Supplier Terms and Conditions

THESE TERMS AND CONDITIONS SET FORTH THE TERMS UNDER WHICH YOU (“VENDOR”) WILL PROVIDE SERVICES AND/OR GOODS TO NONNI’S FOODS LLC AND/OR ITS AFFILIATES (TOGETHER “COMPANY”). IF COMPANY AND VENDOR HAVE EXECUTED A MASTER AGREEMENT, SUCH AGREEMENT SHALL CONTROL AND THESE TERMS AND CONDITIONS SHALL HAVE NO EFFECT. A MASTER AGREEMENT MAY BE REQUESTED THROUGH YOUR COMPANY CONTACT. IN ALL OTHER CIRCUMSTANCES, VENDOR’S ACCEPTANCE OF THE PURCHASE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED HEREIN, WHICH ARE INCORPORATED HEREIN BY REFERENCE. VENDOR AND COMPANY MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY THE “PARTIES.”

BY ACCEPTING AND/OR PERFORMING PURSUANT TO A PURCHASE ORDER, VENDOR AGREES THAT THESE TERMS AND CONDITIONS REPRESENT THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE GOODS AND SERVICES. COMPANY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY VENDOR, INCLUDING ANY ATTEMPT BY VENDOR TO LIMIT OR CONDITION ITS LIABILITY. IN THE EVENT OF A CONFLICT BETWEEN, OR LIMITATION ARISING UNDER, ANY OF THE TERMS OF THIS PURCHASE ORDER AND THE TERMS OF ANY OF VENDOR’S DOCUMENTS, THE TERMS OF THIS PURCHASE ORDER SHALL PREVAIL.

1. SERVICES AND GOODS. Vendor agrees to provide work and support to Company (“Services”) and/or agrees to sell to Company certain merchandise, products, materials, and Equipment (collectively “Goods”) as specified in one or more Purchase Orders (hereafter “Purchase Order” or “PO”). Company is not obligated to purchase any minimum amount of Services or Goods, and Company is free to purchase products and services similar to or the same as the Services, Goods, Work Product (defined below), and Vendor Items (defined below) from other vendors.
2. TERMINATION
1. Termination. Company may terminate any Purchase Order for any reason, effective upon written notice to Vendor without any financial implications to Company. Vendor may terminate a Purchase Order if (i) Company is in material breach of these terms and conditions and the breach is not cured within thirty (30) days after notification by Vendor of the breach; or (ii) Company is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any similar laws provided the condition is not remedied within sixty (60) days after filing.
2. Effects of Termination.
   1. Survival. The Sections of these terms and conditions that may reasonably be interpreted or construed as surviving expiration or termination of a Purchase Order (including but not limited to Effects of Termination; Payment Terms; Delivery of Goods; Performance Requirements; Acceptance; Records and Audits; Confidentiality; Work Product; Representation and Warranties; Insurance; Indemnification; Miscellaneous; Recalls and Corrective Actions) shall survive.
   2. No Effect. The expiration or the termination of a Purchase Order does not affect any licenses, assignments granted, or ownership rights regarding Services, Goods, Vendor Items, or Work Product.
   3. No Additional Fees. Upon termination, Vendor shall immediately discontinue all work and not incur any further fees or expenses without Company’s prior written approval. If Company has paid in advance for any Services, Goods, or Work Product that have not been completed to Company’s satisfaction as of the date of termination, Vendor shall reimburse Company all amounts paid in advance, less any amounts that have undisputedly been earned up to the date of termination, within ten (10) days of termination.
   4. Transition. Following termination, Vendor shall provide commercially reasonable effort to ensure an orderly and efficient transition. If applicable, Vendor shall provide Company with all data related to the Services and Goods within sixty (60) days and permit Company to access and retrieve such data. Company shall not be charged any costs or fees associated with the transition.
3. PAYMENT TERMS
   1. Payments. The price of Services and Goods shall be as set forth in the applicable Purchase Order. Unless otherwise set forth in the applicable PO, Vendor shall only invoice for completed Services and delivered Goods accepted by Company, and Company shall pay all undisputed and complete invoices within ninety (90) days of receipt. Company shall not pay finance charges or other related fees or costs. Vendor shall be solely responsible for all payments due to Sub-vendors.
   2. Invoicing. All invoices must include: (i) name of Vendor and “Remit to” address; (ii) Company’s Purchase Order number; (iii) invoice number; (iv) invoice date; (v) description of the Services and Goods (including, if applicable, Company’s part number); (vi) total invoice amount with taxes, freight, and miscellaneous/travel charges (if applicable) listed separately from labor charges; and (vii) payment terms consistent with and not additional to any provisions under these terms and conditions. All invoices shall be submitted in accordance with Company’s invoicing process. Company reserves the right to reject any invoice that does not meet the above requirements and may elect to return the invoice unpaid or pay only the undisputed portion of any invoice reasonably disputed. Company’s payment will not constitute acceptance of any Services or Goods, impair Company’s right to inspect the Goods or impair any remedies of Company.
   3. Taxes. Company shall be responsible for any applicable sales, use, value added or other similar taxes for the Services and Goods that are itemized on the applicable invoice. Vendor is liable for any income or related taxes for payments received from Company.
   4. Expenses. Company agrees to reimburse for reasonable travel expenses if: (i) Vendor Personnel submit valid receipts and other appropriate documentation substantiating the expenses, including an itemized expense statement contained with Vendor’s invoice; and (ii) all travel expenses are incurred in conformance with Company’s then-current travel reimbursement policy.
   5. Programs. Company reserves the right to make payments through Company’s procurement card program, EFT, ACH, or other electronic commerce program. Vendor may not charge Company for the use of such forms of payment without Company’s prior written consent.
4. ORDER PROCEDURE FOR GOODS.
   1. Non-Binding Forecasts. Company may provide Vendor with a good faith projection or estimate of Company’s requirements for Goods during a specified period (a “Forecast”). All Forecasts are approximations provided for information purposes only. Any product quantities cited in a forecast or other document, except for quantities cited in a Purchase Order as firm, are preliminary and non-binding only. Company makes no representation or warranty as to the quantity of products that it will purchase, if any.
   2. Issuance and Confirmation. Company shall issue a Purchase Order to Vendor by facsimile, e-mail, EDI, or U.S. Mail. Vendor shall confirm the receipt of each Purchase Order within three (3) business days following Vendor’s receipt (a “Confirmation”). Each Confirmation shall reference Company’s Purchase Order number, confirm acceptance of the Purchase Order or advise Company of Vendor’s rejection of such Purchase Order. Company may withdraw any Purchase Order prior to Vendor’s Confirmation. If Vendor fails to issue a Confirmation, Vendor’s start of performance will be deemed an acceptance of the Purchase Order.
   3. Right to Amend. Company may, following notice to Vendor, request changes to a Purchase Order. Within three (3) business days of such request, Vendor shall submit a good faith description of such changes to the original Purchase Order. Company may then submit an amended Purchase Order reflecting all Company-accepted changes.
