Terms and Conditions
LAST UPDATED ON April 12, 2019
Please read the following User Agreement.
When you sign up for any service on the social networking platform contained within the Smokeandpoke.com site such services, platform and site are referred to herein collectively as the “Site,” you agree to all of the terms and conditions of this User Agreement (the “Agreement”). You must agree to abide by all of the terms and conditions contained in this Agreement in order to become or remain an authorized user of the Site. Please read the following terms and conditions carefully, as they form the agreement between owner and operator of SmokeAndPoke or any of its successors or assigns (referred to herein as the “Company” or “us”) and you (sometimes referred to herein as “you”, “your” or the “User”). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE, AND SHOULD NOT PROCEED TO REGISTER. BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY AND ALL AMENDMENTS THAT WE MAY MAKE TO IT FROM TIME TO TIME.
Right to Use
Your right to use the Site is subject to any limitations, conditions, and restrictions established and enforced by us from time to time, in our sole discretion. We may alter, suspend, terminate, or discontinue any aspect of the Site at any time, including the availability of any Site feature, database, or content. We may also impose limits on certain features and aspects of the Site or restrict your access to parts or all of the Site without notice or liability.
The Site must not be viewed or used in, or exported or re-exported to, any jurisdiction in which the access, viewing, downloading, or other use of the Site e would or could reasonably constitute a violation of any law, regulation, rule, or custom. The Site must not be accessed by (i) anyone located in any country under U.S. embargo; or (ii) any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. The foregoing groups are not exhaustive, and you are solely responsible for complying with the laws, regulations, rules, and customs in your own jurisdiction.
THIS SERVICE IS FOR ADULTS ONLY. By using or viewing the Site, you represent, warrant, and covenant that you are aware that the Site may contain explicit adult oriented materials, are the greater of 18 years old or the age of majority in your jurisdiction (the “Age of Majority”), and are not prohibited by law from using the Site. If you use of the Site in violation of this section, you may be subject to legal action as a result. In the event you become aware of a user who is not at least the Age of Majority, you must immediately cease all conversation with such user and report the user’s account to us regardless of the age of consent or other similar laws in your area. Failure to do so will subject your account to termination and, if we feel it appropriate, in our sole and absolute discretion, a report regarding your account being submitted to law enforcement
Code of Conduct
You agree to use the Site in accordance with the following Code of Conduct:
a) You are solely responsible for any content, including, but not limited to, text, audio or video recordings, photographs, graphic depictions, or any other type of material, data or information (collectively, the "Content") that you post on the Site or display to other members of the Site. You will keep all Content provided to you through the Site private and confidential and will not disclose such Content to anyone without the permission of the person who provided it to you;
b) You are aware that the Site may contain explicit adult oriented materials provided only by consenting users;
c) You will not use the Site to engage in any form of harassment or offensive behavior, including, but not limited to, the posting of any Content that contains sexual conduct (whether actual or simulated); libelous, slanderous, abusive or defamatory statements; or racist, pornographic, obscene, or offensive language, nor will you state, for fantasy role-play or any other reason, that you engage or have engaged in any illegal activity;
d) You will not post any Content or use the Site in any way that:
i. violates, plagiarizes or infringes upon the rights of any third party, including but not limited to any copyright or trademark law, privacy or other personal or proprietary rights, or
ii. is fraudulent or otherwise unlawful conduct in connection with your use of the Site or violates any law.
e) You will not use the Site to distribute, promote, or otherwise publish any material containing any solicitation for funds, advertising, or solicitation for goods or services;
f) Your use of the Site is for your own personal use. You may not allow others to use the Site and you may not transfer accounts with other users;
g) You will not use the Site to infringe on any privacy right, property right, or other civil right of any person;
h) You will not use the Site to impersonate any third party, with or without their permission, nor will you claim to be any age that you are not (for the avoidance of doubt, anyone claiming to be underage, even he or she is an adult, for fantasy role-play or any other reason, will have his or her account terminated and, in our sole discretion, reported to law enforcement and/or the National Center for Missing and Exploited Children); and
i) You will not record or otherwise capture any portion of any other member’s profile or chats (whether video or text) for any purpose without such member’s express written consent; this means you may not screen cap, crawl, spider or in any other way capture and/or share any portion of any member’s profile on the Site; and
j) You will not forward any chain letters through the Site.
