KINEK® – TERMS AND CONDITIONS OF SERVICE
ALL RIGHTS RESERVED

Effective June 1,2011

THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (“TERMS”) GOVERN YOUR USE OF KINEK.COM™, INCLUDING KINEKPOINT MANAGER™, KINEKTRAK™, AND KINEK MOBILE™. BY ELECTRONICALLY INDICATING ACCEPTANCE OF THESES TERMS AND CONDITIONS, YOUR VIEWING, OR USE OF THIS SITE WILL CONSTITUTE YOUR AGREEMENT ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT (HEREINAFTER COLLECTIVELY “YOU” OR “YOUR”), TO ALL THE TERMS AND CONDITIONS PROVIDED BELOW. IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND CONDITIONS, YOU SHALL NOT USE THE SERVICE.

THE TERMS AND CONDITIONS OF SERVICE ARE EFFECTIVE ON THE DATE SET FORTH ABOVE. KINEK MAY MAKE FUTURE CHANGES OR MODIFICATIONS TO SUCH TERMS AND CONDITIONS AT ANY TIME WITHOUT NOTICE, AND YOUR SUBSEQUENT VIEWING OR USE OF KINEK.COM WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES AND MODIFICATIONS. THERE MAY BE ADDITIONAL TERMS AND CONDITIONS PROVIDED THROUGHOUT KINEK.COM GOVERNING YOUR USE OF PARTICULAR FUNCTIONS, FEATURES, INFORMATION AND APPLICATIONS AVAILABLE THROUGH KINEK.COM.

THE FOLLOWING CONTAINS THE GENERAL TERMS AND CONDITIONS OF SERVICE AND CONSTITUTE AN AGREEMENT (“AGREEMENT”) BETWEEN YOU, 640624 N.B. LTD, DBA KINEK® (“KINEK”) UNDER WHICH KINEK IS ENGAGED IN THE TRANSPORTATION AND RECEIPT OF PACKAGES JOINTLY THROUGH INTERCHANGE WITH ITS AFFILIATES VIA THE SERVICES DISCRIBED BELOW AND SUPERSEDE ALL PRIOR PROMISES, AGREEMENTS OR REPRESENTATIONS, WHETHER WRITTEN OR ORAL, REGARDING SUCH SUBJECT MATTER.

DEFINITIONS
1. “Package” means any container and its contents, and includes envelopes, as well as any article that may be handled without packaging if the handling thereof can be accomplished is a reasonably safe and practicable manner, sent addressed by, or for YOU properly using the service.
2. “KinekPoint” means the KINEK Authorized retail or non-retail location YOU designate for receipt, storage and pick-up of YOUR Package(s).
3. “Kinek Fees” means all applicable fees for receipt of shipment or Packages in effect at the time of shipping, plus any additional fees for charges or rates for nonstandard services, additional or nonstandard usage, or those additional rates set out in any customized contract.
4. “KinekPoint Service” means the receipt and storage of YOUR Package by YOUR designated KinekPoint location for pick-up by YOU pursuant to these TERMS.
5. “C.O.D” means for purposes Collect on Delivery.
6. “Carrier” means the parcel delivery company that delivers a Package, which may include any of the national (UPS, FedEx, USPS, DHL, Canada Post, Purolator, etc.) regional, or local delivery services.
7. Including: means including but not limited to.
8. Animal: means anything living, except plants.
9. Content: means information, graphics, products, features, functionality, services, and links on Kinek.com, including KinekTRAK, KinekPoint Manager, and Kinek Billing Online.
10. YOU:means YOURSELF and the entity that you represent.
GENERAL OBLIGATIONS
1. Registering for the KinekPoint™ Service at Kinek.com or through our partner websites enables YOU to route YOUR online, catalogue, manufacturer and other retail purchases, or individuals sending Packages to YOU, to a designated KinekPoint location for pick-up by YOU or YOUR authorized representative.
2. Before YOUR designated KinekPoint accepts any Package for YOU, the KinekPoint reserves the right to require sufficient verification, as determined by the KinekPoint in its sole discretion, of the shipper’s name and address, or any other information necessary to accept the Package for service.
