Table of Contents

6. You must follow our rules when using the Websites, or we can prevent you from further use. See below for some specific rules for our users.

TobaccoNerd hereby grants you permission to access and make personal use of the Websites as set forth in these Terms of Service, but not to download or modify the Websites or any portion of the Websites except with express written consent, provided that:

A. Follow our rules and don't break the law.

In connection with use of the Websites, you shall abide by these Terms of Service, the TobaccoNerd Privacy Policy incorporated herein by reference, the TobaccoNerd Disclaimer incorporated herein by reference, and all applicable local, state, federal, and international laws and regulations, including but not limited to laws and regulations pertaining to libel, slander, defamation, harassment, invasion of privacy, tort, obscenity, indecency, and copyright or trademark infringement. The violation of applicable laws and/or regulations may give rise to civil and/or criminal penalties.

B. How not to use the Websites:

i. Don't slam our servers with "robots" or "spiders".

You shall not use or launch any automated system, including without limitation "robots," "spiders," or "offline readers," that accesses the Websites in a manner that sends more request messages to the TobaccoNerd servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser, except as expressly permitted by TobaccoNerd.

ii. Don't systematically collect user data

You agree not to collect or harvest any personally identifiable information, including but not limited to account names, from the Websites. You may collect user data as needed for trades, sales, or other interactions, in accordance with these Terms of Service.

iii. Don't use our sites for commercial purposes

You agree not to use the communication systems provided by the Websites for any commercial solicitation purposes.

C. Don't make unauthorized changes to the Websites

You shall not alter or modify any parts of the Websites, including but not limited to TobaccoNerd's website extensions or any of its related technologies, except as expressly permitted by TobaccoNerd.

D. Really, don't use the sites for unauthorized commercial purposes:

You shall not use the Websites for any commercial purposes without the prior written authorization of TobaccoNerd. Prohibited commercial uses include without limitation any of the following actions taken without TobaccoNerd's express written approval: (i) sale of access to the Website or their related services, such as any website extensions; (ii) use of the Websites or their related services, such as any website extensions or APIs, for the primary purpose of gaining advertising or subscription revenue; (iii) the sale of advertising, on the Websites or any third-party website, targeted to the content of specific User Submissions or TobaccoNerd content; and (iv) any use of the Websites or APIs that TobaccoNerd finds, in its sole discretion, to use TobaccoNerd's resources or User Submissions with the effect of competing with or displacing the market for TobaccoNerd, TobaccoNerd content, or its User Submissions. Prohibited commercial uses do not include the sale of products such as tobacco, pipes, and cigars through the Marketplace or NerdList functionality, so long as you pay the required commission to TobaccoNerd on the gross amount of each such sale generated via the Websites. TobaccoNerd reserves the right to terminate any such sales if they are deemed to be "spam" or fraudulent in TobaccoNerd's sole discretion.

E. Don't make unauthorized copies of anything on the site

You shall not engage in the use, copying, or distribution of any of the User Submissions other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Websites for any commercial purposes. You shall not circumvent, disable, or otherwise interfere with security-related features of TobaccoNerd or features that prevent or restrict use or copying of any User Submissions or enforce limitations on use of TobaccoNerd or the User Submissions therein.

F. Don't do anything else shady with or on our sites:

You shall not frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including but not limited to images, text, page layout, or forms) of TobaccoNerd without express written consent. You shall not use meta tags or any other hidden text utilizing TobaccoNerd's name or trademarks without express written consent. You shall not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any User Submissions.

G. You must abide by proper privacy practices.

You must establish and agree to maintain and adhere to privacy practices for your store(s) that comply with applicable state, federal, and international laws and regulations.

H. You must abide by laws that control what sales can take place with persons outside of the U.S.

United States export control laws govern your use of our services. These laws apply to you and your use of our services regardless of whether you actually reside in the U.S.

You may not use our services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the U.S., but illegal to export. You may not use our services to offer or provide services to end customers with whom U.S. citizens may not do business.

Additional information about U.S. export laws may be obtained from the United States government’s portal to exporting and trade services at the following website: http://www.export.gov/exportcontrols.html.

7. Prohibition Against Rogue Programming

You shall not upload, post, transmit, or otherwise make available in any way through the Websites any software or other materials that contain a computer virus, Trojan horse, bug, time bomb, worm, or other rogue programming ("Rogue Programming"). TobaccoNerd has no obligation to detect the presence of any Rogue Programming. Any download of software, files, or other materials or any other use of the content on TobaccoNerd is at your risk. You are advised to take adequate precautions to minimize any loss to your system caused by Rogue Programming, including use of anti-virus programs and proper backup of files.

8. You and TobaccoNerd are independent contractors. TobaccoNerd is not responsible for any issues you may have with merchants, traders, or any other users.

You and TobaccoNerd are independent contractors, and the Terms of Service are not intended to create, and do not create, any agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between you and TobaccoNerd.