5. DELIVERY OF GOODS. Vendor shall obtain Company’s written consent prior to arranging for shipment of Goods. Unless otherwise agreed upon, delivery terms shall be as follows: (a) for domestic shipments within the United States, FOB Destination Location, Freight Prepaid (UCC); and (b) for international shipments, DDP (Delivered Duty Paid) to Company’s designated delivery location (Incoterms 2020). For international shipments, Vendor shall be responsible for all export and import clearance, customs duties, tariffs, and taxes, and shall serve as the importer of record unless Company agrees otherwise in writing. Vendor shall not be entitled to any price adjustment based on changes to import duties or tariffs. For the avoidance of doubt, risk of loss shall not transfer to Company until delivery of the Goods at the location of delivery specified in the PO (“Destination Location”). Notwithstanding the foregoing, in the event the Goods are lost, stolen, damaged, destroyed, or are otherwise made unavailable prior to Company’s receipt, Vendor, at no additional expense to Company, shall utilize its best efforts to replace the Goods as soon as possible with comparable goods mutually agreed upon by the Parties.
6. SERVICES PERFORMANCE REQUIREMENTS.
   1. Resources. Vendor shall commit the necessary time with qualified and skilled resources and provide all necessary equipment to complete the Services and meet any milestones, specifications and timelines agreed upon by the Parties. Vendor shall ensure all worksites are maintained in a professional manner and waste and excess materials are removed at the conclusion of the Services.
   2. Permits and Licenses. Unless otherwise agreed upon, Vendor shall obtain and maintain all appropriate permits and licenses required to perform the Services. Vendor shall also ensure that all companies and individuals separate from the Vendor that perform Services under contract to Vendor or under the direction of Vendor (hereafter “Sub-vendors”) have obtained and maintained all appropriate permits and licenses.
   3. Access to Company Facilities. If Company grants access to any of its facilities, Vendor shall ensure its agents, employees, and Sub-vendors (collectively “Vendor Personnel”), comply with all applicable safety, health and environmental requirements, and with any applicable access and work requirements, whether by law or under Company’s own requirements. Without limiting the foregoing, Vendor expressly acknowledges it shall comply at all times with all Food and Drug Administration Good Manufacturing Practices (commonly known as GMPs) applicable to food manufacturing and production. Company may condition access on Vendor Personnel executing a satisfactory confidentiality agreement.
7. CHANGE ORDERS. No changes in the scope of the Services, Goods, or Purchase Orders shall be made except upon written order of Company. Vendor waives any change order request for adjustment to the price, performance schedule, or both unless asserted in writing. If Company desires to make any changes to any executed Purchase Order prior to shipment, Vendor shall promptly deliver to Company a proposal describing the effect of such changes on the cost, delivery, and scope of Vendor’s duties and obligations under these terms and conditions. If Company accepts Vendor’s proposal and elects to implement the changes, then the applicable Purchase Order shall be amended by mutually agreed upon writing, and the Parties shall perform thereunder.
8. ACCEPTANCE.
   1. Services. If, within ninety (90) days of the completion of Services or assignment of any Work Product Company notifies Vendor that the Services or Work Product is not satisfactory to Company, Vendor shall correct any deficiencies and redeliver corrected Services or Work Product at no additional cost to Company. If the corrected Services or Work Product are not satisfactory to Company or Vendor is unable to correct the Services or Work Product, Company may terminate the applicable Purchase Order and obtain a full refund, in which case Company is relieved of any further duties thereunder. Any refund shall be made to Company within fifteen (15) business days. Nothing in this Section shall limit Company’s recourse against Vendor for Services or Work Product that are later discovered to be inferior or insufficient.
   2. Goods. If Company determines that the delivered Goods (i) do not conform to the make, model, or description listed in the Purchase Order; (ii) do not fully conform to the specifications or representations made by Vendor or Vendor provided documents/communications; or (iii) on visual inspection, Company determines are otherwise defective, Company may, at its option, (x) reject the nonconforming Goods and demand a refund plus any costs reasonably incurred by Company; and/or (y) require prompt correction or replacement of the nonconforming goods at Vendor’s sole cost. Company’s exercise of the options contained in this Section shall not limit Company’s other rights available under these terms and conditions, including but not limited to all provisions of the Recall and Corrective Actions section (Section 20.8) herein, or pursuant to applicable law.
9. RECORDS AND AUDITS.
   1. Financial Records. Vendor agrees to maintain complete and accurate financial records and internal and external audit reports related to a Purchase Order for three (3) years and for any additional time required by law (“Retention Period”). Records shall include the following information, as applicable: (i) the individuals who provided the Services, (ii) a description of the Services performed by each individual, (iii) the time spent by each individual in connection therewith, (iv) the date on which the Services were performed or Goods were delivered, and (v) the location where the Services were performed or Goods were produced. Company or its designee may, during the Retention Period, audit and inspect Vendor’s records and other documents related to these terms and conditions, as well as Vendor’s facilities used in rendering the Services or producing Goods. The audit and inspection shall be conducted during normal business hours following reasonable notice, and at no cost to Company. Vendor agrees to reasonably cooperate in any audit or inspection and shall pay Company the amount of any overcharge identified in the audit. Company shall be entitled to rely without independent verification on the accuracy, currency and completeness of information supplied by Vendor.
   2. Documentation. Vendor shall timely provide Company with any technical and user manuals and guides, promotional materials, advertising materials, informational materials, responses to requests for proposals, handouts, circulars, memoranda, demonstrations, and demonstration tapes with respect to the Goods or Services (“Documentation”) reasonably requested by Company.
10. VENDOR PERSONNEL AND SUB-VENDORS.
    1. Sub-vendors. All Services, Goods, and Work Product are to be provided by employees of Vendor unless approved in advance in writing by Company. Vendor shall indemnify, defend and hold Company harmless from any and all costs and liabilities arising from the use of Sub-vendors. Services and Goods provided by Sub-vendors shall comply with the conditions set forth herein.
    2. Satisfaction and Performance. Vendor shall be responsible to Company for the acts and omissions of Vendor Personnel. All Vendor Personnel shall have the proper skill, training, and background to provide the Services. If Company becomes dissatisfied with the performance of any Vendor Personnel, Company may notify Vendor of the details of the unsatisfactory performance, and Vendor shall remedy the problem to Company’s satisfaction, including replacement of Vendor Personnel, within three (3) business days of notice. Company is not responsible for any fees or expenses arising from any change in Vendor Personnel, including any “ramp up” and “knowledge transfer” time required for replacement personnel. Company may, for any reason, demand that any Vendor Personnel cease providing Services. Vendor shall take all steps necessary to ensure the individual ceases providing Services within 24 hours and prevent the individual from re-entering Company’s premises.
11. SYSTEM ACCESS AND SECURITY REQUIREMENTS.
    1. Acceptable Use Policy. Vendor shall follow Company’s Acceptable Use Policy related to Company’s information services environment. Company may audit Vendor’s use of any of Company’s systems. Vendor shall maintain and implement disaster recovery and avoidance procedures and, upon request, shall provide Company with a copy of its current disaster plan.
