Terms and Conditions of Purchase of Equipment, Machinery, Apparatus and/or Materials
1. Delivery of Equipment and Performance of Services. Seller shall deliver the items of equipment, machinery, apparatus and/or materials described on the face of this Purchase Order (hereinafter “Equipment“), and shall provide any installation, support, engineering, maintenance, training, commissioning, repair or related services (“Services”) specified on the face hereof, all at the price(s) and within the time periods stated and in accordance with the terms and conditions of the Agreement (as defined below).
2. Applicability. The agreement (“Agreement”) between Dole Package Foods, LLC (“Buyer”) and the seller identified on the face of this Purchase Order (“Seller”) is comprised of these Terms and Conditions of Purchase of Equipment, Machinery, Apparatus and/or Materials (“Terms and Conditions of Purchase”), the terms and conditions appearing on the face of this Purchase Order, Buyer’s Equipment Specification referenced on the face of this Purchase Order (“Buyer’s Specification”) and any other supplemental documents referenced on the face of this Purchase Order, in Buyer’s Specification, and in these Terms and Conditions of Purchase. This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Seller accepts and will be bound by the terms of the Agreement when it commences performance hereunder or accepts any payment from Buyer. The Agreement expressly limits acceptance to the terms stated herein, and any additional or different terms proposed by Seller are rejected unless expressly assented to in writing by Buyer. This Agreement prevails over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. Any reference to Seller’s Quotation or Proposal on the face hereof shall not be deemed to incorporate any pre-printed “form” provisions contained in Seller’s Quotation or Proposal, or any other provisions contained in Seller’s Quotation or Proposal which are inconsistent or in conflict with any provision set forth in these Terms and Conditions of Purchase or Buyer’s Specification, which pre-printed, inconsistent or conflicting provisions of Seller’s Quotation or Proposal are hereby excluded and not deemed a part of the Agreement. In the event of any ambiguity or conflict among the documents comprising this Agreement, the Seller shall be required to comply with the most stringent requirement which provides the highest quality and greatest benefit to the Buyer, unless otherwise specifically directed by the Buyer in writing. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Equipment and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with this Agreement.
3. Delivery of Equipment; Shipping Terms. Seller shall deliver all Equipment to the address specified in the Purchase Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all Equipment for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Equipment is delivered in undamaged condition. Should it be necessary to ship the Equipment in a disassembled state, Seller shall ship the Equipment in the largest units possible consistent with expedient transportation of the Equipment. Delivery shall be made in accordance with the shipping terms on the face of this Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Equipment.
4. Prices.
(a) The prices set forth or referenced on the face of this Purchase Order for the Equipment shall include all charges for production, packing and loading, and any other charges set forth on the face hereof.
(b) Seller estimates a total budget for the Services (which includes all reimbursable expenses and the fees of any subcontractors) of not to exceed the amount set forth on the face of this Purchase Order. Seller shall perform the Services for an amount not to exceed such budget without Buyer’s prior written consent. Buyer shall not be obligated to pay Seller any amounts in excess of such budget that Buyer has not approved in advance. Unless specifically agreed to in advance by Buyer in writing, Seller shall be solely responsible for all other costs and expenses incurred in connection with the Services including, but not limited to, travel expenses, license fees, memberships and dues, insurance premiums, amounts due to subcontractors and any salary or other compensation, taxes, contributions, and benefits payable to or on behalf of Seller’s employees or contract workers.
(c) No increase in the prices are effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. The prices are exclusive of all applicable state and local sales, use and excise taxes. Seller shall include on its invoices any such applicable taxes. Seller shall be solely responsible for all other taxes, duties, tariffs, or other governmental charges or expenses, including but not limited to, any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5. Payment Terms. Seller shall issue its invoice(s) to Buyer on or after the completion of delivery of the Equipment and Services, or if the face of this Purchase Order provides for milestone payments on or after the completion of the applicable milestone, and only in accordance with this Agreement. Unless otherwise specified on the face of this Purchase Order, Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith.
6. Equipment Warranty and Performance Guarantee.
(a) Seller expressly warrants that the Equipment (including all component parts) will for twelve (12) months from date of Acceptance or such longer period as may be specified in the Agreement (the “Warranty Period”): (i) conform to the specifications, performance standards and description set forth in the Agreement; (ii) be free from defects in materials and workmanship; and (iii) be of the quality specified.
