Supply Agreement - Rocky Mountain Bottle Co. LLC and Coors Brewing Co.
SUPPLY AGREEMENT
By and Between
ROCKY MOUNTAIN BOTTLE COMPANY, L.L.C.
and
COORS BREWING COMPANY
Effective Date: August 1, 2003
SUPPLY AGREEMENT
CONTENTS
|
|
| ||||
|
|
| ||||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
|
| ||||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
| ||||
|
|
| ||||
|
|
| ||||
|
|
| ||||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
|
|
|
| |||
|
| |||||
ii
|
|
| |||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
|
Diverse Suppliers (Minority or Women-Owned Business Enterprises). | |||
|
|
|
| ||
|
| ||||
|
|
| |||
|
|
| |||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
| |||
|
|
| |||
|
|
| |||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
iii
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
|
| |||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
| |||
|
|
| |||
|
|
| |||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
|
|
|
| ||
|
| ||||
iv
|
|
v
SUPPLY AGREEMENT
This Supply Agreement (“Agreement”) is made effective as of August 1, 2003, (the “Effective Date”) by and between ROCKY MOUNTAIN BOTTLE COMPANY, LLC, a Colorado limited liability company (“SUPPLIER”), and COORS BREWING COMPANY, a Colorado corporation (“COORS”); COORS and SUPPLIER may sometimes be referred to individually as a “Party” or collectively as the “Parties”.
NOW, THEREFORE, in consideration of the premises, the mutual promises, and the representations, warranties and covenants herein contained, the sufficiency of which is hereby mutually acknowledged, the Parties agree as follows:
ARTICLE 1. TERM
This Agreement shall be effective as of the Effective Date and shall remain in effect [*****]
ARTICLE 2. SUPPLIER PRODUCT OBLIGATIONS
2.1 Product Specifications.
SUPPLIER agrees to sell to COORS and COORS agrees to purchase from SUPPLIER, the products described on Exhibit A attached hereto (the “Products”) conforming to the specifications described on Exhibit B attached hereto (the “Specifications”). Products include those glass beverage containers that substitute for or replace the Products described on Exhibit A. For Specification changes requested by COORS for Products, COORS and SUPPLIER shall agree on the implementation of such changes,[*****] due to the Specification change. Subject to the limitations set forth in Section 3.6, in the event of a Specification change or modification, COORS shall purchase and pay for, at the then-effective Contract Price, all the Products manufactured to the previous Specifications.
2.2 New Products.
[*****]. If the Parties agree to add any New Products, Exhibits A, B and C shall be amended in writing accordingly.
6
2.3 Product Delivery and Sourcing.
SUPPLIER agrees to deliver, or cause to be delivered, the Products to COORS at designated destinations as identified on Exhibit A. [*****]
2.4 Alternate Sourcing.
[*****]
ARTICLE 3. COORS PRODUCT OBLIGATIONS
3.1 Product Volume.
Commencing on the Effective Date, SUPPLIER shall sell to COORS and COORS shall purchase from SUPPLIER in each calendar year, [*****], which shall be calculated as set forth on Exhibit E.
3.2 COORS Volume Authorization.
COORS authorizes SUPPLIER to maintain [*****] of Products to meet COORS’ forecasts (“Authorized Inventory Levels”). [*****]
3.3 COORS Failure to Purchase [*****].
COORS is obligated to purchase [*****] [*****]
7
[*****]
3.4 Estimates.
On approximately [*****], COORS shall provide SUPPLIER with COORS’ best estimate of COORS’ anticipated requirements for Products during the immediately [*****]
3.5 Product Inventory.
SUPPLIER is expected to maintain a sufficient inventory of Products to meet COORS’ requirements in the COORS [*****] that COORS will provide to SUPPLIER [*****]
8
[*****]
ARTICLE 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
SUPPLIER hereby agrees, represents and warrants to COORS that:
4.1 SUPPLIER shall furnish Products that: (a) are free from defects in workmanship and materials, (b) conform to the Specifications, (c) conform in quality and (d) will be fit for the purpose for which they are intended (i.e. that they shall be commercially acceptable containers for COORS’ products);
4.2 SUPPLIER shall convey good title to the Products and that the Products shall be delivered free of any lien or encumbrance;
4.3 The Products delivered hereunder shall be free of any chemical or residues of chemicals in excess of the permissible tolerance, if any, under any law or regulation of the Environmental Protection Agency (EPA), the Federal Food & Drug Administration (FDA), the U.S. Department of Agriculture (USDA), or any other local, state or federal governmental body having jurisdiction over packaging materials for foods and beverages for human consumption and that the Products delivered hereunder shall be free of all materials, substances or chemicals for which no tolerances have been established or permitted; and
4.4 [*****]
Article 5. QUALITY AND SERVICE
5.1 SUPPLIER shall comply with the service and quality performance requirements as specified on Exhibits F and G attached hereto (“Service Requirements”) for SUPPLIER performance ratings. [*****]
5.2 If SUPPLIER identifies Products that do not meet the requirements in Section 4.1 during its manufacturing process, SUPPLIER shall not ship such Products to COORS, [*****]
5.3 SUPPLIER shall not deliver any Products that have been previously returned as not being in conformance with Section 4.1 [*****]
9
[*****] COORS reserves the right to reject Products if the Products fail to comply with Section 4.1.
