The Purchaser unconditionally and irrevocably agrees to the following terms and conditions:

1 HOP PRODUCT QUALITY

1.1 Provided the Hop Product is properly transported, stored, treated and cared for, including, without limitation, adherence to any instructions given by or on behalf of the Supplier, the Supplier warrants that the hops component of the Hop Product will be free from material defects until the Best By Date for the Hop Product. 

1.2 To the extent permitted by law, no warranties (whether statutory or otherwise) of any kind or nature, including, without limitation, as to quality, merchantable quality or fitness for a particular purpose, or from trade, custom or course of dealing, will be implied, and other than the express warranty in clause the Supplier disclaims all warranties.

2 PAYMENT

2.1 All amounts to be paid under this agreement will be paid in the currency specified.

2.2 The Purchaser will not levy or make any set-off, deduction or withholding of any kind or nature against amounts payable.

2.3 Any payment default by the Purchaser will accrue interest at 10% per annum calculated from the due date for payment until the date the amount payable is paid in full.

2.4 The Supplier is under no obligation to release any Hop Product to the Purchaser until payment in full has been received by the Supplier.

3 FORCE MAJEURE

Neither party will be in breach of its obligations (other than and excluding any and all payment obligations) for failure to perform due to Force Majeure.

4 LIMITATION OF LIABILITY

4.1 Notwithstanding anything to the contrary:

(a) the Supplier will in no circumstances be liable to the Purchaser for any indirect, consequential or special loss or damage, and nor will it be liable for any loss of profit, loss of revenue, loss of production, loss of business, loss of contract, loss of opportunity, loss of reputation, loss of goodwill, loss of anticipated saving, loss of finance, cost of capital or for any third party claims; and

(b) the maximum aggregate liability of the Supplier under or in connection with this agreement in respect of any and all events and circumstances that occur, arise or come into existence will be equal to the amount paid by the Purchaser for the Hop Product.

4.2 Any claim, demand and/or cause of action of any kind or nature by the Purchaser against the Supplier in respect of any event or circumstance that occurs, arises or comes into existence must be notified in writing by the Purchaser to the Supplier no later than the Best By Date for the Hop Product, otherwise the claim, demand and/or cause of action (as applicable) is forever barred. 

4.3 Subject to and without limitation or prejudice to any of the foregoing provisions of this clause 4, the Purchaser's sole remedy in respect of defective Hop Product will be:

(a) replacement of the applicable Hop Product at the Supplier's cost; or 

(b) refund of the price paid by the Purchaser for the defective Hop Product.

5 DISPUTE RESOLUTION

5.1 If a Dispute arises that has not been amicably settled by the parties, then the Dispute will, should a party wish to pursue the Dispute, be finally determined by arbitration in accordance with the following:

(a) the arbitration will (place and seat) be conducted in Auckland, New Zealand, by a sole arbitrator in accordance with the Arbitration Act 1996 (New Zealand);

(b) the sole arbitrator is to be appointed by a panel of two representatives acting unanimously, one each appointed by the Supplier and the Purchaser; and

(c) in the event that such representatives have not agreed upon an arbitrator within 15 Days of the Dispute being referred to arbitration the arbitrator will be appointed by the then President of the New Zealand Law Society or his or her nominee.

5.2 Nothing in clause 5 prejudices either party’s right to institute court proceedings to seek injunctive or urgent declaratory relief in respect of any Dispute.

6 GOVERNING LAW 

This agreement is governed by and is to be construed in accordance with the laws of New Zealand. 

7 TRANSFER

7.1 The Purchaser must not assign, transfer, novate or charge all or any of its rights and/or obligations under this agreement to any person or entity without the prior written consent of the Supplier. 

7.2 The Supplier may assign or charge its rights under this agreement to any person or entity without the consent of the Purchaser.  For the avoidance of any doubt, the Supplier will remain liable to discharge all of the obligations of the Supplier under this agreement following any such assignment or charge.

7.3 The Supplier may transfer or novate its rights and obligations (in whole or in part and once or multiple times) under this agreement to any person or entity without the consent of the Purchaser, provided that any such person or entity provides a written undertaking, duly signed by an authorised signatory, to the Purchaser that it will perform the transferred or novated rights and obligations in accordance with the terms and conditions of this agreement.

8 HOP PRODUCT FOR PURCHASER’S BREWING OPERATION

The intent of this agreement is for the Purchaser to use all Hop Product in its brewing operation.  If the Purchaser wishes to on-sell Hop Product instead of using the Hop Product in its brewing operation, it must first seek and obtain the written consent of the Supplier.  Any such consent may be subject to conditions, noting, without limitation, that the Supplier will wish to protect its brand and reputation in the marketplace and will also wish to take into account requirements or preferences of its other actual or potential customers. 