(b) Seller expressly guarantees that the Equipment (including all component parts) will operate and perform in accordance with the specifications and performance standards set forth in the Agreement throughout the Warranty Period.
(c) Seller further represents and warrants that, in addition to the warranties and guaranties granted by Seller in Section 6(a) and Section 6(b) above, any Equipment (including any component parts) not originally manufactured by Seller shall additionally carry and be covered by the warranty and performance guarantee provided by the original manufacturer of such item of Equipment or component part. Seller shall pass through, assign, transfer and convey to Buyer all warranties and performance guarantees provided by each original manufacturer and will provide all reasonable assistance to Buyer in connection with pursuing any claims or issues relating to warranties or guarantees provided by each original manufacturer.
(d) If at any time during the Warranty Period the Equipment fails to comply with any warranties made by Seller or does not operate or perform in accordance with the specifications and performance standards set forth in the Agreement or there is a defect or non-conformity with the specifications, Buyer will notify Seller of the problem(s) and Seller will have ten (10) days to correct the problem(s) through repair or replacement of the Equipment at Seller’s expense. Seller shall bear all costs related to such repair or replacement including without limitation any and all expenses for replacement parts or Equipment, labor to diagnose the cause of the problem and to repair, replace, remove and re-install the Equipment, as necessary, travel and other expenses for Seller’s maintenance and service technicians or other personnel, and all freight, insurance and shipping charges. If after ten (10) days the problem has not been resolved to the complete satisfaction of Buyer, then Buyer will have the option of (1) extending the time period for Seller to repair or replace the Equipment, (2) replacing the Equipment at Seller’s expense, which expense may include removal and installation costs, (3) itself attempting to remedy such non-conformity, defect or other performance problem, or engaging a third party to remedy such non-conformity, defect or other performance problem, in which event Seller shall promptly reimburse Buyer for all costs incurred by Buyer in correcting or in attempting to correct such non-conformity, defect or other performance problem, (4) keeping the Equipment and obtaining from Seller an equitable adjustment of the purchase price, or (5) removing the Equipment at Seller’s expense and obtaining a full refund of any and all payments received by Seller from Buyer. The foregoing remedies are in addition to all other remedies at law or equity or under this Agreement or otherwise and shall not be deemed to be exclusive.
7. Representations and Warranties. In addition to any other warranties provided to Buyer in the Agreement, Seller represents and warrants that (i) the Equipment and any Services will fully comply with all applicable federal, state or local laws and regulations or guidelines (including but not limited to all manufacturing, environmental, health and safety regulations), (ii) the Equipment (including any Software), Services and any documentation furnished by Seller, or Buyer’s use thereof, will not infringe upon or violate any right of patent, copyright, trademark or trade secret or any non-disclosure obligation or other intellectual property or proprietary right of any third party, (iii) the Equipment will be new and not used or refurbished and shall be made of first class materials of the highest standard; (iv) the Equipment will be fit for Buyer’s intended purpose; (v) the Equipment be free from any defects in design; (vi) the Equipment will be delivered free and clear of all liens and encumbrances whatsoever and that Seller shall convey to Buyer good and marketable title thereto; and (vii) in the performance of its obligations hereunder, Seller shall comply with all applicable non-discrimination/affirmative action and other applicable obligations set forth in Public Law 95-507, and in the Equal Opportunity Clauses contained in Section 202 of Executive Order 11246, as amended by Executive Order 11375, and in the implementing regulations contained in 41 CFR 60-1.4(a) (Equal Employment Opportunity), 41 CFR 60-741.5(a) (Disabled Workers), 41 CFR 60-250.5(a) (Disabled and Covered Veterans), as well as the employee notice found at 29 CFR Part 471, Appendix A to Subpart A, all of which are incorporated herein by reference. Any Services performed by Seller, including without limitation warranty service, are warranted by Seller to be performed in a timely, professional and workmanlike manner in accordance with highest industry standards. Seller shall not install any materials or take any action that may void or jeopardize any warranty given by the original equipment manufacturer. If any nonconformity with this warranty appears within twelve (12) months after the Services are performed, Seller shall re-perform the Services in a conforming manner at no cost to Buyer. If Seller performs or causes to be performed any corrective services under this warranty, the twelve (12) month call-back period shall begin anew from the date of Buyer’s acceptance of that corrected work. All warranties in this Agreement are cumulative and in addition to any other warranty provided by law or equity. All warranties survive any delivery, inspection, acceptance, or payment of or for the Equipment by Buyer.
