Supply Agreement, by and between Monro Service Corporation and Valvoline LLC, dated June 28, 2017 and effective as of June 1, 2017

1.

TERM.  The term of this Agreement (the “Term”) begins on June 1, 2017 (the “Effective Date”) and expires, unless sooner terminated under this Agreement, thirty-eight (38)  months after the Effective Date (the “Expiration Date”).    

2.

SUPPLY AGREEMENT. From time to time as directed by Customer, Supplier shall supply Products (defined below) to certain locations operated by Monro Muffler Brake, Inc. the “Company”),  as the parent company of Customer, as such locations are set forth on Schedule A (“Customer Locations”).  Schedule A may be updated from time to time during the Term as follows:

3.

Price.  

(a)

As of the Effective Date of this Agreement, Customer shall begin paying to Supplier the applicable “Invoice Price” for the Products, as outlined in Schedule B attached hereto (the “Invoice Prices”).

(b)

Thereafter, price adjustments to the Invoice Prices shall follow the guidelines established on Schedule C.

(c)

Customer is responsible for payment of all applicable taxes, fees and other government-imposed charges, whether or not included in such prices.  If compliance with law prevents Supplier from charging or Customer from paying the price provided in this Agreement, any resulting failure to perform shall be excused pursuant to Section 26 hereof.  Each delivery hereunder shall be considered a separate sale.

4.

Payment Terms. Customer will initiate payment for the undisputed portion of each Invoice Amount on a ***. 

5.

PROMOTIONAL SUPPORT AND DEVELOPMENT FUNDS.  Promotional support and Development Funds to be provided by Supplier pursuant to this Agreement are described in the attached Schedule E hereto and incorporated herein by reference.

6.

FREIGHT.  Supplier agrees to deliver the Products to the Customer’s warehouse destinations as may be agreed to in writing in advance by the parties hereto, freight prepaid, FOB the Customer’s receipt address for regular stock orders meeting prepaid shipment minimums. Freight will be prepaid on orders of *** units or more.  For orders less than *** units, freight will be added to the bottom of the invoice.  Supplier agrees to allow the Customer to transport orders from the Supplier’s designated shipping/receiving point.  If Customer shall transport from Supplier, Supplier will issue a credit to the Customer equaling the prevailing freight charge of Supplier’s preferred motor carrier.

7.

Order Fulfillment. Except for events of force majeure contemplated herein, all orders will be shipped within five  (5) working days from receipt of order where the applicable distributor’s normal delivery schedule allows for the same; provided, that, in some instances, a distributor may take up to ten (10) working days from receipt of order to ship such order, consistent with past business practices between Supplier and Customer for drum and bulk packaged products.

8.

SUPPLIER PRODUCT WARRANTIES.    Supplier shall provide an engine guarantee and VPS engine guarantee consistent with those outlined in Schedule D; provided, that, the engine guarantee and VPS engine guarantee are subject to change from time-to-time by Supplier in its sole discretion, but any such changes shall be consistent with those applied across the engine guarantee and VPS engine guarantee programs to all of Supplier’s customers.  If the Supplier discontinues an applicable warranty or materially alters the warranties provided, Supplier will honor such warranty, as set forth on Schedule D, for the remainder of the Term.

9.

PRODUCT CATALOGS.  Supplier agrees to provide complete and accurate lubricant specifications catalog information to  Customer.  All electronic data must be supplied in the then-current format specified by the Automotive Aftermarket Industry Association (“AAIA”). 

(a)

Electronic information shall be provided at least semi-annually, and provided in its entirety;

(b)

Electronic information shall provide the correct Supplier part information for the specific vehicle application as well as Supplier’s chosen manufacturer’s part information, without regard to Customer’s decision to stock such part; and

(c)

Supplier shall provide, upon release of same, a quantity of each catalog, specification guide  or other such media, in an amount sufficient to supply each location operated or managed by Customer.

(d)

Supplier will reimburse Customer for the cost of an electronic subscription to ***.

10.

