Terms

22nd Century Group, Inc. 

TERMS OF USE

(Effective Date: 1/29/2021)

The following Terms of Use (“Terms”) sets forth the terms and conditions upon which 22nd Century Group, Inc. (hereinafter, “22nd Century”) (“we”, “our”, “us”, and “XXII”) offers you (“you”) access to this website and any associated mobile applications (“Site”).  The Terms of Use incorporate 22nd Century’s Policies and Procedures for marketing its products in a responsible manner in compliance with all applicable laws and regulations.

The Site is owned and operated by XXII.  Unless designated otherwise, the Site’s content is the sole intellectual property of XXII.  XXII’s intellectual property is protected under various laws of the United States, in particular copyright and trademark laws.  Accordingly, you may not publish, distribute, transmit or otherwise use XXII’s intellectual property in any way, without the prior and express written consent of XXII.  You may, however, print information or materials specifically offered and designated as “downloadable,” if you do so for non-commercial and private purposes only.

By accessing or using this Site, you represent and affirm that you have read and agree to be bound by these Terms of Use (as may be amended from time to time) without limitation, qualification, or change.  Any modifications we make to the Terms will be effective immediately.  Your continued use of the Site will be deemed acceptance of the amended Terms.  If you do not wish to be bound by our Terms, you may not access or use the Site.

Access to and use of the Site is subject to the following terms and conditions and all applicable laws and regulations.

RESTRICTIONS ON ACCESS AND USE

Reliance on Information

When registering to use our Site, you agree to provide accurate, current, and complete information about yourself to XXII, to let XXII know of any changes to this information, and to receive notices and communication electronically or otherwise.  Failure to do so may result in termination of your access to and use of our Site.  

We reserve the right, at our sole discretion, to immediately and without notice, suspend or terminate your access to and use of our Site.  We also reserve the right to modify or discontinue your access to and use of our Site temporarily or permanently without notice to you.  You also agree that XXII shall not be liable for any such modifications or any discontinuation of access and use of our Site.

Age Restriction 

You must be at 21 years of age or older to access the Site.  We restrict our Site and our marketing contact list to individuals who have certified that:

  • They are tobacco consumers or know someone who is a tobacco consumer,
  • They are 21 years of age or older,
  • They want to be added to a tobacco company’s marketing contact list and they want to receive content, offers, and advertising from a tobacco company, and
  • They understand that providing false information may constitute a violation of law.

Before a certified adult tobacco consumer is added to our marketing contact list, we independently verify that the tobacco consumer is 21 years of age or older.

Geographic Restrictions  

You agree that you will not access this Site from any territory where the content or use of the Site is illegal.  You are solely responsible for complying with all applicable local laws.

Your Consent

We use the information and content that you provide to us to enforce our marketing policies, improve the Site and our products and services, and/or for marketing purposes (e.g., displaying your comments about our products). 

You agree that XXII can use, without restriction or compensation to you, your personal information and contact information; your comments and electronic submissions; and other material provided to us by you.  You further agree that you shall have no recourse against us for any alleged or actual infringement or misappropriation of any proprietary or other right associated with anything you provide to us.  

You acknowledge and agree that your username, alias, avatar, city and state of residence may appear within the Site and be seen by other adult tobacco consumers who are registered on the Site (“Users”).  You grant XXII the right to use, without obligation or compensation to you, your username, alias, avatar, city and state of residence as well as ideas, comments, suggestions, or materials submitted by you.  You further agree that XXII shall be entitled to, without any compensation or obligation to you, the unrestricted, royalty-free, worldwide, perpetual use of ideas, comments, suggestions, or materials that you submit to us.  Please think carefully before making any submissions to us. 

You agree that XXII shall not be liable for any nonperformance or delay in performance of our Site caused by any act beyond our reasonable control, including but not limited to acts or omissions of third parties, equipment failure, war, strikes, lock-outs, fire, flood, pandemic, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.

You agree that we may change, suspend or discontinue any aspect of our Site at any time, including the availability of any feature or content available on our Site.  We may also impose limits on certain features or restrict your access to all or parts of the Site without notice or liability.

