In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
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Question: CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [*]. THE  CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

                             SPONSORSHIP AGREEMENT

This agreement (Agreement) is entered into as of the 15th day of December, 1997 (Effective Date), by and between Excite, Inc., a California corporation, located at 555 Broadway, Redwood City, California 94063 (Excite), and NetGrocer, Inc. a Delaware corporation, located at 333 Seventh avenue, 11th Floor, New York, NY 10001 (NetGrocer).

                                    RECITALS

A.       Excite maintains a site on the Internet at http://www.excite.com (the          Excite Site) and owns and/or manages related World Wide Web sites          worldwide (collectively, the Excite Site and the related web sites are          referred to as the Excite Network) which, among other things, allow          its users to search for and access content and other sites on the          Internet.

B.       Within the Excite Site, Excite currently organizes certain content          into topical channels, including a Shopping Channel.

C.       NetGrocer operates an online supermarket service at its Web site          located at http://www.netgrocer.com (the NetGrocer Site).

D.       NetGrocer wishes to promote use of the NetGrocer Site to Excite's          users by sponsoring the Excite Shopping Channel and purchasing banner          advertising and other promotional links on the Excite Site.

1.       SPONSORSHIP

         a)       Excite will promote NetGrocer in the Excite Shopping Channel                   as follows:

                  i)       For the term of this Agreement, Excite will display                            a text and/or graphic link (consistent with the                            format used on similar links on the same page) to                            the NetGrocer Site on the Excite Shopping Channel                            main page.

                  ii)      Excite will display a text and/or graphic link                            (consistent with the format used on similar links on                            the same page) to the NetGrocer Site in the home                            page of the Excite Shopping Channel Such a Deal                            promotion in four separate one-week segments during                            each year of the term of the Agreement, once every                            calendar quarter.

                  iii)     Excite will display a text and/or graphic link                            (consistent with the format used on similar links on                            the same page) to the NetGrocer Site in the home                            page of the Excite Shopping Channel Shop Here                            First promotion in four separate one-week segments                            during the term of the Agreement, once every                            calendar quarter. Excite shall not display the link                            under this Section 1 (a)(iii) in the same weeks as                            the promotional link under Section 1 (a)(ii).

                  iv)      For the term of the Agreement, Excite will display a                            text and/or graphic link (consistent with the format                            listed on similar links on the same page) to the                            NetGrocer Site on the front page of the Gourmet and                            Groceries department of the Excite Shopping                            Channel.

                  v)       Excite will display a text and/or graphic link                            (consistent with the format used on similar links on                            the same page) to the NetGrocer Site in the Shop                            Here First promotion in the Gourmet and Groceries                            department of the Excite Shopping Channel for the                            term of the Agreement. Such link will be displayed                            as the left-most link or top-most link at least                            fifty percent (50%) of the time.

                  vi)      Excite currently plans to develop a coupon promotion                            area in the Excite Shopping Channel, tentatively                            called Coupon Corner. When launched, Excite will                            display an advertising banner or text or graphic                            link (consistent with the format used on similar                            links on the same page) to the NetGrocer Site will                            Coupon Corner for the remainder of the term of the                            Agreement.

         b)       Excite will promote NetGrocer in the Excite Site as follows:





                  i)       For the term of the Agreement, Excite will display a                            link to the NetGrocer Site (consistent with the                            format used on similar links on the same page) in                            the default configuration of the Favorite Links                            listing of Web sites on the home page of the Health                            & Fitness and the Food & Drink departments of the                            Lifestyle Channel, and the home page of the                            Lifestyle Channel in the Excite Site.

                  ii)      For the term of the Agreement, Excite will display a                            text and/or graphic link (consistent with the format                            used on similar links on the same page) to the                            NetGrocer Site on the Exciting Stuff' promotion on                            the home page of the Lifestyle Channel and the home                            page of the Food & Drink department of the Lifestyle                            Channel in the Excite Site.

                  iii)     Excite will display a text and/or graphic link                            (consistent with the format used on similar links on                            the same page) to the NetGrocer

                                      -2-

                           Site in the area reserved for promotional rotations                            on the home page of the Excite Site for one week in                            each year of the term of the Agreement.

                  iv)      Excite will display NetGrocer's advertising banners                            in the Lifestyle and Shopping Channels on the Excite                            Site.

                  v)       Excite will display a link (consistent with the                            format used on similar links on the same page) to a                            co-branded version of the NetGrocer Site in the                            Try, These First area on Excite Search results                            pages in response to mutually determined relevant                            search terms. The co-branded version of the                            NetGrocer Site will comply with Excite's                            then-current standards applicable to third party                            sites promoted through Try, These First links.

                  vi)      For the term of the Agreement, Excite will display a                            link to the NetGrocer Site (consistent with the                            format used on similar links on the same page) in                            the default configuration of the services or                            comparable module on the default configuration of                            the My Excite Channel.

         c)       Excite will display NetGrocer's advertising banners on Excite                   Search results pages on the Excite Site in response to                   mutually determined keywords, including the following:                   NetGrocer, Peapod, Oncart, Shoppers Express, grocery,                   groceries, women, female, disabled, senior, military, family,                   baby, kids, children, pets, dogs, cats staples, supermarket,                   drug store, and club store. Excite will work with NetGrocer                   to develop a more extensive list of keywords and, when Excite                   implements keyphrase advertising banners, Excite will                   work-with NetGrocer to develop a mutually-determined list of                   keyphrases.

         d)       For the term of the Agreement, Excite will display                   NetGrocer's advertising banners in general rotation on the                   Excite Site, on the MailExcite free email service and on                   Excite's Internet chat service.

         e)       Excite will use reasonable commercial efforts to deliver [*]                   Impressions of the promotional placements and advertising                    banners described in Sections 1 (a) - (d) in the first year                    of the term of the Agreement and to deliver [*] Impressions                   of the promotional placements and advertising banners                    described in Sections 1 (a) - (d) in the second year                   of the term of the Agreement. For the purposes of this                   Agreement, an Impression is defined as any link to the                   NetGrocer Site, whether graphic, text or any combination of                   graphic and text, served by Excite to a user as part of an                   HTML page, part of the Excite's Internet chat service or part                   of search results displayed in Excite Shopping Service                   powered by Jango.

                                      -3-

         f)       Excite guarantees that it will deliver [*] Click-throughs on                   the promotional placements and advertising banners described                   in Section 1 (a) - (d) in the first year of the term of the                   Agreement by delivering [*] of the annual guaranteed                   Click-throughs in the first quarter of the first year of                   the term of the Agreement, a cumulative total of [*] of the                   annual guaranteed Click-throughs in the second quarter of                   the first year of the term of the Agreement, a cumulative                   total of [*] of the annual guaranteed Click-throughs in                   the third quarter of the first year of the term of the                   Agreement and a cumulative total of 100% of the annual                   guaranteed Click-throughs in the fourth quarter of the





                  first year of the term of the Agreement. Excite guarantees                   that it will deliver four million fifty thousand (4,050,000)                   Click-throughs on the promotional placements and                   advertising banners described in Section 1(a) - (d) in the                   second year of the term of the Agreement by delivering [*] of                   the annual guaranteed Click-throughs in the first quarter                   of the second year of the term of the Agreement, a cumulative                   total of [*] of the annual guaranteed Click-throughs in the                   second quarter of the second year of the term of the                   Agreement, a cumulative total of [*] of the annual guaranteed                   click-throughs in the third quarter of the second year of                   the term of the Agreement and a cumulative total of 100% of                   the annual guaranteed Click-throughs in the fourth quarter                   of the second year of the term of the Agreement. For the                   purposes of this Agreement, a Click-through occurs when a                   user activates the link to the NetGrocer Site (the address or                   addresses of which are provided by NetGrocer for such                   Impression) contained in an Impression and (i) the activation                   of the link to the NetGrocer Site is recorded by Excite's                   servers or (ii) in the case of Try These First links only,                   until Excite has the technical capability to count the                   activation of Try These First links to the NetGrocer Site,                   the user is referred to the NetGrocer Site through the                   activation of a Try These First' link and the referral is                   recorded by NetGrocer's servers. Until Excite has the                   technical capability to count the activation of Try These                   First links to the NetGrocer Site, NetGrocer will report to                   Excite the number of Try These First referrals it records                   within twenty (20) days following the end of each calendar                   month.

