ASAHI BEVERAGES (NZ) LIMITED CONDITIONS OF PURCHASE

In these conditions of purchase, the term ‘Asahi’ and ‘Customer’ means Asahi Beverages (NZ) Limited (NZBN: 9429039576514) and its subsidiaries.

All Goods and/or Services are purchased by Asahi subject to the following conditions which shall prevail over all other terms and conditions, unless a separate agreement in writing has been specifically agreed between the parties and any conditions to the contrary contained herein are expressly excluded.

1 Supply of goods and services

The Supplier must supply the Goods and/or Services to Asahi in accordance with the Agreement.

2 Price for goods and services

2.1 ASAHI agrees to pay the Price for the Goods and /or Services.

2.2 The Price includes:

(a) GST, all packaging, transport, customs duty (and any other duties, taxes or levies), insurance, loading, unloading and storage costs, up to the point of delivery; and

(b) All amounts payable for the use of any intellectual property; and

3 Risk and title in Goods

Risk in the Goods passes to Asahi upon delivery of the Goods. Title in the Goods passes to Asahi upon delivery or upon payment by ASAHI for the Goods, whichever occurs first. Delivery occurs when Asahi signs a delivery receipt.

4 Conditions as to quality of Goods and Services

4.1 The Supplier warrants that the Goods and Services:

(a) comply with all Specifications;

(b) do not infringe any right of any third party (including, without limitation, any intellectual property right), or applicable law, statute, regulation, code or rule;

(c) are fit for the purpose which the Supplier has been notified Asahi intends to use them or for which they are commonly used;

(d) correspond with any description or sample the Supplier has previously provided to Asahi; and

(e) comply with all relevant legislation.

4.2 Without limiting clause 4.1, the Supplier warrants that the Goods:

(a) are new, genuine and free of encumbrance;

(b) are not defective and are of merchantable quality;

(c) where the Goods are intended for human consumption (or are an ingredient to be used in the manufacture of goods intended for human consumption):

(i) are fit for human consumption;

(ii) comply in all respects with all relevant provisions of all applicable food, health, trade practices, weights and measures and other legislation in New Zealand;

(iii) are not adulterated or contaminated in any way; and

(iv) the Goods do not comprise and are not derived from any genetically modified organisms or products, except to the extent agreed by Asahi.

4.3 Without limiting clause 4.1, the Supplier warrants that the Services will:

(a) be performed by appropriately qualified and trained personnel;

(b) be performed with due care and skill; and

(c) comply with all reasonable directives and orders given by Asahi representatives or procedures communicated by Asahi to the Supplier in respect of the supply of the Goods or the performance of the Services.

5 Delivery

5.1 The Supplier must pay all delivery charges in connection with the delivery of the Goods including charges for packing, crating, freight and insurance charges, unless the Purchase Order expressly indicates that the Price is inclusive of all delivery charges.

5.2 If the Goods or any item comprising the Goods have not been delivered by the date specified for delivery on the Purchase Order for any reason other than that which is caused by Asahi, Asahi may:

(a) require the Supplier to deliver, at its sole expense, such Goods by the most expeditious means of transportation; or

(b) terminate the Agreement without liability and return, at the Supplier’s expense, any items of Goods that may have been delivered and paid for by the Customer. The Supplier must promptly refund to the Customer the amounts paid for the items of Goods returned.

6 Goods and Services which fail to meet standards

Without limiting any other remedy Asahi may have, if the Goods delivered or Services performed do not meet or exceed the standards required in the Agreement, do not meet or exceed the Specifications or are otherwise unacceptable to Asahi upon delivery, and in relation to Goods, at any time during their intended useful life (the Non-conforming Goods and Services), Asahi will not be required to pay for those Non-conforming Goods and/or Services. The Supplier must, at the Supplier’s cost, if Asahi requires the Supplier to do so, promptly remove any Non-conforming Goods from Asahi’s premises. The Supplier must at Asahi’s election either:

(a) promptly replace or repair the Non conforming Goods and/or Services with Goods and/or Services which do meet the relevant standards or Specifications and which are acceptable to Asahi; or

(b) refund to Asahi all money paid in respect of the Non-conforming Goods and/or Services.

7 Intellectual property

7.1 Nothing in the Agreement affects ownership of any intellectual property rights of the Supplier existing as at the date of the Agreement or subsequently arising in relation to the Goods and Services other than as specified in clauses 7.2 and 7.3. The Supplier grants to the Customer a non-exclusive, assignable, royalty free, perpetual and irrevocable licence to use the Supplier’s intellectual property.

7.2 If any of the Goods have been specifically designed for or requested by Asahi (the “Custom Works”) all intellectual property in, and relating to, the Custom Works will be Asahi’s property.

7.3 All intellectual property created by or on behalf of the Supplier in the course of providing the Services to Asahi (“Contract Intellectual Property”) will be Asahi’s property.

