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EXHIBIT 10.11
AMENDED AND RESTATED
AGREEMENT
THIS AGREEMENT
is executed as of the 21st day of May, 2004, and made
effective as of December 1, 2002, by and
between HARDEE'S FOOD SYSTEMS, INC., a
North Carolina corporation ("HARDEE'S") and
PIERRE FOODS, INC., a North Carolina
corporation (the "Company").
HARDEE'S desires
to purchase from the Company and the Company desires to
sell to HARDEE'S and any distributors,
licensees, franchisees or other persons
designated from time to time by HARDEE'S in
writing (collectively, all such
entities other than HARDEE'S shall
hereinafter be referred to as "Distributor")
the products (the "Products") described in
the "Detailed Product Schedule" (the
"DPS"), in accordance with the terms and
conditions hereof.
In consideration
of the mutual promises contained herein the parties hereby
agree as follows:
1. PURCHASE AND SALE. HARDEE'S shall
purchase from the Company and the
Company shall produce the Products in
accordance with its proprietary formula
(the "Formula", attached as Exhibit A to
the Amended and Restated Formula
Development Agreement of even date) and
with HARDEE'S Finished Product
Specifications attached to this Agreement
and sell to HARDEE'S and Distributor
the Products set forth in the DPS, as
amended from time to time, in the amounts
set forth in the DPS.
2. DISTRIBUTOR AND RELATED
PARTIES.
(a) This Agreement
shall not to be construed in any manner to be
binding upon any Distributor of HARDEE'S or
upon any affiliate, parent or
subsidiary corporation of HARDEE'S or any
individual signing on behalf of
HARDEE'S.
(b) It is expressly
agreed and acknowledged that Vendor has entered
into a certain Amended and Restated
Agreement of even date effective as of
February 4, 2004, with Carl Karcher
Enterprises, Inc. ("CKE"), which agreement,
and any amendments and attachments thereto
(the "CKE Agreement), grant to CKE
the right to purchase products similar to
the Products in accordance with the
terms and conditions therein.
Notwithstanding anything herein to the contrary,
HARDEE'S acknowledges that the rights,
privileges, and options of CKE under the
CKE Agreement, and the terms thereof, shall
not be deemed a violation of this
Agreement, the Amended and Restated Formula
Development Agreement, or any
agreements delivered therewith.
(c) The parties hereto
acknowledge that HARDEE'S designation of a
Distributor shall not constitute a
representation by HARDEE'S regarding such
Distributor's ability to pay, and that the
Company shall look solely to the
entity submitting a purchase order
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hereunder for payment. The Company reserves
the right to decline to provide
goods and/or services to any Distributor it
reasonably determines is not credit
worthy.
3. VOLUME COMMITMENT.
(a) During each
Contract Year (as defined below), HARDEE'S and/or its
Distributor, and CKE and/or CKE's
Distributor (as defined in CKE Agreement) will
together purchase in the aggregate from the
Company and the Company will sell
HARDEE'S and CKE and/or their respective
Distributors, *** of the annual
aggregate pound usage of the Products (as
defined in this Agreement and in the
CKE Agreement) by HARDEE'S, CKE, and their
respective Distributors up to an
aggregate total of *** pounds of total
product per Contract Year (the "Volume
Requirements"). Provided, if Company
acquires (by buying or building) an
additional plant at a location satisfactory
to CKE which provides additional
production capacity which is capable, in
the reasonable determination of
HARDEE'S and CKE, of supplying all of their
aggregate pound usage of the
Products, then the foregoing limitation of
*** pounds shall be disregarded.
Notwithstanding the foregoing, however, the
Volume Requirement shall be
pro-rated for any Contract Year consisting
of less than 12 months (i.e. if the
final Contract Year consists of 10 months
then the Volume Requirement for that
Contract Year shall be 10/12ths of the
original Volume Requirement).
It is expressly
understood that non-compliance with the Volume Requirement
will be deemed a material breach of this
Agreement even if the Purchase
Threshold is met under the Formula
Development Agreement executed herewith.
