2.1 Brand Partner Obligations. Brand Partner shall not: (a) purchase any Hardware or otherwise acquire the System Services from any person, firm or company other than ecoSPIRITS; (b) within the Territory, manufacture or distribute any goods which compete with the System or System Parts or sell on its own behalf or sell as agent or otherwise on behalf of any third party any such goods; (c) supply the System Services to any other persons or in respect of any other Beverage brands, unless ecoSPIRITS’ prior written consent has been obtained (d) represent itself as an agent of ecoSPIRITS for any purpose; (e) pledge ecoSPIRITS’ credit; (f) give any condition or warranty on ecoSPIRITS’ behalf; (g) make any representation on ecoSPIRITS’ behalf; (h) commit ecoSPIRITS to any contracts; or (i) otherwise incur any liability for or on behalf of ecoSPIRITS.

2.2 Complaints and Product Defects. Brand Partner shall promptly address any complaints relating to the distribution of its Products and keep ecoSPIRITS fully informed of any matters relating to Defects or alleged Defects of the same.

2.3 Brand Partner Representations and Warranties. Brand Partner represents and warrants to ecoSPIRITS on a continuing basis throughout the Term that (a) it has obtained all necessary rights, licences, permits, permissions and approvals to sell and distribute the Beverages in the Territory during the Term; (b) it has the power to accept, execute and deliver this O&O Terms & Conditions and to perform its obligations under it and has taken all action necessary to authorise execution and delivery and the performance of its obligations; and (c) it will exercise its rights and perform its obligations under this O&O Terms & Conditions in compliance with applicable law.

2.4 Operation of System. In the event Brand Partner elects to operate the System by itself, Brand Partner shall operate the System strictly in accordance with the Operating Procedures and all reasonable instructions from ecoSPIRITS from time to time during the Term. The Parties agree that Brand Partner may engage a third-party service provider to operate any part of the System Services, provided that such third party service provider has been approved by ecoSPIRITS in writing (“Co-Packer”). Brand Partner shall be responsible to ensure that all of its obligations herein are complied with by the Co-Packer and shall be liable for any breach and/or non-compliance with the terms herein by Co-Packer. All obligations of Brand Partner in Clauses 2 and 5 shall, if applicable, be taken to include an implied obligation on Brand Partner to ensure Co-Packer’s compliance.

2.5 Use and No Tampering. Brand Partner shall only use the Hardware and System Parts in accordance with the Operating Procedures and not in any other manner or for any other purpose. Brand Partner shall not tamper or make any modification to any part of the Hardware and System Parts, including without limitation any parts connected to, or forming a part of, the Technology Solutions.

2.6 Employee Training. Brand Partner shall ensure that: (a) it does not commence the use of the System Services until all its personnel involved in the operation of the System have, in the reasonable opinion of ecoSPIRITS, successfully completed all initial training as may be required by ecoSPIRITS; and (b) it does not allow any other personnel to operate the System or the System Services until they have, in the reasonable opinion of ecoSPIRITS, successfully completed the training required by ecoSPIRITS. All such training in this Clause 2.6 shall be provided free of charge by ecoSPIRITS.

2.7 Compliance with Applicable Laws. Brand Partner shall, at its own expense, comply with all laws and regulations, including procuring all licences, approvals, permits and certifications required by applicable law, relating to its activities in accordance with this O&O Terms & Conditions, including the use, or operation of, as the case may be, the System in the Territory.

3.1 Initial Products. ecoSPIRITS shall supply, and Brand Partner shall purchase the Initial System Package in accordance with the terms and conditions of this O&O Terms & Conditions. ecoSPIRITS shall be entitled to invoice Brand Partner for the Initial System Package once the Initial System Package is ready for dispatch and Delivery.

3.2 ecoPLANT Site Preparation, Installation and Commissioning. In the event Brand Partner elects to purchase and operate its own ecoPLANT, ecoSPIRITS shall notify Brand Partner of the required information and provide reasonable assistance as may be necessary to enable Brand Partner to prepare the ecoPLANT Site for the installation of the Initial System Package. On or before arrival of the Initial System Package, Brand Partner shall arrange: (a) all necessary licences, permits, and approvals required by applicable law for the installation and operation of the Initial System Package at the ecoPLANT Site; (b) appropriate space at the ecoPLANT Site; (c) the necessary environment (including but not limited to ensuring adequate power supply) required to support and operate the Initial System Package; and (d) that the ecoPLANT Site meets all other requirements as may be notified to Brand Partner by ecoSPIRITS. ecoSPIRITS shall provide the Commissioning Services promptly following the Effective Date or such other date as may be agreed in writing between the Parties. ecoSPIRITS shall communicate to Brand Partner a Commissioning Services plan at least thirty (30) days prior to the arrival of the Initial System Package at the ecoPLANT Site.

