ITEMS PURCHASED. Seller agrees to offer Buyer a non-exclusive Agreement, the following products (the "Goods") in accordance with the terms and conditions of this Agreement as described in the attached proposal
PRICING AND ORDERS. Products will be ordered at prices and quantities as agreed to by the parties and subject to the terms and conditions of sale and shipment established by the Seller from time to time and in effect at the time Seller accepts the order. The Seller reserves the right to change prices upon reasonable notice to Buyer for subsequent purchases. The Seller agrees to exercise commercially reasonable best efforts to supply Products to the Buyer in a timely fashion.
Buyer agrees that the Seller may have to replace certain cigars in out-of-stock situations and replace them with similar items as deemed appropriate by the Seller and will always attempt to keep the price of the replacement cigar(s) to within 10% of the original cigar. The Seller promises to substitute only with products that are equally as desirable, or more so, primarily using cigars of the same brand and same line – just a different size.
Buyer agrees that the price mentioned in the proposal attached to this Agreement does not include shipping fees (if applicable).
GENERAL CIGARS CATALOG & LUXURY BRANDS CATALOG. There is a minimum order of $200 from either the General Cigar Catalog (“GCC”) or the Luxury Brand Catalog (“LBC). Free ground shipping on orders of 15 or more premium boxes from the GCC (No bundles, cigarillos, machine-mades, minis, mini flavored, etc.) Does not apply to humidors & accessories. Cannot be combined with cigars from LBC. LBC cigars are all special order items that are shipped separately from GCC and incur separate shipping charges. LBC cigars do not count towards the free shipping on a regular order of GCC cigars. LBC orders qualify for free shipping with purchase of 8 or more LBC boxes. Additionally, these items frequently experience backorders and will take additional time for delivery.
TAXES. The parties agree that payment of any taxes levied on the Products (other than taxes based on income) shall be the Buyer's responsibility (including, without limitation, federal, state, local, use, OTP, tobacco or similar taxes), and the Buyer shall report and pay such taxes to the appropriate taxing authority as required by law. The Seller’s prices shall never include any of these aforementioned taxes.
TITLE/RISK OF LOSS. All Products shall be sent in accordance with the Sellers then current shipping policies, including, without limitation, the use of cartons bearing external art work or labels as designated by the Seller. Buyer shall pay reasonable shipping costs in accordance with its shipping instructions based on weight and delivery location The seller shall be responsible for packaging, shipping and safe delivery and shall bear all risk of damage or loss until the goods are delivered to the Buyer's address.
PAYMENT. Payment shall be made to Seller prior to shipment of order to Buyer either by credit card, wire transfer, direct deposit or cash. Buyer agrees that the Seller may charge a credit card fee on orders paid with credit cards approximate to the prevailing Visa/Mastercard/American Express charged to the Seller.
ADDITIONAL EXPENSES. This Agreement binds the Buyer to at least the (1) proposal amount plus (2) applicable shipping and (3) credit card fees (if applicable). These three (3) items are known as the Total Purchase Price. If the actual amount exceeds the Total Purchase Price then the Buyer has the right to return any inventory they desire to bring the final amount back to the Total Purchase Price as long as the Buyer adheres to the other terms in this Agreement regarding restocking fees if boxes have been opened. The Buyer shall have four (4) business days to notify the Seller that they will be returning any unwanted inventory and then will have up to ten (10) business days to have the products returned back to the Seller.
EXCHANGE POLICY. To qualify the Buyer must have purchased at least 12 brands of cigars on their initial order. Buyer must purchase a different box of cigars for each box they send back (using their credit). There will be a 10% restocking fee. Only cigars that have been recommended by MDC Wholesale Cigars are backed by this program. Buyer may only exchange up to 20% of their overall inventory each month (IE: if Buyer purchased 20 boxes then they can exchange up to 4 boxes every 30 days.) Seller will round up or down if Buyer qualifies for more or less than a full box. Boxes may not have less than 10 cigars left in the box to qualify for exchange.
Buyer is responsible for cost of shipping cigars back to MDC Wholesale Cigars.
