Terms & Conditions
Non-Wholesale Customer Terms and Conditions
- Order Process; Acceptance; Additional or Conflicting Terms.
(b) All orders submitted to Seller for Products, whether through the Website or otherwise, are subject to final acceptance by Seller and no orders are binding upon Seller until so accepted. Seller’s acceptance may be in writing, including without limitation via email or an order confirmation generated from the Website, or by delivery of the Products to Buyer. Buyer is solely responsible for proper selection of the Products. Seller may change an order at any time without recourse to correct any mathematical, clerical or other errors.
(c) Every sale of Products shall be exclusively governed by the Contract. In no event shall Buyer’s terms apply to, nor shall Buyer’s proposed additional or different terms modify, the Contract. Seller hereby objects to and rejects any additional or different terms or conditions proposed by Buyer or contained in any order or other correspondence from Buyer, regardless of any knowledge Seller may have of such terms, and such terms shall not bind Seller. The Contract supersedes any commercial documents issued by Seller. No other terms or changes, modifications, amendments or waivers of any terms in the Contract shall apply to Seller unless in writing and signed by an authorized officer of Seller.
- Accuracy of Information.
Although it is Seller’s goal to produce clear, concise and accurate content, free of errors on its Website, as the content is created and posted by humans, there may be errors or irregularities that occur from time to time, including without limitation with respect to the pricing, description or specifications of Products. Seller assumes no responsibility for any such errors or the possibility of omissions, and Seller hereby reserves the right to: (a) revoke or retract any offer that has been published or stated on the Website; (b) edit and correct any inaccuracies, errors, or omissions; (c) make any necessary edits, revisions or changes to published prices, promotions, content, descriptions of Products, or to any other variety of printed information on the Website; and (d) refuse or cancel any orders placed for Products listed at the incorrect price or otherwise in error, whether or not the order has been confirmed by Seller and Buyer’s credit card has been charged, provided, if Buyer’s credit card has already been charged for the purchase and the order is canceled, Seller shall issue a credit to Buyer’s credit card account in the amount of the charge.
(a) Prices for Products are subject to change without notice. Seller reserve the right, at any time and from time to time, to modify or discontinue Products (or any part or content thereof) without notice. Seller shall not be liable to Buyer or to any third-party for any modification, price change, suspension or discontinuance of any Products.
(b) The price listed for Products on the Website does not include any sales, use, personal property, excise, transfer or other tax, duties or assessment related to the Products or their purchase and sale (including without limitation nicotine tax), which may be imposed by any governmental authority, all of which shall be the sole obligation of, and paid by, Buyer.
- No Set Off.
Buyer shall not have the right to set off any obligation of Seller to Buyer against any obligation of Buyer to Seller.
All deliveries of Products shall be made in accordance with the Contract. Seller may make partial deliveries. Any such partial delivery shall not give the Buyer any right to reject the Products delivered or to claim damages and the Buyer shall be obliged to accept and pay for the quantity of Products delivered. Any shipping or delivery date referenced on the Website is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason.
- Reviews and Comments.
- Prohibited Use of Website.
In addition to other prohibitions as set forth in the Contract, Buyer is prohibited from using the Website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Website or any related website, other websites, or the Internet. Seller reserves the right to terminate Buyer’s use of the Website or any related website for violating any of the above prohibited uses.
- Disclaimer of Warranties; Limited Remedy.
- Order Cancellation.
(a) Seller may, in its sole discretion, limit or cancel Product quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that Seller makes a change to or cancels an order, Seller may attempt to notify Buyer by contacting the e-mail and/or billing address/phone number provided at the time the order was made. Seller reserves the right to limit or prohibit retail orders that, in its sole judgment, appear to be placed by dealers, resellers or distributors.
(b) Without limiting Seller’s other rights and remedies available under the Contract and/ or applicable law, Seller may suspend or terminate performance and delivery, if (i) Buyer becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; (ii) Buyer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of Buyer’s property; or (iii) Buyer fails to perform or observe any of its obligations to Seller under the Contract, including without limitation payment of any purchase price, fees or charges as and when due.
- Buyer Representation and Indemnity.
- Buyer will comply with all applicable laws and regulations regarding his, her, or its performance under the Contract and the use, transfer, or other disposition of the Products sold under the Contract, including without limitation all state and local laws of the Buyer’s residence, export or import control laws or regulations, any Office of Foreign Asset Control (OFAC) prohibitions, and the United States Foreign Corrupt Practices Act. Buyer will obtain any necessary licensing required under any applicable export or import control law or regulation, and Buyer will not require performance hereunder prior to providing proof of any required license. Buyer will not require the performance of the Contract in such manner that would violate any export or import control law or regulation. Buyer is not a non-U.S. governmental agency or instrumentality, an official of a political party, or a candidate for political office. No governmental official, and no official of any governmental agency or instrumentality is or will become associated with, or will own or presently owns an interest, whether direct or indirect, in Buyer or has or will have any legal or beneficial interest in the Contract or the payments to be made hereunder.
