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Terms and Conditions of Service
Last updated: January 7, 2022
These Terms and Conditions of Service (these “Terms”) govern the relationship between you and Smoking Gun Interactive Inc. (“Smoking Gun”, “we”, “our” or “us”), and serve as a legally binding agreement, between you and us and set forth the terms and conditions on which you may access and use (a) the website operated at www.smokingguninc.com, www.phobies.com, forums moderated by us in relation to our products and services, and other locations from time to time (the “Website”), (b) the video game titled Phobies and any other applications or other software we provide you (the “Application”) either through the Website or through any application distribution platforms such as the Apple App Store or the Google Play Store, and excluding all third-party software that may interact with the Service as defined below, and (c) the services we provide through the Website and the Application (collectively, the “Service”).
THESE TERMS CONTAIN LEGAL OBLIGATIONS AND FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. PLEASE TAKE THE TIME TO READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS ON DAMAGES YOU MAY CLAIM AGAINST US AND INDEMNIFICATION OBLIGATIONS YOU OWE TO US. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS THE SERVICES.
PLEASE NOTE THAT DIFFERENT TERMS MAY APPLY TO YOU BASED ON WHERE YOU LIVE. MAKE SURE YOU READ THE JURISDICTION-SPECIFIC TERMS FOR YOUR COUNTRY OF RESIDENCE, AS APPLICABLE.
CLASS ACTION WAIVER NOTICE FOR USERS IN THE UNITED STATES: UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE JURISDICTION-SPECIFIC LANGUAGE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
THE SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 13, AND SPECIAL CONDITIONS APPLY TO MINORS. IF YOU ARE AT LEAST AGE 13 BUT BELOW THE AGE OF MAJORITY IN YOUR STATE OR PROVINCE OF RESIDENCE, YOU MAY ONLY USE THE SERVICE UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN WHO AGREES TO BE BOUND BY THESE TERMS.
BY SELECTING “I ACCEPT” OR BY USING OR ACCESSING THE SERVICE, YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THESE TERMS AND OUR PRIVACY POLICY https://www.smokingguninc.com/privacy-policy, WHICH FORMS AN ESSENTIAL PART OF THESE TERMS. YOU MAY NOT USE THE SERVICES FOR ANY REASON NOT EXPRESSLY ALLOWED BY THESE TERMS, OR IN ANY WAY THAT CONTRAVENES THESE TERMS AND CONDITIONS.
IF YOU (A) DO NOT AGREE TO THESE TERMS OR THE PRIVACY POLICY; (B) ARE AT LEAST 13 YEARS OF AGE; OR (C) IF YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE BY LOCAL LAWS WHICH ARE APPLICABLE TO YOU, YOU MUST NOT ACCESS OR USE THE SERVICE.
1) Changes to the Terms
We may amend these Terms from time to time for any reason, including to reflect changes to the Service, our users' needs, our business priorities, and the law. We will notify all users of any material changes to these Terms, such as through a notice on our Service. However, you should also look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflect the effective date of such Terms. Your continued access or use of the Service after the date of the new Terms constitutes your acceptance of, and agreement to be bound by, the new Terms. If you do not agree to the new Terms, you must stop accessing or using the Service.
2) Your Account and Security
You hereby agree to: (a) provide true, accurate, current and complete information about yourself as requested by any registration forms on the Service (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. By providing Registration Data to us through the Service, you will provide personal account information (your “User Account”). You hereby agree to be fully responsible for: (w) all use of your User Account; (x) any action that takes place using your User Account by any person or automated process; (y) maintaining the confidentiality and security of your User Account and passwords; and (z) immediately notifying us upon any unauthorized use of your password or User Account, or if you know of any other breach of security in relation to the Website or Service. We will not be liable for any loss or damage arising from any unauthorized use of your account(s).
3) Fees and Refunds
a) Payment Information: You may access certain portions of the Service for free, but you may be required to pay a fee to access certain features of the Service or to gain access to certain virtual items. All purchases are processed and made through the Apple iTunes Store or the Google Play store (each a “Third Party App Store”). You agree to provide accurate and complete payment information to Apple or Google. You further agree to pay all fees and taxes incurred by your account. We reserve the right to change the pricing of the Service and any paid virtual items from time to time as we may determine in our sole discretion. Any change will not affect virtual items you have already purchased at the time the change comes into effect.
