Effective Date: 12/03/2020
SECTION 13 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT-OUT.
By accessing or using nicks-cigars.com, or any other website with an authorized link to this Agreement (“Website”) or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions, and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement.
Subject to Section 13.8 of this Agreement, NICK’S CIGARS INC. reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitute your agreement to such changes.
1. General. When making any purchases through our e-commerce store on or through the Services, you represent that you are twenty-one (21) years of age or older. We reserve the right to request a scan of your photo ID for age verification purposes before shipping an order. We do not condone the use of illegal substances, and as the consumer, you have the responsibility of knowing the local, state, and federal laws before making any purchase through the Services.
2. Order Acceptance. Each part of any order that you submit to NICK’S CIGARS INC. constitutes an offer to purchase. If you do not receive a message from NICK’S CIGARS INC. confirming receipt of your order, please contact our Customer Service department before re-entering your order. NICK’S CIGARS INC.’s confirmation of receipt of your order does not constitute NICK’S CIGARS INC.’s acceptance of your order. NICK’S CIGARS INC. is only deemed to have accepted your order once the Product (s) you ordered have been shipped (the “Product”).
3. Order Issues. Although we strive to accept all valid orders, NICK’S CIGARS INC. reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
4. Order Returns. If for any reason you are not satisfied with a purchase you make on the Website, please return it in accordance with the terms of our return policy.
5. Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, NICK’S CIGARS INC. reserves the right to cancel your order and provide you a refund for the amount paid for the Product.
6. Restrictions on Resale. To protect the intellectual property rights of NICK’S CIGARS INC. and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. NICK’S CIGARS INC. reserves the right to decline any order that we deem to possess characteristics of reselling.
2. Fees and Purchase Terms.
1. Payment. You agree to pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You also agree to pay all applicable taxes. You must provide NICK’S CIGARS INC. with valid payment information in connection with your orders. By providing NICK’S CIGARS INC. with your payment information, you agree that (i) NICK’S CIGARS INC. is authorized to immediately invoice you for all fees and charges due and payable to NICK’S CIGARS INC. hereunder, (ii) NICK’S CIGARS INC. is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify NICK’S CIGARS INC. of any change in your payment information by sending an email to email@example.com. NICK’S CIGARS INC. reserves the right at any time to change its prices and billing methods. Please contact firstname.lastname@example.org regarding any billing disputes.
2. Refunds. Except as set forth in NICK’S CIGARS INC.’s refund policy, available Nick’s Cigars refund policy, all fees paid are non-refundable.
3. Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed at check-out, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Nick’s Cigars communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
3. User Content.
1. Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such Content originated. This means that each User is entirely responsible for all content that User makes available through the Services (“User Content”). NICK’S CIGARS INC. has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, NICK’S CIGARS INC. reserves the right in its sole discretion to pre-screen, refuse, or remove any content. NICK’S CIGARS INC. shall have the right to remove any content that violates this Agreement or is otherwise objectionable to NICK’S CIGARS INC..
2. Ownership of Your Content. NICK’S CIGARS INC. does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant NICK’S CIGARS INC. the license set forth in Section 3.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
3. License to Your Content. You grant NICK’S CIGARS INC. a right to use and display Your Content (in whole or in part) for its own business purposes, including without limitation, to operate and improve the Services, analyze Users’ use of the Services, and develop new products and services. Note that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any “public” area of the Services.
4. Ratings and Reviews. Ratings and reviews posted by Users on our Services are User Content that is not endorsed by NICK’S CIGARS INC. and does not represent the views of NICK’S CIGARS INC.. NICK’S CIGARS INC. does not assume liability for ratings and reviews or any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable institution, business, Product, or Service; (ii) you will not provide a rating or review for any institution, business, Product, or Service with respect to which you have a competitive, ownership or other economic interest or employment relationship; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice — other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iv) involves commercial activities and/or sales without NICK’S CIGARS INC.’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of NICK’S CIGARS INC.’s. You may not send any unsolicited email message, commercial or non-commercial, to any email address you have gathered from the Services.
4. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to NICK’S CIGARS INC. (“Feedback”) is at your own risk and that NICK’S CIGARS INC. has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to NICK’S CIGARS INC. the right to use any Feedback in any way at any time without any additional approval or compensation.
5. Ownership of and License to Use the Services.
1. Use of the Services. Except with respect to User Content, NICK’S CIGARS INC.’S and its suppliers own all rights, title, and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. NICK’S CIGARS INC., its suppliers, and service providers reserve all rights not granted in this Agreement.
2. Trademarks. Nick’s Cigars’s stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of NICK’S CIGARS INC. and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
6. Restrictions on Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of NICK’S CIGARS INC. (c) you shall not use any metatags or other “hidden text” using Nick’s Cigars name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by NICK’S CIGARS INC. pursuant to this Agreement.
7. Third-Party Services. The Services may contain links to third-party websites or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. NICK’S CIGARS INC. does not control and is not responsible for Third-Party Links. NICK’S CIGARS INC. provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
8. Indemnification. You agree to indemnify and hold NICK’S CIGARS INC. its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “NICK’S CIGARS INC. Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. NICK’S CIGARS INC. reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with NICK’S CIGARS INC. in asserting any available defenses. This provision does not require you to indemnify any of the NICK’S CIGARS INC. indemnities for any unconscionable commercial practice by such party or such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of this Agreement or your access to the Services.
9. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NICK’S CIGARS INC. INDEMNITEES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM THE PRODUCTS AND SERVICES.DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. OUR CURRENT PRICES CAN BE FOUND ON THE SERVICES. WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF OUR PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR YOU SEE WILL DEPEND ON YOUR COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT YOUR COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS WILL BE AVAILABLE AT ANY TIME. STATEMENTS MADE ABOUT PRODUCTS HAVE NOT YET BEEN EVALUATED BY THE US FOOD AND DRUG ADMINISTRATION, AND THE RESULTS REPORTED, IF ANY, MAY NOT NECESSARILY OCCUR IN ALL INDIVIDUALS. ALL PRODUCTS SHOULD BE USED STRICTLY IN ACCORDANCE WITH INSTRUCTIONS, PRECAUTIONS OR GUIDELINES. YOU SHOULD ALWAYS CHECK PRODUCT INGREDIENTS TO AVOID ANY POTENTIAL ALLERGIC REACTION. OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT NICK’S CIGARS INC. IS NOT ENGAGED IN RENDERING MEDICAL ADVICE AND ARE NO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. PLEASE CONSULT WITH YOUR PHYSICIAN OR HEALTHCARE PRACTITIONER REGARDING THE USE OF ANY PRODUCTS OR SERVICES RECEIVED THROUGH THE SERVICES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. Limitation of Liability.
1. Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NICK’S CIGARS INC. INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NICK’S CIGARS INC. AS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE NICK’S CIGARS INC. INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
3. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE NICK’S CIGARS INC. INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO NICK’S CIGARS INC., BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
4. User Content and Settings. THE NICK’S CIGARS INC. INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NICK’S CIGARS INC. AND YOU.
6. Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE OTHER RIGHTS. IN ADDITION, THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
11. Termination. At its sole discretion, NICK’S CIGARS INC. may modify or discontinue the Services or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, NICK’S CIGARS INC. reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you, and unpaid amounts you owe to NICK’S CIGARS INC. for Products purchased will remain due.
12. International Users. The Services are controlled and offered by NICK’S CIGARS INC. from its facilities in the United States of America. NICK’S CIGARS INC. makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nick’s Cigars Inc., its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “NICK’S CIGARS INC. Parties”) and limits the manner in which you can seek relief from the NICK’S CIGARS INC. Parties.
1. Applicability of Arbitration Agreement. You agree that any dispute between you and any of the NICK’S CIGARS INC. parties relating in any way to the Services, the Products, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the NICK’S CIGARS INC. may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the NICK’S CIGARS INC. may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of this Agreement and shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the NICK’S CIGARS INC. Parties on your behalf.
2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to [Cogency Global Inc., 850 New Burton Road, Suite 201, Dover, Delaware 19904]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’ filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, NICK’S CIGARS INC. will pay them for you. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the US county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
3. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement and any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the NICK’S CIGARS INC. parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the NICK’S CIGARS INC. Parties.
4. Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 13.1, YOU AND THE NICK’S CIGARS INC. PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the NICK’S CIGARS INC. Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
5. Waiver of Class or Other Non-Individualized Relief. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE NICK’S CIGARS INC. PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT, AND CLAIMS OF ONE USER OR PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH CLAIMS OF ANY OTHER USER OR PERSON. If applicable law precludes enforcement of any of this Section 13.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and may be brought into the state or federal courts located in New York in accordance with Section 14.5. All other claims shall be arbitrated.
6. 30-Day Right to Opt-Out. You have the right to opt-out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt-out to the following address: NICK’S CIGARS INC. 05 East 42nd Street, Floor 20, New York NY 10017 or email to contact:email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt-out of this Arbitration Agreement. If you opt-out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
7. Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with NICK’S CIGARS INC..
8. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if NICK’S CIGARS INC. makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing NICK’S CIGARS INC. at the following address: 205 East 42nd Street, Floor 20, New York NY 10017.
14. General Provisions.
1. Electronic Communications. The communications between you and NICK’S CIGARS INC. use electronic means, whether you visit the Services or send NICK’S CIGARS INC. emails, or whether NICK’S CIGARS INC. costs notices on the Services or communicates with you via email. For contractual purposes, you (1) consent to receive communications from NICK’S CIGARS INC. n an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that NICK’S CIGARS INC. provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
2. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without NICK’S CIGARS INC.’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
3. Force Majeure. NICK’S CIGARS INC. shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
4. Questions, Complaints, Claims. If you have any questions, complaints, or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.
5. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and NICK’S CIGARS INC. agree that all claims and disputes arising out of or relating to this Agreement that is not brought in a small claims court pursuant to Section 13.1 will be litigated exclusively in the state courts in New York, NY or federal courts located in the central district of New York.
6. Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
7. Notice. Where NICK’S CIGARS INC. requires that you provide an email address, you are responsible for providing NICK’S CIGARS INC. with your most current email address. In the event that the last email address you provided to NICK’S CIGARS INC. is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement,’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to NICK’S CIGARS INC. at the following address: 205 East 42nd Street, Floor 20, New York, NY 10017. Such notice shall be deemed given when received by NICK’S CIGARS INC. by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
8. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9. Severability. Subject to Section 13.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
10. Export Control. You may not use, export, import, or transfer the Services except as authorized by US law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country and (ii) you are not listed on any US Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by US law.
11. Consumer Complaints. In accordance with NY Civil Code, you may report complaints to the https://www.dos.ny.gov/consumerprotection/form/complaintform.asp or by requesting a consumer complaint form by calling the Consumer Assistance Hotline at (800) 697-1220.
12. Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.