7.4 The Supplier must at its own cost to do all things necessary to give effect to clauses 7.2 and 7.3, including signing documents and procuring third party licences and consents necessary to assign all right to the intellectual property rights under clauses 7.2 and 7.3 to Asahi and reserve all Asahi’s intellectual property rights in any agreement which the Supplier enters into with any third party in relation to any Custom Works and/or Contract Intellectual Property.

8 Confidentiality

8.1 The parties must keep all Confidential Information secret and must not use that Confidential Information except as necessary for the purposes of the Agreement. Each party must store all Confidential Information in a way that minimises the risk of unauthorised access. In this clause 8, “Confidential Information” with respect to a party (a “Receiving Party”) means:

(a) the existence and terms of the Agreement; and

(b) any technical, scientific, commercial, financial or other information of or about the other party (the “Discloser”) or any of its products, of which the Receiving Party becomes aware in connection with the Agreement and all information about the Discloser’s business and business processes.

8.2 The parties’ obligations under this clause 8 do not apply to any information which:

(a) is in the public domain as at the date of the Agreement or which subsequently comes into the public domain (other than because of a breach of any obligation of confidence owned to the Discloser); or

(b) the Receiving Party can demonstrate by evidence in writing either:

(i) was in the possession of the Receiving Party as at the date of the Agreement; or

(ii) subsequently comes into the possession of the Receiving Party through a third party who does not owe any obligation of confidence to the Discloser in respect of that information; or

(iii) the Receiving Party is required by law to disclose.

8.3 Where the Supplier is the Receiving Party, the Supplier must promptly return all Confidential Information to Asahi or destroy it if Asahi asks the Supplier to do so.

9 Termination

9.1 Without limiting any other rights or remedies the parties may have, each party may terminate the Agreement effective immediately by giving notice to the other party if the other party breaches a material term of the Agreement or an Insolvency Event occurs.

9.2 Asahi may terminate this Agreement at any other time by providing 2 weeks’ notice in writing to the Supplier. Asahi’s liability is limited to the payment of a fair and reasonable price that will be paid for all agreed work in progress at the time of cancellation and subsequently received by Asahi (such price to be determined solely by Asahi acting reasonably and in consultation with the Supplier). Asahi will not be liable for any loss to the Supplier, including consequential loss.

10 Privacy

10.1 The Supplier agrees that:

(a) it will not collect, use, disclose, store, transfer or otherwise handle Personal Information or Health Information that it collects in connection with the Agreement except to the extent that it is reasonably necessary for the performance of its obligations to the Customer or under this Agreement and only in accordance with the relevant privacy laws;

(b) in respect of any act or practice engaged in by the Supplier in connection with the performance of its obligations to the Customer or under this Agreement, it will comply with the New Zealand privacy principles or Information Privacy Principles (as applicable);

(c) for the avoidance of doubt, it will not transfer or disclose any Personal Information collected in connection with this Agreement to any recipient outside of the country it was collected in (Australian or New Zealand, as applicable) or allow or permit any person located outside Australia or New Zealand (as applicable) to access or receive any Personal Information collected in connection with this Agreement, without the Customer’s prior written consent;

(d) it will not use Personal Information collected in connection with this Agreement for the purpose of soliciting other business from Asahi unless expressly invited to do so by Asahi; and

(e) it will immediately notify the Customer if the Supplier becomes aware of a breach or possible breach of any of its obligations under this clause 10.

11 Terms of payment

11.1 The Supplier must submit an invoice for all Goods and Services provided to Asahi in a form acceptable to Asahi. The invoice must specify the Purchase Order number to which the invoice relates. Asahi will not be required to pay any invoice that does not specify a Purchase Order number or specifies an invalid Purchase Order number.

11.2 The Supplier must provide Asahi with a valid tax invoice for any taxable supply it makes to Asahi under the Agreement. Asahi will not be required to pay the Supplier until the Supplier has provided a valid tax invoice to Asahi.

11.3 Subject to the satisfactory performance of the Agreement by the Supplier, the Customer shall pay the Price two (2) calendar months following the end of the month in which a valid and accurate invoice is received and in the next scheduled supplier payment run.

11.4 All invoices must be emailed to:

NZAP@asahi.co.nz

All invoice queries should be directed to:

Phone: 0800 420001 option 4

Email: NZAP@asahi.co.nz

12 Insurance

The Supplier must obtain product liability insurance of not less than NZD$20 million per event, public liability insurance of not less than NZD$20 million per event and, if Services are being provided, professional indemnity insurance of not less than NZD$20 million per event.

13 Indemnity

13.1 Without limiting any of Asahi’s other legal rights, then except to the extent that Asahi has caused or contributed to the loss, damage, claim, action or expense, the Supplier hereby indemnifies Asahi and any Related Company (as defined in the Companies Act 1993) against any loss, damage, claim, action or expense (including, without limitation, legal expense) which Asahi or any of its Related Companies suffer in connection with any of the following:

(a) a breach of the Agreement by the Supplier;

(b) any warranty given by the Supplier under the Agreement being incorrect or misleading in any way;

(d) any infringement or alleged infringement of any intellectual property right relating to the Goods and/or Services;

(e) any personal injury, death or property damage;

(f) any negligent act or failure to act by the Supplier or any of the Supplier’s employees, agents, officers or contractors; and

(g) any act which is not authorised by the Agreement.

