1. KINETEC MECHANICAL SERVICES LTD.’S RESPONSIBILITY FOR SERVICE WARRANTY Kinetec Mechanical ServicesLtd. warrants the work performed by its personnel on equipment (other than on engines powering on-highway vehicles and in gas compression) to be free from defects in parts repaired by Kinetec Mechanical Services Ltd. ("RepairedParts"), re-used parts and workmanship under normal use and service for365 days or 4,000 hours of operation, whichever occurs first, from the date of completion of the work on the equipment. Work performed by Kinetec MechanicalServices Ltd. personnel on engines powering on-highway vehicles is warranted byKinetec Mechanical Services Ltd. to be free from defects in Repaired Parts, re-used parts (those deemed suitable for reuse by Kinetec Mechanical ServicesLtd.) and workmanship under normal use and service for 365 days, 100,000kilometers or 4,000 hours of operation, whichever occurs first, from the date of completion of the work on the engine. Work performed by KinetecMechanical Services Ltd. personnel on commercial or industrial gas/diesel engine applications, marine and petroleum, and electric power generating equipment, is warranted by Kinetec Mechanical Services Ltd. to be free from defects in Repaired Parts, re-used parts ( those deemed suitable for reuse by Kinetec Mechanical Services Ltd.) and workmanship under normal use and service for 365 days or 4,000 hours of operation, whichever occurs first, from the date of completion of the work on the engine or equipment as the case may be. Work performed by KinetecMechanical Services Ltd. personnel on commercial gas engines powering gas compression equipment is warranted by Kinetec Mechanical Services Ltd. to be free from defects in Repaired Parts, re-used parts (those deemed suitable for reuse by Kinetec Mechanical Services Ltd.) and workmanship under normal use andservice for 365 days or 8,000 hours of operation, whichever occurs first, fromthe date of completion of the work on the engine. Subject to the provisions of this service warranty, Kinetec Mechanical Services Ltd. will repair or replace, as it may elect, Repaired parts, re-used parts, and redo workmanship where, upon inspection by Kinetec Mechanical Services Ltd., the part or workmanship is determined by Kinetec Mechanical Services Ltd. to its satisfaction to be defective. Such repair or replacement or redo includes servicemen's traveling expenses (such as meals and accommodation) and travel time or transportation charges (up to a maximum of $1000.00), labor, replacement parts, personnel and tools and, where required as a result of a warrantable failure, parts and labor required for maintenance services such as engine tune-up and supplies and consumables such as oil, grease, fuel or filters.
2. ON TIME JOB COMPLETION GUARANTEE If the Customer requests that the work be completed by a specific time acceptable to Kinetec Mechanical Services Ltd. and the work is not completed by that time, Kinetec Mechanical Services Ltd. will pay by cheque or credit the customer’s account, as determined by Kinetec Mechanical Services Ltd., a sum equal to: Cost of Repair Amount Payable by Kinetec Mechanical Services Ltd. $0-$50K 1.5% of the cost of the repair per day late $51K - $100K 1% of the cost of the repair per day late $100K + $1100 per day late It is provided that under no circumstances will the amount payable by Kinetec Mechanical Services Ltd. under this On-Time Job Completion Guarantee exceed 10% of the repair cost. Under this On-Time Job Completion Guarantee, the first day that Kinetec Mechanical Services Ltd. is deemed too late commence at 12:01 a.m. on the day following the day that Kinetec Mechanical Services Ltd. agreed to complete its work. Kinetec Mechanical Services Ltd. reserves the right to set off any amount payable by Kinetec Mechanical Services Ltd. under this Service Warranty against amounts owed or owing to Kinetec Mechanical Services Ltd. by the customer pursuant to any contract or other legal relationship between the Customer and Kinetec Mechanical Services Ltd.