    2. Vendor Personnel Compliance. Vendor shall be responsible for Vendor Personnel’s compliance with Company’s procedures, rules, and instructions while onsite. Vendor shall defend, indemnify and hold harmless Company from and against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) arising or relating to (i) injuries to persons or damage to property to the extent they are caused by violations of law, the willful misconduct or negligence of Vendor’s personnel; or (ii) Vendor’s personnel based on workers’ compensation or any other employment related Claims.
    3. Data Processing.
       1. General Requirements. General Requirements. As a result of providing Services, Vendor may have access to certain information relating to identified or identifiable individuals (“Personal Data”) and data maintained by Company related to its business including but not limited to data related to finances, employees, customer, and suppliers (“Company Data”). Vendor shall not be entitled to use Personal Data for its own purposes and may only process Personal Data on behalf of Company and its designated Affiliates (defined below), for purposes of providing the Services. Vendor acknowledges that it shall have no right, title or interest in any Personal Data and further acknowledges and agrees that Company owns all rights, title and interest to and in all such Personal Data. “Affiliate” with respect to either Party, means any other entity directly or indirectly controlling, controlled by or under common control with such Party, where “control” means, with respect to an entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
       2. Vendor Duties. Vendor agrees to the following specified duties concerning Personal Data and Company Data:
          1. process the Personal Data or Company Data only on the written instructions of Company;
          2. implement appropriate technical and organizational measures to protect Personal Data or Company Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing;
          3. not permit the transmission or storage of Personal Data or Company Data outside the United States or access of such data by its employees outside the United States;
          4. ensure that Personal Data or Company Data is encrypted at all times, including at rest, and appropriately protected in transit and storage;
          5. not disclose the Personal Data or Company Data to any person unless Company has given its prior written consent to such disclosure and Vendor has procured that such person is bound by the same obligations as the Vendor hereunder;
          6. promptly notify Company within twenty-four (24) hours any facts known to the Vendor concerning any accidental or unauthorized disclosure or use, or accidental or unauthorized loss, damage or destruction of Personal Data or Company Data by any current or former employee, Vendor or agent of the Vendor or by any other person or third party;
          7. cooperate fully with Company if any accidental or unauthorized disclosure or use, or accidental or unauthorized loss, damage or destruction of Personal Data or Company Data by any current or former employee, Vendor or agent of Vendor or by any other person or third party occurs, to limit the unauthorized disclosure or use, seek the return of any Personal Data, and assist in providing notice if requested by Company; and
          8. upon termination or expiration of the Services for whatever reason, or upon request by Company, Vendor shall immediately cease to process the Personal Data or Company Data and shall promptly return or destroy the same, in accordance with such instructions as may be given by Company at that time.
    4. Unauthorized Access. Vendor uses measures consistent with accepted industry standards and all applicable laws, to ensure the security and integrity of all Company Data. In the event of a breach, Vendor will immediately notify Company of any unauthorized access of any computerized data that compromises the security, confidentiality or integrity of Company Data (including any personally identifiable information stored or processed on behalf of Company) and any event that requires Vendor or Company to take any actions (including providing notices) under any laws.
12. CONFIDENTIALITY.
    1. Confidential Information. In the performance under these terms and conditions each Party may have access to private or confidential information, data or materials of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, and Personal Data of a Party’s employees (collectively “Confidential Information”). Disclosures made by one Party (“Discloser”) to the Party receiving the private or Confidential Information, data or materials of the Discloser (“Recipient”), are pursuant to these terms and conditions. No information disclosed by Company shall be disclosed except as specifically noted herein. All Confidential Information of the Discloser will remain the exclusive property of the Discloser.
    2. Exclusions. Except for Personal Data, Confidential Information does not include information, data or materials that, as proved by written records: (i) are or become a part of the public domain through no act or omission on the part of the Recipient and no violation of any obligation of nondisclosure by any third party; or (ii) are independently developed by the Recipient without reference to the Discloser’s Confidential Information, as evidenced through written records created in the normal course of the Recipient’s business; or (iii) are disclosed to the Recipient through a third-party source or series of sources without any violation of nondisclosure regarding such information, data or materials by any source(s) in the series (however, such information only becomes Confidential Information once the Recipient is aware of such breach).
    3. Duties and Nondisclosure. Each Party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and materials of a similar nature, to maintain and cause its employees to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties (including, without limitation, Affiliates) or using the Confidential Information; except employees of a Recipient may use the Confidential Information to perform the Recipient’s obligations under these terms and conditions. The disclosure of Confidential Information alone does not convey any right, title or interest to intellectual and industrial property rights recognized in any jurisdiction, including patents, trade and service marks, trade names, domain names, rights in designs, copyrights, mask work rights, trade secrets, moral rights, topography rights and rights in databases, in all cases whether or not registered or able to be registered in any particular jurisdiction in the world for the full term of such rights (including any extension or renewal of the terms of such rights, registrations and applications for registration of any of such rights, rights to apply for such rights and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of such rights anywhere in the world) (“collectively Intellectual Property Rights”). A Recipient may not modify or delete any Intellectual Property Rights or proprietary rights legend appearing in the Discloser’s Confidential Information. Without limiting the foregoing, the Parties agree to the following specified duties:
       1. Advise Employees. The Recipient must advise each employee before receiving direct or indirect access to the Confidential Information of the obligations of the Recipient regarding the Confidential Information.
       2. Disclosures to Agents and Sub-vendors. A Recipient may share Confidential Information with: (a) its attorneys, accountants and financial advisors under an obligation of confidentiality and nondisclosure no less protective of Discloser’s Confidential Information than these terms and conditions; and (b) its Sub-vendors pursuant to a written confidentiality agreement no less protective of the Discloser’s Confidential Information than these requirements, provided that in no event may an agent or Sub-vendor of a Recipient disclose Confidential Information to any other third party, with the exception of a governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of the United States of America or any other country or territory, or domestic or foreign state agency or authority (collectively “Government Authority”). Vendor agrees to assume all liability and responsibility for such agents’ and Sub-vendors’ compliance with and breach of these terms.
       3. Notice. Upon discovery, Recipient agrees to provide Discloser immediate telephonic and written notice of a breach of any obligation of confidentiality and nondisclosure required hereunder.
       4. Return of Confidential Information. After Discloser’s request, and after termination or expiration of the Services, Recipient must within thirty (30) days return or destroy (and certify to such destruction in writing) all Confidential Information of the Discloser, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes (to a commercially reasonable degree); and (b) all copies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom Recipient disclosed Confidential Information pursuant to these terms and conditions. Notwithstanding the foregoing, Recipient may retain Confidential Information as required by applicable laws or orders of a Government Authority with jurisdiction over Recipient (“Retention Requirements”), and any such uses or disclosures of Confidential Information by the Recipient will be limited to only those uses and disclosures mandated by the Retention Requirements.
