This letter (the "Agreement") summarizes NicQuid’s requirements for the distribution or retailing of NicQuid branded products. If this Agreement is acceptable to you, please sign below in the space designated for your signature.

Distributors must agree as follows:

  1. Agreement

In regards to: the sale of NicQuid branded products.

Distributor Agrees:

  1. To sell only to people who are at least 21 years old, throughout the United States, confirming age using valid ID for any face-to-face transactions with consumers. If sales are made online, Distributor will utilize adequate age-verification technology to prevent underage access to the website and to prevent underage sales through the Internet. Age-verification technology should include independent, third-party age and identity verification services that compare customer information against third-party data sources. The consumer’s age should be verified using reputable age-verification software such as AgeMatch (Veratad), Agechecker.net or Bluecheck. For sales made to California residents, Distributor must follow heightened online age verification requirements as provided in California’s Stop Tobacco Access to Kids Enforcement Act (STAKE Act). Distributor must ensure compliance with state laws on the minimum purchase age for vapor products and delivery sales requirements as provided in Attachment I.
  1. To implement and include a purchase limit if sales of NicQuid e-liquid products are made online. Such sales must be limited to 250ml of NicQuid product, in either 30ml or 50ml bottles, per seven (7) day period. (i.e. eight (8) 30ml bottles or five (5) 50ml bottles, or and combination of the two bottle sizes to not exceed 250ml.)
  1. To not sell NicQuid products in a vending machine unless in an adult-only (21+) facility.

  2. To not sell flavored NicQuid products (except tobacco-flavored, and menthol-flavored) to downstream online or brick-and-mortar retailers that have sold to minors as indicated by FDA’s searchable retailer inspection database.
  1. To not give out free samples to individual consumers.
  1. To bundle NicQuid’s product with e-liquids without NicQuid’s express permission.
  1. To bundle NicQuid’s products with any food, beverage, drug, or other consumable products.
  1. To only provide samples to businesses in quantities sufficient to advance a business purpose and only with written assurances from the recipient that the product will be used for business purposes and not further distributed or sold.
  1. To not modify any NicQuid’s labels or advertising without express written permission.
  1. To abide by all FDA and state law requirements regarding advertising and marketing of tobacco products and indemnify and hold harmless NicQuid for any violations of such laws. Distributor must provide the required nicotine warning statement in all advertising, including online advertising. For sales made to California residents, ensure compliance with any applicable California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) product packaging and website warning requirements.
  1. To not to market NicQuid’s products for anything other than recreational adult vaping or as directed by NicQuid.
  1. To ensure that Distributor does not make, allow others within its control to make, or publicize or publish or distribute, any marketing materials, statements or claims, including but not limited to product review videos and articles (regardless of online or offline), without prior written authorization by NicQuid regarding NicQuid’s products. If prior written authorization is received, any such marketing, including endorsements by social media influencers, must include necessary and appropriate disclosures about the health risks of nicotine, and any material connection must be clearly and conspicuously disclosed in such endorsements.

 

  1. To obtain appropriate product liability and other insurance and include NicQuid LLC. as an additional insured when applicable.

 

  1. To not make any health or therapeutic claims, including smoking cessation claims, about NicQuid’s products.

Furthermore, Distributor is responsible for adherence to all other FDCA requirements and this non-exhaustive list may be modified from time-to-time to aid Distributor in identifying obligations under the FDCA. If you are unsure of your obligations under the FDCA or whether a particular action complies with the law, Distributor will contact NicQuid immediately for clarification on NicQuid’s position.

Other Distributor Requirements:

  1.  Distributor will maintain all facilities where NicQuid’s products are stored in a manner that ensures the health and safety of the product (see non-exhaustive list below); maintain written procedures in accordance with the same.
    1. Provide timely and recurring certifications of the above to NicQuid.
    2. Supply NicQuid with any requested or required documentation demonstrating compliance with the same.
    3. Timely notify the NicQuid in the event of:
      1. any notice of inspection;
      2. the results of any such inspection;
      3. any notice of violation resulting from the same; and
      4. plans to take corrective actions
    4. Timely notify NicQuid in the event of any deviation from typical production processes (e.g., damaged or lost materials; materials kept outside of normal operating conditions; carrier issues)
    5. Timely notify NicQuid in the event of any consumer complaints received about NicQuid’s products
    6. Agree that the distributor shall not sub-contract any responsibilities delegated to the distributor without the express, written permission of NicQuid
    7. Agree that the distributor shall indemnify NicQuid for any losses related to non-compliance with these provisions

Distributor Health and Safety Requirements

The following is a non-exclusive list for all facilities where NicQuid’s products are stored.