3. LIMIT OF KINETEC MECHANICAL SERVICES LTD.'S RESPONSIBILITY WITH RESPECT TO SERVICE WARRANTY (a) Warranty work will be done by Kinetec Mechanical Services Ltd. during the regular working hours of Kinetec Mechanical Services Ltd.'s Service Department. These hours are Monday to Friday 7:00-15:30 not including stat holidays. Warranty work will be done during other than regular working hours at the Customer's request, but the Customer will pay the difference between Kinetec Mechanical Services Ltd.'s overtime labor billing rates and its regular straight time labor billing rates notwithstanding any other provision hereof. (b) Warranty work will be carried out at a time and location determined by Kinetec Mechanical Services Ltd. (c) it is a condition of this warranty that the Customer properly maintains and operate the equipment or engine to which this warranty and comply with all service requirements and recommendations of Kinetec Mechanical Services Ltd. or the manufacturer thereof (and intended uses prescribed by the manufacturer or Kinetec Mechanical Services Ltd.) and that the Customer notifies Kinetec Mechanical Services Ltd. immediately of a warrantable failure or defect or that a suspected warrantable failure or defect exists, has occurred or is about to occur. Labour or parts furnished to perform repairs required as a result of improper or careless operating practices, failure to give timely notice of a failure or defect, lack of adequate operating maintenance (including daily maintenance), willful or accidental damage, or normal wear and tear are not covered by this warranty and will be paid for by the Customer at Kinetec Mechanical Services Ltd.'s applicable labor billing rates and parts prices. (d) Warranty claims will not be allowed unless Kinetec Mechanical Services Ltd. is notified in writing at the time of failure and before the expiration of this warranty. (e) The liability of Kinetec Mechanical Services Ltd. under this warranty is limited to the repair or replacement of repaired parts, re-used parts (those deemed suitable for reuse by Kinetec Mechanical Services Ltd.) and workmanship and to the provision of any amounts that may be specifically payable hereunder pursuant to section 2 hereof. Kinetec Mechanical Services Ltd., its employees, agents, and subcontractors shall not under any circumstances be liable for personal injuries (including death) to any person (including the Customer) or for any loss or damage to property or business either direct, indirect or consequential whether to parts, components or the equipment or to any other property, caused or contributed to by a warrantable failure or defect, by any work performed by Kinetec Mechanical Services Ltd., by the delivery, operation or possession of parts, components or the equipment by Kinetec Mechanical Services Ltd. or any other person, by defects in repaired parts, re-used parts or workmanship or comparable equipment provided hereunder, by any default or negligence of Kinetec Mechanical Services Ltd., its employees, agents or contractors or by any other cause or reason whatsoever. In addition, in no case shall Kinetec Mechanical Services Ltd. be liable for loss of profits, special, consequential or indirect damages, loss of income or use of parts, components or the equipment or comparable equipment provided hereunder whether or not caused or contributed to by the negligence or default of Kinetec Mechanical Services Ltd.
4. NO OTHER WARRANTIES This warranty is in lieu of all other warranties, either express, statutory, or implied, arising from law or equity or any other source, including but not limited to any warranty of merchantability or fitness for a particular purpose.
5. TRANSFERABILITY This warranty is exclusive to the owner of parts, components, or equipment at the time the work is performed and is not transferable to subsequent purchasers without the express written consent of Kinetec Mechanical Services Ltd.
6. GEOGRAPHIC RESTRICTIONS This warranty applies only to parts, components, and equipment repaired by Kinetec Mechanical Services Ltd. and located in Kinetec Mechanical Services Ltd.'s Canadian territory.
1. Entire Agreement. These terms and conditions, Kinetec Mechanical Services Ltd.’s quotation, invoice, or proposal (if applicable), Customer specifications which have been agreed to by Kinetec Mechanical Services Ltd. in writing, constitute a final, complete, and exclusive agreement of the parties (“Agreement”). Terms in Kinetec Mechanical Services Ltd.’s quotation or proposal (if applicable) shall control to the extent that those terms explicitly amend the terms hereof. No prior dealings, subsequent Customer documents not explicitly agreed to in writing, or course or usage of trade shall supplement or explain any terms herein unless consented to by Kinetec Mechanical Services Ltd. in writing.
2. Applicability of Terms and Conditions. Kinetec Mechanical Services Ltd.’s performance pursuant to this Agreement entered into by the parties shall incorporate by reference these terms and conditions. By placing its order, the Customer hereby agrees to the terms of this Agreement in their entirety and agrees that any additional, different, or inconsistent terms and conditions provided by the Customer in its order form or any other document shall not be applicable to this Agreement. Kinetic Mechanical Services Ltd. may refuse to provide any goods and services under this Agreement without liability if Customer’s credit approval (if applicable) is denied or a Kinetec Mechanical Services Ltd. required letter of credit, guaranty, or other security is not received.