3. Subject to Section 2(b) of this Agreement, when a KinekPoint receives a Package for YOU;
  1. YOUR KinekPoint shall record the receipt of the Package or Packages into the KinekPoint application.
  2. KINEK shall transmit to YOU a delivery notification via email, push notification and/or SMS Text massage that YOUR Package(s) are ready for pick-up.
  3. The KinekPoint shall hold YOUR Package(s) for a period of thirty (30) days from dispatch of delivery notifications, or for the period of time noted in YOUR designated KinekPoints schedule of fees and services listed on Kinek.com.
  4. YOU agree to pick-up YOUR Package(s) within such thirty (30) day period or lesser thereof and pay any applicable charges, as noted in YOUR KinekPoint’s schedule of fees listed on Kinek.com.
  5. YOU will be required to present to YOUR KinekPoint at the time of pick-up; YOUR Kinek account number, 2 pieces of ID (one must be government issued photo ID) and you may also be requested to present a copy of your retail order confirmation or invoice.
  6. YOUR KinekPoint will deliver YOUR Package(s) to YOU, once the applicable charges have been paid by YOU.
OWNERSHIP
Kinek.com and its Content are protected by United States, Canadian and international copyright, trademark and other laws. Title to the Content remains with Kinek and/or its affiliate partners. © 2001-2015 Kinek. All rights reserved. Specifically, Kinek does not convey to anyone, through allowing access to Kinek.com, any ownership rights in Kinek.com or in any Content appearing on or made available through Kinek.com and/or its partners. Customer may not copy, modify, translate, transmit, distribute, adapt, reproduce, decompile, reverse engineer or disassemble any part of Kinek.com or its’ Content.
CHANGES TO KINEK.COM
Kinek.com and its Content, may be changed, deleted or updated at any time without notice.
USE OF KINEK.COM
1. Kinek.com is provided solely for the use of current and potential Kinek customers to interact with Kinek, our KinekPoint network, affiliate partners and may not be used by any other person or entity, or for any other purpose.
2. Kinek does not accept ideas, materials, concepts, or techniques for new services or products through Kinek.com. If such information is received, it will not be considered confidential and KINEK will be deemed free to use, communicate and exploit such information in any manner it chooses, and YOU automatically grant (or warrant that the owner of the Submissions) grants to KINEK a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to YOU or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of KINEK, and YOU warrant and represent that all moral rights in the Submissions are waived.
TERMINATION OF USE
Kinek.com may discontinue, suspend or modify Kinek.com at any time without notice, and KINEK may block, terminate or suspend YOUR and any user’s access to Kinek.com at any time for any reason in its sole discretion, even if access continues to be allowed to others, if you violate these TERMS AND CONDITIONS OF SERVICE or for any other reason determined by KINEK that warrants termination. Upon such violation, YOU agree to indemnify, hold KINEK, its officers, directors, employees, agents, licensors, partners, suppliers and KinekPoints harmless from and against any and all loss, damage, or expense.
PRIVACY
1. The KINEK privacy policy governs the use of information acquired from YOU through Kinek.com.
2. The Privacy policy is available at kinek.com/privacy and is incorporated into this Agreement by reference and shall form part of the TERMS OF SERVICE AND CONDITIONS.
KINEK.COM LOGIN REGISTRATION
1. YOU may choose to register on Kinek.com to access interactive features on Kinek.com. Login provides you with access to KinekPoint Manager, KinekTRAK and other online services.
2. KINEK may add other features that may be accessed through Kinek.com Login. In such event, previously registered users will not be required to re-register.
3. By registering on Kinek.com, YOU agree to provide accurate and current information about YOURSELF as prompted by the Kinek.com Login Registration pages and maintain and promptly update YOUR online profile information to keep it accurate and current.
4. When YOU register using Kinek.com Login Registration, YOU will select a user ID and password. YOU are responsible for maintaining the confidentiality of the password and user ID, and YOU are responsible for all activities that occur under YOUR password and user ID. YOU agree to;
  1. immediately notify Kinek.com of any unauthorized use of YOUR user ID and password, and
  2. ensure that YOU exit from YOUR Kinek.com session at the end of each visit.
5. KINEK does not assume responsibility or liability for any information you submit or for information transmitted or received by YOU or a third party using the KINEK Service.
PARTIES
YOU warrant that YOU are the owner of the goods in any Package or that YOU are authorized by such owner to accept these TERMS AND CONDITIONS OF SERVICE.
KINEKPOINT FEES
1. The fees for the KinekPoint Service can be viewed by accessing YOUR designated KinekPoint’s schedule of fees at Kinek.com.
2. The KinekPoint may change its fees at anytime, without prior notice by posting its revised fees on Kinek.com and any such change will take effect immediately.
3. The following conditions apply for use of the KinekPoint Service if any fee(s) are payable by YOU:
  1. YOU shall pay all applicable KinekPoint Service fees in effect at the time of shipping YOUR Package to a KinekPoint, at the KinekPoint, or in other manners as described on Kinek.com.
  2. If YOU choose not to pay applicable fees at the time of pick-up, the KinekPoint can refuse to deliver YOUR Package(s) to YOU.
  3. Any unclaimed Package(s) shall be subject to Section 11 (“Undeliverable Packages and Refused Packages Returned”), Section 18(f) (“Salvage”) and SECTION 12 (“Liens”) of this Agreement
  4. KINEK shall maintain records of the KinekPoint Services provided to YOU for a period of twelve (12) months, and may, in its sole discretion, dispose of such records thereafter.
UNDELIVERABLE PACKAGES AND REFUSED PACKAGES RETURNED
1. If YOU fail to pick-up any Package from YOUR KinekPoint within thirty (30) days from dispatch of delivery notifications to YOU, then KINEK may in addition to its other rights hereunder;
  1. return YOUR Package to the originating shipper,
  2. upon request received by YOU, in writing or electronically, extend the number of days for pick-up by YOU subject to the approval of YOUR designated KinekPoint to which additional storage fees may be applied to the extended storage request,
  3. exercise KINEK’s rights under Section 18(f) (“Salvage”) and Section 12 (“Liens”) of this Agreement.
2. YOUR designated KinekPoint has no obligation to hold any unclaimed Package beyond the time period described in Section 11(a) of this Agreement. YOUR KinekPoint and KINEK are not responsible for any Package not delivered to YOU due to:
  1. any act or omission of the Carrier;
  2. any act or omission of any Shipper, including failure to send the Package;
  3. any failure by YOU to correctly apply or complete the shipping address provided by KINEK or the KinekPoint.
3. Packages refused by the KinekPoint will be returned to the sender at YOUR expense including, but not limited to, forwarding costs, return transportation charges, duties and taxes.
4. If a Package is refused by the KinekPoint and return of the Package is refused by the shipper, or KINEK is unable within a reasonable time to obtain YOUR instructions on disposition of the Package, or the Package cannot otherwise be returned to the sender, KINEK will retain the Package for a reasonable period of time, to be determined in its sole discretion (not to exceed 30 days), and KINEK reserves the right to dispose of the Package, including salvage as per Section 18(f) (“Salvage”), thereafter. YOUR sole recourse in such circumstances shall be in accordance with and subject to Section 16 (“Limitation of Liability”) and 18 (“Claims For Loss Or Damage To Package”).
LIENS
1. KINEK shall have a general lien on all Packages and documents relating to Packages in the possession, control or custody of YOUR designated KinekPoint for any monies whatsoever due from YOU or owner of the Package and such general lien shall extend to all advances, Customs duties and charges, freight charges or any other charges of any kind arising out of service hereunder and shall be entitled to sell or dispose of such goods or documents as agent for and at the expense of YOU and apply the proceeds in or towards the payment of such sums on fifteen (15) days notice to YOU or any lesser period as may be reasonable in the circumstances.
