Exhibit 10.9
SUPPLY AGREEMENT
THIS AGREEMENT is entered into as of May 15th, 1996, between InnoPet Brands
Corp., a Delaware corporation ("Purchaser") and Xxxxxxx, Inc., a Delaware
corporation d/b/a Platte River By-Products ("Supplier").
WHEREAS, Supplier wishes to sell to Purchaser certain meat by-products (the
"Product") described in Exhibit A, attached hereto and incorporated herein by
reference.
WHEREAS, Purchase desires to purchase the Product, subject to compliance by
Supplier with the terms and conditions of this Agreement, as amended from time
to time throughout the term hereof (this Agreement, togther with all amendments,
addenda and exhibits hereto, is referred to herein as the "Agreement").
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Supplier hereby
agree as follows:
1. Orders.
a. During the term of the Agreement, Supplier shall enter into
specific contracts and purchase orders with Purchaser or its affiliates
(collectively, the "Purchasers") and shall stand ready to accept orders from the
Purchasers to purchase the Product at prices, in quantities, and on terms
described herein, in such contracts or purchase orders, or as negotiated between
Supplier and the Purchasers from time to time. The purpose of this Agreement is
to set forth the general terms under which Supplier will provide the Product to
the Purchaser.
b. In the event Supplier is unable to supply the Product as specified
for any reason during the term of this Agreement or should such Product become
depleted, Supplier agrees to use reasonable efforts to provide substitute
product reasonably acceptable to Purchaser at the prices, quantities, and terms
as set forth on Exhibit B attached hereto or as set forth in separate agreements
negotiated between Supplier and the Purchasers.
2. Inspection. Purchaser shall have the right to inspect, during normal
business hours and with reasonable advance notice, (a) any plant and/or
manufacturing facilities of Suppliers at which the Product is produced, (b) all
of the Supplier's facilities and equipment relating to storage and deliver of
the Product and all components thereof, and (c) the Product (prior to its
shipment to any of the Purchasers). Purchaser shall treat all of Supplier's
information as confidential and agrees that if required by Supplier, Purchaser
shall execute a confidentiality agreement in form and content reasonably
acceptable to Purchaser and Supplier.
3. Product Testing. If requested by Purchaser, Supplier shall promptly
submit to Purchaser or to a product testing laboratory designated by Purchaser,
at Purchaser's sole cost and expense, in accordance with a testing schedule
established by Purchaser, samples of the product produced by Supplier or samples
of any components thereof.
4. Indemnification. Supplier agrees to defend, indemnify and hold harmless
Purchaser of and from all claims, demands, losses, damages, liabilities, and
costs from any breach of the warranty set forth in Paragraph 12, hereinafter,
except and unless any such claim, demand or loss is caused by the misconduct or
negligence of Purchaser, its agents, officers and employees. Purchaser agrees to
defend, indemnify and hold harmless Supplier of and from all claims, demands,
losses, damages, liabilities, and costs for injury to person or damage to
property arising from Purchaser's operations including, but not limited to, the
selling, handling, using, processing, mixing, packaging or transporting of any
Product sold by supllier to Purchaser, except and unless any such claim, demand,
or loss is caused by the midconduct or negligence of Supplier, its agents,
officers and employees.
5. Insurance. Supplier agrees to maintain, during the entire term of this
Agreement, a comprehensive general liability insurance policy, including product
liability coverage and contractual liability coverage, or self insurance
insuring against the liabilities assumed under this Agreement, in minimum
amounts of $1,000,000 per occurrence for damage, injury and/or death to persons
and $500,000 per occurrence for damage and/or injury to property.
6. Recall. In the event it is deemed necessary by either Purchaser and/or
Supplier to recall from any Purchaser any quantity of the Product, as a result
of failure of the Product related to the quality, fitness and/or safety of the
Product, Supplier agrees to cooperate with Purchaser to insure expeditious
recall.