Privacy and Use of Information.
As more fully set forth in our Privacy Statement, your personal information will not be resold to any third party. Please note, however, all information you provide to us may be shared with other third parties as necessary to comply with applicable law and to generally cooperate with law enforcement and the court system in investigating and prosecuting suspected criminal activities or otherwise, including, without limitation, in response to inquiries from law enforcement and regulatory agencies.
Content Posted By Members
By agreeing to the terms and conditions of this Agreement, you represent and warrant that all Content you upload to the Site does not in any way infringe on anyone's intellectual property rights. You also authorize the Site to post any and all photographs uploaded by you throughout the Site and other associated websites featuring other members of the Site. The Site hereby asserts immunity with respect to all Content provided by members or other third parties, as provided by law, including, but not limited to, under the Communications Decency Act. We will remove any Content that you may post on the Site upon being notified, as provided in these terms and conditions, that the Content you post on the Site violates the intellectual property rights of another. We may remove any Content that you post on this Site that we believe, in our sole discretion, violates this Agreement without any obligation to provide you prior notice of such removal. Members and others are prohibited from uploading any Content to the Site which, in our sole opinion, might be illegal or offensive, including, but not limited to, Content involving bestiality, urination, other bodily excretions, defamatory material or otherwise obscene material, or any conduct that violates the prohibitions set forth under "Code of Conduct," above, or any other provision of this Agreement. You may not post any Content that solicits any information or response from anyone under 18 years of age, mischaracterizes your identity, solicits any information that might be used for unlawful purposes, or encourages unlawful activities. You may not post any Content for commercial purposes, including, but not limited to, email marketing, advertising of goods or services, any investment opportunities, contests, or similar activities. Additionally, the Site reserves the right, in the Site's sole discretion, to immediately suspend your account, file for injunctive relief, file for civil redress and/or report any conduct that violates these terms and conditions to any and all authorities that may have jurisdiction over the matter. In the event any actions or proceedings are brought against the Site as a result of Content you have posted on the Site, or your engaging in any prohibited activities, as set forth in this section or in this Agreement, you agree to indemnify and hold the Site harmless with respect to all costs and expenses, including, but not limited to, attorneys' fees that the Site may incur as a consequence of your posting of such content or engaging in such prohibited activities.
No Site Created Profiles
Unlike many competitors, this Site does not contain any profiles created by the Site whether to increase member numbers or entertain or otherwise engage with users of the Site nor for any other purpose.
Total Member Numbers
From time to time we may include an estimation regarding the number of members on the Site website. Any such estimation will include all accounts (both free and paid) created since the inception of the Site website as we do not purge inactive accounts. For your information, a member's "hotness" ranking on the Site is indicative of, among other matters, how recently the account has been accessed. While the "hotness rating" is indicative, it should not be taken as a guarantee that the person checks messages or even has a paid account to communicate with you. Please note that we do work expeditiously to remove what we believe to be fraudulent/malicious profiles as and when they are reported. We take all such reports extremely serious as we intend for the Site to be a place for like-minded men and women to communicate and we have no tolerance for individuals abusing our system. If you are contacted through the Site (whether by instant message, chat rooms, messages or otherwise) and believe such contact to be fraudulent/malicious please immediately report the matter to us.
Member’s Obligation to Comply with 18 U.S.C. 2257 With Respect to Certain Content
You should be aware that, pursuant to federal law, any visual depictions that you post on the Site that portray actual sexually explicit conduct, depictions of the genitals or pubic area, or simulated sexually explicit activity, as such terms are defined in 18 U.S.C. §2256 (2)(A)(i)-(v) and 18 U.S.C. §2257A, require that you maintain the records required by 18 U.S.C. 2257 and must contain an "18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement." Your failure to comply with the provisions of 18 U.S.C. 2257 may make you subject to criminal and civil prosecution for the violation of 18 U.S.C. 2257.
