ELECTED SERVICES USER AGREEMENT

Transcription

1 ELECTED SERVICES USER AGREEMENT TBS Effective Date: December 8, 2015

2 BREWERS RETAIL INC. ELECTED SERVICES USER AGREEMENT THIS AGREEMENT is made this day of _, 201 Commencement Date WHEREAS: BREWERS RETAIL INC., a corporation existing under the laws of the Province of Ontario ( BRI ) and _, a corporation existing under the laws of ( Brewer ) (a) (b) (c) BRI owns and operates outlets for the sale and distribution of Beer in the Province of Ontario; BRI purchases directly from the Brewer or from the LCBO Beer brewed by Brewer from time to time; and Brewer desires BRI to perform and BRI has agreed to perform the Elected Services described herein. 1.1 Definitions NOW THEREFORE for good and valuable consideration the Parties agree: As used herein, ARTICLE 1 INTERPRETATION (a) (b) (c) (d) Act means the Liquor Control Act, R.S.O. 1990, c. L.18, as amended from time to time and the regulations there under as amended from time to time; Additional Elected Services means those services, which for greater certainty are not described on Schedule A, that are requested from time to time by Brewer and which BRI has agreed to perform pursuant to the Section 3.4 hereof; Agreement means this elected services user agreement and all amendments made hereto in accordance with the provisions hereof; Applicable Laws means any statute (including without limitation, the Act), regulation, by-law and order or requirement of any competent authority affecting or relating in any way to the Page 1 Revised November 23, 2015

3 keeping, storage, display, packaging, labeling, advertising, promotion, ordering, offering for sale or purchase of Beer through BRI, including in, on or from premises of BRI; (e) (f) (g) (h) Beer has the meaning that it has for purposes of the Liquor Licence Act, R.S.O 1990, c. L.19; Brewer Remit has the meaning given to such term in the User Agreement; Business Day commercial banks in Toronto, Ontario are open for commercial banking business during normal business hours; Container means a bottle, can, keg, or other receptacle for holding Beer; (i) Elected Services means those services described on Schedule A; (j) (k) (l) (m) (n) (o) (p) (q) (r) LCBO means the Liquor Control Board of Ontario; New Private Retail Outlets new private retail outlets authorized by the Province of Ontario to sell beverage alcohol to retail consumers; Ontario Bottle Allocation Agreement means the agreement entered into between BRI and such brewers as become a party to such agreement from time to time, in the form attached as Schedule B to the User Agreement; Parties Party SKU means a stock keeping unit, based on brand identification, Container type and package size; Shareholders Agreement BRI, Labatt Brewing Company Limited, Molson Canada 2005, Sleeman Breweries Ltd. and each Qualifying Brewer Shareholder; Statement Taxes means the Harmonized Sales Tax and all other taxes levies or duties imposed on BRI or Beer; and User Agreement means the user agreement dated, 201 between Brewer and BRI. ARTICLE 2 USER AGREEMENT 2.1 User Agreement Brewer represents and warrants that it is, and agrees that it will continue to be during the term of this Agreement, in compliance with the terms and conditions of the User Agreement. Page 2 Revised November 23, 2015