8. Installation. If the Agreement requires Seller to provide installation Services the Seller agrees to use its best efforts to complete the installation and SAT of the Equipment as soon as possible after delivery of the Equipment. Seller shall provide the services of experienced, qualified installers to install the Equipment at the Buyer’s facility. If required in order to preserve any manufacturer’s warranty, the installers shall be technicians duly authorized by the manufacturer to start-up, modify and/or repair such Equipment. The installers shall unpack, install, startup, operate and give training and instructions in the operation of the Equipment as required by the Agreement. Upon completion of installation, the installers shall notify the Buyer’s representative that the Equipment is installed and ready for SAT. Time spent during installation to correct defects and warranty repairs shall not be chargeable. Time spent commuting to and from the Buyer’s facility will not be billable. The Buyer shall reimburse Seller at actual reasonable cost for installer’s living and travel expenses which can be shown to be incurred directly as a result of the installation of the Equipment. Unless otherwise approved in writing, travel expenses shall not exceed one round trip fare including air and/or surface transportation from the installer’s domicile to the Buyer’s facility. All reimbursements are required to be documented by an expense receipt. Living arrangements shall be commensurate with the arrangements made by the Buyer for its own personnel in the same geographic area. All air travel shall be coach class. Notwithstanding the foregoing, the Seller shall complete the installation, training and SAT for an aggregate amount (inclusive of all charges and reimbursable expenses) that shall not in any event exceed the amount specified on the face of the Purchase Order. The Buyer shall provide Seller reasonable access to the Equipment during normal working hours to complete the installation and SAT. Should the installation or testing of the Equipment require the curtailment of any operational production equipment, Seller agrees to coordinate the installation or testing so as to minimize the effect of the required downtime on the Buyer’s production schedule.
9. Equipment Testing.
(a) If required pursuant to the Agreement, Buyer and Seller shall, by the date required by the Agreement conduct a pre-shipment factory acceptance test (“FAT”) at Seller’s production facility (unless an alternate location is specified by Buyer). Such FAT shall be conducted in accordance with the protocol set forth in the Buyer’s Equipment Specifications, or if none is set forth in such specifications such other protocol agreed to by Buyer in writing. If, during or as a result of such FAT, the Equipment is unable to meet the specifications and performance standards set forth in the Agreement, Seller shall, at its sole expense and prior to shipment of the Equipment, promptly make any modifications and, corrections to the Equipment necessary to enable the Equipment to successfully pass the FAT. If Seller fails or is unable to correct the Equipment so that it is able to successfully pass FAT by the shipment date specified in the Agreement, or if no shipment date is specified then ten (10) days prior to the Delivery Date, Buyer may, in addition to any other remedies available to it, cancel the Agreement and receive a refund of all amounts paid to Seller as of the date of cancellation.
(b) The parties acknowledge that the Equipment will be required to undergo and successfully complete the process of site acceptance testing at Buyer’s facility (“SAT”). Buyer shall not be deemed to have accepted the Equipment, and any final milestone payment shall not be due and owing to Seller, unless and until the Equipment successfully completes SAT. SAT will begin after delivery of the Equipment to Buyer’s facility, on a date determined by Buyer in its sole discretion. If SAT is unable to be commenced by the date scheduled therefore, Seller shall, at no expense to Buyer, make all corrections or modifications to the Equipment necessary to allow the process of SAT to commence. If, once SAT is commenced, the Equipment fails to successfully pass SAT, Seller shall, at no expense to Buyer, make all necessary and appropriate corrections, adjustments or modifications to the Equipment in order to bring it into compliance so that the Equipment is able to successfully pass SAT. If SAT cannot begin within ten (10) days of the date scheduled therefore, or, once begun, the Equipment cannot successfully pass SAT within thirty (30) days after the date SAT begins, Buyer, in addition to any other remedies available to it, shall have the right to (i) itself attempt to remedy such non-conformity(ies), defect(s) or other performance problem(s), or engage a third party to remedy such non-conformity, defect or other performance problem, in which event Seller shall promptly reimburse Buyer for all costs incurred by Buyer in attempting to correct such non-conformity, defect or other performance problem; (ii) keep the Equipment and receive from Seller an equitable adjustment to the purchase price, as reasonably determined by Buyer; or (iii) terminate the Agreement, return the Equipment to Seller, at Seller’s expense, and receive a refund of all sums paid by it to Seller under the Agreement.