Use of Information on the Site
You acknowledge and agree that:
a) We cannot ensure the security or privacy of information you provide through the Internet, email, messaging or otherwise, and through your email or other messages; you release us from any and all liability in connection with the breach of the security of such information and/or messages and with respect to the use of such information by other parties;
b) We are not responsible for, and cannot control, the use of any information, by anyone, that you provide to any other parties or the Site and you should use caution in selecting the personal information you provide to others through the Site;>
c) We cannot assume any responsibility for the content of any communication sent by any user on the Site, and you release us from any and all liability in connection with the contents of any such communication you may receive from other users;
d) You acknowledge that you cannot bring legal action against the Site or any of its employees, officers, or agents for any damages of any kind, under any theory, as a consequence of using the Site; and
e) Any and all images uploaded to the Site are subject to an irrevocable, unlimited, worldwide, fully paid, royalty free license from you to the Site and such images may be used by the Site, without restriction, on the Site, in emails and as marketing materials. By accepting this Agreement and its terms and conditions you specifically authorize us to use any images you upload to the Site for marketing the Site and all other websites which share a common database with the Site in our sole discretion; and,
f) You may not use the Site for any unlawful purpose. We may refuse to grant you or discontinue your use of a user name, for whatever reason, including, but not limited to, that the user name you have chosen impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion.
We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by any other user of the Site, including but not limited to, information regarding a member's age and marital status. Additionally, as users may discontinue or suspend their membership at any time, we cannot guarantee that individuals seen in various advertisements are currently active members. You hereby acknowledge and agree that we have no responsibilities or liabilities for any inaccuracies, intentional or unintentional, made by users or as a result of out of date information.
Dating Site Cautions
The following are precautions you should consider when meeting or corresponding with anyone on any dating or social networking website:
(a) Anyone who is able to commit identity theft can also falsify a dating profile;
(b) There is no substitute for acting with caution when communicating with any stranger who wants to meet you;
(c) Never include your last name, email address, home address, phone number, place of work, or any other identifying information in your dating profile or initial email messages. Stop communicating with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it; and
(d) If you choose to have a face-to-face meeting with another member, always tell someone in your family or a friend where you are going and when you will return. Never agree to be picked up at your home. Always provide your own transportation to and from your date and meet in a public place with many people around.
Should you elect to interact with any member of the Site outside of the Site, despite the cautions and warnings contained above and elsewhere in this Agreement, you understand and agree we shall bear no responsibility in connection with such interactions, regardless of the form of such interactions, including, without limitation, text, telephone, purchases, money transactions, email or in-person.
How Your Content May be Used
When you create a profile with the Site, your profile will be shared with other dating and "hook-up" websites which contain members of the Site. Additionally, when you upload any videos as a part of your profile your video may automatically be watermarked with the Site or its related entity's watermark and, unless you unmark the "Add to" or similarly termed box, your video will be automatically uploaded to one or more of our partner websites which contain other videos uploaded by other members of the Site.
The Site may cause pop-ups to display as a system notification on your screen while you are viewing the Site. These system notifications may or may not indicate they have been initiated by the Site and may provide you with limited information about other members of the Site and/or such member's activity on the Site. The system notifications may prompt you to initiate dialogue with other member(s) (who may or may not have upgraded to a paid account and may have varying login and activity levels). If you wish to initiate dialogue and have not purchased a membership to the Site, you will be required to purchase a paid membership prior to being able to initiate or even review any dialogue; however, it is possible that the member with whom you wish to initiate dialogue may not respond for various reasons including, without limitation, the member is not interested in responding, may not be actively monitoring his/her account and/or may no longer be available. If the sole reason you upgrade your membership is to correspond with one specific member and such member does not respond to your correspondence, you may request a full refund within ten (10) days of your initial membership purchase by calling customer service. Upon initiating the refund, your account will revert to free and you will not be able to review any responses or messages from any members should any be sent to your account.
While You Were Away
The Site may, from time to time, offer an automated message and response program called “While You Were Away”. You may change your settings for “While You Were Away” at any time by updating your account settings.
The Site may, from time to time, offer an automated message system for users to contact other users that meet at least one interest that the user is interested in. Such automated messages are labeled “Icebreakers”.
