Terms and Conditions of Purchase

Diamond Foods Holdings, LLC, including its affiliates and subsidiaries (each, a “Buyer“) under these Terms and Conditions of Purchase (these “Terms”) agrees to purchase, and the seller identified in one or more purchase orders, proposals, or quotes (each, a “Purchase Order” and together with these Terms, this “Agreement”)(“Seller“) agrees to sell such goods or products (“Goods”) and/or provide such services (“Services”) described in a Purchase Order, subject to the following:

1. Acceptance. By acceptance of a Purchase Order, Seller accepts these Terms and agrees that these Terms shall be the exclusive terms governing Buyer’s purchase of Goods and/or Services from Seller, pursuant to Purchase Orders issued or agreed upon by Buyer from time to time. Nothing in these Terms shall be construed to obligate Buyer to issue any Purchase Orders to Seller. Acceptance of the offers represented by each Purchase Order is expressly limited to the terms and conditions of the applicable Purchase Order and these Terms, and any additional or different terms proposed by Seller are hereby objected to and rejected. There are no understandings or agreements relating to the subject matter of these Terms other than as set forth in these Terms and the applicable Purchase Order. This Section 1 notwithstanding, to the extent Buyer is purchasing Goods and/or Services pursuant to a master agreement between Buyer and Seller, such master agreement shall govern to the extent any provision of these Terms conflicts with such master agreement. Seller shall be bound by each Purchase Order hereunder when it executes and returns the acknowledgement copy of a Purchase Order, when it otherwise indicates acceptance of a Purchase Order or when it ships any Goods and/or provides any Services ordered herein to Buyer or otherwise commences performance thereunder. Buyer’s acceptance of Goods and/or Services shall not be construed as an acceptance of any terms and conditions contained in any other documentation and expressly excludes any of Seller’s general terms and conditions of sale or any other similar document.
2. Price; Payment. Unless otherwise agreed in a Purchase Order, Buyer’s payment is due only after delivery of all Goods and the completion of all Services. Buyer may, in its sole discretion, return excess deliveries or partial deliveries of Goods at Seller’s risk and expense. If shipment or prices are not in accordance with a Purchase Order or with the representations or guarantees made by Seller, Buyer may refuse to accept and pay for such Goods or Services, or at Buyer’s option, Buyer may accept partial delivery without liability beyond payment. If price is omitted from a Purchase Order, the price shall be the lowest prevailing market price. In such event Seller must notify Buyer in writing before shipment is made of the price for the Goods. If Buyer does not approve such price in writing, it shall have the right to cancel such Purchase Order upon written notice to Seller, without further liability on its part. If price is stated herein, it is a firm price and shall not be increase for any reason. Seller shall provide Buyer the benefit of any reduction in such price if it should reduce its prices on the same or similar articles prior to shipment or delivery to Buyer. If prior to shipment Seller increases its prices on the same or similar articles it must notify Buyer in writing before shipment is made, in which event Buyer shall have the right either to cancel such Purchase Order without further incurring liability on its part or to accept the price increase. Seller shall not charge and Buyer will not pay for cartage, packing, packing cases, reels, drums or other extras of any nature except when such charges are authorized by Buyer in writing prior to Seller incurring such charges.
3. Inspection and Rejection. Buyer shall have a commercially reasonable period of time after delivery of Goods or completion of Services for inspection, rejection, acceptance or revocation of acceptance of any Goods or Services. Buyer may reject all or any portion of any lot of Goods which is defective. Seller shall be responsible for proper packing of Goods. If Buyer accepts partial delivery of Goods, the price shall be apportioned accordingly and Seller will refund the amount of all transportation cost, handling charges, or partial payments paid or incurred by Buyer on rejected Goods. Buyer may offset any refunds due from Seller against any other amounts due or owing to Seller.
4. Shipment. Except as otherwise provided herein or in a Purchase Order, title to Goods and risk of loss thereof, or damage thereto, shall pass to Buyer upon delivery and acceptance of the Goods by Buyer. If Goods are to be installed by Seller at Buyer’s facility or a facility designated by Buyer, title will pass to Buyer upon completion of the installation and written approval by Buyer. Seller shall deliver the Goods and/or provide the Services on the date specified in the applicable Purchase Order (the “Delivery Date”). Except as otherwise provided in the Purchase Order, delivery and/or performance shall be at the location shown on the face of the Purchase Order. Time is of the essence and if delivery of Goods and/or performance of the Services is not completed by the Delivery Date, Buyer reserves the right, without liability and in addition to its other rights and remedies, to terminate the applicable Purchase Order by notice to Seller effective as to Goods not yet shipped and/or Services not yet performed and to purchase substitute Goods and/or alternative Services elsewhere and charge Seller with any additional expenses, costs and loss incurred as a result. Seller shall promptly notify Buyer in writing if the Goods and/or provision of the Services will be delayed, indicating the cause and extent of the delay, but this shall not relieve Seller of its obligation to deliver and/or perform as required by this Agreement unless otherwise instructed by Buyer in writing. If, in order to meet the Delivery Date it becomes necessary for Seller to ship by a more expensive way than specified in the Purchase Order, increased transportation costs shall be paid by Seller unless the necessity for such rerouting or expedited handling has been caused solely and exclusively by Buyer.