2. Upon accounting to YOU for any balance remaining after payment of any sums due to Kinek and YOUR designated KinekPoint and any costs of retention, insurance and sale or disposal service, Kinek and Your designated KinekPoint shall be discharged of any liability whatsoever in respect of the Packages or documents.
3. Kinek shall have a right, without further notice to Customer, to dispose of, give away or destroy any Package that has not been collected from a KinekPoint location within thirty (30) days from the dispatch of delivery notifications.
ITEMS NOT ACCEPTED BY A KINEKPOINT REFUSAL OF SERVICE
1. PROHIBITED GOODS AND RESTRICTED PACKAGES: NO SERVICE shall be rendered by a KinekPoint for any receipt of a Package that is prohibited by applicable law or regulation of any federal, state, provincial, or local government in the origin or destination country. It is the responsibility of YOU to ensure that a Package sent to a KinekPoint does not violate any federal, state, provincial, or local laws or regulations applicable to the shipment of the contents of that Package.
2. REFUSAL OF SERVICE: A KinekPoint reserves the right to refuse to provide service, among other reasons, for any Package which by reason of the dangerous or other character of its contents may, in the sole judgment of the KinekPoint; soil, taint or otherwise damage other Packages or the KinekPoints’ equipment, violate any law or regulation, create an unsafe environment for operation of the KinekPoint, exceed the Package size allowance of a given KinekPoint, or which is improperly or insecurely packed or wrapped, as determined by KinekPoint in its sole judgment. A KinekPoint shall not be obliged to accept Packages which contain or constitute;
  1. any living animals,
  2. controlled drugs,
  3. firearms including handguns,
  4. radioactive material or other substances presenting a similar hazard.
3. RIGHT TO INSPECT OR OPEN: A KinekPoint, at its sole discretion reserves the right to open and inspect any Package if they suspect among other reasons, that any Package which by reason of the dangerous or other character of its contents may, in the sole judgment of the KinekPoint; violate any law or regulation, soil, taint or otherwise damage other Packages or the KinekPoints’ equipment, or create an unsafe environment for operation of the KinekPoint.
SPECIAL HANDLING
1. Unless the KinekPoint has agreed in writing, YOU agree that all Packages delivered to a KinekPoint on YOUR behalf will only require regular handling or care and not require any use of specialized equipment or procedures.
2. The KinekPoint shall be under no obligation to provide any specialized equipment or labor that maybe required for unloading of a Package received or during pick-up by YOU.
3. KINEK and the KinekPoint shall not be under liability whatsoever to YOU for any damage howsoever caused if the KinekPoint is instructed by YOU to load or unload goods using specialized appliances.
4. YOU shall indemnify KINEK and the KinekPoint against all claims and demands whatsoever which are made in connection with any instructions referred to in Section 14 (“Special Handling”).
EXPORT
1. YOU assume all responsibility for compliance with all laws and regulations of the United States, Canada and any other country from which YOU may access Kinek.com regarding access, use, export, re-export and import of any package or shipment.
LIMITATION OF LIABILITY
1. KINEK and YOUR designated KinekPoint shall not be liable for loss of or damage to any Package which has arisen from Section 13 (“Items Not Accepted By A KinekPoint Refusal Of Service”) or for any loss or damage which has arisen from any cause outside the reasonable control of KINEK or YOUR designated KinekPoint as set forth in Section 17 (“Force Majeure”).
2. KINEK and YOUR designated KinekPoint shall not in any circumstances be liable for loss or damage caused by or resulting from;
  1. delivery failure if YOU have failed to state the correct address at or before the commencement of shipment,
  2. delay, loss of use, loss of market or any other consequential loss,
  3. loss or damage to any package resulting from insects, moths, vermin, inherent vice, deterioration, dampness of atmosphere, extreme of temperature, ordinary wear and tear, or that which occurred or arose prior to or after the course of transportation by Carrier,
  4. loss or damage to any package resulting from improper, inadequate or unsafe packaging or wrapping,
  5. for illegal items being confiscated,
  6. the Carrier or Shipper of such Package, whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of KINEK or YOUR designated KinekPoint,
  7. for any loss or damage arising from providing service to, or on behalf of, YOU or YOUR servants or agents that obtains such services, including the delivery of property, by trick, false pretense, or other fraudulent scheme,
  8. for any damages arising from KINEK’s inability, failure or refusal to comply with a request to return, or re-route shipment of a package after it has been received by a designated KinekPoint,
  9. for any loss damage to Perishable Commodities to the extent the loss or damage results from exposure to heat or cold or the perishable nature of the item.
