders and directives, rulings, interpretations, permit conditions and restrictions or similar requirements or actions of any federal, state, provincial, or local government, or any agency or executive or administrative body of any of the foregoing, in each case that govern or pertain, as of the date of the applicable Contract, to the Parties’ performance of obligations in connection with an accepted Contract.
(c) Claim(s) means all claims (including those for property damage, environmental damage, personal injury, illness, disease, maintenance, cure, loss of consortium, loss of support, or death), damages, liabilities (including contractual liabilities), losses, demands, liens, encumbrances, government imposed fines and/or penalties, causes of action of any kind, obligations, costs, judgments, interest and awards (including legal costs as between a solicitor and his or her own client on a full indemnity basis) of any kind or character, whether under judicial proceedings, administrative proceedings or otherwise.
(d) Contract has the meaning given thereto in Section 2.1(e)(v) and incorporates, for greater certainty, these Terms and Conditions therein.
(e) Customer means any Person to whom Keller sells Products pursuant to an accepted Contract.
(f) Customer Representatives or Customer Representative means and includes, individually or in any combination, Customer, its subsidiaries and Affiliates and each of their respective directors, officers, servants, agents, advisors, employees, consultants, contractors, subcontractors and representatives and their respective successors and/or assigns.
(g) Dollars or $ means Canadian dollars unless otherwise expressly described in a Contract.
(h) Force Majeure means any act or event that renders it wholly or partially impossible for Keller to perform its obligations under any Contract or delays Keller’s ability to do so, when such act or event (i) is beyond the reasonable control of Keller; (ii) is not due to the fault or negligence of Keller; and (iii)could not have been avoided by Keller by the exercise of reasonable diligence. Force Majeure shall include acts of God, laws and regulations, government action, war, civil disturbances, strikes and labor problems, delays of vendors or carriers, lightening, fire, flood, washout, breakage or accident to Products, shortage of raw materials, epidemic, pandemic (including the COVID-19 pandemic), quarantine, civil commotion and any other causes that are not reasonably within the control of Keller.
(i) Keller means Keller Equipment Supply Ltd. or any other member of the Keller Group which furnishes the Products to the Customer in accordance with a Contract.
(j) Keller’s Facility means the Keller distribution stock point or other location at or from which any Products are made available to Customer for pick-up as may be designated in the applicable Contract.
(k) Keller Group means and includes, individually or in any combination, Keller, its parents and subsidiaries and Affiliates and each of their respective directors, officers, servants, agents, advisors, employees, consultants, contractors, subcontractors and representatives and their respective successors and/or assigns.
(l) Non-Refundable Deposit means the non-refundable deposit that the Customer must deliver to Keller in connection with a Contract in the amount more particularly set forth in such Contract.
(m) Parties means Keller and the Customer.
(n) Person includes any individual, corporation, limited liability company, unlimited liability company, body corporate, partnership, limited liability partnership, firm, joint venture, syndicate, association, capital venture fund, private equity fund, trust, trustee, executor, administrator, legal personal representative, estate, government, government authority or board or commission or authority and any other form of entity or organization, whether or not having legal status.
(o) Product(s) means any goods, equipment, materials, or other items sold by Keller to Customer pursuant to a Contract.
(p) Terms and Conditions means these General Terms and Conditions for Sale of Products.
1.2 General Terms.
As used in these Terms and Conditions, unless expressly stated otherwise, references to (a) “includes” or “including” means “including, without limitation” or “including, but not limited to”; (b) “and/or” means “either or both”; and (c) “or” means “either”.
1.3 Purpose.
THIS DOCUMENT CONSTITUTES THE TERMS AND CONDITIONS THAT APPLY TO THE SALE OF PRODUCTS BY KELLER TO THE CUSTOMER IN CONNECTION WITH A CONTRACT. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY ACCEPTANCE OF KELLER OF ANY PURCHASE ORDER, REQUEST FOR SUPPLY OR CONTRACT FOR PRODUCTS IS LIMITED TO AND SUBJECT TO THESE TERMS AND CONDITIONS. THE CUSTOMER AGREES THAT ANY SUPPLEMENTAL, ADDITIONAL OR VARYING TERMS, CONDITIONS, LIMITATIONS OF LIABILITY OR REPRESENTATIONS OR WARRANTIES PROPOSED BY CUSTOMER IN ANY WRITTEN OR ORAL COMMUNICATION BETWEEN THE PARTIES WHETHER BY QUOTE, PURCHASE ORDER, ACCEPTANCE OR DELIVERY DOCUMENT SHALL NOT BE BINDING ON THE PARTIES AND IS EXPRESSLY REJECTED BY KELLER. ANY REVISION OR ADDITION TO THESE TERMS AND CONDITIONS MUST BE IN WRITING AND MUST BE SIGNED OR OTHERWISE EXPRESSLY ACCEPTED BY AN AUTHORIZED SIGNATORY OF KELLER IN ORDER TO BE VALID AND BINDING ON KELLER. THE CUSTOMER’S EXECUTION OF ANY CONTRACT, ORDER ACKNOWLEDGMENT, ACCEPTANCE OF PRODUCTS OR LACK OF EXPRESS WRITTEN OBJECTION WITHIN 14 DAYS OF ANY ORDER ACKNOWLEDGMENT FROM KELLER IS DEEMED TO BE THE CUSTOMER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS APPLICABLE TO ANY AND ALL SALE OF PRODUCTS BY KELLER TO THE CUSTOMER.