You acknowledge and agree that you, and not XXII, are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment and services needed to access and use the Site and for paying all related charges.

YOUR CONDUCT

The Site is restricted to registered users. With respect to registration, you may not use a username or email address that belongs to or is already being used by another person.  You are responsible for maintaining the confidentiality of the password you may use to access the Site, and you agree not to provide your password or username to any third party.  You are responsible for all information transmitted in connection with your username and you agree to immediately notify us of any unauthorized use of your password or username. You also agree to “log off” and exit your account at the end of each session.

You agree to comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site and any related services.  You agree not to misuse the Site or help anyone else to do so.  For example, you agree not do any of the following in connection with the Site:

  • Share Your PID or other information relating to this Site. 
  • Circumvent any restrictions on access to the Site.
  • Violate the Standard for Robot Exclusion and this Site’s robots.txt files.
  • Create deep links to any content on the Site.  (You may not link to any page on this Site except our home page).
  • Do anything illegal.
  • Share, post or otherwise make available inappropriate content (involving, for example, libelous, defamatory, vulgar, obscene, profane, indecent, offensive, hateful, pornographic, graphic violence, or otherwise objectionable material).
  • Engage in any activity that is harmful to you, the Site, Users, or others (e.g., stalking, harassment, threatening others, communicating hate speech, or advocating violence against others).
  • Transmit or otherwise make available any virus, worm, Trojan horse, spyware, robot, spider, Site search/retrieval application or other computer code, file, or program that is harmful or invasive or that may or is intended to damage, modify, reverse engineer, decompile, disrupt or gather Site content or reproduce or circumvent the navigational structure or presentation of any portion of the Site.
  • Engage in activity that is false or misleading (e.g., impersonating someone else).
  • Infringe upon the rights of others (e.g., unauthorized sharing of content that is protected by copyright, trademark or other proprietary right).
  • Engage in activity that violates the privacy of others.
  • Send solicitations (e.g., charity requests, petitions for signatures, chain letters, letters relating to pyramid schemes or similar documents, or other types of solicitations.)
  • Send spam, including unwanted or unsolicited bulk email, postings, contact requests, SMS (text messages), or instant messages.
  • Help others break these rules.

When investigating alleged violations of these Terms, we reserve the right to review your content to resolve the issue.  You understand and agree that if we, in our sole discretion, believe that you have violated any of the above rules we may:

  • Remove, block or refuse to publish your content for any reason.
  • Disable, suspend, or terminate your PID or otherwise prohibit you from accessing or using the Site. 

CONTENT ON THE SITE

If you become aware of any unlawful, offensive or objectionable materials on the Site, please contact us by telephone or in writing.  If notified of any such information or materials on this Site, we will determine in our sole discretion whether to remove such content from the Site. 

At certain places on the Site, Users may be able to access other Internet addresses via links.  XXII is not affiliated or associated with operators of any third-party websites that link to or are linked from the Site.  We have no control over the information provided on any third-party websites and do not (and cannot) monitor information shared on or via these websites.  You should use caution and common sense when interacting with these websites.  We encourage you not to share, post or otherwise disclose personally identifying or other sensitive information on any third-party website.

We expressly disclaim any responsibility for the accuracy, content, or availability of information found on third-party websites.  YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEBSITES AND RESOURCES.

We are not responsible for monitoring, screening, policing or editing the information or materials posted on third-party sites.  You acknowledge and agree that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of third-party websites. 

You acknowledge and agree that any opinions, advice, statements, services, offers, or other information or content expressed in third-party websites are those of the respective author(s) or distributor(s) and not of XXII.  It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through third-party websites.  Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.

The inclusion of a link to a third-party site or reference to any specific commercial product, process or service by trademark name, trademark, service mark, manufacturer or otherwise does not constitute or imply endorsement, association, recommendation or favoring by us.

WARNING:  ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SITE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY SUCH MATERIAL. 

