BBBD PURCHASE ORDER TERMS AND CONDITIONS EFFECTIVE 01/01/2023
The following terms and conditions apply to, and form part of, each purchase order for the purchase of beverage alcohol products (“Purchase Order”) issued by B&B Beverage Distribution LLC (“BBBD”). For the purposes of this Purchase Order, any reference to products includes the packaging and labelling of the beverage alcohol products. The terms and conditions set out in this Purchase Order apply to purchases by BBBD for products for sale through its retail channels, through its wholesale channels, or both, as applicable.
SECTION A. Terms and Conditions applicable to every Purchase Order. (The terms and conditions in Section A below apply to every Purchase order issued by BBBD.)
1. AGREEMENT TO PURCHASE: The Supplier will be deemed to have entered into a binding agreement (the “Agreement”) with BBBD upon: (a) signing and returning the acknowledgement copy of the Purchase Order; (b) giving BBBD written notice of acceptance of the Purchase Order; (c) supplying the products ordered in the Purchase Order. The Agreement is subject to all the terms and conditions contained in this document, which will supersede and take precedence over any conflicting provisions of any document submitted by the Supplier. Any Supplier proposal for additional or different terms or conditions or any attempt by the Supplier to vary the terms and conditions in this Agreement by any means will be considered as proposals for addition to this Agreement and will not be binding unless expressly agreed to in writing by BBBD.
2. PRICE/QUANTITY: The price payable by BBBD shall not exceed the quoted price shown in the Purchase Order. The supplier shall provide BBBD with the benefit of any reduction in the price of any product ordered that is in effect prior to delivery to BBBD. If “Ex Cellar” is specified, the price includes only the cost of the products, which shall be made available for shipment from the Supplier’s warehouse. If “FOB (Port)” is specified, the price includes all charges (including, without limitation, customs clearance and transportation) up to and including loading on board vessel at the designated port of shipment. If “FCA (Forwarder’s Warehouse)” is specified, the price includes all charges (including, without limitation, customs clearance and transportation) up to and including delivery to the designated warehouse. Unless otherwise specified in the Purchase Order, all references to monetary amounts shall be in US Dollars.
The Supplier shall not change the specific quantity or bottle size ordered nor make any substitutions without the prior written consent of BBBD. Requests to change quantities or bottle sizes or to makes substitutions must be communicated, before shipping the products ordered, to the attention of the appropriate BBBD buyer. BBBD will be deemed to have accepted the changes or substitutions proposed by the Supplier only upon BBBD issuing a revised Purchase Order corresponding to the changes or substitutions proposed by the Supplier. BBBD assumes no obligation for products shipped in excess of quantities ordered hereunder and may return any excess products to the Supplier at the Supplier’s expense.
3. PAYMENT: Unless other payment terms are specified in the Purchase Order, payment will be due after receipt of the invoice to Finance within thirty (30) days after the receipt of the product(s) in
acceptable condition by (a) BBBD at its warehouse; or (b) by BBBD’s customer (on behalf of BBBD) at the applicable Ship to Location. Payment will be made to the Supplier. Payment will be made by electronic funds transfer unless the parties agree otherwise.
4. SET-OFF: Should the Supplier fail to pay or refund BBBD any amounts owing by the Supplier to BBBD, whether pursuant to or in connection with the Agreement or otherwise, when demanded by BBBD, BBBD may set-off such amounts against any amount that is or becomes payable by BBBD to the Supplier for other orders for product(s) which BBBD has placed or may place with the Supplier. BBBD, in its sole discretion, may set-off any amount that is or becomes payable by the Supplier to BBBD, whether in connection with the Agreement or otherwise, against amounts that become payable to the Supplier under the Agreement.
5. INSPECTION OF PRODUCT: All product(s) ordered shall be subject to inspection and acceptance by BBBD, or where applicable, BBBD’s customer (on behalf of BBBD). Such acceptance will be given within a reasonable time after receipt of the products at BBBD’s warehouse or applicable Ship to Location, if the products are in satisfactory condition as described herein.