Notice of Claimed Infringement
The Site respects the intellectual property of others, and we ask our members and others to do the same. We voluntarily observe and comply with the United States’ Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the Site’s Designated Copyright Agent the following information:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b) description of the copyrighted work or other intellectual property that you claim has been infringed;
c) a description of where the material that you claim is infringing is located on a Site;
d) your address, telephone number, and email address;
e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. You may send your Notice of Claimed Infringement to:
Lawrence G. Walters
195 W. Pine Ave
Longwood, FL 32750
Fax: (407) 774-6151
DO NOT SEND ANY OTHER INQUIRIES TO OUR DMCA AGENT.
SEND ALL OTHER INQUIRIES TO: firstname.lastname@example.org
The Site will terminate the account of any member who the Site believes has infringed on the rights of any third party(ies) one or more times. For the avoidance of doubt, the Site specifically reserves the right to terminate the account of any member reported by any third party for infringing on such third party's rights and the Site will immediately terminate the account of any member reported more than once for infringing on the rights of a third party.
Notification and Take Down Procedures
The Site implements the following "notification and takedown" procedure upon receipt of any notification of claimed copyright infringement. The Site reserves the right at any time to disable access to, or remove any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. We reserve the right to terminate any account reported for infringing on the intellectual property of any third party, and we will act expeditiously to remove access to all identifiable material that is alleged to infringe on a third party's copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act ("DMCA"). The Site's DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with §512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to §512 of the DMCA, the Site shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements. When the Designated Agent receives a valid notice, we will expeditiously endeavor to remove and/or disable access to the infringing material and may notify the affected user. Then, the affected user may submit a counter-notification to the above designated agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the designated agent receives the counter-notification, we will replace the material at issue within 10-14 days after receipt of the counter-notification unless the designated agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. We reserve the right to modify, alter or add to this policy, and all users should regularly check back to these Terms and Conditions to stay current on any such changes.
DMCA Counter-Notification Procedure
If the recipient (the "Recipient") of a Notice of Claimed Infringement ("Notice") feels that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in response to a Notice as outlined above, the Recipient is permitted to submit a counter-notification pursuant to §512(g)(2) and (3) of the DMCA. A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material (the "Material") pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations which may cause any claims to be brought against us relating to the Content.
To submit a counter-notification, please provide our Designated Copyright agent the following information:
a) A specific description of the material that was removed or disabled pursuant to the Notice.
b) A description of where the material was located within the Site before such material was removed and/or disabled. Please provide the specific URL if possible.
c) A statement reflecting the Recipient's belief that the removal or disabling of the Material was done so erroneously. For convenience, the following format may be used:
“I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled.”
d) The Recipient's physical address, telephone number, and email address. Written notification containing the above information must be signed and sent to:
Lawrence G. Walters
195 W. Pine Ave
Longwood, FL 32750
Fax: (407) 774-6151
Alternately, to email the above information, You must digitally sign the email and send it to: Notice@DMCANotice.com
DO NOT SEND ANY OTHER INQUIRIES TO OUR DMCA AGENT.
SEND ALL OTHER INQUIRIES TO: email@example.com
After receiving a DMCA-compliant counter-notification, our designated copyright agent will forward it to us, and we will then provide the counter-notification to the entity who first provided the Notice concerning the subject material.
Additionally, within ten to fourteen (10-14) days of our receipt of the counter-notification, we will replace or cease disabling access to the disputed material provided that we or our designated copyright agent have not received notice from the entity who first provided the Notice that such entity has filed a legal action pertaining to the disputed material.
We reserve the right to modify, alter or add to this policy, and all users should regularly check back regularly to stay current on any such changes.
Monitoring of Information
We reserve the right, but have no obligation, to monitor any and all advertisements, public postings and messages to ensure that they conform to the content guidelines and this Agreement, which are both subject to change from time to time. We also reserve the right, but have no obligation, to monitor any and all messages and chats that take place through the Site. We are not responsible for any offensive or obscene material(s) that may be transmitted or posted by any and all users (including unauthorized users, as well as the possibility of “hackers”). As noted above, we are also not responsible, under any circumstances, for the use of any personal information, by anyone, that you post or transmit through the Site.
Removal of Information
While we do not and cannot review every message or other material posted or sent by users of the Site, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to delete, move, or edit messages or materials, including without limitation advertisements, public postings and messages, that we, in our sole discretion, may deem to violate the Code of Conduct set out above or to be otherwise unacceptable to us in our sole discretion. Notwithstanding our right to delete, move or edit messages or materials, you shall remain solely responsible for the content of advertisements, public postings, messages and other materials you may upload to the Site or otherwise provide to users of the Site.
