BURLINGTON DISTRIBUTING COMPANY WAREHOUSE, AMBIENT & COLD STORAGE AND LOGISTICS TERMS AND CONDITIONS

SECTION 1 – DEFINITIONS

As used in this Warehouse Receipt (“RECEIPT”), Contract, Rate Quotation (“RATE QUOTATION”), statement of work, or other written service arrangement incorporating these Terms and Conditions, the following terms have the following meanings:

  1. CONTRACT. The applicable RECEIPT, RATE QUOTATION, statement of work, or other written agreement issued or accepted by COMPANY that incorporates these Terms and Conditions.
  2. STORER. The person, firm, corporation, or other business entity for whom the GOODS are stored or for whom SERVICES are performed, and any person or entity claiming an interest in the GOODS through STORER.
  3. COMPANY. Burlington Distributing Company (“BDC”). As used in the liability, claim, indemnity, and related provisions of this CONTRACT, COMPANY includes its officers, directors, employees, and agents acting within the scope of their duties.
  4. WAREHOUSE. COMPANY’S warehouse complex identified in the CONTRACT and any other facility to which GOODS are permissibly transferred under this CONTRACT.
  5. GOODS. The food products, packaging, ingredients, inventory, and related personal property, or any portion thereof, that COMPANY has agreed to receive, handle, transport, rework, cross-dock, manage, and/or store pursuant to this CONTRACT.
  6. SERVICES. Ambient storage, refrigerated storage, frozen storage, receiving, handling, cross-docking, inventory management, transportation, REWORKING, and any other logistics or related services agreed to in writing by COMPANY and STORER.
  7. REWORKING. The corrective process of fixing or modifying inventory to restore it to a sellable, compliant condition, including, when authorized in writing, activities such as relabeling, repacking, restacking, sorting, inspection, case modification, pallet modification, or similar corrective work.

SECTION 2 – TENDER; PRODUCT INFORMATION; ACCEPTANCE

  1. STORER agrees that all GOODS tendered to COMPANY shall be properly marked, packaged, palletized where applicable, and suitable for the requested SERVICES.
  2. At or before delivery, STORER shall provide accurate and complete manifests, product identification, lot or production information, quantities, storage class, required temperature, handling instructions, allergen or contamination concerns, shelf-life information, and other information reasonably necessary for COMPANY to perform the SERVICES and comply with applicable law.
  3. STORER represents and warrants that, when tendered, the GOODS are lawful food products, are not adulterated, contaminated, infested, recalled, or otherwise unsafe except as specifically disclosed to and accepted by COMPANY in writing, and that STORER has disclosed all material storage, temperature, transportation, sanitation, and handling requirements, including whether GOODS require ambient, refrigerated, or frozen storage.
  4. STORER is responsible for the accuracy and regulatory sufficiency of product information, labels, specifications, and instructions supplied to COMPANY. STORER shall indemnify COMPANY as provided in this CONTRACT for losses arising from materially inaccurate, incomplete, or misleading information supplied by STORER.
  5. COMPANY may reject, quarantine, place on hold, segregate where reasonably practicable, or require removal of GOODS that COMPANY reasonably believes are unsafe, nonconforming, improperly documented, hazardous to persons or property, or unsuitable for the requested SERVICES.
  6. Receipt and delivery of GOODS shall be made without sorting except by special arrangement, which may be subject to additional charges.
  7. Unless otherwise agreed in writing, COMPANY shall store and deliver GOODS in the packages in which they are received and is not required to segregate GOODS by production code or date.
  8. STORER shall identify itself, and not COMPANY, as consignee on inbound bills of lading unless otherwise agreed in writing. If COMPANY is identified as consignee contrary to this requirement, STORER shall be responsible for resulting transportation, storage, handling, and related charges.