ARTICLE 6. CONSIDERATION
6.1 Contract Price.
COORS shall pay to SUPPLIER a sum of money determined in accordance with the schedule attached hereto as Exhibit C1 (the “Contract Price”). [*****]
6.2 Payment Terms and Invoices.
[*****] Statements shall be mailed to: Coors Brewing Company, Disbursements Department, PO Box 889, CE346, Golden, CO 80402-0889.
6.3 Agreement Binding on Subcontractors.
Any SUPPLIER subcontractors for the manufacture of Products under this Agreement shall agree to be bound by all applicable provisions of this Agreement. SUPPLIER shall ensure that any approved agent, representative, assign or subcontractor has executed an appropriate agreement prior to the commencement of work.
6.4 [*****]
[*****]
10
ARTICLE 7. COMPLIANCE
7.1 Government Regulations.
Unless otherwise exempt and to the extent applicable:
(a) the clauses required to be incorporated into government contracts under 41 C.F.R. Sections 60-1.4, 60-250.5(a), 60-741.5(a), 48 C.F.R. 22.810, 48 C.F.R. 22.1308, and 48 C.F.R. 22.1408 are incorporated into this Agreement by reference.
(b) SUPPLIER shall comply with all requirements of (i) Executive Order 11246, as amended, and the regulations issued thereunder, (ii) the requirements of Section 503 of the Rehabilitation Act of 1973 as amended, and the regulations issued thereunder, (iii) the requirements of Section 503 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1972, as amended, 38 U.S.C.§ 4212, Executive Order 11702, and all regulations thereunder, (iv) the reporting requirements set forth in 61 C.F.R. 61-250.10 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112; and (v) the requirements of 41 C.F.R. Chapter 60.
With respect to (v) above, SUPPLIER certifies that if it has fifty (50) or more employees and if it anticipates sales to COORS in connection with government contracts of $50,000 or greater, it will develop a written affirmative action compliance program for each of its establishments consistent with the rules and regulations by the Department of Labor at 41 C.F.R. Chapter 60.
7.2 General Laws and Permits. With respect to this Agreement, SUPPLIER shall (i) comply with any and all applicable federal, state, local or agency laws, regulations, rules, ordinances or other directives, and (ii) obtain all releases, licenses, permits or other authorizations required by any governmental body or authority.
7.3 Diverse Suppliers (Minority or Women-Owned Business Enterprises).
When and if SUPPLIER uses suppliers, including contractors and subcontractors, to supply goods and services for COORS’ benefit under this Agreement, SUPPLIER [*****], if such suppliers are both qualified and competitive. At any time, COORS may [*****], consistent with COORS’ diversity goals. A diverse supplier is a for-profit enterprise located in the United States or its trust territories, which is controlled, operated and 51 percent owned by a minority member or woman. Minority members are individuals who are African American, Hispanic American, Native American, Asian-Pacific American and Asian-Indian American. SUPPLIER will report [*****] on diverse suppliers on the form attached hereto as
11
Exhibit H each quarter, and report [*****] at the end of each calendar year.
7.4 WHAM Training.
Upon COORS’ request, SUPPLIER shall require all employees of SUPPLIER and its subcontractors to attend a Workplace Hazard and Awareness Management training seminar (“WHAM”) at such time and place designated by COORS prior to working at or on any of COORS’ facilities or property.