3. Delivery. Subject to unanticipated delays, Kinetec Mechanical Services Ltd. shall deliver the goods that are the subject of this Agreement (“Goods”) to the Customer on or before the delivery time set out in the Agreement (“Delivery Time”) and in accordance with the delivery term specified therein. If no delivery term or timeline is specified, the delivery term will be Ex Works (EXW), as such term is defined in Incoterms in force on the effective date of the Agreement and the delivery of the Goods shall comply with all Kinetec Mechanical Services Ltd. policies for shipping and/or pickup of orders. If the Customer opts to pick up the Goods at a remote storage solution (“Drop Box”) provided by Kinetec Mechanical Services Ltd., in its sole discretion, then the following special terms shall apply: i) risk of loss for the Goods shall transfer to the Customer on delivery to the Drop Box; ii) the Customer shall be invoiced upon delivery to the Drop Box; iii) unless otherwise agreed to by Kinetec Mechanical Services Ltd., the Customer shall be responsible, at its sole cost, to retrieve the Goods from the Drop Box within seven (7) days of delivery (the “Pickup Time”); iv) if the Customer fails to retrieve the Goods from the Drop Box within the Pickup Time, Kinetec Mechanical Services Ltd. may, in its sole discretion, have the Goods returned to Kinetec Mechanical Services Ltd. at the Customer’s expense and, subject to the Kinetec Mechanical Services Ltd. Customer Parts Return Policy, if Kinetec Mechanical Services Ltd. has already received payment in respect of the Goods, those amounts shall be credited to the Customer’s account with Kinetec Mechanical Services Ltd. for future purchases; v) Customer is solely responsible to provide Kinetec Mechanical Services Ltd. current contact information to which Kinetec Mechanical Services Ltd. will send notices; vi) information provided to the Customer for accessing the Drop Box is the Customer’s sole responsibility and Kinetec Mechanical Services Ltd. shall have no liability whatsoever for lost, stolen, or misappropriated access information leading to the loss, theft, or damage of/to the Goods; and vii) Customer shall be solely responsible and shall indemnify Kinetec Mechanical Services Ltd. for in accordance with the terms of this Agreement, for any personal injury or property damage in any way relating to its use of the Drop Box.
4. Failure to Accept Delivery. If the Customer fails to accept delivery at the Delivery Time for reasons other than substantial non-conformity of the Goods, Kinetec Mechanical Services Ltd. shall arrange for storage of the Goods at the Customer’s sole risk and expense. Kinetec Mechanical Services Ltd. may in its sole discretion, arrange for storage with a third party or in accordance with the terms of Kinetec Mechanical Services Ltd.’s standard storage agreement. Notwithstanding the foregoing, the Customer shall pay any part of the purchase price of the Goods (the “Purchase Price”) which becomes due on delivery, as if delivery had taken place.
5. Kinetec Mechanical Services Ltd. Delay Due to the Customer. If Kinetec Mechanical Services Ltd. is delayed or incurs additional costs in performing its obligations as a result of any default, including delay, by the Customer or its agents in the performance of the Customer’s obligations, then the completion, delivery, and other dates contemplated under this Agreement shall be adjusted as reasonably required to accommodate the effects of that delay, and the Customer shall pay Kinetec Mechanical Services Ltd. additional costs reasonably and necessarily incurred by Kinetec Mechanical Services Ltd. as the result of any default, including delay, by the Customer or its agents.
6. Price and Payment. Kinetec Mechanical Services Ltd. reserves the right in response to significant exchange CAD/USD rate fluctuations, without notice and in its sole discretion, to adjust any prices provided in a quotation, proposal, or otherwise to the Customer prior to final acceptance by Kinetec Mechanical Services Ltd. of an order. Except as otherwise agreed to by Kinetec Mechanical Services Ltd. in writing, prices will be firm as of the date of order acceptance paid in Canadian dollars without regard to foreign currency fluctuations. Kinetec Mechanical Services Ltd. reserves the right, in its sole discretion, to require the payment of a deposit by the Customer at any time prior to delivery. Payment shall be due to Kinetec Mechanical Services Ltd. upon delivery of Goods, without set-off, deduction, or withholding. Overdue payments shall bear interest at a rate of the lesser of 18% per annum or the highest rate permitted by law. If the Customer has not paid an amount due hereunder and in addition to all other remedies available for late payment, Kinetec Mechanical Services Ltd. may, upon notice to the Customer, suspend Kinetec Mechanical Services Ltd.’s performance of the Agreement until Kinetec Mechanical Services Ltd. receives the outstanding payment. If Customer has not paid an amount due within 90 days, Kinetec Mechanical Services Ltd. may, upon notice to Customer, terminate the Agreement and recover compensation for loss Kinetec Mechanical Services Ltd. incurs, which compensation shall not exceed the unpaid balance of the Purchase Price plus interest and any additional costs incurred by Kinetec Mechanical Services Ltd. including, without limitation, lawyer fees on a full indemnity basis and all costs associated with collection.
7. Taxes. The Customer shall pay and discharge when due, all license fees, assessments, and all taxes including all sales, use, property, rental, excise, goods and services, and other taxes or duties (each a “Tax”) now or hereafter imposed by any federal, provincial, state, or local government or taxing authority upon the goods or services which are the subject matter of this Agreement (except income taxes payable by Kinetec Mechanical Services Ltd.) whether the same are payable by, or billed or assessed to Kinetec Mechanical Services Ltd. or the Customer, together with any penalties or interest levied or charged in connection therewith. The Customer warrants the truth and accuracy of any statement in writing to Kinetec Mechanical Services Ltd. that the Goods are not subject to, or is subject to any particular rate of Tax or Taxes. If Kinetec Mechanical Services Ltd., either at the Customer’s request or due to requirement of law or otherwise, pays any such Tax or any amount in excess of the amount which would have been payable based on the Customer’s statement, the Customer shall immediately reimburse Kinetec Mechanical Services Ltd. and the amount of any such payment shall bear interest at the rate of the lesser of 18% per annum or the highest rate permitted by law at the Customer’s sole cost and expense.
8. Force Majeure. Kinetec Mechanical Services Ltd. shall not be liable for any loss or damage arising from Kinetec Mechanical Services Ltd.’s failure to perform any obligation or delay resulting from any cause beyond the reasonable control of Kinetec Mechanical Services Ltd. or from any act of God, the act of war whether declared or undeclared, the act of civil or military authority, the act of any governmental authority, acts or omissions of the Customer or contractors or subcontractors, civil disturbance, insurrection or riot, sabotage, fire, pandemics, inclement weather conditions, earthquake, flood, strike, work stoppage or other labour difficulty, embargo, fuel or energy shortage, equipment breakdown, delay or accident in shipping or transportation, failure or delay in obtaining necessary manufacturing facilities, labour or materials from its usual sources, or unforeseen circumstances or contingencies.
8. Force Majeure. Kinetec Mechanical Services Ltd. shall not be liable for any loss or damage arising from Kinetec Mechanical Services Ltd.’s failure to perform any obligation or delay resulting from any cause beyond the reasonable control of Kinetec Mechanical Services Ltd. or from any act of God, the act of war whether declared or undeclared, the act of civil or military authority, the act of any governmental authority, acts or omissions of the Customer or contractors or subcontractors, civil disturbance, insurrection or riot, sabotage, fire, pandemics, inclement weather conditions, earthquake, flood, strike, work stoppage or other labour difficulty, embargo, fuel or energy shortage, equipment breakdown, delay or accident in shipping or transportation, failure or delay in obtaining necessary manufacturing facilities, labour or materials from its usual sources, or unforeseen circumstances or contingencies.
9. Warranty. The terms of the applicable manufacturer’s warranty for the Goods (collectively, the "Warranty") shall apply. Unless stated otherwise in the Warranty, all timelines for the Warranty shall start on Kinetec Mechanical Services Ltd.’s invoice date. OTHER THAN THE WARRANTY, NO OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES OR SIMILAR OBLIGATIONS, WHETHER EXPRESS OR IMPLIED BY FACT, BY LAW, INCLUDING ANY STATUTE OR REGULATION, BY CUSTOM OR TRADE USAGE, OR BY ANY COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR FITNESS FOR A PARTICULAR PURPOSE, ARE APPLICABLE AND ALL OF THE FOREGOING ARE EXPRESSLY DISCLAIMED. OTHER THAN THE WARRANTY, KINETEC MECHANICAL SERVICES LTD. MAKES NO WARRANTY THAT THE GOODS WILL BE SECURE OR ERROR-FREE, OR WILL MEET CUSTOMER’S REQUIREMENTS. The Warranty is in the nature of liquidated damages and in substitution for any damages to which the Customer might otherwise be entitled at law or in equity and, in particular, Customer hereby agrees that in lieu of actions arising out of contract or tort, Customer will rely upon the provisions of the Warranty as its sole remedy for any defect or deficiency in the Goods. In respect only of claims made under the Warranty, if there is a conflict or inconsistency between the terms of the Warranty and any other term of this Agreement, including, without limitation, any term of these Terms and Conditions, the terms of the Warranty shall govern.