PRICING ON NEW PRODUCTS.  In the event Supplier introduces new products (“New Products”) to its product line during the Term of this Agreement, based upon changes to formulation, product engineering or similar events occur, as mandated for continued certification of product by American Petroleum Institute (“API”) or International Lubricants Standardization and Approval Committee Supplier agrees that CUSTOMER’s pricing on the New Products will be subject to the same discounts and credits to Supplier’s standard invoice pricing on the New Products as provided for in this Agreement.

11.

Consideration. Customer has given, and Supplier has received and accepted, adequate, good, and valuable consideration for this Agreement. Customer’s adequate, good, and valuable consideration includes the mutual covenants, obligations, and promises herein and the following (which separately and together have enabled Supplier to execute and deliver this Agreement and have assisted and will assist Supplier’s performance of its obligations under this Agreement): (1) Customer, one of the U.S.’s largest providers of automotive under-car repair and tire services, has at great length discussed and upon reasonable request during the Term will discuss its business needs with Supplier for the purpose of enabling Supplier to make compelling business proposals to Customer; (2) Customer has entered into negotiations with Supplier that are expected to culminate in the execution and delivery of this Agreement, which Customer advises gives Supplier certain advantages over other suppliers of automotive lubricants; (3) Customer has provided and upon reasonable request during the Term will provide information to Supplier about Customer’s operations; (4) in this Agreement, Customer agrees to purchase a minimum quantity of ***; and (5) in this Agreement, Customer agrees with Supplier to negotiate in good faith to determine the price for products not listed on Price List that Customer purchases from Supplier, if any. Supplier has bargained for and will receive material benefits, interests, rights and value from Customer through such consideration and that Supplier is not entitled to and would not have received such benefits, interests, rights and value absent this Agreement. This Agreement is legally binding; and Supplier will not, directly or indirectly, plead or otherwise assert in any manner in any litigation, arbitration, mediation, or other dispute-resolution proceeding that this Agreement is invalid, void, voidable, revocable, terminable, or otherwise unenforceable for lack of or insufficiency of consideration; and by this Agreement irrevocably waives and will be estopped from pleading or asserting, directly or indirectly, any cause of action, claim, defense, right, or prayer for relief to such effect. Each of Supplier’s waivers in this Section 11 is reasonable and made with Supplier’s full knowledge of its significance and consequences.

12.

Representations and Warranties. Customer and Supplier each represents and warrants to the other that (i) it has the right, power and authority to grant the rights provided in this Agreement and to perform its obligations under this Agreement, and (ii) its execution, delivery, and performance of this Agreement have been duly authorized and will not violate any other agreement, restriction, or law to which it is a party or by which it is bound.

13.

NOTICE.  Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested) or personal delivery to the other party at the address below, provided, that either party may change the mailing address or other information provided for it by written notice given in accordance with this Section 10:

14.

TERMINATION; REMEDIES.  This Agreement may be terminated only by mutual consent of the parties in writing prior to the expiration hereof or by either the Supplier or Customer, as applicable, without cost or penalty if any one or more of the following events occur during the term of this Agreement:

(a.)

by either of the Parties if the other party materially defaults in the performance of or breaches any provision of this Agreement and does not cure the same within thirty (30) days after receipt of written notice of such default or breach;

(b.)

by either party if any payment due by the other party is unpaid when due and remains unresolved for thirty (30) days after written notice to the default party by the non-defaulting party;

(c.)

by either of the Parties if, with respect to the other party, any proceeding in bankruptcy is filed, or any order for relief in bankruptcy is issued, by or against such party, or if a receiver for such party or its premises is appointed in any suit or proceeding brought by or against party, or if there is an assignment by such party for the benefit of that party’s creditor(s);

(d.)

by Customer, if Supplier is acquired, either directly or indirectly, through the sale of assets, merger, or otherwise by a direct competitor of Customer;  

(e.)

by Supplier, if the Customer is acquired, either directly or indirectly, through the sale of assets, merger, or otherwise by a direct competitor of Supplier; or

(f.)

by Customer, in the event that a change of control of Supplier shall result in a party, person or corporate entity controlling a majority share of Supplier and such party, person or corporate entity shall be a citizen of, or based in, a country which is, or becomes, listed on the United States of America’s Department of State’s Office of Defense Trade Control’s Embargo Reference Chart.