7. Term. The term of this Agreement shall commence on the date hereof and
shall expire on the date established by the parties by a separate addendum
hereto, unless earlier terminated pursuant to Paragraph 11 hereof. If no date is
so established for the end of the term of this Agreement, then the Agreement
shall continue until terminated pursuant to Paragraph 11 hereof.
8. Trademarks. During the term hereof, Supplier shall not use, without the
prior written consent of an officer of Purchaser, any trademarks or service
marks of Purchaser in any manner whatsoever.
9. Confidentiality. Supplier and Purchaser acknowledge that the terms of
this Agreement and any other information provided by either party pursuant to
this Agreement may include valuable, proprietary, and confidential matter or
information relating to trade secrets, concepts, formulas, product
configurations, designs, specifications, manufacturing processes, operational
processes, equipment, suppliers,
customers, employees, research developments, inventions, engineering,
marketing, merchandising, purchasing, finances, and other information for a
valuable, proprietary, and confidential nature, ("Confidential Matter") and
shall be used only pursuant to the terms and for the purposes of this
Agreement. Supplier and Purchaser shall comply with reasonably prudent
procedures designed to maintain in confidence, safeguard such Confidential
Matter, and not use such Confidential Matter except consistent with this
Agreement and use reasonable efforts to prevent disclosure to others of the
Confidential Matter. The obligations of parties under this Agreement shall not
apply to anything (a) which is known to Supplier or Purchaser at the time of
disclosure to the other party; (b) which is or becomes publicly available
through no fault of the other party; (c) which is acquired by the other party
from a third party who has the legal right to make the disclosure to it; or
(d) the disclosure of which is required by law.
10. Subsequent Product. Notwithstanding anything herein to the contrary,
the manufacture, storage, shipment and/or distribution by Supplier of any new or
modified product development by Supplier shall be controlled by Supplier unless
the Product is based upon confidential matter supplied by Purchaser.
11. Termination. Notwithstanding the provisions of Paragraph 7 hereof,
Purchase or Supplier may cancel this Agreement without cause and without penalty
upon sixty (60) days written notice to the other party. In the event of such
termination, Purchaser shall be responsible for Supplier's finished inventory
not to exceed a sixy (60) day supply.
12. Warranties. Supplier warrants that the Product, as of the date of
shipment or delivery, to be:
a. Not adulterated or misbranded within the meaning of any federal or
state law or municipal ordinace related to the Product; and
b. Not a misbranded hazardous substance within the meaning of that
term in the federal Hazardous Substances Act.
Purchaser agrees to notify the Supplier in writing within a reasonable
time to any claim for violation of any of the above-mentioned laws, giving the
name and address of the complaining party and the product concerned.
13. Notices. All notices required hereunder shall be in writing and shall
be deemed given, whether actually received or not, (a) when delivered in person,
(b) five (5) business days after such item is deposited in the United States
mail, postage prepaid, certified or registered, return receipt requested, or (c)
one (1) business day after such item is deposited with Federal Express or other
generally recognized overnight courier, shipping charges prepaid, addressed to
the appropriate party hereto at its address set out below, or at such other
address as it shall have theretofore specified by written notice delivered in
accordance herewith:
Supplier Purchaser
-------- ---------
Xxxxxxx, Inc. InnoPet Products Corp.
d/b/a Platte River By-Products 0 Xxxx Xxxxxxx Xxxx.
X.X. Xxx X Xxxxx 0000
Xxxxxxx, XX 00000 Ft. Xxxxxxxxxx, XX 00000
14. Independent Contractor. Supplier acknowledges that it is an independent
contractor and is neither an agent, partner, joint venturer nor employee of
Purchaser. Supplier shall have no authority to bind or otherwise obligate
Purchaser in any manner nor shall Supplier represent to anyone that it has a
right to do so.
15. Survival. The provisions of Paragraphs 4, 6, 9 and 12 hereof, and any
provision hereof which imposed upon Supplier an obligation after termination or
expiration of this Agreement, shall survive termination or expiration hereof and
be binding upon Supplier.