    4. Disclosures Required by Law. If any Confidential Information is required to be disclosed by law or order of any Government Authority having jurisdiction over the Recipient or Recipient’s Sub-vendors or agents (including as necessary for a Party to assert a claim in a court of competent jurisdiction), before any such disclosure the Recipient will provide notice to the Discloser reasonably sufficient to allow the Discloser the opportunity to apply for a protective order or other restriction regarding such disclosure. If such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue to constitute Confidential Information in all other circumstances.
13. WORK PRODUCT.
    1. Work Product. “Work Product” means all tangible or intangible property, data, works of authorship (whether or not embodied in a tangible medium), formulae, artwork, sketches, software code, designs, drawings, specifications, graphics, discoveries, inventions, ideas, know-how, techniques, concepts, deliverables, and improvements produced, conceived, developed or provided by Vendor or Vendor’s personnel in the course of performing its obligations except for Vendor Items. Company contracted with Vendor to create all Work Product for Company and all Work Product is owned by Company in the entirety as: (i) a “Work Made for Hire” (to the extent permitted by law) in which Company owns all copyrights as the author and all other Intellectual Property Rights and proprietary rights, if applicable; and (ii) the exclusive owner or assignee of all Intellectual Property Rights and proprietary rights to the Work Product. To the extent that any works within the Work Product may not be considered “Work Made for Hire” under the United States copyright laws, and to the extent that any Intellectual Property Rights and proprietary rights to the Work Product may be vested in any person other than Company, Vendor irrevocably grants and assigns, and represents and covenants to cause any third party to irrevocably grant and assign, free and clear of any liens, claims or encumbrances, exclusively to Company, each and every right in the Work Product throughout the world, including all copyright, patent, trademark, trade dress, trade secret, and all other Intellectual Property Rights and proprietary rights, together with all renewals and extensions thereto, and the right to bring actions for past and future infringement. Such grant and assignment is to be in a form acceptable to Company. Work Product is deemed to be Confidential Information of Company, and Vendor is a Recipient of all such Confidential Information.
    2. License to Vendor Items. “Vendor Items” means (i) any of Vendor’s commercially available products as of the effective date of the Purchase Order; and (ii) any item in which Vendor or a third party (who has licensed rights to Vendor) owns all Intellectual Property Rights as of the effective date of the applicable Purchase Order. To the extent agreed-upon by the Parties, Vendor Items are not included in the definition of Work Product. If any Work Product incorporates Vendor Items, or Company’s use of any Work Product would constitute a violation of any rights in the Vendor Items, Vendor grants Company an irrevocable, perpetual, non-exclusive, worldwide, transferable, sub-licensable, royalty-free license in the Vendor Items to permit Company to exercise all Intellectual Property Rights and proprietary rights to the Vendor Items, as embodied in the Work Product and not separate and apart from the Work Product.
    3. Further Assurances. At Company’s request, Vendor shall secure for Company all rights and benefits in and to the Work Product, to protect Company’s rights in the Work Product and shall appoint Company as Vendor’s attorney-in-fact to enable Company to record, file and prosecute any application for, and acquire, maintain and enforce, any Intellectual Property Rights, proprietary rights or any other rights in the Work Product throughout the universe in all languages and in all media and forms of expression and communication now or later developed. Vendor agrees to waive any and all rights of attribution and integrity Vendor may have in any of the Work Product pursuant to 17 U.S.C. §106A of the United States Copyright laws and any right of privacy or publicity for the Work Product.
    4. Return of Work Product. If performance is terminated prior to completion, Vendor agrees to provide to Company (at Vendor’s cost) within ten (10) days, any Work Product, including, without limitation, any Work Product in progress and any Vendor Items contained therein for which Company has paid for the same prior to termination. Company shall specify the delivery location.
14. REPRESENTATIONS AND WARRANTIES. Vendor represents and warrants that, and shall notify Company of any change in the status of Vendor’s compliance with, the following:
    1. General. Vendor: (i) is duly organized and validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is qualified or licensed to do business and in good standing in every jurisdiction where such qualification or licensing is required; (iii) has the corporate power and authority to negotiate, execute, deliver and perform its obligations hereunder; (iv) is the sole owner of all Goods or, insofar as it is not the sole owner of the Goods it has the full right and authority to transfer title and ownership of the Goods to Company; and (v) is under no obligation to any third party, and is unaware of any actual or threatened litigation, that would interfere with providing the Services or Goods.
    2. Infringement. The Services, Goods, Work Product, and Vendor Items do not violate any patent, trade secret, or other Intellectual Property Rights or proprietary rights of any third party, and as of the effective date of the applicable Purchase Order, Vendor is unaware of any such violation or threatened litigation. To the extent that any Vendor Items are licensed to Company, it has the right to grant such licenses to Company.
    3. Malicious Code. All Services, Goods, Vendor Items and Work Product are free of any time-bombs, worms, viruses, Trojan horses, protect codes, data destruct keys or other programming devices or code that might, or might be used to, access, modify, delete, damage, deactivate or disable any Work Product, Vendor Items, Services, Goods, or Company’s other software, computer hardware, or data.
    4. Performance. The Services, Goods, Vendor Items and Work Product: (i) conform in all respects to the description in the applicable Purchase Order; (ii) conform to all representations of and specifications provided by Vendor; (iii) shall be at least equal to industry recognized standards or codes or of the best quality if no quality is specified; (iv) shall be delivered to Company with title free and clear of all liens and encumbrances; (v) be merchantable, of good material and workmanship and fit and sufficient for the purposes intended; and (vi) be new, and free from defects in material and workmanship. Services, Goods, and Work Product used to correct nonconformity shall be similarly warranted.
    5. Goods Specific. All Goods (i) are in good operating order, in conformity with Vendor’s specifications and descriptions, as described in any Documentation; (ii) and any components thereof are in new and unused condition; (iii) are free and clear of all liens, claims, and encumbrances of any kind whatsoever; (iv) are of good material and workmanship, free from defect, and are fit and sufficient for their intended purpose; (v) are not restricted or prohibited from being introduced, delivered, or shipped in commerce within the United States; (vi) shall pass all state and federal regulatory inspections; and (vii) are free of any pending or threatened lawsuits.
    6. Conformity with Policies. Vendor shall comply with all applicable policies and procedures provided by Company, including without limitation Company’s code of conduct.
    7. Incorporated Warranties. All Services, Goods, Vendor Items, and Work Product shall be subject to all express and implied warranties, including, without limitation, warranties of title, merchantability and fitness.
    8. Background Checks. A criminal background check and a social security number check have been conducted for each Vendor Personnel in accordance with applicable law prior to performing Services, and the results of such checks have been favorable/satisfactory.
    9. Compliance with Laws. Vendor, and all Sub-vendors, comply with all applicable laws and regulations, including, without limitation, immigration, equal employment opportunity, nondiscrimination and workers’ compensation laws, the Fair Labor Standards Act, the Family and Medical Leave Act, the National Labor Relations Act, the Occupational Safety and Health Act of 1970, the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, the Foreign Corrupt Practices Act (“FCPA”), import and export laws, the Immigration and Nationality Act, and the Immigration Reform and Control Act. At Company’s request, Vendor agrees to provide necessary documentation to demonstrate compliance with all applicable laws.