The sale is final and we will not provide a refund unless otherwise required by applicable law. Your purchase will be subject to the applicable payment policy of Steam.
b) Automatically Renewing Subscriptions: If you purchase a membership to the Service (a “Subscription”), except where prohibited by law, it will automatically renew at the beginning of each billing period on the same terms until you cancel using any of the cancellation methods below. To check your next renewal date, log on to your Third-Party App Store account and look at the last payment date for your Subscription.
c) Modifications to Service and Pricing:
i) We reserve the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of the Service in our sole discretion.
ii) In addition, we may modify our fees from time to time. In the event you are accessing the Service under a Subscription and the Subscription fee for the Service you are using has been modified such that you are required to pay a different fee than at the time you entered into these Terms, you will (a) be notified at the email address for you on file at least thirty (30) days before you are billed at the different rate, and (b) have the opportunity to cancel your Subscription. If you do not cancel your Subscription before the next billing renewal date, you will be deemed to have accepted the new fees.
d) REFUNDS: SUBJECT TO SECTION 11 OF THESE TERMS, UNLESS PROHIBITED BY APPLICABLE LAW, ALL PURCHASES, INCLUDING RECURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.
e) TAXES: Except as may be collected by us from as required by applicable law and as indicated on an order confirmation page, you are solely responsible for determining whether any taxes, including sales, value-added, or other taxes, levies, or duties, apply to your transactions on the Service and at all times, you are solely responsible for the payment of any such, applicable taxes.
4) Intellectual Property Rights; Limited Licence
a) Intellectual Property Rights: As between you and us, we own any and all rights, title, and interest in and to the Service and any and all data and content made available in and through the Service, including all software, computer code, tools, patches, updates, images, text, graphics, illustrations, logos, photographs, images, pictures, audio, sound effects, sound recordings, videos, and “look and feel” of the Service, and all intellectual property rights related to the foregoing and the Service (“Our Content”). Put simply, the Service and Our Content (including all components thereof) are the property of their respective owners and are protected by copyright, trademark, patent, or other proprietary rights.
b) Limited Licence: You acknowledge and agree that you have no ownership rights in the Service or Our Content, and you only have a non-exclusive, personal, non-transferable, non-sublicensable, revocable, limited licence to access and use the Service and to access Our Content solely for your personal, non-commercial use. We reserve all rights not expressly granted herein in the Service (including Our Content).
c) You acknowledge that your use of Our Content for any purpose not expressly permitted by these Terms is strictly prohibited. Our Content may not be, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. You cannot create any work of authorship or proprietary right based on the Service (including Our Content). You will only use the Service as may be expressly provided in this Agreement or to the extent permitted by law or (if applicable) relevant open source licences. We and our licensors reserve all rights not expressly granted in and to their content.
d) Where our Service may contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval or endorsement by us of those linked websites or information you may obtain from them, and we are not responsible for any consequences that may arise from your access or use of such sites or resources.
5) Interactive Functions
a) The Service may contain interactive functionality such as applications, features, promotions, games, contests, chat functionality, e-mail, message boards, personal, or interest group web pages, profiles, forums, bulletin boards and other such functions (collectively, "Interactive Functions") allowing content, material, or information you submit, post, publish, display, or transmit (collectively, "submit") to the Service, to be viewed or used by us, other users or other persons via the Service (collectively, "User Submissions") on or through the Service.
b) None of the User Submissions you submit to the Service will be confidential. By providing any User Submission to the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees (including broadcasters), successors, and assigns the right to a world-wide, royalty free, perpetual, irrevocable, transferrable, sublicensable (including via multiple tiers of sublicensing), non-exclusive licence to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose and to incorporate such material into any form, medium, technology, or other derivative work throughout the world without compensation to you. By submitting User Submissions, you further waive any moral rights or other rights of authorship in and to any such User Submissions in favour of the Company.
c) By submitting the User Submissions, you are deemed to have warranted, and you agree, that you own or have the necessary rights to submit the User Submissions and have the right to grant the licence to the User Submissions described above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns. You represent and warrant that all User Submissions comply with applicable laws and regulations and these Terms.
d) You understand and agree that you are fully responsible for any User Submissions you submit or contribute, and you are fully responsible and legally liable, including to any third party, for such content, its accuracy, and your rights to use it. We are not responsible or legally liable to any third party for the content, accuracy, or infringing nature of any User Submissions submitted by you, and you agree to indemnify and defend us against any claims, lawsuits, or disputes brought by third parties based on the content of your User Submissions.
6) Feedback
a) While we are continually working to develop, evaluate, and improve our own product ideas and features, we also pay attention to the interests, feedback, comments, and suggestions we receive from our user community. If you choose to contribute by sending us any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, in order to avoid any misunderstandings the following terms will apply to the Feedback. Accordingly, by sending Feedback to us, you agree that:
i) Smoking Gun has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
ii) Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
iii) You irrevocably grant us an irrevocable, worldwide, perpetual, royalty-free, and unlimited licence to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified without any further compensation to you.
7) Equipment Requirement
To use the Service, you may need certain hardware, software, capabilities and other resources (including a suitable connection to the Internet). You are solely responsible for procuring and maintaining such resources at your own cost.
