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 websites 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.
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.
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).
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.
Your access to and use of the Service is subject to these Terms and all applicable laws and regulations. You may not:
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.
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:
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.
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:
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.
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: Privacy@smokingguninc.com
The notification must be a written communication that includes the following: