HomeMy WebLinkAboutResolution - 2009-R0542 - Contract - Hill's Pet Nutrition Inc.- Pet Food Products - 12/02/2009IResolutiou No. 2009—RO542
December 2, 2009
Item No. 5.19
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, Contract No. 9096 for an
agreement to provide pet food products free of charge to the animal shelter, by and
between the City of Lubbock and Hill's Pet Nutrition, Inc. of Topeka, Kansas, and related
documents. Said Contract is attached hereto and incorporated in this resolution as if fully
set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council this 2nd
ATTEST:
i
Rebecca Garza, City Secretary
Quincy Wvte, Assistant City Manager
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocs/RES.Contract-HilI's Pet Nutrition, Inc.
October 21, 2009
day of December , 2009.
TOM MARTIN, MAYOR
Contract: 90196
Resolution No. 2009—RO542
AGREEMENT
THIS AGREEMENT is made and entered into the 2nd day of December, 2009 (the "Effective Date"), by and between
EnL'S PET NUTRITION, INC., a Delaware corporation with its principal place of business located at 400 SW 8th Avenue,
Topeka, Kansas 66603 ("Hill's"), CITY Or LuBBOCK, TEXAS, with its principal place of business located at 1625 13th St. Rm
204, Lubbock, TX 79401 ("City").
WHEREAS, Hill's and the City desire to enter into an arrangement whereby Hill's provides its Science Diete pet food products
and pet nutrition educational services to the Shelter at 102 Municipal Dr.("Shelter"), in exchange for the Shelter feeding Hill's*
Science Diem pet foods exclusively to the canines and felines being cared for by the Shelter and distributing a small bag of
Science Diet pet food with each canine or feline adoption;
NOW, THEREFORE, in consideration of the mutual agreements, covenants, and provisions contained herein, the parties agree as
follows:
1. In -Shelter Feeding.
(a) Hill's shall provide certain Hill's Science Diet pet food products free of charge to the Shelter for the sole purpose of
feeding all canines and felines being cared for by the Shelter ("In -Shelter Feeding"),
(b) The type and quantity of Science Diet pet food provided each week by Hill's to the Shelter for In -Shelter Feeding (the
"Complimentary Products") shall be in accordance with the Shelter's standing order (the "Complimentary Products
Standing Order") set forth in Appendix A attached hereto. (See Appendix C for a 12 -month forecast based upon
Shelter's Complimentary Products Standing Order.) Hill's reserves the right to substitute the specific Science Diet pet
food products that Shelter normally orders, with nutritionally equivalent Science Diet pet food products at any time.
(c) Hill's acknowledges that unforeseen business conditions may require the Shelter to request an increase in the free food
allotment. Increases need to be mutually agreed upon.
(d) The Shelter acknowledges that the Complimentary Products are for In -Shelter Feeding only and covenants and agrees that
it shall not resell or redistribute them.
(e) City agrees to pay Hill's for shipping and handling costs at the rate of thirty-five cents ($0.35) per pound for the
Complimentary Products. Such payment shall be made pursuant to Section 7 of this Agreement.
2. Shelter's Distribution of Hill's Science Diet Pet Foods to Adopters. The Shelter covenants and agrees that it shall provide to
each adopter of a canine or feline from its population, one 3.5- to 5 -pound bag of any Science Diet pet food product listed in
Appendix B ("Small Trial Bags"). The Shelter shall order from Hill's, at no cost, the number of Small Trial Bags adequate to
fulfill its obligation to provide a Small Trial Bag to each adopter. The number of Small Trial Bags ordered by the Shelter shall
be in accordance with the Shelter's Small Trial Bags Standing Order set forth in Appendix B attached hereto. (See
Appendix C for a 12 -month forecast based upon Shelter's Small Trial Bags Standing Order.) Small Trial Bags are to be used
by Shelter for adoptions only; any other use is prohibited.
3. Hill's Obligations. Hill's will give Shelter exclusive access to Hill's Shelter Web Portal (the "Portal"). This unique Portal
provides access to a library of relevant information, such as articles, links to important organizations and other shelter
resources. Additionally, it allows the Shelter to manage and monitor all food and promotional material orders as well as
conveniently submit adopter names and information. Log -in and password information will be provided by Hill's.
