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Terms and Conditions
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY SIGNING A STATEMENT OF WORK OR OTHERWISE ENGAGING SERVICE PROVIDER TO PERFORM THE SERVICES, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ENGAGE SERVICE PROVIDER IF YOU (A) DO NOT AGREE TO THESE TERMS AND CONDITIONS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH SERVICE PROVIDER, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (the “Terms and Conditions”) apply to the engagement of custom welding, metal fabrication, and related services provided by Serviced Provider, whether obtained through www.keeslercustoms.com (the “Site”), a signed Statement of Work, or any other method of engagement. These Terms and Conditions are subject to change by Service Provider without prior written notice at any time, in Service Provider’s sole discretion. The latest version of these Terms and Conditions will be posted on this Site, and Customer should review these Terms and Conditions before purchasing any Products or Services (as defined below) through Service Provider. Customer’s continued use of this Site after a posted change in these Terms and Conditions will constitute Customer’s acceptance of and agreement to such changes.
These Terms and Conditions are by and between Keesler Customs LLC, a Michigan limited liability company (the "Service Provider") and you, the entity or person purchasing Products or engaging with Service Provider to provide the Services (the "Customer").
Customer acknowledges and agrees that these Terms and Conditions are incorporated in, and are a part of, each quotation, purchase order, statement of work, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Products or provision of Services by Service Provider to Customer (these documents are collectively referred to as the “Agreement”).
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
1. Definitions.
"Action" has the meaning set forth in Section 12.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Authorized Service Recipients" means the Affiliates of Customer as may be notified by Customer to Service Provider from time to time.
"Agreement" has the meaning set forth in the preamble.
"Change Order" has the meaning set forth in Section 6.
“Complete” or “Completion” means the date on which the Services are rendered or Products provided in substantial compliance with the Statement of Work and to the reasonable satisfaction of Customer.
"Confidential Information" means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential". Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
"Customer" has the meaning set forth in the preamble.
“Custom Product(s)” means Products specifically designed and fabricated according to the specifications provided by Customer, as described in the Statement of Work.
"Customer Contract Manager" has the meaning set forth in Section 5.
"Customer Equipment" means any equipment, systems, or facilities provided by Customer and used directly or indirectly in the provision of the Services.
"Deliverables" means all Products, documents, work product, and other that are delivered to Customer hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Statement of Work.
"Disclosing Party" means a party that discloses Confidential Information under this Agreement.
"Force Majeure Event" has the meaning set forth in Section 14.
"Intellectual Property Rights" means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Product(s)” refers to all custom welding, metal fabrication, and related items fabricated or supplied by Service Provider, including but not limited to structural components, decorative metalwork, custom-fabricated pieces, and any other metal products offered through Service Provider.
“Made-to-Order Product(s)” means custom-fabricated metal products that are pre-designed and available in standard configurations, as listed in Service Provider’s catalog or on this Site.
"Receiving Party" means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
"Service Provider" has the meaning set forth in the preamble.
"Service Provider Personnel" means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.
"Services" mean the services to be provided by Service Provider under this Agreement, as described in more detail in the Statement of Work, and Service Provider's obligations under this Agreement.
"Statement of Work" or "SOW" means the Statement of Work entered into by the parties and incorporated into this Agreement by reference.
“Subcontractor” means any third-party welding, metal fabrication, or related service providers, including all subcontractors and affiliates of Service Provider, other than Service Provider’s employees, who assist in providing any Services.
2. Services.
2.1 Provided Services. Service Provider shall provide the Services to Customer as described in more detail in the Statement of Work in accordance with the terms and conditions of this Agreement. Service Provider will evaluate the job based on Customer’s specifications, site conditions, and project requirements. Following this evaluation, Service Provider will provide Customer with a Statement of Work outlining the estimated quote, estimated costs, scope of work, and projected timeline. No work shall commence until both parties have reviewed and signed the Statement of Work. Service Provider reserves the right to adjust the Fee (as defined below) if unforeseen circumstances or additional requirements arise during the course of performing the Services. The final Deliverables will either be delivered by Service Provider or picked up by Customer, as agreed in writing by the parties.
2.2 Tools and Equipment. Service Provider shall provide all necessary tools and equipment required to complete the Services. While Service Provider may, at its discretion, use Customer Equipment on an occasional basis, Service Provider is not required to do so. Service Provider shall not be held liable for any damage to or malfunction of Customer Equipment used during the course of performing the Services. Customer remains responsible for ensuring that any Customer Equipment is in safe and operable condition.