ARTICLE 8. INTELLECTUAL PROPERTY
8.1 Technology Agreement.
[*****]
8.2 Product Design.
All drawings, sketches, photography, renderings, artwork, aesthetic design and trade dress features (referred to collectively as “Product Design”) disclosed by COORS shall be COORS Property. [*****]
8.3 COORS Property.
All materials, inventions, know-how, trademarks, information, data, writings and other property in any form whatsoever, which are provided to SUPPLIER by or on behalf of COORS or which are used by SUPPLIER with respect to the performance of its obligations hereunder, and which were owned by COORS prior to being provided to SUPPLIER shall remain the property of COORS (“COORS Property”). SUPPLIER shall have the right to use [*****] any COORS Property supplied to it to the extent necessary to enable SUPPLIER to perform its obligations hereunder, but SUPPLIER shall not acquire any other right, title or interest in the COORS Property.
12
8.4 SUPPLIER Property.
All materials, inventions, know-how, trademarks, information, data, writings and other property, in any form whatsoever, which are provided to COORS by or on behalf of SUPPLIER, or which were owned by SUPPLIER prior to being provided to COORS, shall remain the property of SUPPLIER (“SUPPLIER Property”). Without limiting the generality of the foregoing, any intellectual property relating to the method, apparatus, or manufacturing process shall at all times remain SUPPLIER Property. COORS shall acquire no right, title or interest in SUPPLIER Property [*****].
8.5 Return of Documents and Things.
All COORS Confidential Information and COORS Property, made available to SUPPLIER by COORS or created or developed by SUPPLIER for COORS in accordance with paragraph 8.2 shall be delivered to COORS upon written request by COORS or upon the expiration or earlier termination of this Agreement.
8.6 No Reservation of Rights.
SUPPLIER represents that no rights are reserved to SUPPLIER which would interfere with (a) COORS’ use of Products purchased hereunder or (b) the use of Product Designs which are COORS Property or COORS Confidential Information hereunder.
8.7 Overruns and Second-Quality Goods.
Production overruns, second-quality goods, and any Products rejected or returned by COORS and bearing any of COORS trademarks, trade names, COORS Confidential Information, or COORS Property shall not be sold, distributed or used in any manner by SUPPLIER without the prior written consent of COORS.
8.8 Definitions.
For purposes of this Article 8.
(a) “COORS Confidential Information” includes trade secrets and other confidential and proprietary information of COORS, including without limitation, COORS’ formulas, techniques, and methods of manufacture and/or operation; product designs, drawings, specifications, prototypes and samples and results of research and development, including abandoned projects; intellectual property rights and Product Design, (as set forth in this Article 8); computer programs in source code or object code; costs of products; the prices it obtains or has obtained or at which it sells or has sold its products or services, including discounts; customer lists, including name, address, telephone number, customer contact, sales history and product mix; compensation paid to employees and other terms of employment; specialized equipment used in its processes; any other information which SUPPLIER may become privy to by reason of its relationship with COORS; any oral or written information from COORS involving the foregoing or other written information marked “confidential”; the terms and
13
conditions of this Agreement, the cost of the Products, all information and work product supplied by COORS to SUPPLIER, and the Contract Price.
(b) “SUPPLIER Confidential Information” includes trade secrets and other confidential and proprietary information of SUPPLIER, including without limitation, SUPPLIER’s formulas, techniques, and methods of manufacture and/or operation; products designs, drawings, specifications, prototypes and samples and results of research and development, including abandoned projects; intellectual property rights and Product Design, (except as set forth in this Article 8); computer programs in source code or object code; costs of products; the prices it obtains or has obtained or at which it sells or has sold its products or services, including discounts; customer lists, including name, address, telephone number, customer contact, sales history and product mix; compensation paid to employees and other terms of employment; specialized equipment used in its processes; any other information which COORS may become privy to by reason of its relationship with SUPPLIER; any oral or written information from SUPPLIER involving the foregoing or other written information marked “confidential”; the terms and conditions of this Agreement, the cost of the Products, all information and work product supplied by SUPPLIER to COORS, all information provided to SUPPLIER by COORS, and the Contract Price.
(c) “COORS” in this Article 8 means COORS and its parents, subsidiaries, divisions, affiliates, subcontractors and each of their employees, officers and agents.
(d) “SUPPLIER” in this Article 8 means SUPPLIER and its parents, subsidiaries, divisions, affiliates, subcontractors and each of their employees, officers and agents.