8) Updates, Interruption, and Termination
a) Updates: From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Service for free or for a fee. You understand that your access to certain features of the Service might be affected by such updates. We may require you to download and install the updates or the updated version of the application to continue to use the Service. You also agree that we may use background patching to automatically update our Service and software with or without notice to you. You also understand that such updates may affect the necessary system specification required to use the Service. In such case, you are responsible for any necessary equipment to continue to access the Service.
b) Interruption: You acknowledge that the Service or any part thereof may be interrupted for maintenance or reasons beyond our control, and we cannot guarantee that the Service will be uninterrupted. We will not be liable for any interruption of the Service, delay, or failure to perform resulting from any causes whatsoever. Additionally, the Service may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Service at any time in our sole discretion, for any reason, or for no reason, with or without notice.
c) Suspension or Termination: We reserve the right to suspend or terminate your access to the Service at any time for any reason, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which would or might (i) cause damage to or impair the Service or infringe or violate any third party rights (including intellectual property rights), or (ii) violate any applicable laws or regulations. Termination or suspension of your account also entails the termination or suspension of your licence to use the Service, or any part thereof. If we suspend or terminate your account, we will notify you by email.
9) Code of Conduct
Your access to and use of the Service is subject to these Terms and all applicable laws and regulations. You may not:
a) access or use the Service if you are not fully able and legally competent to agree to these Terms;
b) except as expressly permitted by these Terms or applicable law, make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, or create any derivative works of the Service or any content included therein, including any software, or determine or attempt to determine any source code, algorithms, methods, or techniques embodied by the Service or any derivative works thereof;
c) distribute, license, transfer, or sell, in whole or in part, any of the Service or any derivative works thereof;
d) license, transfer, or sell, in whole or in part, your Service account, including your username;
e) market, rent, or lease the Service for a fee or charge, or use the Service to advertise or perform any commercial solicitation;
f) use the Service, without our express written consent, for any commercial, political, or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
g) interfere with or attempt to interfere with the proper working of the Service, disrupt our website (if any), or any networks connected to the Service, or bypass any measures we may use to prevent or restrict access to the Service;
h) incorporate the Service or any portion thereof into any other program or product;
i) use automated scripts, software, code, or systems to collect information from or otherwise interact with the Service;
j) impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute, or otherwise make available emanates from the Service;
k) intimidate or harass another user;
l) promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
m) use or attempt to use another user’s account, service, or system without authorization from Smoking Gun;
n) use the Service in a manner that may create a conflict of interest or undermine the purposes of the Service;
o) use the Service to upload, transmit, distribute, store, or otherwise make available in any way:
i) files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation; any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., social security numbers, passport numbers, etc.), or credit card numbers; any material which does or may infringe any copyright, trade mark, or other intellectual property or privacy rights of any other person; any material which is defamatory of any person, obscene, offensive, pornographic, hateful, or inflammatory; any material that would constitute, encourage, or provide instructions for a criminal offence, dangerous activities, or self-harm; any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence; any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability, or sexuality;
ii) any answers, responses, comments, opinions, analysis, or recommendations that you are not properly licensed or otherwise qualified to provide; or
iii) material that restricts or inhibits any other person from using the Service, or which may expose us, the Service, or its users to any harm or liability of any type.
p) We reserve the right, at any time and without prior notice, to remove or disable your access to the Service, including Our Content, at our discretion for any reason or no reason. Some of the reasons for which we may remove or disable access to your Service may include finding that you have violated these Terms, or that your actions are harmful to the Service or our users.
10) Indemnity
You agree to, at your sole cost, defend, indemnify, and hold harmless Smoking Gun, our parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, suppliers, and advisors, from and against any and all claims, liabilities, costs, fines, penalties, and expenses, including legal fees and expenses, arising out of or in any way connected with any of the following: (i) a breach by you, or any user of your account, of any applicable obligation, representation, or warranty under these Terms; (ii) our use or publication of your User Submissions or Feedback infringes any third party intellectual property rights; (iii) your access to or use of, or activities in connection with, the Service; (iv) your violation of any applicable laws, rules, regulations, or contracts; or (v) any misrepresentation made by you (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by us in the defense of any Claims and Losses. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We reserve the right to assume the exclusive defense and control of any Claims and Losses at our own cost. You will not settle any Claims and Losses without, in each instance, our prior written consent or the consent of an individual whom we authorize, in writing, to approve such settlement.
11) DISCLAIMER OF WARRANTIES
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS OR LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. HOWEVER, TO THE MAXIMUM PERMITTED EXTENT UNDER APPLICABLE LAWS, YOU AGREE THAT THESE PROVISIONS ARE INTENDED TO APPLY TO YOU.
THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
a) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
b) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR;
c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR
d) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
NO CONDITIONS, WARRANTIES, OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE, OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS. WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.
YOUR USE OF THE SERVICES MAY DEPEND ON THE INTERNET, INCLUDING NETWORKS, CABLING, FACILITIES, AND EQUIPMENT THAT IS NOT IN OUR CONTROL. ACCORDINGLY: (I) WE CANNOT GUARANTEE ANY MINIMUM LEVEL REGARDING SUCH PERFORMANCE, SPEED, RELIABILITY, AVAILABILITY, USE, OR CONSISTENCY; AND (II) YOU ACKNOWLEDGE AND AGREE THAT DATA, MESSAGES, INFORMATION, OR MATERIALS SENT OVER THE INTERNET MAY NOT BE COMPLETELY PRIVATE, AND YOUR ANONYMITY IS NOT GUARANTEED.
WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT SERVICES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES, AND YOUR COMPUTER, INTERNET, AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY USER ERROR INCLUDING YOUR FAILURE TO REMEMBER OR LOSS OF PASSWORDS OR SIMILAR AUTHENTICATORS, FAILURES OF THE PUBLIC INTERNET, DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICES LINKED TO IT.
12) LIMITATION OF LIABILITY
NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS, OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
SUBJECT TO THE PARAGRAPH ABOVE, WE WILL NOT BE LIABLE TO YOU FOR: (I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY); (II) ANY LOSS OF GOODWILL OR BUSINESS REPUTATION; (III) ANY LOSS OF OPPORTUNITY OR BUSINESS; (IV) ANY LOSS OF DATA SUFFERED BY YOU; (V) ANY INTERRUPTION OF BUSINESS; OR (VI) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU. ANY OTHER LOSS WILL BE LIMITED TO THE LESSER OF: (A) THE AMOUNT PAID BY YOU TO US WITHIN 6 MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE CLAIM AROSE; AND (B) CAD$100.00.
WE WILL ALSO NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
a) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
b) ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
c) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
d) YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
e) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
THESE LIMITATIONS ON OUR LIABILITY TO YOU WILL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
13) Privacy Policy
You also acknowledge that our Privacy Policy will also apply to your use of our Service. https://www.smokingguninc.com/privacy-policy Our Privacy Policy can be found directly on the Service, or, if applicable, where the Service are made available for download on your mobile device’s applicable app store, and are incorporated herein by reference.
14) Copyright Claims
If you believe that anything on the Service infringes upon any copyright which you own or control, you may file a notification of such infringement to the following contact information: [email protected]
The notification must be a written communication that includes the following:
a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) if the complaint is about copyright or other intellectual property rights, identification of the copyrighted work or other intellectual property right claimed to have been infringed, or, if multiple infringements are covered by a single notification, a representative list of such infringements;
c) if the complaint is about objectionable content, the reasons for the objection;
d) identification of the material that you are objecting to and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
e) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
f) a statement that the information in the notification is accurate; and
g) if the complaint is about copyright or other intellectual property rights, a statement under penalty of perjury, that (i) the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (ii) the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the owner thereof, its agent or the law.
15) Governing Law, Class Action Waiver, and Choice of Forum
a) The Service and these Terms will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provisions or rules.
b) Any action or proceeding arising out of or relating to the Service and under these Terms will be instituted in the courts of British Columbia sitting in the City of Vancouver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding, and you waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
c) You and we agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these Terms, the Service or to any dispute or transaction arising out of these Terms or the use of the Service. We reserve the right to prosecute civil claims against you for any violation of these terms, the Privacy Policy, or any other governing terms and conditions related to the Services, whether for breach of contract, violation of common law rights, or violation of any applicable state or federal statute.
d) To the maximum extent permitted by the consumer protection or other applicable laws in your jurisdiction of residence, any disputes must be conducted on an individual basis only, and neither you nor the Company shall be entitled to join or consolidate disputes by or against other individuals or entities, or to arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity, in connection with any dispute under these Terms or in connection with the Service. This paragraph does not apply to the extent the laws of your jurisdiction would not permit it (for example, in Ontario to the extent relating to matters governed by the Consumer Protection Act, 2002 (Ontario).
This “Governing Law, Class Action Waiver, and Choice of Forum” section will be interpreted as broadly as the applicable consumer protection law of your jurisdiction permits.
16) Miscellaneous
a) Interpretation. In these Terms, (a) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (b) the word “including”, the word “includes” the phrase “such as”, and similar words and phrases, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (c) all references to Service shall also include any successor or replacement applications, websites, content, or services containing substantially similar information as the referenced Service(s).
b) Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
c) Entire Agreement. The Terms and our Privacy Policy constitute the sole and entire agreement between you and the Company regarding the Service and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
d) Force Majeure. We shall not be liable for delays, failure in performance or interruption of the Service that result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, strike or other labor dispute, fire, epidemic, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
e) No Waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
f) Survival. All provisions that, by their meaning or nature, are intended to survive termination or expiry of these Terms shall survive termination or expiration of these Terms.
g) Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
h) Social Networks. If at any time the Service include features that operate in conjunction with certain third party social networking websites that you visit (“Social Network Features”), your use of the Social Network Features is governed by these Terms, but your access and use of third party social networking websites and the Service provided through these websites is governed by the Terms of Use and other agreements posted on these websites. You agree that you alone are responsible for your use of the social network features and that we will not be liable to you or anyone else for your violation or breach of any terms of use or other agreement that may result from your use of the Social Network Features
i) Translations. In the event of any conflict or inconsistency between the Terms in the English and any translation thereof in any other language, the English version will prevail, except for in Quebec, in which the French version will prevail.
j) Any Questions? Get in touch at [email protected]
Last updated: January 7, 2022
These Terms and Conditions of Service (these “Terms”) govern the relationship between you and Smoking Gun Interactive Inc. (“Smoking Gun”, “we”, “our” or “us”), and serve as a legally binding agreement, between you and us and set forth the terms and conditions on which you may access and use (a) the website operated at www.smokingguninc.com, www.phobies.com, forums moderated by us in relation to our products and services, and other locations from time to time (the “Website”), (b) the video game titled Phobies and any other applications or other software we provide you (the “Application”) either through the Website or through any application distribution platforms such as the Apple App Store or the Google Play Store, and excluding all third-party software that may interact with the Service as defined below, and (c) the services we provide through the Website and the Application (collectively, the “Service”).