(b) The Volume
Requirement of the Products from the Company will be
reasonably allocated over the 12 month
period of each Contract Year, (or over
the actual number of calendar months in a
Contract Year, if less than 12), to
the extent demand on HARDEE'S Product
permits such allocation.
(c) At all times
during the term of this Agreement and at no
additional cost to Hardee's, the Company
will maintain a safety stock volume of
up to six (6) weeks of Product based on
trailing six month period average for
system wide availability in the Company's
Ohio storage facilities. Hardee's
reserves the right to arrange all freight
carriers and to pick up Product at
Company's manufacturing facility and cold
storage warehouses. Addresses for the
storage facilities are as follows:
Interstate Warehouse
Pierre Foods, Inc.
Cincinnati Freezer
110 Distribution Drive 9990
Princeton Road
2881 E. Sharon Road
Hamilton, Ohio 45011
Cincinnati, Ohio 45246
Cincinnati, Ohio 45241
Attn: Paul Hanna
Attn: Bill Kolb
Attn: Don Lucas
513-814-6500
800-543-1604
513-771-3573
(d) The Company acknowledges that the
annual anticipated purchase volumes set
forth in the DPS are estimates only, and
are subject to adjustment based on
actual historical data, promotional
forecasts and other information furnished to
the Company from time
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to time. HARDEE'S will provide the Company
with a quarterly forecast at least
thirty (30) days prior to the start of each
calendar quarter. Said forecast is
an estimate only.
(e) In the event the
Company cannot deliver the Products in the
amounts and on the dates required by
HARDEE'S, HARDEE'S may obtain the Products
from alternate suppliers and test alternate
products. Such alternative sources
will count towards the Volume Requirement
as if purchased from the Company.
(f) The Company
acknowledges and agrees that it is a non-exclusive
supplier of the Products to HARDEE'S and
Distributor.
4. PRICING AND PAYMENT.
(a) Prices paid by
HARDEE'S will be fixed for all pick-ups and
deliveries on a weekly basis, or upon
election by HARDEE'S a monthly basis.
Prices are effective at time of shipment
date. The fixed costs components of
Total Labor Cost, Total Packaging Costs,
Total Overhead Cost, and Profit and
Corporate Overhead Cost in the prices paid
by HARDEE'S will be fixed as shown on
Exhibit I through April 30, 2004, and
thereafter as set forth on Exhibit I-A for
all purchases through the remainder of the
Term.
(b) FORMULA PRICING.
Pricing will be calculated in accordance with
Exhibits I, I-A, and II, which are
incorporated herein by this reference. The
reference document for raw material pricing
will be given to the Company by
HARDEE'S on a weekly basis, pursuant to
HARDEE'S agreement with its raw material
supplier designated from time to time by it
(currently ***). The raw material
pricing shall be on a delivered basis and
the Company agrees to accept the
freight cost set forth in HARDEE'S
agreement with such raw material supplier for
all raw materials being delivered by such
supplier to the Company. The cost
basis for Domestic Angus 85%, 80%, 50%,
73%, 65% and all Angus chucks shall be
determined pursuant to HARDEE'S Agreement
with HARDEE'S raw material supplier.
To the extent HARDEE'S approves imported or
other, alternative Angus trim, then
the cost basis for the Angus trim or any
applicable Angus trim components shall
be provided by HARDEE'S and/or by an
authorized agent of HARDEE'S. If HARDEE'S
chooses to use least cost formulation,
pricing will be adjusted for raw
materials and any effect on yields.
(c) PAYMENT TERMS.
Unless specifically provided otherwise all
payments required herein to be made by
Distributor to the Company shall be net 7
calendar days from the date of invoice.
(d) VENDOR RETURN. The
Company is responsible for the return of
rejected products due to non-compliance to
specifications from HARDEE'S
restaurants. A handling fee in the amount
of 11% of the product cost will be
charged to the Company ($10 minimum, $300
maximum). Any Company approved
disposal costs incurred by HARDEE'S will be
billed to the Company at cost.