SECTION 3 – TERMINATION; SUSPENSION; REMOVAL

  1. COMPANY may terminate storage or SERVICES without cause upon not less than 30 days’ written notice and may require removal of all or any portion of the GOODS within the period stated in the notice. If GOODS are not removed as required, COMPANY may exercise its rights under applicable law, including lien enforcement and lawful sale or disposition.
  2. COMPANY may immediately suspend SERVICES, refuse release except as required by law, or require accelerated removal when reasonably necessary because of nonpayment, unsafe or unlawful GOODS, a material regulatory concern, a material breach of this CONTRACT, insolvency, a hazard to persons, property, other goods, or the WAREHOUSE, or illegal activity.
  3. If GOODS may deteriorate, decline in value below the amount of COMPANY’S lien, or constitute a hazard, COMPANY may remove, preserve, transfer, sell, or dispose of the GOODS as permitted by law. Reasonable related charges are payable by STORER except to the extent caused by COMPANY’S breach or negligence.

SECTION 4 – STORAGE LOCATION; EMERGENCY OPERATIONS

  1. GOODS may be stored, at COMPANY’S discretion, in any appropriate room or area of the WAREHOUSE. Identification of a specific internal location does not guarantee continued storage in that location unless expressly agreed in writing.
  2. COMPANY may move GOODS within the WAREHOUSE without notice when reasonably necessary for operations, food safety, inventory control, maintenance, or protection of the GOODS.
  3. Upon reasonable written notice, COMPANY may transfer GOODS at its expense to another warehouse operated by COMPANY, subject to substantially equivalent storage conditions unless emergency circumstances require otherwise.
  4. During a refrigeration failure, utility interruption, facility emergency, governmental action, or other event threatening persons, property, or GOODS, COMPANY may take commercially reasonable protective measures, including relocating GOODS, using temporary refrigeration, arranging emergency transportation, or transferring GOODS to another suitable facility. COMPANY will bear the ordinary costs of commercially reasonable contingency measures required as a result of equipment failure, refrigeration interruption, utility interruption, or similar operational disruption affecting the WAREHOUSE, except to the extent caused by STORER or the GOODS. If extraordinary measures become reasonably necessary because of a Force Majeure Event as defined in this CONTRACT, COMPANY may incur reasonable third-party costs necessary to protect or preserve the GOODS. COMPANY shall use commercially reasonable efforts to notify STORER before incurring material extraordinary costs when circumstances reasonably permit. Such extraordinary third-party costs may be equitably allocated to affected STORERS based on the circumstances and benefits provided. COMPANY shall not charge STORER for costs resulting from COMPANY’S breach, negligence, or failure to maintain commercially reasonable contingency measures.

SECTION 5 – STORAGE CHARGES

  1. Storage charges commence when COMPANY accepts custody of the GOODS, regardless of unloading date or issuance of a RECEIPT.
  2. If rates are quoted on a split-month basis, the storage month is a calendar month. A full month’s charge applies to GOODS received from the 1st through the 15th, and one-half month applies to GOODS received from the 16th through the last day of the month. A full monthly charge applies on the 1st day of each succeeding month to GOODS remaining in storage.
  3. If rates are quoted on an anniversary basis, the storage month runs from the date of receipt to, but not including, the corresponding date of the next month, or the last day of that month if no corresponding date exists. A full month’s charge applies upon receipt and on each successive storage month for GOODS then remaining.
  4. Storage and other charges are stated in the applicable RATE QUOTATION, statement of work, tariff, or other pricing document and may be increased upon 30 days’ written notice unless otherwise agreed in writing. If an applicable signed RATE QUOTATION or other signed agreement expressly guarantees or fixes a rate for a stated period, that fixed-rate commitment controls during the stated period.
  5. Unless otherwise specified, storage charges are fully earned and payable as stated in the applicable pricing document.
  6. Rates quoted by weight are computed on gross weight unless otherwise specified.

SECTION 6 – HANDLING; CROSS-DOCKING; ADDITIONAL SERVICES

  1. Unless otherwise specified, ordinary handling charges cover labor and duties incidental to receiving and delivering unitized palletized GOODS at the WAREHOUSE dock during normal business hours and do not include services not expressly stated in the applicable pricing document.
  2. COMPANY may charge its then-current rates for loading, unloading, cross-docking, special handling, after-hours work, pallet exchange, sorting, disposal, quarantine, recall activity, inventory research, special reporting, transportation, detention, demurrage, REWORKING, and other additional SERVICES.
  3. Cross-docking may include receipt, staging, consolidation, transfer, and release of GOODS without placement into long-term storage. Cross-docked GOODS remain subject to applicable provisions of this CONTRACT.
  4. When GOODS are ordered out in quantities smaller than those received, COMPANY may assess additional order, case, item, or rehandling charges.

