deviation from Franchisor's mandatory
specifications and standards as prescribed by the System Standards must receive
prior written approval from Franchisor. Approval of any item for use by
Franchisor, its Affiliates, or other developers or franchisees will not be
construed as approval of such item for Franchisee's use.
9.3 Notwithstanding
Section 9.2, Franchisor may require Franchisee to purchase any or all of the
equipment, fixtures, furnishings, signs, delivery vehicles, raw materials,
supplies, and other items for the FACILITY directly from Franchisor or its
Affiliates or other suppliers it may designate from time to time. Franchisee
agrees to purchase all such items from Franchisor, its Affiliates or designated
suppliers, as Franchisor may require. Franchisee acknowledges and agrees that
Franchisor, its Affiliates and designated suppliers have the right to profit
from the sale of such items and that Franchisor does not act as agent,
representative or in any other intermediary or fiduciary capacity for Franchisee
in Franchisor's relationship with any designated suppliers. Franchisee
acknowledges and agrees that (a) Franchisor and/ or its Affiliates may receive
payments, fees, commission or reimbursements from designated suppliers and third
parties in respect to such purchases, (b) Franchisor and/or its Affiliates may
have investments in designated suppliers, and (c) Franchisor and/or its
Affiliates may profit from Franchisee's purchases from designated suppliers.
Franchisor, its Affiliates and designated suppliers shall not be liable for any
delay in the delivery of ingredients as a result of any Force Majeure.
Franchisor, its Affiliates and designated suppliers may establish policies and
procedures from time to time for the allocation and distribution of items among
Krispy Kreme Stores and Commissary Facilities.
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9.4 All equipment (including production equipment), fixtures, furnishings, raw
materials (including doughnut mixes and coffee beans) that Franchisee purchases
from Franchisor, its Affiliates or designated suppliers shall be at such prices
and on such purchase terms (including credit, such as COD, and shipping) and
conditions as Franchisor, its Affiliates or designated suppliers may determine
from time to time. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY PURCHASE ORDER
ISSUED BY FRANCHISOR OR ITS AFFILIATES OR DESIGNATED SUPPLIERS, NEITHER
FRANCHISOR, ANY OF ITS AFFILIATES NOR ANY DESIGNATED SUPPLIER MAKES ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR
PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT ANY ITEMS FRANCHISEE IS REQUIRED TO
PURCHASE FROM ANY OF THEM. NEITHER FRANCHISOR, ANY OF ITS AFFILIATES NOR ANY
DESIGNATED SUPPLIER WILL HAVE ANY LIABILITY FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH ANY SUCH ITEMS, INCLUDING
FRANCHISEE'S PURCHASE, USE OR RESALE OF ANY SUCH ITEMS.
9.5 In
the event Franchisor does not require Franchisee to purchase a particular item
from Franchisor, its Affiliates, or a designated supplier, Franchisee may
purchase such item from a supplier Franchisor has approved. If Franchisee
proposes to purchase any such item from any supplier who is not then approved by
Franchisor, Franchisee and the proposed supplier must submit to Franchisor all
information that Franchisor may request in order to determine whether to approve
the supplier. Franchisor will have