(e) FREIGHT RATE. All
Domestic freight rates as noted in the DPS are
guaranteed through September 30, 2004 and
reviewed thereafter, every six (6)
months based
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upon a mutually agreed-upon carrier price
quotation for the subsequent six-month
period. Agreement must be made within ten
(10) days or end of each six-month
period. If Distributor elects to have
product (s) delivered to the requested
facility, freight will be handled FOB
Destination and freight will be added to
the price of each product. Should
Distributor pick up product(s) at the
Company's facility, product(s) will be
purchased FOB Origin as noted on the
DPS's.
(f) BOOKS AND
RECORDS.
(i) INVOICE
DISCREPANCIES. HARDEE'S will monitor the Company's
invoices and, in
the event of continual pricing/invoicing errors, HARDEE'S
may assess an
administrative charge on all incorrect invoices following
notice.
(ii) MAINTENANCE OF
BOOKS AND RECORDS. During the Term and for a
period of at
least two (2) years thereafter, the Company shall maintain
such books and
records (collectively, "Records") as are necessary to
substantiate
that all invoices and other charges submitted to HARDEE'S for
payment
hereunder were valid and proper. All Records shall be maintained
in
accordance with
generally accepted accounting principles consistently
applied.
HARDEE'S and/or its representatives shall have the right at any
time during
normal business hours, upon twenty-four (24) hours' notice, to
examine said
Records. The provisions of this paragraph shall survive the
expiration or
earlier termination of this Agreement.
5. DELIVERY.
(a) The Products
purchased hereunder shall be delivered on a timely
basis to the locations designated by
HARDEE'S or Distributor in the DPS, as
amended from time to time by HARDEE'S.
(b) In the event the
Company cannot fulfill any order within the
delivery dates designated by HARDEE'S or
Distributor (as applicable), HARDEE'S
will invoice the Company for and the
Company shall pay HARDEE'S for all
additional costs, other than loss of sale
costs, associated with the out of
stock or late delivery.
(c) The Company is
responsible for reasonable on-time delivery of
orders to HARDEE'S and Distributor. In case
of late delivery by the Company or
its carriers in excess of 10% of all
deliveries during the preceding quarter,
HARDEE'S will assess a charge of $26/hour
for administrative and receiving labor
on all late deliveries.
6. INDIVIDUAL ORDER TERMINATION.
HARDEE'S and/or Distributor may at any
time by written notice terminate any
individual order in whole or in part if the
Company (i) fails to comply with any of the
applicable terms and conditions of
the order; (ii) fails to perform within the
time specified (or if no time is
specified, within a reasonable time); (iii)
delivers any item that is not as
specified; or (iv) so fails to make
progress as to endanger performance of the
order in accordance with its terms. If
individual orders are terminated in whole
or in part because of the Company's failure
to deliver acceptable products in
accordance with the requirements and
terms
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Confidential information redacted and
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hereof, a mutually agreed upon arrangement
would be made by both parties to
ensure continued supply of order at no
additional cost to HARDEE'S or
Distributor, as applicable.
7. QUALITY CONTROL/MICRO TESTING. The
Company will establish and
maintain a product safety plan ("Safety
Program") and a products quality program
("Quality Control Program"). Copies of the
Quality Control Program and Safety
Program will be submitted to HARDEE'S
Quality Assurance Department for approval.