SECTION 7 – TRANSFER; DELIVERY; RELEASE

  1. Instructions to transfer GOODS to another account are not effective until accepted by COMPANY. COMPANY may assess transfer and rehandling charges and may require written instructions from an authorized representative of STORER.
  2. COMPANY shall have a reasonable time to make delivery after receipt of complete release instructions and shall have up to ten business days after notice of a potential misplacement to investigate and locate GOODS before a shortage claim is considered final.
  3. Delivery and transfer instructions are subject to satisfaction of COMPANY’S lawful liens, security interests, and charges. Upon termination, COMPANY may require payment of charges then due before release to the extent permitted by law.
  4. When conflicting claims to GOODS exist, COMPANY may require reasonable documentation or indemnity, interplead, or exercise other remedies available by law. Reasonable related expenses, including attorneys’ fees where recoverable, are chargeable to STORER to the extent permitted by law.

SECTION 8 – OTHER SERVICES; PAYMENT

  1. SERVICES performed in the interest of STORER or the GOODS are chargeable to STORER unless expressly included in agreed pricing.
  2. Charges are due as stated on the invoice or applicable pricing document. Amounts not paid within 30 days after the due date bear interest at the lesser of 1.5% per month or the maximum lawful rate.
  3. STORER may inspect GOODS subject to reasonable security, sanitation, food-safety, and operational requirements. COMPANY employee time required for inspection may be charged to STORER.
  4. STORER shall pay reasonable costs of protecting, preserving, cleaning up, quarantining, or disposing of damaged or threatened GOODS except to the extent such costs result from COMPANY’S breach or negligence.
  5. COMPANY may charge for dunnage, bracing, fastenings, pallets, special unloading, bonded storage, minimum service charges, and other materials or services reasonably provided for STORER.
  6. COMPANY is not responsible for detention, demurrage, or loading/unloading delay unless caused by COMPANY’S negligence or breach.
  7. COMPANY may assess an additional charge when cooler or freezer GOODS arrive more than five degrees Fahrenheit above the applicable requested room temperature. COMPANY is not responsible for blast freezing unless separately agreed in writing.
  8. COMPANY may impose a reasonable energy surcharge upon at least 30 days’ prior written notice when COMPANY experiences a material increase in energy costs, unless an applicable signed RATE QUOTATION or other signed agreement expressly fixes or restricts such surcharge for a stated period, in which case that signed pricing commitment controls during the stated period.

SECTION 9 – FOOD SAFETY; FDA; REGULATORY RESPONSIBILITIES

  1. Each party shall comply with food-safety laws and regulations applicable to its respective activities, including applicable requirements administered by the U.S. Food and Drug Administration.
  2. STORER remains responsible for product formulation, inherent product safety, product-specific regulatory requirements, label content and specifications supplied by STORER, allergen disclosures, shelf-life and expiration specifications, and the accuracy of product and traceability information supplied to COMPANY.
  3. COMPANY is responsible for performing its SERVICES in accordance with laws applicable to COMPANY’S activities and the written product specifications accepted by COMPANY.
  4. Nothing in this CONTRACT makes COMPANY the manufacturer, guarantor, or regulatory approver of the GOODS or of customer-supplied labels, formulations, specifications, or instructions.

SECTION 10 – RECALLS; WITHDRAWALS; HOLDS

  1. STORER shall promptly notify COMPANY of any recall, market withdrawal, governmental hold, safety concern, or other event affecting GOODS in COMPANY’S custody.
  2. COMPANY may immediately place affected GOODS on hold, quarantine or segregate them where reasonably practicable, suspend shipment, comply with governmental instructions, and take commercially reasonable steps to protect persons, property, and other GOODS.
  3. COMPANY shall reasonably cooperate with lawful recall or withdrawal instructions supplied by STORER. STORER shall pay reasonable recall, segregation, handling, REWORKING, transportation, storage, and disposal costs except to the extent the event was caused by COMPANY’S breach or negligence.
  4. No recalled, held, or potentially unsafe GOODS will be released by COMPANY contrary to applicable law or a valid governmental directive.