PRIVACY POLICY

You can learn about our privacy practices by reading our Privacy Policy.  By accessing or using the Site, you agree that your information and content will be handled in accordance with our Privacy Policy (as it may be amended by us from time to time).

Termination and Enforcement
You agree that: (a) XXII, at its sole discretion and without prior notice, may terminate your access to or use of the Site, at any time and for any reason, including a determination by XXII that you have violated or acted inconsistently with the letter or spirit of these Terms of Use; and (b) XXII shall not be liable to you or any third party for any termination of your access to the Site.

Intellectual Property Issues

The Site and its contents are protected by copyright, trademark, patent and other laws of the United States and may be protected by the same or similar laws of other countries.  

Upon receiving written notice, it is our policy to investigate and respond to claims of intellectual property infringement.  If you believe that the Site contains any material that infringes your or another party’s rights under the Digital Millennium Copyright Act (“DMCA”), please provide notification to us that includes all the following information: 

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that is alleged to have been infringed, including the electronic location, such as the URL (i.e., the web page address) where the copyrighted work exists, or a copy of the copyrighted work;
  • The URL or other specific location where the allegedly infringing material is located;
  • The address, telephone number, and e-mail address of the notifying party;
  • A statement by you that you have a good faith belief that the use of the material is not authorized by the copyright owner, its agent, or the law; and
  • A statement by you, made under penalty of perjury, that the information in the notification is accurate that you are the copyright owner or the owner’s authorized agent.  

Please send your notification to the following:

  • By Mail: 22nd Century Group, Inc. 500 Seneca Street, Suite 507, Buffalo, NY 14204
  • By Email: VLN@xxiicentury.com

    LIMITATION OF LIABILITY AND DISCLAIMERS
    XXII PROVIDES THE SITE AND THE INFORMATION AND MATERIALS CONTAINED ON THE SITE “AS IS” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND.  

We do not guarantee continuous, uninterrupted, error-free or secure access to the Site.  Operation of the Site may be interfered with by numerous factors outside of our control.  XXII and our officers, Directors, employees, shareholders, and agents specifically disclaim all statutory or implied representations and warranties with respect to the Site, including the representations and warranties of satisfactory quality, title, merchantability, fitness for a particular purpose, and non-infringement.  XXII makes no representation or warranty that any particular software or hardware will be compatible with the Site. 

XXII and our officers, Directors, employees, shareholders, or agents are not liable for (1) any indirect, incidental, consequential, special, exemplary or punitive damages of any kind in connection with the Site, nor for any damages for loss of profits, loss of use, loss of data, loss of other intangibles, loss of security of information you have provided in connection with your use of the Site, or unauthorized interception of any such information by third parties, and (2) damages of any kind resulting from your use of the Site.  

We disclaim any liability for any damages, losses, injuries, or expenses caused by or resulting from your use of the Site, including any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of digital records, whether for breach of contract, intentional interference, negligence, or under any other cause of action.  You specifically acknowledge that we are not liable for the foregoing or for any defamatory, offensive or illegal conduct of other Users of the Site or third parties.

You agree that (1) it is your sole responsibility to ensure that any software or hardware you use will function correctly with the Site; (2) it is your sole responsibility to evaluate the accuracy, completeness, or usefulness of any information or materials made available through the Site; and (3) you bear all risks associated with the use of the Site, including any reliance you place on any information or materials made available through the Site.  Your sole and exclusive remedy for dissatisfaction with the Site is to stop using the Site.

While we intend for our Terms of Use to be as broad and inclusive as is permitted by law, we agree that (1) the limitation on liability will not apply to claims brought by consumers for damages caused by our intentional, reckless or grossly negligent conduct and (2) the indemnification obligations will not apply to claims caused by our intentional, reckless or grossly negligent conduct.  

INDEMNITY

You agree to indemnify and hold XXII and our officers, Directors, employees, shareholders, and agents harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of the Terms of Use or the documents it incorporates by reference, or your violation of any law or the rights of a third party.