TobaccoNerd has developed a web interface that enables tobacco enthusiasts to buy, sell, and trade tobaccop, learn, and interact with other tobacco enthusiasts. Except for sales made through the Store, sales and trades are between the merchant and the customer and not between TobaccoNerd and the customer. If you experience any issues or problems with an order you place through a store or any product you receive, you should address them with the merchant. TobaccoNerd is not responsible for any issues or problems you may have with the stuff you order from a third party or another user.

TobaccoNerd is not responsible if disputes arise between merchants, traders, or any other users. When you use our services, you release TobaccoNerd from claims, damages, and demands of every kind — known or unknown, suspected or unsuspected, disclosed or undisclosed — related to disputes among merchants, traders, or any other users.

9. Account Termination Policy

TobaccoNerd may terminate a user's access to the Websites if the user is determined, in TobaccoNerd's sole discretion, to have infringed these Terms of Service or the TobaccoNerd Disclaimer. TobaccoNerd reserves the right to decide whether a User Submission is appropriate and complies with these Terms of Service for violations such as, but not limited to, pornographic, obscene, or defamatory material. TobaccoNerd may remove such User Submissions and/or terminate a user's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion. Accounts and the personal information we possess about you will be deleted in accordance with our Privacy Policy. If you have had your account terminated for cause, you are not permitted to create a new account.

10. TobaccoNerd is based in the USA and may not be usable in your country

The Websites are controlled and offered by TobaccoNerd from its facilities in the United States of America. TobaccoNerd makes no representations that the Websites is appropriate or available for use in other locations. Those who access or use the Websites from other jurisdictions do so at their own volition and are responsible for compliance with local law.

11. Digital Millennium Copyright Act

A. Think there is infringing content on TobaccoNerd?

If you are a copyright owner or an agent thereof and believe that any user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent designated below with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The designated Copyright Agent of TobaccoNerd for receipt of notifications of claimed infringement is: Edward Mittelstedt; e-mail: dmca@tobacconerd.com (subject line: "DMCA Takedown Request"); 7930 Xavier Court, Dallas, TX 75218-4512. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, questions, or other communications may not be answered. You acknowledge that if you fail to comply with all of the above requirements, your DMCA Takedown Request may not be valid.

B.Was your content improperly removed because of a DMCA report?

If you believe that your user submission or other content, which was removed (or to which access was disabled) pursuant to the above provision, is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your user submission, then you may send a counter notification to the Copyright Agent at dmca@tobacconerd.com (subject line: "DMCA Counter Notification"), containing the following information:

(i) Your physical or electronic signature;
(ii) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(iii) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Baltimore, Maryland, and a statement that you will accept service of process from the person who provided notification of the alleged infringement or an agent of such person.

If a counter notification is received by the Copyright Agent, then TobaccoNerd may send a copy of the counter notification to the original complaining party informing that person that it may replace the removed content or cease disabling it within 10 business days. Unless the copyright owner files an action seeking a court order against the user who submitted the content, the removed content may be replaced, or access to it restored, in 10 to 14 business days following receipt of the counter notification, at the sole discretion of TobaccoNerd.

12. WE DISCLAIM ANY WARRANTIES. YOUR USE OF OUR WEBSITES AND OUR CONTENT IS AT YOUR OWN RISK.

You agree to assume all responsibility and risk for your use of the Websites and our content. To the fullest extent permissible under applicable law, neither TobaccoNerd nor its related parties make any express or implied warranties or representations whatsoever with respect to the Websites or our content, including but not limited to any warranties of merchantability, non-infringement, and fitness for particular purpose, and all such warranties are expressly disclaimed.

Neither TobaccoNerd nor any related parties endorse or make any representation or warranty with respect to the accuracy, quality, security, reliability, timeliness, or completeness of the Websites or our content or that the Websites or our content is non-defamatory, non-infringing or otherwise lawful. Neither TobaccoNerd nor any related parties warrant that the functions performed by the Websites or our content will be uninterrupted, timely, secure or error-free, or that defects in the Websites or our content will be corrected. Neither TobaccoNerd nor any related parties guarantee or warrant that any files that may be available for downloading will be free from infection by software viruses or other harmful computer code, files, or programs. The Websites and our content are provided on an “as is,” “where is,“ “where available” and “as available” basis. You acknowledge that any reliance on or use of the Websites and our content is at your sole risk.

To the fullest extent provided by law, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of The Websites, any downloads from the Websites, or any other of our services.

13. OUR LIABILITY TO YOU IS LIMITED. THAT MEANS THAT IF YOU SUFFER LOSSES, WE DO NOT HAVE TO FULLY COMPENSATE YOU FOR THEM.