1.4 Precedence.
In the event of any conflict between these Terms and Conditions and the terms of any Contract, the Parties agree that these Terms and Conditions shall prevail unless a Contract: (a) makes specific reference (by Section and/or subsection number) to the provision(s) of these Terms and Conditions to be modified; (b) explicitly states the intention of the Parties to effect the modification thereof; and (c) is executed or otherwise expressly agreed to on behalf of each Party by an authorized officer of the Party. Such modifications shall be effective for that provision of the Contract only, and no such agreement shall have the effect of varying or amending these Terms and Conditions with respect to any other or subsequent provision of the Contract.
1.5 Notice.
Any notice to be given by Keller to the Customer under these Terms and Conditions is valid if given in writing by personal delivery, mail or e-mail.
ARTICLE 2
CONTRACT; CHANGE ORDERS; PAYMENT; TAXES
2.1 Contract.
(a) From time to time, at the request of Customer, Keller will sell Products to the Customer as specified in a Contract provided that such request of the Customer has been accepted by Keller in the manner set forth in these Terms and Conditions.
(b) Each Customer request delivered to Keller from time to time shall contain reasonably detailed business and functional requirements to enable Keller to identify the particulars of the Products to be supplied and any other aspects of the Products in respect of which the Customer requires certain customization, if any.
(c) Keller is free to accept requests of the Customer in any written form, including purchase orders, work orders, statements of work, emails or other written communication between the Parties, regardless of format.
(d) A request of the Customer shall only be accepted or deemed to have been accepted by Keller if such request is expressly accepted in writing by Keller delivered to Customer through the delivery by Keller of an order acknowledgment or if Keller otherwise proceeds in ordering the Products in connection with such Customer request.
(e) In every such case, the following shall apply:
(i) upon receipt of a Customer request in accordance with these Terms and Conditions which Keller desires to accept, Keller shall prepare and deliver to the Customer a draft quote for the applicable Products and the parties shall collaborate in a timely manner to agree on terms reasonably acceptable to the parties for such Products so that the Keller quote can become finalized;
(ii) each such finalized quote will only be open for acceptance by the Customer within fourteen (14) days from the date of the applicable quote;
(iii) if the Customer desires to accept the finalized quote, the Customer shall respond to Keller with either a purchase order of the Customer or some other form of confirmation from the Customer that conveys a desire to accept the finalized quote, as determined by Keller acting reasonably;
(iv) upon receipt by Keller of the Customer’s purchase order or acceptance confirmation, Keller shall prepare and deliver to the Customer an order acknowledgment setting forth further particulars of the Customer’s order;
(v) the terms set forth in the Keller finalized quote and the Keller order acknowledgment are deemed to be the “Contract” for the purposes of these Terms and Conditions and shall, subject to these Terms and Conditions, control and govern all transactions between the Parties with respect to the purchase of the Products, whether or not these Terms and Conditions are referred to in the Contract;
(vi) no other, additional or different terms and conditions in any written or oral communication with respect to a transaction between the Parties in respect of the Products (including the terms and conditions in any Customer request, Customer purchase order, Keller draft quote, request for bid or similar document) shall vary or amend these Terms and Conditions;
(vii) the Customer shall be deemed to have accepted the terms of the Contract if the Contract is executed by the Customer or expressly agreed to by the Customer (e-mail also being sufficient) or if the Contract is not expressly objected to, in writing, by the Customer during the fourteen (14) day period following delivery by Keller to the Customer of the applicable order acknowledgment;
(viii) each Contract shall constitute a separate agreement between the Parties when and if executed by the Parties or otherwise accepted as set forth in these Terms and Conditions; and
(ix) Customer will promptly, concurrent with the acceptance of the applicable Contract for Products, deliver to Keller the full amount of the Non- Refundable Deposit.