The Safety Program will include, without
limitation, safety controls,
monitoring, corrective action and
verification steps to insure that potential
risks are controlled. The Quality Control
Program will include the necessary
controls to assure that all products
shipped to HARDEE'S Distribution Center or
directly to restaurants, meet the current
finished product specifications,
including a hold for release
microbiological program to insure that all
microbiological test results meet standards
prior to its release. HARDEE'S
agrees to accept the Company's pathogen
results for product from the Company
plant's test and hold program. Auditing
forms, lab reports and other
verification data will be maintained by the
Company and made available to
HARDEE'S upon request. HARDEE'S may monitor
the Company's production and/or
inspect the Company's facilities at any
reasonable time during the Company's
operating hours. The Company will submit a
manifest of code dates with the
corresponding number of cases on all
products shipped to HARDEE'S. The Company
shall reimburse HARDEE'S for all reasonable
costs associated with the Company's
failure to deliver acceptable product in
accordance with the product
specifications. In such event, or pursuant
to the Company's request to transfer
production to an unapproved plant, the
Company shall reimburse HARDEE'S for all
reasonable costs associated with approving
an alternate or secondary plant or
location, unless approval of the alternate
or secondary plant or location is
initiated solely by HARDEE'S for the sole
purpose of providing a lesser cost.
Any deviation from HARDEE'S approved
specifications, including formulation and
packaging changes, will require PRIOR
approval from HARDEE'S quality assurance
department. On a monthly basis the Company
shall complete and submit to the
HARDEE'S quality assurance department
specification summary reports. The Company
shall submit biannually to HARDEE'S quality
assurance department an independent
food safety and GMP systems audit from a
HARDEE'S approved third party auditor.
Based on HARDEE'S product compliance
testing program, the Company's products
will be sampled from approved distribution
centers or from individual
restaurants by an independent auditor or by
HARDEE'S personnel for required
analysis at supplier's expense. Provided,
the cost assessed to the Company with
respect to the two foregoing sentences
shall not exceed $30,000 in the aggregate
for such expenses arising out of this
Section 7 and Section 7 in the CKE
Agreement. When and if quality problems
occur, the Company shall implement a
temperature tracking and recording program
for temperature sensitive products
that are delivered with a radius greater
than two (2) hours or one hundred (100)
miles from the nearest distribution
center.
8. COMPLETE AGREEMENT.
(a) The following
attachments (the "Attachments") are incorporated
herein by this reference and are part of
this Agreement and a breach of any
terms thereunder shall constitute a breach
hereunder: (i) HARDEE'S Distribution
Addendum, (ii) HARDEE'S Items #9561 and
#9598 Formula Pricing Exhibits I and
I-A, (iii) *** Angus Formula Pricing for
Pierre Foods Exhibit II, (iv) Excess
Safety Stock Storage Cost Exhibit III, (v)
Detailed Product
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Schedule (DPS), (vi) HARDEE'S Quality
Assurance Department Finished Product
Specification including QA approved label,
Mold Plate Data Sheet, Visual
Standards, and HARDEE'S Label/Case Printing
Requirements, (vii) HARDEE'S
Microbiological Testing Program, (viii)
Amended and Restated Formula Development
Agreement, and (ix) Amended and Restated
Confidentiality Agreement. By execution
of this Agreement, the Company and HARDEE'S
acknowledge receipt and acceptance
of all Attachments.
(b) This Agreement
together with all Attachments hereto, shall
constitute the complete agreement between
HARDEE'S and the Company and shall
supersede all prior or contemporaneous
proposals, representations,
understandings, and other communications
between the parties concerning the
matters addressed in this Agreement and the
Attachments, whether oral or
written, unless specifically incorporated
herein by reference.
(c) The issuance of
information, advice, approvals, or instructions by
a party's technical personnel or other
representatives shall be deemed
expressions of personal opinions only and
shall be of no force or effect and
shall not affect such party's rights and
obligations hereunder, unless the same
is in writing and signed by an authorized
officer of such party and delivered to
the other party.
9. TERM AND RENEWAL.
(a) The term of this
Agreement shall commence as of December 1, 2002
and unless sooner terminated in accordance
with the provisions hereof, shall
expire at 12:00 midnight Eastern time on
November 30, 2006 (the "Term").
(b) HARDEE'S and the
Company agree that prior to six (6) months before
expiration of the Term, the parties shall
negotiate in good faith for a one (1)
year renewal (the "Renewal Term") of this
Agreement; provided, in the event the
parties are unable to mutually agree upon
the terms and conditions for the
Renewal Term at least one hundred and fifty
(150) calendar days prior to the
expiration of this Agreement, this
Agreement shall expire as of the original
Term, unless terminated earlier. For the
purposes of this Agreement, the term
"Term" shall be deemed to include any
Renewal Term.
