1 Applicability.
1.1 These terms and conditions for services (these “Terms”) are the only terms which govern the provision of services by Kinetic Safety Ltd. (“Kinetic”) to the customer listed on the Order Confirmation (as defined in Section 1.2 below) (“Customer”).
1.2 The quote, proposal, invoice or other document issued by Kinetic to Customer (including any ancillary work order, purchase order or other documents provided by Kinetic to Customer) (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern.
1.3 These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2 Services.
2.1 Kinetic shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms. Kinetic shall use commercially reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only. If no performance date is set out in the Order Confirmation, Kinetic will provide the Services on an as-needed basis at the request of Customer.
2.2 Customer is responsible for selecting the Services requested and for determining the experience, level of authority, and number of personnel to sufficiently comply with Customer’s requirements.
3 Customer’s Obligations. Customer shall:
3.1 cooperate with Kinetic in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Kinetic, for the purposes of performing the Services;
3.2 respond promptly to any Kinetic request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Kinetic to perform Services in accordance with the requirements of this Agreement;
3.3 provide such customer policies, procedures, manuals, or information as Kinetic may reasonably request and Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and
3.4 obtain and maintain all necessary licences and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
4 Customer’s Acts or Omissions. If Kinetic’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Kinetic shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5 Fees and Expenses; Payment Terms; Interest on Late Payments.
5.1 In consideration of the provision of the Services by Kinetic and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation, plus GST (and any other value, added, goods and services or similar taxes that may apply from time to time). Any rates set forth in the Order Confirmation are subject to adjustment annually in Kinetic’s sole discretion.
5.2 Customer shall pay all invoiced amounts due to Kinetic in accordance with the terms set out in such invoice.
5.3 In the event payments are not received by Kinetic after becoming due, interest shall accrue on any such unpaid amounts at a rate of 1.5% per month (18% per annum) from the date such payment was due until the date paid.
5.4 Customer shall reimburse Kinetic for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity solicitor-client basis.
5.5 Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Kinetic, whether relating to Kinetic’s breach, bankruptcy or otherwise
6 Taxes. Customer agrees to pay and discharge when due any and all taxes and governmental charges of any kind or character, federal, provincial, county, or municipal, which may be levied and/or assessed at any time by reason of the Services and interest and penalties, if any, on such taxes or charges, and Customer will at all times fully indemnify and save Kinetic and its successors and assigns harmless from and against any such taxes, governmental charges and interest and penalties thereon.
7 Confidential Information.
7.1 All non-public, confidential, or proprietary information of Kinetic, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Kinetic to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Kinetic. Confidential Information does not include information that is:
(a) in the public domain;
(b) known to Customer at the time of disclosure; or
(c) rightfully obtained by Customer on a non-confidential basis from a third party.
7.2 Customer agrees to use the Confidential Information only to make use of the Services.
7.3 Kinetic shall be entitled to injunctive relief for any violation of this Section 7.
8 Representation and Warranty.
8.1 Kinetic represents and warrants to Customer that the Services will be performed in accordance with sound practice and professional standards ordinarily exercised by members of the profession practicing at the same time in the same location.
8.2 Kinetic shall not be liable for a breach of the warranty set forth in Section 8.1 unless Customer gives written notice of the defective Services, reasonably described, to Kinetic within five (5) days of the time when Customer discovers or ought to have discovered that the Services were defective.
8.3 Customer’s sole and exclusive remedy for breach of warranty, tortious conduct, breach of contract, or any other cause of action against Kinetic or its officers, agents or employees, if any, shall be limited to the warranty set forth herein. Customer specifically understands and agrees that no other remedy (including but not limited to claims for incidental, special, consequential, or punitive damages for any cause whatsoever or injury to persons or property or any other consequential, economic, special or incidental loss) shall be available to Customer.
8.4 Subject to Section 8.2, Kinetic shall, in its sole discretion, either:
(a) re-perform such Services (or the defective part); or
(b) credit or refund the price of such Services at the rate set forth in the Order Confirmation.
8.5 THE REMEDIES SET FORTH IN SECTION 8.4 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND KINETIC’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8.1.
9 DISCLAIMER OF WARRANTIES.
9.1 EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8.1 ABOVE, KINETIC MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES AND ANY EQUIPMENT USED IN RELATION THERETO, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OF TRADE OR OTHERWISE.