(f) Customer requests accepted by Keller in the manner set forth in these Terms and Conditions may not be cancelled or postponed by Customer without Keller’s written consent. For any cancelled or postponed Contracts including those with Keller written consent, Customer agrees that Keller reserves the right to: (i) retain the full amount of the Non-Refundable Deposit as fully earned by Keller in light of costs and costs incurred by Keller in connection with mobilization, ordering, preparation, customization (i.e. nozzle locations, card readers etc.) and logistics associated with the manufacturing and procurement of Products set forth in the applicable Contract. In connection with the foregoing, Customer acknowledges that, because of the unique nature of the economic damages and losses that would be sustained by Keller in a cancellation or postponement, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Keller in such circumstance. Therefore, it is acknowledged and agreed by the Parties that in such circumstances: (a) it would be impracticable or extremely difficult to fix the actual damages to Keller resulting therefrom; (b)the forfeiture of the Non-Refundable Deposit to Keller in such circumstance is not a penalty, and is acknowledged and agreed by the Customer to be fair, reasonable and appropriate; and (c) such payment represents a reasonable estimate of compensation for a portion of the losses that may reasonably be anticipated from such cancellation or postponement; or (ii) if a Non-Refundable Deposit has not been delivered to Keller for a particular Contract, charge Customer the amount of any of Keller’s reasonable and standard cancellation, postponement, restocking and other fees and charges incurred by Keller with respect to any cancelled or postponed request or Contract.
(g) Notwithstanding compliance by the Customer with Section 2.1(f), Customer also acknowledges and agrees that: (i) any Contracts not paid for in full by the Customer, by such date that is indicated in each such Contract or by such later date as may be permitted by Keller in writing and in its sole discretion, will be deemed, for the purposes of Section 2.1(f) to be a cancelled Contract; (ii) title to any and all Products which are the subject of a cancelled or postponed Contract will remain with Keller at all times; and (ii) Keller will retain the right after fourteen (14) days written notice to the Customer in respect of Products underlying such cancelled or postponed Contract to sell, re-sell, return to manufacturer or do any other act as determined to be desirable by Keller, in its sole discretion, to dispose of such Products for the full benefit of Keller.
(h) Customer acknowledges and agrees that there will be no returns of any Products subject to a Contract unless with the prior written consent of Keller which may be withheld in the sole discretion of Keller.
(i) For greater certainty, Keller reserves the right to reject any request of the Customer submitted for acceptance. Contracts may be subject to Keller’s minimum order requirements, if any, and Keller reserves the right, in its sole discretion, to limit order quantities for certain Products.
2.2 Change Orders
(a) Any Customer request for changes in the scope of a Contract which includes changes in quantities and/or specifications of a particular Product, must be delivered in the form of a written change order to Keller. Each change order of the Customer shall reference the original Contract and shall specify the changes to the Contract being requested.
(b) Upon receipt of a proposed change order, Keller shall communicate the effect of such change order on the original Contract including variations to pricing, timelines, quantities and/or any other elements determined applicable by Keller in its sole discretion.
(c) The Parties shall co-operate in determining whether to proceed with such change order and Keller shall then either:
(i) agree in writing to proceed with the changes and the Parties shall document the changes in a change order form mutually executed or agreed to by the Parties and, in respect of which, Customer agrees to be responsible for any and all additional fees and charges associated with such change order; or
(ii) object in writing to proceed with the changes and continue in fulfilling the requirements of the original Contract. If the Customer indicates to Keller that it does not wish for the original Contract to be fulfilled in light of Keller’s objection to the change order, the original Contract will be deemed a cancelled Contract for the purpose of these Terms and Conditions. For greater certainty, if Keller does not agree in writing to proceed with the changes in a mutually agreed to or accepted change order form then Keller will be deemed to have objected to proceed with the changes in connection with this Section 2.2(c)(ii).
2.3 Invoicing and Payment
(a) Unless otherwise provided for in any provisions in any Contract, Keller will invoice the Customer for all Products in accordance with the applicable Contract and Customer shall pay the price(s), rates and other amounts stated on each invoice submitted by Keller by the 15th day of the following month of receipt of such invoice. Unless otherwise provided for in any applicable Contract, Customer acknowledges and agrees that Product orders will require payment of the Non- Refundable Deposit and payment in full for the Products prior to delivery or shipment of the same.
