For vendors interested in doing business with Diamond Foods, Inc., here are the General Terms and Conditions of Purchase Orders.
“Buyer” shall mean Diamond Foods, Inc., dba Diamond of California and Emerald of California, and “Seller” shall mean the parties to whom purchase order is issued.
Unless otherwise agreed, Buyer’s payment is due only after
delivery of all goods. Buyer has the option to return excess
deliveries or partial deliveries at Seller’s expense.
Buyer shall have a reasonable time after delivery for inspection,
rejection, acceptance or revocation of acceptance of any delivery.
Buyer may reject all or any portion of any lot which is defective.
Seller shall be responsible for proper packing. If Buyer accepts
partial delivery, 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 shall have the right to offset any
refunds due from Seller against any other amounts owing on other
products purchased from Seller.
If shipment or prices are not in accordance with this purchase
order or with the representations or guarantees made by Seller,
Buyer may refuse to accept and pay for such shipments, or at
Buyer’s option, Buyer may accept partial delivery without
liability beyond payment; therefore, time is of the essence
of this contract.
Seller guarantees and warrants that all goods under this contract
comply with all state and federal laws and regulations, including,
but not limited to, federal and California state occupational
health and safety laws and that such products 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 warrants that
the goods are at least equal in every respect to any sample
or specification submitted and Buyer may reject and return at
Seller’s expense any goods which, in the opinion of Buyer,
are not at least equal quality in every respect to the sample
and/or specifications.
Seller agrees to protect, indemnify and hold harmless the Buyer
from any and all liability, damage and expense, including attorneys’
fees, which may or might be sustained or incurred because of
the infringement by the goods supplied by the Seller under this
purchase order of any United States patent, trademark or copyright,
or claim thereof or because of any claim or action against the
Buyer on account of any adulteration or other defective condition
of any claim thereof, in any manner involving the goods hereby
sold and purchased or any part thereof, except such claims and
actions as arise by reason of unauthorized warranties or negligence
on the part of the Buyer, its agents and employees, provided
prompt written notice be given the Seller of the bringing of
any such claim or action and an opportunity be given the Seller
to settle or defend same as the Seller may see fit. In case
any apparatus, or any part thereof, furnished under this contract
is held to constitute infringement of any U.S. patent and the
use of said apparatus or part is enjoined, the Seller shall,
at its own expense, either procure for the Buyer the right to
continue using said apparatus or part; or replace same with
non-infringing apparatus, or modify it so it becomes non-infringing,
or remove said apparatus and refund the purchase price and the
transportation and installation costs thereof. Nothing herein
shall prevent Buyer from providing its own representation at
its own expense in the event of litigation against the Buyer.
Seller agrees to reimburse Buyer for any expense incurred by
Buyer by reason of Seller’s failure to make shipments in
accordance with and via routing shown on Buyer’s purchase
order.
Undelivered orders are subject to cancellation or postponement
after reasonable notice at Buyer’s option in the event
of fire, flood, tempest, earthquake, war, riot, strikes, act
of God, or Buyer’s discontinuance or suspension of business.
Seller shall not be liable for delays in delivery caused by
strikes, fire, war, acts of God, or other causes beyond his
control.
If price is omitted from this 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
articles described herein. If Buyer does not approve such price
in writing, it shall have the right to cancel this order by
written notice to Seller, without further liability on its part.
If price is stated herein, it is a firm price. Seller agrees
to give 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 this
order without further liability on its part or to accept the
price increase.
Seller will 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.
The material and service covered by this order are desired
as a complete unit. Performance of any part of this order shall
be notice by the Seller of acceptance of the order in full and
under the terms as herein set out.
All the terms and conditions of this agreement are fully expressed
or referred to herein and may not be amended or modified except
in writing, signed by the parties hereto.
Except as otherwise modified above, all rights and obligations
of the parties are to be governed according to the provisions
of the California Commercial Code and interpreted according
to the laws of the State of California.
Buyer’s rights hereunder shall vest in and be assigned,
at Buyer’s option, to any marketing cooperative association
on whose behalf Buyer is making this purchase.
Government Contracts:
Seller agrees to comply with all appropriate provisions
of Executive Order 11246, as amended or supplemented, and
agrees that unless otherwise exempted:
Seller shall not discriminate against any employee or
applicant for employment because of race, color, religion,
sex or national origin. Seller will take affirmative action
to insure that applicants are employed, and that employees
are treated during employment, without regard to their race,
color, religion, sex or national origin. Such action shall
include, but not be limited to, the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment
advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeship. Seller agrees to post in conspicuous places,
available to employees and applicants for employment, notices
to be provided setting forth the provisions of this nondiscrimination
clause.
Seller will, in all solicitations or advertisements for
employees placed by or on behalf of Seller, state that all
qualified applicants will received consideration for employment
without regard for race, color, religion, sex or national
origin.
Seller will send to each labor union or representative
of workers with which he has collective bargaining agreement
or other contract or understanding, a notice, to be provided
advising the labor union or workers’ representative
of Seller’s commitment under Section 202 of Executive
Order No. 11246 of September 24, 1965, and shall post copies
of the notice in conspicuous places available to employees
and applicants for employment.
Seller will comply with all provisions of Executive Order
11246 of September 24, 1965, and the rules, regulations,
and relevant orders of the Secretary of Labor.
Seller will furnish all information and reports required
by Executive Order No. 11246 of September 24, 1965, and
by the rules, regulations and orders of the Secretary of
Labor, or pursuant thereto, and will permit access to his
books, records and accounts by the contracting agency and
the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
In the event of Seller’s noncompliance with the nondiscrimination
clauses of this contract or with any of such rules, regulations
or orders, this contract may be cancelled, terminated or
suspended in whole or in part and the Seller may be declared
ineligible for further Government contracts in accordance
with procedures authorized by Executive Order No. 11246
of September 24, 1965, and such other sanctions may be imposed
and remedies invoked as provided in Executive Order No.
11246 of September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor or as otherwise provided
by law.
Seller will include the provisions of Paragraphs (1) through
(7) into every subcontract or purchase order unless exempted
by rules, regulations or orders of the Secretary of Labor
issued pursuant to Section 204 of Executive Order No. 11246
of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. Seller will take such
action with respect to any subcontract or purchase order
as may be directed by the Secretary of Labor as a means
of enforcing such provisions, including sanctions for noncompliance;
provided, however, that in the event Seller becomes involved
in, or is threatened with, litigation with a subcontractor
or vendor as a result of such direction. Seller may request
the United States to enter into such litigation to protect
the interests of the United States.
If the goods purchased are, to Seller’s knowledge,
to be used in the performance of a federal government
contract, then Seller agrees to comply with any additional
provisions concerning the utilization of small business
concerns and small business concerns owned and controlled
by socially and economically disadvantaged individuals.
Seller agrees to comply with all appropriate provisions
of Section 503 of the Rehabilitation Act of 1973 and
Section 402 of the Vietnam Era Veteran’s Readjustment
Assistance Act of 1974 (see paragraph 15, section "A"
of general provisions.)