Termination of Access to the Site
We may, in our sole discretion, terminate or suspend your access to all or part of the Site at any time, with or without notice, for any reason, including, without limitation, breach of this Agreement. Please note that the Site does not tolerate sex offenders on the Site and reserves the right to terminate any member reported as being a sex offender. Without limiting the generality of the foregoing, any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your access to all or part of the Site at our sole discretion, and we reserve the right to refer such activity to any and all appropriate law enforcement agencies.
The Site contains information, which is proprietary to us and/or users of the Site. We assert full copyright protection in the Site. Any information posted by us or users of the Site may be protected whether or not it is identified as proprietary to us or to the user. You agree not to modify, copy or distribute any such information in any manner whatsoever without having first received the express permission of the owner of such information.
We are not responsible for any incidental, consequential, special, punitive, exemplary, direct or indirect damages of any kind whatsoever, which may arise out of or relate to your use of the Site, including but not limited to lost revenues, profits, business or data, or damages resulting from any viruses, worms, "Trojan horses" or other destructive software or materials, or communications by you or other users of the Site, or any interruption or suspension of the Site, regardless of the cause of the interruption or suspension. Any claim against us shall be limited to the amount you paid, if any, for use of the Site during the previous 12 months. We may discontinue or change the Site or its availability to you at any time, and you may stop using the Site at any time, please see details on cancellation below.
Your account is private and should not be used by anyone else. You are responsible for all usage or activity on the Site by users using your password, including but not limited to use of your password by any third party.
The Site may from time to time contain links to other sites and resources (“External Links”). We are not responsible for, and have no liability as a result of, the availability of External Links or their contents.
Fraud Team and Support Team
The Site utilizes both a Fraud Team and a Support Team. Fraud Team members are tasked with reviewing abuse reports and flagged content, profiles, communications and postings. The Support Team is tasked with receiving and addressing account questions/issues, access problems, DMCA Notice response and receiving law enforcement inquiries. Random chat rooms and profiles may be reviewed from time to time as to whether or not the users in such rooms and profiles appear to be adhering to this Agreement; however, in conformity with our “No Obligation” section and other sections of this Agreement, the Site does not warrant the Site to be free from malicious third party users or others with bad intent nor does the Site warrant or represent that any information posted or communicated by any third party user is accurate or truthful. Neither the Support Team nor the Fraud team will contact any user for any purpose other than responding to or addressing a report, flag or other potential issue with compliance with this Agreement
You agree to indemnify us, our officers, directors, employees and agents, from any loss or damages, including without limitation reasonable legal fees, which we may suffer from your activities on or use of the Site, including without limitation any breach by you of this Agreement or any charges or complaints made by other parties against you. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you; provided, however, that you shall remain liable for any such claim.
The Site is distributed on an “as is” basis. We do not warrant this Site will be uninterrupted or error-free. There may be delays, omissions, and interruptions in the availability of the Site. Where permitted by law, you acknowledge that the Site is provided without any warranties of any kind whatsoever, either express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. You acknowledge that use of the Site is at your own risk. We do not represent or endorse the accuracy or reliability of any advice, opinion, statement or other information displayed, uploaded or distributed through the Site by the Site or any user of the Site or any other person or entity. You acknowledge that any reliance upon any such opinion, advice, statement or information shall be at your sole risk. If you are a California resident, you waive California Civil Code § 1542, which states “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
We may modify this Agreement from time to time. Notification of changes in this Agreement will be posted on the Site or sent via electronic mail, as we may determine in our sole discretion. If you do not agree to any modifications, you should terminate your use of the Site. Your continued use of the Site now, or following the posting of notice of any changes in this Agreement, will constitute a binding acceptance by you of this Agreement, or any subsequent modifications.
Disclosure and Other Communication
We reserve the right to send electronic mail to you, for the purpose of informing you of changes or additions to the Site, or of any Site related products and services. We reserve the right to disclose information about your usage of the Site and Demographics in forms that do not reveal your personal identity.