Grounds:

  • Maintain outside that is free of weeds, grass and bushes that might harbor pests
  • Avoid standing water inside and outside of facility
  • Ensure adequate lighting
  • Prevent nesting of rodent and birds near access points (doors, windows, etc.)

Facilities:

  • Ensure adequate ventilation and climate control
  • Ensure adequate restrooms and handwashing facilities
  • Maintain personal hygiene policies
  • Maintain separate eating and smoking/vaping areas
  • Maintain adequate waste disposal procedures
  • Maintain a pest-control program
  • Conduct periodic cleaning

Equipment:

  • Ensure equipment is maintained in precise, calibrated, functional, and clean/sanitary conditions
  • Prevent buildup of debris and take steps to avoid cross-contamination
  • Ensure that employees are properly trained and certified on the proper use of equipment

Storage:

  • Ensure that storage locations are properly labeled
  • Maintain an inventory control system (g., Quality Management Systems, First-in-first-out, etc.)

Safety:

  • Facility should conduct routine audits to ensure:
    • Prevention of access by minors
    • Prevention of tampering
    • Prevention of access by unauthorized individuals

Retailers must agree as follows:

Retailer agrees:

  1. To allow NicQuid, in advance of establishing or renewing distribution agreements, to audit the strength of the retailers’ age verification policies.
  1. To establish and publicize a hotline for anonymous reporting of noncompliant sales.
  1. To implement a policy of notifying FDA of retailer violations.
  1. To check government issued photo ID of everyone under age 27 who attempts to purchase e-cigarettes, e-liquids, or other ENDS. Sell only to people who are old enough (at least 21 years old throughout the United States) confirmed using valid ID for any face-to-face transactions with consumers. If sales are made online, use adequate age-verification technology to prevent underage access to the website and to prevent underage sales through the Internet. Age-verification technology should include independent, third-party age- and identity-verification services that compare customer information against third-party data sources.  The consumer’s age should be verified using reputable age-verification software such as AgeMatch (Veratad), Agechecker.net or Bluecheck. For sales made to California residents, follow heightened online age verification requirements as provided in California’s Stop Tobacco Access to Kids Enforcement Act (STAKE Act). Ensure compliance with state laws on the minimum purchase age for vapor products and delivery sales requirements as provided in Attachment I.

 

  1. To implement and include a purchase limit if sales of NicQuid e-liquid products are made online. Such sales must be limited to 250ml of NicQuid product, in either 30ml or 50ml bottles, per seven (7) day period. (i.e. eight (8) 30ml bottles or five (5) 50ml bottles, or any combination of the two bottle sizes to not exceed 250ml.)
  2. To not sell e-cigarettes or other ENDS in a vending machine unless in an adult-only facility (21+).
  1. To not sell or distribute e-cigarettes or other ENDS without a required nicotine warning statement on the package. Retailer will NOT display advertisements for e-cigarettes or other ENDS without a required nicotine warning statement.
  1. To not give out free samples to individual consumers, including any tobacco product components or parts.

  2. To not bundle NicQuid’s product with e-liquids without NicQuid’s express permission.

  3. To not bundle NicQuid’s products with any food, beverage, drug or other consumable products.

  4. To not break open packages to sell products in smaller amounts.

  5. To implement appropriate retailer hiring and management practices as part of a comprehensive retailer training program intended to reduce the illegal sale of tobacco products to persons under the age of 21. This may include requiring clerks who sell tobacco to be at least 21 years of age (studies have shown that clerks under the age of 18 are more likely to sell tobacco to minors than are older clerks). Notify applicants for positions that involve selling tobacco or ENDS products both verbally and in writing of the importance of complying with laws prohibiting the sale of tobacco or ENDS products to youth, and require these individuals to sign an acknowledgement stating that they have read and understand the information. Current employees should be given these notifications and should be required to sign an acknowledgement stating that they have read and understand the information. Retailers should consider establishing company policies that take employee performance on compliance checks into account in company decisions about compensation, promotion, retention, and establish disciplinary sanctions for employee noncompliance.

  6. To Develop an internal compliance check program, such as a mystery shopper program. In this type of program, use either a person of legal age who is younger than 27 years old (to test whether clerks are requesting photographic identification) or a person who is under the legal age to buy tobacco (to test whether clerks are both requesting photographic identification and refusing to make a sale to underage youth). Internal compliance checks should be performed at random and varying times of the day and at least once every six months. Employees who fail the internal compliance check should be notified immediately and given additional training, and this should be appropriately documented.