13.2 In the event of a claim relating to any actual or alleged infringement of any intellectual property by the Supplier, the Supplier must at the election of the Customer:

(a) procure for the Customer the right to continue using the affected Goods and/or Services free from any infringement;

(b) modify the Goods and/or Services so that the Customer is no longer infringing any intellectual property without causing a loss of functionality or performance;

(c) promptly replace the Goods and/or Services with other goods and/or services free from infringement of any intellectual property rights which have the same or better performance or functionality capabilities than the original Goods and/or Services; or

(d) accept the return of the Goods and/or Services at the Supplier’s expense and promptly refund the Customer all monies paid in connection with the affected Goods and/or Services.

14 GST

14.1 Where the Agreement requires either party to pay for, reimburse or contribute to any expense, loss or outgoing (“Reimbursable Expense”) suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:

(a) the amount of the Reimbursable Expense net of input tax credits (if any) to which the other party is entitled in respect of the Reimbursable Expense (“net amount”); and

(b) if the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply.

15 Audit

15.1 Asahi may conduct an audit of the Supplier on reasonable notice for the purpose of ensuring the Supplier is complying with the terms of the Agreement and/or applicable laws, or for any other legitimate purpose Asahi reasonably requires.

15.2 The Supplier must do all things reasonably necessary to enable Asahi to undertake an audit, including by:

(a) providing reasonable assistance to conduct the audit expeditiously and to review, verify and sample the records; and

(b) providing adequate working space and reasonably access to the Supplier’s office facilities.

16 Miscellaneous

16.1 Asahi may transfer, assign, novate or otherwise encumber or deal with (“dispose of”) the Agreement, or any right or obligation under it to a Related Company without the consent of the Supplier. A party must not otherwise dispose of the Agreement or any right or obligation under it or subcontract any of its obligations under the Agreement, without the prior written consent of the other party. The Supplier will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under the Agreement and will be responsible and liable for all acts and omissions of a sub-contractor

16.2 The Agreement is governed by the laws of New Zealand. The Supplier irrevocably and unconditionally submits to the jurisdiction of the courts of New Zealand for determining any dispute.

16.3 The Customer has adopted Corporate Social Responsibility Principles for Asahi Group Suppliers (CSR Principles) which are published on its website at asahi.com.au. The Supplier acknowledges and agrees that:

(a) it has received a copy of the CSR Principles or viewed them on the Customer’s website and has read and understood those; and

(b) it will comply with the CSR Principles.

16.4 The Supplier shall:

(a) comply with all applicable anti-bribery and anti-corruption legislation including, without limitation, the Crimes Act 1961 and the Secret Commissions Act 1910 or similar laws of other countries that are applicable;

(b) maintain and enforce its own policies and procedures, including adequate procedures to ensure compliance with all applicable anti-bribery and anti-corruption legislation; and

Any breach of this clause shall be deemed a material breach under this Agreement.

16.5 The Supplier will provide the Goods and/or Services to the Customer however, the Supplier acknowledges and agrees that all members of the Customer Group may make use of and enjoy the benefit of the Goods and/or Services and the Customer will benefit from this Agreement as though references to the “Customer” in this Agreement (other than in this clause) were references to the “Customer Group”. All liability whatsoever suffered or incurred by the “Customer Group” in connection with this Agreement (“Group Losses”) are deemed to be suffered or incurred by the Customer for the purpose of these Terms. The Customer may exercise all rights and remedies under these Terms or at law in respect of Group Losses as if those Group Losses had been suffered or incurred by the Customer directly.

Agreement means these terms and conditions and the Purchase Order.

Information Privacy Principles means the set of information privacy principles outlined in the Privacy Act 1993.

GST, Input tax credit, Supply, Tax Invoice, and Taxable Supply have the meanings given to those expressions in the Income Tax Act 2007 and the Goods and Services Tax Act 1985.

Goods and Services means the goods and services specified in the Purchase Order to be supplied by the Supplier to Asahi.

Health Information has the meaning given in section 22B of the Health Act 1956.

An Insolvency Event occurs:

(a) if a liquidator is appointed in respect of all or any of the assets of a party;

(b) if a receiver or statutory agent is appointed in respect of all or any of the assets of a party; or

(c) where a party makes any composition arrangement with its creditors, is unable to pay its debts or is wound-up or dissolved.

Personal Information means information about an identifiable individual, as defined in the Privacy Act 1993

Price means the price specified in the Purchase Order.

Purchase Order means the purchase order provided by Asahi to the Supplier which is subject to these terms and conditions.

Related Company has the meaning given in the Companies Act 1993.

Asahi means Asahi Beverages (NZ) Limited (NZBN: 9429039576514)

Specifications means all specifications provided by Asahi to the Supplier in relation to the Goods or Services including those provided prior to the date of the Agreement.

Supplier means the supplier of the Goods and Services named in the Purchase Order.