10. Acceptance. “Acceptance” of the Equipment shall be deemed to occur on the date when, in the reasonable opinion of Buyer, the Equipment conforms to, and performs in accordance with, the specifications and performance standards required by the Agreement and has successfully completed the SAT at the Buyer’s facility. Acceptance of or payment for the Equipment shall not be deemed to waive any warranties or guarantees contained herein. In the event that Buyer does not accept the Equipment, Seller shall refund all prior payments within fifteen (15) days of receipt of notification from Buyer that it does not accept the Equipment.
11. Time of the Essence. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Equipment and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement. Seller shall deliver the Equipment on the date(s) specified on the face of the Purchase Order (the “Delivery Date”). In the event Seller fails to deliver the Equipment by the Delivery Date, Buyer may, at its option, in addition to any other remedies available to Buyer, decline to accept the Equipment, return the Equipment to Seller, at Seller’s expense and risk, receive a refund of all sums paid by Buyer to Seller and/or terminate this Agreement, in whole or in part, as determined by Buyer. Seller shall advise Buyer immediately of any shortage or delay in shipment.
12. Amendment. The Agreement may only be modified, supplemented or amended, or any of its terms waived, by mutual agreement of the parties in writing signed by an authorized representatives of each party stating specifically that it modifies, supplements or amends this Agreement or waives any of its terms. The parties acknowledge and agree that there are no collateral oral agreements between them with respect to the subject matter of the Agreement.
13. Default by Seller. Upon the occurrence of any of the following events, Seller shall be deemed to be in default under this Agreement: (a) the scheduled performance dates, including the Delivery Date, shall be exceeded; (b) Seller fails or defaults in the performance of any obligation or covenant under this Agreement and does not correct or cure such failure, default, or breach within ten (10) days from and after Seller’s receipt of written notice from Buyer of such default or breach; (c) Any representation or warranty made by Seller hereunder is breached and remains uncured from and after ten (10) days following Seller’s receipt of written notice from Buyer of such breach; or (d) if Seller becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If default occurs, Buyer, at its sole option, may decline to accept the Equipment, return the Equipment to Seller, at Seller’s expense and risk, receive a refund of all sums paid by it to Seller and/or terminate this Agreement, in whole or in part as determined by Buyer, and employ any other remedy then available to it, whether at law or in equity, by statute or under this Agreement or otherwise, including recovery of damages.
14. Default by Buyer. Default by Buyer in payment (except in the case of a bona fide dispute) shall, if the default is not cured within thirty (30) days from and after Buyer’s receipt of written notice from Seller of the default, constitute a default by Buyer under this Agreement.
15. Documentation. Buyer, its agents and contractors, shall have the irrevocable, unrestricted right to use, in connection with Buyer’s use, operation, maintenance, repair, or modification of the Equipment, all specifications, drawings, work-in-progress or other materials made available to Buyer by Seller in connection with the Agreement.
16. Software. Seller hereby grants to Buyer, it agents and contractors, a non-exclusive, perpetual, fully-paid up, royalty-free license and/or sublicense (hereinafter “License”) to use any software contained in the Equipment and any other software necessary or useful for its operation, maintenance, repair, or modification (hereinafter “Software”) in connection with the Equipment and/or any equipment or systems owned, leased or licensed by Buyer to which the Equipment is integrated or with which it is otherwise to be utilized as intended by Buyer. Buyer may copy and modify such Software for Buyer’s internal business purposes. Any charge for the License is included in the price for the Equipment. Seller shall provide to Buyer, without additional charge, any and all routine Software changes and updates intended to provide general improvements to the performance of the Equipment that are announced by Seller and/or its licensors or that are required to comply with applicable laws and regulations. Seller warrants that any Software shall conform to Seller’s and/or its licensor’s published specifications, Seller has the right to grant the license to the Software granted herein, there are no limiting or disabling mechanisms in the Software which prevent or restrict Buyer’s use of the Software in accordance with this Agreement, and that the Software does not contain any viruses or computer instructions or technological means intended to disrupt, damage, or interfere with computers or related systems.