3.3 Additional Orders of Hardware. Brand Partner may order such quantities of Hardware as may be required from time to time during the Term. Each Order shall be deemed to be a separate offer by Brand Partner to purchase Hardware at the then current list price and ecoSPIRITS shall be free to accept or decline at its absolute discretion.

3.4 Additional Orders Order Process. Each Order shall: (a) be given by Brand Partner to ecoSPIRITS via [email protected]; and (b) specify the type and quantity of Hardware ordered. No Order shall be deemed to be accepted by ecoSPIRITS until a purchase order is issued to Brand Partner in writing. ecoSPIRITS may, at its sole discretion, accept an amendment to, or cancellation of, an Order by Brand Partner. Brand Partner is responsible for ensuring that Orders are complete and accurate. Brand Partner shall give ecoSPIRITS all necessary information that ecoSPIRITS reasonably requires in order to fulfil each Order. ecoSPIRITS shall use all reasonable endeavours to ensure that any Hardware ordered are available for despatch within sixty (60) days of receipt of an Order.

3.5 Delivery of Additional Orders of Hardware. Delivery dates provided by ecoSPIRITS are approximate only, and the time of Delivery is not of the essence. ecoSPIRITS shall endeavour to deliver the Hardware on or before the delivery dates but shall not be liable for any delay in Delivery of any Hardware.

3.6 Title and Risk of Hardware. Title and Risk in the Hardware including the Initial System Package shall pass to Brand Partner on completion of Delivery.

4.1 ecoTOTE Filling and Logistics. Brand Partner shall be solely responsible for the bottling of Beverages into ecoTOTEs in the Territory, in accordance with this O&O Terms & Conditions. As between the Parties, Brand Partner will also be responsible for all logistics associated with the subsequent delivery and return of such ecoTOTEs, as well as any engagement(s) with its relevant Channel Partners and Venue Partners.

5.1 Offer of Technology Solutions. From time to time during the Term, ecoSPIRITS may offer Brand Partner access to, and use of, certain Technology Solutions relating to the System. Any such Technology Solutions will be subject to the terms and conditions set out in these O&O Terms & Conditions and such other terms and conditions, and/or additional costs, as communicated and issued by ecoSPIRITS to Brand Partner in advance in writing from time to time.

5.2 Conditions of Use. Subject to any other terms and conditions agreed between the Parties, Brand Partner shall not use the Technology Solutions, nor permit them to be used:

(a) for any purpose that is unlawful under any applicable law or prohibited by these O&O Terms & Conditions;
(b) beyond the Term unless otherwise agreed by ecoSPIRITS in writing;
(c) by any third parties or unauthorised personnel;
(d) to commit any act of fraud;
(e) to distribute any virus;
(f) for the purposes of promoting unsolicited advertising or sending spam;
(g) to simulate communications from ecoSPIRITS or another service or entity in order to collect identity information, authentication credentials, or other information (‘phishing’);
(h) to “crawl,” “scrape,” “spider” or otherwise copy or store any portion of the Technology Solutions for any purpose not contemplated under this O&O Terms & Conditions;
(i) to disassemble, reverse engineer, decompile or otherwise attempt to obtain the source code or underlying logic of any portion of the Technology Solutions;
(j) in any manner that disrupts the operations, business, equipment, websites or systems of ecoSPIRITS or any other person or entity (including any denial of service and similar attacks);
(k) in any manner that harms or may endanger minors or any other person;
(l) in connection with any service, use or purpose where the failure of the Technology Solutions (or any part) may endanger the health or life of any person or cause damage or loss to any tangible property or the environment;
(m) to promote any unlawful activity;
(n) to gain unauthorised access to or use of any computers, data, systems, accounts or networks of any person;
(o) in any manner which may impair any other person’s use of the Technology Solutions or use of any other services provided by ecoSPIRITS to any other person;
(p) to attempt to circumvent any security controls or mechanisms;
(q) to attempt to circumvent any password or user authentication methods of any person; and
(r) in any manner inconsistent with these O&O Terms & Conditions or other instructions provided by ecoSPIRITS from time to time.