15.

ETHICAL BUSINESS PRACTICE.  Customer and Supplier, respectively, acknowledge that each of its employees is required to maintain the highest standards of honesty, integrity and trustworthiness.  In particular, reference is made to the “Monro Muffler Brake, Inc. Code of Ethics,” which may be found online at http://www.monro.com/Corporate/Corporate-Governance and which applies to all employees of Customer. As such, both Parties affirm that they will conduct themselves, with respect to this Agreement, in accordance with these standards.

16.

Relationship of the Parties.  The relationship of Supplier and its employees, agents, and contractors to Customer is at all times that of independent contractors, and Supplier will not represent Customer as Customer’s agent, employee, or partner in any manner. Supplier has no authority to enter into any contract or incur any expense or obligation in Customer’s name.

17.

CONFIDENTIALITY.

a.

Confidential Information. “Confidential Information” means any information, whether disclosed in oral, written, visual, electronic or other form, which any party discloses or observes in connection with any other parties performance under this Agreement that relates to business plans, strategies, forecasts or analyses; financial information; employee, customer or vendor information; software (including all documentation and code), hardware or system designs, architectures or protocols; specifications for the Products or other products; Supplier and Customer purchasing, logistics, sales, marketing and other business processes; or the terms of this agreement.

b.

Each party shall use Confidential Information and reproduce materials containing Confidential Information only as necessary to perform its obligations under this Agreement. Each party shall restrict disclosure of Confidential Information to its personnel who have a need to know such information to perform its obligations under the Agreement and who have first agreed to be bound by the terms of this Section. Each party is liable for an unauthorized disclosure or use of Confidential Information by any of its current or former personnel. Within ten (10) days after receiving a written request, a party shall destroy or return (as instructed) any materials containing Confidential Information.

c.

Exceptions to Confidential Treatment. The obligations under this Section do not apply to Confidential Information that a party can demonstrate: 

18.

No Waiver.  This Agreement’s terms, covenants and conditions may be waived only by a written instrument signed by the party waiving compliance. Any party’s failure at any time to require performance of any provision shall, in no manner, affect that party’s right to enforce that or any other provision at a later date. No waiver of any condition or breach of any provision, term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed or to be construed as a further or continuing waiver of that or any other condition or of the breach of that or that provision, term or covenant of this Agreement.

19.

ENTIRETY OF CONTRACT.  This writing is intended by the Parties as the final, complete and exclusive statement of the terms, conditions and specifications of their agreement and is intended to supersede all previous oral or written agreements and understandings between the parties relating to its specific subject matter.  No employee or agent of Supplier has authority to make any statement, representation, promise or agreement not contained in this Agreement.  No prior stipulation, agreement, understanding or course of dealing between the parties or their agents with respect to the subject matter of this Agreement shall be valid or enforceable unless embodied in this Agreement.  No amendment, modification or waiver of any provision of this Agreement shall be valid or enforceable unless in writing and signed by all parties to this Agreement.  This Agreement shall supersede, and shall not be modified or amended in any way by the terms of, any purchase order which may be issued by Customer for the purchase of product hereunder.

20.

SEVERABILITY.  If any provision of this Agreement or the application of any such provision to any person or circumstance is held invalid, the application of such provision to any other person or

21.

Survival. All obligations of Customer and Supplier that expressly or by their nature survive the expiration or termination of this Agreement, including the obligation of either party to pay any amounts accrued hereunder, will continue in full force and effect beyond the expiration or termination of this Agreement and until they are satisfied or by their nature expire.

22.

INDEMNIFICATION. To the fullest extent permitted by law, Supplier shall defend, indemnify and hold Customer, its parent, subsidiaries, related entities and their respective officers, directors and employees harmless from and against any and all claims, suits, damages, losses, liabilities, fines, penalties, costs or expenses (including reasonable attorney’s fees) arising from or related to (i) Supplier’s negligence, gross negligence or willful misconduct in the performance of its duties and obligations hereunder, or (ii) any violation of applicable law by Supplier or its products and services. 