6. UNSATISFACTORY PRODUCT: If, at any time before or after paying for the product(s), BBBD determines in its sole discretion that all or any part of any product(s) is unsatisfactory in that such product(s) (a) is not of merchantable quality or is defective in any manner; (b) does not satisfy the provisions of any applicable law of Florida or USA; (c) does not comply with federal or provincial standards established for products of that description; (d) does not match the sample of the same product(s) previously submitted to and approved by BBBD; (e) does not match the quality of the same product(s) previously supplied by the Supplier to BBBD; (f) is delivered after the date specified for delivery in the Purchase Order; (g) is subject to or may become subject to any claim, allegation, suit or dispute whatsoever including without limitation a claim, allegation, suit or dispute that the product(s) violates or infringes any trademarks, patents, industrial designs, copyrights or other intellectual property rights of any person; (h) does not correspond with the description of the products in the Purchase Order; or (i) does not otherwise comply with any covenant, warranty or other requirements of the Agreement, then BBBD may, in addition to any other remedies available at law or in equity or under Section 17(d), upon written notification to the Supplier: (A) return to the Supplier, at the Supplier’s risk and expense, all or any portion of the shipment that is unsatisfactory; or (B) refuse any portion of the shipment which is unsatisfactory and dispose of same at the Supplier’s expense, unless within ten (10) days after being notified by BBBD that the products are unsatisfactory the Supplier requests BBBD to return the unsatisfactory products to the Supplier, at the Supplier’s risk and expense. Notwithstanding clause (B) in the preceding sentence, BBBD is not required to return unsatisfactory product that has been transferred from an BBBD warehouse to an BBBD retail store or other Ship to Location and BBBD may, in its sole discretion and without Supplier’s approval, dispose of such unsatisfactory product, at the Supplier’s expense. Where BBBD exercises any remedy provided in this section, the Supplier shall fully indemnify BBBD for all costs including, without limitation, the Landed Cost of the product(s), the freight expenses incurred in returning the product(s) or any portion thereof and expenses incurred disposing the product(s) or any portion thereof. BBBD reserves the right to charge the Supplier a reasonable fee for inspecting and handling unsatisfactory products. “Landed Cost” means the total amount paid by BBBD to acquire the product, including the purchase price, transportation and freight charges and any taxes, levies, duties or charges BBBD is required by law to pay.
7. NON-COMPLIANCE WITH PURCHASE ORDER REQUIREMENTS: Without limiting Section 6 or any other remedies available to BBBD, the Supplier shall pay the applicable BBBD handling and administration fee if (a) the Supplier supplies product(s) that do not comply with this Purchase Order, (b) the Supplier supplies products that do not comply with the product information previously provided to BBBD, (c) the Supplier requests a change to this Purchase Order after this Purchase Order was issued. These handling and administration fees are set out in the BBBD Schedule for Non-Compliance to Purchase Order Terms and Conditions, which is available on the BBBD website.
8. CUSTOMER PRODUCT RETURNS: If, at any time, an BBBD customer returns an opened container(s) of the product to BBBD because the product is unsatisfactory for any reason, then the Supplier shall refund to BBBD the amount equal to the Landed Cost of the returned product(s), promptly after receiving written notification from BBBD to do so. This remedy is in addition to any other remedies available at law or in equity or under Section 17(e).
9. CANCELLATION OF PURCHASE ORDER: BBBD reserves the right to cancel the Agreement in whole or in part at any time without liability and at the Supplier’s expense and risk: (a) upon written notice to the Supplier, where the shipment or any part thereof is determined by BBBD to be unsatisfactory within the meaning of Section 6; (b) by giving fifteen (15) days written notice to the Supplier, where, for any reason beyond the control of BBBD including, without limitation, any reason relating to the marketing of the product(s), BBBD is unable to complete the purchase of the product; (c) upon written notice to the Supplier where the Supplier has failed to comply with any covenant, warranty or other provision of the Agreement including failure to adhere to the provisions of BBBD’s BBBD Listing Policy and Procedures as published from time to time, or (d) upon written notice to the Supplier where any product(s) has been ordered but has not yet been delivered to BBBD’s carrier, or applicable Ship to Location. Notice of cancellation may be given by fax, mail, personal delivery or email.
10. BBBD’S LISTING PROCEDURES AND REGULATIONS: The Supplier acknowledges and agrees that the sale of product is subject to the terms outlined within BBBD’s Product Lifecycle Management Manual . A copy of the above mentioned document may be obtained from BBBD upon request in writing. In the event that the terms of the Product Lifecycle Management Manual conflict with the terms in the BBBD Purchase Order Terms and Conditions, the terms in the BBBD Purchase Order Terms and Conditions will prevail.