16. Governing Law. THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF COLORADO.
17. Waiver, Modification or Amendment. Except for changes in the
Specifications which may be made by Purchaser at any time, neither this
Agreement nor any of its provisions may be waived, modified or amended except by
an instrument in writing signed by the parties hereto.
18. Entire Agreement. This Agreement, as supplemented or amended hereafter,
constitutes the entire agreement between Purchaser and Supplier and supersedes
any and all prior negotiations, understandings, and/or agreements, oral or
written, between the parties hereto with respect to the subject matter hereof.
19. Benefit of Agreement. The Agreement shall be binding upon, and shall
inure to the benefit of the parties hereto and their successors and assigns.
20. Compliance; No Waiver. The failure of Purchaser of Supplier to insist
upon strict compliance with any of the terms hereof shall not be considered to
be a waiver of any such terms nor shall it affect the right of either party to
insist upon strict compliance herewith at any time thereafter.
21. Severability. If any provision of this Agreement shall be contrary to
the laws or jurisdiction in which the same shall be sought to be enforced, the
illegality or unenforceability of any such provision shall not affect the other
terms, covenants, terms or conditions, hereof, and the remainder of the
Agreement, or the application of such
illegal or unenforceable term or provision to persons or circumstances other
than those as to which this Agreement is held to be illegal or unenforceable,
shall not be affected thereby and each term and provision of this Agreement
shall be valid and enforced to the fullest extent permitted by law.
22. Compliance With Laws. Supplier shall comply with all applicable
federal, state and local laws and executive orders and regulations issued
pursuant thereto, including without limitation all laws relating to equal
employment opportunity.
IN WITNESS WHEREOF, Purchaser and Supplier have executed the Agreement on
the date or dates set forth below, to be effective as of the date first above
written.
XXXXXXX, INC. D/B/A PLATTE PURCHASER:
RIVER BY-PRODUCTS COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
------------------------- ------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxxxxxxx
Title: V.P. Spec. Divs. Title:
----------------------- ------------------------------
Vice President of Manufacturing
Supply Agreement
Xxxxxxx & InnoPet Inc.
Exhibit A
1. MDB Test #11
Description: 80% mechanically de-boned beef, 20% beef liver, and 20%
de-boned beef. No entrails or any other by-products are allowed with the
exception of liver and heart. Green de-naturant is not allowed. Must
comply with all USDA and state food laws.
This material should be free of foreign material of any kind. This
material will also be subject to random sampling to insure it is of high
quality and within InnoPet specifications. This product also needs to meet
all state and FDA regulations.
Product outside of specifications will be rejected.
Anti-oxidant will be supplied by InnoPet Inc.
Anti-oxidant will be added of a type and quantity requested by InnoPet.
A reasonable cost for this service will be charged.
Specifications: Percent (%)
Minimum Maximum
------- -------
Moisture 70 72
Protein 12 14
Fat 10 12
Ash 1.9 2.2
Quantity and Price: 6 to 15 million pounds per year for the next 3 years @
$.17 FOB Grand Island
Form: Frozen, palletized, nude blocks, stretch wrapped
Product released via shipping advisory. Exhibit B attached hereto, which
contains P.O. #.
Terms: $25,000 open credit line, net 14 days.
Xxxxx Xxxxxxxxxxx
Exhibit B
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Delivery Date
--------------
INNOPET INC.
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Ed
Telephone: (000) 000-0000 Fax: (000) 000-0000
Shipping Advisory
Date: ___________________________ P.O. __________________________________
To: ___________________________ Ship To: ______________________________
Company: Platte River by Products Company: FS Freezer Services
Address: 0000 X. 00xx Xxx. Address: 000 X. 00xx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx Attention:___________________________
Tel: (000) 000-0000 FAX: (000) 000-0000 Tel: (000) 000-0000 FAX:
--------------------------------------------------------------------------------
Order Date Ship Via F.O.B. Delivery Date
--------------------------------------------------------------------------------
UPS Ground [ ] Prepaid Grand Island, NE
[ ] Collect
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Quantity Item Description Unit Cost Total Cost
--------------------------------------------------------------------------------
6.2 million lbs. MDB Test # 11:80% mechanically .17/lb.
de-boned beef, 20% beef liver
and 20% de-boned beef. No
entrails or any other by-products
are allowed with the exception of
liver & heart. Green de-naturant is
not allowed. Must comply with all
USDA and state food laws.
