Document 6436846

This Master Supply Agreement constitutes a legally binding contract. The parties acknowledge, however,
that this Agreement merely sets forth terms and conditions of the purchase of goods by Buyer from
Vendor, if any, and does not create any obligation for Buyer to purchase any specific type of goods or
make any minimum quantity of purchases from Vendor or grant to Vendor any exclusivity in its
relationship with Buyer.
MASTER SUPPLY AGREEMENT
This Master Supply Agreement (“Agreement”) is entered into effective as of ____________ ____,
20____ (the “Effective Date”), by and between Dolgencorp, LLC, with offices at 100 Mission Ridge,
Goodlettsville, Tennessee 37072 (“Buyer”), and the following vendor:
[Insert full name of vendor entity]
[Insert street address of vendor]
[Insert city, state and zip/postal code for vendor]
[Country]
(“Vendor”)
Background
Buyer and/or its affiliates operate a network of retail stores operating under the Dollar General® service
mark. Vendor is a manufacturer/supplier of merchandise that is of the type sold in such stores. Subject to the
terms and conditions of this Agreement, the parties desire that Vendor sell, and Buyer purchase, certain
merchandise for resale in Dollar General® retail stores.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties agree as follows:
1.
Code of Conduct and Corporate Social Responsibility Standards.
1.1
Code of Conduct. Vendor acknowledges that Buyer (i) desires to conduct business only with
vendors that conduct business in accordance with Buyer’s ethical values, (ii) has a no tolerance policy towards
bribery and corruption and (ii) Buyer has adopted a Code of Business Conduct and Ethics which, as amended
from time to time, addresses many important ethical issues, such as gifts, entertainment, business courtesies,
vendor paid travel expenses, conflicts of interest, and anti-corruption laws (the “Code”). The current version of
the Code is available at: http://www.dollargeneral.com under Investor Information/Corporate Governance. .
These standards extend to all of Buyer’s business dealings and transactions in all countries in which it or its
affiliates or associates operate. Vendor hereby covenants, represents and warrants that: (1) it has read and
understands the Code; and (2) it will not engage in any conduct that (a) violates the Code, or (b) encourages or
tempts an employee or agent of Buyer to violate the Code.
1.2
Corporate Social Responsibility Standards. In addition to any other obligation that Vendor
may have pursuant to this Agreement or otherwise, Vendor represents, warrants and covenants that the
products that it provides to Buyer will be manufactured only in accordance with Buyer’s social accountability
standards, including, but not limited to the following:
No Child Labor: All employees engaged in the production of products for Buyer must be at
least 16 years of age, or the age required by applicable law if higher.
No Forced Labor: Vendor will not use involuntary or forced labor.
No Harassment or Abuse: Vendor will not tolerate or condone physical, sexual, psychological
or verbal harassment or abuse of any Vendor employee.
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No Discrimination: Vendor employees must be employed, paid, promoted and terminated
based on occupational ability and not based on personal characteristics or beliefs.
Fair Compensation: Vendor will fairly compensate its employees, providing wages and
benefits that comply with the local and country laws.
Appropriate Working Hours: Vendor will comply with all applicable legal limits for working
hours. Vendor will not permit its employees to work more than six consecutive days.
Commitment to Health and Safety: Vendor will demonstrate commitment to the health and
safety of employees to prevent accidents and injury occurring in the course of work.
Safe Housing: If Vendor provides residential housing for employees, Vendor must ensure the
housing is healthy and safe.
1.3
Obligation to Report Violations or Suspected Violations. If Vendor or its employees
suspects or identifies a violation, or potential violation, of the Code or social responsibility or other applicable
standards, (whether by an employee of Buyer or otherwise), Vendor must immediately report such violation or
potential violation to Buyer’s Whistleblower hotline at 1 (800) 334-9338 (US) or 1 (800) 962172 (Hong Kong).
2.
Scope of Agreement. This Agreement shall apply to and control, and shall be deemed incorporated
into, all agreements relating to the purchase of Products (as defined below) by Buyer from Vendor, including
without limitation, all forms of purchase orders issued to Vendor by Buyer whether issued through EDI (as
defined below) or otherwise, and any allowance agreements between Buyer and Vendor now existing or entered
into hereafter. This Agreement sets forth the entire agreement between Vendor and Buyer with respect to the
sale and purchase of Products. No terms or conditions in any acceptance, acknowledgement, invoice or other
document submitted by Vendor which are in conflict with, different from, or in addition to this Agreement shall be
binding upon Buyer unless expressly agreed to in writing by a duly authorized officer of Buyer.
3.
Definitions. Defined terms used, but not otherwise defined, in this Agreement shall have the meanings
ascribed to them in this Section.
3.1
“Branded Product” means a Product that is not a Private Label Product.
3.2
“EDI” means electronic data interchange of Orders, acknowledgements and other documents
related to the purchase of Products.
3.3
“Laws” means all federal, state and/or provincial, regional, municipal, and local laws, codes,
regulations, rules, ordinances, decrees, permits, registrations and orders, including without limitation, the
Consumer Product Safety Act, the Federal Hazardous Substances Act, Toxics in Packaging Act(s), Federal
Insecticide, Fungicide and Rodenticide Act, the Nutrition Labeling and Education Act, the Poison Prevention
Packaging Act, Robinson-Patman Act or similar law, environmental, health and safety laws, and employment
and labor laws in any way governing, addressing, impacting or relating to the Products or the operation and
conduct of Buyer’s or Vendor’s business.
3.4
“Marks” means the marks and other proprietary indicia of Buyer and/or its affiliates and/or
licensors, including (without limitation) the following trademarks: Dollar General, Clover Valley, DG
Guarantee, DG Everyday, DG Health, DG Home and DG Value.
3.5
“Order” means a written purchase order for Products signed by an authorized representative
of Buyer and/or an electronic order for Products issued through Buyer’s EDI system.