         g)       If Excite misses any quarterly guaranteed Click-through                   amount, Excite will make good the difference within [*]                   days following the end of such quarter. If Excite does                   not make good the difference within [*] days, NetGrocer may                    suspend (but not eliminate) its payments of the sponsorship                    and advertising fees described in Section 5(b) and 5(c) until                   the make-good is delivered, at which time NetGrocer will                    resume its payments of the sponsorship and advertising fees.

         h)       Excite will use commercially reasonable efforts to maintain                   the Excite Network and display the promotional placements and                   advertising banners

                                      -4-

                  described in Section 1 (a) - (d) during the term of the                   Agreement and to display the promotional placements and                   advertising banners on the Excite Site in the following                   proportions: [*] in the Shopping Channel, [*] in the other                   targeted Channels and keyword banners and [*] in general                   rotation.

         i)       The content and design of the advertising banners described                   in Section 1(a) - (d) will be created by NetGrocer subject to                   Excite's then-current standards applicable to advertising                   banners.

         j)       Excite will provide account management support for                   NetGrocer's sponsorship of the Excite Site. Excite and                   NetGrocer will hold monthly review of the performance of the                   promotional placements and advertising banners described in                   Section 1 (a) - (d) and the sponsorship objectives.

2.       LAUNCH DATE

         a)       The Launch Date is the date of the first display of the                   promotional placements and advertising banners described in                   Sections 1 (a) - (d). The parties intend that the Launch Date                   will be December 15, 1997.

         b)       NetGrocer and Excite will use reasonable efforts to achieve                   the scheduled Launch Date provided that, no later than                   fourteen (14) days prior to the scheduled Launch Date,                   NetGrocer provides final versions of all graphics, text,                   keywords, banner advertising, promotional placements, other                   promotional media and valid URL links necessary to implement                   the promotional placements and advertising banners described                   in Section 1 (a) - (dj (collectively, Impression Material)                   to Excite.

         c)       In the event that NetGrocer fails to provide the Impression                   Material to Excite fourteen (14) days in advance of the                   scheduled Launch Date, Excite may (i) reschedule the Launch                   Date according to the availability of Excite's engineering                   resources after delivery of the complete Impression Material                   or (ii) commence delivery of Impressions based on Impression                   Material in Excite's possession at the time.

         d)       NetGrocer may revise, update and/or replace the Impression                   Material at any time in its sole discretion. Within three (3)                   business days of Excite's receipt of any revised advertising                   banners, Excite shall replace the former advertising banners                   with the updated advertising banners. Text and/or graphics in                   the Exciting Stuff' and Such A Deal promotions may be





                  replaced with new text and/or graphics twice per month. All                   other text links may be replaced with new text links once per                   month.

                                      -5-

3.       EXCLUSIVITY

         a)       For the term of the Agreement, Excite will not enter into any                   agreement to display and shall not display on the Excite Site                   content created by Excite promoting NetGrocer's                   Competitors, content created by NetGrocer's Competitors,                   promotional placements and/or advertising banners from                   NetGrocer's Competitors or make available on the Excite Site                   online supermarket sales offered by NetGrocer's Competitors.

         b)       For the purposes of this Agreement, Competitors means                   online supermarkets, which offer selections of consumer                   packaged goods and groceries comparable to NetGrocer or                   off-Web supermarkets, as listed in Exhibit A. The parties may                   amend Exhibit A from time to time and Excite will not                   unreasonably withhold its consent to the inclusion of bona                   fide Competitors submitted by NetGrocer.

         c)       In the event of a dispute between the parties regarding the                   inclusion or exclusion of an online supermarket from Exhibit                   A or the display on the Excite Site of advertising or                   promotional material from an online supermarket, the parties                   will follow the dispute resolution process described in                   Section 13(c) without the prerequisite of submitting the                   dispute to mediation. In the event that it is determined that                   Excite violated the Agreement by excluding a bona fide                   NetGrocer Competitor from Exhibit A or displayed on the                   Excite Site advertising or promotional material from a bona                   fide NetGrocer Competitor, Excite will be obligated to (i)                   immediately add the online supermarket to Exhibit A, (ii)                   immediately remove from the Excite Site any advertising or                   promotional material from the online supermarket and (iii)                   provide NetGrocer with advertising and promotional value,                   without additional cost, equal to the advertising and                   promotional value provided to the online supermarket prior to                   the removal of its advertising and promotional material from                   the Excite Site.

         d)       Notwithstanding the foregoing, Excite may display Excite                   Search results links to NetGrocer's Competitors in Excite                   Search results pages in response to user queries, may display                   links to NetGrocer's Competitors in Excite's general                   directory of Web sites and, after giving NetGrocer reasonable                   advance notice, in search results displayed in Excite                   Shopping Service powered by Jango. For the term of this                   Agreement. Excite will display links to the NetGrocer Site as                   search results displayed in Excite Shopping Service powered                   by Jango for the categories for which NetGrocer carries                   products until requested not to do so by NetGrocer.

                                      -6-

4.       CUSTOMER INFORMATION

         NetGrocer retains all right, title and interest to information          regarding customers who access the NetGrocer Site pursuant to the          Agreement.

5.       SPONSORSHIP, ADVERTISING AND CLICK-THROUGH FEES

         a)       A one-time sponsorship initiation fee of [*] is due and will                   be paid to Excite upon execution of the Agreement as                   compensation for costs of initiating access to the Excite                   Network, set-up costs and other expenses associated with                   Excite's initiation of the links, placements, advertisements                   and promotions contemplated by this Agreement.

         b)       Separate and apart from the one-time sponsorship initiation                   fee NetGrocer shall pay to Excite sponsorship and advertising                   fees for the first year of the term of the Agreement in the                   total amount of [*] payable in nine equal monthly                   installments of [*], commencing on March 15, 1998. NetGrocer                   will pay the remainder of the monthly installments on or                   prior to the fifteenth day of each of the next eight (8)                   calendar months.

         c)       Separate and apart from the one-time sponsorship initiation                   fee, NetGrocer shall pay to Excite sponsorship and                   advertising fees for the second year of the term of the                   Agreement in the total amount of [*] payable in equal monthly                   installments of [*], commencing on December 15, 1998.                   NetGrocer will pay the remainder of the monthly installments                   on or prior to the fifteenth day of each of the next eleven                   (11) calendar months.

         d)       Separate and apart from the one-time sponsorship initiation                   fee and sponsorship and advertising fees, NetGrocer will pay





                  Excite [*] for each Click-through on the promotional                   placements and advertising banners described in Section 1(a)                   - (d) occurring during that year in excess of [*] during the                   first year of the term of the Agreement. NetGrocer will make                   these Click-through payments (if any) to Excite within thirty                   (30) days of Excite's monthly report and invoice reflecting                   Click-throughs during the first year of the term of the                   Agreement in excess of [*]

         e)       Separate and apart from the one-time sponsorship initiation                   fee and sponsorship and advertising fees, NetGrocer will pay                   Excite [*] for each Click-through on the promotional                   placements and

                                      -7-

                  advertising banners described in Section 1(a) - (d) in excess                   of [*] occurring in the second year of the term of the                   Agreement. NetGrocer will make these Click-through payments                   (if any) to Excite with within thirty (30) days of Excite's                   monthly report and invoice reflecting Click-throughs during                   the second year of the term of the Agreement in excess of [*]

         f)       In its sole discretion, during the first year of the term of                   the Agreement NetGrocer may elect to terminate the display of                   its banner advertising on the Excite Network for the                   remainder of the first year of the term of the Agreement once                   the number of Click-throughs on the promotional placements                   and advertising banners described in Section 1 (a) - (d)                   exceeds [*] in the first year of the term of the Agreement.                   This election will not relieve NetGrocer of its obligation to                   make Click-through payments on non--banner Impressions.

         g)       In its sole discretion, during the second year of the term of                   the Agreement, NetGrocer may elect to terminate the display                   of its banner advertising on the Excite Network once the                   number of Click-throughs on the promotional placements and                   advertising banners described in Section 1 (a) - (d) exceeds                   [*] in the second year of the term of the Agreement. This                   election will not relieve NetGrocer of its obligation to make                   Click-through payments on non-banner Impressions.

