Legal Agreement

SAQ-B2B E-COMMERCE AGREEMENT BETWEEN THE SOCIÉTÉ DES ALCOOLS DU QUÉBEC AND THE SUPPLIER
(TERMS AND CONDITIONS) (the “Contract”)

1.   DEFINITIONS

In this Agreement, unless a different meaning is indicated by the context, the masculine gender shall include the feminine or neutral genders, as the case may be, the singular shall include the plural, and the following expressions shall have the following meanings:

“AUTHORIZED AGENT”: person authorized by the SAQ to solicit orders for beverage alcohol products from customers identified by the agent, to receive such orders, to obtain through the SAQ and on behalf of the customers the beverage alcohol products ordered by them and to deliver or have delivered to the customers the beverage alcohol products ordered by them.

“PURCHASE ORDER”: the Purchase Order that contains the terms and conditions of purchase of products by the SAQ for the Supplier.

« Supplier(s) »: a holder of an industrial or small-scale production permit issued under the Act respecting the Société des alcools du Québec (C.Q.L.R., c. S-13) in the case of          products bottled in Quebec and, in all other cases, a producer, a distiller, a brewer, a wholesale wine or spirits merchant or a holder of rights to a brand, provided such holder has its place of business in the same country as the producer. This definition includes the Authorized Agent when implied by the context.

« Person »: a natural person, a partnership, a corporation or any governmental or other organization.

« Product(s) »: wines, spirits, beer or other alcoholic beverages, as well as gift packs comprising alcoholic beverages.

« Confidential Information »: the confidential (or exclusive) information mentioned in this Agreement refers to all confidential data and information, including, without limitation, technical, financial and business data and any other information designated as confidential by either party.

« SITE »: the SAQ-B2B independent transactional portal for the sole use of the SAQ and the Supplier and designed to enable the SAQ to purchase Products from the Supplier using electronic data interchange.

« SAQ »: the Société des alcools du Québec.

2.   TRANSACTIONAL PORTAL

The Site is an independent transactional portal designed to enable the SAQ to purchase Products from the Supplier using electronic data interchange.

Electronic data interchanges between the SAQ and the Supplier shall deal primarily with requests for samples, requests to update Product prices, orders, order changes, confirmations of order receipt, replies to requests for samples, price proposals, order confirmations, order rejections and confirmations of orders shipped.

The purpose of this Agreement is to establish the terms and conditions of the Supplier's registration on the SAQ-B2B site (hereinafter the "Site") and to determine the terms and conditions for the purchase of Products from the Supplier by the SAQ through the Site.

Any Supplier with a Product listed in the SAQ database or accepted for listing by the SAQ shall be eligible to register free of charge.

Upon registration, the Supplier shall be provided with a user name and a password. By registering, the Supplier accepts the terms and conditions of this Agreement and undertakes to comply with them.

The Supplier may change its password for a new one known only to it. The Supplier shall be fully responsible for any transactions made under its identifiers (user name and password) and it shall be fully responsible for any transactions made by its employees, agents and representatives. The Supplier hereby agrees to notify the SAQ without delay of any unauthorized use of the Site, including the unauthorized use of a user number or password, by any employee, agent or representative of the Supplier or by any other person.

Unauthorized access to the Site or to the information systems or telecommunications facilities for the purpose of gaining access to the Site shall constitute an event of default under this Agreement and, notwithstanding the fact that the Supplier may have used reasonable means to prevent such use. The SAQ reserves the right to suspend the access of the Supplier in the event of unauthorized use. The Supplier must then obtain the approval of the SAQ before regaining access.

As a member of the Site, the Supplier will automatically receive notification email messages regarding the posting of calls for tenders and communications issued by the SAQ and related to the various transactional activities. Site users may not unsubscribe from receiving such notifications. In the event that the Supplier unsubscribes from such communications, the Supplier shall still be deemed to have been made aware of the content of the communications and the SAQ shall not be held liable for any information that the Supplier would have received had it maintained its subscription to the communications.

The SAQ shall order Products using a purchase order that it shall forward to the Supplier through SAQ-B2B (hereinafter the "Purchase Order"). The Purchase Order shall contain the terms and conditions governing the SAQ's purchase of Products from the Supplier. Such terms and conditions shall be available for review upon the Supplier's acceptance of each order.