17. Indemnification. Seller shall indemnify, defend and hold Buyer, its parent, subsidiaries, and affiliates, and their respective officers, directors, employees, and agents, harmless from and against any and all liability, claims, losses, diminutions in value, costs, expenses, penalties, and damages (including without limitation reasonable fees of an attorney of Buyer’s choice) arising from or in connection with, or alleged to arise from or in connection with: (i) the acts or omissions of Seller, its employees or agents; (ii) the breach of any obligation or representations and warranties of Seller under this Agreement; (iii) the infringement or violation of any patent, trademark, copyright, or other intellectual property or proprietary right or any unfair competition relating to the Equipment (including any Software), or any part thereof, or Buyer’s use thereof; (iv) the Equipment, including without limitation any product liability claims; (v) the failure of Seller or anyone acting on behalf of Seller to comply with any applicable laws or regulations and/or (vi) any lien claim made, asserted, or filed against Buyer or Buyer’s property relating to the Equipment including without limitation any such claims made by Seller’s subcontractors. This indemnification shall not apply to liability, claims, losses, costs, expenses, penalties and damages which are caused solely by the gross negligence or intentional misconduct of Buyer. Seller shall not settle any third party claim without Buyer’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Buyer in enforcing this indemnity, including without limitation reasonable attorney’s fees.
18. Infringement. In addition to Seller’s obligations set forth in Section 17 above, in the case that the Equipment (including any Software), or any part thereof, are held to constitute an infringement of any intellectual property or proprietary right and/or the use for the purpose intended of said Equipment by Buyer enjoined, then Seller shall, at Buyer’s option, and at Seller’s expense, either procure for Buyer the right to continue using same, or replace same with a non-infringing Equipment, or modify same so it becomes non-infringing, or remove the Equipment and refund price paid for the Equipment.
19. Insurance.
(a) Seller further represents, warrants and covenants that it now carries, and shall continue to carry for so long as it provides Equipment or Services to Buyer and for the duration of all statues of repose, at Seller’s expense, sufficient coverage with reputable and financially secure insurers to insure against all losses and damages which may result from the fault or negligence of Seller (and any of its officers, agents, personnel, subcontractors or any person or entity for whom Seller is responsible) and all claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the Services or provision of Equipment hereunder, whether the Services are performed or Equipment are provided by Seller or anyone else for whom the Seller is legally liable.
(b) Without limiting the generality of the foregoing, Seller shall maintain commercial general liability insurance for its operations in the minimum amount of $5,000,000 per occurrence in a form at least as broad as ISO CG 00 01 10 01. The general liability insurance shall cover liability arising from premises, continuing operations and products liability, independent contractors, personal and advertising injury and liability assumed under an insured contract (including the tort liability of another assumed in a business contract, to the extent provided for in the indemnity provisions of such assumed contract, as well as defense obligations and defense expenses). Seller shall also maintain business auto liability insurance with limits of not less than $1,000,000 combined single limit per occurrence for bodily and property damage. Such policy shall be in a form at least as broad as ISO CA 00 01. Seller shall maintain workers’ compensation coverage in compliance with the applicable state law and employers’ liability insurance with limits of not less than $1,000,000 per accident and per injury. Seller shall maintain professional liability insurance will have a limit of not less than $3,000,000 per claim and will cover acts of omissions of Seller (and any of its officers, agents, employees, subcontractors, or any person or entity for whom Seller is responsible). In the event Seller has insurance with higher limits than the minimum amounts set forth above, Buyer and any Additional Insured shall have the benefit of the full amount of the policy limits. Nothing herein shall be construed as a limitation of Seller’s liability or indemnification obligations. All such insurance shall be issued by reputable insurers reasonably acceptable to Buyer and with a minimum AM Best rating of A-VII.
(c) Seller shall be solely responsible for any and all deductibles imposed on the insurance as set forth herein. Seller will provide Buyer with a certificate of insurance, on or before the effective date of this Agreement and annually thereafter on or before the renewal dates of the policies, evidencing all coverage, naming Dole Packaged Foods, LLC, its parent corporation and any subsidiaries, officers, directors, employees and agents an additional insured (each an “Additional Insured”) under the policies, and stating that the insurance carrier will provide Buyer with at least 30 days prior written notice of any modification or cancellation of such insurance coverage.
