THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND SMOKINGTHINGS.COM, LLC (“WE” OR “SMOKINGTHINGS”), THE OWNER AND OPERATOR OF THE WWW.SMOKINGTHINGS.COM WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT AND MEMBERSHIPS SOLD TO IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By signing up (as defined below), you represent, acknowledge and agree that you are of legal smoking age and fully aware of the following warnings:
WARNING: Products included in SmokingThings contain nicotine, a poisonous and addictive substance. Products and accessories included in SmokingThings are only intended for committed smokers of legal smoking age and not by non-smokers, children, women who are pregnant or may become pregnant or any person with an elevated risk of, or preexisting condition of, any medical condition which includes, but is not limited to, heart disease, diabetes, high blood pressure or asthma. If you experience any side effects or possible side effects, stop using the product immediately and consult a physician. Products included in SmokingThings may be poisonous if inhaled, spilled on skin or orally ingested. Products included in SmokingThings are not smoking cessation products and have not been tested or guaranteed as such. Products included in SmokingThings have not been evaluated by the Food and Drug Administration nor is it intended to treat, prevent or cure any disease or condition. Products and accessories included in SmokingThings are only to be charged and used with their compatible charging devices, incorrect charging (including USB, car adapters and iPhone chargers) may cause risk of explosion. For their protection, please keep out of reach of children and pets.
WARNING: Products included in SmokingThings, specifically E-Liquid and liquid nicotine, should not be directly disposed of in the trash please mix it first with kitty litter, sawdust or other absorbent material and place it in a sealed bag or double bag and then dispose of it in your trash can. This applies to low nicotine concentrations below 10% by volume (100mg Strength).
California Proposition 65 – WARNING: This product contains nicotine, a chemical known to the state of California to cause birth defects or other reproductive harm.
1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site
SmokingThings may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter. However, any changes to the dispute resolution provisions set forth in Section 8.2 – Choice of Law will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Website.
Your continued use of the Site following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page each time you access this Site so you are aware of any changes, as they are binding on you.
1.2 – Personal Information/Privacy
1.3 – Changes to the Site
We may update the Content on this Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and we are under no obligation to update such material.
2 – PASSWORDS; USE OF SITE
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify SMOKINGTHINGS if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – Use of Site; Prohibitions
Subject to your compliance with this Agreement, SMOKINGTHINGS hereby grants you a limited, personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of SMOKINGTHINGS or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
2.3 – Chat Sessions
Due to account security restrictions MSAs are not able and will not fulfill certain types of requests. If your request requires making a payment OR canceling your service, please log onto your account or contact Member Services to make such changes. You may be asked by the MSA Your account login user name, email address, or other personally identifiable information in order ensure the identity and security of the chat. A MSA is NOT supposed to ask You for Your password or credit card or debit card information to confirm your account. If a MSA asks for this information please immediately discontinue the Chat session and contact us.
2.4 – Links from the Site
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
3 – TERMS OF SALE
3.1 – Sales of Products and Memberships to End Users Only
SmokingThings sends electronic cigarette products that contain nicotine (the “Product(s)”) to end-user customers of legal majority age (18+ in the United States) for their own personal, non-commercial use. You may not purchase Products for further distribution or resale or for any other commercial or business purpose. All rights and privileges conferred are personal and non-transferable.
3.2 – Pricing
Pricing for Products (including any applicable shipping and handling fees) can be found on SMOKINGTHINGS’s then-current pricing page located on the Site at this location. SMOKINGTHINGS reserves the right to change prices for Products at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Refund/Cancellation Policy
CANCELING YOUR MEMBERSHIP: You may cancel your membership at anytime, just login and click the cancel subscription button. Can’t login, just contact us.
If you are dissatisfied with the Product for any reason, contact SMOKINGTHINGS so that we can remedy the issue. Refund requests must be made directly to SMOKINGTHINGS at support. All refund requests must be made within thirty (30) days of the date of shipment by SMOKINGTHINGS. SMOKINGTHINGS is not liable for products that are damaged or lost in transit to SMOKINGTHINGS.
Promptly following SMOKINGTHINGS’s receipt of your request (typically within five (5) business days), SMOKINGTHINGS will credit the amount paid for the returned product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase as long as SMOKINGTHINGS deems the refund to be valid.