         h)       The one-time sponsorship initiation fee, sponsorship and                   advertising fees and Click-through payments are net of any                   agency commissions to be paid by NetGrocer.

         i)       During the term of the Agreement, on a weekly basis, Excite                   will provide NetGrocer with a detailed report showing the                   number of Impressions of the advertising banners described in                   Section 1 (a) - (d) and the number of Click-throughs on the                   advertising banners described in Section 1 (a) - (d).

         j)       During the term of the Agreement, within twenty (20) days                   following the end of each calendar month, Excite will send                   NetGrocer a detailed report showing the number of Impressions                   of the different promotional placements and text links                   described in Section 1 (a) - (d) and the number of                   Click-throughs on the promotional placements described in                   Section 1 (a) - (d).

         k)       Excite will maintain accurate records with respect to                   calculation of all payments due under this Agreement.                   NetGrocer may, upon no less than thirty (30) days prior                   written notice to Excite cause an independent Certified                   Public Accountant to inspect the records of Excite reasonably

                                      -8-

                  related to the calculation of such payments during Excite's                   normal business hours. The fees charged by such Certified                   Public Accountant will be paid by NetGrocer unless the audit                   finds a discrepancy of more than five percent (5%) with                   respect to the item being audited, in which case Excite shall                   be responsible for the payment of the reasonable fees for                   such inspection.

6.       PUBLICITY

                  Neither party will make any public statement, press release                   or other announcement relating to the terms of or existence                   of this Agreement without the prior written approval of the                   other party, except as may be required to the extent advised                   by counsel for a party that such disclosure is necessary or                   appropriate to comply with applicable law. Notwithstanding                   the foregoing, the parties agree to issue an initial press                   release regarding the relationship between Excite and                   NetGrocer, the timing and wording of which will be mutually                   agreed upon,.

7.       OTHER BUSINESS OPPORTUNITIES

         a)       Excite currently plans to develop a consumer packaged goods                   (CPG) program that would combine the broad reach of the                   Excite Network with the depth of CPG merchants' industry





                  contacts and sales staffs. Under this program, Excite and                   each CPG merchant would develop co-branded Web pages on the                   Excite Network that would promote the merchant's goods cr                   provide content of interest to Excite's users. Excite would                   run dual promotional efforts, one that sends consumers to                   each CPG merchant's co-branded area and a second that sends                   consumers to the portion of the Excite Network that promotes                   the entire CPG program. Excite and NetGrocer agree to                   negotiate in good faith to establish the terms and conditions                   for NetGrocer's participation in Excite's CPG program when                   and if launched.

         b)       Excite currently plans to make available sponsorship                   opportunities on its WebCrawler Site (located at                   http://www.webcrawler.com) generally similar to the                   opportunity described by this Agreement, with the significant                   exception that merchants will not be granted category                   exclusivity or rights to exclude competitors on the                   WebCrawler Site. Excite and NetGrocer agree to negotiate in                   good faith to establish the terms and conditions for                   NetGrocer's participation in available sponsorship                   opportunities on the WebCrawler Site when and if launched.

                                      -9-

8.       TERM AND TERMINATION

         a)       The term of this Agreement will begin on December 15, 1997                   and will end the later of (i) December 15, 1999 or (ii)                   Excite's delivery of all of the guaranteed Click-throughs                   described in Section 1(f).

         b)       Either party may terminate this Agreement, in the event that                   the other party materially breaches its obligations or                   guarantees hereunder and such breach remains uncured for                   sixty (60) days following written notice to the breaching                   party of the breach.

         c)       All payments that would be due pursuant to Sections 5(b) -                   (d) up to the date of any termination or expiration of this                   Agreement will be payable in full within thirty (30) days                   following such termination or expiration.

         d)       The provisions of Section 4 (Customer Information), Section                   9(a) and 9(b), Section 10 (Confidentiality), Section 11                   (Warranty and Indemnity), Section 12 (Limitation of                   Liability) and Section 13 (Dispute Resolution) will survive                   any termination or expiration of this Agreement.

9.       TRADEMARK OWNERSHIP AND LICENSE

         a)       NetGrocer retains all right, title and interest in and to the                   NetGrocer Site, its trademarks, service marks and trade names                   worldwide, subject to the limited license granted to Excite                   hereunder.

         b)       Excite will retain all right, title and interest in and to                   its trademarks, service marks and trade names worldwide,                   subject to the limited license granted to NetGrocer                   hereunder.

         c)       Each party hereby grants to the other a non-exclusive,                   limited license to use its trademarks, service marks or trade                   names only as specifically described in this Agreement. All                   such use shall be in accordance with each party's reasonable                   policies regarding advertising and trademark usage as                   established from time to time.

         d)       Upon the expiration or termination of this Agreement, each                   party will cease using the trademarks, service marks and/or                   trade names of the other and Excite will cease the display of                   any banner advertising and/or links to the NetGrocer Site                   except as the parties may agree in writing.

10.      CONFIDENTIALITY

         a)       For the purposes of this Agreement, Confidential                   Information means information received from the disclosing                   party or any of its affiliates or representatives about the                   disclosing party's (or its suppliers') business or

                                      -10-

                  activities that is proprietary and confidential, which shall                   include all business, financial, technical trade secret and                   other information of a party marked or designated by such                   party as confidential or proprietary.

         b)       Confidential Information will not include information that                   (i) is in or enters the public domain without breach of this                   Agreement, (ii) the receiving party lawfully receives from a                   third party without restriction on disclosure and without                   breach of a nondisclosure obligation or (iii) the receiving                   party knew prior to receiving such information from the





                  disclosing party or develops independently.

         c)       Each party agrees (i) that it will not disclose to any third                   patty or use any Confidential Information disclosed to it by                   the other except as expressly permitted in this Agreement and                   (ii) that it will take all reasonable measures to maintain                   the confidentiality of all Confidential Information of the                   other party in its possession or control, which will in no                   event be less than the measures it uses to maintain the                   confidentiality of its own information of similar importance.

         d)       Notwithstanding the foregoing, each party may disclose                   Confidential Information (i) to the extent required by a                   court of competent jurisdiction or other governmental                   authority or otherwise as required by law or (ii) on a                   need-to-know basis under an obligation of confidentiality                   to its employees, legal counsel, accountants, banks and other                   financing sources and their advisors.

         e)       The terms and conditions of this Agreement will be deemed to                   be the Confidential Information of each party and will not be                   disclosed without the written consent of the other party.

11.      WARRANTY AND INDEMNITY

         a)       NetGrocer will indemnify, defend and hold harmless Excite,                   its affiliates, officers, directors, employees, consultants                   and agents from any and all third party claims, liability,                   damages and/or costs (including, but not limited to,                   reasonable attorneys fees) arising from:

                           i)       The breach of any warranty, representation                                     or covenant in this Agreement; or

                           ii)      Any claim that the advertising banners                                     created by NetGrocer infringe or violate                                     any third party's copyright, patent, trade                                     secret, trademark, right of publicity or                                     right of privacy or contain any defamatory                                     content; or

                                      -11-

                           iii)     Any claim arising from content displayed on                                     the NetGrocer Site;

                  provided that Excite will promptly notify NetGrocer of any                   and all such claims and will reasonably cooperate with                   NetGrocer with the defense and/or settlement thereof; and                   provided further that, if any settlement requires an                   affirmative obligation of, results in any ongoing liability                   to or prejudices or detrimentally impacts Excite in any way                   and such obligation, liability, prejudice or impact can                   reasonably be expected to be material, then such settlement                   shall require Excite's written consent (not to be                   unreasonably withheld or delayed) and Excite may have its own                   counsel in attendance at all proceedings and substantive                   negotiations relating to such claim.

         b)       EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES                   ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS                   AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED                   WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF                   MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE                   REGARDING SUCH SUBJECT MATTER.