SECTION 11 – REWORKING

  1. REWORKING will be performed only pursuant to written instructions or specifications accepted by COMPANY.
  2. STORER is responsible for the regulatory, labeling, product, and commercial adequacy of customer-provided REWORKING instructions, labels, packaging, artwork, product specifications, and disposition directions.
  3. COMPANY shall perform accepted REWORKING with reasonable care but does not warrant that customer-directed REWORKING will make GOODS legally marketable, compliant, or fit for a particular purpose unless COMPANY expressly assumes that responsibility in a signed writing.
  4. COMPANY may stop REWORKING if it reasonably identifies a safety, regulatory, quality, or operational concern and may require revised written instructions before continuing.

SECTION 12 – TRANSPORTATION

  1. When COMPANY provides or arranges transportation, STORER shall provide in writing all required transportation temperatures, sanitation requirements, loading restrictions, allergen or contamination concerns, and other product-specific transportation requirements before shipment.
  2. COMPANY shall follow transportation specifications it has accepted in writing and shall perform transportation SERVICES with reasonable care and in accordance with laws applicable to COMPANY’S role.
  3. If COMPANY becomes aware of a temperature-control failure or other condition that may render food unsafe, COMPANY may place affected GOODS on hold and suspend further distribution pending a reasonable safety determination or lawful disposition instruction.
  4. Unless otherwise agreed in writing, STORER is responsible for determining the product-specific suitability of transportation specifications it provides to COMPANY.
  5. Separate bills of lading, transportation rate confirmations, or carrier terms may apply to particular shipments. In the event of a direct conflict, the order-of-precedence provision of this CONTRACT controls unless applicable transportation law requires otherwise.

SECTION 13 – INVENTORY MANAGEMENT; DISCREPANCIES

  1. COMPANY shall exercise reasonable care in maintaining inventory records but does not warrant that records will at all times be free from clerical, scanning, counting, unit-of-measure, system, or other discrepancies.
  2. STORER shall review inventory reports made available by COMPANY and report reasonably discoverable discrepancies in writing within 30 days after receipt of the applicable report. This reporting period does not shorten any nonwaivable legal right.
  3. COMPANY shall have a reasonable opportunity to investigate reported discrepancies, reconcile records, conduct counts, and correct administrative or system records before an inventory discrepancy is treated as a final loss.
  4. Inventory adjustments made for recordkeeping purposes do not constitute an admission of liability.

SECTION 14 – LIABILITY AND LIMITATION OF DAMAGES

  1. COMPANY is not liable for loss, destruction of, or damage to GOODS unless caused by COMPANY’S failure to exercise the care that a reasonably careful person would exercise under like circumstances. COMPANY is not liable for loss or damage that could not have been avoided through the exercise of such care.
  2. Unless specifically agreed in writing, COMPANY is not required to provide humidity-controlled storage, tempering, blast freezing, or other special environmental services.
  3. For loss, destruction of, or damage to GOODS for which COMPANY is legally liable, COMPANY’S liability shall be limited to the lesser of: (1) STORER’S actual cost of replacing or reproducing the affected GOODS, together with reasonable inbound transportation costs to the WAREHOUSE; (2) the fair market value of the affected GOODS at the time of loss; or (3) 50 times the monthly storage charge applicable to the affected GOODS. STORER may, prior to any loss, request in writing an increased declared valuation for some or all of its GOODS. Any increased valuation shall be effective only after written acceptance by COMPANY and may be subject to additional charges, insurance requirements, or other conditions established by COMPANY.
  4. The limitation in subsection (c) is intended to apply to the maximum extent permitted by applicable law and does not apply where prohibited by law, including conversion of GOODS to COMPANY’S own use.
  5. COMPANY’S liability under this Section is STORER’S exclusive remedy for loss, destruction of, or damage to GOODS to the maximum extent permitted by law.
  6. Neither party is liable to the other for incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost sales, business interruption, loss of goodwill, loss of market, production downtime, or indirect customer penalties, except to the extent such exclusion is prohibited by law or the damages are payable to a third party under an enforceable indemnity obligation.
  7. If COMPANY negligently misships GOODS, COMPANY may, at its option, pay reasonable transportation charges to return the misshipped GOODS or the value determined under subsection (c). COMPANY is not liable for damages caused by a consignee’s acceptance, use, or disposition of misshipped GOODS except to the extent required by law.

SECTION 15 – NOTICE OF CLAIM; FILING OF SUIT

  1. COMPANY is not liable for a claim unless STORER presents the claim in writing within a reasonable time, not exceeding the earlier of: (1) 60 days after delivery of the affected GOODS by COMPANY; or (2) 60 days after STORER learned, or in the exercise of reasonable care should have learned, of the loss, damage, or other basis for the claim.
  2. As a condition precedent to suit concerning damaged GOODS, STORER shall provide COMPANY a reasonable opportunity to inspect the GOODS and relevant records before disposal or material alteration, except where immediate action is reasonably required for food safety or by law.
  3. No lawsuit or other action may be maintained unless a timely written claim has been made and the action is commenced within the earlier of: (1) twelve (12) months after delivery of the affected GOODS; or (2) twelve (12) months after STORER learned, or reasonably should have learned, of the basis for the claim, to the extent such contractual limitation is enforceable under applicable law.

SECTION 16 – INSURANCE

  1. COMPANY maintains commercially reasonable insurance appropriate to its operations, including coverage applicable to qualifying customer-owned or other outside storage GOODS, subject to the terms, conditions, exclusions, deductibles, and limits of COMPANY’S applicable insurance policies. Such insurance is maintained for COMPANY’S benefit and does not constitute insurance purchased for or on behalf of STORER, nor does this CONTRACT guarantee that insurance proceeds will be available for any particular loss.
  2. STORER shall maintain property, stock-throughput, cargo, or other first-party insurance sufficient to cover the full value of its GOODS while in storage, transit, cross-docking, REWORKING, or otherwise in COMPANY’S custody or control, as appropriate to the SERVICES.
  3. The storage and service rates do not include insurance on STORER’S GOODS unless expressly stated in writing.

SECTION 17 – INDEMNIFICATION

  1. STORER shall indemnify, defend, and hold harmless COMPANY and its officers, directors, employees, and agents from third-party claims, damages, penalties, and reasonable defense costs to the extent arising from: product defects or contamination not caused by COMPANY; inaccurate or unlawful labels, specifications, or instructions supplied by STORER; undisclosed allergens or hazards; regulatory violations attributable to STORER; STORER-provided REWORKING instructions; STORER’S breach of this CONTRACT; or STORER’S negligence or willful misconduct.
  2. COMPANY shall indemnify, defend, and hold harmless STORER from third-party claims, damages, penalties, and reasonable defense costs to the extent arising from COMPANY’S negligence, willful misconduct, material breach of this CONTRACT, or material violation of law applicable to COMPANY’S performance of the SERVICES.
  3. The indemnified party shall provide reasonably prompt notice of a third-party claim. Failure to provide prompt notice relieves the indemnifying party only to the extent materially prejudiced. The indemnifying party may control the defense with qualified counsel, but may not settle a claim in a manner that admits wrongdoing by, imposes nonmonetary obligations on, or fails to fully release the indemnified party without that party’s written consent.

SECTION 18 – LIEN

  1. COMPANY shall have all warehouse liens and related rights available under applicable law against the GOODS and proceeds thereof for storage, handling, transportation, detention, demurrage, terminal charges, insurance, labor, SERVICES, advances, preservation expenses, lawful sale expenses, and other charges related to the GOODS.
  2. To the extent permitted by applicable law and stated in the applicable storage agreement, COMPANY also claims a general warehouse lien for other charges and expenses due COMPANY from STORER in connection with other GOODS stored by STORER with COMPANY.
  3. COMPANY may require advance payment or payment of charges then due before release of GOODS to the extent permitted by law.

SECTION 19 – FORCE MAJEURE

  1. Neither party is liable for failure or delay in performing an obligation, other than payment obligations already accrued, to the extent caused by circumstances beyond its reasonable control, including severe weather, fire, flood, natural disaster, utility interruption, refrigeration-system disruption not caused by the affected party’s negligence, governmental action, transportation shutdown, labor disruption, epidemic or pandemic, cyber or systems outage beyond reasonable control, embargo, war, terrorism, civil unrest, or comparable events.
  2. The affected party shall use commercially reasonable efforts to mitigate the effects of the event and resume performance when reasonably practicable.
  3. This Section does not prevent COMPANY from taking emergency protective actions authorized elsewhere in this CONTRACT.