Shelter's Oblij4ations. Shelter hereby covenants and agrees that, in addition to any other obligation it has under this
Agreement, Shelter will abide by the following:
(a) throughout the term of this Agreement, prominently and exclusively display Hill's pet food products in its
reception/adoption area;
(b) prominently display in its reception area and, as appropriate, on animal cages, Hill's Science Diet brand point-of-purchase
materials and other collateral materials provided by Hill's, and in the event Shelter publishes a newsletter, Shelter agrees
to include in such newsletter the Science Diet logo along with a statement that Shelter feeds Science Diet pet foods;
2009 Shelter Agreement Pagel of 8
(c) in the event that Shelter maintains a website, Shelter will place Science Diet Logo and verbage: "City of Lubbock Animal
Shelter feeds Science Diettt"; website changes will be made within sixty (60) days of Agreement being signed;
(d) work with Hill's in a good faith effort to ensure that at least fifty percent (50%) of its staff successfully completes the
Hill's Pet Nutritional Counselor ("SNC") program;
(e) provide to Hill's by the first Friday of each month, the name, address, adoption date, phone, e-mail, pet breed, pet date of
birth, and pet name for all new adopters of canines and/or felines who have specifically consented to the release of this
information for Hill's exclusive use in providing them with product coupons and information (the "Adopter Information"),
with such Adopter Information to be provided in an electronic format acceptable to Hill's;
(f) during the term of this Agreement, not promote, display, distribute, endorse, or feed any pet food products other than
Hill'sO Science DietO and/or Hill's® Prescription DieW brand pet foods; with the exception that Shelter may redistribute
other brands of donated pet food products so long as such redistribution does not constitute direct or implied endorsement
of such donated product;
(g) maintain its current status as a 501(c)(3) not-for-profit organization or as a governmental entity, and notify Hill's
immediately of the actual or threatened revocation of that status;
(h) house all pets cared for by Shelter in a safe, caring, clean and socially -enriched environment;
(i) not treat any animals in an abusive or inhumane manner;
0) educate adopters about caring for the pet and responsible pet ownership;
(k) provide Hill's with a delivery address of either a physical shelter with a business sign and posted operating hours, a
veterinary clinic, or a pet -related business;
(1) have a veterinarian on staff or sponsoring veterinarian who provides on-going healthcare for the animals; and
(m) provide Hill's with right of first refusal for all pet food sponsorships.
5. Term and Termination.
(a) This Agreement shall become effective upon the date first above written and shall remain in effect for a one (1) year trial
period, at which time the Agreement shall automatically renew for a period of two (2) additional years if performance
criteria have been met, unless earlier terminated as provided herein. This Agreement may be terminated at any time during
the initial one-year trial period or two-year renewal period:
(i) by either party, for any reason or no reason whatsoever, upon the delivery of thirty (30) calendar days' written notice
to the other party;
(ii) by either party, immediately upon written notice to the other party if Hill's ceases doing business, becomes insolvent,
makes a general assignment for the benefit of creditors, has a receiver appointed for its assets, or an order has been
made for its "winding -up" or if the Shelter loses its status as a 501(c)(3) not-for-profit organization or governmental
entity; or
(iii) by Hill's, if Shelter breaches its material obligations including, but not limited to, nonpayment or any other
obligations under section 1, section 2, section 4(a), (e), (f), (g), (h), (i), (k), (1) or (m), or section 6, effective upon
written notice of such breach to Shelter; or
(iv) by Hill's, if Shelter's account remains inactive for a minimum of three months, effective upon written notice to
Shelter.
2009 Shelter Agreement Page 2 of 8
(b) Upon the expiration or termination of this Agreement, Hill's shall cease providing the pet food products under Sections 1
and 2 herein, and the Shelter shall within 30 days thereof pay any outstanding amounts owed to Hill's for shipping and
handling costs described in Section 1. Additionally, the Shelter shall return to Hill's or, at Hill's discretion, make
available for pick up by Hill's or its designated agents, any Hill's display rack and remaining paint -of -purchase and other
collateral materials which Hill's had provided to the Shelter.
b. Terms.
(a) Hill's sales company, Hill's Pet Nutrition Sales, Inc. ("Hill's Sales"), will invoice Shelter for the shipping and handling
costs set forth in Section I above, and Shelter shall remit payments to Hill's Sales.
(b) The terms for Hill's pet food products ordered pursuant to Sections 1 and 2 of this Agreement shall be those set forth in
Appendix D attached hereto and incorporated by reference.