    10. Debarment and Exclusion. Vendor and Vendor’s personnel: (i) are not currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs as defined in 42 U.S.C. § 1320a-7b(f) (“Federal Health Care Programs”) or generally from federal procurement and non-procurement programs; (ii) are not convicted of a criminal offense related to the provision of health care items or services but not yet excluded, debarred, or otherwise declared ineligible to participate in the Federal Health Care Programs, or generally from federal procurement and non-procurement programs; (iii) are not under investigation or otherwise aware of any circumstances which may result in such exclusion from participation in the Federal Health Care Programs, or generally from federal procurement and non-procurement programs; ; and (iv) shall ensure compliance with the FCPA including but not limited to ensuring that no payments of money or anything of value will be offered, promised or paid, directly or indirectly, to any foreign official, or public or political officer, to induce such official to use their influence with a foreign government or instrumentality to obtain an improper business advantage for Company; will report immediately to Company any information that may indicate there has been a payment of money or anything of value offered, promised or paid, directly or indirectly, to any foreign official, or public or political officer as described above (an “Improper Payment”); will, upon Company’s request, certify that they have no knowledge of an Improper Payment; agree that Company may withhold payments under these terms and conditions; agree that Company may suspend or terminate Vendor upon learning information giving it a factual basis to conclude that Vendor has made or offered an Improper Payment; and agree that payments will be made to government officials or political parties only for lawful purposes, which will first be fully disclosed in writing to Company. Any breach of this Section shall give Company the right to terminate Vendor immediately for cause, without penalty to Company.
    11. Breach of Warranties. If Vendor breaches any warranties contained herein, it shall be liable for and indemnify Company for all actual damages, costs, operational downtime, lost profits, incidental, exemplary, consequential, indirect and similar damages arising from or relating to said breach. Said remedies shall be in addition to, and not in lieu of, any other available remedies set forth in these terms and conditions or available at law.
15. SOFTWARE.
    1. License. If Vendor provides software programs with or as part of the Services or Goods including, without limitation, a computer-based operating system which includes computer software systems, programs, or components (collectively, the “Software”), then Vendor grants Company a fully paid, non-exclusive, and irrevocable license to use and operate the Software in perpetuity (the “License”) at the locations designated by Company. The License granted herein shall enable Company, its Affiliates and their respective employees, agents, customers, successors, and assigns to use the Software as provided herein. The License shall be broadly construed to assure that Company and its employees, agents, and customers enjoy the full benefit and use of the Software in support of Company’s business activities.
    2. Service. Vendor shall provide timely service or software access to Company (as applicable) to address defects or underperformance in Software.
    3. Copies. A reasonable number of copies of the Software may also be made by Company for backup purposes, disaster recovery, testing, support and maintenance, and training. The scope of the License shall all apply to copies of the Software. Company shall reproduce on all copies of the Software made by Company any copyright, trademark, and/or trade secret designations contained on the Software.
    4. Additional Warranties. In addition to the other representations and warranties set forth in these terms and conditions, if Vendor provides any Software to Company, Vendor represents and warrants that (i) Vendor is the sole owner of the Software or insofar as Vendor is not the sole owner of the Software, Vendor has the full right and authority to grant to Company the License to use the Software hereunder; (ii) the Software complies with all of the descriptions and representations made by Vendor and shall be free from all program errors or defects; (iii) the Software does not contain any software routine which may disable the computer operating system of the Goods either automatically, with the passage of time or under the control of any person; nor does it contain any other routine which may permit access by any person, or on its own, disable, erase or otherwise harm or modify the Software any data or other software whatsoever; and (iv) Vendor will not engage in any self-help techniques or alter, disable, erase, modify, destroy or harm in any way the Software or any data related thereto.
16. INSURANCE. Vendor shall, at its own expense, maintain adequate liability coverage for the Services provided under these terms and conditions consistent with other companies in Vendor’s industry. Vendor shall require all its Sub-vendors shall maintain similar adequate coverage. Vendor shall take full responsibility for any Sub-contractors that are not compliant with this Section. In addition, Equipment Vendors and Direct Supply Vendors shall comply with the additional insurance requirements provided in Sections 19.8 and 20.9 respectively.
17. INDEMNIFICATION.
    1. Indemnity. Vendor shall indemnify, defend, and hold harmless Company and its Affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, parents, customers, and other vendors, from and against Claims arising from or related to: (i) the Services, Goods, Vendor Items, or Work Product; (ii) Vendor’s failure to meet the representations and warranties set forth herein; (iii) Vendor’s breach of any terms or conditions; (iv) violation of any patent, trade secret, or other intellectual property or proprietary right due to Vendor’s provision of the Services, Goods, Vendor Items, or Work Product; or (iv) bodily injury, death, personal injury, property damage and loss of use, resulting from the acts or omissions of Vendor, Vendor’s personnel, or any person for whom Vendor is legally liable. Vendor’s indemnification obligations under these terms and conditions shall not be limited in any way by the amount of Vendor’s insurance coverage.
    2. Procedures and Rights. Company shall promptly notify Vendor of a Claim. However, the failure to provide notice shall not relieve Vendor of its obligations under this Section unless the defense of the Claim is materially prejudiced thereby. Vendor shall assume defense of the Claim by representatives chosen by Company. Company shall have the right to participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim, subject to the Vendor retaining final authority and control over the conduct of the defense. Following Company’s prior written consent, Vendor has the right to settle the Claim to the extent such settlement affects the rights or obligations of Company. Company shall provide Vendor with reasonable assistance, at Vendor’s expense, as may be necessary to facilitate the defense.
    3. Failure to Defend. If Vendor fails to assume the defense within ten (10) days of receipt of notice of a Claim Company may, at Vendor’s expense: (i) assume the defense; and (ii) may, with Vendor’s consent not to be unreasonably withheld or delayed, settle the Claim on behalf of Vendor. Vendor may assume the defense of the Claim at any time provided the defense is not materially prejudiced thereby.
    4. Pending Claims. If Services, Goods, Vendor Items, or Work Product become, or in either Party’s reasonable opinion are likely to become, the subject of a Claim, Vendor shall procure for Company the right to continue to exercise all of its rights in the Services, Goods, Vendor Items, and Work Product as contemplated under these terms and conditions, or, with Company’s prior written consent, modify or replace the Services, Goods, Vendor Items, and Work Product to eliminate any Claim, provided that the modification or replacement is functionally equivalent. If Vendor cannot do any of the foregoing, Company may terminate Vendor’s performance, as to the violating Services, Goods, Vendor Items, and Work Product and Vendor shall refund to Company all fees paid for the applicable Services, Goods, Vendor Items, and Work Product. Under no circumstances shall any pending Claim or dispute excuse Vendor from proceeding with its performance hereunder.
