DOLE PACKAGED FOODS, LLC
STANDARD TERMS AND CONDITIONS

1.  Definitions:  As used herein: the term “Purchaser” refers to Dole Packaged Foods, LLC for purchases and engagements made on behalf of Dole Packaged Foods, LLC, its subsidiaries and affiliated entities; the term “Vendor” means the person, firm, corporation or other business entity from whom the merchandise and/or services described on the Purchase Order has been ordered or requested; the term “merchandise” includes all necessary work performed by the Vendor under the terms of the Purchase Order both before and after delivery to Purchaser; the term “Purchase Order” means the Purchase Order form issued by Purchaser which describes the specific merchandise to be delivered and/or services to be performed and any additional terms and conditions of purchase of Purchaser set forth in, accompanying or referenced therein; and the term “Agreement” includes the Purchase Order and these Standard Terms and Conditions, collectively.

2.  Purchase Order Number:  All invoices, shipping containers, packing sheets, delivery tickets and bills of lading must bear the Purchase Order number assigned by Purchaser.

3.  Terms and Conditions:  Upon acceptance of a Purchase Order, Vendor shall be bound by the provisions set forth herein, including all provisions set forth on the face of the Purchase Order, whether Vendor acknowledges or otherwise signs this Agreement or the Purchase Order, unless Vendor objects to such terms in writing prior to shipping merchandise to Purchaser or performing any services.  Vendor’s acceptance of a Purchase Order shall be conclusively presumed by Vendor’s shipment of the merchandise to Purchaser or performance of services for Purchaser or by Vendor’s return to Purchaser of an acknowledgement of the Purchase Order.  Any terms or conditions contained in any acknowledgment, invoice or other communication of Vendor, which are in addition to or inconsistent with the terms and conditions herein, are hereby rejected.  To the extent that this Agreement might be treated as an acceptance of Vendor’s prior offer, such acceptance is expressly made on condition of assent by Vendor to the terms hereof, and shipment of the merchandise to Purchaser or performance of the services for Purchaser shall constitute such assent.

4.   Cancellation:  This writing does not constitute a “firm offer” within the meaning of Section 2205 of the California Commercial Code, and may be revoked by Purchaser at any time prior to acceptance.  Purchaser hereby reserves the right to reschedule any delivery or cancel any Purchase Order issued at any time prior to shipment of the merchandise or performance of services.  Purchaser shall not be subject to any charges or other fees as a result of such rescheduling or cancellation.

5.   Labels:  A packing list or label must be attached to the outside of each package for each order for merchandise.

6.   Export Requirements:  Export orders require special handling for export clearance; Purchaser therefore reserves the right to return shipments at Vendor’s expense for failure to follow instructions on Purchase Orders or other instructions provided by Purchaser.

7.  Warranty:  Vendor represents, warrants and guarantees to Purchaser, its successors, assigns, customers and users of the merchandise that:

• The merchandise shall conform in every respect to all applicable specifications, instructions, drawings, and descriptions for the merchandise set forth on the Purchase Order, attached thereto, or referenced therein, or provided, or to be provided, by Purchaser, which are hereby incorporated herein by reference, and to applicable samples furnished by Vendor.
•  The merchandise shall be free from defects in design, material and/or workmanship.
• The merchandise is new and not used or refurbished.
• The merchandise on delivery shall be free and clear of all liens, security interests and encumbrances whatsoever and that Vendor has the right to transfer good and marketable title to the merchandise.
• The merchandise shall be of good and merchantable quality, fit for the ordinary purposes for which such goods are used or intended to be used and for any other purpose Purchaser requires them for that Vendor knows or has reason to know, and if food or a food product, the merchandise shall additionally be wholesome, free from contamination or impurity, and fit for human consumption.
• The merchandise, if fruit, shall additionally be of good shape, good quality, at the state of maturity and condition required by Purchaser, and have the varietal characteristics which meet the color and other requirements specified by Purchaser.
• The merchandise shall qualify for any “Organic”, “Kosher”, “Gluten-Free”, “Non-GMO” or other certification specified by Purchaser and Vendor will provide Purchaser with a certification to that effect upon request.
• The merchandise shall contain only ingredients or raw materials sourced from the Purchaser-approved suppliers of such ingredients or raw materials, where Purchaser has so specified.
• The merchandise and/or the services shall be in full compliance with: (i) all applicable laws, regulations and rules (including but not limited to all manufacturing, environmental, health and safety, labeling and transportation laws, regulations and rules); (ii) all specifications set forth on the Purchase Order, attached thereto, or referenced therein, or provided, or to be provided, by Purchaser, including without limitation those for the manufacture, storage, testing, packaging, growing, harvesting, handling, processing and shipping of the merchandise; and (iii) any other standards for quality control that Purchaser submits to Vendor, including without limitation any procedures set forth in any supplier quality manual submitted by Purchaser to Vendor and any additional standards, amendments, or changes thereto as Purchaser may submit to Vendor from time to time during the course of performance of this Agreement.
• Neither the merchandise, nor the services, nor their manufacture, sale, use or resale, shall at any time infringe on any third party copyright, patent, trademark, service mark, trade secret, non-disclosure obligation or any other intellectual property or proprietary right of any other party throughout the world. 
• The merchandise shall perform and operate in all respects in accordance with the applicable specifications and shall meet the quality, operating conditions and performance requirements described in all applicable specifications, including without limitation any such specifications set forth in the face of the Purchase Order or referenced therein, for at least two (2) years from the date of acceptance, or such longer period as may be specified in the Purchase Order.
• All services furnished hereunder shall be performed in a timely, professional and competent manner, consistent with the highest industry standards.
• The merchandise is not and shall not be when delivered adulterated, misbranded or contaminated under, or within the meaning of, the Federal Food Drug and Cosmetic Act, as amended, and the rules and regulations promulgated thereunder (the “FD&C Act”) and other applicable laws, regulations or rules, and have not been, are not and shall not be when delivered articles which may not be introduced into interstate commerce under the FD&C Act or any other applicable laws, regulations or rules, and shall not contain any unsafe or nonconforming additives, and shall be in full compliance with, and shall have been processed in full compliance with Hazard Analysis and Risk-Based Preventive Controls for Human Food or HACCP regulations where applicable.
• The merchandise has been grown, harvested, sorted, packed, stored and transported using “Good Agricultural Practices”, in a manner that complies with the Food and Drug Administration’s (“FDA”) Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables (October 1998) or as subsequently replaced, supplemented, or amended by the FDA, and has been processed in accordance with all applicable FDA guidelines, including in a manner that complies with the FDA’s Guide to Minimize Microbial Food Safety Hazards for Fresh-cut Fruits and Vegetables” (February 2008) or as subsequently replaced, supplemented, or amended by the FDA.
•  The merchandise has been harvested in a recognized safe manner, in accordance with all applicable federal, state and local laws, regulations and rules.