3.6
“Product(s)” means merchandise ordered by Buyer pursuant to this Agreement as set forth in
the applicable Order. For purposes of this Agreement, the term Product shall include the applicable
merchandise as well as the packaging in which such merchandise is displayed or sold at retail.
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3.7
“Product Literature” means any performance and promotional claims, instructions for
installation and use, other product literature, and published warranties authorized by Vendor for each Product.
3.8
“Private Label Product” means a Product that bears a Mark.
3.9
“Specifications” means the specifications set forth in: (i) the applicable Order, (ii) any
applicable standard product specifications provided by Buyer, or otherwise made available, to Vendor
(including, without limitation, standards available through Buyer’s vendor portal), and (iii) the quote sheet that
was completed and submitted to Buyer by Vendor in connection with the applicable Products. In the event of a
conflict among any of the foregoing documents, they shall take precedence in the order listed above.
4.
Orders; Acceptance; Terms of Sale.
4.1
Orders. During the term, and subject to the terms and conditions, of this Agreement, Buyer
may issue one or more Orders from time to time in its discretion. Any Order for Products must either be: (i) a
written order for Products signed by an authorized representative of Buyer, or (ii) an electronic order for
Products issued through Buyer’s EDI system. Vendor is solely responsible for any technical upgrade costs or
other similar expenses related to EDI processes which may be necessary for Vendor to communicate with
Buyer’s EDI system. Vendor shall not ship any Product to Buyer unless and until Vendor first receives a
written or electronic Order issued by Buyer. Buyer will not be responsible or liable for the payment, return
shipment and/or disposition of any Product shipped without a written or electronic Order. Vendor
acknowledges and agrees that any forecasts, estimates or other projections that it receives from Buyer are
provided merely for the convenience of Vendor and shall not: (a) constitute an Order, or (b) otherwise impose
any obligation or liability on Buyer in any manner whatsoever. Further, in no event will an e-mail or other
communication, regardless of its content, that is not a signed paper purchase Order, or electronic Order
issued via Buyer’s EDI system, constitute an Order for purposes of this Agreement, nor shall Buyer
and/or its affiliates have any obligation or liability with respect to such an e-mail or other
communication.
4.2
Acceptance. An Order shall be deemed accepted by Vendor upon the occurrence of the
earliest of: (i) Vendor’s acknowledgement of receipt of such Order, either electronically or otherwise in writing
with no changes, exceptions or additions to Order by Vendor; (ii) Vendor’s acknowledgment of receipt of such
Order, either electronically or otherwise in writing with changes, exceptions or additions accepted in writing by
an authorized representative of Buyer; (iii) Vendor’s failure to reject such Order in writing within three (3)
business days following receipt of such Order; or (iv) Vendor’s commencement of manufacture and/or
shipment of the Products described in such Order. No oral agreement or other understanding shall in any way
modify, amend or extend an Order or any terms and conditions thereof.
4.3
Shipping and Terms of Sale. Unless otherwise specified in this Agreement, Products must be
shipped as specified by Buyer in the applicable Order. Title and risk of loss to Products shall pass to Buyer
upon delivery of properly packed Products accompanied by suitable shipping documents to Buyer or its
designee or, if different, as specified in the applicable Order. Buyer shall have the right to refuse, without
liability or obligation, any Product that is not a complete Order or that is not otherwise delivered in accordance
with the requirements of this Agreement. Vendor shall not make partial shipments of any Order without the
written consent of Buyer. TIME IS OF THE ESSENCE FOR EACH ORDER. In the event of any early or late
shipment, Buyer may, in its sole discretion, (i) cancel all or any portion of the applicable Order, (ii) reject and
return all or any portion of the Products to Vendor at Vendor’s expense, and/or (iii) accept and pay for (based
upon the unit price of the Product ordered) all or any portion of the Products actually received. If shipment of
Products is not completed by the date set by Buyer, Buyer reserves the right, without liability and in addition to
its other rights and remedies at law, in equity or under the terms of this Agreement, to purchase elsewhere and
hold Vendor liable for any additional loss, cost, damage or expense incurred thereby. Vendor shall pay any
loss, cost, damage or expense resulting from the untimely delivery of the Products.
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5.
Product Standards.
5.1
General. Subject to the terms and conditions of this Agreement, Vendor shall manufacture,
package, sell and deliver such Products as Buyer may designate in an Order(s) from time to time. All Products
manufactured or provided to Buyer under this Agreement shall be of such quality and have such other attributes
such that they meet the requirements of the applicable Order, this Agreement and any applicable Specifications.
Without limiting the foregoing, Vendor shall ensure that all Products are free from any defects or other faults in
design, workmanship, and materials and that they conform to any pre-production samples approved by Buyer;
under no circumstance will Vendor change: (i) the location of the manufacturing facility, (ii) the ingredients,
formulation, packaging or components of a Product, or substitute any Product or other item for a Product
ordered by Buyer without Buyer’s prior written consent.
5.2
Packaging and Labeling.
5.1.1 Branded Product Packaging. All Branded Products shall be packaged using
specifications prepared by Vendor that comply with all applicable Laws; provided, however, that, upon request
of Buyer, packaging for Branded Products shall be subject to Buyer’s approval, which shall not be unreasonably
withheld. All costs directly or indirectly associated with Vendor's packaging artwork arrangements shall be
wholly borne by Vendor. Vendor hereby grants Buyer a non-exclusive license to use any trademark, trade
name, service mark or copyright on the Products and all related packaging, labeling and other printed matter for
purposes of promoting and selling the Products.