THESE TERMS CONTAIN LEGAL OBLIGATIONS AND FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. PLEASE TAKE THE TIME TO READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS ON DAMAGES YOU MAY CLAIM AGAINST US AND INDEMNIFICATION OBLIGATIONS YOU OWE TO US. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS THE SERVICES.
PLEASE NOTE THAT DIFFERENT TERMS MAY APPLY TO YOU BASED ON WHERE YOU LIVE. MAKE SURE YOU READ THE JURISDICTION-SPECIFIC TERMS FOR YOUR COUNTRY OF RESIDENCE, AS APPLICABLE.
CLASS ACTION WAIVER NOTICE FOR USERS IN THE UNITED STATES: UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE JURISDICTION-SPECIFIC LANGUAGE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
THE SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 13, AND SPECIAL CONDITIONS APPLY TO MINORS. IF YOU ARE AT LEAST AGE 13 BUT BELOW THE AGE OF MAJORITY IN YOUR STATE OR PROVINCE OF RESIDENCE, YOU MAY ONLY USE THE SERVICE UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN WHO AGREES TO BE BOUND BY THESE TERMS.
BY SELECTING “I ACCEPT” OR BY USING OR ACCESSING THE SERVICE, YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THESE TERMS AND OUR PRIVACY POLICY https://www.smokingguninc.com/privacy-policy, WHICH FORMS AN ESSENTIAL PART OF THESE TERMS. YOU MAY NOT USE THE SERVICES FOR ANY REASON NOT EXPRESSLY ALLOWED BY THESE TERMS, OR IN ANY WAY THAT CONTRAVENES THESE TERMS AND CONDITIONS.
IF YOU (A) DO NOT AGREE TO THESE TERMS OR THE PRIVACY POLICY; (B) ARE AT LEAST 13 YEARS OF AGE; OR (C) IF YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE BY LOCAL LAWS WHICH ARE APPLICABLE TO YOU, YOU MUST NOT ACCESS OR USE THE SERVICE.
1) Changes to the Terms
We may amend these Terms from time to time for any reason, including to reflect changes to the Service, our users' needs, our business priorities, and the law. We will notify all users of any material changes to these Terms, such as through a notice on our Service. However, you should also look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflect the effective date of such Terms. Your continued access or use of the Service after the date of the new Terms constitutes your acceptance of, and agreement to be bound by, the new Terms. If you do not agree to the new Terms, you must stop accessing or using the Service.
2) Your Account and Security
You hereby agree to: (a) provide true, accurate, current and complete information about yourself as requested by any registration forms on the Service (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. By providing Registration Data to us through the Service, you will provide personal account information (your “User Account”). You hereby agree to be fully responsible for: (w) all use of your User Account; (x) any action that takes place using your User Account by any person or automated process; (y) maintaining the confidentiality and security of your User Account and passwords; and (z) immediately notifying us upon any unauthorized use of your password or User Account, or if you know of any other breach of security in relation to the Website or Service. We will not be liable for any loss or damage arising from any unauthorized use of your account(s).
3) Fees and Refunds
a) Payment Information: You may access certain portions of the Service for free, but you may be required to pay a fee to access certain features of the Service or to gain access to certain virtual items. All purchases are processed and made through the Apple iTunes Store or the Google Play store (each a “Third Party App Store”). You agree to provide accurate and complete payment information to Apple or Google. You further agree to pay all fees and taxes incurred by your account. We reserve the right to change the pricing of the Service and any paid virtual items from time to time as we may determine in our sole discretion. Any change will not affect virtual items you have already purchased at the time the change comes into effect.