12.      LIMITATION OF LIABILITY

         EXCEPT UNDER SECTION 11(a), IN NO EVENT WILL EITHER PARTY BE LIABLE TO          THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,          WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR          OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE          POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EXCITE FOR DAMAGES OR          ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER          LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE TOTAL AMOUNTS          PREVIOUSLY PAID OR TO BE PAID BY NETGROCER TO EXCITE HEREUNDER [*]

13.      DISPUTE RESOLUTION

         a)       The parties agree that any breach of either of the parties'                   obligations regarding trademarks, service marks or trade                   names and/or confidentiality would result in irreparable                   injury for which there is no adequate remedy at law.                   Therefore, in the event of any breach or threatened breach of                   a party's obligations regarding trademarks, service marks or                   trade names or confidentiality, the aggrieved party will be                   entitled to seek equitable relief in addition to its other                   available legal remedies in a court of competent                   jurisdiction.

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         b)       In the event of disputes between the parties arising from or                   concerning in any manner the subject matter of this





                  Agreement, other than disputes arising from or concerning                   trademarks, service marks or trade names and/or                   confidentiality, the parties will first attempt to resolve                   the dispute(s) through good faith negotiation. In the event                   that the dispute(s) cannot be resolved through good faith                   negotiation, the parties will refer the dispute(s) to a                   mutually acceptable mediator for hearing.

         c)       In the event that disputes between the parties arising from                   or concerning in any manner the subject matter of this                   Agreement, other than disputes arising from or concerning                   trademarks, service marks or trade names and/or                   confidentiality, cannot be resolved through good faith                   negotiation and mediation, the parties will refer the                   dispute(s) to the American Arbitration Association for                   resolution through binding arbitration by a single arbitrator                   pursuant to the American Arbitration Association's rules                   applicable to commercial disputes.

14.      GENERAL

         a)       Assignment. Neither party may assign this Agreement, in whole                   or in part, without the other party's written consent (which                   will not be unreasonably withheld), except that no such                   consent will be required in connection with (i) a merger,                   reorganization or sale of all, or substantially all, of such                   party's assets or (ii) the assignment and/or delegation of                   such party's rights and responsibilities hereunder to a                   wholly-owned subsidiary or joint venture in which that party                   holds an interest. Any attempt to assign this Agreement other                   than as permitted above will be null and void.

         b)       Governing Law. This Agreement will be governed by and                   construed in accordance with the laws of the State of                   California, notwithstanding the actual state or country of                   residence or incorporation of NetGrocer.

         c)       Notice. Any notice under this Agreement will be in writing                   and delivered by personal delivery, express courier,                   confirmed facsimile, confirmed email or certified or                   registered mail, return receipt requested, and will be deemed                   given upon personal delivery, one (1) day after deposit with                   express courier, upon confirmation of receipt of facsimile or                   email or five (5) days after deposit in the mail. Notices                   will be sent to a party at its address set forth below or                   such other address as that party may specify in writing                   pursuant to this Section.

         d)       No Agency. The parties are independent contractors and will                   have no power or authority to assume or create any obligation                   or responsibility on behalf of each other. This Agreement                   will not be construed to create or imply any partnership,                   agency or joint venture.

                                      -13-

         e)       Force Majeure. Any delay in or failure of performance by                   either party under this Agreement will not be considered a                   breach of this Agreement and will be excused to the extent                   caused by any occurrence beyond the reasonable control of                   such party including, but not limited to, acts of God, power                   outages and governmental restrictions. Notwithstanding the                   foregoing, either party may terminate the Agreement in the                   event that a delay due to force majeure continues for a                   period of sixty (60) uninterrupted days.

         f)       Severability. In the event that any of the provisions of this                   Agreement are held by to be unenforceable by a court or                   arbitrator, the remaining portions of the Agreement will                   remain in full force and effect.

         g)       Entire Agreement. This Agreement is the complete and                   exclusive agreement between the parties with respect to the                   subject matter hereof, superseding any prior agreements and                   communications (both written and oral) regarding such subject                   matter. This Agreement may only be modified, or any rights                   under it waived, by a written document executed by both                   parties.

NetGrocer                                   Excite, Inc.

By: /s/ Daniel Nissan                       By: /s/ Robert C. Hood    --------------------------                  -------------------------- Name: Daniel Nissan                         Name: Robert C. Hood      ------------------------                    ------------------------ Title: President & CEO                      Title: EVP-CFO       -----------------------                     ----------------------- Date: 12/30/97                              Date: 12-31-97      ------------------------                    ------------------------

333 Seventh Avenue                          555 Broadway 11th Floor                                  Redwood City, California 94063 New York, New York 10001                    650.568.6000 (voice                                             650.568.6030 (fax)





                                      -14-

                                   EXHIBIT A

                         LIST OF NETGROCER COMPETITORS

Peapod

Shoppers Express/Oncart

                                      -15- 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

Answer: 37557


Question: EXHIBIT 10.18

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED WITH [***], HAS BEEN EXCLUDED BECAUSE IT IS NOT MATERIAL AND WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

MASTER SUPPLY AGREEMENT

THIS MASTER SUPPLY AGREEMENT (Agreement) is made as of 31 October 2019 (Effective Date) by and between Premier Nutrition Company, LLC, a Delaware limited liability company with its headquarters located at 1222 67th Street, Suite 210, Emeryville, CA 94608 (Buyer or PNC), and Fonterra (USA) Inc., a California corporation with its principal place of business located at 8700 W. Bryn Mawr Avenue, Suite 500N, Chicago, IL 60631 (Supplier or Fonterra) (each a Party, collectively Parties).

WHEREAS PNC produces, distributes, markets and sells products including ready to drink protein shakes and beverages, powdered protein shakes, nutrition bars, and dietary supplements (the Finished Products); and

WHEREAS Supplier produces raw materials including protein powders used by PNC to produce at least some of the Finished Products;

NOW THEREFORE in consideration of their respective rights and obligations as set forth in this Agreement, and for other good and valuable consideration, the adequacy and receipt of which are acknowledged, PNC and Supplier agree as follows:

1 Supply of Ingredients

1.1 Supplier will provide such materials to PNC or its Third Party Manufacturers (TPMs) as are specified in any Master Purchase Commitment or any other purchase orders that the Parties may execute from time to time during the term of this Agreement (Ingredients). Ingredients will be produced at Supplier's facilities listed in a Master Purchase Commitment, or any other of Supplier's facilities approved in advance, in writing by PNC.

1.2 PNC or its TPMs will place specific orders for Ingredients from Supplier by issuing a purchase order that specifies, at minimum, the item, quantities, price, delivery dates, and delivery and payment terms (each a Purchase Order).

1.3 PNC and Supplier may enter certain Master Purchase Commitments from time to time during the Term of this Master Supply Agreement. Such Master Purchase Commitments and any Purchase Orders issued against such Commitments shall be subject exclusively to the terms and conditions of this Agreement. In the event the terms of any Master Purchase Commitment conflicts with the terms of this Agreement, the terms of the Master Purchase Commitment shall control.

1.4 Supplier will receive Purchase Orders by telephone, USPS, overnight courier, email, and fax transmission, Monday through Friday except on state or nationally recognized bank holidays. Purchase Orders not received by 3:00 p.m. Eastern Time are considered to be received on the following

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business day. Supplier will confirm or reject Purchase Orders within [***] of receipt of the Purchase Order. Orders not rejected in writing within such time will be deemed confirmed and accepted by Supplier. Each Purchase Order issued by PNC or its TPMs and accepted by Supplier shall be governed by the terms and conditions of this Agreement. Additional terms included in acknowledgments, standard terms and conditions, or any other documents or communications exchanged by the Parties in connection with the sale or purchase of any Ingredients shall be void and of no force or effect. The Parties may only modify, add to or amend any of the terms or conditions of this Agreement by a writing signed by authorized representatives of both Parties.