5. Warranties. Seller warrants to Buyer, Buyer’s successors, assigns, customers and users of the Goods and/or Services, that: (i) Seller has good title to any and all Goods supplied hereunder and has the right to transfer title of said Goods to Buyer free and clear of any and all liens and encumbrances; (ii) all Services shall be performed in a professional and workmanlike manner, in accordance with this Agreement and with applicable laws; (iii) all Goods shall conform to the specifications and appropriate standards and all other requirements of this Agreement, and all technical and/or functional requirements, features, dimensions, capacity, performance, and other standards as provided by Buyer; (iv) all Goods (including their component parts) will be new (and not counterfeit), and traceable back to the original manufacturer; (v) all Goods will conform to any statements made on the containers or labels or advertisements for such Goods, and any Goods will be adequately contained, packaged, marked and labeled; (vi) Goods supplied hereunder will be of merchantable quality; (vii) if Seller knows or has reason to know the particular purpose for which Buyer intends to use the Goods, Goods supplied hereunder shall be fit for the particular use intended, (viii) Goods supplied hereunder shall be free from defects, whether patent or latent, in material and workmanship; (ix) Goods and Services, or Buyer’s or any third party’s receipt or use thereof, shall not infringe or misappropriate the intellectual or proprietary rights of any third party; and (x) Goods are not adulterated or misbranded with the meaning of the Federal Food, Drug and Cosmetic Act, as amended, and are not such articles as may not be introduced into interstate commerce Seller shall, in the performance of its obligations hereunder, comply with all, and shall not violate any, applicable laws, rules, or regulations. The foregoing warranties shall survive acceptance, testing, inspection, or use of the Goods and/or Services by Buyer, and shall be cumulative and in addition to any warranties of additional scope given to Buyer by Seller and/or provided by law or in equity. Seller shall replace or correct defective Goods and/or Services promptly, without expense to Buyer, when notified of such nonconformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Alternatively, if Buyer elects not to do so, or in the event of failure of Seller to correct defects in or replace nonconforming Goods and/or Services promptly, Buyer may make such corrections or replace such Goods and/or Services, and in either case may engage third parties to do so, and charge Seller for the cost incurred by Buyer in doing.
6. Indemnification. Seller shall indemnify, defend, and hold harmless the Buyer, its affiliates, subsidiaries, and its and their officers, directors, managers, partners, employees, agents, successors, and assigns from and against any and all claims, liabilities, damages, demands, lawsuits, causes of action, penalties, fines, administrative law actions and orders, and expenses of costs of any kind (including attorneys’ fees) (collectively, “Claims”), whether third-party or direct, which may or might be sustained or incurred by Buyer to the extent arising from or related to: (i) Seller’s breach of any of its obligations under this Agreement; (ii) Seller’s negligence, gross negligence, or willful misconduct in its performance under this Agreement; (iii) personal injury, death, or damage to real or personal property arising from Seller’s performance under this Agreement; (iv) Seller’s violation of applicable laws, rules, or regulations; (v) Seller’s breach of its obligations regarding Buyer’s Confidential Information; (vi) the infringement or misappropriation of the intellectual or proprietary rights of any third party by Buyer’s receipt of any Goods or Services provided by the Seller under this Agreement, and Buyer’s use or further resale thereof; and (vii) any required or voluntary recalls arising from the Goods and/or Services, as applicable. Buyer shall provide Seller with prompt written notice of any Claim for which indemnity is sought; provided, however, that any delay in providing notice shall not relieve Seller of its obligations except to the extent Seller is materially prejudiced by such delay. Upon receipt of notice, Seller shall promptly assume the defense of the Claim with counsel reasonably acceptable to Buyer and shall diligently prosecute such defense. Buyer may participate in the defense with counsel of its choice at its own expense; provided, that if a conflict of interest exists between Seller and any Buyer Indemnitee, or if Seller fails to assume or diligently conduct the defense, Buyer may assume the defense at Seller’s expense. Seller shall not settle any Claim without Buyer’s prior written consent unless the settlement (a) provides a full and unconditional release of all Buyer Indemnitees, (b) imposes no admission of fault or liability on any Buyer Indemnitee, and (c) imposes no obligation on any Buyer Indemnitee other than the discontinuance of claims. Buyer may not settle any Claim for which it seeks indemnity without Seller’s consent, not to be unreasonably withheld, conditioned, or delayed.