(b) Invoices shall bear interest at the rate of twenty-four percent (24%) per annum, compounded monthly, calculated from and including the date upon which a payment is due to be made to the date that the payment is made, both before and after default and judgement. All currency exchange rate changes, duties, taxes, etc. shall be paid by Customer.
(c) Operating, production or other site conditions which prevent or delay inspection or deployment of any of the Products do not relieve the Customer from any of its responsibilities to pay Keller invoices in a timely manner.
(d) If the Customer desires to pay any invoice of Keller which has been left outstanding past the applicable due date with a credit card, the Customer acknowledges and agrees that the total fee payable by the Customer in connection with such invoice will, subject to the exercise of Keller’s discretion to the contrary, be subject to an additional two percent (2%) convenience fee levied on the total amount. Upon request of the Customer, Keller will deliver an updated invoice that includes the new total inclusive of the foregoing convenience fee.
2.4 Taxes.
Keller and Customer are each responsible for all taxes legally imposed upon their respective businesses, including taxes imposed upon their respective income, personnel or property. Such taxes are for Keller’s or Customer’s account, as applicable, and each Party shall indemnify the other from any liability with respect thereto. Notwithstanding the foregoing, Customer shall be responsible for paying all taxes and duties applicable to the purchase of the Products. Prices and rates provided by Keller in a Contract are, absent any indication expressly set forth in such Contract to the contrary, exclusive of taxes, duties and shipping costs. Such taxes, duties and shipping costs are in addition to the prices or rates, and shall be for Customer’s account. The term “taxes, duties and shipping costs” shall include all fees or charges imposed, assessed or levied by any governmental department, agency, or taxing authority and shall include property taxes, sales and use taxes, value added taxes, goods and services taxes and excise taxes or other charges of a similar nature, customs or other duties, customs agent fees and other such charges and fees.
ARTICLE 3
PRICING; DELIVERY; TITLE
3.1 Pricing and Fees.
(a) Prices for Products shall be those stated in the applicable Contract. Notwithstanding the foregoing, Customer further acknowledges and agrees that Keller may unilaterally change any of the prices set forth in an accepted Contract or any portion thereof (even if such Contract specifies that the price is firm) in one or more of the following circumstances: (i) changes in Customer’s specifications, quantities ordered, shipment arrangements and other Customer change requests; (ii) material changes in freight rates and other transportation related expenses; (iii) changes in Applicable Laws, including, but not limited to, conditions such as taxes and duties; and/or (iv) material changes in Keller’s cost of production or procurement, such as in the cost of raw materials, components, and/or labor.
(b) Unless otherwise provided for in the applicable Contract, all Products must be paid for in full by the Customer in order to be eligible for delivery or shipment to Customer in accordance with Section 3.2. Any Products not paid for in full by the Customer, by such date that is indicated in each such Contract or by such later date as may be permitted by Keller in writing and in its sole discretion, will be deemed, for the purposes of these Terms and Conditions to be a cancelled Contract Delivery. (b)
3.2 Delivery
Unless otherwise provided for in the applicable Contract, all delivery terms for the Products are Ex Works Keller’s Facility (INCOTERMS 2020).
3.3 Title and Risk of Loss.
Title and risk of loss for Products sold to Customer will pass to Customer upon delivery of the Products in accordance with Section 3.2. Until title passes to Customer in accordance with this Section 3.3, title and risk of loss shall remain with Keller and Keller shall insure all such Products for which it accepts risk of loss.
3.4 Acceptance of Products.
The Products are deemed to have been accepted by Customer and deemed satisfactory for the purposes of these Terms and Conditions when the Products are made available for delivery in accordance with Section 3.2. Customer acknowledges and agrees that its sole recourse with respect to defective or alleged defective Products is by way of the manufacturer Product warranties set forth in Section 4.1.
ARTICLE 4
WARRANTIES AND REMEDIES
4.1 Product Warranties
(a) OTHER THAN ANY REPRESENTATIONS AND WARRANTIES GIVEN EXPRESSLY BY KELLER IN ANY APPLICABLE CONTRACT , KELLER PROVIDES NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO ANY PRODUCTS INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT ANY SUCH PRODUCTS WILL MEET THE REQUIREMENTS OR NEEDS OF CUSTOMER OR WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME OR WILL BE ERROR FREE. KELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER PRODUCT REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.