5.1.2 Private Label Product Packaging. Subject to the terms and conditions of this
Agreement, all Private Label Products shall be packaged using artwork accepted in writing by Buyer before
production. Vendor’s packaging shall be of sufficient quality to ensure that Products arrive at the applicable
retail location without damage. Vendor shall arrange for the preparation of all packaging artwork, including
design and labeling and color cylinders to print the artwork, using one of Buyer’s approved artwork vendors (as
designated by Buyer) no later than fourteen (14) days after Buyer has approved artwork. All costs directly or
indirectly associated with Vendor's packaging artwork arrangements shall be wholly borne by Vendor. In the
event Buyer terminates this Agreement for convenience (without cause) pursuant to Section 7.2 below, Buyer
shall purchase from Vendor (at Vendor’s actual and documented out of pocket acquisition cost), as the full
measure of damages and in complete satisfaction of Buyer’s liability and obligations under this Agreement, a
reasonable quantity of packaging materials bearing Buyer’s Mark(s) actually held in Vendor’s inventory to
package Products, but not more than the average quantity of packaging for each SKU of Product ordered by
Buyer during each month of the three month period ending on the date of termination. Notwithstanding the
foregoing, Buyer shall have no obligation to purchase any packaging material suitable for use by Vendor in
packaging items for other Vendor customers.
5.1.3 Labeling. All Products shall be labeled by Vendor and bear such information as
required by and in accordance with all applicable Laws relating to each such Product. Labeling shall include,
without limitation, coding necessary to identify the Vendor, production location, line, production date, lot
number and open code expiration date. Buyer's approval of the packaging and label is expressly limited to the
style or appearance of the packaging, and does not certify that the packaging and label conform to governmental
requirements, which shall be the sole responsibility of the Vendor.
5.2
Product Testing. Vendor, at its sole cost and expense, shall perform, or cause to be
performed, all tests on the Products (i) required by the United States Consumer Product Safety Commission,
Food and Drug Administration, Department of Agriculture or any other federal, state or local governmental
agency or authority having jurisdiction, and (ii) any other testing necessary or appropriate to demonstrate
compliance with any applicable Laws (which, for purposes of this Section, includes any pending law that
would reasonably be expected to become applicable to the Products) and any applicable industry voluntary
standards. Such tests shall be conducted by laboratories acceptable to Buyer and, if applicable, to the agency or
authority requiring the same. At Buyer’s option, upon written notice to Vendor, Buyer may perform or have
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performed any acts necessary to satisfy the requirements of this subsection at Vendor’s expense, which expense
may be credited against any amounts owed by Buyer to Vendor. Vendor shall provide sample Products for
testing as requested by Buyer, and Vendor shall otherwise cooperate in the testing of Products. Buyer shall be
under no obligation to purchase or otherwise accept any Product that does not meet the requirements set forth
in this Agreement.
5.3
Documentation. Vendor shall obtain and maintain, at its sole cost and expense, all permits,
licenses, certifications and registrations required by all applicable Laws to provide the Products contemplated
herein. Upon request of Buyer, Vendor agrees to provide Buyer at no charge with copies of any and all (i)
certificates of insurance evidencing insurance coverage as required pursuant to Section 10 of this Agreement,
within ten (10) days of executing this Agreement and annually as updated, (ii) Material Safety Data Sheets
applicable to the Products, (iii) certificates evidencing passing test results applicable to any Product(s) and/or
any additional certificates as required by all applicable Laws, including, but not limited to any General
Conformity Certificate (GCC), (iv) Toxics in Packaging Certification (v) Product test results, (vi) licenses and
permits necessary or appropriate for compliance with all Laws under this Agreement, and (vii) such other
information and/or certification(s) as Buyer may request. Vendor shall upload all required documentation to
Buyer’s vendor portal, or provide to Buyer through other means specified by Buyer.
5.4
Facility Inspections. Buyer or its designee may from time to time inspect Vendor’s facilities
(and the facilities of its third party manufacturers) to verify that the Products are of appropriate quality and
otherwise meet the requirements of this Agreement and that such facilities meet Buyer’s social accountability
and safety standards, as amended and published to Buyer’s vendors from time to time. Buyer shall be under no
obligation to purchase or otherwise accept any Product that is produced (whether in whole or in part) in a
facility that does not meet Buyer’s social accountability or safety standards, as amended and published to
Buyer’s vendors from time to time.
5.5
Recalls. In the event of any voluntary or mandatory recall of a Product (regardless of who
initiates the recall): (i) Buyer reserves the right to use any reasonable means necessary to remove the applicable
Products from sale, and (ii) Vendor shall reimburse Buyer for all costs and expenses associated with the recall,
including, but not limited to, attorneys' fees, Product retail price, transportation, destruction/disposal costs and
allocable overhead. Vendor shall provide Buyer with no less than 24-hour written notice prior to the public
announcement of any recall or safety-related issues in connection with the Products. Such notification shall
include (without limitation) all of Buyer’s item numbers affected by the recall, expected inventory levels
affected, and a detailed description of the nature of the public announcement. Notwithstanding any limitations
of liability elsewhere in this Agreement, Vendor shall be liable to Buyer for any losses incurred by Buyer,
regardless of type, with respect to any recalled Product, including (without limitation) lost profits in connection
therewith.
6.
Payment.
6.1
Pricing. Unless otherwise agreed to in writing by the parties and except as otherwise
expressly set forth in this Agreement, prices for Products shall be as set forth on the applicable Order. All
prices are expressed in USD. The prices specified in this Agreement are not subject to any additional charges
(i) for packing or preparation for shipment, (ii) because of increased costs of operation or materials, (iii)
because of any taxes or excises levied on processors, manufacturers, wholesalers or (iv) for any other reason.
Prices herein are guaranteed by Vendor against Vendor’s own price decline and against legitimate competition
until date of shipment. In the event that within ninety (90) days after final shipment under any Order, Vendor
sells, or offers to sell to others, merchandise substantially similar to any Product purchased pursuant to this
Agreement at a lower price and/or on terms more favorable to a third party than those stated in this Agreement
and/or the applicable Order, the prices and/or terms herein shall be automatically revised to equal the lowest
prices and or most favorable terms at which Vendor shall have sold or shall have offered such merchandise and
payments shall be made accordingly. In the event that Buyer shall become entitled to such lower prices, but
shall have made payment at any price in excess thereof, Vendor shall promptly refund the difference in price to
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Buyer, or, in Buyer’s sole discretion, Buyer may deduct such amounts from Vendor’s outstanding invoices or
set off against Vendor’s account for any Products on hand or in transit at the time of the reduction. In the event
that a court or regulatory agency or body finds that the prices herein are in excess of that allowed by any Law,
the prices herein shall be automatically revised to equal a price which is not in violation of said Law. If Buyer
shall have made payment before it is determined that there has been a violation, Vendor shall promptly refund
an amount of money equal to the difference between the price paid for the merchandise and a price which is not
in violation of said Law. In addition, without limiting any other provision of this Agreement, Vendor agrees
that during all shortages, prorates, and/or other sales restrictions Buyer shall receive prompt notice and its equal
and fair share of Product at same prices and on the same terms as offered for sale by Vendor to others. Without
limiting the foregoing, under no circumstances will the price for a Product that is Ordered within one (1) year
of Vendor’s submission of a quote sheet for such Product be higher than the price set forth in such quote sheet.