4 ARTICLE 3 ELECTED SERVICES PROVIDED BY BRI 3.1 Elected Services Upon the execution of this Agreement, Brewer shall elect, by initialing the appropriate box set opposite the description of Elected Services on Schedule B hereto, those Elected Services which Brewer wishes BRI to provide. Subject to Section 3.5, BRI shall perform such Elected Services so elected for the fees set forth in Section 4.1 hereof, as may be revised from time to time in accordance with the provisions of the Shareholders Agreement. 3.2 Adding Elected Service(s) by Brewer From time to time during the term of this Agreement, Brewer may request in writing that BRI perform additional Elected Services. If a request to perform additional Elected Services is received by BRI, then BRI shall, within 30 days of such receipt, confirm in writing its agreement to perform the additional Elected Services so requested for the fees established pursuant to Section 4.1 hereof, as may be revised from time to time in accordance with the provisions of the Shareholders Agreement. 3.3 Ceasing Elected Service(s) by Brewer Brewer may request in writing that BRI cease performing any Elected Service previously elected by Brewer. If a request to cease performing any Elected Service previously elected by Brewer is received by BRI, then BRI shall, within 30 days of such receipt, cease to perform such Elected Services, provided that that Brewer shall be responsible for paying the fees for such Elected Services within such 30 day period. 3.4 Additional Elected Services Brewer may, by written request to BRI, request that BRI perform Additional Elected Services. Within a reasonable time having regard to the difficulty of implementing such Additional Elected Services, BRI shall notify Brewer in writing whether BRI is prepared to offer such Additional Elected Services to Brewer and, if so, specifying the fees for such Additional Elected Services. If BRI notifies Brewer that such Additional Elected Services will be performed, BRI shall perform such Additional Elected Services and Brewer shall pay the fees as specified in such notice. Any decision to offer Additional Elected Services and the determination of fees applicable thereto shall be made by BRI in its sole discretion. 3.5 Change of Services by BRI BRI may, from time to time, withdraw, change, expand, restrict or otherwise alter the nature of and scope of Elected Services which it makes available to all brewers, as a result of changes in the business or regulatory environment within which BRI operates. BRI may also decline to perform certain Elected Services at its sole discretion from time to time, provided that such services are discontinued for all brewers. BRI shall provide Brewer with written notice of such changes and any such change, expansion, restriction or alteration shall, become effective within 30 days after such written notice or such earlier or later date as is required by Applicable Laws and Brewer shall be bound by such changes. Page 3 Revised November 23, 2015

5 ARTICLE 4 FEES, DEPOSITS AND OTHER COSTS 4.1 Service Fees Brewer shall pay to BRI service fees and Taxes applicable thereon in respect of each Elected Service or Additional Elected Service performed Website and shall be established in accordance with the provisions of the Shareholders Agreement. The fees for Additional Elected Services shall be those specified by BRI as contemplated in Section Statement and Offset BRI shall provide the Brewer with a Statement, in the form and at the times contemplated in Section 5.2 of the User Agreement, setting out all amounts owing by Brewer to BRI under this Agreement for Elected Services or Additional Elected Services, as applicable. BRI reserves the right to offset amounts owing within the Brewer Remit process and the amount outstanding will be settled by either Party by the terms outlined in Schedule C of the User Agreement. 5.1 Covenants of Brewer ARTICLE 5 COVENANTS (a) (b) Brewer agrees to indemnify, defend and hold harmless BRI and its affiliates and their respective officers, directors, employees and agents of and from every claim, demand, loss, expense, occasioned or in any way caused by or resulting from any product of Brewer or the package containing same, save and except for any claim, demand, loss, expense caused by or resulting from the gross negligence of BRI or its employees or agents. Brewer shall effect and maintain insurance in accordance with the requirements set out in the User Agreement. ARTICLE 6 TERMS AND TERMINATION 6.1 Term This Agreement shall commence on the Commencement Date and remain in force until December 31 of the year in which it was signed and shall renew automatically for successive one-year terms unless either to renew the Agreement in which case this Agreement shall terminate at the end of the then current term. 6.2 Termination by a Party Notwithstanding Section 6.1, this Agreement may be terminated by written notice of termination given by a Party to the other Party if any of the following events occur: (a) upon breach by such other Party of any term, condition or provision to be observed or performed by such Party hereunder where such breach has not been rectified within 30 days of receipt of written notice identifying the breach; Page 4 Revised November 23, 2015