1.5 Supplier represents and warrants that at the time and date of delivery, the Ingredients will comply with all specifications (Specifications), a copy of which will be attached to the relevant Master Purchase Commitment or Purchase Order accordingly. A Specification may be updated from time to time by PNC in its sole discretion, provided PNC provides Supplier with reasonable prior notice on any updates (Change Notification). Within [***] from receipt of the Change Notification, Supplier will either: (1) accept the Specification change at the current price and terms; or (2) submit to PNC a proposal (Proposal) setting forth the conditions of acceptance that may include a change in price and/or other terms, including documentation to support same. Within [***] the Parties will discuss the Proposal in good faith and exercise their best efforts to agree on the appropriate adjustment if any. PNC will not issue any Purchase Orders, nor be required to issue any Purchase Orders to Supplier until PNC and Supplier have agreed on required Ingredient Specifications and any associated price and/or term adjustment. In the event the Parties fail to agree on required Ingredient Specifications or price and/or term adjustments despite their best good faith efforts, neither Party will have any further obligation with regard to purchase or supply of those Ingredients under any Master Purchase Commitments except that PNC shall take and pay for [***] of Ingredient inventory manufactured according to the then-current Specification.

1.6 Supplier will provide a Certificate of Analysis (COA) completed in accordance with the Specifications with any shipment of Ingredients.

1.7 INTENTIONALLY LEFT BLANK

1.8 This Agreement is nonexclusive and sets forth the terms and conditions under which the Parties will supply and purchase Ingredients from the other Party. Nothing herein is intended to, nor does, guarantee that either Party will supply or purchase any specific, item, in any specific quantity, or conclude any business transaction with the other.

1.9 Supplier Performance metrics will be identified and tracked periodically through Supplier Performance Review meetings no more frequently than each calendar quarter during the Term. [***] Metric targets will be established by PNC and agreed by Fonterra and updated as needed. The ultimate goal is zero defects for quality and administrative compliance issues.

1.10 Supplier agrees to make a good faith effort to provide Advance Ship Notices (ASN) with bar-coded pallet labels; Invoices, Purchase Orders and other business transactions, as may be advised by PNC, for each Ingredient shipment. Supplier will provide, itself or through a third-party provider, the information via Electronic Data Interface (EDI) if and as requested by PNC. The technical specifications for all required EDI transactions will be provided by PNC.

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2 Quality and Food Safety

2.1 For the purposes set forth in Section 303(c) of the Federal Food, Drug, and Cosmetic Act (the Act), Supplier guarantees to PNC that as of the time and date of delivery, all Ingredients will not be adulterated or misbranded within the meaning of the Act, nor will any Ingredients constitute an article that may not, under the provisions of Sections 404 and 505 of the Act, be introduced into interstate commerce. The Supplier further guarantees that as of the time and date of delivery, all of the Ingredients will be in compliance with all applicable laws, regulations, requirements and programs including those administered by the Food and Drug Administration (the FDA), the United States Department of Agriculture (the USDA) and any state or local food or drug laws then in effect. This guarantee specifically includes Proposition 65 (California Safe Drinking Water and Toxic Enforcement Act), and Supplier hereby certifies that the Ingredients will not contain any non-naturally occurring chemicals subject to Proposition 65 or that any such chemicals pose no significant risk or cause no observable effect as set forth in the California Health and Safety Code, 22 CCR §§ 12701 et seq. and 22 CCR §§ 12801 et seq., as amended. Supplier shall comply with all applicable regulatory requirements for determining and documenting that all Ingredients are at or below no significant risk levels and no observable effect levels, as applicable.

2.2 Supplier shall develop and maintain a food safety/food defense program as required under the Food Safety Modernization Act 21 USC §301 et seq and shall submit a copy of such plan (and any changes thereto) to PNC upon PNC's request. Supplier will conduct [***] third-party food safety/food defense audits (the Audits) in compliance with, and consistent with, relevant audit schemes approved by the Global Food Safety Initiatives, AIB International, Silliker, or GMA SAFE. Supplier will submit summaries of audit reports to PNC's Quality Manager at [***] upon request. Failure to comply with the requirements of this Section 2.2 will constitute a material breach of this Agreement.

2.3 Supplier will notify PNC immediately, by person-to-person voice communication or equivalent means, if any of the Ingredients contain, or are reasonably suspected to contain, material hazardous to human health, including but not limited to, chemical, physical or biological hazards.

2.4 PNC shall notify Supplier in writing if it determines any Ingredient fails to meet the Specifications. Supplier shall be given an opportunity to and will promptly inspect and/or test such Ingredients to confirm compliance to Specification. If after any reasonable, good faith inspection and testing it is confirmed that certain Ingredients fail to meet the Specifications [***].

2.5 Subject to the occurring of a Force Majeure Event, if Supplier fails to deliver the Ingredients in accordance with the Specifications, including within the time specified on the Purchase Order, in addition to any other remedies available, PNC may terminate the Purchase Order in whole or in part. In the event of such a termination, Supplier shall continue performance of any nonterminated portion of the Purchase Order, or any nonterminated Purchase Orders, and the quantity of Ingredient ordered and so terminated shall be deducted against any relevant Master Purchase Commitment.

2.6 PNC or its contracted third-party auditors may enter and audit/inspect Supplier's facilities where the Ingredients are produced, stored, packaged or otherwise processed [***] unless food safety is at issue or PNC has a good faith reason to believe the Ingredients are being stored, packaged, or processed

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in a way that is inconsistent with the Specifications, in which case an audit may be performed at any time during the Term. For routine visits and audits, PNC will provide [***] if facilities located in the US and with [***] if facilities are located [***], provided that such examination will be conducted during Supplier's normal business hours and in such a manner as to reasonably minimize disruption to Supplier's business, unless food safety is at issue, in which case such examination may be conducted at any time. Supplier shall cooperate in good faith with PNC during all such inspections. During qualification processes and on-site inspections, Supplier will present necessary documentation to ensure compliance with all applicable programs specified under 21 CFR Part 117 Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventative Controls for Human Food. Records of environmental monitoring activities by the Supplier, following Supplier's established environmental monitoring program and standard operating procedures will be made available upon request to PNC. Supplier will notify Buyer immediately via person-to- person voice communication in the event that any pathogen is found, or reasonably suspected, in the plant environment during any environmental monitoring activity that could have an impact on the quality or safety of PNC's Ingredients. In the event of an actual or suspected food safety concern, Supplier shall conduct sampling in all relevant areas and promptly provide results of such tests to PNC. If PNC or its representatives find that any of Supplier's facilities, processes, inventory, procedures or equipment are not in accordance or compliance with the requirements of this Agreement or applicable law or regulation, PNC will give notice to Supplier, and Supplier shall promptly take all reasonable steps to correct such deficiency as soon as possible. If correction of the deficiency cannot be affected within [***] of such notice, then Supplier shall promptly notify PNC with its plan to correct the deficiency including an estimated schedule. If the deficiency cannot be corrected within [***], unless otherwise agreed, then PNC shall have the right to terminate any Purchase Orders then outstanding, along with any Master Purchase Commitment related thereto.

3 Business Continuity/Continuous Supply Assurances. Supplier will develop and maintain a business continuity plan that identifies critical pathways and potential crisis situations that could interrupt the supply of Ingredients to PNC and establish contingency plans for dealing with each crisis situation. Upon PNC's written request, Supplier will submit the business continuity plan to PNC for PNC's review.

4 Intellectual Property. 4.1 Each Party shall retain ownership of all Intellectual Property Rights (as defined below): (1) owned or licensed by that Party prior to the commencement date of this Agreement; or (2) developed or acquired independently of this Agreement by that Party or its licensors other than in connection with this Agreement. 4.2 Ownership in the Intellectual Property Rights, if any, of any developments and/or modifications to the Ingredients during the Term shall be [***]. 4.3 For purposes of this Section 4, the term Intellectual Property Rights shall mean all statutory, common law and proprietary intellectual property rights, including rights in know-how, confidential information, copyright works, designs, inventions, patents, plant varieties, trademarks and all other rights, whether registered or unregistered (including applications for such rights).

5 Confidential Information. Confidential Information means all business, financial and technical information of the Parties, or of a third- party as to whom a Party has an obligation of confidentiality, whether disclosed before or after the Effective Date and whether disclosed in writing, orally, by electronic delivery, or by inspection of tangible objects. Confidential Information includes, without limitation, trade secrets, ideas,

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processes, formulae (including formula and specifications for Ingredients and Finished Products), computer software (including source code), algorithms, data, data structures, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business and product development plans, timetables, forecasts, customer and supplier information, and information relating to product designs, specifications and schematics, product costs, product prices, product names, financial information, marketing plans, business opportunities, personnel, research, development and know-how. Confidential Information includes that which is marked or otherwise identified as confidential, as well as that which by its nature and the circumstances of its disclosure are reasonably understood to be confidential.