(b) WITHOUT LIMITING THE FOREGOING, THE CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT WHERE DESIGNS AND SPECIFICATIONS ARE FURNISHED TO KELLER OR APPROVED BY THE CUSTOMER OR SPECIALLY- MANUFACTURED GOODS ORDERED FROM KELLER, CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS THE KELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS RESULTING FROM OR ARISING OUT ANY CLAIM OR ALLEGATION THAT SUCH PRODUCTS INFRINGE THE INTELLECTUAL PROPERTY OF A THIRD PARTY INCLUDING, BUT NOT LIMITED TO, ON ACCOUNT OF ANY PATENTED OR UNPATENTED INVENTION, ARTICLE OR APPLIANCE MANUFACTURED FOR THE CUSTOMER IN CONNECTION WITH CUSTOMER’S INSTRUCTIONS.
(c) TO THE EXTENT THAT THERE ARE ANY REPRESENTATIONS AND WARRANTIES GIVEN EXPRESSLY BY KELLER IN ANY APPLICABLE CONTRACT, THE SAME DO NOT APPLY TO: (A) PRODUCTS THAT HAVE BEEN MODIFIED BY CUSTOMER, CUSTOMER REPRESENTATIVES OR THIRD PARTIES AFTER DELIVERY; (B) PRODUCTS SUBJECTED TO IMPROPER HANDLING, STORAGE, INSTALLATION, OPERATION OR MAINTENANCE BY CUSTOMER, CUSTOMER REPRESENTATIVES OR THIRD PARTIES INCLUDING USE OF UNAUTHORIZED REPLACEMENT PARTS OR OPERATION UNDER CONDITIONS OTHER THAN THOSE FOR WHICH THE PRODUCT IS INTENDED; (C) PRODUCTS REQUIRING REPLACEMENT BECAUSE OF NATURAL WEAR AND TEAR; (D) THE DESIGN OF PRODUCTS WHICH WERE MODIFIED ACCORDING TO SPECIFICATIONS FURNISHED BY CUSTOMER; AND/OR (E) CUSTOMER’S FAILURE TO IMPLEMENT ANY UPDATE OR UPGRADE TO THE PRODUCT RECOMMENDED BY KELLER OR THE MANUFACTURER OF THE PRODUCTS.
(d) THE CUSTOMER ACKNOWLEDGES AND AGREES THAT KELLER’S BUSINESS IS OF THE RESALE OF PRODUCTS MANUFACTURED BY MANUFACTURERS WITH WHOM KELLER HAS PRE-EXISTING RELATIONSHIPS. ACCORDINGLY, CUSTOMER ACKNOWLEDGES THAT ALL PRODUCT WARRANTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THE CUSTOMER FOR PRODUCT DEFECTS, WILL BE SUBJECT TO SUCH THIRD PARTY MANUFACTURERS’ WARRANTIES. KELLER WILL USE REASONABLE COMMERCIAL EFFORTS TO COMMUNICATE THE APPLICABLE TERMS OF SUCH WARRANTIES TO THE CUSTOMER UPON REQUEST AND WILL USE ITS REASONABLE COMMERCIAL EFFORTS TO HAVE SUCH WARRANTIES, IF ANY, ASSIGNED TO THE CUSTOMER PROVIDED THAT THE CUSTOMER IS OTHERWISE IN GOOD STANDING UNDER THE TERMS OF THE APPLICABLE CONTRACT . CUSTOMER THEREFORE ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE TO DETERMINE WHETHER THE WARRANTIES FOR PRODUCTS UNDERLYING A CONTRACT GIVEN BY THE APPLICABLE MANUFACTURERS ARE ADEQUATE FOR ITS PURPOSES AND AGREES TO INDEMNIFY KELLER AND ANY MEMBER OF THE KELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS FOR REPRESENTATIONS AND/OR WARRANTIES IN RESPECT OF THE PRODUCTS.
4.2 Remedies of Customer for Defective Products
(a) In the event that the Customer receives a Product which does not conform to the terms of the applicable Contract, Customer shall promptly communicate the same to Keller and the manufacturer of such Products in writing. Keller shall, in its sole discretion, co-operate with both the Customer and the manufacturer to ensure that any reasonable objections of the Customer are addressed to the reasonable satisfaction of the Customer which may, subject to such third-party manufacturer’s terms of warranty, include a repair or replacement of the applicable Products with products of like or comparable quality. Notwithstanding the foregoing, Customer acknowledges and agrees that ultimate recourse in respect of defective or non-conforming Products is to be made as against the warranties, if any, of the applicable third-party manufacturer and that no Claim will be brought as against Keller in respect of any defective or non-conforming Products.
(b) Customer agrees that the foregoing remedy of Customer in respect of the Products is the sole and exclusive obligations and responsibilities of Keller (and the sole and exclusive remedies of Customer) with respect to defective Products or Products not conforming to the terms of the applicable Contract.