SmokingThings will not provide a refund for a request that is received by SMOKINGTHINGS more than thirty (30) days after the date of original shipment. SMOKINGTHINGS also does not provide a refund for returned products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.4 – Payment Methods; Automatic Membership Renewals and Membership Cancellation Policy
SmokingThings accepts credit card payments only. You agree to pay all fees charged to your account based on SMOKINGTHINGS’s fees, charges, and billing terms in effect as shown on the payment page you first sign-up for a Membership to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize SMOKINGTHINGS or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, SMOKINGTHINGS reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US Dollars.
SmokingThings and SMOKINGTHINGS’s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to SMOKINGTHINGS and SMOKINGTHINGS’s third party payment service provider at the election of your credit card issuer. Neither SMOKINGTHINGS nor SMOKINGTHINGS’s third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is Your responsibility to contact Your credit card issuer with regards to Your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER: SMOKINGTHINGS will automatically renew your Membership on each monthly anniversary date of the Membership and, as authorized by You during the Membership sign-up process, will charge your credit card with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month. You may cancel your Membership at any time by logging on to your account within SMOKINGTHINGS.com. To cancel a membership, please login to your account on the Site and select the “membership options” link at the bottom of the page, then follow instructions towards cancellation. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please contact us. SMOKINGTHINGS requires a reasonable amount of time to process your Membership cancellation request. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term.
3.5 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
3.6 – Geographic Restrictions
The owner of the Site is based in the state of California in the United States. We provide this Site for use only by persons located in jurisdictions in which the Site’s Content, Services and Products are legal. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
4 – REFERRAL PROGRAM
SMOKINGTHINGS offers a referral program, also referred to as an affiliate program, (“Referral Program”) which is designed to incentivize customers, members, and/or users to refer business to SMOKINGTHINGS.
SMOKINGTHINGS reserves the right to change the terms of its Referral Program at any time with or without notice including, but not limited to: changing the compensation structure, changing how referrals are attributed between referrers and referred Customers, changing payout thresholds or terms earned per conversion, etc.
SMOKINGTHINGS has a strict policy against promotion of Referral Program links or tracking codes on coupon or deal websites. Additionally, SMOKINGTHINGS has a strict no-arbitrage policy which prevents any type of misuse of the Referral Program which may result for a payout to be made to a Referral Program user in which they did not actual refer the Customer. Should you misuse, whether knowingly or unknowingly, or have your referral links or tracking codes being used on coupon or deal websites or any form of referral arbitrage that did not result directly from your referral to the Site, then SMOKINGTHINGS reserves the right to, with or without notice, fully nullify and unwind all referral compensation resulting from or being suspected of having resulted from coupon or deal websites and/or referral arbitrage.
5 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that SMOKINGTHINGS or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
SmokingThings, is a trademarks of SMOKINGTHINGS.COM LLC in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of SMOKINGTHINGS, Copyright © 2018 SMOKINGTHINGS, LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
6 – THIRD PARTY SITES; INDEMNIFICATION
6.1 – Third Party Web Sites
6.2 – Indemnification
You agree to defend, indemnify and hold harmless the SMOKINGTHINGS, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement or your use of the Site, including, but not limited to any use of the Site’s Content, Services and Products other than as expressly authorized in this Agreement or your use of any information obtained from the Site.
7 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. SMOKINGTHINGS, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “SMOKINGTHINGS PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND SMOKINGTHINGS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMOKINGTHINGS OR ANY PERSON ON BEHALF OF SMOKINGTHINGS SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 6 SHALL EXCLUDE OR LIMIT THE SMOKINGTHINGS PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
8 – LIMITATION OF LIABILITY
8.1 – IN NO EVENT SHALL ANY SMOKINGTHINGS PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A SMOKINGTHINGS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 – IF, NOTWITHSTANDING THE FOREGOING, A SMOKINGTHINGS PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, THE RELEVANT SMOKINGTHINGS PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID SMOKINGTHINGS FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
8.3 – NOTHING IN THIS SECTION 7 SHALL EXCLUDE OR LIMIT ANY SMOKINGTHINGS PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH SMOKINGTHINGS PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
9 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
9.1 – Dispute and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department or SMOKINGTHINGS, Attn: Customer Service PO BOX 188, 322 Linden Ave, South San Francisco, CA 94080. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO SMOKINGTHINGS’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.
We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 8.2 below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor SMOKINGTHINGS has the right to act as a class representative or class representative or participate as a member of a class of claimants with respect to any claim.
All disputes relating in any way, directly or indirectly, to SMOKINGTHINGS for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the rules of the American Arbitration Association (AAA) in South San Francisco, California, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the Revised Code of California (RCW), and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
9.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in South San Francisco, California. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
9.3 – Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
10 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
10.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
10.2 – General Terms