VENDOR SERVICE AGREEMENT
Exhibit
10.2
VENDOR
THIS
SERVICE AGREEMENT (“Agreement”)
is entered into effective this 28th
day of
Dec., 2005 (the “Effective Date”), by and between Pilgrim’s Pride Corporation, a
Delaware corporation with its headquarters at 0000 Xxx. 000 Xxxxx, Xxxxxxxxx,
Xxxxx 00000 (“Pilgrim’s Pride”) and Xxx Xxxxxxx d/b/a Xxx Xxxxxxx Farms (the
“Vendor”), whose address is 0000 Xxxx 000, Xxxxxxxxx, XX 00000, referred to in
this Agreement separately as a “Party” or collectively as the
“Parties”.
WITNESSETH:
WHEREAS,
Pilgrim’s Pride desires Vendor to provide services as mutually agreed upon by
the Parties as more fully set forth in Exhibit “A” attached hereto and
incorporated herein by reference (the “Services”); and
WHEREAS,
Vendor is experienced in all facets of the Services and is agreeable to
providing such Services for Pilgrim’s Pride.
NOW,
THEREFORE, in consideration of the mutual promises contained herein and subject
to all terms and conditions hereof, Pilgrim’s Pride and Vendor agree as
follows:
1. Scope
of Vendor’s Authority.
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Pilgrim’s
Pride authorizes Vendor to provide the Services specified on Exhibit
“A”
attached hereto and incorporated herein by reference. Vendor shall
not
commence said Services without the authorization of Pilgrim’s
Pride.
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2. Fees
and Charges.
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In
consideration of the Services performed by Vendor, Pilgrim’s Pride agrees
to pay Vendor the service fees and other charges as specified on
Exhibit
“B” attached hereto and incorporated herein by reference within 30 days
from the later of i) the date of receipt of invoice at the following
listed address or ii) upon acceptance of the Services as being
satisfactory to Pilgrim’s Pride. All invoices must be sent to Pilgrim’s
Pride at the following address:
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Pilgrim’s
Pride Corporation
X.X.
Xxx
0000
Xxxxxxxxx,
Xxxxx 00000
Attn:
Accounts Payable
3. Term
and Termination.
| 3.1. |
The
Initial Term of this Agreement is up to one (1) calendar year, beginning
on the Effective Date and ending on December 31st
of
the year in which such Agreement is executed by the Parties. This
Agreement will automatically renew for another one (1) year term
on each
January 1st
following the Effective Date (the “Renewal Term”), unless otherwise
terminated in accordance with the provisions of this
section.
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| 3.2. |
Either
Party may terminate this Agreement, with or without cause, by giving
the
other Party sixty (60) days prior written notice of termination using
the
notice procedure described in Section 11
below.
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| 3.3. |
This
Agreement may be terminated by either Party by providing written
notice of
“Immediate Termination” to the other Party in any of the following
circumstances:
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| 3.3.1. |
if
a Party fails to pay any amount owed to the other Party under this
Agreement within ten (10) days after receipt of written “Late Notice”
demanding payment; or
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| 3.3.2. |
if
a Party fails to cure a breach of a material provision of this Agreement,
other than non-payment of any amount owed to the other Party hereunder,
within thirty (30) calendar days after receipt of written notice
demanding
cure.
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| 3.4 |
This
Agreement will be terminated immediately by Pilgrim’s Pride in any of the
following circumstances:
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| 3.4.1 |
If
Vendor becomes the subject of an insolvency or bankruptcy proceeding
or
makes an assignment of all or substantially all of its assets for
the
benefit of its creditors;
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| 3.4.2 |
If
Vendor has not provided any Services to Pilgrim’s Pride during the
previous calendar year.
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| 3.5 |
Upon
termination of this Agreement, Vendor shall return to Pilgrim’s Pride all
originals and copies of documents provided by Pilgrim’s Pride for purposes
of this Agreement.
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4. Representations
of Vendor.