6.2
Charge-Backs. Buyer’s obligations to make payments to Vendor pursuant to the Order shall
be subject to (i) any markdown, return or damaged goods allowance, advertising allowance, trade discount,
new store discount, reserve or any other allowance, discount or reserve normally set by Buyer in the course of
Buyer’s business and applicable to merchandise vendors, (ii) full credit for any Products that are defective or
otherwise do not meet the requirements of this Agreement, (iii) full credit for any Products that Buyer
determines are damaged prior to arriving at the applicable retail store as a result of improper packaging or
handling by Vendor, (iv) any handling or administrative fee charged by Buyer for the handling of nonconforming Products or shipments, (v) any applicable flat rate vendor performance charge backs as described
in “Schedule of Chargebacks” Section of Vendor Guidelines, and (vi) any late shipment penalty charges.
Buyer reserves the right to deduct from any amount due to Vendor for Products ordered any amount Vendor
owes Buyer with respect to any claims of any nature whatsoever in favor of Buyer against Vendor, whether or
not related to the Order and whether now existing or hereafter arising, and any assignee of Vendor’s right to
payment hereunder shall be subject to Buyer’s right under this Section. Receipt by Vendor of a payment that
reflects the taking by Buyer of offsetting credits is an acknowledgment by Vendor of the validity of the setoffs
or credits taken unless Vendor contests the setoffs or credits in writing or through EDI and, in either event,
within the earlier to occur of (i) thirty (30) days of Vendor’s receipt of such payment or (ii) thirty (30) days of
Vendor’s receipt of notice of Buyer’s intent to take such setoffs or credits.
6.3
Taxes. Except as otherwise provided herein, and unless prohibited by statute, Vendor shall
pay any Federal, State or local use tax, transportation excise tax, or other tax which may be imposed in
connection with the performance of the Order. If any manufacturer’s excise tax, or any part thereof, is
refunded to Vendor, then Vendor shall immediately pay Buyer the amount of such refund. For Products
purchased by Buyer for resale, Buyer acknowledges that it holds valid resale numbers in all states where Buyer
is licensed to do business (excluding states not recognizing sales for resale as sales tax exempt), and Vendor
shall furnish Buyer, when required by law, to the attention of Buyer’s Tax Department, the appropriate
exemption certificate which shall be completed by Buyer and returned to Vendor. Buyer’s “Blanket Resale
Certificate” may be substituted by Buyer, if permitted by law. If Vendor provides fixtures on which to display
Products or provides inventory management services, Vendor understands and agrees that it may have sales
and use tax nexus in any state or local jurisdiction where it provides such fixtures or services. Vendor shall be
responsible for collecting and remitting any state, local, parish or any other sales or use tax associated with
such fixtures or services provided under this Agreement. Any penalties or interest incurred by Buyer due to the
failure of Vendor to collect and remit the foregoing taxes (or any portion thereof) shall be reimbursed by
Vendor to Buyer. In the event that Buyer is found liable for sales tax under-collections while under a state or
local tax audit, Vendor shall indemnify Buyer for and to the extent that such tax liability, including penalties,
interest and related charges, is incurred in connection with the fixtures or services. Vendor shall register as a
sales tax vendor in all jurisdictions where required to do so by Law.
6.4
Invoicing. Unless otherwise specified in the applicable Order, Vendor shall issue to Buyer an
invoice and present proper import/customs documentation for the Products meeting the requirements of this
Agreement no later than fourteen (14) days after (but not before) the date of delivery of such Product to the
point of shipment. Buyer shall release payment for each undisputed invoice in compliance with Buyer’s then
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current Minimum Acceptable Payment Terms Policy (which as of the Effective Date provides for payment no
earlier than sixty (60) days of Vendor presenting proper documentation. In the event that Buyer in good faith
disputes any invoice, it shall so notify Vendor of the nature of such dispute. Vendor acknowledges that, unless
Vendor provides Buyer with appropriate tax documentation requested by Buyer, payments to Vendor will be
subject to tax withholding as required by United States Law.
7.
Term and Termination.
7.1
Term. The term of this Agreement shall commence on the Effective Date and continue for a
period of one year. Thereafter, this Agreement shall automatically renew for successive periods of one (1) year
each unless either party gives the other party written notice of its intention to terminate at least ninety (90) days
prior to the expiration of the then current term; provided, however, that this Agreement shall remain in effect
for any Orders issued by Buyer prior to the effective date of such termination.
7.2
Early Termination. In the event of a material breach of this Agreement, the non-breaching
party may terminate this Agreement upon ten (10) days’ prior written notice to the breaching party; provided,
however, that such termination shall not be effective in the event that such breach is cured to the reasonable
satisfaction of the non-breaching party within such ten (10) day period. Without limiting the foregoing, in the
event that Buyer determines that any Product provided hereunder does not meet the quality and other
requirements set forth in this Agreement, Buyer may, at its discretion, immediately terminate this Agreement
upon notice to Vendor without further obligation. Additionally, subject to Buyer’s obligation to pay for Private
Label Product packaging in accordance with Section 5.1.2, Buyer may terminate this Agreement at any time for
convenience upon sixty (60) days prior written notice to Vendor.