Upon receiving a Purchase Order, the Supplier shall send, via the Site, a confirmation of total or partial acceptance of the order or a notice of rejection of the order, as the case may be. When a Supplier accepts all or part of an order, the Supplier shall be presumed to have agreed to all the terms and conditions of the Purchase Order then in effect and to have undertaken to comply with them. The Supplier also undertakes to comply with all the policies in effect at the SAQ and applicable to the Supplier, in particular but not limited to the terms and conditions of the SAQ Purchasing and Merchandising Policy and all the conditions of the Supplier Code of Conduct (hereinafter referred to as the “Policies”) in the form in use at the time of the acceptance of the Purchase Order. The terms and conditions of the Policies shall be available for review upon acceptance of each order by the Supplier or on the Site. The terms and conditions of the Policies shall be considered an integral part of the Agreement and the Purchase Order. In the event of discrepancy between the terms and conditions of the Policies and those of the Purchase Order, the terms and conditions of the Purchase Order shall prevail. No conditions put forward by the Supplier when accepting or receiving an order shall bind the SAQ without the written consent of the SAQ. The SAQ reserves the right to amend the terms and conditions of its Purchase Orders and Policies at any time.

The SAQ makes some purchases through calls for tenders. The calls for tenders are posted under the Call for Tenders tab of the main menu.

The SAQ undertakes to ensure the proper functioning of the Site in order to provide access at all times to the Supplier and in order to maintain and update its technical and functional infrastructure. The SAQ also undertakes to operate and manage the Site in a manner that ensures the security of the Site and of the Supplier's Confidential Information by adopting industry-recognized security measures, such as implementing authentication measures, user names and passwords, installing and regularly updating antivirus software, encrypting data and installing a firewall, which shall be regularly updated and managed so as to ensure that log-ins, log-outs and attempts to log in are regularly recorded. Notwithstanding the foregoing, the SAQ shall not be held liable for any harm which the Supplier may be caused due to using or navigating the Site.

The SAQ has established control mechanisms and emergency plans to ensure that use of the Site is not interrupted for more than twenty-four (24) hours. Should such an event occur, alternative modes of communication shall be put in place for the benefit of the Supplier.

The SAQ and the Supplier shall respectively maintain a log designed to enable them to refer to a printed version of all documents and messages exchanged on the Site in chronological order. To this end, the parties shall take any action required for all documents and messages transmitted and received to be maintained in a dependable and unalterable file.

All Suppliers shall use the Site solely for the purposes for which it is intended and in accordance with the provisions of this Agreement.

Accordingly, the Supplier shall refrain from:

(i) violating any laws and regulations in force and effect, including any laws relating to the sale and distribution of alcoholic beverages; (ii) impersonating any other party, providing false information or otherwise misleadingly disclosing or not disclosing ties with any person, organization or other entity; (iii) using the Site to compile or collect personnel and business information, including, without limitation, financial information, about other Suppliers registered on the Site; (iv) posting, promoting or transmitting on the Site any items whatsoever that may be illegal, harassing, libelous, abusive, threatening, hurtful, vulgar, obscene, vicious, racist or otherwise reprehensible; (v) transmitting or posting any item likely to incite conduct which may constitute a criminal act, incur civil liability or otherwise violate any law; (vi) interfering with the use or enjoyment of the Site by the SAQ or by other Suppliers, carrying out surveys or contests, sending chain letters and posting or sending promotional messages or email messages through unsolicited mass mailings; (vii) downloading or distributing, in any manner whatsoever, files that may be contaminated by viruses, files that are corrupted or altered or any other similar software or program that could interfere with the operation of the Site or the information systems of third parties; (viii) interfering with or disturbing the operation of the networks connected with the Site; (ix) doing any thing which would impose an unreasonable or disproportionately large burden on the infrastructure of the Site; (x) disclosing its password to third parties or using its password for unauthorized purposes.

In using the Site, the Supplier acknowledges and accepts this Agreement and undertakes to adhere to it in its entirety. This Agreement shall be for an unspecified term, shall enter into force and effect from the moment the Supplier accesses the Site and shall end on the moment that the Supplier terminates any relationship with the SAQ.

In the event that the Supplier disagrees with provisions of this Agreement, the Purchase Order or the Policies, the only recourse available to the Supplier shall be to stop using the Site.

The Supplier shall indemnify the SAQ against any and all claims or damages which may result from a breach of the obligations stipulated in this Agreement, and especially of those provided under section 14 hereof.

Subject to compliance with applicable international agreements, the SAQ may amend the terms and conditions of this Agreement at any time and shall provide the Supplier with advance notice of any such amendment.