6 (b) (c) if the other Party makes an assignment in bankruptcy or a petition in bankruptcy is filed against the other Party, if the other Party becomes bankrupt or insolvent or avails itself of any legislation that may from time to time be in force which is of advantage to a bankrupt or insolvent person, if a trustee, liquidator, receiver, manager or custodian is appointed with respect to any of the property or assets of any such Party or if a writ of execution or similar process is obtained against the other Party and is not satisfied within 30 days of the issuance thereof; or any legislative or policy change by the Government of Canada or the Government of Ontario or their agents relating to the regulation and control of the sale of Beer in Ontario that has a negative impact on such Party. 6.3 Termination by BRI Notwithstanding Section 6.1, this Agreement may be terminated by written notice given by BRI to Brewer if Brewer violates any term, condition or provision of this Agreement or the User Agreement to be observed or performed, where such breach has not been rectified within 30 days of receipt of written notice identifying the breach. 6.4 Termination of User Agreement Notwithstanding Section 6.1, this Agreement shall automatically terminate, without notice, upon the expiry or termination of the User Agreement. 6.5 Effect of Termination Following termination of this Agreement all further obligations of the Parties under this Agreement shall terminate, except as contemplated in Section 4.2 and Section 6.6, which shall survive such termination. 6.6 Accounting Upon termination of this Agreement, a final accounting report will be completed by BRI and delivered to the Brewer within 90 days of such termination and BRI and Brewer shall make all necessary financial adjustments and payments to give effect to the termination of this Agreement within 90 days following receipt of such accounting report as prepared by BRI. Any dispute or difference that arises between the Parties hereto as to the amount of any financial or other calculation or adjustment as prepared by BRI shall be settled in the manner specified in Section Entire Agreement This Agreement, together with the User Agreement and the Shareholders Agreement, constitutes the entire Agreement between the Parties pertaining to the subject matter of this Agreement and sets out all the covenants, promises, warranties, representations, conditions, understandings and agreements between the Parties pertaining to that subject matter and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, pertaining to that subject matter. There are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written, express, implied or collateral between the Parties in connection with the subject matter of this Agreement except as specifically set forth in this Agreement. Page 5 Revised November 23, 2015

7 6.8 Independent Legal Advice The Parties acknowledge that they have entered into this Agreement willingly with full knowledge of the obligations imposed by the terms of this Agreement. The Parties acknowledge that they have been afforded the opportunity to obtain independent legal advice and confirm by the execution of this Agreement that they have either done so or waived their right to do so, and agree that this Agreement constitutes a binding legal obligation and that they are estopped from raising any claim on the basis that they have not obtained such advice. 7.1 Notices ARTICLE 7 MISCELLANEOUS Any notice required or permitted to be given hereunder shall be in writing and shall be sufficiently given if personally delivered, mailed, postage prepaid and registered, or sent by fax or other means of electronic communication and addressed: (a) if to BRI, at The Beer Store 5900 Explorer Drive Mississauga, Ontario L4W 5L2 Facsimile No. (905) Attention: President (b) (c) if to Brewer, at the address for the Brewer specified in the User Agreement, or to such other address as the Party to which such notice is to be given shall have notified (in accordance with the provisions of this Section) as its substitute address for the purposes hereof. Any notice, waiver, direction or other instrument aforesaid if delivered personally shall be deemed to have been given on the day in which it was delivered, if mailed shall be deemed to have been given on the fourth Business Day following the day on which it was mailed and if sent by fax or other electronic means of communication, on the day of transmittal thereof. If the Party giving any notice knows or reasonably ought to know of any difficulty with the postal system which might affect the delivery of mail, such notice shall not be mailed but shall be given by personal delivery or fax or other electronic means of communication. 7.2 Amendments and Waivers Brewer is bound by this Agreement and subsequent amendments. Brewer is required to sign and deliver any amended Agreement to BRI within 30 days of request by BRI, failing which BRI may withhold any payments due to Brewer and/or elect not to perform any or all of the Elected Services until Brewer has complied with this requirement. No waiver of any breach of any provision of this Agreement shall be effective or binding unless made in writing and signed by the Party purporting to give such waiver and, unless otherwise provided in the written waiver, shall be limited to the specified breach waived. Page 6 Revised November 23, 2015