7.3
Termination for Insolvency. Buyer may terminate this Agreement immediately if the
Vendor: (i) becomes insolvent or unable to pay its debts; or (ii) makes a general assignment for the benefit of
its creditors; or (iii) files or has filed against it, voluntarily or involuntarily, a petition under any bankruptcy or
insolvency law where such petition is not dismissed within sixty (60) days; or (iv) has a receiver appointed
with respect to all or substantially all of its assets.
7.4
Effect of Termination. Sections 1, 3, 5, 6, 7.4, 8, 9, 10, 11, 13, 14, and 16 shall survive the
expiration and termination of this Agreement for any reason.
8.
Representations and Warranties.
8.1
Authority; No Conflicts. Vendor hereby covenants, represents and warrants that: (i) it has the
right and power to enter into and perform this Agreement; (ii) there are no actions, suits, disputes, proceedings
or governmental investigations pending or threatened against Vendor or affecting the transactions contemplated
hereby or restricting or limiting the use, manufacture or sale of the Products; (iii) no order, judgment, decree,
stipulation or consent of or with any governmental authority affects or may affect the transactions contemplated
by this Agreement or restricts or limits the use, manufacture, or sale of Products; (iv) this Agreement does not
violate any Law, and does not conflict with, or result in any breach or termination of, (a) any agreement,
instrument, order, or judgment, or (b) any other restriction to which Vendor is a party or by which Vendor is
bound.
8.2
General Product Warranties. Vendor hereby covenants, represents and warrants that, in
addition to any warranties implied or imposed by Law, each Product shall: (i) be merchantable, fit for its
intended purpose, and suitable for its end use, (ii) be free from any defects in design, materials or workmanship
and of good and merchantable quality, (iii) comply with the Specifications; (iv) be manufactured following
current good manufacturing practice that is at least consistent with industry standards; (v) not be adulterated,
mislabeled or misbranded within the meaning of any Law or otherwise; (vi) accurately represent in its
packaging the weights, measures and sizes of the Product; (vii) not infringe or misappropriate or contribute to
infringement of any domestic or foreign patent, copyright, trademark, trade secret, trade dress or other
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proprietary rights, or be considered a counterfeit of the product of a third party; and (viii) be free and clear from
any liens, security interests, encumbrances or defects in title or otherwise be subject to claims of third parties.
The foregoing warranties shall survive inspection, delivery and payment for Products.
8.3
Compliance with Laws. Vendor hereby covenants, represents and warrants that (i) all
Products shall be manufactured, packaged, tagged and sold in compliance with all applicable Laws and shall be
legal for retail re-sale in each store operated by Buyer and/or its affiliates without violation of any Law, (ii) it
shall at all times comply with all applicable Laws, (iii) all Product Literature shall be complete, accurate and
fully comply with all applicable Laws, (iv) it will not violate 35 U.S.C. 292 by marking, affixing or using in
advertising a false or misleading patent number with respect to any Products governed by this Agreement; and
(v) in the event that an applicable Law changes after shipment of a Product such that the retail sale of such
Product would no longer be complaint with the changed Law, Vendor shall, at its expense, accept return of the
applicable Product and promptly refund the purchase price paid therefor. In the event that, subsequent to the
provision of any Product, a Law becomes effective that prohibits the legal sale of such Product (or
unreasonably burdens the sale of such Product) in any jurisdiction in which Buyer and/or its affiliates operates
retail stores, Vendor agrees to accept the return of such Products at its expense (including, without limitation,
transportation costs, labor costs and allocable overhead) and shall promptly refund to Buyer the purchase price
paid therefor. In the event that Vendor does not accept the return of such Products, Vendor shall also be
responsible for Buyer’s costs of disposal or other disposition. Without limiting the foregoing, Vendor
recognizes that Buyer’s business and the sale of its products are in the United States, and Vendor will not
supply any product or take any act on behalf of the Buyer that in any way violates any law or regulation of the
United States or any state, including without limitation, the following:
Foreign Corrupt Practices Act: United States law prohibits Buyer employees and Buyer agents
from offering, promising or authorizing any payment or the provision of anything valuable for
influencing the acts or decisions of government officials outside the United States.
Free Enterprise: Vendor must ensure fair, ethical and legal competition with other economic
entities.
Customs: Vendor must comply with all applicable customs laws and regulations. Vendors must
establish and maintain customs compliance programs regarding product transshipment.
Homeland Security: As part of the completion of C-TPAT (Customs-Trade Partnership Against
Terrorism), Vendor must provide accurate contact information for all facilities and all
subcontractor facilities related to the production of Buyer merchandise.
8.4
Compliance with Vendor Guidelines. Vendor acknowledges that Buyer has adopted Vendor
Guidelines which, as amended from time to time, are available through the dgpartners web site (as may be
amended, the “Vendor Guidelines”). Vendor hereby covenants, represents and warrants that it will perform the
terms of this Agreement in accordance with all Vendor Guidelines.
9.
Indemnification.
9.1
By Vendor. Vendor agrees to, and shall, indemnify, defend and hold harmless, at no cost to
Buyer, Dollar General Corporation, any affiliated or subsidiary entities, and their respective directors,
associates, officers, employees, agents, shareholders, partners and members and other representatives
(collectively, the “Buyer Indemnified Parties”) from and against any and all claims, allegations, actions,
demands, liabilities, losses, damages, injuries, illnesses, judgments, settlements, costs and expenses (including
costs of investigation and settlement and reasonable attorneys' fees), regardless of the merits of such claims or
allegations, that may be based in whole or in part, or otherwise arise from or relate to any Product, debts or
contractual obligations including, without limitation, the following: any product liability claim, or claim a
Product caused or could cause damage or injury, any claim a Product does not work as intended, any claim a
Product, or the Product’s packaging, damages the environment, any claim a Product is not safe or inappropriate
for the Product’s intended use, any claim a Product, including the Product’s labeling or packaging, violates the
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intellectual property rights (patent, trademark, service mark or copyright) of another person, company or entity,
any claim that Buyer is responsible for vendor-owed debts or payments, any claim a product, including the
product’s labeling, any negligent or willful act or omission of Vendor, or any breach of this Agreement by
Vendor. In the event a claim is filed against any Buyer Indemnified Party that is subject to indemnification,
Buyer and the applicable Buyer Indemnified Party may be represented and actively participate through its own
counsel, at its own cost and expense, in any such claim. This indemnification is one of first defense and
payment, not of reimbursement or surety, and shall survive the expiration or termination of this Agreement.