7. Infringement Remedies. Without limiting Seller’s indemnity obligations under Section 6, if any Goods or Services are, or in Seller’s opinion are likely to be, the subject of a Claim alleging the infringement or misappropriation of a third-party’s intellectual or proprietary rights, Seller shall, at its sole cost and expense and in addition to its defense and indemnity obligations, promptly: (i) procure for Buyer the right to continue using the Goods or Services; (i) replace or modify the Goods or Services so they become non-infringing without materially degrading functionality; or (iii) if neither (i) nor (ii) is commercially reasonable, remove the affected Goods or cease the affected Services and refund to Buyer all amounts paid for the affected Goods or Services, including associated costs of cover, removal, and reinstallation.
8. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES OR “COSTS OF COVER” ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY ORDER, INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WERE MADE KNOWN OR WAS FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF BUYER AND ITS AFFILIATES TO SELLER AND ITS AFFILIATES, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THESE TERMS AND THE ORDER, WILL NOT EXCEED THE LESSER OF: (i) TOTAL FEES PAID BY BUYER TO SELLER FOR THE GOODS OR SERVICES UNDER AN ORDER FROM WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE SELLER’S SOLE REMEDY (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN). THESE LIMITATIONS ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
9. Force Majeure. Neither party shall be liable for damages under this Agreement for a delay or failure in its performance under this Agreement as a result of causes beyond its reasonable control, including any law, order, regulation, direction, or request of any government having or claiming to have jurisdiction over Buyer or its subcontractors; failure or delay of transportation; insurrection, riots, national emergencies, pandemics, epidemics, quarantine restrictions, war, acts of public enemies, strikes, labor disputes, or inability to obtain necessary labor, supply chain disruptions; fires, floods or other catastrophes; cyber attacks or any other interruptions, loss, or malfunctions of utilities, communications or computer (software or hardware) services; acts of God, or any causes beyond the reasonable control of such party (collectively, “Force Majeure Events”). Upon the giving of prompt written notice of any such causes of a delay or failure in its performance of any obligation under this Agreement, the time of performance by such party shall be extended to the extent and for the period that its performance of said obligations is prevented by such cause. Undelivered shipments of Goods are subject to cancellation or postponement after reasonable notice at Buyer’s option in the event of a Force Majeure Event.
10. Insurance. Seller shall, at its own expense, maintain insurance coverage customary for businesses of similar size and nature, including but not limited to commercial general liability, product liability, and workers’ compensation insurance as required by applicable law. Upon Buyer’s request, Seller shall provide certificates of insurance evidencing such coverage. All insurance policies shall be issued by insurers with an A.M. Best rating of A- or better and shall name Buyer as an additional insured where commercially reasonable. Seller’s failure to maintain required insurance shall be deemed a material breach of this Agreement, and Seller shall indemnify, defend, and hold harmless Buyer from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from Seller’s failure to maintain such insurance.
11. Confidential Information. All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing its obligations under this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to Seller at the time of disclosure without an obligation of confidentiality; or (iii) rightfully obtained by Seller on a non-confidential basis from a third party.
12. Miscellaneous. This Agreement: (i) may be modified only by a writing signed by each of the parties; (ii) may be executed in several counterparts, each of which is deemed an original but all of which constitute one and the same instrument; (iii) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of California, without giving effect to California’s conflict of laws rules; (iv) is binding upon, and will inure to the benefit of, the parties and their respective successors and permitted assigns; and (v) constitutes the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. In entering into this Agreement, neither party has relied upon any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement. Seller shall not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. Unless otherwise agreed by the parties, no assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder. Each party expressly consents to the exclusive jurisdiction of the federal, state and local courts serving California, to govern all disputes arising out of or relating to this Agreement. The due performance or observance by a party of any of its obligations under this Agreement may be waived only by a writing signed by the party against whom enforcement of such waiver is sought, and any such waiver will be effective only to the extent specifically set forth in such writing. The waiver by a party of any breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach or violation hereof. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Sections 1, 2, 3, 5, 6, 7, 8, 11, 12, and 13 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination.
13. Government Contracts. If applicable, Seller shall comply with, and shall cause its subcontractors and suppliers at any tier to comply with, all terms, conditions, clauses, representations, certifications, and other obligations that Buyer is required to flow down to its subcontractors under any prime contract, government contract, or higher-tier subcontract applicable to the Goods or Services (including those mandated by the Federal Acquisition Regulation (FAR), agency supplements such as DFARS, and other mandatory flow-downs). All such clauses are incorporated herein by reference with the same force and effect as if set forth in full and shall apply to Seller as if Seller were the “contractor,” to the extent necessary for Buyer to meet its obligations. Upon request, Buyer will identify specific applicable flow-downs; however, Seller remains responsible for compliance, including furnishing required certifications and representations and providing access to records when required. In the event of any conflict, the mandatory flow-down requirement shall control.