(c) Nothing in this Agreement shall prohibit Shelter from purchasing Hill's Science Diet pet foods (other than those in
Appendix A and B) and Hill's Prescription Diet pet foods through Hill's normal sales channels. Shelter agrees such
products are not purchased for resale and that such products will not be re -sold unless Shelter is an approved Hill's
retailer.
7. Confidentiality. The Shelter agrees that, to the extent permitted by law, it shall maintain in confidence and shall not disclose to
any third party the terms of this Agreement without the prior written consent of Hill's.
8. Audit. Upon reasonable notice and within the Shelter's normal business hours, Hill's shall have the right to audit and inspect
the Shelter's facilities, books, documents, papers and records relating to the order, use and re -distribution of Hill's pet food
products and, if applicable, the use and maintenance of the Hill's display rack.
9. Indemnification. Each party (as indemnitor) agrees to indemnify and hold the other party (as indemnitee) harmless against and
from any and all losses, claims, damages or liabilities, joint or several, to which the indemnitee may become subject as the
result of acts or omissions, by the indemnitor in connection with the performance of the indemnitor's duties under this
Agreement or as the result of it's material breach of any representation, warranty, covenant or agreement pertinent to this
Agreement. This indemnity provision shall survive the termination of this Agreement.
10. Assignment, This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto,
provided, however, neither party to this Agreement shall assign its interest or obligations herein, including, but not limited to,
the assignment of any monies due and payable, without the prior written consent of the other party, which consent shall not be
unreasonably withheld.
11. Waiver. No failure by either party hereto at any time to require performance by the other party of any of the conditions, terms,
or provisions of this Agreement shall in any way affect such party's right thereafter to enforce the same or any other condition,
term or provision of this Agreement; nor shall any waiver by either party of any breach of this Agreement, or of any term,
condition, or provision hereof, be taken as or held to be a waiver of any subsequent breach, or of the right to terminate this
Agreement for any subsequent breach of the same or any other condition, term, or provision of this Agreement.
12. Entire Aereement. This Agreement embodies the entire agreement of the parties in relation to the subject matter hereof and
supersedes all previous agreements, arrangements and understandings, verbal or otherwise, in relation thereto. There are no
representations, either oral or written, upon which either party relies as an inducement to enter into this Agreement other than
those set forth herein. Except as expressly provided herein, no change in, addition to, or deletion from any portion of this
Agreement shall be valid or binding upon the parties unless it is declared expressly to be a modification of this Agreement and
is approved as such in writing by each party.
13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
2009 Shelter Agreement Page 3 of 8
HILL'S PET NUTRITION, INC.
By:/,sa gQa
Print Name: Stefano Pettinella
Title: SD Marketing Director
CITY OF LUBBOCK, TEXAS
By: �r�'
Print Name: TOM MARTIN
Title:
ATTEST:
Rebe a Garza, City Secretary
APP VED AS TO CONTE T:
uincy Whit ssistant City Manager
APP VE AS TO FORM:
Chad Weaver, Assistant City Attorney
2009 Shelter Agreement Page 4 of 8
Sheiter Name
Address:
City:
Contact.
of Lubbock Animal Services
102 Municipal Dr
Lubbock
1 Average number of animals housed daily:
Resolution No. 2009-RO542
Appendix A
DEFAULT SHEET IN -SMELTER FEEDING
State TX 71p_ 79403-3304
Phone: (806)775-2055 Fax (806)775-2717
Calculating In -Shelter Free Food Order
Canines fielmes Totali
Total Annual lbs. Fed: 41,BOU: 4,54n> 46,300
2 Total In -Shelter Feeding Needs per Week by product Dog/Cat:
Total # of Canine Pounds 804
Total # of Feline Pounds 87
Total # Pounds 890
3 In -Shelter Weekly Feeding Needs by Lifestage
$peri@S
# of Cailtnes
#ot fel nesidFic#
intaF a3 Potmds ted
Number
Canine
Puppy
50
Avg # of Pounds
200
50>
Dog
Total #of Pon ads
41,800
4,500
46,300
by species
961A
101/
Canines fielmes Totali
Total Annual lbs. Fed: 41,BOU: 4,54n> 46,300
2 Total In -Shelter Feeding Needs per Week by product Dog/Cat:
Total # of Canine Pounds 804
Total # of Feline Pounds 87
Total # Pounds 890
3 In -Shelter Weekly Feeding Needs by Lifestage
$peri@S
i+feS4$
Q
J'otrnctssb� f�)kfs
Astir 53111 {+o-�;
Canine
Puppy
50
2154 431
27%
Dog
50
588.5 11.77
73°jd
Feline.
