PCI RETAILER AGREEMENT
VENDOR: RETAILER:
PREMIUM CIGARS INTERNATIONAL, LTD. EXPRESS STOP, INC.
00000 Xxxx Xxx Xxxxx, Xxxxx #000-000 0000 X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
000-000-0000 (OFFICE) 000-000-0000 (FACSIMILE) 602-267-1211 (office) 000-000-0000 (fax)
800-PCI-1001 (TOLL-FREE)
Effective Date: April 29, 1997.
1. Term of Agreement. The initial term of this Agreement shall be for
one (1) calendar year from the Effective Date (the "First Term").
Notwithstanding the foregoing, Vendor may terminate this Agreement for any
reason and at any time upon fifteen (15) days' written notice to Retailer.
Furthermore, Retailer may terminate this Agreement upon thirty (30) days'
written notice to Vendor that Vendor has breached Vendor's obligations udder
this Agreement and such breach is not cured by Vendor within fifteen (15)
calendar days of Vendor's receipt of such notice from Retailer.
2. General Retailer Obligations. Retailer agrees to use its best
efforts during the term of this Agreement to actively promote, in all lawful
ways and to the maximum extent possible, the marketing and sale of Vendor's
products (the "Vendor Products") to Customers at each retail location of
Retailer (each a "Retail Location"). Retailer shall conduct its operations at
each Retail Location in a manner which shall not reflect adversely upon the
reputation, quality or credibility of Vendor or the Vendor Products.
Furthermore, in the event that Retailer becomes aware of any complaints, charges
or claims concerning Vendor or the Vendor Products, Retailer shall immediately
notify Vendor of such complaints, charges or claims. Retailer shall respond to
such complaints only as directed by Vendor after consultation with Vendor.
Retailer shall comply with all applicable federal, territorial, state and local
laws and regulations in performing its duties hereunder. Retailer may market and
sell tobacco and other products other than the Vendor Products so long as such
other products are not sold in, on or from humidors or other containers or
displays similar to or resembling humidors.
3. Contact Person. Retailer shall provide Vendor with the name and
phone number of the person responsible for communications with Vendor regarding
this Agreement. Upon any change in the name or phone number of such person,
Retailer shall notify Vendor in writing within five (5) calendar days of such
change.
4. Humidors. All Vendor Products shall only be displayed in and sold
from humidors or other display units (each a "Vendor Humidor" and collectively
"Vendor Humidors") provided or sold to Retailer by Vendor or an authorized
distributor of Vendor Products (a "Vendor Distributor") pursuant to this
Agreement. Either Vendor or a Vendor Distributor shall provide Retailer with the
Vendor Humidors required for the sale of Vendor Products at each Retail
Location. Neither Vendor nor the Vendor Distributor shall charge Retailer for
the first Vendor Humidor required for each display position at a Retail Location
(each a "First Vendor Humidor) and collectively "First Vendor Humidors").
Retailer shall be responsible for the case and maintenance of all Vendor
Humidors placed in or at a Retail Location. Any and all damaged, lost or stolen
Vendor Humidors shall be repaired or replaced by Vendor or a Vendor Distributor,
with the cost of any such repairs or replacements being charged to and paid by
Retailer. Any replacement of Vendor Humidors for which Retailer is charged shall
be made at a cost equal to Vendor's * of such price. Notwithstanding the
foregoing, any repair or replacement of a Vendor Humidor due to manufacturing
defects or normal wear and tear shall be made by Vendor or a Vendor Distributor
at no charge or cost to Retailer.
5. Humidor Placement. Retailer agrees to have at least one (1) Vendor
Humidor prominently displayed in full view of a primary traffic location.
6. Products and Displays; Ownership. Only Vendor Products may be placed
in, on or near Vendor Humidors or sold in, on, near or from Vendor Humidors. If
any on-Vendor Products are sold in, on or from Vendor Humidors, Retailer shall
pay to Vendor, in addition to any other damages available to Vendor under equity
or law, the wholesale cost of any and all such non-Vendor Products so placed or
sold. Retailer and each Retail Location shall display only Vendor provided or
approved labels, displays or signs in, on or around the Vendor Humidors. All
Vendor Humidors provided to Retailer pursuant to this Agreement, including
replacements for damaged, lost or stolen Vendor Humidors, shall be and shall
remain the property of Vendor. Upon the termination of this Agreement for any
reason, Retailer shall return to Vendor, within thirty )30) calendar days of
such termination, all Vendor Humidors provided to Retailer pursuant to this
Agreement. Any and all costs of the return of Vendor Humidors pursuant to this
Section 6 shall be paid by Retailer.