10. Returns, Refunds, and Resale of Goods. Any request by the Customer for a return or refund shall be subject to agreement by Kinetec Mechanical Services Ltd., in its sole discretion, compliance with the Customer Parts Return Policy and any other applicable Kinetec Mechanical Services Ltd. policies, as they may be subject to modification, revision, or replacement from time to time. Without prejudice to any other rights that Kinetec Mechanical Services Ltd. may have, Kinetec Mechanical Services Ltd. shall be entitled to resell any Goods which are the subject of this Agreement without any liability to the Customer whatsoever if the Customer fails to comply with any of its terms and conditions.
11. Limits of Liability. KINETEC MECHANICAL SERVICES LTD. SHALL NOT BE LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ALTERNATIVE TORT REMEDIES OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ASSOCIATED EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF PRODUCTION, LOSS OF USE OF CUSTOMER’S PROPERTY, PLANT, EQUIPMENT OR SYSTEM DOWNTIME COSTS OR CLAIMS OF CUSTOMER’S CUSTOMERS. THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND KINETEC MECHANICAL SERVICES LTD.’S TOTAL AGGREGATE LIABILITY TO CUSTOMER HEREUNDER SHALL NOT EXCEED HALF OF THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SPECIFIC GOODS OR SERVICES FROM WHICH ANY CLAIM OR DAMAGES HEREUNDER MAY ARISE. THE FOREGOING LIMITATIONS ON LIABILITY WILL APPLY EVEN IF KINETEC MECHANICAL SERVICES LTD. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12. Indemnification. The Customer shall defend, indemnify, and hold harmless Kinetec Mechanical Services Ltd. and its affiliates and their directors, officers, employees, and agents from and against any and all liability, loss, damage, cost, or expense (including solicitors’ fees) by reason of (i) any allegation, claim, action, suit or threat thereof, for the death or injury of any person(s) or damage or destruction of property arising out of the acts or omissions (including those as a result of negligence) or willful acts of Customer or its agents or representatives; and (ii) the Customer’s breach of or failure to perform its obligations hereunder.
13. Risk of Loss and Security Interest. Except if otherwise set forth in the Agreement, risk of loss or damage to goods shall pass to Customer upon delivery. All actual costs for transportation, tariffs, insurance, and similar charges are for the Customer’s account unless otherwise specified. Notwithstanding that the Goods may be installed or otherwise incorporated into other equipment, title shall pass upon delivery and payment in full by the Customer. From the point of delivery through and including commissioning and testing, Customer shall maintain all risks property Insurance naming Kinetec Mechanical Services Ltd. and any contractors as additional insureds as their interest may appear. Customer hereby grants Kinetec Mechanical Services Ltd. a purchase money security interest in the Goods until the purchase price is fully paid. Customer shall do everything necessary or convenient to perfect and maintain such security interest including, but not limited to, the prompt execution and delivery of financing statements as requested by Kinetec Mechanical Services Ltd. Kinetec Mechanical Services Ltd. may, in its sole discretion, make registrations or take other action to protect its interest in the Goods. To the extent permitted by law, Customer hereby waives all rights to receive notice of registration or copies of financing statements, financing change statements, verification statements, or any other notices or documentation associated with the foregoing.
14. Confidentiality. “Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential which includes but not limited to all specifications, illustrations, drawings, data, and other information transmitted by Kinetec Mechanical Services Ltd. to Customer in connection with this Agreement. Confidential Information may only be disclosed to the Customer’s employees, professional advisors, agents, and subcontractors (“Representatives”) on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the Customer shall be liable for unauthorized disclosures by its Representatives. Customer will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. If Customer must disclose Confidential Information as required by law, it shall give reasonable prior notice to Kinetec Mechanical Services Ltd..
15. Intellectual Property. Goods (including software), incorporate technology, patents, trademarks, service marks, trade names, proprietary information, trade secrets, and other intellectual property rights therein (collectively “Kinetec Mechanical Services Ltd. Intellectual Property”). All rights, titles, and interests in and to the Kinetec Mechanical Services Ltd. Intellectual Property is the property of Kinetec Mechanical Services Ltd., its licensors, or certain other third parties, and is protected by Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Subject to the applicable Terms of Use, Kinetec Mechanical Services Ltd. grants Customer a non-exclusive and revocable license to use the Kinetec Mechanical Services Ltd. Intellectual Property owned by and made available by Kinetec Mechanical Services Ltd. to the extent necessary to use the goods and/or services purchase under this Agreement and otherwise exercise its rights herein.