Vendor
represents and warrants as follows:
| 4.1 |
It
will comply with all applicable laws, rules and regulations governing
the
provision of Services and the performance of its dutites under this
Agreement.
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| 4.2 |
It
is duly authorized and licensed to perform the Services and its duties
hereunder in each jurisdiction in which it will
act.
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| 4.3 |
It
will maintain insurance requirements per Section 5 below and agrees
that
Pilgrim’s Pride can withold payment for Services if and for so long as it
fails to comply with Section 5.
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5. Insurance.
Vendor
agrees to maintain in effect insurance coverage with reputable insurance
companies covering worker’s compensation and employer liability (or other
reasonable equivalent, as soley determined by Pilgrim’s Pride’s Risk Management
Department, such as excess employer’s indemnity insurance or excess worker’s
compensation) excess insurance, auto liability, commercial general liability,
including product liability/completed operations, all with such limits as are
sufficient to protect Vendor and Pilgrim’s Pride from the liabilities insured
against by such coverage. Vendor’s insurance described herein shall be primary
and not contributory with Pilgrim’s Pride’s insurance with respect to
obligations resulting from the negligence of Vendor.
Vendor
shall have the following minimum requirements on their Certificate of Insurance.
General
Liability
General
Aggregate$2,000,000
Products/Completed
Operations$1,000,000
And/or
Professional Liability $1,000,000
(if applicable)
Each
Occurrence$1,000,000
Automobile
Liability
Combined
Single Limit$1,000,000
Workers
Compensation Statutory
Employers'
Liability
Each
Accident $100,000
Policy
Limit $500,000
Each
Employee $100,000
Pilgrim's
Pride Corporation is to be listed as an Additional Insured on General Liability
and Auto policies. A 30-day notice of cancellation is also required. Pilgrim's
Pride Corporation reserves the right to modify these requirements as deemed
necessary for the risk presented to Pilgrim's Pride Corporation.
The
certificate holder address should read as follows:
Pilgrim's
Pride Corporation
Attn:
Risk Management
0000
Xxx.
000 X
X.X.
Xxx
00
Xxxxxxxxx,
XX 00000
| 6.1. |
Each
Party shall indemnify and hold harmless the other Party and all of
its
directors, officers, employees and agents (the “Indemnitees”) from and
against any claims, losses, damages, liens, judgments, awards, penalties
or other costs or expenses (including, but not limited to, any reasonable
attorneys’ fees), and defend, at such Party’s cost, each Indemnitee
against any threatened, pending or initiated claim, action, litigation,
suit, arbitration, mediation or proceeding, arising out of or connected
with a violation of law by such Party, a breach of such Party’s
obligations under this Agreement, or any negligence or willful misconduct
by any employee, agent, contractor or other representative of such
Party.
Parties shall notify each other as soon as reasonably practicable
of any
such claim, action, litigation, suit, arbitration, mediation or proceeding
and provide the other Party with reasonable assistance in the defense
thereof; provided that such delay or failure to deliver any such
notice
shall not relieve either Party’s obligations under this provision except
to the extent such delay or failure materially prejudices either
Party’s
obligations hereunder.
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| 6.2. |
Termination
of this Agreement shall not relieve either Party of its respective
obligations of indemnification under this
section.
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7. Confidentiality.
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Vendor
acknowledges that its employees and other representatives will be
exposed
to confidential and proprietary information of Pilgrim’s Pride during the
ordinary course of providing the services contemplated by this Agreement.
Vendor agrees to use its best efforts and to cause its employees
and other
representatives to use the same degree of care to maintain the
confidentiality of such information as it would and/or does with
respect
to its own proprietary and confidential business information. Vendor
agrees to refrain from disclosing any part of Pilgrim’s Pride’s
confidential and proprietary information to a third party. Vendor
further
agrees not to use any confidential and proprietary business information
of
Pilgrim’s Pride for any purpose other than the performance of the Services
described hereunder.
