Terms and Conditions

THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND NICPIK, LLC (“WE” OR “NICPIK”), THE OWNER AND OPERATOR OF THE WWW.NICPIK.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 for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age and of legal smoking age. By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are fully aware of the following warnings: WARNING: Products included in NICPIK contain nicotine, a poisonous and addictive substance. Products and accessories included in NICPIK 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 NICPIK may be poisonous if orally ingested. Products included in NICPIK are not smoking cessation products and have not been tested or guaranteed as such. Products included in NICPIK have not been evaluated by the Food and Drug Administration nor is it intended to treat, prevent or cure any disease or condition. For their protection, please keep out of reach of children and pets. 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 NICPIK 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. 1.2 – Personal Information/Privacy Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). NICPIK reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that NICPIK uses a third party payment processing service to processing orders and bill fees to your credit card. NICPIK’s Privacy Policy, located at the URL: https://www.NICPIK.com/privacy (the “Privacy Policy”), explains how Customers’ personally identifiable information is collected, used and disclosed. You hereby agree that we may use your personal information in accordance with the terms of the Privacy Policy. 2 – PASSWORDS; USE OF SITE 2.1 – Passwords You may utilize the functionality on the Site that allows you to log in to this Site by using your log in credentials for an existing account on various third party websites, which may change from time to time, including, without limitation, Twitter, Facebook and LinkedIn (“Third Party Site Log-in Credentials”) and, if applicable, configure your privacy settings in your third party website account to permit your activities on this Site to be shared with your contacts in your third party Site account (as further detailed in our Privacy Policy) https://www.NICPIK.com/privacy. Notwithstanding the foregoing, you agree that your use of any third party website through which you log in to this Site using your Third Party Site Log-in Credentials is governed by the terms and conditions of such third party website’s terms of use and privacy policy, including, without limitation, such third party website’s password and account security policies and user-generated content posting and acceptable use policies. 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 NICPIK 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, NICPIK 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 NICPIK 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 NICPIK offers to its Members the ability to enter into an instant messaging session (“Chat Sessions”) with a NICPIK Member Services Agent (“MSA”). Upon entering into and continuing such Chat Sessions with a MSA You acknowledge and agree to all terms, conditions, monitoring guidelines and notices contained or referenced herein including NICPIK Terms of Service and Privacy Policy. In order to maintain a high standard of service and provide a safe environment for its MSAs, NICPIK reserves the right to refuse, discontinue, and/or block You from Chat Sessions for acts considered to be inappropriate, such as unreasonable demands, misrepresentations, personally threatening or offensive language, and/or erratic behavior or that violate the Terms of Service. If You do not agree to the Terms of Service, including these provisions relating to the Chat Sessions, please do not use the Chat Session service. 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 email Member Services at INFO@NICPIK.com 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 email NICPIK at: INFO@NICPIK.com 3 – TERMS OF SALE 3.1 – Sales of Products and Memberships to End Users Only NICPIK sends electronic cigarette products that contain nicotine (the “Product(s)”) to end-user customers of legal majority age (18+ in the United States) who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable. 3.2 – Pricing Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on NICPIK’s then-current pricing page located on the Site at THIS LOCATION The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. NICPIK reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases. However, we will not change the price of your subscription to a higher price point if you already have a membership. 3.3 – Refund/Cancellation Policy CANCELING YOUR MEMBERSHIP: You may cancel your membership at anytime, just contact us. If you are dissatisfied with the Product for any reason, contact NICPIK so that we can remedy the issue. Refund requests must be made directly to NICPIK at info@NICPIK.com. All refund requests must be made within thirty (30) days of the date of shipment by NICPIK. NICPIK is not liable for products that are damaged or lost in transit to NICPIK. Promptly following NICPIK’s receipt of your request (typically within five (5) business days), NICPIK 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. Notwithstanding the foregoing, NICPIK does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback. NICPIK will not provide a refund for a request that is received by NICPIK more than thirty (30) days after the date of original shipment. NICPIK 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 NICPIK accepts credit card payments only. You agree to pay all fees charged to your account based on NICPIK’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 NICPIK 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, NICPIK 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. NICPIK and NICPIK’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 NICPIK and NICPIK’s third party payment service provider at the election of your credit card issuer. Neither NICPIK nor NICPIK’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: NICPIK 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 NICPIK.