3. Except as otherwise provided in these TERMS and in accordance measures defined in Section 18 (“Claims for Loss or Damage to Package”) the liability of KINEK for any damages arising with respect to any Package shall be limited as follows:
  1. if the Package is lost by YOUR designated KinekPoint, KINEK’s liability is limited to:
    1. the actual price charged by the merchant for the goods in the Package, up to a maximum of $2,500, if Shipper was a merchant sending new goods in the Package directly to YOU, and
    2. if Shipper was NOT a merchant sending new goods in the Package directly to YOU, $100 (unless Shipper obtained insurance for the Package at the time the Package was dispatched to the Carrier, in which case KINEK’s liability is limited to the declared insurance value, up to a maximum of $2,500).
  2. if the Package is damaged by YOUR designated KinekPoint, KINEK’s liability is limited to:
    1. the actual price charged by the merchant for the goods in the Package, up to a maximum of $2,500, if Shipper was a merchant sending new goods in the Package directly to YOU, and
    2. if Shipper was NOT a merchant sending new goods in the Package directly to YOU, $100 (unless Shipper obtained insurance for the Package at the time the Package was dispatched to the Carrier, in which case KINEK’s liability is limited to the declared insurance value, up to a maximum of $2,500).
  3. If the Package was received in damaged condition by the KinekPoint and their location KINEK shall have no liability.
4. YOU agree that the storage of the Package by YOUR designated KinekPoint shall in no event constitute a bailment, and neither KINEK nor YOUR designated KinekPoint shall be a bailee of the Package.
5. EXCEPT AS PROVIDED IN SECTION 16 (c) ABOVE, IN NO EVENT SHALL KINEK’S OR YOUR DESIGNATED KINEKPOINT’S AGGREGATE DAMAGES FROM ANY AND ALL CAUSES ARISING IN CONNECTION WITH THESE CONDITIONS OR DELIVERY OF THE SERVICE, (AND FOR THE AVOIDANCE OF DOUBT INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE, OR BREACH OF CONTRACT) EXCEED THE FEES RECEIVED BY KINEK FOR THE SERVICE IN RESPECT OF WHICH THE DAMAGE IS ALLEGED TO HAVE ARISEN.
6. IN NOT EVENT SHALL KINEK OR YOUR DESIGNATED KINEKOINT BE LIABLE FOR INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM LOSS OF PROFITS OR LOSS OF USE, MISDELIVERY OF, OR DAMAGE TO PROPERTY, DELAYED DELIVERY, OR FAILURE TO ATTEMPT DELIVERY, NOTWITHSTANDING THE LEGAL THEORY ON WHICH SUCH DAMAGES ARE ALLEGED TO HAVE BEEN INCURRED.
DISCLAIMER OF WARRANTY
KINEK AND ITS CONTENT ARE PROVIDED “AS IS”. KINEK AND ITS KINEKPOINTS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, REGARDING ANY SUCH CONTENT AND YOUR ABILIITY OR INABILITY TO USE KINEK.COM AND ITS CONTENT.

KINEK EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES REGARDING KINEK.COM, KINEKPOINT MANAGER, KINEKTRAK AND THE FUNCTIONING OF THE INTERNET WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KINEK DOES NOT WARRANT THAT KINEKPOINT MANAGER WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT WITHIN KINEKPOINT MANAGER WILL BE CORRECTED. FURTHERMORE, KINEK DOES NOT WARRANT NOR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF YOUR USE OF KINEKPOINT MANAGER IN TERMS OF CAPABILITY, CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY KINEK OR AN AUTHORIZED REPRESENTATIVE OF KINEK SHALL CREATE A WARRANTY.