2.3 Delivery, Pickup, and Related Costs. Customer and Service Provider will agree in writing on whether Service Provider will deliver the Deliverables to Customer or Customer will pick them up from Service Provider’s location. If shipping is requested, Service Provider may arrange shipment through a third-party carrier, and any associated shipping fees will be set forth in the Statement of Work or invoiced separately. Pricing remains subject to change based on market factors. Title to the Deliverables passes to Customer upon the earliest of: (i) Customer’s receipt of the Deliverables if delivered by Service Provider, (ii) Customer’s pick-up, or (iii) transfer to a carrier, if shipping is arranged. Title transfer is not affected by any delay in payment. Any delivery dates or performance schedules are approximations, and Service Provider’s sole obligation is to use commercially reasonable efforts to meet such approximations. If Customer requests an expedited order or rush service, additional fees may apply based on factors such as overtime labor, material availability, and priority scheduling. Service Provider will notify Customer of any rush fee before work begins, and payment of such fee is required before priority processing commences.
2.4 Customer must provide accurate drawings, measurements, and specifications, which will be detailed in a Statement of Work, before Service Provider begins performance. Service Provider is not responsible for errors, miscalculations, or structural deficiencies resulting from Customer-provided specifications. Any design modifications made by Service Provider to improve functionality or safety will be communicated to Customer for approval before implementation.
2.5 Custom Product Variations.
(a) Due to the nature of raw materials used in custom metal fabrication, variations in color, texture, and dimensions are normal. Service Provider will not be held responsible for changes in material appearance due to exposure to light, environmental conditions, or aging.
(b) Surface variations such as patina development, heat marks, or finish inconsistencies are natural characteristics of metal fabrication and are not considered defects.
(c) Irregularities and variations in hand-crafted or welded components are inherent to the fabrication process and should not be considered defects.
(d) Material warping, minor surface imperfections, heat discoloration, oxidation, or minor scratches occurring during handling and fabrication are not considered fabrication defects.
2.6 When a defect is claimed for Custom Products, Service Provider is not responsible for any costs beyond direct fabrication and transportation expenses. This includes, but is not limited to, installation or re-installation costs, removal, and disposal of old materials, relocation of equipment or structures, rental fees, penalties, or any other related expenses incurred by Customer.
2.7 Inspection and Acceptance.
(a) Customer must inspect all Deliverables within five (5) days of receipt and notify Service Provider in writing of any defects, nonconformities, or shipping-related damages. Failure to provide notice of such issues within this timeframe shall constitute acceptance of the Deliverables as delivered, except for defects covered under Section 11. Minor punch-list items that do not materially affect functionality or compliance with the Statement of Work do not preclude Completion.
(b) After acceptance, Customer waives the right to reject the Deliverables for cosmetic or minor issues but retains the right to pursue warranty claims for material or workmanship defects. Warranty claims must be made within the warranty period and will be remedied within a commercially reasonable timeframe, subject to material availability.
(c) For shipping damage, Customer must file claims directly with the freight carrier and notify Service Provider within five (5) days of receipt. While Service Provider is not liable for transit-related damage, it may assist in the claims process at its discretion.
(d) Service Provider reserves the right to repair, replace, or provide an alternative resolution for any fabrication defect. If a valid fabrication defect claim is made, Service Provider will determine an appropriate remedy and implement it within a reasonable timeframe, considering material sourcing and production schedules.
2.8 Insurance Coverage. Insurance coverage on shipments is the responsibility of Customer.
2.9 Product Variations and Matching. Service Provider will make its best effort to ensure that the Deliverables match the specifications detailed in a Statement of Work as closely as possible. However, due to the nature of custom metal fabrication and finishing processes, an exact match is not guaranteed and is not covered under Section 11. Variations in material texture, weld patterns, patina, and finish are inherent to the fabrication process. Any disputes will be settled based on commercially reasonable standards for custom metal fabrication.
2.10 Quotation Expiration. Written quotations are valid for thirty (30) days from receipt of the Statement of Work, unless otherwise noted in writing by Service Provider. Service Provider will have the right to withdraw any quote that has not been accepted by Customer within the 30-day time period. If significant increases in material costs exceed 10%, Service Provider reserves the right to adjust the final Fee. In such cases, Customer will be notified before work continues.