4.3 Service Warranties
THE CUSTOMER ACKNOWLEDGES AND AGREES THAT KELLER DOES NOT PROVIDE SERVICE SUPPORT OR WARRANTIES (TECHNICAL OR OTHERWISE) IN RESPECT OF THE PRODUCTS AND THAT NO CONSIDERATION IS PAYABLE BY THE CUSTOMER IN CONNECTION THEREWITH UNDER AN APPLICABLE CONTRACT . IF KELLER ELECTS, IN ITS SOLE DISCRETION, TO OFFER CERTAIN KELLER GROUP PERSONNEL TO ASSIST IN TRAINING ON THE PRODUCTS, PRODUCTS INSTALLATION SUPPORT OR OTHER SERVICES IN RESPECT OF THE PRODUCTS, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SUCH SERVICES ARE GRATUITOUSLY PROVIDED BY KELLER AS A COURTESY TO A PARTICLAR CONTRACT. IN ALL SUCH CASES, CUSTOMER RETAINS THE SOLE OBLIGATION TO ENSURE THAT FULL TRAINING IS PROCURED IN RESPECT OF THE USE OF THE PRODUCTS AND THAT THE PRODUCTS ARE INSTALLED AND USED CORRECTLY IN ACCORDANCE WITH ALL APPLICABLE LAWS AND MANUFACTURER GUIDELINES. KELLER DOES NOT WARRANTY THE ACCURACY, CORRECTNESS OR COMPLETENESS OF ANY INTERPRETATION, RECOMMENDATION OR SUGGESTION OF ANY OF THE KELLER GROUP PERSONNEL IN OFFERING ANY SUPPORT SERVICES FOR THE PRODUCTS. FURTHER, KELLER DOES NOT GUARANTEE THE RESULTS OF ANY OF SUCH SERVICES, THAT THOSE SERVICES WILL ACHIEVE CUSTOMER’S INTENDED OBJECTIVES, THAT SUCH SERVICES SHALL BE FURNISHED IN ACCORDANCE WITH STANDARD INDUSTRY PRACTICES OR THE REQUIREMENTS OF ANY APPLICABLE LAWS. KELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER SERVICE REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.
4.4 Permits and Licenses.
Customer shall obtain all permits, licenses, easements, rights of way and/or other authorizations (collectively, Authorizations) from Customer’s clients, governmental agencies, and the owner(s) and/or operator(s) as may be necessary in connection with the procurement and/or installation of the Products.
ARTICLE 5
INDEMNITY; RELEASE; WAIVER
5.1 Customer Release and Indemnities
Except in the case of Claims resulting from the willful misconduct or gross negligence on the part of Keller, the Customer will indemnify Keller and each member of the Keller Group from any and all Claims (including legal costs as between a solicitor and his or her own client on a full indemnity basis) arising out of, resulting from or related to: (i) any fraud, inaccuracy or breach of representations or warranties made by the Customer to Keller or any member of the Keller Group in any Contract; or (ii) any breach or default of the covenants or agreements made by the Customer in any Contract or these Terms and Conditions.
5.2 Consequential Damages Waiver
Notwithstanding any provision of these Terms and Conditions to the contrary, neither Party shall be liable to the other Party (or any member of the other Party’s group) for, and each Party hereby releases and agrees to indemnify the other Party from and against, any and all Claims for Consequential Damages (as hereinafter defined), regardless of the cause or causes thereof, including the sole, joint or concurrent negligence (in any amount), gross negligence or willful misconduct, strict liability, breach of warranty, breach of duty (statutory or otherwise), breach of contract, or any other legal fault, liability, or responsibility of Keller or any member of the Keller Group. For purposes of the foregoing, the term Consequential Damages shall mean (i) any indirect, incidental, special, punitive, exemplary or consequential damages or consequential losses of any nature whatsoever (whether or not foreseeable), and (ii) damages or losses, whether direct or indirect, for lost product or production, lost profit or revenue, loss of data, reservoir loss or damage, loss of use or rig time expenses, well control expenses, subsurface damage, loss of hole, re- drilling expenses, reservoir or formation damage, pollution damage and/or wreck or debris removal expense, lost business, loss of or inability to use property and equipment, losses from business interruptions, losses resulting from failure to meet other contractual commitments or deadlines, or losses from downtime of facilities. Without negating the preceding general exclusion of Consequential Damages, the Parties expressly agree that Claims with respect to the following shall not be considered Consequential Damages and are recoverable between the Parties: (i) Claims of Keller with respect to all amounts due to it under Contracts for Products or otherwise in connection with the provisions of these Terms and Conditions; and (ii) Claims for breaches of the Customer’s obligations with respect to the Confidential Information (as hereinafter defined).