7. Payment. Retailer shall pay for all Vendor Products placed in a
Vendor Humidor at each Retail Location. Such payment shall be made pursuant to
the terms and conditions specified in the invoice for such Vendor Products
provided to Retailer by either Vendor or a Vendor Distributor. Retailer shall be
responsible for any late charges accruing on all payments due and owing pursuant
to a Vendor Invoice.
8. Retailer Warranties and Representations. Retailer acknowledges that
its strict performance of the obligations of this Agreement is essential to the
success of its distribution, sales and marketing of Vendor Products. Retailer,
therefore, represents and warrants the following to Vendor: (i) Retailer, at all
times, shall hold all necessary federal, state, territorial and local licenses
and permits (the "Retailer Permits") required for the sale, distribution and
marketing of Vendor Products to customers in accordance with applicable law;
(ii) each Retail Location shall, at all times, be properly licensed for the
selling of Vendor Products and all such sales by each Retail Location shall
comply with applicable law; (iii) there are no actions or proceedings pending or
contemplated within the knowledge of Retailer that would in any way jeopardize
any Retailer Permits; (iv) Retailer is in good standing under the laws of the
state, territory and nation in which it is located, has all requisite corporate
or organizational authority required to perform its obligations under this
Agreement and has taken all corporate or organizational actions required for the
performance of its obligations under this Agreement; and (v) Retailer's
performance of its obligations under this Agreement will not violate any
agreement or contract to which it is a party.
9. Policies and Procedures. Retailer shall at all times conform with
and carry out the sales and marketing programs and policies established by
Vendor form time to time. Vendor expressly reserves the right to change such
programs and policies at any time. Furthermore, except for any materials
provided to Retailer by Vendor, any and all marketing or sales materials related
to the Vendor Products must be approved in writing by Vendor prior to the use or
distribution of such materials by Retailer. Retailer shall at no time engage in
any unfair trade practices with respect to Vendor or the Vendor Products and
shall make no false or misleading representations or claims with respect to
Vendor or the Vendor Products. Retailer shall refrain from communicating any
representations, guarantees or warranties with respect to the Vendor Products,
except those expressly authorized by Vendor in writing or as set forth in
written materials provided by Vendor.
* Confidential portions omitted and filed separately with the Commission.
10. Independent Contractor. Vendor and Retailer specifically agree
that, for all purposes hereunder, Retailer is, and shall be deemed to be, an
independent contractor. Neither Retailer nor Retailer's employees, agents or
representatives shall be deemed to be employees, agents, or representatives of
Vendor, nor shall any of them have the power to enter into any contract,
agreement or obligation on behalf of Vendor or to otherwise legally bind Vendor
in any way, nor enlarge upon or extend any warranty or representation regarding
Vendor Products beyond that made by the Vendor or the manufacturer of such
products. Retailer shall also be further responsible for the collection, payment
and reporting of any and all taxes required to be paid and/or reported by
Retailer by any federal, state, territorial or local government, including, but
not limited to, any and all sales, use, tobacco, employee, withholding, use and
value added taxes.
11. Related Products. During the term of this Agreement and any other
period the Retailer sells or markets the Vendor Products, Retailer hereby agrees
not to sell or market, either directly or indirectly, any cigars or cigar
products, other than the Vendor Products, in, on or from humidors.
12. Indemnification. Retailer agrees to and does hereby fully indemnify
and hold harmless Vendor and any of Vendor's affiliates, successors, assigns,
officers, directors, shareholders, employees and agents (collectively
the"Indemnified Parties'), from and against any and all losses, damages,
liabilities, obligations, judgments, settlements, costs and other expenses
incurred or suffered by the Indemnified Parties by reason of the assertion of
any claim or the institution of any litigation against them during the term of
this Agreement or subsequent to its expiration or termination, which is directly
or indirectly based upon or related to any acts or omissions of Retailer,
Retailer's employees or agents, or which are directly or indirectly based upon
or related to any breach by Retailer of this Agreement. Retailer shall assume
the defense, at its sole expense, of any claim or litigation s to which it has
an indemnification obligation hereunder. If Retailer fails to do so, the
Indemnified Parties shall have the right to assume their own defense, and
Retailer shall be obligated to reimburse the Indemnified Parties for any and all
reasonable expenses (including, but not limited to, attorneys' fees) incurred in
the defense of such claim or litigation, in addition to Retailer's other
indemnity obligations hereunder.