• The merchandise has been manufactured, prepared, processed, packed and held using “Good Manufacturing Practices”, including the food processing industry’s then current good manufacturing practices guidelines, as applicable to the merchandise, as such guidelines may be amended, supplemented or replaced from time to time (including but not limited to, as applicable to the merchandise considering where the merchandise will be ultimately sold to the consumer, all food manufacturing practices guidelines, rules, and regulations of the United States or any other country or government authority, or any governmental agency, subdivision or instrumentality of any of the foregoing, applicable to the manufacturing, preparation, processing, packing, or holding of food or food products in the United States or such other country or jurisdiction, or food or food products imported into the United States or such other country or jurisdiction, or to foreign facilities engaged in the manufacturing, preparation, processing, packing, or holding of food or food products for consumption in the United States or such other country or jurisdiction).
• No part of the merchandise has been or shall be treated with any “pesticide”, as defined in the Federal Insecticide Fungicide, and Rodenticide Act, as amended, other than pesticides which are authorized for use on the merchandise by the USDA or other U.S. regulatory body and all applicable state, federal and local laws, rules and regulations. Vendor further represents, warrants and guarantees that any pesticides so authorized for use on the merchandise will be used only in accordance with the use data shown on the applicable labels for the pesticide.  In addition, Vendor shall furnish to Purchaser, at least forty-eight (48) hours prior to delivery of any of the merchandise to Purchaser, an accurate written statement of any pesticide treatments applied to the merchandise in connection with the growing of the merchandise or the post-harvest treatment of the merchandise, including, without limitation, any addition information that the Purchaser may require with respect to any chemical treatments of the merchandise.
• The merchandise will not be genetically modified or engineered or contain genetically modified or engineered ingredients or components, and Vendor will provide Purchaser with a certification to that effect upon request.
• The merchandise, packaging and all components thereof, are free of bisphenol A (BPA), and Vendor will provide Purchaser with a certification to that effect upon request.
• The merchandise shall be adequately contained, packaged and labeled in accordance with the specifications, or if none be stated, then in such manner as reasonably may be required for accurate identification of the merchandise, source, and relevant production information or as may be needed to facilitate a recall as otherwise provided herein and to assure the protection of the merchandise from damage or destruction.
• All data and information provided to Purchaser by Vendor as part of any product labeling (including, where applicable, the labeling of the merchandise or any products with which the merchandise is packaged, consolidated or commingled), shall be true, correct and complete in all material respects.
• The merchandise will conform to all applicable consumer product safety standards under the applicable laws, including those promulgated by the Consumer Product Safety Commission.
• Any Software shall conform to Vendor’s published specifications, Vendor 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 Purchaser’s use of the Software in accordance with these Terms and Conditions, and the Software does not incorporate, nor is integrated with, or, linked to, any Open Source Software.

The foregoing warranties are in addition to all other warranties, whether express, implied or statutory, and shall survive any delivery, inspection or failure to inspect, acceptance or payment by Purchaser.  If any merchandise delivered hereunder does not meet the warranties specified herein or otherwise applicable, Purchaser may, in addition to any other rights or remedies available to Purchaser, at its option, (i) return such defective or nonconforming merchandise at Vendor’s expense to Vendor and recover from the Vendor the order price thereof; or (ii) correct the defective or nonconforming merchandise and charge Vendor with the cost of such correction.  The Vendor agrees that it will be liable for the replacement cost of any raw materials, ingredients or packing materials required to replace or repack the defective or non-conforming merchandise and all other costs and expenses incurred by Purchaser relating to non-conforming or defective merchandise (including without limitation, premiums paid in order to obtain the merchandise from other sources or on the open market, broker fees, penalties assessed by Purchaser’s customers, freight, other transportation and distribution expenses, duties, taxes, storage  expenses and any other costs and expenses related thereto). The specifications shall not constitute a warranty, express or implied, by Purchaser, against any claims whatsoever, and Purchaser shall not be responsible to Vendor in any way, as indemnitor or otherwise, for or on account of any such claims or liability.  It is understood that it is Vendor’s obligation to ensure that any merchandise it manufactures or otherwise provides pursuant to the specifications are non-infringing and otherwise meet all requirements imposed by law or by this Agreement.  Vendor shall make no deviations from the specifications (including, without limitation, any change to any ingredients, formulation, or packaging) unless previously authorized in writing by Purchaser. Purchaser’s approval of specifications, drawings, samples and/or other descriptions furnished by Vendor does not relieve Vendor of any of its obligations.