Kitten
25
29.8 1.19
34Pk:
Cat
25
56.7 2.27
Orders are automatically processed weekly unless otherwise requested by the shelter priorto the
weekly order deadline. For information on your specific order deadline or to adjust standing In -Shelter order. call 1-866-283-1217.
Page 5 of 9
11/11/2009
City of Lubbock Animal Services
Resolution No. 2009—RO542
Appendix B
DEFAULT SHEET SMALL BAG TRIAL
Calculating Consumer "Small Trial Bag" Shipments
1 Number of Animals Adopted Annually
Total Adoptions: 1,354
2 Total Small Trial Bag Needs per Week by product Canine/Feline:
6a s pe W �
.fw!PV f O
Canine
Puppy 7 08
Feline
Kitten 3.73
Oog 11 38
Cat 3.04
Total Canine Bags: 19,27
Total Feline Bags:
6.77
3 Weekly "Small Trial Bag" Order (see calculated pounds in 2)
Orders are automatically processed weekly unless otherwise requested by the shelter prior to the
weekly order deadline. For information on your specific order deadline or to adjust standing In -Shelter order, call 1-866-283-1217.
84.2 In•Sheiter Feeding Pounds per Adaption
Page 6 of 9
11/11./2009
Canine: Canine Puppy
45
24.8
5.52?%
Canine Large Breed Puppy
4 5
106
2.37
12?l0
Canine Adult
5
455
9.11
AZ°fie
Canine Mature Adult
5
114
2.26
12 a
100%
Feline: Feline Kitten
1 3 5
13.1
3.73la
Feline Adult
1 4
97
2.43
Feline Mature Adult
1 4
2.4
0.61%
100%
Orders are automatically processed weekly unless otherwise requested by the shelter prior to the
weekly order deadline. For information on your specific order deadline or to adjust standing In -Shelter order, call 1-866-283-1217.
84.2 In•Sheiter Feeding Pounds per Adaption
Page 6 of 9
11/11./2009
city of Lubbock Animal Sen4ces
12 -Month Forecast: In -Shelter Feeding + Small Trial Bag Volume
_.LiEeafage Saahs.: Monthl.: Mofl4h2:
SMALL TRIAL BAG VOLUME
CANINE
Puppy
4.5
107.53
107.63
10763
Month 3^:
Nenth#::'.Alo-nt{5`
107.63
MbMl,5-
iNal0t.7-
FlEatdY+.$:s:
i6EanlEl:9'..
_MWftf''s
.IyFontk11 1
lvtanth12
iaiai Lj
4.5
46.13
46.13
46.13
46.13
46.13
46,13
46.13
46.13
46.13
46.13
46.13
46.13
553.50
Adult Dog
IN -SHELTER
FEEDING VOLUME:
197.33
197.33
197.33
197.33
197,33
197.33
197.33
197.33
197.33
197.33
19733
2366.00
Canine Mature Adult
CANINE
49.33
49.33
49,33
49.33
49.33
49,33
49.33
49.33
49.33
49.33
49.33
49.33
592.00
10.53
10.53
Puppy
400.42
50
933.33
933.33
933.33
933.33
93333
933.33
933.33
933.33
933.33
933.33
933.33
933.33
11200.00
Dog
50
2550.00
2550.00
2550.00
2550.00
2550 CC
2550.00
2550.00
2550,00
2550.00
2550.06
2550.00
2550.00
30600.00
FELINE
56.58
5658
56.58
56.58
5658
56.58
5658
5658
56.58
679.00
Adult Cat
4
42.13
42.13
42.13
rotten
42.13
25
129.17
129.17
129.17
129.17
129,17
12917
129.17
129.17
129.17
129,17
129.17
129.17
1550.00
Cat
10.53
25
245.83
245.83
245.83
245.83
245.83
245.83
245.83
245,83
245.83
245,83
245.83
245.83
2950.00
109.25
109.25
10915
3858,33
3858.33
3858.33
3858.33
3858.33
3858.33
3858.33
3858.33
3858.33
3858.33
3868.33
3858.33
46300.00
509.67