2.11 Taxes. Prices quoted for Products do not include, and Customer shall pay, all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Products by Service Provider with the exception of Service Provider’s income tax obligations arising out of the sale of the Products or provision of Services.
2.12 Security Interest. As security for payment of all amounts due to Service Provider, Customer grants to Service Provider a security interest in all Deliverables provided to Customer by Service Provider, and Service Provider will have all rights of a secured party under the Uniform Commercial Code with respect to the Deliverables. Customer appoints Service Provider as its attorney-in-fact with authority, at Service Provider’s option, to take actions as Service Provider deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Customer shall pay all applicable filing fees.
3. Work Location & Safety Regulations.
3.1 Work may be performed at either Service Provider’ facility or Customer’s location, as determined by the nature of the Services. Customer is responsible for ensuring a safe and hazard-free work environment before Service Provider Personnel arrive on-site. This includes, but is not limited to, removing hazards, securing necessary permits, and providing adequate access to the work area. All personnel present at the worksite must comply with federal, state, and local safety regulations and any additional safety protocols established by Service Provider, including those detailed in Section 3.2. Customer must restrict unauthorized personnel from entering the designated work zone. Upon request, Service Provider may provide barricades or safety materials to restrict access; however, Customer remains responsible for enforcing these safety measures and ensuring the well-being of any Person on the worksite. Service Provider shall not be held liable for any injury, property damage, or project delays resulting from an unsafe work environment caused by Customer. If the Services are delayed due to unsafe conditions, Customer may be billed for additional labor costs, rescheduling fees, or any other related expenses incurred due to the delay.
3.2 Rules and Regulations. Customer and all on-site personnel must adhere to the following requirements to maintain a safe and compliant work environment:
(a) All personnel present at the worksite must comply with federal, state, and local safety regulations, as well as any additional safety protocols established by Service Provider. Appropriate personal protective equipment (“PPE”), including but not limited to safety glasses, gloves, steel-toe boots, welding helmets, and fire-resistant clothing, must be worn as required for specific tasks. Unauthorized personnel, including untrained employees, visitors, and minors, are strictly prohibited from entering active work areas, and Customer is responsible for enforcing this restriction.
(b) Flammable, explosive, or hazardous materials must be properly stored and handled in accordance with OSHA and industry safety standards. Welding and fabrication work must be conducted in designated areas with adequate ventilation and fire suppression systems in place. Only trained and authorized personnel may operate machinery, welding equipment, and other fabrication tools, and any misuse or unauthorized operation is strictly prohibited. The work area must remain clean and free of obstructions, with debris, tools, and materials properly stored to prevent tripping hazards or other safety risks.
(c) All on-site personnel must be familiar with emergency procedures, including fire evacuation routes, first aid locations, and reporting protocols for workplace injuries or safety incidents. Service Provider may install barricades, warning signs, or other safety measures to secure the work area, and Customer must not remove or alter these safety measures without Service Provider’s prior written approval. Any Subcontractors or third-party workers engaged by either Service Provider or Customer must adhere to these rules and regulations, and Customer is responsible for ensuring compliance by any third-party personnel they bring onto the worksite.
(d) Failure to comply with these rules and regulations may result in immediate suspension of Service Provider’s performance of the Services, removal of Service Provider Personnel from the worksite, or termination of the Services at Service Provider’s sole discretion. Any delays or costs incurred due to non-compliance will be Customer’s responsibility. By agreeing to these Terms and Conditions, Customer acknowledges and accepts responsibility for enforcing these rules and ensuring a safe working environment.
4. Service Provider's Obligations.
4.1 Service Provider is not responsible for the performance of each Subcontractor and its employees or for their compliance with all of the terms and conditions of this Agreement. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Service Provider Subcontractor or supplier.
4.2 Service Provider and its Subcontractors need to verify certain information prior to accepting to perform the Services. Together with Service Provider’s Subcontractors, Service Provider and its Subcontractors reserve the right to change, limit, refuse, or cancel any orders by Customer for Products and Services that are sold, at our discretion, without prior notification, and at any time.
5. Customer's Obligations.
5.1 Customer shall:
(a) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(b) provide such information as Service Provider may reasonably request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects;
(c) cooperate with Service Provider in all matters relating to the Services and appoint a Customer employee or agent to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Company with respect to matters pertaining to this Agreement (the "Customer Contract Manager"); and
(d) In the event there is freight damage, freight damage must be reported to the carrier within twenty-four (24) hours of receipt of the Deliverables. A damaged Product must be signed for accordingly. Service Provider must be advised of all visible damages immediately. All wrappings must be retained until inspection by carrier.