8.9 Covenant of Confidentiality.
Each Party, and their respective employees, officers, directors, representatives, subsidiaries, affiliates, assignees, subcontractors and any and all persons or business entities acting under one or any of them (the “Disclosees”): (a) shall keep confidential the terms of this Agreement, and (b) shall treat in confidence and not disclose to others any COORS Confidential Information or SUPPLIER Confidential Information (as defined here) of the other, which such Disclosees may have furnished to them by the other Party hereto or by any third party, or which such Disclosees may have accessed in the performance of this Agreement. The foregoing confidentiality obligation shall not apply to the extent that any such information is: (i) generally available to the public; (ii) acquired from a third party rightfully having such information and under no obligation to not disclose it to the Disclosees, (iii) already lawfully in the Disclosee’s possession from a source other than the Disclosing Party; (iv) approved by written authorization by the Disclosing Party for release by the Disclosee; or (v) developed by a Disclosee independently of any Confidential Information disclosed to such Party. [*****]
14
[*****]
8.10 Exclusions.
“Confidential Information” shall not include (i) information that is in the public domain through no act, omission or fault of SUPPLIER, (ii) Confidential Information that SUPPLIER is required to disclose pursuant to a court order, provided that SUPPLIER informs COORS of the court order and assists COORS in taking reasonable steps to seek a protective order or other appropriate action, and (iii) Confidential Information that SUPPLIER in good faith believes that SUPPLIER is required by law to disclose; provided, SUPPLIER shall first notify COORS of such good faith belief in writing and shall not make any such disclosure if COORS provides SUPPLIER with an opinion prepared by independent counsel for COORS that disclosure is not required by law [*****]
8.11 Breach of Confidentiality.
SUPPLIER acknowledges and agrees that its breach, or alleged breach, of this Article 8 relating to COORS Confidential Information may result in irreparable harm to COORS. [*****] Therefore, in the event of a breach, or alleged breach, of the provisions of this Article 8 by SUPPLIER, [*****]
ARTICLE 9. INSURANCE
Insurance requirements specified in Section 6.13 of the Operating Agreement shall apply, but are not in addition to, this Agreement.
ARTICLE 10. BREACH, FORCE MAJEURE, REMEDIES AND TERMINATION
10.1 Breach.
The occurrence of any one or more of the following events shall constitute an event of default of this Agreement and shall constitute cause for termination by the other Party:
(a) Failure by SUPPLIER to observe or perform any of the material obligations, covenants, conditions, representations or warranties required of SUPPLIER pursuant to this Agreement, where such failure is not remedied within [*****] after written notice thereof from COORS to SUPPLIER; or
(b) Failure by COORS to observe or perform any of the material obligations, covenants, conditions, representations or warranties required of COORS pursuant to this Agreement, where such failure is not remedied within [*****] after written notice thereof from SUPPLIER to COORS; or
15
(c) If a Party is insolvent, the Party seeks protection from creditors, the Party makes a general assignment for the benefit of creditors, or a person or entity commences a proceeding against a Party under any bankruptcy or insolvency statute seeking the adjudication of that Party as bankrupt or insolvent or the appointment of a trustee or receiver for all or substantially all of the Party’s assets, which proceeding remains undismissed or undischarged for [*****]
10.2 Force Majeure.
(a) The Events. Notwithstanding anything contained in this Agreement to the contrary, each Party shall be relieved of its obligation to perform any part of this Agreement to the extent its performance is prevented or rendered impracticable by events beyond its reasonable control, which events may include, without limitation, fire, storm, flood, earthquake, and other Acts of God, and explosion, accident, acts of the public enemy, riots and other civil disturbances, sabotage, court injunctions (other than any injunction imposed as a result of the Party’s actual or alleged breach of any agreement), transportation embargoes, shortages of materials, [*****] acts, regulations or other requirements of domestic or foreign federal, state, county, municipal, or local governments or branches, subdivisions or agencies thereof (“Force Majeure”), subject to the various limitations provided in this Section 10.2.
(b) Notice. Each Party will promptly notify the other Party of the occurrence of any Force Majeure which may affect its performance of this Agreement and the anticipated length of the Force Majeure. [*****]
(c) Rights.
[*****]
16
[*****]
[*****]
(d) Termination Because of Force Majeure. [*****]
10.3 Remedies.
(a) In addition to any remedies available to COORS as provided herein, [*****]
(b) Upon the occurrence of an event of default by SUPPLIER, COORS shall have the following remedies:
17
(i) [*****]
(ii) [*****]
(iii) [*****]
(c) [*****]
(d) Upon the occurrence of an event of default by COORS, SUPPLIER shall have [*****]
(e) [*****]
10.4 Termination.
[*****]
10.5 [*****]
[*****]
18
[*****]