9.2 REPORTS AND RECOMMENDATIONS MADE BY KINETIC IN CONNECTION WITH THE SERVICES ARE ONLY ADVISORY IN NATURE AND ARE INTENDED TO ASSIST THE CUSTOMER IN EVALUATING CUSTOMER’S FACILITY OR OPERATIONS. THEY ARE NOT INTENDED TO IMPLY THAT NO OTHER DEFECTS OR HAZARDS EXIST OR THAT ALL ASPECTS AND AREAS OF THE FACILITY OR OPERATIONS ARE CLEAR OF HAZARDS AT THE TIME OF INSPECTION. FINAL RESPONSIBILITY FOR THE CONDITION AND OPERATION OF THE FACILITY LIES WITH THE CUSTOMER.
10 LIMITATION OF LIABILITY.
10.1 IN NO EVENT SHALL KINETIC BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 IN NO EVENT SHALL KINETIC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED, ON A PER ORDER BASIS, THE PRICE OF THE SERVICE GIVING RISE TO THE CLAIM.
10.3 The limitation of liability set forth in Section 10.2 above shall not apply to liability resulting from Kinetic’s gross negligence or wilful misconduct.
11 Indemnification. Subject to the specific limitations contained herein, the Customer shall be liable to, hold harmless and indemnify Kinetic for such actions, claims, losses, costs, damages and expenses which Kinetic may suffer, sustain, pay or incur, including reasonable legal fees and disbursements as a result of: (a) the negligent or willful acts or negligent or willful omissions of the Customer and the Customer’s agents, employees or contractors arising in connection with the Services; and (b) the Customer’s breach of this Agreement.
12 Termination. In addition to any remedies that may be provided under this Agreement, Kinetic may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for five (5) days after Customer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
13 Insurance.
13.1 During the term of this Agreement, and for a period of two (2) years thereafter, Customer shall, at its own expense, maintain and carry industry standard insurance in full force and effect which includes, without limitation, commercial general liability, Employer’s Liability insurance, Workers’ Compensation insurance as required by any applicable law or regulation and in accordance with the province having jurisdiction over each employee, and Errors and Omissions (Professional Liability) insurance, with financially sound and reputable insurers. Upon Kinetic’s request, Customer shall provide Kinetic with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Agreement. Customer shall provide Kinetic with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Kinetic’s insurers and Kinetic.
13.2 Upon the written request and reasonable notice of Kinetic, the Customer shall provide copies of all policies or certificates of insurance evidencing such insurance coverage.
14 Force Majeure. Kinetic shall incur no liability whatsoever for any delay or failure to perform any of its obligations hereunder by reason of Force Majeure. For the purposes of this Section 14, “Force Majeure” shall mean any act, event, cause or condition that prevents Kinetic from performing its obligations and that is beyond Kinetic’s reasonable control, and will include: (a) acts of God; (b) floods, fires, earthquakes or explosions; (c) local, regional or national states of emergency; (d) strikes and other labour disputes (whether or not relating to Kinetic’s workforce); (e) civil disobedience or disturbances, war, invasion or hostilities (whether war is declared or not) acts of sabotage, blockades, insurrections, terrorism, revolution, riots; (f) epidemics, pandemics, outbreaks, or COVID-19; and (g) an order, judgment, legislation, ruling, mandate or direction by governmental bodies or authorities restraining Kinetic.
15 General.
15.1 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Kinetic. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein and the parties attorn to the non-exclusive jurisdiction of the courts of the Province of Alberta with respect to any dispute arising in connection with this Agreement.
15.4 Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail, facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid) and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient or on the next business day if not sent during normal business hours, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery.
15.5 Time of the Essence. Time is of the essence of this Agreement.
15.6 Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.7 Waiver. Any failure of a party hereto to require strict performance by the other party hereto, or any written waiver by a party hereto of any provision hereof, shall not constitute consent or waiver of any other breach of the same or any other provision hereof.
15.8 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this order including, but not limited to, the following provisions: Section 5 (Fees and Expenses; Payment Terms; Interest on Late Payments), Section 7 (Confidential Information), Section 10 (Limitation of Liability), Section 15.3 (Governing Law), and Section 15.8 (Survival). In addition, all representations, warranties, covenants, agreements and indemnities contained in this Agreement or in any other instruments delivered by or on behalf of the parties hereto shall be continuous and survive the expiration or termination of this Agreement.
15.9 Amendments and Modifications. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.