RESOLVING DISPUTES

We value our relationship with you, and we want to address your concerns without the need for litigation. Before filing a claim against us, you agree to try to resolve the dispute informally by contacting XXII via email at vln@xxiicentury.com or regular mail sent to 22nd Century Group, Inc. 500 Seneca Street, Suite 507, Buffalo, NY 14204.

We may need information from you to try to investigate or address your concerns and you agree to provide information necessary to investigate and address any issues that may arise.  If a dispute is not resolved within 45 days after we receive the necessary information from you, either you or we may bring a formal proceeding.

You agree that: (1) you may only resolve disputes with us on an individual basis; (2) you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action; and (3) class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

Both you and we agree to resolve any claims relating to the Terms through final and binding arbitration.  You can decline this agreement to arbitrate by sending us a detailed opt-out notification at the following address within 30 days after you have sent us the necessary information regarding the dispute.

22nd Century Group, Inc. 500 Seneca Street, Suite 507, Buffalo, NY 14204

The arbitration will be held in the United States county where you live or work; Buffalo, New York; or any other location we agree to.  If the parties are unable to mutually agree upon a location for the arbitration within 60 days after you submit the necessary information to us regarding the dispute, then XXII will have the exclusive right to select the location for the arbitration.

If, at our sole discretion, we do not find the agreement to arbitrate applies to you or your claim, you agree that any judicial proceeding will be brought in the federal or state courts of Buffalo, New York.  You consent to venue and personal jurisdiction there. 

Either party may bring a lawsuit to stop abuse of the Site, intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights), defamation or libel without first engaging in arbitration or the informal dispute-resolution process described above.  Neither the agreement to cooperate nor the agreement to arbitrate prevents XXII from:  (1) removing, blocking or refusing to publish your content for any reason; or (2) disabling, suspending, or terminating your PID or otherwise prohibiting you from accessing or using the Site. 

Governing Law
The Site’s Terms of Use is governed by the laws of the State of New York.  The Terms shall be construed, interpreted, and enforced according to New York law WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES in any litigation, arbitration or legal proceedings arising out of your use of the Site or these Terms.  

You and XXII agree to submit to the personal and exclusive jurisdiction of the courts located within the State of New York and waive any jurisdictional, venue, or inconvenient forum objections to such courts.  You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose.  

Your conduct may be subject to other laws.  Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this Governing Law section.

ELECTRONIC SIGNATURE AND NOTICES

Your affirmative act of registering for an account on the Site constitutes your electronic signature to these Terms of Use and your consent to enter into agreements with XXII electronically.  All agreements completed electronically will be deemed to be in writing and legally enforceable as a signed writing for all legal purposes.

You also agree that XXII may send you notices or other communications in electronic form (e.g., emails, banners, text messages, etc.). We may send you electronic notices or other communications to the email address(es) and/or mobile phone number(s) that you provide to us, or by posting any notices or other communications on the Site. The delivery of any notices or other communications from us is effective when sent by us, regardless of whether you read such notices or other communications when you receive it or whether you actually receive the delivery.

MISCELLANEOUS

You and XXII are independent contractors, and no agency, partnership, joint venture, employee-employer or franchise-franchisee relationship is intended or created.

The information, software, products, offers, data and services published on the Site may contain inaccuracies or typographical errors which we reserve the right (without notice) to unilaterally correct.

Except where expressly permitted, any copying, reproduction, display, or retransmission of the contents or any portion of the contents of the Site is strictly prohibited. 

If any provision of the Terms is held to be unlawful, void, invalid or unenforceable, such provision will be deleted.  The remaining provisions of the Terms will remain in force.

Headings of sections in the Terms are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

The Terms sets forth the entire understanding and agreement between you and XXII with respect to the subject matter hereof.

A printed version of the Terms and any notices given in electronic form shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records generated and maintained in printed form.

Changes to these Terms

We reserve the right to change these Terms at any time at our sole and exclusive discretion.  We will post a notice of changes to these Terms on this Site.  By continuing to use this Site after a change is made, you accept and agree to be bound by the modified Terms.  Only XXII may alter these Terms.