ARTICLE 11. DISPUTE RESOLUTION PROCEDURES
11.1 Negotiation.
In the event of any controversy, claim, question, disagreement or dispute considered by the RMBC Management Committee established in the Operating Agreement (collectively the “Dispute”) arising out of or relating to this Agreement, or the relationship between the Parties, the Parties shall first use their best efforts to resolve the Dispute through negotiation. During negotiation, the Parties shall, without delay, continue to perform their respective obligations under this Agreement that are not related to the Dispute. To invoke the dispute resolution procedures set forth in this Article, the invoking Party shall give to the other Party written notice of its decision to negotiate. The notice shall include a detailed description of the issues subject to the Dispute and a proposed resolution thereof. Within five (5) business days after the written notice has been received by the other Party, both Parties shall designate representatives to settle the Dispute. The designated representatives shall be the chief corporate executive officers (“CEO”) of their respective corporations or other individuals holding comparable executive positions with decision-making authority to settle the Dispute without further ratification by the Parties. The designated representatives shall consult and negotiate with each other in good faith and attempt to reach a just and equitable resolution satisfactory to both Parties within fifteen (15) business days after the deadline for designation of the representatives. If those designated representatives do not timely resolve the Dispute through negotiation, the Dispute may be submitted to resolution pursuant to Section 11.2.
11.2 Mediation.
If the Dispute is submitted to mediation, the Parties agree that the mediation will be administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules. Mediation shall take place in Denver, Colorado, and any fees and expenses shall be allocated and paid by the Parties equally. If the Parties do not resolve the Dispute through mediation within thirty (30) days from the date the demand is made, the Dispute shall be submitted to arbitration in accordance with Section 11.3.
19
11.3 Submission to Arbitration.
If the Parties do not resolve the Dispute pursuant to Sections 11.1 or 11.2, the Parties hereby agree to submit the Dispute to binding arbitration in Denver, Colorado, in accordance with the AAA Commercial Arbitration Rules effective at the time of submission. This submission and agreement to arbitrate shall be specifically enforceable in the U.S. District Court for the District of Colorado or the District Court, Jefferson County, State of Colorado. In the event either Party seeks relief in any court to enforce this Article, that Party shall be entitled to its reasonable attorneys’ fees and costs incurred with such enforcement. Arbitration may proceed in the absence of either Party if notice of the proceedings has been given to such Party.
11.4 The Federal Arbitration Act Applies.
This Agreement involves interstate commerce and is subject to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. The FAA preempts any inconsistent state or local law, rule or regulation concerning arbitration.
11.5 Selection of Arbitrator(s).
All Disputes shall be resolved by a single arbitrator unless the amount in controversy is over $500,000, in which case the Dispute shall be decided by a panel of three arbitrators. The Parties shall exchange one or more lists of neutral arbitrators that they consider suitable and shall mutually agree upon the arbitrator(s). If the Parties are unable to reach agreement on the selection of the arbitrator(s) within fifteen (15) days from the date of the arbitration demand, the AAA shall choose as many arbitrators as necessary.
11.6 Discovery In Arbitration.
Each Party shall have the same discovery rights as afforded under the Federal Rules of Civil Procedure during arbitration.
11.7 The Arbitration Award.
The arbitrator(s) shall provide a binding decision with limited findings of fact, basic conclusions of law and a break down of damages to the Parties in support of any award or decision the arbitrator(s) make(s). The prevailing Party, as determined by the arbitrator(s), shall be entitled to all fees and costs associated with the arbitration. Costs and fees mean all reasonable pre-award expenses of the arbitration, including any arbitrator fees, administrative fees, out-of-pocket expenses such as copying, court costs, witness fees, and attorneys’ fees. The Parties agree to abide by all awards rendered in such proceedings and such awards shall be final and binding on all Parties. All awards payable to COORS as a prevailing Party shall be paid in full within thirty (30) days of the date of the award order.
[*****]
20
11.9 Confidentiality.
All proceedings pursuant to this Article shall be confidential. Any admission or statement made pursuant to this Article shall not be admissible or used in any arbitration or judicial proceeding, except to enforce or vacate the arbitration award pursuant to Section 11.7.
ARTICLE 12. NOTICES
Any notice, demand, consent, election, offer, approval, request, invoice backup documentation or other communication (collectively, a “notice”) required under or provided pursuant to this Agreement must be in writing and either delivered personally, sent by overnight delivery courier, or sent by certified or registered mail, postage prepaid, return receipt requested to the person designated below (the “Designated Representative”). Notice shall be deemed given when received.