5.3 Liability Cap
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS AND SUBJECT TO ANY FURTHER LIMITATIONS ON LIABILITY EXPRESSLY SET FORTH IN ANY APPLICABLE CONTRACT, KELLER’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF, OR IN ANY WAY RELATING TO ITS PERFORMANCE UNDER ANY CONTRACT , WHETHER SOUNDING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND/OR BREACH OF STATUTORY DUTY), AT LAW OR IN EQUITY, SHALL BE LIMITED TO THE VALUE OF THE CONTRACT WHICH GAVE RISE TO THE CLAIM (THE LIABILITY CAP), AND CUSTOMER HEREBY AGREES TO INDEMNIFY KELLER AND ANY MEMBER OF THE KELLER GROUP AGAINST ANY LIABILITY IN EXCESS OF THE LIABILITY CAP. CUSTOMER ACKNOWLEDGES AND AGREES THAT A HIGHER PRICE WOULD BE PAYABLE BY CUSTOMER TO KELLER IN CONNECTION WITH THE PURCHASE OF THE PRODUCTS BUT FOR THE AGREEMENT BY THE CUSTOMER TO ADHERE TO THESE TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, ACCEPTANCE OF THE PROVISIONS SET FORTH IN Article 4 AND Article 5.
ARTICLE 6
CONFIDENTIAL INFORMATION
6.1 Confidential Information
(a) For the purposes of these Terms and Conditions, Confidential Information means the content of any Contract, and all documents, information and data, written or oral, furnished by Keller or any member of the Keller Group to the Customer or any Customer Representative or resulting from performance or supply of the Products or coming to the knowledge of the Customer or any Customer Representative in connection with a Contract or otherwise obtained (including but not limited to all contracts, financial information, engineering reports, environmental reports, land and lease information, technical and economic data, knowledge, know-how and related information such as plans, maps, drawings, field notes, sketches, photographs, specifications, models, reports, improvements, inventions, processes, formulae or technology and marketing terms and arrangements) or which is or may be either applicable to or related in any way to the Products, or the business or affairs of Keller. Notwithstanding the foregoing, Confidential Information shall not include any information which the Customer can conclusively establish based on written records:
(i) was already lawfully in the possession of the Customer on a non-confidential basis or lawfully known to the Customer on a non-confidential basis prior to the disclosure of such information;
(ii) is lawfully and independently developed by the Customer, or on its behalf, by Persons having no access to the Confidential Information at the time of such independent development;
(iii) is at the time of disclosure or thereafter becomes part of the public domain through no act of the Customer or of any third party under an obligation of confidence with respect to such information, but only after such information becomes part of the public domain; or
(iv) is lawfully obtained by the Customer from an independent Person under no legal obligation to maintain the confidentiality of such information, but only after such information is so received or acquired.
(b) The Customer agrees that the Confidential Information:
(i) is the sole property of Keller and shall not be used for any purpose whatsoever other than for the deployment of the Products in connection with Customer’s business in accordance with these Terms and Conditions and the terms of any Contract; and
(ii) shall not, without Keller’s prior written consent, be disclosed or made available or accessible to any Person other than, to the extent required, the Customer Representatives who have a need to know the Confidential Information or any part thereof for purposes of deployment of the Products in connection with the Customer’s business in accordance with these Terms and Conditions and the terms of any Contract.
(c) The Customer shall be responsible for any breach of this Section 6.1 by any of the Customer Representatives. If Confidential Information is disclosed to any of the Customer Representatives, the Customer shall inform such Persons at the time of disclosure of its confidential nature and the terms of this Section 6.1 and shall procure an agreement in advance in writing to have such Persons also be bound by its terms. The Customer shall keep and provide Keller (at its election) a list of all persons and individuals that have been provided with any Confidential Information and copies of agreements by such Persons to be bound to confidentiality.
(d) The Customer shall not disclose any Confidential Information to any Person other than in accordance with the terms of this Article 6, except in the event that the Customer or the Customer Representatives are required by Applicable Laws to otherwise disclose any Confidential Information. Prior to any such disclosure, however, the Customer shall provide written notice to Keller immediately upon receipt or imposition of any requirement of disclosure and thereafter cooperate with Keller so that Keller may seek a protective order or other appropriate remedy or waive compliance by the Customer or the Customer Representatives, as the case may be. In the event that any court or administrative body requires disclosure of the Confidential Information, the Customer or any of the Customer Representatives required to provide such disclosure shall furnish only that portion of the Confidential Information which is legally required and, further, shall each exercise their best efforts to obtain reasonable assurances that confidential treatment will be accorded such Confidential Information.