5.2 If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, any Subcontractor, any Authorized Service Recipient, or their agents, Subcontractors, consultants, or employees outside of Service Provider's reasonable control, Service Provider 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.
6. Change Orders.
6.1 Either party may request modifications to the scope, schedule, or pricing of the Services by submitting a written request. Service Provider will evaluate the requested changes and provide a written estimate of any adjustments to cost, timeline, or project scope. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 16.10. If additional costs or delays arise due to the requested changes, Customer will be notified and responsible for any approved adjustment
7. Termination.
7.1 Either party may terminate this Agreement or any Statement of Work, in whole or in part, at any time prior to the start of fabrication by providing at least seven (7) days’ prior written notice to the other party.
7.2 Effects of Termination or Expiration. Upon termination of this Agreement for any reason:
(a) Service Provider shall (i) promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid, and (ii) on a pro-rata basis, repay all fees and expenses paid in advance for any Services not performed or Deliverables not provided.
(b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information, (ii) permanently delete all of the other party's Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause.
(c) In the event there is a request for termination prior to the start of fabrication, Customer agrees to pay a cancellation charge based on costs incurred plus normal overhead and profit.
7.3 Survival. The rights and obligations of the parties set forth in this Section 7.3 and Section 1, Section 7.2, Section 9, Section 10, Section 11, Section 14, and Section 16, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination of this Agreement, will survive any such termination or expiration of this Agreement.
8. Fees and Expenses; Payment Terms.
8.1 Fees. In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Statement of Work (the “Fees”). Payment to Service Provider of the Fees shall constitute payment in full for the performance of the Services or sale of Products. The total estimated cost for this Agreement is an estimate only, as described in Section 8.2.
8.2 Estimates. Fees quoted for Services billed as a flat-rate fee in accordance with Section 8.6 under this Agreement and any Statement of Work are estimates and do not constitute the actual Fee owed by Client. Any such estimates are made on the basis of information available to Service Provider and on the basis of Service Provider’s experience and qualifications. However, since Service Provider has no control over the impact of various factors that impact the actual fee for the Services, Service Provider does not guarantee that the actual Fee will not vary from the Service Provider’s estimates, and Customer agrees to pay the full adjusted Fee.
8.3 For Services exceeding Three Thousand and 00/100 Dollars ($3,000.00), Customer is required to provide a down payment of thirty percent (30%) to fifty percent (50%) of the Fee, depending on material costs. The determination of material costs is at the sole discretion of Service Provider and will not be disclosed to Customer. No work will commence until the required down payment is received and cleared. Failure to provide the down payment within the agreed timeframe may result in delays or cancellation of the Services.
8.4 Invoicing. Service Provider shall invoice Customer upon Completion of the Services. Payment shall be due within thirty (30) days of Client’s receipt of the invoice. Payment is accepted via credit card, cash, or check. Payments must be made in readily available United States dollars.
8.5 Late Fees. Should Client fail to pay any invoice within thirty (30) days after receipt, a late fee of two percent (2%) of the invoiced amount shall be applied. Failure to pay an invoice may result in immediate termination of this Agreement. Any unpaid balances beyond ninety (90) days will be sent to collections, and Customer will be responsible for all related collection fees and legal expenses. Customer further acknowledges and agrees that failure to pay any invoice in full within the specified timeframe may result in additional legal and administrative fees, and Service Provider reserves the right to impose work stoppages, withhold Deliverables, or refuse future services until all outstanding balances are settled.
8.6 Fee Structure. The Fees for Services may be structured on an hourly basis or as a flat-rate fee, depending on the scope and nature of the Services, as detailed in the Statement of Work. When the Fees are based on an hourly rate, Customer will be charged for all labor hours incurred, including setup, fabrication, finishing, and cleanup.
8.7 Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
8.8 Customer represents and warrants that (i) the credit card information and contract information Customer supplies to Service Provider is true, correct, and complete, (ii) Customer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Customer will be honored by Customer’s credit card company, and (iv) Customer will pay charges incurred by Customer at the posted prices, including all applicable taxes, if any.