8.  Inspection:  All merchandise described on a Purchase Order is subject to the inspection of Purchaser upon arrival at destination, even though payment may have been made for the same prior to such arrival.  If upon such inspection, which shall be made within a reasonable time after delivery of the merchandise, the same proves not to conform to the requirements of the Purchase Order, the Purchaser shall be entitled, in addition to all other rights or remedies available to Purchaser, to reject the defective or non-conforming merchandise and return the same to the Vendor, whereupon the Vendor shall refund to Purchaser any part of the purchase price theretofore paid for said defective or non-conforming merchandise, together with all charges incurred by Purchaser for transportation, handling and storage. If the merchandise is food or a food product, any merchandise rejected by Purchaser, and determined by Purchaser in its sole discretion to be unrecoverable or unusable due to nonconformity or defect for any salvage purpose will be destroyed and disposed by Vendor, at the Vendor’s expense, in a manner described in writing by Purchaser which will absolutely preclude the re-use thereof for any purpose of animal or human consumption, or at Purchaser’s option, will be destroyed and disposed by Purchaser, at Vendor’s expense, in a manner determined by Purchaser.  If the merchandise is food or a food product, in the event that the Vendor produces or delivers merchandise that is rejected by Purchaser, but in Purchaser’s sole determination the merchandise is still saleable as good food, the Vendor may sell such merchandise to third parties if it completely repackages the merchandise and such repackaging removes all trademarks, brand names, trade dress and all other references to and indicia of Purchaser to Purchaser’s satisfaction.  In the event such substandard merchandise contains any materials provided by Purchaser, then Purchaser shall be reimbursed for the replacement cost of such items. Use of a portion of the merchandise or services for the purpose of testing shall not constitute an acceptance of the merchandise.  In addition, Purchaser reserves the right, at its option, to have rejected merchandise replaced with conforming merchandise at the purchase price stated in the Purchase Order.  Purchaser also reserves the right to accept a part of a shipment and reject any part not meeting its specifications or any warranties and to consider this Agreement breached to the extent of the amount of such rejected merchandise. During normal business hours, upon reasonable notice to Vendor, Purchaser shall also have the right, but not the obligation, to (a) inspect the work conducted and services provided by Vendor under this Agreement; (b) inspect and test Vendor’s facility and any equipment used in such work or services, including, without limitation, any areas where the merchandise (or components thereof) are stored, handled, packaged or manufactured; and (c) inspect and obtain copies of all books and records (including financial and technical books and records), licenses, authorizations, approvals or written communications from any governmental entity or agency applicable or related to such merchandise, work or services.  In addition, if the merchandise is food or food products, prior to and periodically during the term of Vendor’s performance under this Agreement, Purchaser will have the right, at any time to have its employees, agents and/or contractors, and/or those of Purchaser’s distributors or customers, inspect the growing areas, premises, plants, equipment, procedures, and facilities (including without limitation those of Vendor or Vendor’s growers or other suppliers) relating to the growing, storage, processing, packaging, handling or transport of the merchandise.  Purchaser’s right of inspection shall include all documents and records relating to the foregoing.  If Purchaser finds any growing areas, premises, plants, equipment, procedures, or facilities to be in unsatisfactory condition, Vendor will promptly take, or cause to be taken, such action as may be necessary to bring such growing areas, premises, plants, equipment, procedures, and facilities up to satisfactory condition as determined by Purchaser.   In the event that Vendor fails to bring any of such growing areas, premises, plants, equipment, procedures, or facilities to such satisfactory condition within ten (10) days of Purchaser’s notice, then Purchaser may terminate this Agreement, in addition to all other rights or remedies available to Purchaser.

9.  Software.  If the merchandise or services are Software, the terms and conditions of this section shall also apply in addition to the other terms and conditions set forth in these Standard Terms and Conditions.  “Software” means the software programs, which are provided by Vendor and set forth in a Purchase Order issued by Purchaser for the acquisition of licenses. Software includes, but is not limited to, software programs, media and documentation provided in machine executable or human readable form, including modifications, enhancements, updates and translations thereto, whether physically delivered to Purchaser or hosted by Vendor or a third party.  Vendor hereby grants to Purchaser a fully paid‐up, worldwide, nonexclusive perpetual license to use and have used on its behalf, the Software subject to these Standard Terms and Conditions. Purchaser shall have the further right to modify the Software and related information and/or combine the same with, or merge the same into, other programs and program materials to form enhancements or derivative works. Those portions of such enhancements or derivative works developed by Purchaser shall be owned by Purchaser.  Purchaser shall have the right to make copies of the Software equal to the number of licenses granted.  Purchaser shall have the right to make additional copies of the Software to be used for purposes of backup, archival storage, test, disaster recovery, development, training, and for other non‐production purposes. Purchaser shall have the right to move the Software to a machine owned, leased, controlled, or operated by Purchaser. Vendor acknowledges that during the move the Software may run temporarily on both machines. Except as otherwise provided herein, Purchaser acknowledges that it is acquiring a license only and nothing contained in this license grant shall be construed as granting Purchaser ownership of the Software. The Software may be used by Purchaser, its authorized employees, subcontractor personnel, and consultants under contract to Purchaser, working for the benefit of Purchaser.  Vendor will provide, at no additional cost to Purchaser, maintenance support for first twelve months following initial installation of Software.  Beginning one year after initial installation, Vendor shall offer optional maintenance support for the Software. If Purchaser elects to have Vendor provide this maintenance support, the parties shall negotiate the cost for such maintenance. For purposes of these Standard Terms and Conditions, maintenance and support is defined as the provision of new releases, corrections, patches, enhancements, upgrades, updates, and improvements to the Software. Maintenance shall also include reasonable assistance and consultation to assist Purchaser in resolving problems with the use of the Software, including the verification, diagnosis and correction of errors and defects in the Software. If Vendor abandons, elects not to maintain or support the Software, Vendor will provide to Purchaser one complete copy of the then current documentation and source code corresponding to the Software.  In the event that Vendor fails to perform any material provision of these Standard Terms and Conditions, and if such default is not cured within ten (10) days after Purchaser gives the Vendor written notice thereof, Purchaser may, in addition to its other rights and remedies, terminate the license without liability or penalty. If any dispute arises between the parties, Vendor shall not disable Purchaser’s use of the Software.  These Standard Terms and Conditions are in lieu of and supersede any subsequent software license agreements, or other terms and conditions, which may be delivered with the Software; and/or b) any additional terms and conditions subsequently presented by Vendor and accepted by a user through any electronic method.  Acceptance of different license terms and conditions, electronic or otherwise, by any person who is not an authorized procurement representative of Purchaser shall not constitute acceptance by Purchaser to such terms and conditions, nor shall such terms and conditions supersede these Standard Terms and Conditions.  As used in these Standard Terms and Conditions “Open Source Software” means Software or similar subject matter that is generally available in source code form and that is distributed under a license which, by its terms, (i) does not prohibit licensees of such Software from licensing or otherwise distributing such software in source code form, (ii) does not prohibit licensees of such software from making modifications thereof, and (iii) does not require a royalty or other payment for the licensing or other distribution, or the modification, of such software (other than a reasonable charge to compensate the provider for the cost of providing a copy thereof; and includes, without limitation, software distributed under such licenses as the GNU General Public License, GNU Lesser General Public License, New BSD License, MIT License, Common Public License, among others.