shippingldelivery $
0.35
1,350.42
1,350.42
1,350.42
1,350.42
1,350.42
1,350.42
1,350.42
1,350.42
1,350A2
1.350.42
1,350.42
1,350.42
IN -SHELTER
FEEDING UNITS:
CANINE
Puppy
50
18.67
18,67
18.67
18,67
1867
1867
18.67
18.67
18,67
18.67
18.67
18.67
224.00
Dag
50
51.00
51.00
51.00
51.00
51.00
51.00
51.00
51.00
51.00
51.00
51.00
51.00
612.00
FELINE
Kitten
25
5.17
5.17
5,17
5.17
5.17
5.17
5.17
5,17
5.17
5.17
5.17
5.17
62.00
Cat
25
9.83
9.83
9.83
9.83
9.83
9.83
9.83
9.83
9.83
9.83
9.83
9.83
118.00
84.67
84.67
84.67
94.67
84.67
84.67
84.67
84.67
64.67
84.67
84.67
84.67
1016.00
SMALL TRIAL BAG VOLUME
CANINE
Puppy
4.5
107.53
107.63
10763
107.63
107.63
107.63
107.63
107.63
107.63
107.63
107.63
107.63
1291.50
Puppy Large Breed
4.5
46.13
46.13
46.13
46.13
46.13
46,13
46.13
46.13
46.13
46.13
46.13
46.13
553.50
Adult Dog
5
197.33
197.33
197.33
197.33
197.33
197,33
197.33
197.33
197.33
197.33
197.33
19733
2366.00
Canine Mature Adult
5
49.33
49.33
49,33
49.33
49.33
49,33
49.33
49.33
49.33
49.33
49.33
49.33
592.00
10.53
10.53
400.42
400.42
400.42
400.42
400.42
400.42
400.42
400.42
400.42
400.42
400.42
400.42
FELINE
Kitten
3.5
56.58
56 58
55.58
56.58
5658
56.58
56.58
5658
56.58
5658
5658
56.58
679.00
Adult Cat
4
42.13
42.13
42.13
42.13
42.13
42.13
42.13
42,13
42.13
42.13
42.13
42.13
505.60
Feline Mature Adult
4
10.53
10,53
10.53
10.53
10.53
10.53
10.53
10,53
10.53
1053
1053
10.53
126.40
109.25
109.25
109.25
109.25
109.25
109.25
109.25
10915
109.25
10935
109.25
109.25
TOTAL N OF SMALL TRIAL BAG VOLUME
509.67
509.67
509.67
509.67
509.67
509.67
509.67
509.67
509.67
509.67
509.67
509.67
6,116
SMALL TRIAL BAG UNITS
CANINE
Puppy
4,5
2392
23.92
23.92
23,92
23.92
23,92
2392
Puppy Large Breed
4.5
10.25
10.25
10.25
10.25
10.25
1025
10.25
Adult Dog
5
39.47
39.47
39.47
39.47
39.47
39.47
39.47
Canine Mature Adult
5
9.87
9.87
9.87
9.87
9.87
9.87
957
FELINE
2.63
2.63
2.63
2.63
31.60
Kitten
3.5
16.17
16.17
16.17
16.17
16.17
16.57
16.17
Adult Cat
4
10.53
10.53
10.53
10.53
10.53
10.53
10.53
Feline Mature Adult
4
2.63
2.63
2.63
2.63
2.63
2.63
2.63
2392
23.92
23.92
23.92
23.92
287.00
1025
1025
1025
1025
1025
123.00
39.47
39.47
39.47
39.47
39.47
473.60
9.87
9.87
9.87
9.87
9.87
118.40
16.17
15.17
16.17
16.17
16.17
194.00
10.53
10.53
10.53
10.53
10.53
126.40
2,63
2.63
2.63
2.63
2.63
31.60
1354.00
Page 7 of 9 11711J2009
Resolution No. 2009-80542
APPENDIX D
Hill's Terms
Orders. All orders for HILL'S SCIENCE DIET products accepted by HILLS shall be subject to HILL'S terms and conditions as set forth in this
Agreement. It is expressly understood and agreed by the Shelter that iIILL'S shall have the right at its sole option to amend these terms and
conditions from time to time, including without limitation, payment terms, shipping terms, pricing and discounts. HILL'S shall not be obligated
to accept any order. In the event of partial shipment of an order, the order shall be accepted only to the extent of such shipment.