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 email info@NICPIK.com. NICPIK 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. 4 – PROPRIETARY RIGHTS You hereby acknowledge and agree that NICPIK 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. NICPIK is a trademark of NICPIK 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 NICPIK, Copyright © 2013 NICPIK, 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. 5 – THIRD PARTY SITES; INDEMNIFICATION 5.1 – Third Party Web Sites The Site may provide links to third party Sites that are not owned or controlled by NICPIK, including, without limitation, Facebook, Twitter and LinkedIn (“Third Party Sites”). We provide such links solely as a convenience to you. NICPIK does not review, approve, endorse, or make any representations about such Third Party Sites, the companies or persons who own and/or operate them, or any information, software or other products and services made available through such Third Party Sites, or any results that may be obtained from using them. You should exercise common sense and your own judgment, and if you decide to access any Third Party Sites linked to the Site, you do so entirely at your own risk, and you are solely responsible for your activities conducted in connection with such Third Party Sites. Your use of Third Party Sites is subject to the terms of use and privacy policies located on the linked to Third Party Sites which may be different from this Agreement or our Privacy Policy, including, without limitation, such Third Party Sites’ password and account security policies and user-generated content posting and acceptable use policies. 5.2 – Indemnification You hereby agree to defend, indemnify and hold each of the NICPIK Parties (as defined in Section 6 below) harmless from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products. 6 – 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. NICPIK, 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 “NICPIK 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 NICPIK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NICPIK OR ANY PERSON ON BEHALF OF NICPIK 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 NICPIK 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. 7 – LIMITATION OF LIABILITY 7.1 – IN NO EVENT SHALL ANY NICPIK 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 NICPIK PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 – IF, NOTWITHSTANDING THE FOREGOING, A NICPIK 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 NICPIK PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID NICPIK FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100). 7.3 – NOTHING IN THIS SECTION 7 SHALL EXCLUDE OR LIMIT ANY NICPIK PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH NICPIK PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. 8 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW 8.1 – Dispute and Arbitration; Class Action Waiver Please read this carefully. It affects your rights. Summary: Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at info@NICPIK.com or NICPIK, Attn: Customer Service, 505 Broadway E, #235, Seattle, Washington 98102. 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 NICPIK’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 NICPIK 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 NICPIK 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 Seattle, Washington, 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 Washington (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. 8.2 – Choice of Law This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in King County, Washington. 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 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS 9.1 – 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. 9.2 – General Terms NICPIK may issue a warning, temporarily suspend, indefinitely suspend or terminate any Customer’s right to use or access all or any part of the Site including any account thereon, without notice, for any reason in NICPIK’s sole discretion, including without limitation breach of this agreement and/or violation of the Terms of Service, NICPIK’s belief that such access would violate any applicable law, rule or regulation or would be harmful to the interests of, or potentially cause financial loss or legal liability to NICPIK or another user of the Site. This Agreement and the Privacy Policy constitute the entire agreement between you and NICPIK regarding its subject matter. NICPIK will not be responsible for failures to fulfill any of its obligations due to causes beyond its control. The failure of NICPIK to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this Agreement, and the other parts will remain in full force and effect. The parties shall at all times and for all purposes be deemed to be independent contractors and neither party nor its agents may bind the other party. This Agreement is only valid in the English language. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each indemnified NICPIK Party shall be a third party beneficiary hereunder. NICPIK may assign or transfer its rights, or delegate any performance, under this Agreement to a third party in its sole discretion. Customer may not assign or otherwise transfer its rights, or delegate its performance, under this Agreement to any third party without in each and every case, NICPIK’s express prior written consent. All terms which by their nature are intended to survive any termination of this Agreement, or any termination of your use of the Site, Content, Products or Memberships shall survive such termination.