Specifications: Percent (%)
Minimum Maximum
------- -------
Moisture 70 72
Protein 12 14
Fat 10 12
Ash 1.9 2.2
--------------------------------------------------------------------------------
Terms: $25,000 open credit line, net 14 days.
--------------------------------------------------------------------------------
SHIPPING INSTRUCTIONS
(1) Please facsimile copies of the Airway Xxxx or Bills of Lading upon release
of the order to the shipper, to InnoPet Inc. at (000) 000-0000. (2) Please
notify us immediately if you are unable to ship complete order by date
specified.
--------------------------------------------------------------------------------
Company: InnoPet Inc.
____________________________________________________ _______________________
Authorized Signature Date
Xxxxx Xxxxxxxxxxx 6-3-96
---------------------------------------------------- -----------------------
Accepted By:
____________________________________________________ _______________________
2. BEEF LIVER
Description: 100% Beef Liver, without bile sacs attached. Green
de-naturant is not allowed. Must comply with all USDA and state food
laws.
This material should be free of foreign material of any kind. This
material will also be subject to random sampling to insure it is of high
quality and within InnoPet specifications. This product also needs to meet
all state and FDA regulations.
Product outside of specifications will be rejected.
Anti-oxidant will be supplied by InnoPet.
Anti-oxidant will be added of a type and quantity requested InnoPet.
A reasonable cost for this service will be charged.
Specifications: Percent (%)
Minimum Maximum
------- -------
Moisture 69 74
Protein 17 19
Fat 4 8
Ash 1.75 3.5
Quantity: Negotiated quarterly
Price: F.O.B. Greeley, CO or Grand Island, NE
Negotiated quarterly
Form: Frozen, palletized, nude blocks, stretch wrapped
Product released via shipping advisory. Exhibit B attached hereto, which
contains P.O. #.
Terms: $25,000 open credit line, net 14 days
--------------
Delivery Date
--------------
INNOPET INC.
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Ed
Telephone: (000) 000-0000 Fax: (000) 000-0000
Shipping Advisory
Date: ___________________________ P.O. __________________________________
To: ___________________________ Ship To: ______________________________
Company: Platte River by Products Company: FS Freezer Services
Address: 0000 X. 00xx Xxx. Address: 000 X. 00xx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx Attention:___________________________
Tel: (000) 000-0000 FAX: (000) 000-0000 Tel: (000) 000-0000 FAX:
--------------------------------------------------------------------------------
Order Date Ship Via F.O.B. Delivery Date
--------------------------------------------------------------------------------
UPS Ground [ ] Prepaid Greeley, CO. or
[ ] Collect Grand Island, NE
--------------------------------------------------------------------------------
Quantity Item Description Unit Cost Total Cost
--------------------------------------------------------------------------------
Negotiated Beef liver 100% Beef liver, Negotiated
Quarterly without bile sacs attached. Quarterly
Green de-naturant is not
allowed.
Must comply with all USDA and
state food laws.
Specification: Percent (%)
Minimum Maximum
------- -------
Moisture 69 74
Protein 17 19
Fat 4 8
Ash 1.75 3.5
--------------------------------------------------------------------------------
Terms: $25,000 open credit line, net 14 days.
--------------------------------------------------------------------------------
SHIPPING INSTRUCTIONS
(1) Please facsimile copies of the Airway Xxxx or Bills of Lading upon release
of the order to the shipper, to InnoPet Inc. at (000) 000-0000. (2) Please
notify us immediately if you are unable to ship complete order by date
specified.
--------------------------------------------------------------------------------
Company: InnoPet Inc.
____________________________________________________ _______________________
Authorized Signature Date
____________________________________________________ _______________________
Accepted By: Date
____________________________________________________ _______________________