18. MISCELLANEOUS.
    1. Order of Precedence. Unless the Parties have executed a Master Supply and Services Agreement, these terms and conditions exclusively govern and control the Parties’ respective rights and obligations regarding the purchase and sale of Services and Goods. Any additional, contrary, or different terms contained in any of Vendor’s confirmations, invoices, proposals, quotes, or other communication or document, and any other attempt to modify, supersede, supplement, or otherwise alter these terms and conditions, are deemed rejected by Company and will not modify these terms and conditions or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized representatives of both Parties.
    2. Independent Vendor. The relationship of the Parties is that of independent contractors. Nothing in these terms and conditions will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship, and neither Party will have authority to contract for or bind the other Party. Each Party is exclusively responsible for all obligations imposed upon employers by any applicable laws or regulation related to its respective personnel hereunder.
    3. Time is of the Essence. Time is of the essence in Vendor’s performance of its obligations hereunder. Vendor shall perform its obligations at its own risk and correct any deficiencies at its sole expense.
    4. Right to Set-off. Company may at any time and without notice deduct or set-off from amounts due to Vendor any claims that Company has or may have arising out of any other transaction between Company and Vendor.
    5. Notice. Notice means written notice, except where specifically provided herein to the contrary. Notice shall be delivered to the address on the Purchase Order by: (i) certified mail, return receipt requested (or the equivalent); (ii) hand delivery with receipt acknowledged; (iii) overnight courier service that provides a delivery receipt; or (iv) transmitted by email. Notice given in accordance with this provision shall be deemed delivered: (x) when received; or (y) upon refusal of receipt. Copy of such notice to Company shall be provided to Nonni’s Foods LLC, Attn: General Counsel, 433 W Van Buren St, Ste 200, Chicago, IL 60607.
    6. Force Majeure. Neither Party shall be considered in default hereunder to the extent that such performance is delayed by a Force Majeure Event. A Force Majeure Event (“Force Majeure Event”) means the following: (i) acts of civil or military authority, acts of war, acts of terrorism; (ii) unforeseeable acts of blockage, embargoes or similar acts of governmental authorities; (iii) riot, insurrection, sabotage, epidemics; and (iv) severe weather events resulting in damage to Vendor which Vendor would be unable to prevent using reasonable precautions. For the avoidance of doubt, changes in economic circumstances, increases in costs, strikes, labor disputes, and default of Sub-vendors shall not qualify as a Force Majeure Event. No such interruption shall relieve Vendor of its duty to perform or give rise to any damages or additional compensation from Company. The Party failing or delaying due to a Force Majeure Event agrees to give notice to the other Party describing such Force Majeure Event including a good faith estimate as to the impact of such Force Majeure Event upon its responsibilities hereunder, including, but not limited to, any scheduling changes. However, should any failure to perform or delay in performance due to a Force Majeure Event last longer than thirty (30) days, or should two (2) events apply to the performance of a Party during any calendar year, the Party not subject to the Force Majeure Event shall be entitled to terminate performance upon written notice to the other Party.
    7. Severability; Conflicts. If any part of these terms and conditions is held to be unenforceable (i) the unenforceable portion must be construed as nearly as possible to reflect the original intent of the Parties; (ii) the remainder of these terms and conditions shall remain in full force and effect; and (iii) the unenforceable portion shall remain enforceable in all other contexts and jurisdictions. In the event of a conflict, these terms and conditions shall control over any exhibits, addendums, purchase orders, proposals, quotations, or other document unless the relevant document, signed by both Parties, expressly states that the these terms and conditions are modified for the relevant transaction.
    8. No Third-Party Beneficiaries. Except as may arise regarding indemnification obligations, no third party is a beneficiary of these terms and conditions.
    9. Non-solicitation. Neither Party shall directly recruit or hire or attempt to directly recruit or hire current employee(s) of the other Party with whom it has had direct contact as a result of the Services and for one (1) year after the termination thereof, without the other Party’s prior written consent. However, this provision shall not restrict general advertisements of employment not specifically directed at any current employee(s) of the other Party.
    10. Governing Law; Construction. These terms and conditions shall be governed as to validity, interpretation, construction and effect by the laws of the State of Illinois, excluding its choice of law provisions. The sole jurisdiction and venue for any litigation arising out of these terms and conditions shall be an appropriate federal or state court located in the State of Illinois, and the Parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application hereunder. Singular terms shall be construed as plural, and vice versa, where the context requires, and the headings or titles of the Sections or Subsections of these terms and conditions are for convenience only and shall not be used as an aid in construction of any provision hereof.
    11. Dispute Resolution. Prior to initiating any litigation, the Parties shall first attempt in good faith to resolve promptly any dispute by negotiation between executives who have authority to settle the controversy. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of this Section. Company shall have the sole discretion to determine whether Vendor shall continue to provide Services or Goods during an ongoing dispute.
    12. Remedies. Except where specifically stated to the contrary, all remedies available to Company for breach of these terms and conditions, or at law or in equity, are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. The failure of Company at any time to require performance by Vendor of any provision hereof shall not affect the full right to require such performance thereafter, nor shall the waiver of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach or as a waiver of the provision itself. Without limiting the foregoing, the Parties acknowledge that a breach, or threat of breach, would cause the other Party irreparable harm, a remedy at law alone would be inadequate, and the other Party shall have the right to specific performance and injunctive relief without any requirement to post a bond or other security. The prevailing Party in any litigation related to these terms and conditions shall receive from the other Party all costs and expenses (including reasonable attorneys’ fees) incurred in such litigation.
    13. Non-publicity. Vendor shall not use Company’s Confidential Information, or any other information identifying Company, including, but not limited to Company’s name, trademark(s) or logo(s), in any public manner without Company’s prior written consent.
19. EQUIPMENT SALES ADDITIONAL TERMS. Equipment (“Equipment”) means Goods that are machinery, multiple-component systems, vehicles, complex instruments or otherwise that will operate in Company’s manufacturing facilities. In the event the Goods are Equipment, the additional terms and conditions specified in these Equipment Purchase Additional Terms shall also apply as set forth below.
    1. Delivery and Operation Delays. Vendor agrees that time shall be of the essence in its performance.
    2. Installation and Training. Vendor shall, as requested by Company, provide support technicians for installation and training of the Equipment, at rates and within time frames customary to Vendor’s operations. All installation and training shall be subject to these terms and conditions as Services.
    3. Acceptance Testing.
       1. Acceptance Testing Criteria. Acceptance Test Criteria (“Acceptance Test Criteria”) means the criteria and specifications as agreed upon by the Parties. Following the successful installation, implementation, or use of the Equipment, Company has the right to determine whether the Equipment: (a) met the general specifications (including operating characteristics) contained in any document, material, or representation (written or otherwise) related to the Equipment or provided by Vendor to Company; and (b) Vendor has provided the necessary training and support to enable Company to install, implement, or use the Equipment in accordance with these terms and conditions.
       2. Acceptance of Equipment. When the Acceptance Test Criteria have been satisfied, Company shall deliver an acceptance certificate to Vendor. Equipment shall be deemed accepted on the date the certificate is executed or upon the completion of thirty (30) continuous days of successful and beneficial use of the Equipment in Company’s production, non-testing, environment, whichever occurs first (hereinafter the “Acceptance Date”). Company’s acceptance of the Equipment shall not discharge Vendor of its obligations, representations, or warranties set forth herein.