10.  Indemnification:  VENDOR SHALL AT ITS OWN EXPENSE DEFEND, INDEMNIFY AND HOLD HARMLESS PURCHASER AND PURCHASER’S AFFILIATES, AND THE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF PURCHASER AND PURCHASER’S AFFILIATES (EACH A “PURCHASER indemnitee”), FROM AND AGAINST ANY CLAIM (INCLUDING BUT NOT LIMITED TO ANY CLAIM FOR BODILY INJURY, DEATH, DAMAGE TO OR LOSS OF PROPERTY OR CONTAMINATION OF THE ENVIRONMENT AND ANY ASSOCIATED CLEAN UP COSTS), LIABILITY, DAMAGES, COSTS AND EXPENSES ARISING IN WHOLE OR IN PART OUT OF OR IN ANY MANNER RELATED TO:  (I) A DEFECT IN, OR ANY PRODUCT LIABILITY CLAIM REGARDING, ANY MERCHANDISE SUPPLIED BY VENDOR, OR SERVICES PROVIDED, TO PURCHASER PURSUANT TO THIS AGREEMENT AND ANY PURCHASE ORDER; OR (II) VENDOR’S FAILURE TO COMPLY WITH ANY WARRANTY OR OTHER PROVISION OF THIS AGREEMENT OR ANY PURCHASE ORDER; OR (III) THE FAILURE OF VENDOR OR ANYONE ACTING ON BEHALF OF VENDOR TO COMPLY WITH ANY APPLICABLE LAWS OR REGULATIONS; OR (IV) THE NEGLIGENCE, OMISSIONS OR WILLFUL MISCONDUCT OR OTHER FAULT OF VENDOR OR ANYONE ACTING ON BEHALF OF VENDOR; OR (v) any lien made, asserted, threatened or filed against PURCHASER or ANY OF ITS AFFILIATES OR ANY OTHER PURCHASER INDEMNITEE, OR THE PROPERTY OF PURCHASER or ANY OF ITS AFFILIATES OR ANY OTHER PURCHASER INDEMNITEE, RELATED TO OR ARISING OUT OF THE MERCHANDISE OR SERVICES, INCLuding WITHOUT LIMITATION ANY SUCH CLAIM made, asserted, threatened or filed BY ANY SUBCONTRACTOR OF VENDOR AT ANY TIER.

VENDOR SHALL ALSO PAY ALL COSTS INCURRED BY PURCHASER FOR ANY RECALL OR WITHDRAWAL, whether from consumers, the marketplace, warehouses, and/or elsewhere, OF ANY MERCHANDISE (AND, WHERE APPLICABLE, ANY PRODUCTS WITH WHICH THE MERCHANDISE HAS BEEN PACKAGED, CONSOLIDATED OR COMMINGLED) THAT IS MANDATED BY ANY GOVERNMENT AGENCY, OR THAT IS VOLUNTARILY AND REASONABLY UNDERTAKEN BY PURCHASER TO THE EXTENT THAT THE RECALL OR WITHDRAWAL IS DUE TO: (I) A DEFECT IN ANY OF THE MERCHANDISE SUPPLIED BY VENDOR TO PURCHASER; OR (II) VENDOR’S FAILURE TO COMPLY WITH ANY WARRANTY OR OTHER PROVISION OF THIS AGREEMENT OR ANY PURCHASE ORDER; (III) THE FAILURE OF VENDOR OR ANYONE ACTING ON BEHALF OF VENDOR TO COMPLY WITH ANY APPLICABLE LAWS OR REGULATIONS; OR (IV) THE NEGLIGENCE, OMISSIONS OR WILLFUL MISCONDUCT OR OTHER FAULT OF VENDOR OR ANYONE ACTING ON BEHALF OF VENDOR.  SUCH COSTS SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, all costs and expenses incurred by PURCHASER in withdrawing, recalling, publishing notices about, shipping and/or destroying the MERCHANDISE (and, where applicable, any products with which the MERCHANDISE has been packaged, consolidated or commingled) and related costs, including refunds to customers and reimbursement for PURCHASER’s cost of unsold and unsalable Product (including, where applicable, any products with which the MERCHANDISE has been packaged, consolidated or commingled).  VENDOR shall immediately and fully cooperate with the decision of PURCHASER to withdraw or recall thE merchandise (AND, WHERE APPLICABLE, ANY PRODUCTS WITH WHICH THE MERCHANDISE HAS BEEN PACKAGED, CONSOLIDATED OR COMMINGLED).

