Custom Build Purchase Agreement (the “Agreement”)
Last Updated December 16, 2019
A Cigar Advocate Inc. ("we", "us" or "our") is a corporation formed pursuant to the Business Corporations Act R.S.O. 1990, CHAPTER B.16 in Ontario, Canada. Upon checking the acceptance box on our website for this Agreement, you are entering a binding agreement with us.
This Agreement applies to all orders for cabinet humidors and ashtray products.
We charge a USD $150.00 plus HST fee (“Admin Fee”) to prepare a customized quote which will set out the details of the products we will supply to you (the “Products”) and their corresponding prices. Cabinet humidor and ashtray orders which you add to your cart and purchase directly on our website do not incur an Admin Fee, however, for the purpose of this Agreement they shall be included in the definition of “Products”.
As part of our Products, and depending on the details of your order, we may build in a humidification system manufactured by a third party (“Third Party Humidification Systems”). See our FAQ webpage for details on which Third Party Humidification Systems we currently design our cabinet humidors for. For greater clarity, we do not manufacture the Third Party Humidification Systems, nor do we make any representations or warranties in respect of the Third Party Humidification Systems. You order and use such Third Party Humidification Systems at your own risk.
Acceptance of Quote. Following the payment of your Admin Fee, we will prepare your custom quote and send you a copy by email and/or upload it for acceptance. You may accept our quote by a responding email within 60 days or as otherwise indicated on the quote. In the event of any misprints or errors in our quote, we reserve the right to; (i) correct any error, inaccuracy or omission at any time; (ii) change, at any time, the prices, fees, duties, taxes, charges and specifications; and (iii) reject, correct, cancel or terminate any order, including accepted orders, for any reason. In the event we change or update any such information, your consent will be requested prior to us proceeding with fabricating or shipping your order.
Payment Terms. Once you accept our quote and fees and wish to proceed with fabricating your order, subject to our express agreement otherwise, we require payment in full for all Products, taxes, shipping charges, duties and fees. In the event we ship any Products to you in advance of receiving full payment, or we incur additional shipping fees, taxes, duties or other charges in relation to your order, which are your obligation to pay, you agree that interest shall accrue on all unpaid balances commencing the day the Products leave our facility, or the day we invoice you, whichever is later, at a rate of 1.5% per month, calculated and compounded monthly, not in advance, on the outstanding balance.
You agree that we shall be authorized to bill and charge your credit card, or other payment method, in accordance with the terms of this Agreement and the orders you place with us, whether via our Website or otherwise. In the event we do not charge the entire balance of your order as and when it is placed, you agree that may bill your credit card with progress payments during the fabrication process with the balance due prior to delivery. We will invoice accordingly.
Lead Times. You agree that any delivery dates provided by us, or any third party, shall be estimates only. While we cannot guarantee shipping or delivery times, following the receipt of your payment in full, our ashtrays typically have a fabrication lead time of 4-6 weeks and our cabinet humidors typically have a fabrication lead time of 12-14 weeks. Once fabrication is complete, shipping times vary depending on your shipping address.
Sub-Contracting. You agree that we may sub-contract all or any portion of a custom build project.
Shipping, Customs, Taxes and Duty. In some cases, our quotes and online order forms may offer free shipping. However, unless our quote or online order form displays free shipping, all shipping costs shall be at your expense and will be additional to any amounts quoted.
Regardless of whether our quote or online order form offers free shipping, all customs fees, duty, taxes and similar charges will be added to your order. Notwithstanding the amounts quoted to you, orders to be delivered outside of Canada may be subject to additional taxes, duty and customs charges at the time of delivery. You agree to pay any such additional customs fees, duty, taxes or similar charges.
Once your Products are placed in the possession of a shipper or carrier, we shall be deemed to have completed good delivery to you. You shall be responsible for all loss or damage to the goods, howsoever caused, and you assume all of the obligations and risks as the owner of the Products during shipment. Please contact us if you would like to arrange for insuring the products while in transit.
Failure to Accept Products on Delivery. If you reject delivery of the Products ordered from us, or otherwise fail to accept delivery of the Products, you agree to pay for all related and additional shipping fees, duties, taxes and other charges arising from such failure to accept delivery. Further to our cancellation and return policy (below), no refunds will be issued to you, even in the event your Products are returned to us. After such failure to accept delivery of the Products, it shall be your responsibility to pay for and arrange a new shipping date for the Products.
Delays Outside our Control. If our ability to supply the Products is curtailed or limited, directly or indirectly, by an act of god, act of public enemy, acts of governmental bodies or agencies foreign or domestic, sabotage, riot, fire, floods, typhoons, explosions or other catastrophes, epidemics or quarantine restrictions, labour unrest, or labour shortages, accident, freight embargoes, delays occasioned by carriers or delays of a supplier, or because of any other cases beyond our control, in whole or in part, our failure to ship the Products to you shall not constitute a breach or failure of performance hereunder for the period of time occasioned by any such occurrence.