(c) Every consecutive
twelve (12) calendar month period commencing on
February 1 during the Term shall be
referred to as a "Contract Year" with the
final period beginning on February 1 and
ending on November 30 (whether or not
the Renewal Term is included pursuant to
Section 9(b)) also being considered a
Contract Year except that the Volume
Requirement shall be adjusted pursuant to
Section 3(a) above.
10. TERMINATION
OF AGREEMENT.
(a) Either party may
terminate this Agreement at any time, effective
upon the other party's receipt of
termination notice, without prejudice to any
other legal rights to which the terminating
party may be entitled, upon the
occurrence of any one of the following:
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(i) Upon ten
(10) days written notice to the breaching party
describing with
detailed specificity a material breach of this Agreement
that is not
cured to the non-breaching party's satisfaction within such ten
(10) days
period.
(ii) upon a default by
a party in the payment of any monetary
obligation
payable to the other hereunder and such default continues for
ten (10) days
after the payee party gives the payor party written notice of
such
non-payment.
(iii) If any of the representations or warranties made by the
other party in
this Agreement or any of the Attachments shall prove to be
untrue or
inaccurate in any material respect.
(iv) The other party
(i) ceases to conduct its operations in the
normal course of
business; (ii) is unable to meet its obligations as they
mature; (iii)
makes an assignment for the benefit of creditors, or has
proceedings in
bankruptcy or insolvency brought against it; or (iv) applies
for or suffers
the appointment of a receiver.
(v) A party
provides a sixty (60) days written notice to the
other party, in
the event HARDEE'S makes significant specification changes
to, or deletes
from the menu of its HARDEE'S restaurants all of the items
listed in the DPS. In
the event of significant specification changes,
HARDEE'S will
allow the Company a reasonable opportunity to become an
approved
supplier of the newly defined item(s) upon mutually agreeable
terms.
Significant specification changes do not include size, shape,
weight
(provided no raw
cost increase without mutual pricing adjustment), minor
formulation or
minor production procedure changes; provided, such change
does not require
the Company to incur material re-tooling or line/machine
set up
costs.
(b) If, within a
reasonable time after having received a written
notice describing with specificity the
failure to comply with product
specifications, the Company continues to
fail to comply with product
specifications, HARDEE'S may terminate this
Agreement by providing the Company
thirty (30) days written notice. Following
such notice of termination, HARDEE'S
may return goods in inventory which fail to
comply with product specifications
for full reimbursement, due and payable by
the Company within seven (7) days of
the date of such return.
(c) Termination of
this Agreement for any reason provided herein shall
not relieve either party from its
obligation to perform up to the effective date
of termination or to perform such
obligations that may survive termination.
(d) Promptly following
the date of termination, the Company will
return to HARDEE'S and HARDEE'S will
purchase at cost any unused packaging and
labeling supplies and raw materials on
hand, and all finished products on hand
complying with the specification; provided,
the Company shall not be required to
return and HARDEE'S shall not be
responsible for purchasing more than sixty (60)
days worth of raw materials (including
packaging) and finished products, as
determined by the forecast submitted by
HARDEE'S, unless specifically directed
by HARDEE'S in writing to increase
inventory levels. The purchased raw materials
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and unused packaging and labeling supplies
shall be at the Company's cost and
the purchased finished products shall be at
the price set forth herein, all with
payment within seven (7) days after
return.
11.
MODIFICATION. This Agreement may be modified only by a written
agreement signed by both parties. This
Agreement amends, restates and supercedes
that certain Agreement pertaining to the
subject matter hereof executed by the
parties on December 1, 2002.
12.
INDEMNIFICATION.