Buyer agrees that any product intended for human use made with the Products sold under the Contract shall be packaged for end use with all required warnings and all required warning labels. Further, to the fullest extent permitted or not prohibited by law, Buyer agrees to indemnify, defend and hold Seller, its members, affiliated and subsidiary companies, and such entities’ respective officers, directors, shareholders, agents and employees, and such individuals’ and entities’ successors and assigns (individually or collectively, the “Seller Parties“), harmless from and against any and all losses, costs, damages, fines, fees, claims, liabilities, lawsuits, arbitrations, penalties, expenses, settlement costs, and obligations of every kind and description (including without limitation reasonable attorneys’ fees), contingent or otherwise (individually or collectively, the “Claims“), which are paid, incurred, suffered by or asserted, either directly or indirectly, against the Seller Parties, which arise out of or relate, directly or indirectly, to (i) Buyer’s breach of the Contract, (ii) any allegation or claim of violation by Buyer or by any subsequent purchaser and/or user of Products sold under the Contract, or any purchaser and/or user (or anyone claiming by, through or under Buyer or any subsequent purchaser and/or user) of any product incorporating Products sold under the Contract, of any applicable law or regulation (including, without limitation, in connection with the sale, use or other disposition of the Products sold under the Contract), (iii) the negligence, intentional act or strict liability of Buyer, its agents and employees (including, without limitation, claims alleging economic loss, bodily injury or death, or injury to or destruction of tangible property, including the loss of use resulting there from), and/or (iv) any and all claims of every kind and description arising out of or relating to the subsequent use, sale or other disposition of the Products sold under the Contract, including without limitation product liability claims. At Seller’s request, Buyer shall defend Seller, at Buyer’s expense, against any such Claims made against Seller.
Buyer warrants that all information provided to Seller is true and accurate, and acknowledges that Seller is relying upon such information in relation to the provision of Products under the Contract.
- Force Majeure.
Seller shall not be liable, and performance shall be deemed extended, for delays or failure to perform directly or indirectly resulting from events and causes beyond its commercially reasonable control, including, but not limited to, accidents, acts of God, acts and omissions of any governmental authority, declared or undeclared wars, terrorism, explosions, strikes or other labor disputes, fires and natural calamities, including floods, hurricanes, earthquakes, storms and epidemics, changes in the law, and delays in obtaining (or the inability to obtain) labor, materials or services through usual sources at normal prices. If Products, or labor, materials or services for producing Products, are not available through Seller’s usual sources at normal prices, as determined in Seller’s sole discretion, then Seller may (a) allocate its supplies among its customers, including those not under contract, in any reasonable manner without liability to Buyer, or (b) terminate unilaterally and without recourse by Buyer, any affected Product orders.
- Confidential Information.
In connection with the offer for sale and the sale of Products to Buyer, Seller may disclose to Buyer, or the Buyer may otherwise be exposed to, confidential business information and certain trade secrets of the Seller, including without limitation prices of Products, technical data, and methods of business operations (collectively, “Confidential Information”). Buyer shall maintain the confidentiality of the Confidential Information and not to disclose, or permit to be disclosed, any of the Confidential Information to third parties and not to disclose, use or permit to be disclosed any Confidential Information for any purpose unrelated to the sale of the Product pursuant to the Contract.
- Intellectual Property.
- Risk of Loss.
The risk of loss and title for all Products purchased by Buyer pass to Buyer upon Seller’s delivery of the items to the carrier.
Seller is an independent contractor. Nothing in the Contract shall be construed as creating a partnership, association or joint venture between Seller and Buyer.
- No Waiver; Severability.
Any failure by Seller to exercise any of its rights under the Contract shall not be construed as a waiver of such rights. In the event that any provision or portion of the Contract shall be determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining portion of such provision and the remaining provisions of this Agreement shall be unaffected thereby, and shall remain in full force and effect.
Without limiting Seller’s other rights and remedies available under the Contract, applicable law, or in equity, Seller may terminate the Contract without recourse by Buyer, or suspend performance and delivery under the Contract without recourse by Buyer, if Buyer fails to perform or observe any of its obligations to Seller under the Contract or under other existing or future contracts between Seller and Buyer or otherwise, including payment of any purchase price, fees or charges as and when due.
- WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE BUYER AND SELLER, BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE TRANSACTIONS GOVERNED BY THE CONTRACT.
- Choice of Law; Venue.
The Contract conclusively shall be deemed to have been made and entered into in the State of North Carolina U.S.A., and shall be governed by and construed in accordance with the laws of such jurisdiction, exclusive of conflicts of law principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties agree that the General Court of Justice for the State of North Carolina and the United States District Court for the Eastern District of North Carolina, in each case located in Wake County, North Carolina, shall constitute the sole and exclusive judicial forum(s) and venue and, therefore, shall have sole and exclusive jurisdiction over the adjudication and resolution of any and all disputes or controversies arising out of or relating to the Contract, including without limitation the purchase and sale of Products. Buyer and Seller hereby irrevocably consent and submit to the exercise of personal jurisdiction over them by the General Court of Justice for the State of North Carolina and United States District Court for the Eastern District of North Carolina, in each case located in Wake County, North Carolina.
- Waiver of Class Action Rights.
BUYER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS HE, SHE, OR IT MAY HAVE TO JOIN CLAIMS WITH THOSE OR OTHERS IN THE METHOD OF A CLASS ACTION SUIT OR ANY OTHER SIMILAR PROCEDURAL DEVICE. ANY CLAIMS WHICH MAY HAVE ARISEN AS A RESULT OF, IN RELATION TO, OR IN CONNECTION WITH THE CONTRACT, MUST BE ASSERTED ON A STRICTLY INDIVIDUAL BASIS.
- Non-Assignment; Entire Agreement.
Buyer may not assign all or any portion of its rights or obligations under the Contract without Seller’s prior written consent, and any attempted assignment without that consent shall be void. The Contract contains the entire agreement of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, usages of trade and courses of dealing, whether written or oral.