23.

INSURANCE. Supplier shall procure and maintain at its sole expense throughout the term of this Agreement, the following minimum levels of insurance coverages:

24.

GOVERNING LAW.    THIS AGREEMENT HAS BEEN DELIVERED AND ACCEPTED AND SHALL BE DEEMED TO HAVE BEEN MADE AT ROCHESTER, NEW YORK.  Any dispute, claim or controversy arising out of or related to this Agreement (or any of the Agreements attached hereto as schedules) or breach, termination or validity thereof, may be, by mutual consent of the Parties, settled by arbitration conducted expeditiously in accordance with the commercial Arbitration Rules of the American Arbitration Association (“AAA”).  Within ten (10) business days of the filing of arbitration, the Parties shall select a sole independent and impartial arbitrator in accordance with such Rules.  If the Parties mutually agree to arbitration, but are unable to agree upon an arbitrator within such period, the AAA will appoint an arbitrator on the eleventh (11th) day, which arbitrator shall be experienced in

25.

PRODUCT IDENTIFICATION.  Supplier shall have the right at any time to change or discontinue use of any trademark, service mark, grade designation, trade dress, trade name or other indication of source of origin (“Marks”) under which the Products are sold and shall give 120 day written notice of any such change or discontinuation to Customer.  Supplier shall also have a right at any time to change or discontinue a product so long as 120 day written notice is given to the Customer.  If, however, the Supplier fails to provide a reasonable and/or similar replacement product, the Customer shall have the right to terminate this Agreement.  Customer shall use its best efforts to maintain the quality, good name and reputation of Supplier and the Products.  Only the Products shall be stored or sold using any equipment or container which bears the Marks.  Supplier grants to Customer a license to use the Marks only to identify the Products, and store and advertise the Products.  Customer shall not alter in composition, co-mingle with products from other sources, or otherwise adulterate the Products.  Customer shall not bring or cause to be brought any proceedings, either administrative or judicial in nature, contesting Supplier’s ownership of rights to, or registration of Marks.

26.

FORCE MAJEURE.  The parties to this Agreement shall not be responsible for any delay or failure to perform under this Agreement (other than to make payments when due hereunder) if delayed or prevented from performing by act of God; transportation difficulty; strike or other industrial disturbance; any law, regulation, ruling, order or action of any governmental authority; any allocation or shortage of product, as determined by Supplier in its sole discretion; or any other cause or causes beyond such party’s reasonable control whether similar or dissimilar to those stated above.  It is specifically acknowledged that any amount of Product that Supplier fails to provide to Customer pursuant to the terms of this Section will be credited toward this Agreement.

27.

COMPLIANCE WITH LAWS/TAXES.  Customer shall, at its own expense, (i) comply with all applicable laws, regulations, rulings and orders, including without limitation those relating to taxation, workers’ compensation, and environmental protection; and (ii) obtain all necessary licenses and permits for the purchase and sale of the Products.

28.

SUPPLIER’S RIGHT TO INSPECT.  Supplier, or its authorized agents, shall have the right, but not the obligation to inspect Customer’s premises, sample, monitor or test any motor oil, grease or filter offered for sale, and to inspect or test any tank, line, pump, dispenser, or other operating equipment, including without limitation equipment owned by Customer, used at Customer’s premises bearing the Marks, or being represented to contain the Products, at any time during Customer’s business hours. At least seventy-two (72) hours prior to any such inspection, Supplier shall provide Customer with a written notice of such inspection and shall permit Customer to have management present during such inspection.

29.

TIME OF THE ESSENCE.  In performing all obligations under this Agreement, time is of the essence.  The failure of any party hereto to exercise any right such party may have with respect to breach of any provision of this Agreement shall not impair or be deemed a waiver of such party’s rights with respect to any continuing or subsequent breach of the same or any other provision of this Agreement.