CANCELLATION AND RETURN POLICY. UNFORTUNATELY, DUE TO THE CUSTOM NATURE OF THE PRODUCTS, AND THAT WE MAKE THEM TO ORDER, ONCE WE COMMENCE FABRICATING YOUR ORDER, WE DO NOT ACCEPT ANY ORDER CANCELLATION, PRODUCT RETURNS OR PRODUCT EXCHANGES.
WE DO NOT ACCEPT RETURNS OR EXCHANGES FOR ANY THIRD PARTY HUMIDIFICATION SYSTEMS. YOU MUST CONTACT THE MANUFACTUERER DIRECTLY TO ADDRESS ANY QUESTIONS, CONCERNS OR ISSUES WITH YOUR THIRD PARTY HUMIDIFICATION SYSTEM.
Limited Warranty. We offer a limited one (1) year warranty against manufacturing defects for the Products. Product damage associated with misuse, alteration, accident, normal wear and tear or scratched surfaces, after the Products have left our possession, do not qualify as a manufacturing defect. The warranty granted above is non-transferrable and only provides coverage to you, as original purchaser. All warranty claims will be determined in our sole discretion. If you wish to submit a warranty claim, please contact us at email@example.com. We will require that you submit photos of the Product before we make a determination on your warranty claim. All shipping fees related to a warranty claim, to return your Products to us, and for us to redeliver the Products to you, are your responsibility. We reserve the right to hold back the return of your Products in the event you fail to pay for such shipping costs. Except for the limited warranty provided above, all Products are provided "as is" without any other warranty, including all implied warranties and conditions of merchantability, workmanship and fitness for a particular purpose. To the fullest extent permitted by law, we hereby disclaim all other warranties and conditions of any kind, whether express, implied or statutory.
The above limited warranty does not apply, and we do not offer any warranty coverage, for any Third Party Humidification Systems built into the Products. You must contact the manufacturer directly to inquire about the terms of any product warranties they may offer.
LIMITATION ON LIABILITY. YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE, HOWSOEVER CAUSED, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, REGARDLESS OF LEGAL THEORY TO ESTABLISH LIABILITY (INCLUDING NEGLIGENCE OR OTHERWISE) AND WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER THOSE DAMAGES WERE FORESEEABLE OR NOT.
IN ADDITION TO YOUR AGREEMENT TO NOT HOLD THE ABOVE ENTITIES AND PERSONS LIABLE FOR ANY DAMAGES, IN THE EVENT A COURT OR ARBITRATOR OF COMPETENT JURISDICTION DECLINES TO UPHOLD SAID CLAUSE, YOU AGREE THAT IN NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO OUR PRODUCTS, OR IN ANY WAY RELATED TO THIS AGREEMENT, BE MORE THAN THE AMOUNT PAID BY YOU TO US FOR THE PRODUCTS.
YOU AGREE AND ACKNOWLEDGE THAT WE WOULD NOT ENTER INTO THIS AGREEMENT OR MAKE OUR PRODUCTS AVAILABLE FOR SALE TO YOU WITHOUT THESE RESTRICTIONS AND LIMITATIONS ON OUR LIABILITY.
INDEMNIFICATION AND HOLD HARMLESS. YOU AGREE TO INDEMNIFY US, OUR AFFILIATES, EMPLOYEES, SHAREHOLDERS, DIRECTORS, AGENTS, REPRESENTATIVES AND CONTRACTORS, AND TO DEFEND AND HOLD EACH OF THEM HARMLESS, FROM ANY AND ALL CLAIMS AND LIABILITIES (INCLUDING REASONABLE LEGAL FEES) WHICH MAY ARISE FROM (I) YOUR BREACH OF THIS AGREEMENT; OR (II) ANY CLAIM FROM A THIRD PARTY RELATED, IN ANYWAY, TO YOUR USE, MISUSE OR NEGLIGENT USE OF OUR PRODUCTS.
Law of the Contract & Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada and all Canadian federal laws applicable therein, without giving effect to any principles of conflicts of law. You agree that any action, application or dispute at law or in equity arising out of or relating to this Agreement or any document incorporated by reference, will be filed only in the provincial or federal courts or tribunals located in Ontario, Canada and you hereby consent, submit and attorn to the jurisdiction of such courts and tribunals for the purposes of litigating or resolving any such disputes. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply and is strictly excluded.
Severability. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Entire Agreement. This Agreement, along with the documents incorporated by reference, is the entire agreement between the parties relating to the matters contained herein and shall not be modified except in writing, signed by a duly authorized representative of A Cigar Advocate Inc.
No Construction Against Drafter. If any ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship.
Waiver of Class Proceedings. To the fullest extent permitted by law, you agree to hereby waive your right to participate in any class action lawsuits against us, our contractors, employees, shareholders, successors, assigns and directors.
Binding Nature of Agreement. This Agreement shall be binding upon and enure to the benefit of the successors and assigns of both parties.
No Waiver. Our failure to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
Custom Build Purchase Agreement (the “Agreement”)