The sale is final and we will not provide a refund unless otherwise required by applicable law. Your purchase will be subject to the applicable payment policy of Steam.
b) Automatically Renewing Subscriptions: If you purchase a membership to the Service (a “Subscription”), except where prohibited by law, it will automatically renew at the beginning of each billing period on the same terms until you cancel using any of the cancellation methods below. To check your next renewal date, log on to your Third-Party App Store account and look at the last payment date for your Subscription.
c) Modifications to Service and Pricing:
i) We reserve the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of the Service in our sole discretion.
ii) In addition, we may modify our fees from time to time. In the event you are accessing the Service under a Subscription and the Subscription fee for the Service you are using has been modified such that you are required to pay a different fee than at the time you entered into these Terms, you will (a) be notified at the email address for you on file at least thirty (30) days before you are billed at the different rate, and (b) have the opportunity to cancel your Subscription. If you do not cancel your Subscription before the next billing renewal date, you will be deemed to have accepted the new fees.
d) REFUNDS: SUBJECT TO SECTION 11 OF THESE TERMS, UNLESS PROHIBITED BY APPLICABLE LAW, ALL PURCHASES, INCLUDING RECURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.
e) TAXES: Except as may be collected by us from as required by applicable law and as indicated on an order confirmation page, you are solely responsible for determining whether any taxes, including sales, value-added, or other taxes, levies, or duties, apply to your transactions on the Service and at all times, you are solely responsible for the payment of any such, applicable taxes.
4) Intellectual Property Rights; Limited Licence
a) Intellectual Property Rights: As between you and us, we own any and all rights, title, and interest in and to the Service and any and all data and content made available in and through the Service, including all software, computer code, tools, patches, updates, images, text, graphics, illustrations, logos, photographs, images, pictures, audio, sound effects, sound recordings, videos, and “look and feel” of the Service, and all intellectual property rights related to the foregoing and the Service (“Our Content”). Put simply, the Service and Our Content (including all components thereof) are the property of their respective owners and are protected by copyright, trademark, patent, or other proprietary rights.
b) Limited Licence: You acknowledge and agree that you have no ownership rights in the Service or Our Content, and you only have a non-exclusive, personal, non-transferable, non-sublicensable, revocable, limited licence to access and use the Service and to access Our Content solely for your personal, non-commercial use. We reserve all rights not expressly granted herein in the Service (including Our Content).
c) You acknowledge that your use of Our Content for any purpose not expressly permitted by these Terms is strictly prohibited. Our Content may not be, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. You cannot create any work of authorship or proprietary right based on the Service (including Our Content). You will only use the Service as may be expressly provided in this Agreement or to the extent permitted by law or (if applicable) relevant open source licences. We and our licensors reserve all rights not expressly granted in and to their content.
d) Where our Service may contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval or endorsement by us of those linked websites or information you may obtain from them, and we are not responsible for any consequences that may arise from your access or use of such sites or resources.
5) Interactive Functions
a) The Service may contain interactive functionality such as applications, features, promotions, games, contests, chat functionality, e-mail, message boards, personal, or interest group web pages, profiles, forums, bulletin boards and other such functions (collectively, "Interactive Functions") allowing content, material, or information you submit, post, publish, display, or transmit (collectively, "submit") to the Service, to be viewed or used by us, other users or other persons via the Service (collectively, "User Submissions") on or through the Service.
b) None of the User Submissions you submit to the Service will be confidential. By providing any User Submission to the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees (including broadcasters), successors, and assigns the right to a world-wide, royalty free, perpetual, irrevocable, transferrable, sublicensable (including via multiple tiers of sublicensing), non-exclusive licence to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose and to incorporate such material into any form, medium, technology, or other derivative work throughout the world without compensation to you. By submitting User Submissions, you further waive any moral rights or other rights of authorship in and to any such User Submissions in favour of the Company.
c) By submitting the User Submissions, you are deemed to have warranted, and you agree, that you own or have the necessary rights to submit the User Submissions and have the right to grant the licence to the User Submissions described above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns. You represent and warrant that all User Submissions comply with applicable laws and regulations and these Terms.
d) You understand and agree that you are fully responsible for any User Submissions you submit or contribute, and you are fully responsible and legally liable, including to any third party, for such content, its accuracy, and your rights to use it. We are not responsible or legally liable to any third party for the content, accuracy, or infringing nature of any User Submissions submitted by you, and you agree to indemnify and defend us against any claims, lawsuits, or disputes brought by third parties based on the content of your User Submissions.
6) Feedback
a) While we are continually working to develop, evaluate, and improve our own product ideas and features, we also pay attention to the interests, feedback, comments, and suggestions we receive from our user community. If you choose to contribute by sending us any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, in order to avoid any misunderstandings the following terms will apply to the Feedback. Accordingly, by sending Feedback to us, you agree that:
i) Smoking Gun has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
ii) Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
iii) You irrevocably grant us an irrevocable, worldwide, perpetual, royalty-free, and unlimited licence to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified without any further compensation to you.
7) Equipment Requirement
To use the Service, you may need certain hardware, software, capabilities and other resources (including a suitable connection to the Internet). You are solely responsible for procuring and maintaining such resources at your own cost.