16. Ownership of Intellectual Property Rights in the Data. All intellectual property rights in any data generated (“Output Data”) as part of the goods and/or services sold, licensed, or otherwise provided under this Agreement will vest in Kinetec Mechanical Services Ltd. upon the creation absolutely and Customer hereby assigns absolutely all of its intellectual property rights in and to the Output Data, except that Customer is permitted to use such Output Data solely for its internal business purposes. For clarity, this provision only applies to data generated as part of the performance of this Agreement and does not apply to the raw data (“Raw Data”) that is provided by the Customer or the users. Where Raw Data is provided by Customer, Customer will grant Kinetec Mechanical Services Ltd. a non-exclusive, irrevocable, transferrable, worldwide license to use the Raw Data that has been provided by Customer.
17. Data Sharing. The Customer understands, acknowledgesand agrees that Kinetec Mechanical Services Ltd. and Caterpillar Inc., and itsand their respective group of companies and business affiliates andcontractually related third parties can and will collect and have possession ofinformation about the Customer, including information about the Customer’sownership, rental, maintenance and use of the Customer’s Caterpillar machinesand other equipment provided by or through Kinetec Mechanical Services Ltd..Details relating to the information that is collected, how it is collected, howit is used and shared, and how it is kept secure are all contained in Kinetec MechanicalServices Ltd.’s Data Governance Statement which can be viewed at http://www.Kinetec Mechanical ServicesLtd..com/en_CA/policies/data-governance.html and the Caterpillar DataGovernance Statement which can be viewed at www.cat.com/en_US/legal-notices/data-governance.html.
18. Electronic Communication. With the Customer’s consent, Kinetec Mechanical Services Ltd. may send electronic communications to inform the Customer of products or services available from Kinetec Mechanical Services Ltd. or its affiliated entities. When collecting information that might be used to contact the Customer about Kinetec Mechanical Services Ltd.’s products and services, Kinetec Mechanical Services Ltd. will give the Customer the opportunity to opt-out from receiving such communications. Moreover, each e-mail communication Kinetec Mechanical Services Ltd. send includes the ability to unsubscribe allowing the Customer to stop delivery of that type of communication. If the Customer elects to unsubscribe, Kinetec Mechanical Services Ltd. will remove the Customer from the relevant list.
19. Prohibition on Exports. Goods sold under this Agreement may be subject to compliance with applicable U.S. government export and trade control laws. To the extent that the Goods are subject to such export and trade control laws, Customer represents and warrants that it intends to use the Goods for its own account and has no intention to resell any Goods to any person or entity outside the United States or Canada (as applicable). The Goods may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
2.0 Independent Contractor. The parties agree that Kinetec Mechanical Services Ltd. is an independent contractor and not an employee or agent of the Customer. Equipment operators and other Customer employees, agents, or subcontractors assigned to assist Kinetec Mechanical Services Ltd. may receive temporary instructions, directions, or control from Kinetec Mechanical Services Ltd. but shall at all times be considered the employees, agents, subcontractors of the Customer and not of Kinetec Mechanical Services Ltd..
21. Amendments. No modifications, revisions, or amendments to this Agreement will be binding unless made in writing and signed by both parties. No action, delay, or failure to act by Kinetec Mechanical Services Ltd. shall constitute a waiver of any right available to Kinetec Mechanical Services Ltd. under this Agreement except to the extent as may be specifically agreed to in writing by Kinetec Mechanical Services Ltd..
22. Assignment; Validity. This Agreement is not assignable without the prior written consent of Kinetec Mechanical Services Ltd., which consent may be withheld at Kinetec Mechanical Services Ltd.’s sole discretion. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
23. Applicable Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by and are to be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and treated in all respects as an Alberta contract without reference to conflict of law rules. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the parties with respect to this Agreement and the transactions contemplated hereby.
24. Counterparts. This Agreement may be executed by electronic means (the parties having consented to do business electronically). All Customer orders, and portions thereof, are subject to written acceptance by Kinetec Mechanical Services Ltd. and may be rejected at Kinetec Mechanical Services Ltd.’s sole and unfettered discretion.