(d) Seller waives any and all of its rights, as well as those of its insurers, to defense, indemnity, and equitable or contractual contribution or subrogation from Buyer or its insurers or any Additional Insured. Seller agrees that insurance required by this agreement and obtained by it shall alone be primary and that Seller and its insurers shall have no rights to share in or otherwise obtain contribution from other insurance maintained by Buyer or any Additional Insured. Seller shall take all actions reasonably necessary to obtain endorsements to its insurance policies to the effect of the waivers and agreements in this Section, and shall provide copies of such endorsements to Buyer.
20. Assignment; Subcontracting. Any assignment, transfer, subcontracting or delegation by Seller of any right, obligation or responsibility of Seller set forth in the Agreement, in whole or in part, without Buyer’s prior written consent, is prohibited and shall be null and void. Buyer may freely assign, delegate or otherwise transfer all or any part of this Agreement or any right or obligation hereunder. If Seller uses subcontractors to perform any of the Services or its other obligations, Seller will first obtain Buyer’s written consent to any use of a specific subcontractor. Seller shall ensure that all subcontractors comply with all provisions of this Agreement and shall remain liable for all performance by such subcontractors, non-compliance with this Agreement by subcontractors and errors and omissions of subcontractors as through performed directly by Seller hereunder, and Buyer may at its option, pursue any remedies for unsatisfactory performance, failure to perform, non-compliance with this Agreement or errors or omissions of subcontractors directly against Seller, without the need to pursue subcontractors. Seller is solely responsible for payment of any subcontractors.
21. No Publicity. Seller will not publish, release or publicize in any medium, print or electronic, or otherwise disclose anything about Buyer, the fact that Buyer has contracted to purchase the Equipment or Services from Seller, the existence or contents of this Agreement or the relationship between the parties. This Agreement does not grant Seller any right or license to any of Buyer’s Confidential Information or any trademark, copyright or patent or other intellectual property herein now or hereafter owned or controlled by Buyer. Seller shall not use Buyer’s name or any of Buyer’s trademarks, trade names or trade dress for any purpose without the express prior written permission of Buyer.
22. Title and Risk of Loss. Notwithstanding anything contained herein to the contrary, risk of loss or damage to the Equipment shall remain with Seller and shall not transfer to Buyer until delivery of the Equipment to the Delivery Location specified by Buyer. Title to the Equipment passes to Buyer upon the earlier of delivery of the Equipment to the Delivery Location or the full payment of the price for the Equipment by Buyer.
23. Seller’s Financial Statements. Seller shall, upon request by Buyer, furnish to Buyer copies of the latest available audited financial statements for Seller. If audited financial statements are not available, Seller shall furnish to Buyer its tax returns for the prior two (2) years.
24. Governing Law; Venue. The terms of the Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties hereby agree that the application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is expressly excluded and that the CISG shall not apply to this Agreement. In the event of any legal action whether under the Agreement or otherwise, the exclusive forum shall be the federal or state courts for Los Angeles County, California, and Seller agrees to the personal jurisdiction of such courts.
25. Confidentiality. Seller may acquire knowledge of Buyer Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Buyer Confidential Information in confidence during and following termination or expiration of this Agreement. “Buyer Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to Buyer’s research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and all other information considered proprietary or confidential by Buyer relating to the current or anticipated business or affairs of Buyer which is disclosed directly or indirectly to Seller, including without limitation any information obtained or observed by Seller’s personnel at any of Buyer’s facilities. In addition, Buyer Confidential Information means any information about Buyer’s purchase of the Equipment or any information regarding the Equipment made to Buyer’s special order, and also includes any third party’s proprietary or confidential information disclosed to Seller in the course of providing Equipment to Buyer or servicing or installing such Equipment. Seller may disclose Buyer Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt written notice to Buyer of such requirement prior to disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any Buyer Confidential Information. Additionally, Seller agrees to limit its internal distribution of Buyer Confidential Information to Seller’s officers, directors, employees or agents who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by any such person of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized disclosure or use of Buyer Confidential Information. Seller further agrees not to use the Buyer Confidential Information except in the course of performing hereunder and will not use such Buyer Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Buyer Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same as stated hereunder. All Buyer Confidential Information is and shall remain the property of Buyer. Buyer makes no representation or warranty concerning the accuracy of any Buyer Confidential Information. Upon Buyer’s written request or the termination of this Agreement, Seller shall return, transfer or assign to Buyer all Buyer Confidential Information and all copies thereof.