A notice must be addressed as follows:
|
To SUPPLIER: |
|
Rocky Mountain Bottle Company, LLC |
|
|
|
Attention: Vice President and General Manager |
|
|
|
10619 West 50th Avenue |
|
|
|
Wheat Ridge, CO 80033 |
|
|
|
Telephone number: 303-425-7965 |
|
|
|
|
|
With a copy to: |
|
Owens-Brockway Glass Container Inc. |
|
|
|
Attention: Legal Department |
|
|
|
One SeaGate |
|
|
|
Toledo, OH 43666 |
|
|
|
Telephone number: 419-247-5000 |
|
|
|
|
|
To COORS: |
|
Coors Brewing Company |
|
|
|
Coors Designated Representative |
|
|
|
Attention: [*****] |
|
|
|
Manager, Strategic Sourcing |
|
|
|
17755 West 32nd Avenue, CE240 |
|
|
|
Golden, CO 80401-0030 |
|
|
|
Telephone number: 303-277-6181 |
|
|
|
|
|
With a copy to: |
|
Coors Brewing Company |
|
|
|
Attention: Assistant General Counsel, Operations |
|
|
|
311 Tenth Street, NH335 |
|
|
|
Golden, CO 80401-0030 |
|
|
|
Telephone number: 303-277-3002 |
21
ARTICLE 13. MISCELLANEOUS
13.1 Authority.
Each Party warrants that it has the full authority and power to enter into and perform under this Agreement and to make all representations, warranties and grants as set forth herein.
13.2 Survival.
All covenants, indemnities, guarantees, representations, and warranties by a Party arising prior to or upon the expiration or termination of this Agreement (whether by completion or earlier termination) shall survive such expiration.
13.3 Enforceability.
Either Party’s failure in any one or more instances to insist upon strict performance of any of the terms and conditions of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment of that right or of that Party’s right to assert or rely upon the terms and conditions of this Agreement. Any express waiver of a term of this Agreement shall not be binding and effective unless made in writing and properly executed by the waiving Party.
13.4 Amendments.
This Agreement, including Exhibits, may not be amended except in writing properly executed by both Parties. Except as specifically amended, this Agreement shall remain in full force and effect as written.
13.5 Assignment.
SUPPLIER shall not have the right or power to assign its rights or delegate its obligations hereunder without the express written consent of COORS. Any attempt to do so without such consent shall be null and void and shall permit COORS the right to cancel and terminate this Agreement. In the event this Agreement is properly assigned, the provisions of this Agreement shall bind and benefit the Parties hereto and their representatives, successors and assigns.
13.6 Severability.
Any invalid or unenforceable provision shall be deemed severed from this Agreement to the extent of its invalidity or unenforceability, and the remainder of this Agreement shall remain in full force and effect.
13.7 Complete Agreement.
With respect to the subject matter hereof, this Agreement, and all Exhibits thereto, constitute the complete and exclusive agreement between the Parties. It supersedes all prior written and oral statements, conditions, obligations, representations or warranties. In the event of any inconsistency between this Agreement and any Exhibit, the provisions of this Agreement shall take precedence.
22
13.8 Counterparts. This Agreement may be executed simultaneously in two or more counterparts which, when taken together, shall be deemed an original and constitute one and the same document. The signature of any Party to the counterpart shall be deemed a signature to this Agreement, and may be appended to, any other counterpart. Facsimile transmission of executed signature pages shall be sufficient to bind the executing Party.
13.9 Headings.
The headings to the various sections and paragraphs of this Agreement are solely for the convenience of the Parties, are not part of this Agreement and shall not be used for the interpretation of the validity of this Agreement or any provision hereof.
13.10 Jurisdiction And Venue; Choice Of Law.
This Agreement shall be governed by the laws of the state of Colorado. Any arbitration or enforcement of an arbitration award shall be brought in Jefferson County District Court, State of Colorado or the U.S. District Court for the District of Colorado, if appropriate, and each Party submits to the exclusive jurisdiction of said courts and waives the right to change venue. SUPPLIER further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the year and day first written above.
|
ROCKY MOUNTAIN BOTTLE |
COORS BREWING COMPANY, a | ||||||||
|
|
| ||||||||
|
|
| ||||||||
|
By: |
|
|
By: |
| |||||
|
Lynn Utter |
Robert K. Caseria | ||||||||
|
|
| ||||||||
|
Title: |
Manager |
|
Title: |
Chief Supply Chain Officer | |||||
|
|
| ||||||||
|
Date: |
|
|
Date: |
| |||||
23
*****EXHIBITS A THROUGH H REDACTED
24