5.1 Maintenance of Confidentiality and Limitations on Use. Each Party will hold in strict confidence and keep confidential all Confidential Information disclosed to it by the other. The Parties will use at least the same degree of care to avoid publication or dissemination of such Confidential Information as it uses with respect to similarly confidential information of its own, but in no event less than reasonable care. Use of such Confidential Information by such Party will be strictly limited to activities directly in support of its activities under this Agreement. The Parties will disclose such Confidential Information on a need-to-know basis only, and in all events only to such employees and independent contractors who are informed of the confidential nature of the Confidential Information and are bound by obligations substantially similar to those set forth herein applicable to such Confidential Information. Each Party hereby guarantees the performance of the provisions hereof by each person obtaining disclosure of such Confidential Information directly or indirectly from such Party.

5.2 Copying and Return of Confidential Information. Each Party shall not make any copies or extracts of Confidential Information, or include such Confidential Information in its own materials except as reasonably required directly in support of its activities under this Agreement. When a Party no longer has need thereof in support of its activities under this Agreement or upon request of the other Party, whichever occurs first, such Party shall promptly cease using and shall return or destroy (and, if requested, certify destruction of) all such Confidential Information along with all tangible and electronic copies which it may have made, provided, however, that a Party is not obligated to remove Confidential Information from back up devices that have been made and are maintained in accordance with a corporate records retention policy.

5.3 Certain Exceptions. Information will not be, or will cease being, Confidential Information, as the case may be, if Supplier can show:

5.3.1 that such information entered the public domain other than by breach of this Agreement on the part of any Party obligated to confidentiality hereunder; 5.3.2 it is rightfully known to the receiving Party without obligation of confidentiality to any third-party prior to receipt of same from the disclosing Party as evidenced by bona fide written, dated documents; 5.3.3 it is independently developed by personnel of the receiving Party who have not had access to Confidential Information of the disclosing Party; and, 5.3.4 that it is generally made available to third-parties by the disclosing Party without obligation of confidentiality.

5.4 Legally Required Disclosure. A Party shall not be in breach hereof if it discloses Confidential Information pursuant to a judicial or governmental order, or as required by applicable law or the rules

5





of a recognized stock exchange, but any such disclosure shall be made only to the extent so ordered or required. In any such event, the Party (i) shall timely notify the other Party so that it may intervene in response to such order or take action to protect its interests (in which event such Party will cooperate in such effort), or (ii) if timely notice cannot be given, shall seek to obtain a protective order or confidential treatment from the court or government for such information.

5.5 Defend Trade Secrets Act. Notwithstanding anything in this agreement to the contrary, a receiving Party is hereby notified in accordance with the US Defend Trade Secrets Act of 2016 that it will not be held criminally or civilly liable under any US federal or state trade secret law for the disclosure of a trade secret that: (x) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (y) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

5.6 Trading in Securities. Supplier acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents and representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information concerning PNC, its parent and affiliate companies including BellRing Brands, Inc. and Post Holdings, Inc. from purchasing or selling securities of those companies or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

5.7 Title. As between the Parties, title or right to possess Confidential Information of PNC, except as otherwise provided herein, shall remain in PNC. Nothing in this Agreement shall be construed as granting or conferring any rights to any Confidential Information, except as otherwise explicitly stated in this Agreement.

5.8 No Representation or Warranty. Except as expressly set forth herein, neither Party makes any representations or warranties of any nature whatsoever with respect to any Confidential Information it may provide, including, without limitation, any warranties of merchantability, fitness for a particular purpose or accuracy. All Confidential Information is provided on an as-is basis, and the recipient assumes all responsibility for its use thereof or reliance thereon. Further, each Party understands and acknowledges that any confidential information received from the other Party concerning future plans may be tentative and may not represent firm decisions concerning such plans, and neither Party shall be liable to the other Party for inaccuracies in Confidential Information under any theory of liability.

6 Term and Termination.

6.1 This Agreement will commence on the Effective Date and continue for an Initial Term of five (5) years, and will automatically renew for additional periods of five (5) years unless one Party notifies the other of its intention not to renew, no less than 12 months prior to the expiration of the then-current term, unless terminated as permitted under this Agreement.

6.2 Either Party may terminate this Agreement for cause if the other Party fails to perform any material provision of this Agreement or commits a material breach of this Agreement which is not corrected within [***] after receiving written notice of the failure or breach. except that if the default is by

6





Supplier that creates an immediate public food safety risk, PNC may terminate this Agreement immediately without regard to any period for correction.

6.3 This Agreement will automatically terminate if either Party becomes insolvent or files a petition in bankruptcy, if a Party makes an assignment for the benefit of a creditor, if a receiver is appointed to take possession of any part of a Party's assets or if a Party becomes unable generally to pay its debts as they become due, or otherwise ceases to do business.

6.4 On the termination of this Agreement for any reason, all rights granted to Supplier under this Agreement will immediately cease, and Supplier must deliver to PNC all written or recorded materials relating to the Confidential Information of PNC in the possession or control of Supplier or any of its related party, subject to Section 5.2.

7 Indemnification and Insurance. 7.1 Each Party will defend and hold harmless the other Party and its subsidiaries, affiliates, officers, directors, employees, attorneys, insurers, shareholders, representatives and agents from and against any and all liabilities, losses, damages, claims, actions, proceedings, suits, costs or expenses, including reasonable attorney fees for counsel retained by the indemnified Party, brought by a Third Party, arising out of or in connection with: 7.1.1 any negligent or intentional act or omission of the indemnifying Party, its agents or employees; 7.1.2 any breach in or default by the indemnifying Party of its obligations under this Agreement; 7.1.3 any other loss, damage or injury caused by or arising out of the indemnifying Party's or its agents' or employees' on-site visits to the indemnified Party's premises; or any claims relating directly to trademark, patent or copyright infringement arising out of a Party's use of the other Party's (or its licensors') trademarks, patents or copyrights as permitted hereunder. 7.1.4 For purposes of this Section 7.1, Third Party means any individual, corporation, partnership, trust, cooperative, or other business organization or entity, and any other recognized organization, other than the Parties or their affiliates.

7.2 Except for a Party's gross negligence or intentional acts or omissions and its obligations of indemnity under this Agreement, under no circumstances will either Party be liable to the other Party for [***].

7.3 Supplier agrees to indemnify and hold PNC harmless from any and all employment-related claims, payments, entitlements, taxes, interest and penalties assessed against or obtained from PNC by any individual or authority as a consequence of or related to the performance by any agent or employee of Supplier.

7.4 Supplier shall maintain insurance with an insurance company with an equivalent of an A.M. Best rating of A or better, of the following kinds and in the following amounts during the term of this Agreement: 7.5 7.5.1 Comprehensive General Liability (CGL) Insurance with limits of not less than [***] each occurrence and [***] in the aggregate, including Contractual, Completed-Operations and

7





Product-Liability Coverage's with limits of not less than [***] for each occurrence, covering both bodily injury and property damage liability. 7.5.2 Umbrella/Excess Liability with limits of not less than [***]. 7.5.3 Workers' Compensation Coverage plus Occupational Disease Insurance if Occupational Disease coverage is required by the laws of the state where the Facility is located or work is to be performed. Employers Liability $500,000 each accident 7.5.4 Auto Liability $1,000,000 combined single limit.

7.6 Supplier shall have Buyer named as an additional insured on its insurance policies in subparts 7.5.1 and 7.5.2 above. Supplier shall furnish Buyer with a certificate from its insurer verifying that it has the above insurance in effect during the duration of this Agreement and that insurer acknowledges (a) the contractual liability assumed by Supplier in this Agreement and (b) that Buyer is an additional insured on such policies and (c) Supplier's CGL policy is primary and Buyer's CGL policy is non-contributory and (d) a waiver of subrogation shall be provided in favor of Buyer on the CGL, Workers' Compensation and Auto policies. Said certificate of insurance shall require Supplier's insurance carrier to give Buyer no less than ten (10) days written notice of any cancellation or change in coverage. Failure to secure such insurance as of the date of execution of this Agreement shall constitute a breach of this Agreement. Supplier shall provide to PNC a certificate evidencing such insurance within thirty (30) days of a request for same from PNC.