9.2
By Buyer. Buyer agrees to, and shall, indemnify, defend and hold harmless, at no cost to
Vendor and its directors, officers, employees, agents, shareholders, partners and members and other
representatives (collectively, the “Vendor Indemnified Parties”) from and against any and all claims,
allegations, actions, demands, liabilities, losses, damages, injuries, illnesses, judgments, settlements, costs and
expenses (including reasonable attorneys' fees), regardless of the merits of such claims, that Buyer’s Marks
infringe the patent, copyright, trademark or other intellectual property right of a third party. In the event a
claim is filed against any Vendor Indemnified Party that is subject to indemnification, Vendor and the
applicable Vendor Indemnified Party may be represented and actively participate through its own counsel, at its
own cost and expense, in any such claim. This indemnification is one of first defense and payment, not of
reimbursement or surety, and shall survive the expiration or termination of this Agreement.
10.
Insurance. Vendor agrees that during the term of this Agreement and for a period of no less than five
years thereafter it will keep in force and effect at its sole cost and expense (and shall cause each of its agents,
independent contractors and subcontractors performing any services hereunder to maintain) commercial general
liability and product liability insurance, including contractual liability insurance with minimum primary policy
limits of not less than one million dollars ($1,000,000) per occurrence; and with minimum excess or umbrella
policy limits of not less than four million dollars ($4,000,000) per occurrence insuring against personal injury,
bodily injury and property damage; provided, however, that in the event that Vendor supplies Products that are
designed to be introduced into the human body (including, without limitation, food, over-the-counter drugs or
supplements, eye drops, etc.) such excess or umbrella policy shall have limits of not less than nine million
dollars ($9,000,000). All insurers shall be admitted carriers in the United States, and licensed to do business in
each state in which Buyer and/or its affiliates operate stores. All insurers shall have an A. M. Best rating of at
least an A-VIII. The Buyer Indemnified Parties shall be named as additional insured under Vendor's policies,
and the policies shall contain a provision that there will be no cancellation, reduction, or non-renewal in
coverage without first giving Buyer thirty (30) days’ prior written notice. Vendor's insurance shall in no way
limit Vendor's obligations or liability under this Agreement. Failure of Vendor to require, verify and monitor its
agents, independent contractors and subcontractors compliance with insurance requirements will be deemed to
be a breach of this Agreement.
11.
Confidentiality. Vendor acknowledges that, in the course of performing its obligations under this
Agreement, it may have access to the Confidential Information (as defined below) of Buyer or its affiliates.
Vendor shall use the Confidential Information only in furtherance of this Agreement and shall not transfer or
otherwise disclose the Confidential Information to any third party. Vendor shall (i) give access to such
Confidential Information solely to those employees with a need to have access thereto for purposes of this
Agreement, and (ii) take the same security precautions to protect against disclosure or unauthorized use of such
Confidential Information as Vendor takes with its own confidential information but, in no event, shall Vendor
apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Vendor shall
promptly return or destroy all Confidential Information upon the termination of this Agreement or as requested
by Buyer. For purposes of this Agreement, "Confidential Information" shall mean confidential or other
proprietary information that is observed or obtained by Vendor or Vendor’s agent under this Agreement
including, without limitation, designs, drawings, product specifications and documentation, business and
product plans and data, and other confidential business information. Confidential Information shall not include
information which: (a) is or becomes public knowledge without any action by, or involvement of, Vendor; (b) is
already known to Vendor at the time of disclosure without restriction of confidentiality, as evidenced in writing;
or (c) is required under a judicial or governmental order or procedure to be disclosed provided that Vendor gives
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Buyer prior notice to contest such order or procedure and that Vendor discloses only such portions of the
Confidential Information as required by such order or procedure.
12.
Factoring Arrangements. Vendor must provide Buyer written notice of any assignment, factoring, or
other transfer of its right to receive payment arising under this Agreement no less than sixty (60) days prior to
such assignment, factoring, or other transfer taking effect. Such written notice shall only be effective if received
by Buyer and executed by both the Vendor and the assignee/factor and shall include the name and address of the
assignee/transferee, date assignment is to begin, and the terms of the assignment, and shall be considered
delivered upon receipt of such written notice by Buyer. Vendor shall be allowed to have only one assignment,
factoring, or transfer effective at any time. Vendor acknowledges and agrees that Buyer shall continue to submit
payments to such assignee or factor until such time as such assignee or factor agrees in writing that payments
should be remitted directly to Vendor or Vendor’s other third party designee. Buyer shall have the right to take
a deduction or other set off against any payment assigned, transferred or factored by Vendor. Vendor shall
indemnify Buyer against and hold Buyer harmless from any and all lawsuits, claims, actions, damages
including, without limitation reasonable attorneys’ fees, obligations, liabilities and liens) arising or imposed in
connection with such deductions or set off or with the assignment or transfer or factoring or any account or right
arising thereunder. Vendor also releases and waives any right, claim or action against Buyer or its affiliates for
amounts due and owing under this Agreement or otherwise where Vendor has not complied with the notice
requirements of this provision.
13.
Intellectual Property.
13.1
License. To the extent that Buyer orders Private Label Products from Vendor pursuant to this
Agreement and subject to the terms and conditions of this Agreement, Vendor is hereby granted a nonexclusive, royalty-free, revocable license to use and reproduce the Marks in a form approved by Buyer in
writing solely in connection with the manufacture and sale of such Private Label Products to Buyer solely in
accordance with and subject to the terms, conditions and quality controls of this Agreement.