Shipping Terms. The shipping terms for all SCIENCE DIET products ordered under this Agreement will be prepaid FOB origin of shipment
which, for purposes of this Agreement, means that HILL'S shall prepay freight costs but that title and risk of loss shall pass from HILL'S to
Shelter at the point the SCIENCE DIET products are loaded onto the common carrier at HILL'S plant or warehouse facility. Unless otherwise
specified in this Agreement, shipping terms used in this Agreement shall have the meanings adopted by the International Chamber of Commerce
in "iNCOTERMS - 2000".
PUmcnt of Shipping and Handling.
(a) Unless Shelter shall have secured prior written approval from HILL'S in Topeka, Kansas, of other terms of payment, payment shall be
made by Shelter in U.S. dollars.
(b) Terms of payment shall be determined at the sole discretion of HILL'S and will be communicated to the Shelter in writing, Shelter shall
be eligible for payment terms of Net 30 Days from date of invoice, provided HILL'S receives and approves the following Shelter
documents: (a) annual audited financial statements (within 90 days of year end); and (b) quarterly internal financial statements (true and
accurate profit and loss statement, balance sheet and cash flow statement) if available. Shelter rust provide true and accurate annual
financial information in order to remain on 30 -day terms.
(c) Shelter's account with HiLL'S must remain current at all times. Failure by Shelter to make payments when due may result in HILL'S
denial of further shipments until Shelter's account is brought current.
(d) A monthly charge of 1.5% or the highest allowable interest will be applied to any past due balance. A charge of 515.00 will be added to
any dishonored check/instrument, in addition to any other charge permitted under the laws of the State of Kansas. Past due accounts are
subject to HILL'S credit limits/restrictions. In the event litigation or collection action is commenced by HELL'S to enforce payment of
any overdue balance on Shelter's account, Shelter shall be responsible for payment of all HILL'S legal fees, court costs, and other
expenses incurred by HILL'S or their authorized agent in relation thereto.
Damaged/Outdated Product. Shelter shall not, under any circumstances and regardless of whether or not Shelter is entitled to remedy from Hill's
in accordance with Hill's limited warranty as set forth below, sell or transfer any damaged or out-of-date product without prior inspection and
written consent of BILL'S. Product shall be considered to be damaged in any of the following circumstances: (i) for spoilage by fire, water or
other such occurrence; (2) if Shelter claims it is damaged and HILL'S approves such claim, or (3) if it is considered by HiLUS to be in a
condition which is inappropriate for sale. SCIENCE DIET products shall be considered out of date after the "Best Before" date stated on the
packaging. In the event product becomes damaged or out-of-date, FALL'S reserves the right at its sole option to require Shelter either to dispose
of such product in accordance with HILL'S instructions and to provide HILL'S with proof of such disposition or to return such product to a place
to be designated by HILL'S at HILL'S expense.
Limited Warranty of HILL'S
(a) HILL'S warrants that all SCIENCE DIET products packaged in cans will remain merchantable for eighteen (18) months from the date of
manufacture as provided on such packaging. HILL'S warrants that all dry SCIENCE DIET products will remain merchantable for
twelve (12) months from the date of manufacture as provided on such packaging. This limited warranty does not extend to products
which are (i) not kept between 50-120 degrees Fahrenheit at all times after shipment by HILL'S. or (ii) which are not stored in a
commercially reasonable manner, or (iii) which are not stored in an appropriate insect and rodent controlled environment, or (iv) which
are stored in damaged packaging, unless the packaging was damaged before shipment by HPLL'S, or (v) which are otherwise damaged
by fire, flood, storm, earthquake or other such occurrence in any way after shipment by Hill's to Shelter.
(b) HILL'S liability for any loss or damage arising out of or in connection with the sate or use of SCIENCE DIET products shall be limited
to replacement of any defective products and in no event shall HILL'S be liable for consequential, special, indirect or other damages
resulting from commercial loss.
(c) Claims for loss or damage arising out of or connected with the sate or use of SCIENCE DIET products must be submitted in accordance
with HILL'S published bulletins regarding such claims. These bulletins, as amended from time to time, will be furnished to Shelter by
HiLL'S.
LIMITATION OF LIABILITY_ THE FOREGOING LiMiTED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING LIMITED WARRANTIES ARE
LIMITED TO DEFECTS SOLELY ATTRIBUTABLE TO HILL'S. IN NO EVENT WILL HILL'S BE LIABLE FOR
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES IN ANY ACTION, EVEN IF HILL'S HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
2009 Shelter Agreement Page 8 of 8