7.7 Supplier shall, at its own expense, maintain throughout the term of this Agreement, all insurance required by law or regulation in all countries in which this Agreement will be performed.

8 Recall. If Ingredients provided by Supplier under this Agreement are misbranded, contaminated, or otherwise unfit for human consumption at the time they are delivered to PNC or its TPM (Defect), PNC in its sole discretion will make a determination of the necessity of a recall, market withdrawal, inventory retrieval, or other action designed to prevent the distribution or sale of the affected Finished Products, plus the type, extent, method of handling, disposition of the Finished Products as well as any affected work in progress, and all other particulars involved in such an action (a Recall), and PNC will execute any Recall. Supplier, in its sole discretion, will make a determination of the necessity of a recall, market withdrawal, inventory retrieval or other action designed to prevent the distribution or sale of the Ingredients. Subject to Section 9.1, Supplier shall bear the complete responsibility for a Recall occasioned by a Defect in the Ingredient and shall indemnify PNC for [***] resulting from or related to the Recall. Any Recall occasioned by PNC labels or by tampering with the Ingredients after they have left Supplier's control, or by improper storing or handling by PNC, will not be considered a Defect.

9 Limitation of Liability.

9.1 The maximum liability of one Party to the other Party and its affiliates in relation to this Agreement will be [***] (Liability Cap), provided however that:

8





9.1.1 The Liability Cap will not apply to any (1) material confidentiality breach under Section 5, and/or (2) indemnification obligations under Section 7.1. 9.1.2 The Liability Cap will not apply to intentional misconduct and/or gross negligence.

9.2 For the purpose of this Section, liability means liability for any and all claims, causes of action, judgments, costs and expenses (including but not limited to reasonable attorney fees and expenses), reimbursements, losses, and any and all other liabilities and damages of any kind, whether in contract, tort (including negligence), equity, statute or otherwise arising out of, in relation to or as a result of this Agreement.

10 Force Majeure.

10.1 Neither Party will be liable for any breach of its obligations under this Agreement resulting from causes beyond its reasonable control, including, but not limited to, an act of nature, drought, outbreak of foot and mouth disease, port and other transport strikes, war, fires, quarantine restrictions, insurrections or riots, energy shortages, embargo or the inability to obtain supplies or raw materials because of a global shortage or governmental action (a Force Majeure Event). Notwithstanding anything herein to the contrary, in the event of a Force Majeure Event, or any other circumstance that limits Fonterra's ability to produce or deliver product, Supplier will exercise its best efforts to comply with its obligations hereunder, mitigate the adverse impact on and not disfavor PNC, and will treat it in parity with its other customers.

10.2 Any obligation of either Party under this Agreement will be postponed until the cause underlying the Force Majeure Event has been eliminated, at which time the obligation will again be in effect. Any loss of time by the Force Majeure Event will not be held against the Party who was unable to comply with its obligations under this Agreement because of the Force Majeure Event. The Party unable to comply with its obligations under this Agreement will immediately notify the other Party in writing that a Force Majeure Event has delayed its performance and will state, to the best of its knowledge, the revised date for performance. If a Force Majeure Event persists for longer than [***], the Party not directly affected by the Force Majeure Event may terminate this Agreement with regard to any relevant Master Purchase Commitments or Purchase Orders.

10.3 Should Supplier be unable to comply with its obligations under this Agreement because of a Force Majeure Event, PNC may obtain elsewhere the Ingredients the Supplier was unable to deliver because of the Force Majeure Event and those Ingredients will be credited against any relevant Minimum Purchase Commitment. PNC will not be obligated to purchase those Ingredients from Supplier at a later time.

11 Notices. Notices contemplated by this Agreement must be in writing and may be sent by registered or certified mail, postage prepaid, to the address specified in the first paragraph of this Agreement or to any other address designated by prior written notice.

12 Governing Law; Dispute Resolution.

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12.1 This Agreement will be governed by the laws of the State of Delaware without regard to its conflicts of law principles.

12.2 The Parties consent to, acknowledge, and agree that any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, shall be brought exclusively before the state and federal courts in and for the City of Wilmington and County of New Castle, Delaware Each Party waives any objection based on forum non conveniens.

13 Assignment. Neither Party may transfer or assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to any entity controlled by it, its parents, subsidiaries, or affiliates, or to any purchaser of the business to which this Agreement relates subject to the other Parties consent which will not be unreasonably withheld or delayed.

14 Supplier Conduct. Supplier agrees to engage in responsible and ethical business practices and conduct itself in full compliance with all applicable laws, rules, and regulations in every country in which it does business.

15 California Transparency Act. PNC does not accept or support the use of illegal, abusive, or forced labor in our own facilities. Within its supply chain, Supplier will comply with all laws of the country they are doing business in and are subject to.

16 U.S. Government Affirmative Action Regulations. During the performance of this contract or any purchase order issued hereunder, the Supplier agrees to comply with all applicable Federal, state and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 CFR §60-1.4, 41 CFR §61-300.10, 29 CFR Part 471 Appendix A to Subpart A, 41 CFR §60-300.5 and 41 CFR §60-741.5, which specific clauses are herein incorporated by reference into all covered contracts and subcontracts as required by Federal law. This Supplier and any applicable subcontractor shall abide by the requirements of 41 CFR §60- 300.5(a) and §60-741.5(a) to the extent applicable. These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

17 Fair Labor Practices.

17.1 Supplier shall provide workers with clean, safe and healthy work environments; recognize and respect the right of employees to free association and collective bargaining in accordance with law; comply with all applicable wage and hour laws; and properly verify the employment eligibility of its employees.

17.2 Forced Labor. Suppliers will not employ, use or otherwise benefit from involuntary labor, forced labor, or labor that results from slavery or human trafficking. Supplier hereby certifies that: (i) it is in compliance with this paragraph; and (ii) all materials incorporated into its products comply with all applicable laws addressing slavery, human trafficking and other forms of forced labor. Supplier shall provide PNC with documentation establishing compliance with this paragraph upon [***] notice.

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17.3 Child Labor. Supplier will not employ anyone under the legal working age defined by local law. Supplier will comply with all applicable laws addressing the working requirements and conditions for child workers.

17.4 Respectful Workplace. Supplier shall prohibit all forms of unlawful discrimination, abuse, harassment, violence and retaliation.

18 Gifts and Entertainment. Supplier will not offer any gift to a PNC employee, contractor, or agent that is: (i) more than a nominal value; (ii) more than an infrequent occurrence; (iii) cash or cash equivalents; or (iv) illegal, sexually oriented, offensive or otherwise inappropriate.

19 Environment & Sustainability. Supplier will comply with all applicable environmental laws and reporting obligations, maintain all required permits, and strive to responsibly manage the impacts of their operations on the environment.

20 Anticorruption. Suppliers will not, directly or indirectly, offer improper gifts to government employees, engage in bribery or fraud, or take any other action that would cause a violation of the U.S. Foreign Corrupt Practices Act, the UK Bribery Act or any other applicable anti- corruption law.

21 Miscellaneous.

21.1 If any provision of this Agreement is determined to be illegal or unenforceable, all other provisions will continue in full force and effect.

21.2 This Agreement may be executed concurrently by original or facsimile signature in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

21.3 Each right and remedy of each Party described in this Agreement is cumulative and in addition to every other right or remedy, express or implied, now or hereafter arising, available to such Party, at law or in equity, or under any other agreement. No delay or omission by either Party in the exercise of any right or remedy arising under this Agreement will impair any such right or remedy or the right of such Party to resort thereto at a later date or be construed to be a waiver of any default under this Agreement. The indemnities, representations and warranties of each Party will survive termination of this Agreement.

21.4 This Agreement, together with any schedules and exhibits and any Purchase Orders, Specifications and COAs, constitutes the complete agreement between the Parties and supersedes all prior agreements between the Parties regarding this subject matter. The Parties hereby agree that any such prior agreements are hereby terminated. No other contracts, warranties, promises or representations, either oral or in writing, relating to this Agreement will bind either Party except for the Purchase Orders, Specifications and COAs. This Agreement may not be amended or modified except by a writing signed by an authorized representative of the Party against whom such amendment or modification is asserted. This Agreement will be binding upon, and will inure to the benefit of, the parties, their successors and permitted assigns.