(a) The Company shall
indemnify, defend and hold harmless HARDEE'S,
and its parent, affiliates, subsidiaries
and all of their respective officers,
directors, employees, agents,
representatives and stockholders, and any designee
or customer of HARDEE'S from and against
any and all losses, claims, actions,
damages, expenses or liabilities,
including, without limitation defense costs
and attorneys' fees, resulting from,
arising out of or connected with any or all
claims arising from (i) the use of the
products supplied by the Company and/or
services provided hereunder, including, but
not limited to, any claim for death
or personal injury or damage or loss of
property which shall have been caused
directly or indirectly in whole or in part,
by any negligence or misconduct on
the part of the Company, its shareholders
directors, officers, employees,
contractors or agents, any defect in the
materials or workmanship used to
manufacture the products, or any claim
under a theory of strict liability, or
(ii) the breach by the Company of any
representation, warranty, covenant or
obligation of the Company hereunder.
(b) HARDEE'S shall
indemnify, defend and hold harmless the Company and
its parent, affiliates, subsidiaries and
all of their respective officers,
directors, employees, agents,
representatives and stockholders from and against
any and all losses, claims, actions,
damages, expenses or liabilities,
including, without limitation defense costs
and attorneys' fees, resulting from,
arising out of or connected with any or all
claims arising directly or
indirectly from the negligence of HARDEE'S,
or its employees, agents, other than
the Company, including by reason of
improper storage or handling by HARDEE'S
agents, warehousemen, and common carriers
of products delivered by the Company
in a non-defective condition. HARDEE'S will
indemnify the Company from any loss,
expense or liability resulting from
recalling the Company's product without
proven cause and joint discussion with the
Company.
(c) In the event any
third party asserts any claim with respect to any
matter as to which any guarantee or
indemnity in this Agreement (or given
pursuant to this Agreement) relate, the
party against whom the claim is asserted
(the "Indemnified Party") shall give prompt
notice written to the other party
(the "Indemnifying Party"), and the
Indemnifying Party shall have the right at
its election to take over the defense or
settlement of the third party claim at
its own expense by giving prompt notice to
the Indemnified Party. If the
Indemnifying Party does not give such
notice and does not proceed diligently so
to defend the third party claim within 30
days after receipt of the notice of
the third party claim, the Indemnifying
Party shall be bound by any defense or
settlement that the Indemnified Party may
make to those claims and shall
reimburse the Indemnified Party for its
expenses related to the defense or
settlement of the third party claim.
Nothing in this Agreement shall be
construed to hold the Company liable for
any losses, claims, damages, expenses
or liabilities including, without
limitation, defense costs and
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attorneys' fees, to the extent such loss,
claim, damage, expense or liability
directly results from or arises out of
HARDEE'S or Distributor's misconduct or
negligence.
13. INSURANCE.
The Company shall furnish to HARDEE'S a current certificate
of insurance, which shall include a thirty
(30) day written notice of
cancellation to HARDEE'S evidencing the
Company has automobile, comprehensive
general liability, products liability and
workers' compensation insurance or an
equivalent. With the exception of workers'
compensation, all policies shall
include HARDEE'S, its parent, affiliates,
subsidiaries and franchisees as
additional insureds and shall include a
contractual liability endorsement to
cover the Company's indemnification
obligations hereunder. Such policies shall
state that coverage as it pertains to
HARDEE'S shall be primary regardless of
any other coverage which may be available
to HARDEE'S and shall be an occurrence
rather than a claims made basis.
(a) COMPREHENSIVE
AUTOMOBILE LIABILITY, INCLUDING OWNED AND NON-OWNED
AUTOS; BODILY
INJURY, AND PROPERTY DAMAGE: $3,000,000 per occurrence
(aggregate
primary and umbrella coverage).
(b) COMPREHENSIVE
GENERAL LIABILITY, WITH BROAD FORM PROPERTY DAMAGE,
COMPLETED
OPERATIONS, PERSONAL INJURY, INDEPENDENT CONTRACTORS AND
CONTRACTUAL
LIABILITY: $3,000,000 per occurrence (aggregate primary and
umbrella
coverage).