9 GENERAL

9.1 Entire agreement: 

(a) This agreement constitutes the entire agreement between the Supplier and the Purchaser with respect to the subject matter of this agreement and supersedes all prior communications, negotiations and agreements with respect to the subject matter of this agreement.  The parties will not be bound by or be liable for any statement, representation, promise, inducement or understanding of any kind or nature in respect of the subject matter of this agreement not recorded in this agreement.  Notwithstanding the foregoing and for the avoidance of any doubt, this provision is not intended to and nor will it limit or prejudice any rights and/or remedies of a party at law, equity or otherwise in relation to or in connection with this agreement. 

(b) This agreement applies to the express exclusion of any other terms and conditions that may be provided to the Supplier by or on behalf of the Purchaser at any time and from time to time.  This includes, without limitation, any terms and conditions under any purchase order(s) provided to the Supplier by or on behalf of the Purchaser at any time and from time to time, whether or not the Supplier acknowledges and/or signs any such purchase order(s).  Where the Supplier does acknowledge and/or sign any such purchase order(s), this will merely mean and merely be construed as confirmation by the Supplier that the subject hops have been ordered and will be covered exclusively by this agreement (accordingly any terms and conditions under any such purchase order(s) will not apply) and nothing whatsoever at any time will apply, be construed, be inferred, be implied, be argued, be claimed or the like to the contrary.

9.2 No partnership/agency:  This agreement does not create a partnership or joint venture between the parties.

9.3 Severability:  If any one or more of the provisions contained in this agreement are invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained in this agreement will not in any way be affected or impaired.

9.4 Further acts:  Each party will sign and deliver any documents and undertake any acts, matters and things that are reasonably required or requested by the other party to carry out and give effect to the intent and purpose of this agreement.

9.5 Waiver:  

(a) Subject to waiver under clause 9.5(b), no relaxation, forbearance, delay or indulgence by either party in enforcing any of the terms and/or conditions of this agreement or the granting of time by either party to the other will prejudice, affect or restrict the rights of that party under this agreement.

(b) Any waiver by a party of its rights, powers or remedies under this agreement must, to be effective, be in writing, be dated, expressly refer to this clause 9.5(b), and be signed by an authorised representative of the party granting such waiver, and must specify the right, power or remedy and the extent to which it is being waived.  

(c) Any waiver by a party of its rights, powers and/or remedies under clause 9.5(b) will not operate as a waiver of its rights, powers and/or remedies in respect of any subsequent or continuing breach of this agreement.  

9.6 Amendments:  No amendment to this agreement will be binding upon any party unless the amendment is signed by an authorised representative of each party.

9.7 Remedies cumulative:  Remedies under or in connection with this agreement are intended to be cumulative.  Accordingly, the exercise of a remedy is not intended to restrict, limit or prejudice the exercise of any other remedy.

9.8 Enforceable by Supplier:  The Purchaser acknowledges and agrees that the rights and benefits under this agreement will accrue to and be enforceable by the Supplier (as well as any assignee, chargee, transferee and/or novatee under clause 7.2) notwithstanding that the Supplier has not signed this agreement. 

9.9 Ruling language:  The language for notices and other communications in relation to or in connection with this agreement is English.  Any notice or other communication that is not given in English will be of no effect, as if it had never been given nor received.

9.10 New Zealand Consumer Guarantees Act:  The parties agree that the provisions of the Consumer Guarantees Act 1993 (New Zealand) will not apply in relation to or in connection with the Hop Product or this agreement.

9.11 United Nations International Sale of Goods Convention:  The United Nations Convention for the International Sale of Goods is hereby excluded and will not apply in relation to or in connection with the Hop Product or this agreement.

9.12 The Purchaser agrees to the Supplier sending it emails, electronic newsletters and the like from time to time.

10 DEFINITIONS AND INTERPRETATION

10.1 Definitions:  The following terms in this agreement have the following meanings:

Best By Date means the best by date specified on the Hop Product.  If no such date is specified then the Best By Date is the date that is six (6) months from the date of purchase.

Day means a calendar day in New Zealand.

Dispute means any dispute, controversy or claim arising out of or in connection with this agreement, including, without limitation, any question regarding the existence, validity or termination of this agreement.  

Force Majeure means an exceptional event or circumstance that was:

(a) not reasonably foreseeable by the affected party as at the date of this agreement; 

(b) not due to any breach or negligence of the affected party or by any person or entity for whom the affected party is responsible; and

(c) beyond the affected party’s reasonable control,

provided that notwithstanding the foregoing any change in market conditions or any lack of funds or the inability to access or release funds or the inability to make any payment owing under this agreement will not be Force Majeure.

Hop Product means the hop product purchased by the Purchaser for the specific sale.

Purchaser means the purchaser of the Hop Products.

Supplier means Clayton Hops Limited.

10.2 Interpretation:  

(a) The headings and subheadings in this agreement are for convenience only and will not affect its interpretation. 

(b) No rule of construction applies to the interpretation of this agreement to the advantage or disadvantage of any one party on the basis that a party prepared this agreement or any relevant part of it.