(signature page follows)

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Agreed to and executed effective as of the date first above written.

Fonterra (USA) Inc. Premier Nutrition Company, LLC

By: [***] By: /s/ Paul Rode Title: President Title: CFO

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Agreed to and executed effective as of the date first above written.

Fonterra (USA) Inc. Premier Nutrition Company, LLC

By: By: /s/ Paul Rode

Title: Title: CFO 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Answer: 25336


Question: Exhibit 10.10   Road Transportation Agreement   Party A (Shipper): ZTO Express Co., Ltd. Address: Building 1, No. 1685, Huazhi Road, Huaxin Twon, Qingpu District, Shanghai   Party B (Carrier): Tonglu Tongze Logistics Ltd. Address: 12 Floor, HSBC Tower, Yinchun South Road, Tonglu County, Zhejiang Province   Due to the need for logistics business, Party A and Party B enter into this Road Transportation Agreement (this Agreement), in which Party A pays the freight and Party B provides parcel transportation services to Party A. In accordance with relevant laws and regulations, Party A and Party B have sufficiently negotiated the specific matters and voluntarily reached the following Agreement based on equality, reciprocity and integrity. This Agreement is to be complied by both Parties.   1. Party B shall provide parcel transportation services on highway line-haul routes based on the needs of Party A.   2. Period of transportation services: this Agreement is valid for an indefinite term. Subsequent contracts might be entered in case of special business.   3. Freight and payment method:   (a) Verification of freight: Party A pays freight based on carload rate (such freight includes pick-up charges, door-to-door delivery charges and tax fees).   (b) Party A shall not pay any other charges other than the freight.   (c) Clearance of freight: the clearance method is based on both Parties' fund clearance arrangement and the final clearance amount is subject to actual carriage amount and EX-warehouse (EXW) weight determined by Party A. Party B shall attach Party A's parcel EXW originals or copies for Party A's verification for clearance of freight.   4. Transportation route, time and relevant rules   (a) Transportation time:   (b) Any changes to the line-haul route and time are subject to both Parties' negotiation and written supplemental clauses.   (c) Party B shall have its own loading crews and the parcel shall be loaded by Party B's loading crews.

Source: ZTO EXPRESS (CAYMAN) INC., F-1, 9/30/2016





  (d) Drivers, loading crews and attendant crews shall be employed and remunerated by Party B. Party A shall not interfere such matter.   5. In order to guarantee rapid transfer of Party A's parcel, Party B shall strictly comply with the following obligations:   (a) During the transportation, Part B shall completely comply with Party A's transportation arrangement and relevant systems. Party B shall bear any consequences and legal liability arising out of Party B's non-compliance, and Party A shall have no liability. Party A has the right to terminate this Agreement without further legal liability in the case that Party B does not comply with Party A's management and arrangement.   (b) Based on the business needs, Party A can negotiate with Party B to modify the transportation route and time whenever necessary, which shall be executed by signing supplemental agreements upon consensus of both Parties.   (c) Party B shall ensure the vehicles are in good conditions, the compartments are properly sealed without leakage and the vehicles are equipped with fire-fighting equipment. In the event of parcel damage resulting from leakage or fire, Party B shall indemnify at the standard rate of RMB200 per parcel, and indemnify the actual price for high-end insured parcel (or indemnify by the value of the parcel provided by arbitration department determined by Party A).   (d) Party B shall have valid and legal licenses for national road transportation. In the event of loss caused to Party A by delivery delay due to vehicles detention for the lack of license, Party B shall compensate for any loss to Party A.   (e) Party B shall arrive at the network partners determined by Party A according to the time and route stipulated in this Agreement, and strictly comply with the start time and end time. Unless otherwise approved by Party A, in the event of parcel transfer due to Party B's vehicle delay, Party B shall pay liquidated damages to Party A at the standard rate of RMB500 per trip on the first working day, RMB1,000 per trip on the second working day and RMB2,000 per trip on the third working day (based on the time records on the parcel transfer documents) and such liquidated damages will be deducted from the current month's freight. In the special event of changes to route and time and severe weather (or other force majeure events), Party B shall be in touch with Party A in time and record such special event on the parcel transfer documents with Party A's approval.   (f) In the event of delay by vehicle malfunction or traffic accidents, Party B shall settle such malfunction or accidents within half an hour. In the event of vehicle operation failure, Party B shall notify Party A within two hours and shall manage to deliver Party A's parcel to the destination designated by the contract.   (g) Party B shall provide copies of driver licenses, working licenses, occupation licenses, insurance documents, operation licenses, outsourcing contracts, tax certificates, business licenses, road transportation permits and business code   2

Source: ZTO EXPRESS (CAYMAN) INC., F-1, 9/30/2016





  licenses to Party A, and guarantee the authenticity, completeness, legality and validity of such licenses and materials. Party B's drivers shall have at least two years driving experience in large trucks and have relevant licenses. Party B shall bear any consequences and legal liability arising out of Party B's non-compliance, and Party A shall have no liability.   (h) Party B shall bear any consequences and economic punishments arising out of the breach of traffic rules by Party B's drivers and other staff, and Party A shall have no liability.   (i) Party B shall be responsible for driving safety. Party B shall bear any legal liability arising out of severe traffic accidents causing vehicle damage and personnel casualties, and Party A shall have no liability. Party B shall be responsible for any damages resulting from severe accidents causing Party A's personnel casualties. Party A has the right to indemnify from Party B upon advance payment of damages.   6. Party B shall purchase sufficient insurance for the transportation vehicles. The coverage of third-party liability insurance shall not be lower than RMB1 million. In addition to vehicle personnel insurance, Party B shall at least purchase injury insurance for two persons with coverage not lower than RMB500,000 per person. Party B shall bear any consequence arising out of the non-compliance of insurance purchase, and Party A shall have no liability.   7. Any parcel damage resulting from the fault of Party B's employees shall be compensated by Party B in accordance with Party A's relevant rules. Party B shall be responsible for all of Party A's economic loss and relevant liquidated damages arising out of any theft and disposal of stolen goods conducted by Party B's personnel. Such payment shall be deducted from the current month's freight and be topped up by Party B in case of inadequacy. The personnel breaching the rules shall be dismissed by Party B.   8. In the event the vehicle space insufficiency which causes Party A's need unable to be satisfied nor can it be adjusted to satisfy Party A's need, Party A can terminate this Agreement without any compensation.   9. Party A has the right to terminate this Agreement if Party B has breached the above articles in this Agreement. The termination of this Agreement shall not prejudice Party A's right to hold Party B responsible for breach of contract.   10. Party B shall obtain Party A's written consent in the case the early termination of the Agreement. Party B shall pay one-month freight as liquidated damages in case of termination of the Agreement without consent. Within the contract period, Party B shall not charge the freight difference if Party A rents same-level vehicles. Party B shall also compensate Party A's other losses.   11. Without Party A's approval, Party B shall not transfer the carriage of goods to any third party in the designated route. Otherwise, Party A has the right to terminate this Agreement directly.   3

Source: ZTO EXPRESS (CAYMAN) INC., F-1, 9/30/2016





  12. Any dispute arising out of the execution of this Agreement, which cannot be negotiated and settled by both Parties, shall be subject to the jurisdiction of the People's Court where this Agreement is signed.   13. The annex of this Agreement constitutes a part of this Agreement and has the same effect as this Agreement. Any undealt matter can be negotiated and added by both Parties.   14. This Agreement takes effect upon the signatures and seals of both Parties in triplicate. Party A shall have two copies and Party B shall have one copy.   15. Any different interpretation of this Agreement by both Parties is subject to final interpretation by Party A.            Party A: ZTO Express Co., Ltd.



  Party B:Tonglu Tongze Logistics Ltd.               Company seal: /s/ ZTO Express Co., Ltd.



  Company seal: /s/ Tonglu Tongze Logistics Ltd.               Date: December 22, 2014



  Date: December 22, 2014     4

Source: ZTO EXPRESS (CAYMAN) INC., F-1, 9/30/2016 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Answer:
6132