26. Spare Parts Availability. For a seven-year period from the date of Acceptance, Seller agrees to make available and sell to Buyer such parts as to maintain the Equipment in good working order and to offer a maintenance program.
27. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
28. Attorney’s Fees. In the event of any litigation regarding the rights and obligations under the Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and court costs.
29. Severability. Any term or provision of the Agreement that is invalid or unenforceable in any situation in any jurisdiction shall be changed and interpreted so as to best accomplish the objectives of such provision within the bounds of applicable law or court decisions and shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
30. No Waiver. Any failure by either party to enforce a provision of the Agreement does not waive that party’s rights to enforce that provision on another occasion, unless the waiving party waives its rights for another occasion in a writing signed by the waiving party.
31. Compliance with Laws. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Without limiting the generality of the foregoing, Seller shall comply with all applicable export control, export control, import, customs and economic sanctions laws and regulations of the United States and other governments (collectively, “Trade Control Laws”) in the performance of the Agreement and in the import, export, re-export, shipment, transfer and use of the Equipment (or any components thereof). Trade Control Laws include, but are not limited to, the U.S. Export Administration Regulations, The Customs Modernization Act of 1993, Foreign Trade Regulations and the economic sanctions rules and regulations implemented under statutory authority and/or President’s Executive Orders and administered by the U.S. Treasury Department’s Office of Foreign Assets Control and any export or import requirements imposed by the U.S. Food and Drug Administration. Seller specifically agrees that it will not export, re-export, import or otherwise transfer, directly or indirectly through any third parties or otherwise, the Equipment (or any components thereof) or any related technical data to or from, or originating in, or for use within, Cuba, Iran, Crimea Region of Ukraine, North Korea, or Syria or any other country that is designated as a or to, from or for use by any party included on, or owned or controlled by and party included on, any of the restricted party lists maintained by the U.S. Government, including, but not limited to, the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control and the Denied Persons List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security. Seller assumes all responsibility for shipments of Equipment requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Equipment.
32. Third Party Beneficiaries. Except as otherwise specifically provided herein, all terms and provisions of the Agreement will be binding upon and inure only to the benefit of the parties, and their respective assigns, and no third party will enjoy the benefits of the Agreement or will have any rights thereunder
33. Buyer’s Code of Conduct. Seller will acknowledge and comply with all provisions of Dole International Holdings, Inc.’s Code of Conduct, as amended from time to time.
34. Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
35. Notices. All notices under this Agreement shall be in writing and shall be sent by registered or certified mail, postage paid, return receipt requested or personally delivered to the other party at the address listed below. A notice sent by mail will be deemed delivered on the fourth (4th) business day after the date of posting. All notices between Buyer and Seller pertaining to this Agreement shall be addressed as follows: (a) if to Buyer: to the Buyer’s address stated on the face of the Purchase Order, Attn: VP and General Manager and (b) if to Seller, to the Seller’s address stated on the face of the Purchase Order. A copy of any notice or other communication to Buyer shall be concurrently sent to: Dole Packaged Foods, LLC, 1 Baxter Way, Suite 100, Westlake Village, CA 91362, Attn: Legal Department, General Counsel. Either party may change its notification address by giving written notice to that effect to the other party in the manner provided herein.
36. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BUYER’S TOTAL AGGREGATE LIABILITY TO SELLER OR SELLER’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE PRICE PAYABLE BY BUYER HEREUNDER FOR THE SPECIFIC EQUIPMENT OR THE SPECIFIC SERVICES THAT ARE THE SUBJECT OF THE DISPUTE. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR SELLER’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
37. Survival. The provisions of this Agreement that by their nature would be expected to survive termination of this Agreement (e.g. warranties, limitation of liability, confidentiality, indemnification and insurance provisions) shall survive any such termination.
38. Construction. Any interpretation of this Agreement will not presume that its terms should be more strictly construed against one party by reason of any rule of construction. The headings in this Agreement are for convenience only. They do not constitute a portion of this Agreement and shall not be used in any construction of it.
End of Terms and Conditions of Purchase