9. Intellectual Property Rights; Ownership.
9.1 Customer agrees that Service Provider and its licensors are, and shall be, the sole and exclusive owners of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Customer does not and will not have or acquire any ownership of the Intellectual Property Rights of the Products or Services provided, or any of the Intellectual Property Rights relating to those products or services.
9.2 Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the pre-existing materials, including all Intellectual Property Rights therein.
9.3 Service Provider hereby grants Customer and the Authorized Service Recipients a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicensable, worldwide license to use the Deliverables for its intended purpose.
9.4 All designs, plans, welding methods, and fabrication processes developed by Service Provider remain the exclusive property of Service Provider. Customers may use the final product for its intended purpose but may not reproduce, modify, or create derivative works based on Service Provider’ designs or techniques without Service Provider’s prior written consent.
10. Confidential Information.
10.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a "need to know", who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 10;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables; and
(c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
10.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose.
11. Representations and Warranties. THIS WARRANTY GIVES CUSTOMER SPECIAL LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
11.1 Warranty for Custom Products. Service Provider represents and warrants to Customer that, at the time of delivery, all Deliverables will conform to the original design specifications stated in the Statemen of Work and will be free of material defects in the materials used in the Deliverables nor in the workmanship. This warranty does not apply if the Deliverable (a) has been improperly installed, misused, neglected, or mishandled, (b) was damaged during shipping, or (c) was damaged due to improper cleaning, handling, modification, or storage by Customer. Normal wear and tear following delivery is not covered under this Section 11. Additionally, improper installation by a non-affiliated party, exposure to corrosive environments, failure to follow recommended maintenance procedures, or unauthorized modifications may result in premature deterioration, which is not covered by this Section 11. The warranty commences on the date of delivery to Customer and expires one (1) year from that date.
11.2 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
12. Indemnification.
12.1 Customer shall defend, indemnify, and hold harmless Service Provider and Service Provider's Affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against all Losses arising out of or resulting from any third-party claim, suit, action, or proceeding (each, an "Action") arising out of or resulting from:
(a) Customer's breach of any representation, warranty, or obligation of Customer in this Agreement; and
(b) Infringement of copyrights, trademarks and design patents due to a specific design or construction produced and supplied to Customer’s specifications.
13. Limitation of Liability.
13.1 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SERVICE PROVIDER 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, 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 SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SERVICE PROVIDER’S 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 THE TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT AND THE APPLICABLE STATEMENT OF WORK.
14. Force Majeure.
14.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including without limitation the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) pandemics, epidemics, plagues, infectious disease or viral outbreaks or other public health crisis, including measures of any government authority taken in response to such events such as quarantine or other employee restrictions, and any labor shortages, delays or disruptions in supply chains or the inability or unavailability of personnel to perform or provide services as a result of any such events or governmental measures and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
15. Weather Delays.
15.1 Service Provider is not responsible for delays caused by adverse weather conditions such as heavy rain, snow, extreme heat, or high winds. In cases where weather prevents safe or effective welding, the work timeline will be adjusted accordingly. Customer will not be entitled to a refund or compensation for weather-related delays.
16. Miscellaneous.
16.1 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.
16.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated by the other party. All notices may be sent to Service Provider by email at info@keeslercustoms.com
16.3 Dispute Resolution and Binding Arbitration.
(a) CUSTOMER AND SERVICE PROVIDER ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF CUSTOMER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND SERVICE PROVIDER ARISING FROM OR RELATED IN ANYWAY TO CUSTOMER’S PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 16.3. (The AAA Rules are available at or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator(s) power to award damages is subject to the limitations set forth in Section 13 of this Agreement.
(c) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
16.4 Goods Not for Resale or Export. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer represents and warrants that Customer is buying Products or engaging Services Provider for Services for its own use only, and not for resale or export.
16.5 Assignment. Customer will not assign any of its rights or delegate any of its obligations under these Terms and Conditions without Service Provider’s prior written consent. Any purported assignment or delegation in violation of this Section 16.5 is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms and Conditions.
16.6 No Waivers. The failure by Service Provider to enforce any right or provision of these Terms and Conditions will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Service Provider.
16.7 No Third-Party Beneficiaries. These Terms and Conditions do not and are not intended to confer any rights or remedies upon any Person other than Customer.
16.8 Entire Agreement. This Agreement, together with all Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
16.9 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
16.10 Modification. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.11 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.12 Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Michigan, without regard to the conflict of laws provisions of such State.
16.13 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
16.14 Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against the principal in accordance with its terms.