IN ADDITION, VENDOR SHALL AT ITS OWN EXPENSE DEFEND, INDEMNIFY AND HOLD HARMLESS PURCHASER AND PURCHASER’S AFFILIATES, AND THE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF PURCHASER AND PURCHASER’S AFFILIATES, FROM AND AGAINST ANY CLAIM THAT ANY OF THE MERCHANDISE OR SERVICES FURNISHED PURSUANT TO ANY PURCHASE ORDER, OR PURCHASER’S OR ITS AFFILIATES’ PURCHASE, ACCEPTANCE, USE OR RESALE OF ANY MERCHANDISE OR SERVICE, INFRINGES ANY THIRD PARTY’S PATENT, COPYRIGHT, TRADEMARK, TRADE-SECRET OR OTHER RIGHTS OR IS SUBJECT TO ANY CLAIM FOR ROYALTIES.

VENDOR SHALL NOT SETTLE ANY SUIT OR CLAIM DESCRIBED IN THIS SECTION 10 WITHOUT PURCHASER’S PRIOR WRITTEN APPROVAL.  VENDOR AGREES TO PAY OR REIMBURSE ALL COSTS THAT MAY BE INCURRED BY PURCHASER IN ENFORCING THIS INDEMNITY, INCLUDING REASONABLE ATTORNEYS’ FEES.

11. Price and Discounts; Offset:  If Vendor’s prices are higher than herein specified, Purchaser must be so advised, and approve any change before the shipment of merchandise or performance of services.  If no prices are specified, merchandise or services will be billed at not more than the prices last quoted to or paid by Purchaser, or at the prevailing market prices, whichever is lower. To the extent permitted by applicable law, Vendor warrants that the prices of the merchandise or services shall not be higher than those extended to similar competing customers in the same industry for the same merchandise in equal quantities or the same services, at the same time.  If Vendor reduces its price for the same merchandise or services to similar competing customers in the same industry during the term of this Agreement, Vendor will reduce the price of the applicable merchandise or services accordingly, unless prohibited by law.  Unless expressly stated otherwise, all prices quoted by Vendor shall be inclusive of all packaging, delivery and handling charges.  Vendor shall state its discount terms of payment on invoices unless those terms are already set forth in a written agreement signed by the parties.  Cash discount periods shall begin from a date not earlier than the date Purchaser receives a correct invoice and bill of lading or transportation carrier’s receipt for goods.  If a cash discount is not set forth in writing by Vendor, Purchaser shall be entitled to a discount of two (2) percent of the total purchase price for payment within fifteen (15) days of receipt of Vendor’s invoice.  Purchaser shall be entitled to reduce the total purchase price of merchandise or services provided hereunder by any amounts owed to Purchaser by Vendor under any valid contract or agreement.

12. Work Product; Intellectual Property.  For purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, models, work in progress, service deliverables, inventions, products, computer programs and documentation, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Vendor alone or with others which result from or relate to merchandise delivered or services provided under this Agreement. Standard goods manufactured by Vendor and sold to Purchaser without having been designed, customized or modified for Purchaser and without incorporating any of Purchaser’s intellectual property or any derivatives thereof do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Purchaser. Vendor hereby agrees to irrevocably assign and transfer to Purchaser and does hereby assign and transfer to Purchaser all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Purchaser will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or one or more trademarks in its own name or to follow any other procedure that Purchaser deems appropriate. Vendor agrees: (i) to disclose promptly in writing to Purchaser all Work Product in its possession; (ii) to assist Purchaser in every reasonable way, at Purchaser’s expense, to secure, perfect, register, apply for, maintain, and defend for Purchaser’s benefit all copyrights, patent rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Purchaser’s name as it deems appropriate; and (iii) to otherwise treat all Work Product as Purchaser Confidential Information (as described in Section 16 below). These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement.

Vendor will ensure that Vendor’s officers, directors, employees or agents providing services to Purchaser under valid agreements appropriately waive any and all claims and assign to Purchaser any and all rights or any interests in any Work Product or original works created in connection with agreements with Purchaser, including but not limited to this Agreement. Vendor irrevocably agrees not to assert against Purchaser or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Vendor affecting the Work Product.

Purchaser will not have rights to any works conceived or reduced to practice by Vendor which were developed entirely on Vendor’s own time without using equipment, supplies, facilities or trade secrets of Purchaser, or Purchaser Confidential Information, or any of Purchaser’s intellectual property or derivatives thereof, unless (a) such works relate to Purchaser’s business or products, or Purchaser’s actual or demonstrably anticipated research or development, or (b) such works result from any services performed by Vendor for Purchaser.