5.3 Technology Solutions Data. ecoSPIRITS shall retain and will own all rights in and to all data uploaded to and generated from any Technology Solutions (“Solutions Data”). ecoSPIRITS hereby grants to Brand Partner the non-exclusive, worldwide, royalty-free, right to use such Solutions Data during the Term to the extent it is necessary to operate the System and fulfil its obligations under this O&O Terms & Conditions. For clarity, Co-Packer shall only be allowed a right to access to such Solutions Data as may be generated directly as a result of its provision of the System Services.

6.1 Fees. Brand Partner agrees that it shall pay the applicable Monthly Platform Fee as invoiced by ecoSPIRITS.

6.2 Payment Terms. All invoices in respect of this O&O Terms & Conditions issued by ecoSPIRITS will be paid in full by Brand Partner within thirty (30) days of the date of the applicable invoice.

6.3 Late Payment. Time of payment of any invoice shall be of the essence of this O&O Terms & Conditions. If Brand Partner fails to pay any invoice in full when due, ecoSPIRITS shall without notice to Brand Partner be entitled to charge interest on the overdue amount from the date due until the date paid at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.

6.4 Taxes, Withholding, Set-off. All sums payable to ecoSPIRITS under this O&O Terms & Conditions: (a) are exclusive of any applicable taxes (including any goods and services tax), and Brand Partner shall in addition pay an amount equal to any taxes chargeable on those sums; and (b) shall be paid in full without any set-off, counterclaim, deduction or withholding. If any amounts are required to be withheld by Brand Partner from any sums payable to ecoSPIRITS, the amounts so payable to ecoSPIRITS shall be increased to the extent necessary so that ecoSPIRITS receives the full amounts specified in this O&O Terms & Conditions.

7.1 Brand Partner Indemnity. Brand Partner shall promptly, fully and effectively indemnify and keep ecoSPIRITS indemnified against all losses, costs, damages, fees or charges incurred or suffered by it as a result of (i) any loss, theft or damage of any of the System Parts (including, if applicable, the Hardware) that have been delivered to Brand Partner, (ii) any delay in the collection of the System Parts (including, if applicable, the Hardware) on the part of the Brand Partner or (iii) any breach by Brand Partner of Clause 2.3.

7.2 ecoSPIRITS Indemnity. ecoSPIRITS shall promptly, fully and effectively indemnify and keep Brand Partner indemnified against all losses, costs, damages, fees or charges incurred or suffered by it as a result of any breach by ecoSPIRITS of Clause 1.3.

8.1 Hardware, Technology Solutions and Services Provided “as-is”. Unless expressly set forth in this O&O Terms & Conditions or required under any applicable laws, the Hardware, Technology Solutions, System Parts and System Services are provided “as-is” with no warranties, and ecoSPIRITS expressly excludes and disclaims any warranties under or arising as a result of this O&O Terms & Conditions, whether express, implied or statutory. Without limitation of the foregoing and to the maximum extent permitted under applicable law, ecoSPIRITS provides no warranty or any other assurance, express or implied, with respect to the suitability, merchantability, non-infringement or fitness for any purpose whatsoever of the Hardware, Technology Solutions, System Parts and System Services and all other conditions, warranties or other terms whether express, implied or which would otherwise be imposed by statute with respect to suitability, merchantability, non-infringement, or fitness for any purpose whatsoever are hereby excluded.

8.2 Excluded Losses. To the maximum extent permitted by applicable law, neither Party shall be liable to the other for any of the following losses howsoever arising under or in connection with this O&O Terms & Conditions, whether in contract, tort (including negligence), breach of statutory duty, and including under the indemnity obligations under this O&O Terms & Conditions: (a) loss of actual or anticipated income (whether direct or indirect); (b) loss of actual or anticipated profits (whether direct or indirect); (c) loss of contracts or business (whether direct or indirect); or (d) special, indirect or consequential loss or damage of any kind.

8.3 Liability Cap. The maximum aggregate liability of each Party to the other Party shall be as agreed between the Parties in the Standard Terms.