13.2
Ownership of Marks. All use of the Marks by Vendor shall inure to the benefit of Buyer. All
rights in the Marks, other than those specifically granted herein, and all related rights in and ownership of
copyright and trade dress on Products bearing the Marks shall be the sole property of Buyer. Vendor hereby
assigns to Buyer all rights in any such Products bearing such Marks or works for hire it creates or commissions
to be created. Licensee acknowledges Licensor's exclusive ownership in the Licensed Properties, and the
validity of the Licensed Properties, and all derivative works of the Licensed Properties, and agrees that it will
not during the Term hereof or thereafter contest or question such ownership or validity. Any design, trade
dress, trademark, graphic depiction, derivative work or copyright which may be created or be acquired by or
for Licensee specifically for the Licensed Products (to the extent derived from or based upon the Licensed
Properties), and (2) any and all changes made to the Licensed Properties by Licensee or its employees and/or
agents shall be the sole property of Licensor, and are hereby assigned by Licensee to Licensor but Licensee
shall have the right, to the extent necessary, to use such material during the Term of this Agreement. Licensee
shall, at any time, during the Term hereof, at Licensor's expense, reasonably cooperate with Licensor or its
designee in the prosecution of any trademark, patent, or copyright applications that Licensor may determine to
file, with respect to the Licensed Properties or any derivative works of the Licensed Properties.
13.3
Disposal of Canceled or Excess Private Label Products. Upon the cancellation or
termination of any Order for Private Label Products, in whole or in part, Vendor shall notify Buyer in writing
of the quantity of each item of Private Label Products in its possession. Vendor shall notify Buyer prior to
disposing of such Private Label Products in any manner, including without limitation, storing, warehousing,
selling (at wholesale or retail) or destroying such Private Label Products and shall obtain Buyer’s written
consent before disposing of any such Private Label Product. Vendor shall, prior to disposing of Private Label
Products, remove all of Buyer’s proprietary marks and identifying tickets, labeling and packaging. Without
limiting the foregoing, Vendor shall not dispose of such Products (i) in Buyer’s trade area or to Buyer’s
competitors; or (ii) without providing Buyer a right of first refusal to purchase the same from Buyer on the
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same terms and conditions as offered to such third party. Notwithstanding any limitations of liability contained
elsewhere in this Agreement, Vendor hereby acknowledges and agrees that it subjects itself to any and all
forms of liability for its failure to comply with this Section.
14.
Records and Audit. Vendor agrees to keep and maintain books and records, in accordance with
generally accepted accounting principles, that include, without limitation, all documentation necessary or
desirable to verify the accuracy of any invoice, report or statement provided hereunder. Vendor agrees to keep
and maintain records relating to Products, including (without limitation) certificates evidencing Product safety
testing required by any Law or any applicable voluntary industry standard. Vendor shall maintain such books
and records for such period of time as required by Law, but in no event less than a period of three years
following the issuance of the applicable invoice, report, certificate or statement. During the term of this
Agreement and for a period of two years thereafter, Buyer and/or its designee shall have the right to inspect and
audit, at any reasonable business time during business hours, such records. In the event an inspection or audit
discloses that any invoice or statement was overstated by more than 2%, Vendor shall reimburse Buyer for the
cost of such audit. Vendor shall immediately pay to Buyer the amount of the over-billing, regardless the
amount.
15.
Technology Requirements.
15.1
EDI Interface Responsibilities. Vendor shall receive orders and send Buyer invoices via EDI
unless otherwise specified by Buyer. Vendor will establish a user ID to identify its company. The presence of
such ID in the EDI interchange will be sufficient to verify the source of the data and the authenticity of the
document. Documents containing such ID will constitute a signed writing and neither party shall contest the
validity or enforceability of the document on the basis of lack of signature or sufficient identification of
Vendor. EDI documents or printout thereof shall constitute an original. EDI documents will be retained by
Vendor in a form that is accessible and reproducible for a period of not less than six (6) years.
15.2
Information Security. Vendor represents that it currently follows industry best practices as a
means to prevent any compromise of its information systems, computer networks and data files (“systems”) by
unauthorized users, viruses or malicious computer programs which could in turn be propagated via computer
network, e-mail, magnetic media or otherwise to Buyer. Vendor agrees to immediately notify Buyer in writing
if the security of its systems are breached or compromised in any way. Vendor agrees to apply
appropriate internal information security practices, including, without limitation, using appropriate firewall and
anti-virus software, maintaining such counter measures, operating systems, and other applications with up to
date virus definitions and security patches, installing and operating security mechanisms in the manner in which
they were intended and permitting only authorized user access to computer systems, and applications.
16.
Miscellaneous Provisions.
16.1
Independent Contractor. Vendor and Buyer are independent contractors, and under no
circumstances shall the contractual relationship between the parties be deemed or construed as one of agency,
partnership, joint venture, employment or other than the relationship of independent contractors, nor does either
party have any authority to act on behalf of or bind or commit the other in any manner. Each party shall be
solely responsible for the conduct and any omissions of its employees and other representatives.
16.2
Notices. Except for notices given by EDI transmission in accordance with this agreement, any
notice to be given hereunder by either party to the other may be effected either by personal delivery in writing,
by facsimile (with confirmed receipt and confirming copy sent via overnight courier), by registered or certified
mail, postage prepaid, with return receipt requested, or by overnight courier, return receipt requested at the
address for Buyer or Vendor, as applicable, set forth on the first page of this Agreement; provided, however,
that in the case of notices to Buyer, Vendor shall send an additional copy of the notice to the Buyer at the
address above – Attention: Legal Department in order for such notice be effective. Notices delivered
personally or via facsimile will be deemed communicated as of actual receipt. Mailed notices will be deemed
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communicated as of two (2) days after mailing. Notices sent via overnight courier will be deemed delivered as
of the next business day. Either party may change its contact upon notice to the other party in accordance with
this Section. The parties acknowledge and agree that service of process may be effectuated by the procedures
set forth in this Section, and they waive any addition or different requirements with respect to service of
process.