Nothing in this Agreement will be deemed to constitute or result in an assignment or a license to the Vendor of any trademarks or other intellectual property owned or licensed by Purchaser or in the creation of any equitable right or interest therein.  This Agreement does not grant the Vendor any right to use the trademarks or other intellectual property owned or licensed by Purchaser, unless the Purchaser’s specifications specifically require Vendor to affix a DOLE trademark or any other trademark furnished by Purchaser to the merchandise, in which case Vendor’s use of the trademark shall be strictly limited to that purpose and only in such form and manner as has been specifically directed by Purchaser and the trademark shall be affixed on only merchandise for sale and delivery to Purchaser hereunder, except as otherwise directed by Purchaser.  The Vendor agrees never to challenge, or to assist in any challenge, to the validity of Purchaser’s trademarks and/or copyrights, including without limitation its registrations, licenses and/or ownership rights thereto.  The Vendor will submit samples of any and all artwork, graphics, layouts, and displays which incorporate the DOLE trademarks, or any other trademark furnished by Purchaser, for Purchaser’s approval prior to use.  The Vendor acknowledges that the worldwide right, title and interest to the DOLE trademarks are owned by Purchaser, and it shall do nothing to impair Purchaser’s right to such properties. The Vendor will not, without Purchaser’s prior written consent, use any of Purchaser’s or its customer’s trademarks, brand names, company and/or division names, images of packages, letterhead, invoices or any other material bearing Purchaser’s name or that of Purchaser’s subsidiaries, affiliates or customers in any of Vendor’s advertising or promotional material.  The Vendor may not make any announcement or other declaration of the relationship between Vendor and Purchaser without Purchaser’s prior written consent.

13.  Ownership of Purchaser Furnished Materials. All tools, drawings, specifications, products, components, packing materials, ingredients, containers, pallets, documents and any other material, information or data, including the technical information, furnished by Purchaser or paid for by Purchaser (the “Material”) shall be and remain the property of Purchaser. Title to, and the right of possession of, all Material shall remain with Purchaser. Vendor shall maintain in good condition and repair, at Vendor’s expense, all Material, and Vendor shall use the Material solely for the performance of work for Purchaser.

14.  Additional Charges:  Purchaser will not pay any charges not included in the listed price, including but not limited to boxing, crating or storage, unless such charges are specified on the face of the Purchase Order or otherwise agreed to in writing by Purchaser.

15.  Delays in Shipment; Delivery:  Time is of the essence in this Agreement.  In the event Vendor fails to deliver the merchandise or perform the services within the time specified, Purchaser may, at its option, and in addition to all other rights or remedies available to Purchaser, decline to accept the merchandise or services and terminate the Agreement.  Vendor shall advise Purchaser immediately of any shortage or delay in shipment.  Purchaser reserves the right to cancel from this order any items not delivered or shipped within the time specified in addition to all other rights and remedies available to Purchaser.  Purchaser may, at its option, accept delayed deliveries from Vendor without thereby waiving its right to demand strict compliance with the delivery schedule set forth on the Purchase Order with respect to all other deliveries.  Vendor shall not substitute or back order merchandise without prior written consent of Purchaser. The Vendor agrees that it will be liable for any damages caused to Purchaser as a result of the Vendor’s failure to deliver the merchandise or perform the services within the time specified (including without limitation, premiums paid in order to obtain the merchandise from other sources or on the open market, broker fees, penalties assessed by Purchaser’s customers, freight, other transportation and distribution expenses, duties, taxes, storage  expenses and any other costs and expenses related thereto). 

16.  Confidentiality:  Vendor may acquire knowledge of Purchaser Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Purchaser Confidential Information in confidence during and following termination or expiration of this Agreement. “Purchaser Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to Purchaser’s research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data; all Work Product; and all other material or information considered proprietary by Purchaser relating to the current or anticipated business or affairs of Purchaser which is disclosed directly or indirectly to Vendor. In addition, Purchaser Confidential Information means any information about Purchaser’s purchase of the merchandise or engagement of Vendor or any information regarding the merchandise made to Purchaser’s special order, and also includes any third party’s proprietary or confidential information disclosed to Vendor in the course of providing merchandise or services to Purchaser. Purchaser Confidential Information does not include any information (i) which Vendor lawfully knew without restriction on disclosure before Purchaser disclosed it to Vendor, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Vendor, (iii) which Vendor developed independently without use of the Purchaser Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Vendor by a third party as a matter of right and without restriction on disclosure. In addition, Vendor may disclose Purchaser Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Vendor provides prompt written notice to Purchaser of such requirement prior to disclosure.

Vendor agrees not to copy, alter or directly or indirectly disclose any Purchaser Confidential Information. Additionally, Vendor agrees to limit its internal distribution of Purchaser Confidential Information to Vendor’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 Vendor 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 Purchaser Confidential Information.

Vendor further agrees not to use the Purchaser Confidential Information except in the course of performing hereunder and will not use such Purchaser Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Purchaser Confidential Information with information of Vendor shall not affect the confidential nature or ownership of the same as stated hereunder.  All Purchaser Confidential Information is and shall remain the property of Purchaser.  Purchaser makes no representation or warranty concerning the accuracy of any Purchaser Confidential Information. Upon Purchaser’s written request or the termination of this Agreement, Vendor shall return, transfer or assign to Purchaser all Purchaser Confidential Information and all copies thereof.

17.  Data Security:  Vendor represents, warrants and covenants to Purchaser that Vendor shall maintain a comprehensive information security program that contains administrative, physical and technical safeguards to protect Purchaser’s Confidential Information that are no less rigorous than accepted industry best practices and that are reasonably designed to protect the security and confidentiality of Purchaser’s Confidential Information, protect against any anticipated threats or hazards to the security or integrity of the Purchaser’s Confidential Information, and protect against unauthorized access to or use of the Purchaser’s Confidential Information. Vendor shall promptly notify Purchaser in writing of any actual or suspected unauthorized access to the Purchaser’s Confidential Information.

18.  Assignment:  Vendor shall not assign or delegate, by operation of law or otherwise, this order nor any monies due or to become due hereunder, without prior written consent of Purchaser, and any attempted assignment or delegation without consent of Purchaser shall be void.  No sight drafts for purchases will be honored.  Purchaser may freely assign or delegate any or all of its rights or obligations under any Purchase Order, including without limitation rights under any license to Software, without any requirement to give Vendor written notice of the assignment or delegation or to obtain the consent of Vendor.