8.4 Duty to mitigate. Each Party will use all reasonable endeavours to mitigate loss and damage it suffers under or in connection with this O&O Terms & Conditions.

9.1 The Parties agree that each shall treat all Confidential Information provided by a Party to the other Party as strictly confidential and shall only use such information for the purposes of fulfilling their duties and obligations pursuant to this O&O Terms & Conditions. Confidential Information shall not be disclosed to any third party without the prior written consent of the disclosing Party. The foregoing duty of confidentiality shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than as a result of a breach of this O&O Terms & Conditions.

10.1 Term. In respect of each Territory, this O&O Terms & Conditions shall be applicable from the Effective Date for such Territory and shall remain in effect until the last day of the BPA Term unless earlier terminated in accordance with the Standard Terms.

10.2 Option to Repurchase System Parts. In the event of termination under the Standard Terms, ecoSPIRITS shall have the option to buy back some or all of the System Parts. If ecoSPIRITS does not buy back the System Parts or purchases only part of the System Parts, Brand Partner shall dispose of any remaining Systems Parts as directed by ecoSPIRITS at its own cost.

11.1 Entire Agreement. The Standard Terms and this O&O Terms & Conditions constitutes the entire agreement between the Parties with respect to the applicable Territory and supersedes all prior and contemporaneous communications.

In this O&O Terms & Conditions, unless the context otherwise requires, the following words and expressions will have the following meanings:

Additional Territory means a Territory specified to be under the O&O Model and added to the Agreement pursuant to Brand Partner’s execution and delivery to ecoSPIRITS of the Territory Addition Notice at which point such additional Territory will be deemed a Territory listed under the Territory List in the Agreement, and shall be subject to the terms and conditions of this O&O Terms & Conditions.

Additional Product means a Product added to the Agreement under a O&O Model Territory pursuant to Brand Partner’s execution and delivery to ecoSPIRITS of the Product Addition Notice at which point such additional Product will be deemed a Product listed under the Products List in the Agreement and shall be subject to the terms and conditions of this O&O Terms & Conditions.

Beverage means alcohol, spirits, liquor, wine, beer and such other liquid which may be fit for beverage purposes either alone or when diluted, mixed or combined with other substances, owned and transported by Brand Partner and which is refilled from time to time in the System Parts comprising ecoTOTEs by Brand Partner (or Licensed Operator if applicable) pursuant to this O&O Terms & Conditions.

BPA Effective Date has the meaning set out in the Contract Details.

BPA Term has the meaning set out in the Standard Terms.

Brand Partner has the meaning set out in the Contract Details.

Channel Partner for each particular Territory has the meaning set out under the corresponding Territory in the Territory List or the Territory Addition Notice, as the case may be, being a third party who has been appointed by Brand Partner as the official agent or distributor of the Products in a Territory.

Commissioning Services means the services relating to the set-up of the System, including engineering support services, namely: (a) remote commissioning and production training support from a qualified ecoSPIRITS engineer; (b) remote advice and feedback on ecoPLANT site selection and local licensing; (c) preparation of commissioning plan and checklist upon arrival of ecoPLANT at site; (d) remote production training of ecoPLANT operators; (e) remote training on ecoTOTE handling, processing and filling; and (f) remote ecoTOTE tracking and other technology features, and closed loop operations, best practices and operational excellence.

Confidential Information means all information, whether commercial, financial, technical or otherwise, in any medium or format, which one Party receives from the other Party, either directly or from any other person, which concerns the business, operations, customers or suppliers of the disclosing Party and which: (a) is marked as confidential; (b) is identified in advance of disclosure by disclosing as being confidential; or (c) ought reasonably to be understood by receiving Party to be confidential.

Co-Packer has the meaning set out in Clause 2.4.

Defect means any defect in the formulation, production or manufacture of any System Parts or Hardware that would or could reasonably be expected to adversely affect the safety, performance, or quality of such System Parts or Hardware.

Defect Warranty Period means, in relation to each item of Hardware, the period of one (1) year from the date of Delivery.

