Exhibit 10.31
Certain portions of this Exhibit, indicated in the text by [*], have been
omitted based upon a request for confidential treatment filed with the
Securities and Exchange Commission ("SEC"). The non-public information has
been filed separately with the SEC in connection with that request.
SUPPLY AGREEMENT
THIS AGREEMENT ("Agreement") is made this 6th day of April 2001, by and
between Penford Products Co. (Seller) and Natural Solutions Corporation (Buyer).
WHEREAS, Buyer desires to buy and Seller desires to sell [*]products
(collectively "Products").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and other terms and conditions contained herein, the parties hereto
agree as follows:
1. Sale and Purchase of Products
During the term of this Agreement, Seller agrees to sell and Buyer
agrees to purchase from Seller, [*] products [*], known collectively as
"Products". Buyer's commercial needs are estimated to be [*] from Seller, but
Buyer shall not be obligated to purchase any specified quantity. The total
amount of Products sold to Buyer will not exceed the reasonable commercial
output of Seller. Sales and purchases shall take place at such times and in such
quantities as Buyer may request on purchase orders delivered to Seller. In the
event Seller cannot deliver Products as required by Buyer or its customers,
after reasonable attempts, Buyer shall have the right to acquire needed product
from other producers for such period as Seller is unable to supply. All Products
shall meet Buyer's specifications, as provided to Seller. Buyer shall have the
right to inspect Seller's facilities, during regular business hours, upon prior
notice to Seller.
2. Exclusivity
During the term of this Agreement, Seller will not sell Products to any
other person or entity for use in deicing, anti-icing, road stabilization or
dust control for so long as Buyer is not purchasing products similar to or the
same as the Products from a source other than Seller.
3. Payment, Prices
Within a reasonable amount of time of receipt of a written purchase
order, faxed to Seller at [*], from Buyer, Seller shall tender the Products to
Buyer [*] the Products covered by such written purchase order. The Buyer will be
solely responsible for the cost of freight and insurance for the transportation
of the Products. [*]
4. Delivery, Transportation, Insurance
All deliveries under this Agreement shall be made F.O.B. Seller's plant
in Cedar Rapids, Iowa. From and after such delivery, all risk of loss
(including, without limitation,
the obligation to procure and maintain insurance) shall be deemed to pass to
Buyer. If the Products are to be shipped by railcars, the Seller will provide
the necessary railcars and coordinate their loading and transportation. [*] If
the Products are to be shipped by truck, the Buyer will coordinate and provide
the trucks for shipment. Each truck used for shipping will present an approved
wash ticket. Seller will use its standard procedures in reviewing the wash
ticket and the condition of the truck. If the approved wash ticket is not
presented, or if the truck is unsuitable for loading due to odor, lack of
cleanliness, the truck is deemed unsafe or Seller determines pursuant to its
standard procedures that the truck is not suitable for shipment of the Products,
Seller shall have the right to refuse loading. Notwithstanding Seller's right to
refuse loading, Seller shall have no liability whatsoever for the condition of
any railcar or truck used for shipment of the Products.
5. Limited Warranty
Seller warrants that it has the right to convey good title to the
Products and that said Products shall be delivered free of any lien or
encumbrance. Seller further warrants that the Products delivered shall meet the
Buyer's specifications as expressed in Paragraph 6. In the event of any breach
by Seller of this limited warranty, Seller shall within five (5) days after
receiving notice from Buyer of the breach, replace the nonconforming Products
with conforming Products based on the requirements of this limited warranty,
including all applicable transportation and inspection costs. In the event
Seller is unable to provide conforming Product within the specified five (5) day
period, Seller agrees to credit said purchase price and applicable
transportation and insurance costs actually paid by Buyer in connection with the
nonconforming Products against the outstanding invoice.
All claims for breach by the Seller of this limited warranty shall be waived
unless Buyer notifies Seller within sixty (60) days of discovery of said breach
in writing.
EXCEPT FOR THE ABOVE LIMITED WARRANTY, SELLER GRANTS NO OTHER
WARRANTIES, AND HEREBY DISCLAIMS AND NEGATES ALL EXPRESS AND IMPLIED WARRANTIES
REGARDING THE PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY
BUYER OR THIRD PARTY CLAIMS FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES, WHETHER FOR LOSS OF BUSINESS OR PROFITS OR OTHERWISE, EVEN IF SELLER IS
AWARE OF THE POSSIBILITY THEREOF. IN ANY CASE, SELLER'S TOTAL LIABILITY UNDER
THIS AGREEMENT SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE PAID BY BUYER
FOR THE PRODUCTS.
6. Quality Control
Both the Buyer and Seller agree that for the term of this Agreement the
properties governing the Products shall be described as follows:
(a) [*]
(b) [*]
(c) [*]
[*] The test results from this sampling program shall be provided to
Buyer within two (2) days of results and a copy of the results will be sent to
Buyer at the address contained herein. In addition, the Seller shall maintain a
log of the results in its facility, which shall be available for inspection by
Buyer. Further, the Seller warrants that all testing facilities, testing
protocols and record keeping shall be consistent with accredited lab practice.