19.  Compliance with Law; Food Safety:  In the execution of this Agreement, Vendor represents and warrants that it is in full compliance with, and its obligations hereunder shall be performed in full compliance with, and that the merchandise shall have been and shall be grown, harvested, produced, processed, manufactured, packaged, prepared, labeled, handled, stored, transported, imported and shipped in full compliance with, all applicable federal, state and local laws, regulations, and rules (including but not limited to all environmental, employment and wage, tax, hazardous material, export control and health and safety laws, regulations, and rules), including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. Section 136 et seq.), the Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C. Section 301 et seq.), the Federal Food Safety Modernization Act, the Federal Fair Packaging and Labeling Act, the Federal Nutrition Labeling and Education Act, the Federal Public Health Security and Bioterrorism Preparedness and Response Act of 2002, the Federal Hazardous Substances Act, as amended, the Federal Fair Labor Standards Act, as amended, California Health and Safety Code Section 25249.6 (also known as Proposition 65) and any and all other federal, state and local laws, regulations and rules applicable to the regulation of the production of food or food products, including the laws of all countries or other jurisdictions where the merchandise will be grown, processed, packed and sold to the ultimate consumer, and all GAP, cGMP and HACCP requirements, and with all applicable specifications for the merchandise and/or services stated or referenced in the Purchase Order and attachments thereto or otherwise provided, or to be provided, by Purchaser.  Vendor warrants that it has all licenses, permits and other government approvals that are required by all applicable federal, state and local laws and regulations.  Vendor warrants that it shall maintain all records required by all applicable federal, state and local laws and regulations, including without limitation, if the merchandise is food or a food product, accurate production, packing, freezing and quality control records and all other records necessary or appropriate to document compliance with the FDA traceability requirements, and that Vendor will have documented food safety and food security policies and procedures in place, that are in compliance with the requirements mandated by the Federal Food Safety Modernization Act, all of which must be acceptable to Purchaser.  Among other requirements, such food safety and food security procedures shall require:  (i) that recordkeeping systems are in place to ensure traceability of all merchandise back to the farm and packing shed, and which show the complete history of each grouping of the merchandise, including lot numbers and production dates; (ii) all cartons and other materials containing merchandise will be marked to facilitate any necessary product retrieval, and (iii) any other information reasonably requested by Purchaser.  The Vendor shall also institute a comprehensive product recall program satisfactory to Purchaser.  If the merchandise is food or a food product, upon Purchaser’s request, Vendor will provide to Purchaser (at Vendor’s expense), for Vendor and for each growing and packing area or any other facility used to produce, handle or store merchandise, a third party certification by a food safety agency acceptable to Purchaser. If the merchandise is food or a food product, Vendor shall immediately notify Purchaser if Vendor becomes aware of any safety, health or security concerns, of any magnitude, that would or could affect any food safety quality of the merchandise (for example but not by way of limitation, if any inspection or audit indicates the presence of salmonella or e. coli or other bacteriological presence in any facility or in any of the merchandise), and will obtain Purchaser’s prior written consent to any action to remedy such issues. In addition to Purchaser’s other rights hereunder, Purchaser may refuse to accept delivery of all or any portion of such impacted merchandise and may return it for a full refund, and in such event, Purchaser shall have no obligation to pay for the merchandise, and the Vendor shall be obligated to dispose of it, at Vendor’s sole cost and expense, in whatever manner may be required by any applicable federal, state or local law or regulation. If the merchandise is food or a food product, Vendor shall immediately notify Purchaser of any inspection of growing areas, premises, plants, equipment, procedures, and facilities (including without limitation those of Vendor or Vendor’s growers or other suppliers) relating to the growing, storage, processing, packaging, handling or transport of the merchandise by any food and drug inspector (or similar agency), or any other federal, national, state, local or other governmental, administrative or regulatory agency, and shall thereupon furnish Purchaser with copies of all reports and analyses relating to such inspections where the inspections involved or may involve the merchandise, container(s) or packaging material, the growing areas, premises, plants, equipment, or procedures used to produce, pack, freeze, process, store, handle or transport the merchandise.  Vendor shall also promptly provide Purchaser with copies of any communication to or from any local, state or federal agency, government or commission (including without limitation, the Food and Drug Administration and the U.S. Department of Agriculture) that relates to or affects the merchandise or Vendor’s operations or those of Vendor’s growers or other suppliers.  Vendor shall not change the location of any plants or other facilities used to produce, manufacture, process, freeze, pack or store the merchandise without the Purchaser’s prior written consent.

20.  No Oral Representations, Acceptance of Terms and Conditions:  Unless otherwise indicated on the face of the Purchase Order, the foregoing terms and conditions and those stated or referred to, by the way of addition, on the face of the Purchase Order comprise the entire agreement between the parties hereto and no variations or amendments of the same shall be valid unless evidenced by a writing signed by authorized representatives of both parties.  Notwithstanding anything to the contrary set forth herein, if Section 11.1 applies to the merchandise, then price adjustments shall become effective if made in accordance with that Section. These Standard Terms and Conditions shall be deemed to be accepted upon the earlier of (i) Vendor’s written acceptance, (ii) Vendor’s shipment of any merchandise to the Purchaser or performance of any services pursuant to a Purchase Order or distribution of Software to Vendor pursuant to a Purchase Order, or (iii) the passage of forty-eight (48) hours following the delivery to Vendor of a Purchase Order hereunder.  ANY ACCEPTANCE OF THESE STANDARD TERMS AND CONDITIONS IS HEREBY LIMITED TO THESE TERMS AND CONDITIONS AND THOSE SET FORTH IN WRITING ON A PURCHASE ORDER, AND NOTIFICATION IS HEREBY GIVEN OF PURCHASER’S OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related Purchase Orders.  Further, if Vendor has entered into a Supplier Guaranty and Indemnity Agreement with Purchaser, Vendor’s warranties and covenants contained in such agreement shall survive the execution of this Agreement and be considered in addition to, and not in substitution of, any warranties or covenants provided hereunder.