(c) WORKERS'
COMPENSATION: AT STATUTORY LIMITS WITH EMPLOYERS'
LIABILITY:
$1,000,000 per occurrence.
(d) The Company must
provide to HARDEE'S the Workers' Compensation
policy number
prior to commencing any work for HARDEE'S. It is the
responsibility
of the Company to notify HARDEE'S of any changes and/or
renewals to the
Workers' Compensation policy number. The Company shall
require all
subcontractors to maintain the required insurance. No work
hereunder shall
commence until above insurance is obtained, a certificate
is provided to
HARDEE'S and HARDEE'S has approved the certificate in
writing.
(e) PRODUCTS LIABILITY
INSURANCE: $3,000,000 per occurrence (aggregate
primary and
umbrella coverage).
14. ASSIGNMENT.
No assignment or subcontract hereof shall be made by either
party without the prior written consent of
the other party, and no delegation of
any obligation or of the performance of any
obligation by the Company shall be
made without the prior written consent of
HARDEE'S. Any attempted assignment or
delegation shall be void and ineffective
for all purposes unless made in
conformity with this paragraph. The terms
shall inure to the benefit of, and be
binding on, the successors and assigns of
the parties.
15. CAPTIONS. Captions and titles of
paragraphs contained herein are
for convenience only, and shall not be
construed to limit, expand or otherwise
change the meaning of any provision
hereof.
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16. FORCE
MAJEURE. Either party is excused from performance hereunder if
such non-performance results from any acts
of God, war, riots, acts of
governmental authorities, or any other
cause outside the reasonable control of
the non-performing party. Both parties
shall use their best efforts to terminate
or cause the expiration of any Force
Majeure as soon as practical following its
occurrence. If the Company cannot deliver
the Products in the amounts and on the
dates required by CKE during such Force
Majeure event, then CKE may obtain the
Products from the alternate vendors ("FDA
Vendors") set forth in Section 7 of
the Amended and Restated Formula
Development Agreement between the parties as of
even date herewith. If such FDA Vendors are
unable to deliver the Products in
the amounts and on the dates required by
CKE during such Force Majeure event,
then CKE may obtain Products from and
Company shall license and work with
alternate suppliers and test alternate
products. CKE's purchases from the FDA
Vendors and such alternate sources during
the Force Majeure event will count
towards the Volume Requirement as if
purchased from the Company.
17. GOVERNING
LAW. This contract and all Purchase Orders that may be issued
hereunder shall be construed in accordance
with, and governed by, the laws of
the State of Missouri, including the
Uniform Commercial Code, without reference
to laws or principles regarding choice of
laws. The parties consent to the
exclusive jurisdiction of the state and
federal courts of the State of Missouri
for the adjudication of matters arising out
of this Agreement; and neither party
will assert FORUM NON CONVENIENS with
respect to such venue. This Agreement, and
all Exhibits, are only valid if and when
duly signed by authorized
representatives of both parties. No third
party is authorized to amend or waive,
on behalf of HARDEE'S, any provision of
this Agreement.
18. LAWS AND
REGULATIONS. The Company shall comply with all applicable
laws, ordinances, rules and regulations
including federal, state and local
authorities and departments relating to or
affecting the Company and/or the
manufacture, sale or use of the goods or
services to be rendered hereunder,
including without limitation Title VII of
the Civil Rights Act, as amended from
time to time, and shall secure and obtain
any and all permits, licenses and
consents as may be necessary in connection
therewith.
19. PATENT,
TRADEMARK AND COPYRIGHT PROTECTION. The Company shall defend
and indemnify HARDEE'S, Distributor and
their parents, affiliates and
subsidiaries, and all of their directors,
officers and employees and hold them
harmless with respect to all patent,
trademark and copyright infringement
liability or expenses arising out of the
use or sale of the goods covered
hereunder, or any part(s) thereof, and
after notice appear and defend at its own
expense any such suits in law or equity,
except such trademarks or copyrights as
may be furnished to the Company by HARDEE'S
for use in connection with the
packaging of products pursuant to this
Agreement. If HARDEE'S is enjoined from
use of the goods by reason of infringement
of any patent, trademark or copyright
furnished by the Company, the Company
shall, at HARDEE'S option, either procure
for HARDEE'S the right to continue using
the goods, replace said goods with
non-infringing goods or parts thereof,
modify the goods so as to be
non-infringing or, if HARDEE'S elects,
repurchase the goods at the contract
price or terminate the order without
further liability to the Company.