CLAIMS FOR LOSS OR DAMAGE TO PACKAGE
1. CLAIMS AND LEGAL ACTIONS: Claims against KINEK must be filed within strict time limits, including as set forth in Section 10(“KinekPoint Fees”) regarding invoice adjustments or billing disputes; Section18(c) (“Time Limit For Filing Claims For Loss Or Damage To Property”) regarding claims for loss or damage to property. All claims against KINEK arising from or related to the provision of services provided including, but not limited to, demands for damages, refunds, credits, and any legal or equitable relief whatsoever, shall be extinguished unless the YOU;
  1. timely and completely comply with all applicable notice and claims periods set forth in the Agreement, including as to claims for loss or damage to property, or claims for invoice adjustments; and
  2. pleads on the face of any complaint filed against KINEK satisfaction and compliance with those notice and claim periods as a contractual condition precedent to recovery. YOU may not deduct the amounts of pending claims from any charges owed to KINEK, and YOU waive any and all rights, including any statutory or common law rights, to set off the amount of any claim against charges owed to KINEK.
2. FILING OF CLAIMS FOR LOSS OR DAMAGE TO PACKAGE: All claims for loss of or damage to Packages received by KINEK or accepted for YOU must:
  1. be in writing (or an electronic communication) and must include reference to the source documentation and date of shipment or copies of other documents sufficient to identify the Package involved, and the declared value;
  2. assert the liability of KINEK for alleged loss or damage;
  3. make claim for payment of a specified or determinable amount of money; and
  4. be accompanied by a copy of the original invoice(order confirmation) or, if no invoice was issued, other proof, certified to in writing, as to the purchase price paid by the YOU (where the Package involved has been sold to the YOU), actual cost or replacement cost of the Package, or extent of the damage to the Package.
3. TIME LIMITS FOR FILING OF CLAIMS FOR LOSS OR DAMAGE TO PACKAGE: As a condition precedent to recovery and in accordance with Section 18(b) (“Filing of Claims for Loss or Damage to Package”), all claims for loss or damage to property must be filed in writing or electronically with KINEK within the following time limits:
  1. For loss or damage to any Package claims must be filed no later than thirty (30) days after the shipment date of the Package to a KinekPoint.
  2. Where YOU have made a claim in writing in respect of loss or damage to a Package, YOU shall on request provide copies of relevant documentation, evidence of the loss or damage and present any damaged Package for inspection. If KINEK has requested such documentation, information or proof in support of such claim, such information must be provided to KINEK within thirty (30) days failing which any claim will be deemed withdrawn.
  3. KINEK shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Package unless a suit or action is brought within six (6) months from the shipment date.
  4. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, such claims shall be deemed waived and will not be paid.
4. INVESTIGATION OF CLAIMS FOR LOSS OR DAMAGE TO PACKAGE:
  1. Prompt Investigation: For each claim for loss or damage to a package or shipment filed in the manner prescribed herein KINEK will make a reasonable effort to promptly and thoroughly investigate, if an investigation has not already been made prior to the claim.
  2. Supporting Documents: A necessary part of the investigation requires that each claim be supported by the following: evidence of the payment and shipping of a Package to a KinekPoint and any declared value charges; and either the original invoice or an exact copy thereof, or an extract made there from, certified by YOU to be true and correct with respect to the Package and cost thereof involved in the claim.
  3. iii. Original Packaging Materials: The original packaging materials must be made available to KINEK or its designee for inspection in the event that a claim is made for damage to a Package.
5. VERIFICATION OF LOSS: When an asserted claim for loss of an entire package or an entire shipment cannot be otherwise authenticated upon investigation, KINEK will obtain from the KinekPoint involved a certified statement in writing that the property for which the claim is filed has not been received from any other source. KINEK reserves the right to require verification by the filing of a police report and providing a copy of the filed report to KINEK in support of the claim.