7. Government Regulations, Insurance
At all times during the term of this Agreement, each party shall have
in effect all licenses, permits and authorizations that are legally necessary or
commercially advisable to its performance hereunder, and each party shall comply
with all local laws, rules and regulations necessary to the performance of this
Agreement. Each party shall be solely responsible for procuring and maintaining
any and all insurance of whatever kind is necessary or advisable to its
performance hereunder.
8. Indemnification
Except as otherwise provided herein, each party (the "Indemnifying
Party") shall indemnify and hold harmless the other party (the "Indemnified
Party") from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
attorneys' fees and expenses) imposed upon, incurred by or asserted against the
Indemnified Party that result from acts of negligence or misrepresentations by
the Indemnifying Party, its employees or agents, or that otherwise arise out of
a breach of this Agreement.
9. Term and Termination
9.1 This Agreement shall enter into force as of the date first
above written and shall continue in force for three (3) years unless earlier
terminated as provided herein. Either party may terminate this Agreement at any
time, if it has good cause for termination, by giving the other party sixty (60)
days written notice and the opportunity to cure. Without limiting applicable
law, either of the following circumstances shall constitute good cause for
termination:
(a) The other party shall have become bankrupt or
insolvent, or entered into a composition with its creditors,
or had a receiver appointed for its assets; or
(b) The other party shall be in material breach of any of
its obligations under this Agreement. Material breach shall
deemed to include but not be limited to failure to make timely
payment of invoices or Buyer's violation of Paragraph 2
herein.
9.2 Termination of this Agreement shall not relieve either party
of its obligations hereunder accruing prior to such termination. Each party
shall diligently perform its obligations hereunder even if it has received
notice of the other party's election to terminate.
10. Force Majeure
Any failure or delay by either party in performing its obligations
under this Agreement shall be excused if such failure or delay is due to causes
beyond its reasonable control, including, without limitation, acts of God,
governmental acts or omissions, war or riot.
11. Miscellaneous
11.1 No party shall have the authority to act on behalf of the
other party to bind the other party by any promise or representation unless
specifically authorized in writing to do so by the other party. Nothing in this
Agreement shall be deemed to confer upon either party any right to use any name,
trademarks or other intellectual property belonging to the other party.
11.2 If any provision of this Agreement is declared illegal or
invalid, such provision shall be deemed severed, with the remaining provisions
of this Agreement being deemed to remain in full force and effect.
11.3 Neither party shall assign, delegate or otherwise transfer its
interests herein, in whole or part, without the prior written consent of the
other party.
11.4 Unless otherwise specified in the applicable invoice, for
purposes of this Agreement, notices required or permitted under this Agreement
shall be addressed as follows:
If to Seller: Penford Products Co.
0000 0xx Xxxxxx, X. X.
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
If to Buyer: Natural Solutions Corporation
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxx
With copy to: Xxxxx X. Xxxxxxx
Natural Solutions Corporation
000 Xxxxxxxxxxx Xxxxxxxx, XXX 000
Xxxxxxxx Xxxxx, XX 00000
Notices shall be effective upon actually delivery.
11.5 This Agreement shall be governed by and construed in
accordance with, the internal laws of the State of Iowa, without regard to
conflict of law principles applied in such State.
11.6 To the fullest extent permitted by law, buyer hereby waives
any right to trial by jury (which seller also waives) in any
action, suit, proceeding or counterclaim of any kind arising out of or otherwise
relating to this Agreement. seller and buyer each represents to the other that
this waiver is knowingly, willingly and voluntarily given.
11.7 Each party hereto consents to the personal jurisdiction of the
state and federal courts located in the state of Iowa or Virginia in connection
with any controversy related to this Agreement, waives any argument that venue
in any such forum is not convenient and agrees that any litigation initiated by
either of them in connection with this Agreement shall be venued in either the
Linn County, Iowa District Court, the United States District Court, Northern
District of Iowa in Cedar Rapids, Iowa, in the Circuit Court for Virginia Beach
Virginia or the United States District for the District of Virginia.
11.8 This Agreement constitutes the entire agreement between the
patties relating to its subject matter and merges and supersedes all prior
written oral agreements and all contemporaneous oral agreements between the
parties. This Agreement may not be changed in any respect except by a writing
duly executed by both parties.
11.9 In the event that any action is filed in relation to this
Agreement, the unsuccessful party in the action shall pay to the successful
party, in addition to all the sums that either party may be called on to pay, a
sum for the successful party's reasonable attorneys' fees, court costs, and
expenses incurred in such action.
IN WITNESS WHEREOF, these parties have caused this Agreement to be
executed by their authorized representatives on the day and year first above
written.
Natural Solutions Corporation Penford Products Co
By: /s/ Xxxxx X. Xxxxxx By: /s/Xxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
Its: President Its: Vice President & Chief Science
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Officer
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