11. NO PRICE DISCRIMINATION: The Supplier shall not sell any product(s) ordered to BBBD at a price (exclusive of taxes, duties and freight) which is higher than the price at which the product, in the same quantity, is being sold by the Supplier to another company’s purchasing body in USA; nor shall it sell any product(s) to BBBD upon terms and conditions respecting sale or delivery which are less advantageous that those offered to any other company’s purchasing bodies in USA; nor shall it in any other way discriminate against BBBD with respect to the sale of the product(s) ordered or any portion thereof. Should the Supplier breach this provision, it shall pay to BBBD on demand an amount equal to the difference between any amount(s) paid by BBBD to acquire the product(s) which is in excess of the amount(s) paid by another company’s purchasing body in USA to acquire such product(s).
12. PACKAGING AND LABELLING (PRE-PACKAGED PRODUCTS): All products must conform to the requirements established under (a) BBBD’s Product Lifecycle Management Manual , as published from time to time (the “BBBD’s Product Lifecycle Management Manual”), (b) the Bureau of Alcohol, Tobacco, Firearms and Explosives Product Identification Standards for use in the Distribution of Beverage Alcohol. Without limiting the foregoing, (a) all selling units must conform to the packaging and labelling requirements in BBBD Listing Procedures and Regulations, and (b) selling units must be packaged in shipping containers (cartons/trays) which meet or exceed the applicable requirements established under BBBD Listing Procedures and Regulations. The Packaging Standards prescribe minimum requirements for package design, strength and construction, in addition to applicable mandatory markings (including without limitation, UPC, shipping containers, EAN bar coding and labelling and standards for tamper evident packaging). Shipping containers must be sealed in a manner that will plainly show any evidence of tampering. No hay, straw or other fodder packing may be used in a shipment to Florida. The Packaging Standards are available on the BBBD website. If BBBD receives any products that do not comply with the Packaging Standards, then BBBD may, at its option, take corrective measures to bring such products into compliance with the Packaging Standards. The Supplier shall reimburse BBBD for all costs incurred by BBBD to bring such products into compliance with the Packaging Standards. BBBD reserves the right to charge the Supplier a reasonable fee for bringing such products into compliance with the Packaging Standards.
13. ADVERTISING MATTER, ETC.: Unless approved in advance by BBBD, advertising matter or novelties of any sort must not be enclosed in cases or attached to bottles (excluding approved neck tags and approved value-add items) or shipped in BBBD containers. Unsolicited shipment of non-alcohol items in BBBD containers is prohibited.
14. SHIPPING DOCUMENTATION: The Supplier shall provide shipping documentation for the products (“Shipping Documents”) for each shipment, including without limitation, a Bill of Lading, USA Customs invoice and a certificate of Origin and any other documents required to support a claim (where applicable) for preferred tariff treatment under any applicable international trade agreement. The Supplier shall ensure that all Shipping Documents are fully and accurately completed and are delivered to the carrier or freight forwarder at the time the products are shipped.
15. SHIPPING PALLET PATTERN: If a shipping pallet pattern is designated in the Purchase Order, then the Supplier shall ship the pallet configuration shown (cases per tier x number of tiers per pallet).
16. NOTICES AND COMMUNICATIONS: Any communications (including notices) that are required or permitted under the Agreement may be given electronically by e-mail. The parties agree that communications given in such manner are acceptable as a signed writing.
17. INDEMNITIES: The Supplier shall indemnify and save harmless BBBD, its board members, officers, employees, customers, agents, representatives and persons it authorizes to sell the product(s) from and against all liabilities, losses, suits, claims, demands, damages, including consequential damages, and expenses of every kind (including, without limitation, legal fees on a solicitor client basis) arising in any manner from or connected with (directly or indirectly): (a) its breach of any covenant, warranty or other provisions of the Agreement; (b) any defect with respect to the product(s), irrespective of the time when same is discovered; (c) any violation or infringement by the product(s) or the Supplier of any trademarks, patents, industrial designs, copyrights or other intellectual property rights of any person including without limitation from any allegations of such infringement or violation which are made by any person even if such allegations are false; (d) the manufacture, production, shipment or delivery of the products by the Supplier and any of its employees, agents and subcontractors; (e) product(s) which is determined by BBBD to be unsatisfactory within the meaning of Section 6; and (f) the negligence or other wrongdoing of the Supplier and any of its employees, agents and subcontractors including the violation of any applicable laws.