       3. Failure to Meet Acceptance Test Criteria. If the Acceptance Test Criteria are not met, and Vendor is not able to remedy the defects in the Equipment to Company’s satisfaction within ten (10) days after receiving notice thereof, Company shall be entitled to reject the Equipment as non-conforming goods and be entitled to any remedies available under these terms and conditions or by law for such non-conformance. Vendor shall be responsible for all expenses associated with the return of non-conforming goods and shall immediately refund Company all amounts paid for the same.
    4. Upgrades and Replacement Parts. Prior to the arrival date and acceptance of the Equipment, if any improvements, enhancements, or upgrades are made to the Equipment or its operating software, or any newer or later models of the Equipment shall be introduced on the market by Vendor, Vendor shall promptly notify Company as to such models manufactured, and Company shall have the right to substitute such improved, enhanced, or newer models and receive an appropriate credit for the older model at no additional cost or expense to Company. Vendor shall sell to Company at prevailing delivery and payment terms all necessary replacement parts required for the maintenance of the Equipment.
    5. Regulatory Changes. If changes to the Equipment are required to comply with federal or state laws, rules, or regulations, then Vendor shall, if requested by Company, promptly develop such changes and deliver such changes to Company as part of support and maintenance services provided by Vendor to Company. Upon request, Company shall provide Vendor with a copy of such laws, rules, or regulations.
    6. Engineer Changes. If following the Acceptance Date for the Equipment Company desires to make any changes to the specifications (or operating characteristics) of the Equipment and Vendor generally does not make such changes available to its other customers, then Company shall notify Vendor of such changes and Vendor shall promptly deliver to Company a written proposal describing the cost and the scope of Vendor’s duties and obligations with respect to such changes. If Company accepts Vendor’s proposal and elects to implement the changes, the Equipment specifications shall be deemed amended thereby and the Parties shall perform with respect to such Equipment as provided in these terms and conditions.
    7. Additional Warranty Period. During the Equipment Warranty Period (as defined below), the Equipment shall be free from all defects in material and workmanship and shall operate in conformity with the specifications, capabilities, functions, and other descriptions and standards applicable thereto or as set forth in the Documentation or as otherwise represented to Company. For purposes of these terms and conditions, the “Equipment Warranty Period” for any Equipment shall be one (1) year, commencing on the Acceptance Date for the Equipment. During the Equipment Warranty Period, or any extended warranty period, Vendor shall (i) make technicians available as soon as within the time frame agreed upon by the Parties and if no time frame is specified as soon as reasonably practicable; and (ii) shall promptly correct all errors and defects with the Equipment on the Equipment at no additional fee, cost, or expense to Company. Such services shall be performed in a timely professional manner by qualified technicians familiar with the Equipment and shall conform to the highest degree of professional care observed in the industry for such services.
    8. Additional Insurance Requirements. In addition to any other insurance requirements set forth above, Vendor shall provide and maintain comprehensive general liability insurance (both in minimum amounts of $1,000,000 per occurrence and $5,000,000 aggregate coverage); product liability insurance if Vendor is the manufacturer of the Equipment (in minimum amounts of $5,000,000 per occurrence and $10,000,000 aggregate coverage) or all risk property coverage or inland marine coverage for the fair market value of the replacement cost of the Equipment if Vendor is not the manufacturer of the Equipment; errors and omissions insurance (in minimum amounts of $1,000,000 per occurrence and $3,000,000 aggregate coverage with appropriate tail coverage if such insurance is “claims made”); auto liability policy including owned and non-owned, (in minimum amounts of $1,000,000 combined single limit and $100,000 per incident for uninsured and under-insured motorist; and workers’ compensation coverage with statutory limits; and employer liability coverage (in minimum amounts of $1,000,000 per incident and $1,000,000 aggregate coverage). Vendor shall maintain all insurance coverages hereunder with company or companies rated A or higher by A.M. Best that have a size requirement of “V (5).” Vendor’s insurance coverage hereunder (except for workers’ compensation and professional liability) shall name Company and its Affiliates as “additional insureds.” Vendor shall provide Company with a certificate of insurance evidencing such coverage. The certificates of insurance shall contain a provision that coverage will not be canceled, non-renewed, or materially changed without thirty (30) days’ prior written notice to Company.
20. DIRECT SUPPLY ADDITIONAL TERMS. “Direct Supply” means Goods that are directly contributed to Company’s product, including but not limited to wheat flour, eggs, sugar, butter, almonds, chocolate, other food ingredients, film and packaging. In the event the Goods are Direct Supply, the additional terms and conditions specified in these Direct Supply Additional Terms shall also apply as set forth below.
    1. Company Supplier Manual. Vendor agrees to be bound by the terms and conditions of Company’s supplier manual, which may change from time to time in Company’s sole discretion, and which is incorporated by this reference.
    2. Specifications. All Direct Supply shall be produced and delivered in accordance with the guidelines, specifications, technical descriptions, drawings, manuals (including but not limited to the Supplier Manual), inspection checklists, test procedures, standards (and/or data submitted by Company, including, but not limited to, those any and all specifications agreed to, in writing/e-mail, by the Parties (collectively, the “Specifications”)). Company may modify the Specifications from time-to-time at its sole and absolute discretion.
    3. Performance Standards. Vendor will submit to and comply with all reasonable quality and performance standards and checks required or conducted by Company. Company may from time to time provide inspection checklists, test procedures and other standards which may be included in or separate from the Specifications (the “Performance Documentation”) which Vendor will implement. Vendor will complete inspections and records for all Direct Supply products to document compliance with the Performance Documentation and the Specifications and will maintain and provide such records to Company upon request. In the event Vendor does not meet any such performance standards (a) Vendor will immediately use its best efforts to remedy such failure to meet performance standards in cooperation with Company, and (b) Vendor will be responsible for reworking, repairing or replacing any products affected by such failure to meet performance standards.
    4. Changes to Manufacture. Vendor shall provide notice to Company of any proposed material change in the manufacturing processes that may result in noncompliance with the Specifications or otherwise impact the food safety or quality aspects of the Direct Supply. Such notification shall be required notwithstanding that the Direct Supply will still be manufactured in accordance with the Specifications. Such notice shall be given in writing to Company not less than sixty (60) days prior to the proposed change.
    5. Access. Subject to reasonable notice and confidentiality obligations, Vendor shall grant employees or agents of Company ( “Company Personnel”) complete access during plant operating hours to areas of Vendor’s production facility associated with the manufacture of the Direct Supply, receiving for the Direct Supply, or associated common areas (storage, GMP zones, etc.) and shall provide all tools, facilities and assistance reasonably necessary, in order to monitor compliance with these terms and conditions and to conduct inspections and testing upon the Direct Supply at any stage of the process, as Company Personnel may deem reasonably necessary. Any such inspections may involve such number of additional employees, contractors, representatives and agents as Company Personnel may determine. Vendor shall not assess any fees or costs against Company for conducting such inspections. In no event shall the appointment of any Company Personnel, the presence of Company Personnel at Vendor’s production facility or Company Personnel’s assistance in the production and shipping of the Direct Supply relieve or limit Vendor of its responsibilities and/or obligations under these terms and conditions. It is expressly agreed that inspections and payments prior to delivery will not constitute final acceptance.