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8. Audit.
Vendor
shall keep accurate books of account and records covering all transactions
involving the products and/or services provided by Vendor. Pilgrim’s Pride, or
its authorized representatives, shall have the right, during normal business
hours, to examine such books and records to the extent necessary to determine
Vendor’s compliance with the supply of the products and/or services under this
Agreement. All such books and records shall be kept available during the term
of
business relationship and for at least three (3) years after their
creation.
9. No
Gratuities.
Neither
Party will offer or provide to the employees, agents or other representatives
of
the other Party any favors, gratuities, gifts, payments, or anything of value,
whether or not in an attempt to influence such person’s administration of the
provisions of Agreement or to otherwise gain unfair advantage individually
and/or relative to competing suppliers/vendors.
Additionally,
each Party will immediately report to the other Party any requests made for
favors, gratuities, gifts, payments, or anything of value by employees, agents
or other representatives of such Party and will cooperate with respect to any
inquiry or investigation being conducted related to such activities or alleged
activities. Pilgrim’s Pride has established its PRIDE Line with the toll-free
number of 1-888-536-1510 to report any unethical conduct.
10. Amendment
and Waiver.
10.1
This
Agreement and the Exhibits attached hereto contain the entire agreement between
the Parties with respect to the subject matter hereof and shall not be amended
except in a writing duly signed by both Parties to this Agreement.
10.2
The
failure of either Party to insist upon strict adherence to any term or condition
of this Agreement on any occasion shall not constitute a waiver of such Party’s
rights to insist upon strict adherence to such term or provision on a subsequent
occasion. Any of the terms or provisions of this Agreement may be waived at
any
time, and from time to time, in writing by the Party entitled to the benefit
thereof without impairing or diminishing any other term or provision hereof.
Waiver by either Party of a breach of any term or provision of this Agreement
shall not operate as or be construed as a waiver of any subsequent
breach.
11. Notice.
All
notices, requests and other communications (“Notices”) required or permitted to
be given under this Agreement shall be given in writing and shall be deemed
duly
delivered if delivered personally with receipt acknowledged, if delivered by
an
overnight delivery service such as UPS or FedEx, or by United States
registered or certified first class mail, postage paid, return receipt
requested, addressed to the Parties at the following addresses, or such other
address as any Party may specify hereinafter by giving notice to the other
Party
in accordance with the procedure outlined in this section:
If
to Pilgrim’s
Pride:
Pilgrim’s
Pride Corporation
0000
Xxx.
000 X
Xxxxxxxxx,
Xxxxx 00000
Attn:
Risk Management - Contracts
Telephone:
000-000-0000
If
to Vendor:
Xxx
Xxxxxxx
0000
Xxxx
000
Xxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Notices
shall be deemed duly received on the date of confirmed delivery.
12. Assignment.
Except
for merger, sale or acquisition of Pilgrim’s Pride, neither Party may assign its
rights and obligations under this Agreement without the prior written consent
of
the other Party. All representations, convenants and warranties of this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successor or permitted assigns. Nothing in this Agreement
is
intended or shall be construed to confer upon or give to any person or entity
other than Pilgrim’s Pride and Vendor any right, remedy or claim
hereunder.
13. Severability.
If
any
provision of this Agreement shall be declared invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby and shall remain
in
full force and effect.
14. Dispute
Resolution.
If
a
dispute arises from or relates to transactions between the Parties, the Parties
shall endeavor to settle the dispute first through direct discussions and
negotiations. If the dispute cannot be settled through direct discussions,
the
Parties shall endeavor to settle the dispute by mediation under the Mediation
Rules of the American Arbitration Association before recourse to the arbitration
procedures contained in this Agreement. If a dispute has not been resolved
within 90 days after the written notice beginning the mediation process (or
a
longer period, if the Parties agree to extend the mediation), the mediation
shall terminate and the dispute shall be settled by binding arbitration in
Dallas, Texas or such other location as agreed upon by the Parties. The
arbitration will be conducted in accordance with the procedures in this document
and the Rules of the American Arbitration Association in effect on the date
of
the engagement letter, or such other rules and procedures as the Parties may
designate by mutual agreement. In the event of a conflict, the provisions
of this document will control.
