TERMS AND CONDITIONS OF PURINA SHELTER FEED PROGRAM AGREEMENT
1. Purina Promotion or Other Use of SHELTER Logo and Marks: Purina may promote itself as a sponsor and provider of Purina brand pet food to SHELTER utilizing the SHELTER Marks as defined in Section 2.2 below, subject to review and written approval by SHELTER, which such approval shall not be unreasonably withheld.
2. Use of Trademarks; Intellectual Property:
7.1 Purina hereby grants to SHELTER, during the Term, the right to use and/or display Purina’s logo(s), brand name(s), trademark(s), logotype(s) and/or design(s) as provided by Purina (hereinafter “Purina Marks”) to SHELTER during the Term solely for the purpose of fulfilling its obligations as outlined in this Agreement. SHELTER acknowledges that such Purina Marks are and shall remain the sole and exclusive property of Purina and that this Agreement in no way confers upon SHELTER any rights or interest whatsoever in such Purina Marks or the use/display thereof. All uses of the Purina Marks shall be subject to Purina’s prior written approval. All use of Purina Marks by SHELTER shall inure to the benefit of Purina.
7.2 SHELTER hereby grants to Purina, during the Term, a non-exclusive right to use and/or display the SHELTER’s logo, name, trademarks, logotypes and/or designs (hereinafter “SHELTER Marks”) for the purpose of fulfilling its obligations as outlined in this Agreement including, advertising and promoting the relationship to the trade and the general consuming public. Purina acknowledges that use and/or display of any SHELTER Marks in no way confers upon Purina any right or interest in or to such SHELTER Marks or the use of them. Such SHELTER Marks are and shall remain the sole and exclusive property of SHELTER.
3.1 Each party acknowledges that as a result of entering into this Agreement and performing its obligations hereunder, it may obtain or gain access to the other party’s Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall be defined as all information provided by one party to the other orally or in writing and which relate to new or existing products and/or business operations, including, without limitation, distribution data, accounting and financial information, new product concepts and capabilities, and the existence and provisions of this Agreement. To the extent practical, Confidential Information shall be disclosed in documentary or tangible form marked “Confidential” or “Proprietary.” In the case of disclosures in non-documentary form or made orally, the disclosing party shall have the right, or, if requested by the recipient, the obligation to confirm in writing the fact and general nature of each such disclosure within thirty (30) days after it is made. Purina will abide by any privacy restrictions as set forth by SHELTER. Purina will abide by any reasonable privacy restrictions required by SHELTER with respect to the identity of any SHELTER contributor or person who adopts an animal from SHELTER.
3.2 Each party hereby agrees to keep the Confidential Information of the other in confidence and will not publish or directly or indirectly disclose or otherwise make available to any third party without the prior written consent of the disclosing party. The recipient of Confidential Information will limit access of such information to only those of its employees and/or subcontractors who need to know the same in order to perform their duties under this Agreement and who have been apprised of its confidential nature and have agreed (in the case of subcontractors, such agreement must be in writing) to be bound by the terms set forth in this Section 8. Each party further agrees not to use the Confidential Information of the other except in connection with performance of its obligations and duties under this Agreement.
3.3 This Section 3 shall survive the termination of this Agreement and shall continue for each item of Confidential Information until such time as the receiving party can show that such item of Confidential Information:
(a) is or has become publicly available other than as a result of any act or failure to act by the receiving party;
(b) was demonstrably known to the receiving party, without an obligation to keep it confidential, prior to receipt of such item of Confidential Information from the disclosing party; or
(c) has legally and properly been received by the receiving party from a person other than the disclosing party, through no breach of any agreement with disclosing party and without an obligation to keep it confidential.
4.1 This Agreement may be terminated at any time without cause by either party upon ninety (90) days prior written notice to the other party. In the event of termination, each party shall return to the other any and all materials (excluding pet products) which the parties have provided to each other in fulfillment of its obligations hereunder.
4.2 Should either party breach any term, covenant, representation or warranty herein and fail to remedy such breach within thirty (30) days following written notice by the other party of such breach, the affected party shall have the right and option to terminate this Agreement forthwith. Such termination shall be in addition to any and all other rights and remedies that the terminating party may have under this Agreement, at law, or in equity.
4.3 Should either party or their respective employees, representatives and/or agents (the “offending party”) commit any act or be involved in any situation tending to bring the other party (the “offended party”) into public disrespect, scandal, or ridicule, tending to derogate from the public image of the offended party, or tending to reflect unfavorably upon the offended party or any of its products or services, then such offended party shall, in addition to its other legal and equitable remedies, have the right to terminate this Agreement immediately without an opportunity to cure and without any further obligation to offending party. Without limiting the generality of the foregoing, Purina reserves the right to from time to time to evaluate SHELTER’s (a) sanitation and animal housing conditions, (b) policies and practices relating to the treatment of animals, and (c) other matters concerning the quality and welfare of the shelter facilities and the animals housed therein. In the event that Purina, in its reasonable discretion, determines from its evaluation that any such matters may (i) place the health, safety, or welfare of the animals at risk or (ii) cause the reputation or goodwill of Purina to be adversely affected by its continued association with SHELTER, Purina shall have the right to terminate this Agreement upon providing SHELTER with written notice of the adverse condition and at least ten (10) business days to cure the condition.