The SAQ may, without notice, terminate this Agreement at any time and thus terminate the Supplier’s access to the Site should the Supplier be in default of fulfilling any of its obligations stipulated in this Agreement.

The SAQ may terminate this Agreement at any time should the Supplier lose its capacity as a "Supplier", as defined herein.

This Agreement shall be terminated as of right should either party go bankrupt, become insolvent or commit any act for the benefit of its creditors under any statute relating to bankruptcy or insolvency.

Should this Agreement be terminated, the Supplier shall cease to use the Site, and the SAQ may then terminate all access to the Site by the Supplier, who shall have no further recourse.

Each party shall make the efforts necessary to preserve the confidentiality of the Confidential Information obtained under this Agreement or resulting therefrom. In addition, each party shall use the other party's Confidential Information only for the purposes of this Agreement and not for other purposes (and, more specifically, a party shall not use it for business purposes or for its own or a third party's benefit).

The parties shall at no time, either before or after the expiration or early termination of this Agreement, disclose or allow their officers, directors, employees, agents, representatives or subcontractors to disclose the other party's Confidential Information to any Person without the prior written consent of the other party.

This confidentiality undertaking shall not apply to the disclosure of Confidential Information that: (i) is in the public domain without violation of the confidentiality undertakings provided under this Contract; (ii) is required, by law, to be disclosed to a Person authorized to receive it; (iii) is required, under an Act respecting access to documents held by public bodies and the protection of personal information (C.Q.L.R., c. A-2.1) and, in the event the Supplier is a public company, pursuant to the regulations relating to a securities commission and generally, but without limitation, pursuant to any legislation applicable to publicly listed companies; (iv) is required for the purposes of legal action against either party before an arbitral tribunal or any government authority with investigative powers, provided the party holding the information has been informed of the request and has the option of contesting it; (v) is required by the agents, representatives, subcontractors, consultants, insurers, bankers or legal advisors of a party, provided, however, that such disclosure is limited to the information that is strictly necessary for the performance of their duties, and that they undertake to maintain the confidentiality of the information; (vi) is obtained from a third party without violation of a confidentiality undertaking; or (vii) is already known to the party receiving it.

The Site and its entire content are protected by copyright. Some names, words, titles, logos, graphics or drawings, and some phrases and icons that appear on the Site constitute trademarks, trade names, exclusive presentations or Products and services related to the SAQ, a licensor, a content provider, a service provider or a subcontractor or another party (collectively, the “Brands”), and may be protected in Canada and their being displayed on the Site neither confers nor creates a licence or other rights relative to the Brands. The Supplier may not, without the written consent of the SAQ, reproduce, copy, publish, transmit, communicate or use in any way whatsoever the material, information and/or trademarks displayed on the Site. Except as provided herein, no other use is permitted and no part of the content of the Site may be copied, resold, reproduced, distributed, republished, downloaded, depicted, displayed or transmitted by any means whatsoever, including electronically, mechanically or by photocopy, recording or other means, without the prior written consent of the SAQ.

Under the Delegated Agent tab, the Supplier can access a hyperlink that encourages it to add an authorization designating an Authorized Agent on the SAQ-B2B platform. By appointing such an Authorized Agent, the Supplier agrees that any information relating to its activities on SAQ-B2B be securely and confidentially accessible to the Supplier’s account for the exclusive benefit of this Authorized Agent. The Supplier may at any time replace its appointed Authorized Agent, provided that its new agent is authorized to represent the Supplier with the SAQ. The Supplier may also at any time require that any information be transmitted for the benefit of its agent or be removed from the Site by providing written notice to the SAQ. Withdrawal of the Authorized Agent shall take effect only upon confirmation by the SAQ. The Supplier agrees to stand surety for compliance with the Agreement by the Authorized Agent for which it desires to authorize access, and any default by the Authorized Agent shall be considered a default by the Supplier.

The Supplier may terminate its registration on the Site at any time by simply providing written notice to such effect to the SAQ, subject to the filling of any outstanding orders. The SAQ reserves the right to terminate this Site at its entire discretion.

This Agreement shall be governed by the laws in effect in the province of Quebec (Canada) and interpreted accordingly, and the parties hereby agree that only the Quebec courts of the judicial district of Montreal shall have jurisdiction to decide any litigation or dispute arising from this Agreement.

Notwithstanding the fact that a Supplier may read this Agreement or any other document relating to the Site in a language other than French, the SAQ and the Supplier expressly acknowledge that this Agreement is being concluded in French and that only the French-language version of any such agreement or document shall constitute an agreement binding upon the parties.