The
arbitration shall be conducted by a single arbitrator as agreed upon by the
Parties. If the Parties cannot agree on a single arbitrator, the arbitration
will be conducted before a panel of three arbitrators, one selected by each
Party and the third arbitrator selected by the Parties’ two arbitrators from a
panel provided by the American Arbitration Association. Any issue
concerning the extent to which any dispute is subject to arbitration, or
concerning the applicability, interpretation, or enforceability of these
procedures, including any contention that all or part of these procedures are
invalid or unenforceable, shall be governed by the agreement between the Parties
and the Federal Arbitration Act and resolved by the arbitrators. No
potential arbitrator shall be appointed unless he or she has agreed in writing
to abide and be bound by these procedures.
The
individual arbitrator or the arbitration panel shall have no power to award
non-monetary or equitable relief of any sort. The arbitrator/panel shall
also have no power to award (a) damages inconsistent with any applicable
agreement between the Parties or (b) punitive damages or any other damages
not
measured by the prevailing Party’s actual damages; and the Parties expressly
waive their right to obtain such damages in arbitration or in any other
forum. In no event, even if any other portion of these provisions is held
to be invalid or unenforceable, shall the arbitrator/panel have power to make
an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
Discovery
shall be permitted in connection with the arbitration only to the extent, if
any, expressly authorized by the arbitration panel upon a showing of substantial
need by the Party seeking discovery.
All
aspects of the arbitration shall be treated as confidential. The Parties
and the arbitrator/panel may disclose the existence, content or results of
the
arbitration only as provided in the Rules or by the Parties. Before making
any such disclosure, a Party shall give written notice to all other Parties
and
shall afford such Parties a reasonable opportunity to protect their
interests.
The
result of the arbitration will be binding on the Parties, and judgment on the
arbitration award may be entered in any court having jurisdiction. The
prevailing Party in any dispute that is resolved by this dispute resolution
process shall be entitled to recover from the other Party reasonable attorneys’
fees, costs and expenses incurred by the prevailing Party in connection with
such dispute resolution process.
15. Jurisdiction
and Venue.
The
provision for products and/or services between the Parties will be deemed to
have been made and will be construed and interpreted in accordance with the
laws
of the State of Texas. If any matters in dispute are required to be settled
by
litigation, such trials will be decided by a judge. THE
PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION(S) AND CONFIRM THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO THEIR BUSINESS TRANSACTIONS. For
any such action(s) related to their business transactions or enforcement of
any arbitration, the Parties submit themselves to the jurisdiction of the state
or federal courts located in Dallas, Texas.
IN
WITNESS WHEREOF
the
Parties have caused this Agreement to be executed by their respective duly
authorized officers as of the date first written above.
PILGRIM’S
PRIDE CORPORATION XXX
XXXXXXX d/b/a Xxx Xxxxxxx Farms:
By:
/s/
Xxxxxxx X. Xxxxxxx By:
/s/
Xxx Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx Name:
Xxx
Xxxxxxx
Title:
Exec.V.P.,
CFO, Sec. & Treas. Title:
Owner
PPF
Date:
1/3/06 Date:
12-28-05
/s/
TT
Xxx
Xxxxxx (Initials)
Sr.
V.P.
- Procurement
EXHIBIT
A
SERVICES
Vendor
agrees to provide the following “Services:”
| · |
Any
Services requested by Pilgrim’s Pride and mutually agreed upon by the
Parties.
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Service
Agreement FINAL 12-19-05.doc
EXHIBIT
B
FEES
AND CHARGES
______________________________________________________fees
are as follows:
Service
Agreement FINAL 12-19-05.doc