18. WARRANTIES: The Supplier warrants that: (a) the products are of good and merchantable quality and will comply with the provisions of this Purchase Order; (b) the products are fit for the purpose for which the products are intended to be used; (c) the products are transferred to BBBD with good title free and clear of liens, encumbrances and rights of others; and (d) neither the Supplier nor the products shall violate or infringe the trade marks, patents, industrial designs, copyrights or other intellectual property rights of any other person. The foregoing warranties are in addition to and shall not derogate from, any express warranty of the Supplier or any other right or remedy which BBBD may have under applicable law.
19. TITLE: Title to and risk of the product(s) shall pass to BBBD upon delivery of the product(s) to the delivery point specified in this Purchase Order and (a) acknowledgment of receipt by BBBD at the BBBD warehouse; or (b) acknowledgment of receipt by BBBD’s customer (on behalf of BBBD) at the Ship to Location. Any such acknowledgment shall not constitute acceptance of the product(s). These provisions shall not limit BBBD’s rights and remedies under the Agreement. The supplier will procure all necessary export permits or licenses at the Supplier’s expense.
20. ASSIGNMENT: The Agreement and the rights and obligations thereunder may not be assigned, subcontracted, transferred, or ceded by operation of law or otherwise without the express consent of BBBD which may be withheld in its sole discretion. For wholesale orders, the Supplier may engage subcontractors for delivery of products. The Supplier is responsible for all acts and omissions of its subcontractor(s). The use of a subcontractor does not relieve the Supplier from any liability or obligation under this Agreement.
21. TIME OF ESSENCE: Time shall be of the essence with respect to this Agreement.
22. APPLICABLE LAW: The Agreement shall be governed by the laws of Florida and USA, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any legal proceeding relating to the Agreement shall be submitted to the exclusive jurisdiction of the Courts of Florida, USA.
23. REMEDIES CUMULATIVE: The provisions of the Agreement, and the rights and remedies of the parties under the Agreement are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity; no exercise by a party of any one right or remedy under the Agreement, or at law or in equity, shall operate so as to hinder or prevent the exercise by it of any other right or remedy. No waiver of a breach of any provision herein shall constitute a waiver of any other breach of such provision.
Section B. Additional Terms and Conditions for products purchased by BBBD for sale through its retail channels (The terms and conditions in Section B below are in addition to the terms and conditions in Section A).
27. STALE-DATING/TIME-SENSITIVE PRODUCTS: Upon receipt of product, BBBD will inspect to ensure a minimum of 75% of the product’s original shelf-life remains. Products with a stated shelf life of 6 months or less must have a minimum of 75% upon receipt. Products with a stated shelf life greater than 6 months must arrive with a minimum of 5 months remaining. BBBD will complete a monthly date sensitive review and forward all products in jeopardy of stale-dating to the appropriate agent/supplier. Category Management will discuss options to prevent stale-dating with the agent/supplier including, but not limited to: LTOs, sampling, and increased store distribution. If the product stale-dates and we are required to destroy and discard the product, the agent or supplier will be billed the duty paid landed case cost in addition to the disposal cost for each case destroyed.
28. CONFIRMATION BY SUPPLIER: Within one (1) Business Day of the Supplier’s receipt of the Purchase Order, the Supplier shall provide BBBD with confirmation of receipt and ability to supply and deliver the products specified in the Purchase Order, failing which the Supplier will be deemed to have confirmed and accepted the Purchase Order.
29. DELIVERY TO BBBD CUSTOMER: Where an BBBD customer and Ship to Location are set out in the Purchase Order, the Supplier shall deliver the product(s) directly to such BBBD customer at such Ship to Location. Unless otherwise agreed to in writing by BBBD, all delivery costs are included in the price of the product(s). The Supplier shall deliver the product(s) in accordance with the delivery instructions set out, provided that if no delivery date is provided, the Supplier shall deliver the product(s) no later than fourteen (14) days from the date of this Purchase Order. Prior to any delivery to an BBBD customer, the Supplier must confirm the quantities and SKUs being delivered to BBBD no later than twenty-four (24) hours prior to delivery. Deliveries made to BBBD customers without notice to the BBBD may be refused by BBBD customers. Where required by BBBD, the Supplier shall provide BBBD with the information reasonably requested by BBBD to track such deliveries. Where an BBBD customer and Ship to Location is set out in the Purchase Order, the Supplier is solely responsible for the delivery of products and the BBBD will not accept any costs, charge, surcharges, penalties or fines relating to the delivery of products by the Supplier.