8) Updates, Interruption, and Termination
a) Updates: From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Service for free or for a fee. You understand that your access to certain features of the Service might be affected by such updates. We may require you to download and install the updates or the updated version of the application to continue to use the Service. You also agree that we may use background patching to automatically update our Service and software with or without notice to you. You also understand that such updates may affect the necessary system specification required to use the Service. In such case, you are responsible for any necessary equipment to continue to access the Service.
b) Interruption: You acknowledge that the Service or any part thereof may be interrupted for maintenance or reasons beyond our control, and we cannot guarantee that the Service will be uninterrupted. We will not be liable for any interruption of the Service, delay, or failure to perform resulting from any causes whatsoever. Additionally, the Service may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Service at any time in our sole discretion, for any reason, or for no reason, with or without notice.
c) Suspension or Termination: We reserve the right to suspend or terminate your access to the Service at any time for any reason, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which would or might (i) cause damage to or impair the Service or infringe or violate any third party rights (including intellectual property rights), or (ii) violate any applicable laws or regulations. Termination or suspension of your account also entails the termination or suspension of your licence to use the Service, or any part thereof. If we suspend or terminate your account, we will notify you by email.
9) Code of Conduct
Your access to and use of the Service is subject to these Terms and all applicable laws and regulations. You may not:
a) access or use the Service if you are not fully able and legally competent to agree to these Terms;
b) except as expressly permitted by these Terms or applicable law, make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, or create any derivative works of the Service or any content included therein, including any software, or determine or attempt to determine any source code, algorithms, methods, or techniques embodied by the Service or any derivative works thereof;
c) distribute, license, transfer, or sell, in whole or in part, any of the Service or any derivative works thereof;
d) license, transfer, or sell, in whole or in part, your Service account, including your username;
e) market, rent, or lease the Service for a fee or charge, or use the Service to advertise or perform any commercial solicitation;
f) use the Service, without our express written consent, for any commercial, political, or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
g) interfere with or attempt to interfere with the proper working of the Service, disrupt our website (if any), or any networks connected to the Service, or bypass any measures we may use to prevent or restrict access to the Service;
h) incorporate the Service or any portion thereof into any other program or product;
i) use automated scripts, software, code, or systems to collect information from or otherwise interact with the Service;
j) impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute, or otherwise make available emanates from the Service;
k) intimidate or harass another user;
l) promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
m) use or attempt to use another user’s account, service, or system without authorization from Smoking Gun;
n) use the Service in a manner that may create a conflict of interest or undermine the purposes of the Service;
o) use the Service to upload, transmit, distribute, store, or otherwise make available in any way:
i) files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation; any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., social security numbers, passport numbers, etc.), or credit card numbers; any material which does or may infringe any copyright, trade mark, or other intellectual property or privacy rights of any other person; any material which is defamatory of any person, obscene, offensive, pornographic, hateful, or inflammatory; any material that would constitute, encourage, or provide instructions for a criminal offence, dangerous activities, or self-harm; any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence; any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability, or sexuality;
ii) any answers, responses, comments, opinions, analysis, or recommendations that you are not properly licensed or otherwise qualified to provide; or
iii) material that restricts or inhibits any other person from using the Service, or which may expose us, the Service, or its users to any harm or liability of any type.
p) We reserve the right, at any time and without prior notice, to remove or disable your access to the Service, including Our Content, at our discretion for any reason or no reason. Some of the reasons for which we may remove or disable access to your Service may include finding that you have violated these Terms, or that your actions are harmful to the Service or our users.
10) Indemnity
You agree to, at your sole cost, defend, indemnify, and hold harmless Smoking Gun, our parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, suppliers, and advisors, from and against any and all claims, liabilities, costs, fines, penalties, and expenses, including legal fees and expenses, arising out of or in any way connected with any of the following: (i) a breach by you, or any user of your account, of any applicable obligation, representation, or warranty under these Terms; (ii) our use or publication of your User Submissions or Feedback infringes any third party intellectual property rights; (iii) your access to or use of, or activities in connection with, the Service; (iv) your violation of any applicable laws, rules, regulations, or contracts; or (v) any misrepresentation made by you (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by us in the defense of any Claims and Losses. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We reserve the right to assume the exclusive defense and control of any Claims and Losses at our own cost. You will not settle any Claims and Losses without, in each instance, our prior written consent or the consent of an individual whom we authorize, in writing, to approve such settlement.
11) DISCLAIMER OF WARRANTIES
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS OR LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. HOWEVER, TO THE MAXIMUM PERMITTED EXTENT UNDER APPLICABLE LAWS, YOU AGREE THAT THESE PROVISIONS ARE INTENDED TO APPLY TO YOU.
THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
a) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
b) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR;
c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR
d) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
NO CONDITIONS, WARRANTIES, OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE, OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS. WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.
YOUR USE OF THE SERVICES MAY DEPEND ON THE INTERNET, INCLUDING NETWORKS, CABLING, FACILITIES, AND EQUIPMENT THAT IS NOT IN OUR CONTROL. ACCORDINGLY: (I) WE CANNOT GUARANTEE ANY MINIMUM LEVEL REGARDING SUCH PERFORMANCE, SPEED, RELIABILITY, AVAILABILITY, USE, OR CONSISTENCY; AND (II) YOU ACKNOWLEDGE AND AGREE THAT DATA, MESSAGES, INFORMATION, OR MATERIALS SENT OVER THE INTERNET MAY NOT BE COMPLETELY PRIVATE, AND YOUR ANONYMITY IS NOT GUARANTEED.
WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT SERVICES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES, AND YOUR COMPUTER, INTERNET, AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY USER ERROR INCLUDING YOUR FAILURE TO REMEMBER OR LOSS OF PASSWORDS OR SIMILAR AUTHENTICATORS, FAILURES OF THE PUBLIC INTERNET, DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICES LINKED TO IT.
12) LIMITATION OF LIABILITY
NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS, OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
SUBJECT TO THE PARAGRAPH ABOVE, WE WILL NOT BE LIABLE TO YOU FOR: (I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY); (II) ANY LOSS OF GOODWILL OR BUSINESS REPUTATION; (III) ANY LOSS OF OPPORTUNITY OR BUSINESS; (IV) ANY LOSS OF DATA SUFFERED BY YOU; (V) ANY INTERRUPTION OF BUSINESS; OR (VI) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU. ANY OTHER LOSS WILL BE LIMITED TO THE LESSER OF: (A) THE AMOUNT PAID BY YOU TO US WITHIN 6 MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE CLAIM AROSE; AND (B) CAD$100.00.
WE WILL ALSO NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
a) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
b) ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
c) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
d) YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
e) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
THESE LIMITATIONS ON OUR LIABILITY TO YOU WILL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
13) Privacy Policy
You also acknowledge that our Privacy Policy will also apply to your use of our Service. https://www.smokingguninc.com/privacy-policy Our Privacy Policy can be found directly on the Service, or, if applicable, where the Service are made available for download on your mobile device’s applicable app store, and are incorporated herein by reference.
14) Copyright Claims
If you believe that anything on the Service infringes upon any copyright which you own or control, you may file a notification of such infringement to the following contact information: [email protected]
The notification must be a written communication that includes the following:
a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) if the complaint is about copyright or other intellectual property rights, identification of the copyrighted work or other intellectual property right claimed to have been infringed, or, if multiple infringements are covered by a single notification, a representative list of such infringements;
c) if the complaint is about objectionable content, the reasons for the objection;
d) identification of the material that you are objecting to and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
e) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
f) a statement that the information in the notification is accurate; and
g) if the complaint is about copyright or other intellectual property rights, a statement under penalty of perjury, that (i) the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (ii) the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the owner thereof, its agent or the law.
15) Governing Law, Class Action Waiver, and Choice of Forum
a) The Service and these Terms will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provisions or rules.
b) Any action or proceeding arising out of or relating to the Service and under these Terms will be instituted in the courts of British Columbia sitting in the City of Vancouver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding, and you waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
c) You and we agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these Terms, the Service or to any dispute or transaction arising out of these Terms or the use of the Service. We reserve the right to prosecute civil claims against you for any violation of these terms, the Privacy Policy, or any other governing terms and conditions related to the Services, whether for breach of contract, violation of common law rights, or violation of any applicable state or federal statute.
d) To the maximum extent permitted by the consumer protection or other applicable laws in your jurisdiction of residence, any disputes must be conducted on an individual basis only, and neither you nor the Company shall be entitled to join or consolidate disputes by or against other individuals or entities, or to arbitrate any dispute in a representative capacity, including, without limitation, as a representative member of a class or in a private attorney general capacity, in connection with any dispute under these Terms or in connection with the Service. This paragraph does not apply to the extent the laws of your jurisdiction would not permit it (for example, in Ontario to the extent relating to matters governed by the Consumer Protection Act, 2002 (Ontario).
This “Governing Law, Class Action Waiver, and Choice of Forum” section will be interpreted as broadly as the applicable consumer protection law of your jurisdiction permits.
16) Miscellaneous
a) Interpretation. In these Terms, (a) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (b) the word “including”, the word “includes” the phrase “such as”, and similar words and phrases, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (c) all references to Service shall also include any successor or replacement applications, websites, content, or services containing substantially similar information as the referenced Service(s).
b) Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
c) Entire Agreement. The Terms and our Privacy Policy constitute the sole and entire agreement between you and the Company regarding the Service and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
d) Force Majeure. We shall not be liable for delays, failure in performance or interruption of the Service that result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, strike or other labor dispute, fire, epidemic, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
e) No Waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
f) Survival. All provisions that, by their meaning or nature, are intended to survive termination or expiry of these Terms shall survive termination or expiration of these Terms.
g) Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
h) Social Networks. If at any time the Service include features that operate in conjunction with certain third party social networking websites that you visit (“Social Network Features”), your use of the Social Network Features is governed by these Terms, but your access and use of third party social networking websites and the Service provided through these websites is governed by the Terms of Use and other agreements posted on these websites. You agree that you alone are responsible for your use of the social network features and that we will not be liable to you or anyone else for your violation or breach of any terms of use or other agreement that may result from your use of the Social Network Features
i) Translations. In the event of any conflict or inconsistency between the Terms in the English and any translation thereof in any other language, the English version will prevail, except for in Quebec, in which the French version will prevail.
j) Any Questions? Get in touch at [email protected]