5.1 SHELTER hereby agrees to indemnify, defend and hold harmless Purina, its affiliated entities and their respective officers, directors, employees and agents from and against any and all losses, damages, claims, liabilities, injuries, actions, causes of action and costs, including reasonable attorneys’ fees and expenses, arising out of the SHELTER’s performance or non-performance hereunder, any negligent or willful act or omission by SHELTER or its employees, agents, contractors or representatives or any breach of warranty, commitment, covenant or representation by SHELTER herein. The termination of this Agreement shall not affect the continuing obligation of the SHELTER as indemnitor.
5.2 Purina hereby agrees to indemnify, defend and hold harmless SHELTER, its affiliated entities and their respective officers, directors, employees and agents from and against any and all losses, damages, claims, liabilities, injuries, actions, causes of action and costs, including reasonable attorneys’ fees and expenses, arising out of the Purina’s performance or non-performance hereunder, any negligent or willful act or omission by Purina or its employees, agents, contractors or representatives or any breach of warranty, commitment, covenant or representation by Purina herein. The termination of this Agreement shall not affect the continuing obligation of Purina as indemnitor.
6. Insurance: SHELTER shall maintain at its own expense with insurance carriers reasonably acceptable to Purina throughout the Term a comprehensive liability insurance policy in force with at least One Million Dollars ($1,000,000) single limit liability for covering all activities directly or indirectly related to this Agreement, automobile liability insurance for owned, non-owned and hired vehicles used by SHELTER with a limit of not less than $100,000 per person/$300,000 per accident/$50,000 property damage Said policies shall name Purina as an additional insured therein. SHELTER shall additionally maintain statutory workers compensation coverage, if required by law for its state of domicile and any other state in which it does business. SHELTER shall furnish Purina with certificates of insurance evidencing the coverage required above. The certificates of insurance must be endorsed to provide that the above polices shall not be cancelled, materially changed or reduced in coverage until at least thirty (30) days after written notice of such cancellation, change or reduction shall have been mailed to Sponsor as a certificate holder at the address shown above. Further, SHELTER shall furnish Purina with proof that SHELTER’s insurer acknowledges and covers the contractual liability assumed by SHELTER in this Agreement.
7. Purina’s Participation: It is understood and agreed that Purina’s participation in this Agreement is limited to promotional and product support only and that Purina does not assume any responsibility for the selection, screening, and placement of animals or other activities of SHELTER.
8. Representations and Warranties:
14.1 Each party hereby represents and warrants that it is free and has full right to enter into this Agreement, to perform all of the obligations hereunder, and to grant all rights hereunder on the terms and conditions contained herein. Each party further warrants and represents that the execution, delivery and performance of this Agreement will not violate or conflict with any contractual restriction(s) and/or agreement(s) binding upon or affecting such party.
14.2 SHELTER warrants and represents that its performance of this Agreement will comply with all applicable federal, state, local laws, rules, regulations and ordinances in effect including, without limitation federal, state and local laws and guidelines governing charitable organizations. SHELTER shall be solely responsible for adhering to all applicable state registration requirements, filings and record keeping as may be required under charitable solicitation and/or registration or other similar laws by the state(s) in which the SHELTER is located and any other states where services will be performed under this Agreement.
9. Equal Employment: SHELTER is aware that Purina is a federal contractor that prohibits discrimination because of age, race, religion, creed, color, national origin, disability, sexual orientation, gender, or veterans’ status in the recruitment, selection, training, utilization, promotion, termination, or other employment-related activities. Further, SHELTER is aware that this Agreement is subject to the provisions of Executive Order 11246, as amended, and any other applicable federal regulations and Orders issued under or pursuant to the Equal Employment Opportunity Act.
10.1 All notices and other communications regarding this Agreement shall be sent to the following address (or such other address as the Party may specify in writing in accordance with these procedures): If to Purina: If to SHELTER: Nestlé Purina PetCare Company SHELTER’s address as listed on the first page of the Agreement Checkerboard Square St. Louis, Missouri, 63164 Attention: Christy Kahn
10.2 All written notices required or permitted to be given under the terms of this Agreement shall be deemed duly delivered upon receipt if (i) delivered in person; (ii) sent by facsimile using a machine that confirms delivery and confirmed by sending the original via certified mail, return receipt requested; or (iii) sent certified mail, return receipt requested to the above address. Notwithstanding the foregoing, payments, reports, and other routine communications may be sent by regular or electronic mail.
11.1 Each party to this Agreement shall be deemed an independent contractor. No provision of this Agreement or any act of the parties pursuant to this Agreement shall be construed to express or imply a joint venture, partnership, or relationship other than that specified in this Agreement. No employee, agent or other representative of either party shall at any time be deemed to be under the control or authority of the other party, or under the joint control of both parties. Each party shall be fully liable for all Workers’ Compensation premiums and liability and federal, state and local withholding taxes or charges with respect to its respective employees, and each agrees to save the other harmless from any claims brought against the other in respect thereto.
11.2 Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.
11.3 The failure of either party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights hereunder, or any course of conduct or dealing, shall not be construed as a waiver or relinquishment of any such rights or conditions at any future time and shall in no way effect the continuance in full force and effect of all provisions of this Agreement.
11.4 Headings of the sections hereof are inserted for convenience only and shall not constitute a part of this Agreement.
11.5 This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, notwithstanding conflict of laws principles.
11.6 Should any provision of this Agreement be invalid, ineffective, or unenforceable, under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
11.7 This Agreement constitutes the entire agreement between parties hereto and supersedes all prior and contemporaneous agreements and undertakings of the parties pertaining to the subject matter hereof. This Agreement may not be modified except by written instrument duly executed by authorized representatives of Purina and SHELTER.