30. SUPPLIER INSURANCE: Supplier’s insurance coverage requirements set forth in this Section 30 are not intended to, and will not, in any manner, limit or qualify the obligations and liabilities of Supplier under any Order or these Terms and Conditions.
30.1 General. During the term of any Order, Supplier will maintain, at its own expense, with an insurer or insurers having a current rating by AM Best of A-VIII or higher, the following insurance coverages:
30.1.1 Commercial General Liability. Commercial General Liability, or other comparable broad form general liability coverage that includes coverage for personal injury (including death), property damage, advertising, products-completed operations and liquor liability (if applicable) and contractual liability in the minimum amount of $1,000,000 per occurrence/$2,000,000 general aggregate.
30.1.2 Workers’ Compensation. Workers’ Compensation insurance in amounts equal to the statutory limits as required by the laws in the state which the Services are performed or the Goods are to be provided and Employer’s Liability insurance in the amount of $1,000,000/$1,000,000/$1,000,000 or lower limits that are adequate to meet underlying limits requirements of Supplier’s Umbrella or Excess Liability policy.
30.1.3 Automobile Liability. If Supplier uses a vehicle to perform its obligations under any Order, then Supplier will maintain automobile liability insurance covering owned, non-owned, leased, hired or borrowed vehicles with a bodily injury and property damage combined single limit in the amount of no less than $1,000,000 per occurrence; or, if limits are obtained on a per person and per accident basis, not less than $1,000,000 per person and per accident for bodily injury and $1,000,000 per accident for property damage.
30.1.4 Umbrella Liability. Supplier must also provide follow form Umbrella/Excess Liability with limits of no less than $5,000,000.
30.1.5 Professional Liability. If applicable, Professional Liability insurance covering liability arising out of negligent acts, errors or omissions including, without limitation, trademark and copyright infringement in the rendering of the professional services to be provided under any Order with policy limits in amounts no less than $1,000,000 per occurrence and $2,000,000 aggregate.
30.2 Required Limits. Supplier may meet insurance requirements through separate, combination or package policies if those policies meet the required limits and the required scope of coverage. Umbrella and/or Excess Liability policy limits may be accepted to meet the required limits and the required scope of insurance. The insurance coverage and limits required to be maintained by Supplier will be primary and non-contributory to insurance coverage, if any, maintained by Buyer.
30.3 Additional Insured. Buyer, its affiliates, subsidiaries and their respective directors, officers, employees, agents and, when applicable, Buyer’s landlords (including their respective successor and assigns) will be an additional insured, by specific endorsement, for Supplier’s Commercial General Liability coverage, Automobile Liability coverage, and Umbrella or Excess Liability coverage.
30.4 Certificates of Insurance. 15 days prior to the start date for performance under any Order, Supplier will furnish to Buyer certificates of insurance that evidence the required insurance. Within 30 days before the expiration of the insurance coverage required by any Order, Supplier will provide to Buyer certificates of insurance that evidence renewal or continuation of the required insurance policies.
30.5 Waiver of Subrogation. It is expressly understood and agreed that the insurer waives and releases all rights of subrogation and or recovery for all damages against Buyer and its officers, directors, board members, affiliates, subsidiaries and employees in connection with any payments made under the Workers’ Compensation, General Liability, Automobile Liability and Umbrella policies. Supplier will require similar waivers from its respective subcontractors and consultants. Supplier will require that each of its insurance policies required under any Order and any applicable documentation in connection an Order, include an express waiver of subrogation as set forth in this Section 30.5.
30.6 Change in Insurance. All insurance policies will contain a provision stating that coverage will not be cancelled, non-renewed or materially changed until at least 30 days’ prior, written notice has been given to Buyer.
30.7 Maintenance of Insurance. The insurance provisions of these Terms and Conditions are of the essence. Failure of Supplier to maintain the insurance coverages constitutes a material breach of these Terms and Conditions and will give Buyer the right to terminate all outstanding Orders immediately.