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20. SEVERABILITY
AND CONSTRUCTION. Any provision used herein which is held
invalid or unenforceable by any authority
of competent jurisdiction shall be
ineffective to the extent of such
invalidity or unenforceability without
invalidation or rendering unenforceable the
remaining provisions hereof;
provided, however, that if such
modification would cause this Agreement to fail
in its essential purpose or purposes, it
shall be deemed terminated by mutual
agreement of the parties. If this Agreement
is terminated pursuant to this
provision, payment shall be made only to
the extent of a party's performance to
and including the date of termination, and
any payments which shall have been
made and which are applicable to future
time periods shall be refunded pro rata
to the effective date of termination. The
language used herein shall be deemed
to be the language chosen by the parties
hereto to express their mutual intent,
and no rule of strict construction shall be
applied against either party.
21.
SUBSTITUTIONS. No substitution of, nor alteration in any goods,
component parts thereof, tooling,
processes, or manufacturing sites may be made
without the prior written, or FAX, consent
from HARDEE'S.
22. SURVIVAL.
All warranties, representations, covenants and
obligations of the parties hereunder shall
survive the termination or expiration
of this Agreement.
23. USE OF LOGOS
AND MARKS. The Company shall not use, in any manner
whatsoever, any of the logos, trademarks,
or service marks owned by HARDEE'S or
associated with HARDEE'S restaurant system
without the prior written consent of
HARDEE'S. The Company expressly
acknowledges HARDEE'S exclusive right, title and
interest in and to such logos and marks,
and agrees not to represent in any
manner that the Company has any ownership
in HARDEE'S logos or marks.
24. WARRANTY AND
REGULATORY COMPLIANCE. The Company warrants that all goods
to be delivered hereunder will be of
merchantable quality, free from any latent
or patent defects, will strictly conform to
all of HARDEE'S specifications or
samples in all material respects and will
be fit and safe for their intended
use. The Company also warrants that the
Company shall be in compliance with all
applicable laws, regulations, rules and
ordinances, and warrants that the goods
shall comply with and shall not be
misbranded or adulterated under any and all
applicable federal, state and local laws,
rules, ordinances and regulations
(collectively "Laws"), including
specifically those Laws governing health and
food safety and the production, packaging,
storage, distribution and sale of the
goods. The Company also warrants that is
has the full and legal authority to
enter into and fully perform this Agreement
in accordance with its terms and
that the execution and delivery of this
Agreement has been duly authorized by
the Company.
25. EXPENSES.
Except as otherwise specifically provided in this
Agreement, each party shall be responsible
for any expenses incurred by such
party in carrying out its obligations
herein.
26. INDEPENDENT
CONTRACTOR. The parties shall be and act as
independent contractors, and under no
circumstances shall this Agreement be
construed as one of agency, partnership,
joint venture or employment between the
parties. Each party acknowledges and
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agrees that it neither has or will give the
appearance or impression of having
any legal authority to bind or commit the
other party in any way.
27. FAILURE TO
OBJECT. The failure of either party to object to or to take
affirmative action with respect to any
conduct of the other party which is in
violation of the terms hereof shall not be
construed as a waiver thereof, nor of
any future breach or subsequent wrongful
conduct.
28. NOTICES. All
notices, requests and approvals under this Agreement shall
be in writing and shall be deemed to have
been properly given if and when
personally delivered or sent certified
mail, postage prepaid, return receipt
requested, or twenty-four (24) hours after
being sent by standard form of
telecommunications, or thirty-six (36)
hours after being sent by Federal Express
or other overnight courier service
providing delive