To resolve or report a complaint regarding the Site or members who use the Site users should send an email detailing such complaint to firstname.lastname@example.org. Immediate actions will take place in order to help solve the problem.
You may become a member of the Site by completing an online registration form, which must be accepted by the Site, and by payment of the applicable subscription fee. Upon submission of the online registration form, the Site or its authorized agent will process the application. In connection with completing the online registration form, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a member. You must promptly inform the Site of all changes to the registration data, including, but not limited to, changes in your address and changes in the credit card information you used in connection with billing for the Site. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Site or any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Site has the right to suspend or terminate your account and refuse your current or future use of the Site and the Site, as well as possibly subjecting you to criminal and civil liability. You are responsible for dishonored checks, inappropriate “chargebacks” or credits to your credit card and any related fees that we incur with respect to your account.
Member Account, Password and Security
As part of the registration process, you will be issued a unique user name and password which you must provide in order to gain access to the non-public portion of the Site. You certify that when asked to choose a username you will not choose a name which falsely represents you as somebody else or a name which may otherwise be in violation of the rights of a third party. We reserve the right to disallow the use of usernames that we, in our sole discretion, deem inappropriate. We reserve the right to modify any materials on the Site and its design at anytime, with or without prior notice. We reserve the right to cancel at any time the membership of any member who uses their selected username in violation of these Terms and Conditions or in any other way we, in our sole discretion, deem inappropriate. Your membership, the ID and password are nontransferable and non-assignable. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to the Site to anyone who is below the Age of Majority, or otherwise does not wish to view the content on the Site. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities that occur under your user name and password. the Site will not release your password for security reasons. You agree to (a) immediately notify the Site of any unauthorized use of your user name and password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You are liable and responsible for any unauthorized use of the Site until you notify the Site by email regarding that unauthorized use. Unauthorized access to the Site is illegal and a breach of this Agreement. You agree to indemnify the Site against all activities conducted through your account. You may obtain access to your billing records upon your reasonable request.
Recurring Transaction Agreement
All membership purchases (trial or otherwise) will automatically renew upon expiration of your current purchase at the then current one-month membership price except for 6-month purchases which automatically renew at the initial price every 6 months, and 12-month and 18 month purchases which will automatically renew upon their expiration for additional 12 month periods at the price of a 12 month membership at the time of original purchase. All membership purchases prior 04/01/2020 (trial or otherwise) will automatically renew upon expiration of your current purchase at the then current one-month membership price except for 6-month purchases which automatically renew at 29.95 USD per month, and 12-month and 18 month purchases which will automatically renew at 14.95 USD per month. Should you determine to purchase a feature profile, upon expiration and until such time as you cancel such purchase, your purchase will automatically renew for 9.97 USD. The date of your automatic renewal will be the day after the last day of your membership purchase. You may cancel your membership at any time during purchase to avoid your membership automatically renewing by contacting our customer service department either online, through email or by phone. In the event that you do not cancel as provided and your recurring transaction is not successful for any reason, you understand and agree that you will be charged an administrative fee of 2.00 to 3.00 USD (the “Fee”) for each failed attempt to process your payment while keeping your account at the same purchase level, at the same or a lower price, up to a maximum of six (6) attempts. If your recurring transaction is not successful in our six (6) attempts, your account will be converted to a “free” account and you will no longer have access to premium features. For all initial purchases, you will receive an email receipt upon successful completion of your initial purchase. The Site reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a cardholder. You agree to pay all amounts due to us immediately upon cancellation or termination of your account. We reserve the right to make changes to our fees and billing methods, including the addition of supplemental charges for any content or services that we may provide, with or without prior notice to you, at any time.
If you believe that you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication.
By supplying us with all the required information and signing up as a member you acknowledge and affirmatively state that you have read, and understand the terms set forth herein and that you agree to be bound by the terms and conditions hereof.
NO WARRANTIES, LIMITATION OF LIABILITY
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. SMOKEANDPOKE.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SMOKEANDPOKE.COM MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SMOKEANDPOKE.COM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES. YOU AGREE THAT SMOKEANDPOKE.COM'S MAXIMUM LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT, OR FOR ANY OTHER REASON, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF MEMBERSHIP FEES YOU HAVE PAID US.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
All Disputes (including any dispute relating to the arbitrability of this Agreement or any provision of this Agreement or any other dispute relating to arbitration) must be submitted to arbitration before and in accordance with the arbitration rules of the American Arbitration Association in accordance with its commercial arbitration rules. The term “Dispute” means any controversy or claim arising out of or relating to the Site or this Agreement, or any breach thereof, including any claim that this Agreement, or any part of this Agreement is invalid, illegal or otherwise voidable or void.