  7. To not modify any NicQuid labels or advertising without express written permission.
  1. To abide by all FDA and state law requirements regarding advertising and marketing of tobacco products, and indemnify and hold harmless NicQuid for any violations of such laws. For sales made to California residents, ensure compliance with any applicable California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) product packaging and website warning requirements. 
  1. To not to market NicQuid’s products for anything other than recreational adult vaping or as directed by NicQuid (i.e., no “off label” uses).
  1. To ensure that it does not make, allow others within its control to make, or publicize or publish or distribute, any marketing materials, statements or claims, including but not limited to product review videos and articles (regardless of online or offline), without prior written authorization by NicQuid regarding NicQuid’s products. If prior written authorization is received, any such marketing, including endorsements by social media influencers, must include necessary and appropriate disclosures about the health risks of nicotine, and any material connection must be clearly and conspicuously disclosed in such endorsements. 
  1. To obtain appropriate product liability and other insurance and include NicQuid as an additional insured when applicable.
  1. To not make any health or therapeutic claims, including smoking cessation claims, about NicQuid’s products.
  1. To not make any claims that NicQuid’s products:
  1. present a lower risk of disease or is less harmful than another tobacco product;

  2. contain a reduced level of, or is free from, a substance, or that exposure to a substance is reduced or eliminated.

Furthermore, retailers are responsible for adherence to all other FDCA requirements and this non-exhaustive list may be modified from time-to-time to aid distributors in identifying obligations under the FDCA.  If you are unsure of your obligations under the FDCA or whether a particular action complies with the law, retailer will contact NicQuid immediately for clarification on NicQuid’s position.

  1. Term

The term of this Agreement ("Term") will commence as of _________________, and will continue in effect as long as Distributor or Retailer continues to distribute or sell NicQuid product. If Distributor or Retailer ceases to distribute or sell NicQuid product, the terms of this Agreement shall terminate, unless the Term is extended or terminated earlier in a written document signed by both of us in the manner described in Paragraph 5 of this Agreement or as otherwise provided for in this Agreement.

  1. Force Majeure

Neither of NicQuid or Distributor or Retailer under the scope of this Agreement will be liable to the other for any loss, damage or default occasioned by strike, civil disorder, governmental decree or regulation, acts of God or any other force majeure (collectively, a "Force Majeure Event"). We agree that upon conclusion of a Force Majeure Event, each party will use commercially reasonable means to recommence full performance of the obligations under this Agreement.

  1. Notice

Any notices to be given under this Agreement by either party may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested to the addresses set forth in this Agreement unless either party notifies the other, in writing, of a change of address.

  1. No Other Agreement

This Letter of Agreement contains the entire agreement between us. No part of this Letter of Agreement may be changed, modified, amended or supplemented except in a written document, signed by both of us which specifically states that the document is being signed for the purposes of modifying this Agreement. Each of us acknowledges and agrees that the other has not made any representations, warranties or agreement of any kind, except as is expressly described in this Agreement.

  1. Governing Law

This Agreement shall be interpreted in accordance with the laws of Ohio. In interpreting this contract, we each hereby acknowledge that we have mutually agreed to the terms of this Agreement and thus waive the protections of any law or statute which provides that in the case of uncertainty not removed by the laws relating to the interpretation of the contracts, the language of a contact should be interpreted against the drafter of the contact. Further, we agree that in the event that any one or more of the provisions of this Agreement shall be found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired.

  1. Attorney's Fees

We agree that if any action is commenced to enforce any claim, demand, debt, action, cause of action, liability, cost, right, duty or obligation provided herein, or if any action is commenced to enforce any of the provisions of this Agreement, the prevailing party in such an action shall be entitled, in addition to any other remedies, to an award of out-of-pocket attorney's fees, including all actual costs incurred by the prevailing party.

  1. Remedy of the Parties

Except as otherwise specifically provided for in this Agreement, in the event one of us is in default or in breach of any of the material provisions of this Agreement and fails to cure the default or breach within ten (10) days after written notice of such default or breach by the other, the non-breaching party shall have the right to terminate this Agreement.

  1. Assignment

This Agreement shall only be assignable or transferable by one of us upon the written approval from the other.

  1. Relationship of the Parties

It is understood and agreed that this Agreement does not create a partnership, joint venture or employment relationship of any kind between us; that each of us is acting as independent contractors with respect to each other; and that none of the employees of either of us will be deemed to be employees of the other for any purpose.

  1. Termination

Either of us shall have the right, forthwith and without further notice, to terminate this Agreement by written notice to the other, upon the occurrence of any of the following events:

(a) A breach or default of a provision of this Agreement which is not cured within the period set forth in Paragraph 8 of this Agreement;

(b) A Force Majeure Event that continues for a period of thirty (30) days; or

(c) Distributor or Retailer ceases to distribute or sell NicQuid product

 

 

  1. Headings

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.