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.
10
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 the unconditional right to approve or disapprove
any proposed supplier, and Franchisor may approve a supplier conditionally.
Within thirty (30) days after Franchisor receives all requested information,
Franchisor will communicate to Franchisee in writing Franchisor's decision to
approve or disapprove Franchisee's proposed supplier. Franchisor will evaluate
proposed suppliers on their ability to comply with applicable standards,
specifications and procedures, and Franchisor will only approve those proposed
suppliers that meet Franchisor's high standards. Franchisor may disapprove any
supplier who Franchisor