The provisions of this Arbitration Section must be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction or arbitrator determines that any such provisions are unlawful in any way, such court or arbitrator is to modify or interpret such provisions to the minimum extent necessary to have them comply with the law. Notwithstanding any provision of this Agreement relating to under which state’s laws this Agreement is to be governed by and construed under, all issues relating to arbitrability or the enforcement of the Agreement to arbitrate contained herein are to be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the federal common law of arbitration.
Judgment upon an arbitration award may be entered in any court having competent jurisdiction and will be binding, final and non-appealable. You and the Company hereby waive to the fullest extent permitted by law, any right to or claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between them, each shall be limited to the recovery of any actual damages sustained by it.
This arbitration provision is self-executing and will remain in full force and effect after the expiration or termination of this Agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear.
Arbitration take place in Miami-Dade County, Florida, exclusively.
You and the Company hereby agree that no action (whether for arbitration, damages, injunctive, equitable or other relief, including rescission) will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, or any other Dispute, unless brought before the expiration of the earlier of one year from the occurrence of the facts giving rise to such claims or within 90 days from either the actual discovery of the facts giving rise to such claims or from the date on which the party should have, in the exercise of reasonable diligence, discovered such facts.
The obligation to arbitrate is not binding upon the Company with respect to claims relating to its trademarks, service marks, patents, copyrights, or other intellectual-property rights, or requests for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.
The prevailing party will be entitled to receive from the non-prevailing party its costs relating to the arbitration proceeding including but not limited to, the arbitrator's fees, attorneys' fees and costs, witness fees, transcription fees, etc. and sales and use taxes thereon, if any.
You and the Company each acknowledges and agrees that it is the intent of the parties that arbitration and litigation between the parties will be of the parties' individual claims, and that none of their respective claims may be arbitrated or litigated on a class-wide basis.
This Agreement and all matters arising out of or otherwise relating to these terms and conditions shall be governed by the laws in effect in the State of Florida, without regard to its conflict of law provisions. You and the Company hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida for resolution of all disputes. You and the Company hereby agree that exclusive venue for any litigation/dispute under this Agreement shall be with the state and federal courts located in Miami-Dade County, Florida.
Class Action Waiver
Any proceedings to resolve or litigate any dispute will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in any representative capacity. You and we further agree that no arbitration or proceeding will be combined with another without the prior written consent of all parties to the affected proceedings.
Cancellation By User
You may cancel your membership at any time by clicking here. You must cancel your membership at least twenty-four (24) hours before your monthly anniversary date to avoid being charged for another month of membership. You hereby agree to be personally liable for any and all charges incurred by you until termination of membership for goods or services through your use of the Site. Upon our processing of your request to cancel your membership, you will no longer have access to the non-public areas of the Site to which you were a member.
Termination by Us
Without limiting other remedies, the Site may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access and use of the Site and refuse to provide our services to you at any time, with or without advance notice, if: (a) we believe that you have breached any material term of these Terms and Conditions or the documents it incorporates by reference, (b) you fail to pay any amount due by the payment due date; (c) we are unable to verify or authenticate any information you provide to us; (d) we believe that your actions may cause legal liability for you, our users or us; or (e) we decide to cease operations or to otherwise discontinue any of the Site or parts thereof. Further, you agree that neither the Company nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to the Site. You agree that if your account is terminated by us, you will not attempt to re-register as a member without prior written consent from us.
After Termination or Cancellation
If you cancel your paid membership with the Site you will lose access to the paid portions the Site upon expiration of your paid membership period, unless you request your paid access be terminated sooner. Upon expiration of your cancelled paid membership, your account will automatically revert to a free membership, unless you specifically request your free membership also be terminated, and you will lose access to all mail and other paid-only membership materials. The terms of this Agreement shall survive after termination or cancellation, unless stated otherwise.