Delivery where the: (i) Territory is situated in the United States of America shall mean delivery based on “DDP” at a port as may be communicated to Brand Partner by ecoSPIRITS subject to full reimbursement of shipping costs by Brand Partner, with DDP as defined in the International Chamber of Commerce Incoterms 2020, which in respect of the System shall be when the Hardware and/or System Parts are delivered to a port as may be communicated to Brand Partner by ecoSPIRITS, and provided that Brand Partner has reimbursed ecoSPIRITS in full the shipping costs associated with the shipment; or (ii) Territory is not situated in the Unites States of America shall mean delivery “Ex Works”, as such term is defined in the International Chamber of Commerce Incoterms 2020, which in respect of the System shall be when ecoSPIRITS places any Hardware and/or System Parts at the disposal of Brand Partner at ecoSPIRITS’ premises or another named place not cleared for export and not loaded on any collecting vehicle.

ecoPLANT Site means the site specified in advance by Brand Partner in writing to ecoSPIRITS where any Hardware will be delivered to by ecoSPIRITS.

ecoPLANT means the proprietary ecoSPIRITS hardware and technology for the filling of Beverages into ecoTOTES.

ecoSPIRITS means ecoSPIRITS Pte. Ltd. (registration no.: 202011031M), a company registered in Singapore with its registered address at 90 Eu Tong Sen Street, #03-02, Singapore 059811, the licensor of the System, System Parts and System Services and all related Intellectual Property Rights, and where applicable, shall include its nominees and subsidiaries (as defined under the Singaporean Companies Act 1967).

ecoTOTE means the main Hardware and one of the System Parts in which Beverages will be enclosed, refilled, and transported by Brand Partner.

Effective Date means in relation to each applicable Territory, either: (i) the BPA Effective Date; or (ii) in relation to each Additional Territory, the Territory Addition Notice Date, whichever is the later.

Fees means the applicable Monthly Platform Fee and any such other fee as may be agreed between the Parties in writing in connection with this O&O Terms & Conditions from time to time.

Hardware means the hardware and any other physical goods or parts relating to the System.

Initial System Package means the Hardware items required for Brand Partner to operate the System in each Territory, as set out under each Territory in the Territory List.

Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off , rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967.

Licence means the non-exclusive licence to access and use the System, Hardware, System Parts and Trade Marks in relation to the System in the Territory, including in connection with the promotion, distribution and use of the System.

Monthly Platform Fee means the monthly fee to be charged to Brand Partner by ecoSPIRITS based on the package selected, as set out in Territory List or as otherwise agreed in writing between the Parties from time to time.

Operating Procedures means the confidential materials setting out the operations and procedures for operating the System and providing the System Services compiled by ecoSPIRITS, as updated from time to time by ecoSPIRITS.

Order means an order for Hardware referred to in Clause 3 and submitted by Brand Partner in accordance with Clause 3.4.

Product and Products means the Beverages bottled into ecoTOTEs in each Territory as set forth in the Product List and the Product Addition Notice (if applicable) for the Territory and in the applicable Territory Addition Notice for each other Additional Territory or as otherwise agreed in writing by the Parties from time to time.

System means the ecoSPIRITS closed loop spirit distribution system which utilises the System Parts and accessories, amongst others, to bottle and distribute Beverages between distillers, distributors and food and beverage outlets and ecoSPIRITS.

System Parts means the non-disposable ecoTOTEs, and such related Hardware, parts and accessories of the System which house the Beverages, and which are delivered to Brand Partner from time to time pursuant to this O&O Terms & Conditions.

Sustainability Program means the program offered by ecoSPIRITS whereby a participant may elect to reduce waste impact and carbon emissions or contribute to reforestation efforts.

System Services means access to the System, the grant of the Licence, access to the Sustainability Program, remote training and technical support in respect of the System.

Technology Solutions means certain current and future technological applications, software, data and related features and services, or other solution, which may be implemented and offered by ecoSPIRITS to Brand Partner from time to time, including but not limited to, a cloud-based location tracking platform which tracks the use of the System by Brand Partner for operations efficiency and supply chain integrity.

Term means the period commencing from the first day of the Effective Date and ending on the last day of the BPA Term.

Territory means a territory listed in the Territory List or added to the Territory List pursuant to a Territory Addition Notice, which has opted for the O&O Model.

Trade Marks means ecoSPIRITS registered and unregistered logos, trade names, trade marks and any further names, logos or trade marks that ecoSPIRITS may, by express notice in writing, permit or procure permission for, Brand Partner to use in the Territory in respect of the System, the System Parts and the System Services.