21.  Equal Employment Opportunity:  Vendor shall comply with all applicable laws pertaining to employment, including applicable wage laws and laws prohibiting discrimination in employment. In the execution of this Agreement, Vendor represents and warrants that it does not employ persons under the age of 18 in the production of the merchandise or provision of services specified in the Purchase Order.  The Vendor represents and warrants that neither Vendor, nor any of its growers or other suppliers, shall employ child, prison or forced labor of any kind. 

22.  Transfer of Title:  Title and risk of loss to merchandise will pass to Purchaser at the time of Purchaser’s acceptance of delivery of the merchandise specified in the Purchase Order.

23.  Taxes:  Vendor agrees to pay any taxes imposed by law upon or on account of merchandise delivered or services performed hereunder, unless otherwise agreed, except taxes required by law to be paid or borne by Purchaser.

24.  Insurance: Vendor shall have maintained, and continue to maintain, at its expense, sufficient insurance coverage to insure against all losses and damages, and all losses and damages subject to indemnification by Vendor as described in the second paragraph of Section 10 set forth above, which may result from the actions of Vendor in carrying out its obligations under this Agreement.  Vendor shall supply a current Certificate of Insurance evidencing coverage as specified below, and continue to do so annually on or before the renewal dates so long as it continues to sell product to Purchaser.  Along with each certificate Vendor must provide policy endorsements naming  “Dole Packaged Foods, LLC, its parent corporation and any subsidiaries, officers, directors, employees and agents as additional insured”, Address:  7916 W. Bellevue Road, Atwater, CA  95301,  providing coverage at least as broad as ISO CG 20 15.  Policy endorsements are also to be provided, if needed, to confirm Vendor’s policies are primary and Purchaser’s policies are excess and non-contributory, even if Vendor’s insurance is an excess or umbrella layer and Purchaser’s policies are primary layers.   (Vendor may use primary, excess and umbrella coverage to satisfy the required limits).  The policy shall contain a Waiver of Subrogation Endorsement in favor of Dole Packaged Foods, LLC, its parent corporation and any subsidiaries, officers, directors, employees and agents. Insurance carrier will provide Dole Packaged Foods, LLC with at least thirty (30) days prior written notice of any modification or cancellation of such insurance coverage, except ten (10) days’ notice shall apply in the event of cancellation for non-payment of premium.   Such insurance shall be issued by reputable insurers reasonably acceptable to Purchaser and with a minimum AM Best rating of A-VII. 

25. Force Majeure:  Each party (the “affected party”) shall be excused from the performance of an obligation under this Purchase Order for any period during which the affected party is prevented from performing that obligation by fires; floods or weather; acts of God; strikes, lockouts or other concerted actions of workers; acts or omissions of any governmental authority; insurrections, riots, embargoes, wars or hostilities; or any other such cause beyond the affected party’s reasonable control (a “force majeure cause”).  The other party shall also be excused from the performance of any payment or other obligations corresponding to the obligations from which the affected party is excused.  In the event that an affected party wishes to claim relief by reason of any force majeure cause, it must promptly notify the other party in writing both on the occurrence and on the cessation of such cause.  However, if the force majeure cause lasts for more than thirty (30) days, successive or not, in any period of forty-five (45) successive days, the other party may terminate this Purchase Order on written notice to the affected party.

26.  Arbitration:  If a controversy arises between Vendor and Purchaser regarding the subject of any Purchase Order governed by these Terms and Conditions, the parties shall select a mutually acceptable independent mediator and proceed expeditiously to mediate such controversies.  If mediation fails and the parties have not reached agreement within ninety (90) days of the initiation of such mediation, then either party shall have the right to demand binding arbitration in accordance with the commercial rules of the American Arbitration Association.  Each party shall bear its own costs and attorneys’ fees; the arbitrator’s fees and costs shall be allocated in accordance with the decision.  The arbitrator’s findings and conclusions shall be final and binding upon the parties and judgment upon the award may be entered in any court of competent jurisdiction.  The arbitration shall be conducted in Merced County or Los Angeles County, California, at the election of Purchaser.  The language of any such arbitration shall be English.

27.  Limitation of Liability:  TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PURCHASER’S TOTAL AGGREGATE LIABILITY 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 PURCHASER HEREUNDER FOR THE UNITS OF PRODUCT, OR THE SPECIFIC SERVICES, THAT ARE THE SUBJECT OF THE DISPUTE.  IN NO EVENT SHALL PURCHASER BE LIABLE TO VENDOR OR VENDOR’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT PURCHASER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

28.  Governing Law:  Any Purchase Order governed by these Terms and Conditions and all disputes arising thereunder shall be governed in all respects by the law of the State of California, excluding the State’s rules on conflicts of law.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Purchase Order or any dispute thereunder.

29.  Acceptance:  In accepting any Purchase Order from Purchaser, Vendor agrees to all of the terms and conditions set forth herein and applicable thereto.

30.  Code of Conduct: The Vendor will acknowledge and comply with all provisions of Dole International Holdings, Inc.’s Code of Conduct, as amended from time to time.

31.  Cumulative Remedies: Except as expressly set forth herein to the contrary, no remedy referred to in this Agreement intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or available under law, equity, statute or otherwise.

32.  Severability and Waiver: In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and remain in effect according to its stated terms and conditions. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver shall be valid unless made in writing.