16.3
Publicity. The parties hereto agree that in the event Vendor has represented that it will publicly
advertise the Products in accordance with a proposed schedule and thereafter Vendor shall, without the prior
written approval of Buyer, fail to advertise Products strictly in accordance with such schedule, Buyer may return
such Products to Vendor and may charge the Vendor with the cost of transportation, shipping, unpacking,
examining, repacking, reshipping the Products and other like expenses in addition to any other penalties or charges
hereunder. Any claims for failure to advertise the Products in accordance with such schedule made by Buyer shall
be charged back to Vendor and the amount thereof deducted from payments to be made to Vendor or, alternatively,
promptly refunded to Buyer. Vendor shall not use Buyer’s name in publicity, advertising, or similar activity
except in accordance with Buyer’s guidelines and with Buyer’s prior written consent. Vendor shall not disclose
the existence of any Order or any of its respective terms to any third party without Buyer’s prior written
consent.
16.4
Liability Limitations. BUYER’S LIABILITY ARISING FROM OR RELATING TO THIS
AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE FOR THE
PRODUCTS ORDERED DURING THE THREE (3) MONTH PERIOD ENDING ON THE DATE THAT A
CLAIM OR DEMAND IS FIRST ASSERTED. UNDER NO CIRCUMSTANCES SHALL BUYER OR ITS
AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR
PUNITIVE DAMAGES, LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING FROM OR RELATED
TO THIS AGREEMENT OR ANY ORDERS AND/OR PRODUCTS, WHETHER SUCH LIABILITY IS
BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.5
Interpretation. The parties intend that this Agreement be written only in American English,
and they intend to be bound by the terms and conditions as written in American English. If any term or
provision of this Agreement, as applied to either party or any circumstance, for any reason shall be declared by
a court of competent jurisdiction to be invalid, illegal, unenforceable, inoperative or otherwise ineffective, that
provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable; provided, however, that if any term or provision of
this Agreement pertaining to any Product shall be declared invalid, illegal, unenforceable, inoperative or
otherwise ineffective, Buyer shall have the right to terminate this Agreement as provided herein. Heading titles
are for convenience and ease of reference only and are not to be used in any manner to amplify, limit, modify,
or otherwise be used in, the interpretation of any terms and conditions contained in this Agreement. The
parties agree that each party has reviewed and revised this Agreement and has had an opportunity to seek the
advice of counsel and that any rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement or any amendments hereto.
16.6
Governing Law and Venue. This Agreement shall be construed in accordance with the
internal laws of the State of Tennessee without regard to principles of conflicts of laws that would cause the
laws of another jurisdiction to apply. The United Nations Convention on the International Sale of Goods shall
not apply to this Agreement or any purchases made pursuant to its terms. The state and federal courts sitting in
Davidson County, Tennessee, USA shall have proper and exclusive jurisdiction and venue over any matters
relating to this Agreement, and the parties hereby consent to the jurisdiction of such courts, as well as venue.
16.7
Assignment. Vendor may not assign its rights or obligations, in whole or in part, under this
Agreement, whether by express assignment, merger, operation of law or otherwise. Any attempt by Vendor to
assign its rights or obligations under this Agreement without such consent shall be void. Without limiting the
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foregoing, Buyer shall not be bound by any assignment of any Order or any right to receive payment
thereunder or of any claim thereunder by operation of law or otherwise unless Buyer has consented in writing
thereto and in the absence of such written consent, any payment made or any return of Products, partial or
otherwise, to Vendor shall automatically operate as, and constitute, a complete release to Buyer. Buyer may
assign this Agreement to its subsidiaries or affiliates without Vendor’s consent. This Agreement shall inure to
the benefit of Buyer’s successors and assigns.
16.8
Waiver; Modification and Amendment. Buyer’s failure to insist on strict performance of
any term or terms hereunder shall not constitute a waiver of any term or default by Vendor. Any waiver of any
breach or default hereof shall not constitute a waiver by Buyer of any other or subsequent breach or default of
Vendor. No modification, amendment or waiver of any of the provisions contained in this Agreement, or any
future representation, promise or condition in connection with the subject matter of an Order, shall be binding
upon Buyer unless made in writing and signed by a duly authorized representative or agent of Buyer. Buyer
may change the terms and conditions of this Agreement by giving Vendor three (3) months prior written notice.
Such changes shall apply as of the effective date of the notice and only to Orders accepted by Vendor after
such effective date.
16.9
Counterparts and Imaging. This Agreement may be executed in counterparts, each of which
shall be deemed originals, but all of which taken together shall constitute one and the same instrument. Vendor
acknowledges that Buyer may maintain a copy of these documents in electronic form and agrees that a copy
reproduced from such electronic form or by other reliable means (for example, photocopy, image or facsimile)
shall in all respects be considered equivalent to the original.
16.10 Embargos or Bans. Buyer shall not be liable for Product or packaging not delivered to Buyer
as a result of any government embargo, ban, prohibition or condemnation.
16.11 Entire Agreement. This Agreement, together with any written schedules, exhibits and
amendments are added hereto by mutual agreement of the parties on or following the date hereof and thereby
made a part hereof, and any applicable Order(s) constitutes a single, integrated written contract expressing the
entire agreement of the parties concerning the subject matter hereof. No covenants, agreements,
representations or warranties of any kind, whatsoever, have been made by any party to this Agreement except
as specifically set forth in this Agreement. All prior agreements, discussions and negotiations are entirely
superseded by this Agreement. This Agreement may not be modified, altered, amended or changed by Vendor
except by mutual agreement in writing executed by each of the parties. No waiver or delay of enforcement of
any condition, covenant, or warranty of this Agreement by either party shall be deemed to imply or constitute a
further waiver of the same or any other condition, covenant, or warranty of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
DOLGENCORP, LLC
(Buyer)
(Vendor)
Signature:
Signature:
Printed Name:
Printed Name: ____________________
Title:
Title:
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