Cigars must be returned in their original box (in good condition) and the cigars must be properly humidified and in sellable condition. If the cigars are dry and/or are cracked or in any way show signs of wear and/or abuse they will not be accepted back and it will be the Buyer’s responsibility to have them returned to the Buyer.
PAYMENT TERMS. If Buyer completes a credit application and is approved by the Seller then the the Buyer has 30 days from the date that the shipment is received to make sure that their payment is received by the Seller. Payments will be sent to 13963 E Princeton Place, Stuite B, Aurora, Colorado 80014.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 10 percent per month, or the maximum percentage allowed under applicable laws. The Buyer shall pay all costs of collection, including without limitation, attorney fees.
In addition to any other right or remedy provided by law, if the Buyer fails to pay for the Goods when due, MDC Wholesale Cigars has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
BOUNCED CHECKS. If Buyer’s check should bounce, the Seller shall be entitled to a $35 bounced check fee. Interest shall accrue as stated in the section entitled Payment Terms.
SHIPPING POLICY. Orders take 24 hours to process once the exact inventory has been agreed upon and in-stock status has been verified. Orders may be delayed due to out of stock items while we attempt to contact the Buyer for approval on replacement items. If Buyer pays for expedited shipping then the Buyer agrees that delays may occur until proper inventory is established.
WARRANTIES. Buyer shall be entitled to any manufacturer warranties generally offered in connection with the products, subject to their terms and enforceability. MDC Wholesale Cigars warrants that the Goods shall be free of substantive defects in material and workmanship.
MDC WHOLESALE CIGARS SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF MDC WHOLESALE CIGARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MDC Wholesale Cigars's liability, if any, for defective Goods, is limited to replacement, repair or refund of the defective Goods, at MDC Wholesale Cigars's option.
MDC Wholesale Cigars agrees to indemnify, hold harmless, and protect its affiliates, successors, assignees, customers, and users from any and all claims, demands, suits at law or equity, and all expenses including attorneys' fees, involving infringement or alleged infringement of any patent, trademark, or copyright resulting from the purchase, use, or sale of the Goods.
INSPECTION. The Buyer, upon receiving possession of the Goods, shall have a reasonable opportunity to inspect the Goods to determine if the Goods conform to the requirements of this Agreement. If the Buyer, in good faith, determines that all or a portion of the Goods are non-conforming, the Buyer may return the Goods to the Seller at the Buyer's expense. The Buyer must provide written notice to the Seller of the reason for rejecting the Goods. The Seller will have 21 days from the return of the Goods to remedy such defects under the terms of this Agreement.
The Buyer will have the right to inspect the goods upon receipt, and within four (4) business days after delivery, Buyer must give notice to Seller of any claim for damages on account of condition, quality, or grade of the goods, and Buyer must specify the basis of the claim in detail. Failure of Buyer to comply with these conditions will constitute irrevocable acceptance of the goods by Buyer.
RETURNS. Returns will be accepted at the Seller’s discretion. Buyer must notify prior to returning any items. Cigars may not be returned after 21 days for any reason as Buyer cannot guarantee that the cigars have been kept fresh by the Buyer. Though this is not to be held as the exclusive reason for this 21 day policy. If Seller agrees to take any inventory back outside of the parameters of this Agreement, then the Buyer shall be charged a 20% restocking fee on all unopened items (25% on any opened items). Seller shall have 14 days to issue refund.
DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The bankruptcy of either party.
REMEDIES ON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may elect to cancel this Agreement if the default is not cured within 5 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default.
ARBITRATION. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties.
All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
CONFIDENTIALITY. Both parties acknowledge that during the course of this Agreement, the Seller may obtain confidential information regarding the Buyer’s business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Upon request by an owner, all documents relating to the confidential information will be returned to such owner.
DUTY TO COOPERATE. The Buyer will cooperate with any requests from the Seller regarding governmental inquiries or investigation requests.
NOTICES. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
FORCE MARJEURE. Seller may, without liability, delay performance or cancel this Contract on account of force majeure events or other circumstances beyond its control, including, but not limited to, strikes, acts of God, political unrest, terrorism, embargo, failure of source of supply, or casualty.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Colorado.