(e) The confidentiality covenants contained in these Terms and Conditions will survive for three (3) years from the date that the Customer or any Customer Representative receives the Confidential Information.
6.2 Injunctive Relief
Because money damages would not be a sufficient remedy for any breach or threatened breach by Customer of this Article 6, Keller shall be entitled to specific performance, injunctive or other equitable relief to enforce the provisions of this Article 6, without the necessity of proving damages and without waiving any other remedies available to it, at law or in equity. In the event of such an action, Keller shall be entitled to all of its costs and expenses resulting from any breach of this Article 6 (including, but not limited to, costs as between a solicitor and his or her own client on a full indemnity basis).
ARTICLE 7
GENERAL TERMS
7.1 Compliance with Laws
Contract or these Terms and Conditions shall be exclusive in the courts, provincial or federal, sitting in Calgary, Alberta.
7.2 Assignment and Subcontracting
Keller may subcontract the Contract (or any portion thereof) to be performed by Keller, and may assign its rights, interest or obligations under or in respect of these Terms and Conditions and applicable Contract(s) to any Person, without the prior consent of the Customer, provided that the transferee agrees in writing to assume all of Keller’s obligations hereunder and thereunder. Upon such assignment and assumption, Keller will be under no further obligations hereunder. Customer may not assign any Contract (or any rights and interests thereunder) without the prior written consent of Keller. Subject to the foregoing, each Contract shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assignees.
7.3 Force Majeure
Keller will not be in breach of any Contract or the requirements of these Terms and Conditions if prevented from performing due to an event of Force Majeure which is notified to the Customer by Keller in writing. If any period of Force Majeure preventing performance continues for more than ninety (90) days, either Party may terminate the specific effected Contract by giving thirty (30) days written notice to the other Party. Keller shall be paid for work undertaken and/or performed to the effective date of termination and any other reasonable costs incurred as a result of such termination.
7.4 Governing Law; Venue
All Contracts and these Terms and Conditions shall be governed, construed and interpreted in accordance with the laws of the Province of Alberta, which shall apply without regard to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction. Venue for any litigation filed with respect to any Contract or these Terms and Conditions shall be exclusive in the courts, provincial or federal, sitting in Calgary, Alberta.
7.5 Severability
If any of the provisions in these Terms and Conditions are found to be inconsistent with or contrary to any Applicable Law, same shall be deemed to be modified to the extent required to comply with Applicable Law (it being the intention of the parties to enforce to the fullest extent all of these Terms and Conditions) and as so modified, these Terms and Conditions shall continue in full force and effect. In the event such provisions cannot be deemed or modified automatically, the Parties agree to meet to attempt to reach agreement on a conforming modification to such provision. In the event any provision cannot be modified to comply with Applicable Law, then said term or provision shall be deemed to be deleted from these Terms and Conditions and the remaining provisions shall remain in full force and effect.
7.6 Waiver
No waiver by Keller of any of the terms, provisions, or conditions of these Terms and Conditions shall be effective unless said waiver shall be in a writing signed by an authorized officer of Keller. Keller’s failure to enforce any term, provision or condition of these Terms and Conditions shall in no manner affect its right to enforce the same at a later time, and the waiver by Keller of any breach of any term, provision or condition of these Terms and Conditions shall not be construed to be a waiver by Keller of any subsequent or succeeding breach of such term, provision or condition or of any other term, provision or condition hereof.
7.7 Independent Contractor
The Parties agree that they are independent contractors and expressly disavow any intention to enter into a relationship in the nature of a partnership or joint venture or as franchisor and franchisee. Nothing contained in any Contract or these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, franchise, employment, master-servant or fiduciary relationship between the Parties. Neither Party has the right to bind or obligate the other.
7.8 Acknowledgement and Acceptance
Customer acknowledges that Keller may revise and post updates to these Terms and Conditions from time-to-time, and that any future Contracts will be subject to the most recently posted version of the Terms and Conditions.
7.9 Entire Agreement
These Terms and Conditions, together with the applicable and accepted Contract(s), is the entire agreement between the Parties with respect to the Products and supersede any prior agreements and representations, whether oral or written, and all other communications between the Parties relating to the Products.
Keller Equipment Supply has been providing quality petroleum and industrial equipment since 1968. With four stocking locations in Calgary, Edmonton, Vancouver and Winnipeg.
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