SECTION 20 – CONFIDENTIALITY

  1. Each party shall protect the other party’s nonpublic confidential business information using reasonable care and shall use such information only for purposes of the business relationship.
  2. Confidential information may include pricing, inventory, customer information, sales or volume data, forecasts, distribution information, processes, business plans, and other information reasonably understood to be confidential.
  3. Confidential information does not include information that is publicly available without breach, lawfully known without confidentiality obligation, independently developed without use of the other party’s confidential information, or lawfully received from a third party. Disclosure required by law is permitted after reasonable notice when legally allowed.

SECTION 21 – AUTHORITY; OWNERSHIP OF GOODS

  1. STORER represents that it is the lawful owner of the GOODS or is duly authorized by the lawful owner and any holder of a lien or security interest to enter into this CONTRACT and direct the SERVICES.
  2. STORER shall notify persons acquiring an interest in the GOODS that the GOODS are subject to this CONTRACT and COMPANY’S lawful warehouse lien and other rights.

SECTION 22 – NOTICES

  1. Written notices required by this CONTRACT may be transmitted by commercially reasonable means to COMPANY at the address stated in the applicable CONTRACT and to STORER at its last known business address.
  2. The parties intend to add authorized email addresses and electronic-ordering procedures by written amendment or applicable RATE QUOTATION. Until then, no specific email address is designated by this Section as the exclusive address for legal notices.

SECTION 23 – GOVERNING LAW; VENUE

  1. This CONTRACT is governed by the laws of the State of North Carolina, without regard to conflict-of-law principles.
  2. Any lawsuit or proceeding arising from this CONTRACT shall be brought in the county or judicial district designated in the applicable signed CONTRACT or RATE QUOTATION. If no venue is expressly designated, any state-court action shall be brought in a court of competent jurisdiction in Alamance County, North Carolina, and any federal-court action shall be brought in the United States District Court for the Middle District of North Carolina, subject in each case to applicable subject- matter jurisdiction and mandatory law.
  3. Nothing in this Section requires arbitration unless the parties separately agree to arbitration in a signed writing.

SECTION 24 – ORDER OF PRECEDENCE; CUSTOMER FORMS

  1. In the event of a direct conflict, the following order of precedence applies unless a signed writing expressly states otherwise: (1) a signed customer agreement or master services agreement; (2) an applicable signed or accepted RATE QUOTATION or statement of work; (3) these Terms and Conditions; and (4) operational instructions accepted by COMPANY.
  2. Terms contained in STORER purchase orders, portals, vendor forms, bills of lading, or other customer-generated documents do not modify this CONTRACT merely by receipt, reference, performance, or failure to object. Conflicting or additional terms are effective only if expressly accepted in a writing signed by an authorized representative of COMPANY.

SECTION 25 – WAIVER; SEVERABILITY; ENTIRE AGREEMENT; ELECTRONIC COUNTERPARTS

  1. Failure to enforce a provision does not waive future enforcement. A waiver must be in writing and applies only to the specific matter stated.
  2. If any provision is held invalid or unenforceable, the remaining provisions remain effective, and the affected provision shall be enforced to the maximum extent permitted by law.
  3. This CONTRACT and incorporated documents constitute the entire agreement concerning the GOODS and SERVICES covered by them and supersede prior or contemporaneous oral or written understandings on those subjects, except agreements expressly preserved in a signed writing.
  4. Amendments must be in writing and signed by authorized representatives of both parties, except for rate changes or operational notices expressly permitted by this CONTRACT.
  5. The parties acknowledge that they are commercial entities, have had the opportunity to review and negotiate this CONTRACT and consult counsel of their choosing, and agree that no presumption against the drafter shall apply solely because one party prepared the initial form.
  6. This CONTRACT may be executed in counterparts and by legally valid electronic signature. Specific email addresses for operational instructions and formal notices may be designated later in writing.