13. Disclaimer of Implied Warranties. Unless considered unenforceable
or unlawful under applicable law, all implied warranties to any products sold by
Vendor to Retailer, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES FOR
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, are hereby disclaimed.
Vendor liability, if any, to Retailer for alleged defective products shall,
under any legal or equitable theory, be linked to repair or replacement of a
product, at the sole option of Vendor, and shall in no event include damages of
any kind, whether incidental, consequential or otherwise.
14. Goodwill. Retailer agrees that it neither has, nor will acquire,
any vested or proprietary right or interest with respect to the marketing and
sale of Vendor Products, and that any such goodwill created or increased during
the term of this Agreement shall be considered the property of Vendor.
15. Agreement to Perform Necessary Acts. Each party to this Agreement
agrees to perform any further acts reasonably required under the terms of this
Agreement and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of this Agreement. This Agreement,
together with any exhibits, schedules and other documents contemplated hereby,
constitute the final written expression of all of the agreements between the
parties and is a complete and exclusive statement of those terms. It supersedes
all understandings and negotiations concerning the matters specified herein. Any
representations, promises, warranties or statements made by any party that
differ in any way from the terms of this written Agreement, and the exhibits,
schedules and other documents contemplated hereby, shall be given no force or
effect.
16. Governing Law; Attorney's Fees. This Agreement has been made and
entered into in the State of Arizona and, subject only to applicable
international law, shall be construed in accordance with the laws of the State
of Arizona, United States of America, excluding its choice of law provisions.
The parties agree that, subject only to applicable international law, the Courts
of Arizona, including Maricopa County, Arizona Superior Court, shall be the
proper and exclusive forum for any action relating to a dispute between the
parties arising out of, or related to, this Agreement. Each party consents to
the in personam jurisdiction of said court. The prevailing party in any dispute
arising under this Agreement shall be entitled to receive its costs, fees and
expenses, including attorneys' fees. Reasonable attorneys' fees shall be
determined by the court and not a jury.
17. Survival. Any obligation or agreement herein which has not been or
cannot be fully performed prior to the termination or expiration of this
Agreement shall survive such termination or expiration.
18. Notices. The service of any notice provided for in this Agreement
shall be complete and effective on the date such notice is placed in the United
States Mail, certified or registered with return receipt requested, postage
prepaid, and addressed to the respective parties as first written above.
19. Section Headings. The section headings contained in this Agreement
are for convenience only and shall in no manner be construed as part of this
Agreement.
20. Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision, and this Agreement shall be construed as
if such invalid, illegal, or unenforceable provision had never been included in
the Agreement.
21. Binding on Successors and Assigns. Subject to the provisions
herein, all covenants and agreements in this Agreement shall extend to and be
binding upon the heirs, legal representatives and assigns of the respective
parties hereto.
IN WITNESS WHEREOF the parties hereby agree to the above and execute
this Agreement as of the Effective Date.
"Vendor" "Retailer"
"PCI Premium Cigars International" "Express Stop, Inc."
/s/ Xxxxx Xxxxxxxxx /s/ Xxx Xxxxx
------------------------------------ --------------------------
Xxxxx Xxxxxxxxx, V.P. National Sales Xxx Xxxxx, General Manager
* Confidential portions omitted and filed separately with the Commission.
EXPRESS STOP - CIGARS
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0000 Xxxx Xxxxxxxxxx - Xxxxxxx, Xxxxxxx 00000 - (000) 000-0000 -
Fax (000) 000-0000
STORE LIST
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PHONE NUMBER STORE NAME STORE ADDRESS
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[INFORMATION REGARDING 27 STORES IN ARIZONA]
SUBWAY AND HOT STUFF PIZZA
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PHONE NUMBER STORE NAME STORE ADDRESS
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[INFORMATION REGARDING 5 STORES IN ARIZONA]
* Confidential portions omitted and filed separately with the Commission.