To the fullest extent provided by law, in no event will TobaccoNerd or any related party be liable to any person or entity for any indirect, special, punitive, incidental or consequential damages or damages resulting from lost profits, lost data or business interruption, even if foreseeable, arising out of or in connection with TobaccoNerd’s Website, including, for example:

• the use, inability to use, or the results of use of The Websites, any website linked to the Websites, or our content;
• loss, damage, corruption or recovery of data, or breach of data or system security;
• failure or downtime of the Websites, systems, or services in any way;
• hacking, viruses, malware, or other physical or digital intrusions into our systems, including, for example, those that result in a data breach; and
• our breach of the Terms of Service;

In any case, whether based on warranty, contract, tort or any other legal theory and whether or not TobaccoNerd or a related party is aware of or of advised the possibility of such damages.

You specifically agree that TobaccoNerd will not be liable for any other user’s content or any conduct of a third party and that you assume the full risk of harm or damage from such content and conduct.

In addition to the limitations above in this Section, the total aggregate dollar amount of TobaccoNerd’s liability to you shall not under any circumstances whatsoever exceed the total amount you have actually paid to TobaccoNerd for our services in the twelve (12) month period preceding the event giving rise to the claim. If you have not paid TobaccoNerd any fees during the twelve (12) month period preceding the event giving rise to the claim, our total liability to you shall not exceed $100. However, such limitations will not apply in the event an arbitrator or court of competent jurisdiction issues a final, binding order finding that your damages were caused by TobaccoNerd’s willful misconduct.

This Section does not affect any liability that cannot be excluded or limited under applicable law

14. Indemnification

A. To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless TobaccoNerd, TobaccoNerd, and its owners, operators, officers, directors, employees, affiliates, assigns, and agents, from and against any and all actions, claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys' fees) arising from or in connection with: (i) your use of and access to the Websites; (ii) your violation of any term or provision of these Terms of Service; (iii) your failure to abide by applicable local, state, federal, and international law; (iv) your violation of any third party right, including without limitation any copyright, trademark, property, or privacy right; (v) any claim that one of your User Submissions caused damage to a third party; (vi) any breach of any representation, warranty, or agreement made by you in these Terms of Service; or (vii) your disclosure, use, storage, or processing of personal information in violation of any applicable state, federal, or international privacy laws. TobaccoNerd reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with TobaccoNerd’s defense of such claim. In any case, you may not settle any third-party claim against us unless we consent to such settlement.

This defense and indemnification obligation survives these Terms of Service and your use of the Websites.

15. YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND TOBACCONERD WILL BE RESOLVED THROUGH MANDATORY ARBITRATION IN BALTIMORE, MARYLAND, AND NOT BY A COURT OR BY A JURY.

F. You are waiving your right to bring a claim against us as part of a class-action lawsuit.

We each agree that any dispute, whether arbitrated or brought in small claims court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Without limiting the generality of the preceding sentence, each party agrees to pursue its claims on an individual basis and not to (1) join its claims with any other person or entity’s claims, (2) pursue any claim as a representative of a class, as a private attorney general or in any representative capacity, or (3) participate in a class or collective action or mass action with respect to any claim. It is the express intent of the parties that the arbitrator, or, as applicable, small claims court, shall not have the power to award class or collective relief or to determine or order that the dispute should proceed as a class or collective action, whether in arbitration or in any other forum or venue. The parties understand and acknowledge that by entering into this provision, we each are waiving our respective rights to have a court or jury adjudicate our claims.

G. You elect to use certain appellate rules.

The parties adopt and agree to implement the AAA Optional Appellate Arbitration Rules with respect to any award subject to this arbitration provision. Written notice of appeal shall be provided to the opposing party and the arbitration service and shall comply with the requirements of the AAA Optional Appellate Arbitration Rules or such other arbitration appellate rules to which the parties may agree or which a court may designate pursuant to the process described earlier in this Section.

16. You can’t assign your rights under these Terms of Service, but we can.

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TobaccoNerd without restriction.

17. These Terms of Service are governed by Maryland law and any claims will be dealt with in Maryland.

A. The laws of the State of Maryland govern all matters arising out of or relating to these Terms of Service, without giving effect to conflicts of law principles thereof.

B. In the instance that our agreement with you to use arbitration as set forth in Section 15 is not enforced, you submit to the exclusive jurisdiction of the state and federal courts of the State of Maryland for resolving any claim or dispute arising out of or relating to these Terms of Service.

18. Everything that you and TobaccoNerd have agreed on is contained in our Terms of Service and Privacy Policy.

These Terms of Service, together with the TobaccoNerd Privacy Policy incorporated herein by reference and the TobaccoNerd Disclaimer incorporated herein by reference, constitute the entire agreement between you and TobaccoNerd with respect to the Websites, and supersede and replace any other agreement, document, correspondence, negotiation, conversation, or other written or oral understanding between you and TobaccoNerd with respect to the subject matter of this agreement.

19. Waiver

No waiver of any term of these Terms of Service will be deemed a further or continuing waiver of such term or any other term, and TobaccoNerd's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.