    6. Food Safety Certification. Any plant(s) used by Vendor to produce the Direct Supply shall be certified under a schema recognized by the Global Food Safety Initiative (“GFSI”) or some alternative schema approved by Company in its sole and absolute discretion. Vendor shall maintain certification under the then-applicable schema during operation of such plant(s), which certification process shall include third party food safety audits as required for compliance. Vendor shall provide Company with copies of all GFSI or other related third-party audits and associated corrective actions upon request. If required by the Specifications, each lot of Direct Supply that Vendor tenders to Company shall include a certificate of analysis. Company shall be entitled to inspect and test each lot of the Direct Supply within sixty (60) days receipt at Company’s processing facility or other location designated by Company using standard industry procedures and protocols to verify compliance with the then-applicable schema. If a dispute arises as to whether quality standards were met, the Parties agree to submit samples of the disputed products to a mutually agreed independent third party testing laboratory for testing and analysis for final and binding determination, and the Party not prevailing shall bear the cost of such testing and analysis.
    7. Additional Representations and Warranties. In addition to the other representations and warranties set forth in these terms and conditions, Vendor represents and warrants that (i) the products meet or exceed the quality standards furnished or adopted by Vendor; (ii) the products and their production, storage, pricing, delivery and sale hereunder are in compliance with foreign, U.S., state and local laws, orders, regulations and rules applicable thereto, including, but not limited to, all food manufacturing, packaging, and labeling laws. Without limiting the foregoing, Vendor expressly warrants that no products: (i) when shipped or delivered by Vendor to or on the order of Company will be adulterated or misbranded within the meaning of Federal Food, Drug & Cosmetic Act, as amended (“FDCA”), the Fair Packaging and Labeling Act, as amended; the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, the Perishable Agricultural Commodities Act, as amended, the Federal Meat Inspection Act as amended, Federal Poultry Products Inspection Act as amended, and any state or municipal food, drug, cosmetic, agriculture, or similar law; (ii) will be an article which may not be introduced into interstate commerce under sections 404, 505, and 512 of the FDCA, or otherwise; (iii) are in violation of the Federal Hazardous Substances Act or of any state hazardous substances law or similar legislation; and (iv) which are for consumption in the United States, are manufactured, processed, packaged or held for consumption in a facility that is not, if required under applicable law, registered in accordance with section 415 of the FDCA. Vendor further warrants that it conducts all operations, and all Direct Supply are provided and produced in compliance with all related laws and regulations, including but not limited to the FSMA Food Defense model as the same may change from time to time. Vendor warrants and guarantees Direct Supply for the period of time normally specified for the type of products ordered, with warranty period commencing on date of delivery to Company (“Direct Supply Warranty Period”). Upon reasonable request, Vendor shall provide Company with documentation of Direct Supply Warranty Period for all products. This warranty is in addition to, and not in lieu of, any other warranties or guarantees made by Vendor or created or implied as a matter of law. In the event a product fails to meet the foregoing warranties within the Direct Supply Warranty Period, in addition to any other remedy Company may have, Company shall have the remedies set forth above.
    8. Recalls and Corrective Actions.
       1. Notice. In the event that Vendor obtains information from any source reasonably supporting the conclusion (i) that any product or any component of any product contains a design, material, manufacturing, production, or other defect potentially affecting the safety of any product, (ii) that there exists a matter relating to any product that requires disclosure under applicable law, regulation or other US (federal, state or local) or foreign governmental authority or agency, or (iii) that any product or any component of any product is not in compliance with any applicable US (federal, state or local) or foreign laws, regulations or orders, then (A) Vendor will immediately communicate all relevant facts to Company, and (B) in the event that information imposes upon Vendor a reporting requirement to the FDA or any other governmental agency, shall first communicate that information to Company within the timeframe required for governmental reporting.
       2. Corrective Actions. Company shall have the sole right, in its discretion, to initiate and direct the content and scope of a voluntary or mandatory Class I, II, or III recall, market withdrawal, stock recovery, product correction, or advisory safety communication (any one or more referred to as a “Recall Action”) regarding the products and any product incorporating the products. At Company’s option, unless otherwise restricted by law, Company may direct Vendor to, and upon such direction Vendor shall, conduct such Recall Action. Unless otherwise restricted by law, Company shall determine, in its discretion, the manner, text, and timing of any publicity to be given such matters. In the event a Recall Action is initiated or directed by Company, Vendor agrees to fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. Any and all action taken in connection with a Recall Action shall be administered in accordance with FDA policies and other applicable laws.
       3. Costs and Expenses. Vendor shall be solely responsible for all costs and expenses arising from the undertakings and actions arising from or related to any Recall Action, including but not limited to: (i) recalled product paid for, on hand, works in progress, and finished goods; (ii) lost profits; (iii) lab testing; (iv) sanitation labor; (v) packaging; (vi) transportation; (vii) storage; (viii) customer claims; (ix) communications; (x) public relations; (xi) business interruption; (xii) lost business; (xiii) brand damage; (xiv) expert fees; and (xv) attorneys fees (the “Recall Expenses”). In the event Company incurs any Recall Expenses, Vendor shall reimburse (or make advance payment to, at Company’s sole discretion and election) Company of such Recall Expenses within thirty (30) days after notice by
       4. Cooperation. The Parties shall cooperate with one another regarding the matters described in this Section.
    9. Direct Supply Additional Insurance Requirements. In addition to any other insurance requirements set forth above, Vendor shall provide and maintain comprehensive general liability insurance (both in minimum amounts of $1,000,000 per occurrence and $5,000,000 aggregate coverage); product contamination coverage for insured events arising out of adverse publicity and government recall and for third party recall liability in minimum amount of $5,000,000; errors and omissions insurance (in minimum amounts of $1,000,000 per occurrence and $3,000,000 aggregate coverage with appropriate tail coverage if such insurance is “claims made”); auto liability policy including owned and non-owned, (in minimum amounts of $1,000,000 combined single limit and $100,000 per incident for uninsured and under-insured motorist; and workers’ compensation coverage with statutory limits); and employer liability coverage (in minimum amounts of $1,000,000 per incident and $1,000,000 aggregate coverage). Vendor shall maintain all insurance coverages hereunder with company or companies rated A or higher by A.M. Best that have a size requirement of “V (5).” Vendor’s insurance coverage hereunder (except for workers’ compensation and professional liability) shall name Company and its Affiliates as “additional insureds.” Vendor shall provide Company with a certificate of insurance evidencing such coverage. The certificates of insurance shall contain a provision that coverage will not be canceled, non-renewed, or materially changed without thirty (30) days’ prior written notice to Company.