8 7.3 Dispute Disputes between the Parties relating to the subject matter of this Agreement shall be settled in accordance with Schedule E of the User Agreement. 7.4 Force Majeure No Party hereunder shall be responsible to the other Party for any delay or failure to fulfill the terms of this Agreement if such failure or delay results from an act of God, an act of a public enemy, an act of sabotage, riot, fire, flood, explosion or other catastrophe, an accident, a freight embargo or any other cause beyond the reasonable control of the Party whose failure or delay is to be excused. 7.5 Assignment Neither this Agreement nor any interest in it may be assigned by Brewer without the prior written consent of BRI. Any sale or other disposition or granting of any interest in Brewer or any series of transactions whereby a change in control in Brewer is effected shall be deemed to be an assignment of this Agreement to which this Section 7.4 applies; in the case of a corporation control shall have the meaning set out in the Business Corporations Act, (Ontario). BRI shall be entitled to assign this Agreement without the consent of Brewer. 7.6 Governing Law and Attornment This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Brewer hereby attorns to the exclusive jurisdiction of the courts of Toronto, Ontario. 7.7 Canadian Dollars All references herein to dollars are to the lawful currency of Canada. 7.8 Successors and Assigns The provisions of this Agreement shall endure to the benefit of and be binding upon the successors and assigns of BRI and subject to the consent of BRI having first been obtained, the successors and assigns of Brewer. 7.9 Execution and Delivery This Agreement may be executed by the Parties in counterparts and may be executed and delivered by facsimile and all such counterparts and facsimiles shall together constitute one and the same agreement. Page 7 Revised November 23, 2015

9 IN WITNESS WHEREOF the Parties hereto have executed this Agreement under seal as of the Commencement Date. BREWERS RETAIL INC. By: Name: Ted Moroz Title: President [ ] By: Name: Title: Page 8 Revised November 23, 2015

10 SCHEDULE A ELECTED SERVICES The following are brief descriptions of the Elected Services available to a Brewer under this Agreement. Transfers A Brewer may contract with BRI to transfer products between a BRI depot and its associated stores, either: (a) (b) on an emergency basis to avoid an out-of stock position; or as regularly scheduled by BRI. Delivery Service to LCBO A Brewer may contract with BRI to deliver full, packaged products to LCBO Retail Stores and their agents as ordered by the LCBO Retail Store, subject to SKU availability in the servicing BRI outlet. Not applicable to products originally supplied to BRI by the LCBO. Delivery Service to New Private Retail Outlets A Brewer may contract with BRI to deliver full, packaged products to New Private Retail Outlets, subject to SKU availability in the servicing BRI outlet. Small Packages Sold at Large Package Price A Brewer may contract with BRI to sell multiple small packages for the price of the equivalent larger package where the larger package has an approved price but is either not supplied by the Brewer or is currently out of stock. Not applicable to draught products. Old Code Disposal A Brewe as determined by the Brewer. Voucher Administration the obtain and maintain all requisite approvals. Standard Containers A Brewer may choose to sell product in the standard container defined as t Agreement. By doing so, the Brewer agrees to adhere to the terms of the Ontario Bottle Allocation Agreement. For the purposes of this Agreement, in addition to the Industry Bottle, cans with a capacity of 1 litre or less are also considered standard containers. Page 9 Revised November 23, 2015

11 Draught Beer - Non-Palletized Shipments A Brewer may contract with BRI to accept container shipments of full, non-palletized draught Beer kegs. Draught Beer - Return of Empty Containers A Brewer may contract with BRI to arrange the return of empty draught Containers to the original point of entry into the BRI system. Page 10 Revised November 23, 2015

12 SCHEDULE B ELECTED SERVICES SELECTED BY BREWER The Brewer hereby agrees to contract with BRI for the following elected services as described in Schedule A, under the terms, fees, costs and charges in effect from time to time and as described in this Agreement. Transfers eer on an emergency basis BRI to supply to attached list of BRI Retail Stores via BRI transfer system Delivery to LCBO Delivery to New Private Retail Outlets Small Packages Sold at Large Package Price BRI to sell multiple small packages for the price of the equivalent larger package price Old Code Disposal Voucher Administration Standard Containers Brewer wishes to supply Beer in standard Containers Draught Beer - Non-Palletized Shipments Brewer wishes to supply draught Beer in non-palletized Containers Draught Beer - Return of Empty Containers Brewer wishes BRI to return draught Beer Containers to original BRI point of receipt Initial [ ] By: Name: Title: Page 11 Revised November 23, 2015

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