6. SALVAGE: When KINEK pays the actual cost, the purchase price, or the replacement cost of the Package, all rights, title to, and interest in the Package shall thereupon pass to KINEK, and KINEK reserves the right to obtain the Package for salvage. Payment of a claim in such circumstances shall be contingent on KINEK’s receipt of the damaged Package in the same condition as on the date the damage was incurred.
7. DISPOSITION OF CLAIMS FOR LOSS OR DAMAGE TO PACKAGE: KINEK or its designee, after receiving a written claim for Package received by a KinekPoint, will pay, decline or make a firm compromise settlement offer in writing to the claimant within one hundred-twenty (120) days after KINEK receives the claim. No claim for loss or damage shall be paid unless a valid claim has been filed in accordance with set forth herein Section 18 (“Claims for Loss or Damage to Package”). KINEK reserves the right to refuse to pay any claim for loss or damage to Package until all outstanding charges owing to KINEK have been paid in full.
FORCE MAJEURE
Notwithstanding any provision hereof to the contrary, KINEK and YOUR designated KinekPoint shall be relieved of their obligation to perform this Agreement to the extent that the performance is prevented by failure of YOU or by reason of acts of God, public enemies, war, riot, accidents, strikes, lock-outs, labor disturbances, failure or delay in transportation, inability to obtain necessary labor or materials, government restrictions, fire or explosion, or other event of “force majeure” beyond their reasonable control.
IDEMNITY
1. YOU agree to defend, indemnify and hold harmless KINEK, its parent and affiliate companies and their respective officers, directors, employees, agents and representatives from;
  1. any and all claims (including but not limited to claims, fines, costs, demands, penalties, proceedings, expenses, damages and loss of or damage to other goods by reason of any error, omission, misstatement or misrepresentation arising out of a breach of any of the Agreement in connection with Kinek.com by YOU or by any servant or agent,
  2. any demand, expenses, liabilities, causes of action, enforcement procedures, and suits of any kind or nature brought by a governmental agency, or any other person or entity, arising from or relating to the YOU or YOUR shipper’s noncompliance with governmental laws or regulations applicable to YOUR package,
  3. all claims and demands whatever by whomsoever made in excess of the liability of KINEK and YOUR designated KinekPoint from loss of or damage to property caused by or arising out of the carriage, storage, or refusal to accept by YOUR designated KinekPoint under Section 13 (“Item Not Accepted By A KinekPoint Refusal Of Service”),
  4. all consequences suffered by KINEK or YOUR designated KinekPoint (including but not limited to claims, demands, proceedings, fines, penalties, damages, costs, expenses and loss of or damage to other goods) by reason of any error, omission, misstatement or misrepresentation by YOU or by any servant or agent or either of them, insufficient or improper packaging, labeling or addressing of the goods, fraud or any Package that breaches Section 13 (“Item Not Accepted By A KinekPoint Refusal Of Service”).
CONTROLLING LAW
1. This Agreement and YOUR use of Kinek.com is governed in all respects (including matters of construction, validity, and performance) by the internal laws of the Province of New Brunswick without giving effect to its principles of conflicts of law.
2. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions.
3. YOU consent and agree that any cause of action with respect to Kinek.com, its parent and affiliate companies and their respective officers, directors, employees, agents and representatives or this Agreement must be instituted within six (6) months after the claim or cause of action has risen or be barred and must be brought in a court of competent jurisdiction within the Province of New Brunswick. Not withstanding this, you agree that KINEK shall still be granted the right to seek and apply for injunctive remedies or equivalent type of urgent legal relief, in any jurisdiction.
NO WAIVER
Any failure to enforce or apply a term or provision of the Agreement shall not constitute a waiver of that term or provision by KINEK, the KINEKPOINT, KINEK Employees, Subsidiaries and Affiliates, and shall not diminish or impair their rights to enforce any noncompliance or default by YOU or YOUR agent with respect to any of the TERM and CONDITIONS such term or provision in the future.

Terms of Use

KINEK® – TERMS AND CONDITIONS OF SERVICE ALL RIGHTS RESERVED

Effective June 1,2011

KINEK® – TERMS AND CONDITIONS OF SERVICE
ALL RIGHTS RESERVED