TERMS & CONDITIONS
Effective Date: June 20, 2019
Date Last Updated: June 20, 2019
Welcome to the Smokineer website!
This website, www.smokineer.com (the “Website” or “Site”), is provided and maintained by Smokineer Corp., a Colorado corporation (Colorado Secretary of State Entity ID number 20181229604), and its affiliates or agents (collectively referred to herein to “Smokineer,” “us,” or “we”).
By accessing this Site, browsing this Site, and/or purchasing products from this Site, you represent that: (1) you have read, understand, and agree to be bound by these Terms; (2) you are of legal age to form a binding contract with us; and (3) you have the authority to enter into the Terms personally or on behalf of any company or business entity you have named as the user, and to bind that company or business entity to these Terms. Throughout these Terms, the term “you” refers to such individual or legal entity, as applicable.
Please be aware that the Dispute Resolution section of these Terms, found below, governs the resolution of any claims that may arise between you and Smokineer. Of note, these Terms contain an arbitration clause that, with limited exceptions, requires all claims to be resolved exclusively through binding arbitration and further (1) permits only individuals to pursue claims and seek relief against Smokineer on an individual basis, not in any class or representative action, and (2) requires arbitration, which essentially is a waiver of the right to a jury trial in a court of law.
Changes in Terms
These Terms are subject to change at any time by Smokineer in its sole discretion. If changes are made, a new copy of the Terms will be made available on the Site. We may also email you, if you have provided an email address to us. Except in exceptional circumstances, any changes to the Terms will be effective immediately. We may also require you to provide consent to the updated Terms before continuing to access or use this Site in any manner. If you do not agree to any changes to the Terms, you shall stop using the Site; otherwise, your continued use of the Site constitutes your acceptance of such changes. We encourage you regularly check these Terms. It is YOUR responsibility to do so.
Restrictions on Use
This Site is intended for users eighteen (18) years of age or older. If you are under eighteen (18), you must exit this Site immediately. Additionally, you must be of the legal age required by the jurisdiction in which you reside to purchase our products. You are responsible for knowing whether or not you are legally able to purchase our products.
To access this Site or any of the resources it has to offer, you may be asked to provide certain registration details or other information. It is a condition of your use of this Site that all information you provide will be correct, current, and complete. If Smokineer believes the information you provide is not correct, current, or complete, is an impersonation, or violates these Terms in any fashion, we reserve the right to refuse you access to this Site or any of its resources, or to terminate or suspend your access at any time without prior notice.
Although under no obligation to do so, we reserve the right to monitor use of this Site to determine compliance with these Terms, as well the right to remove or refuse any information for any reason.
You agree to receive and exchange communications from Smokineer in an electronic form (including but not limited to email or posts to this Site), and further agree that all terms and conditions, agreements, notices, disclosures, and other communications that Smokineer provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a non-electronic written format.
License, Content, & Proprietary Information
Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, revocable license to access and make personal and non-commercial use of any Site content (including, but not limited to: product descriptions; news; and press releases) and/or Site copy (including, but not limited to: text on the Site related to our products and the Smokineer brand; sales information; the journal; or any software or services available through the Site) found on the Site for personal, non-commercial, transitory viewing only (collectively, the “Content”). This license does not allow you to resell or make any commercial use of the Site, its Content, or any products sold on the Site. In addition, you may not make any derivative use of any of our Content, including but not limited to downloading, copying, or using any data mining, robots, or similar data gathering and/or extraction tools. All rights not expressly granted to you in these Terms are reserved by Smokineer, and no Content or products sold on this Site may be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose without our express written consent. The license we have granted you terminates immediately if, in our sole discretion, you do not comply with these Terms.
The Content accessible from this Site, and any other Site owned, operated, or controlled by us is our proprietary information or the proprietary information of the party that provided the Content to us. We, or the party that provided the Content, retains all right, title, and interest in the Content. You do not obtain title or rights of any kind to any of the Content by accessing or using our Site.
This Site may be hyperlinked to other sites which are not maintained by, or related to, Smokineer. We have not reviewed such sites and are not responsible for the Content of those sites. Hyperlinks are to be accessed at your own risk, and we make no representations or warranties about the Content, completeness, or accuracy of any sites hyperlinked to this Site. The inclusion of any link does not imply endorsement by Smokineer of the linked content or website.
Assumption of Risk & Limitation of Liability
Smokineer cannot and does not guarantee or warrant that any files that may be available on our Site or for downloading will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. You are solely responsible the protection and security of data, software, and/or hardware on any device you may use to access or use our Site.
Your use of this Site is at your own risk. The Site, and any Content, Service, or products available on the Site may include inaccuracies or typographical errors. To the fullest extent permitted by applicable law, the Content, Services and products are provided “as is” and “as available,” without any warranties of any kind, express, implied, or statutory. We hereby disclaim all warranties, including any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Except for any warranty expressly provided on this Site, we make no warranty, express or implied, that the Site, Services, products, or information obtained on or through the Site will meet your requirements or will be uninterrupted, timely, secure, or error free, that defects will be corrected, or that this Site or the server that makes it available are free of viruses or other harmful components. You alone assume the entire cost of all servicing, repair, or correction in the event of any loss or damage arising from the use of this Site or its Content.
To the maximum extent permitted by law, Smokineer will not be held liable for any improper or incorrect use of the information, Services, or products available on this Site. We assume no responsibility for the use, by you or anyone else, of the information, Content, Services, or products available on this Site.
To the maximum extent permitted by law, Smokineer will not be liable for any: (1) loss of profits, revenue, or data; or (2) indirect, incidental, special, or consequential damages; or (3) damages or costs due to loss of production or use, business interruption, or procurement of substitute goods or services arising out of or in connection with Smokineer, whether based on warranty, copyright, contract, tort (including negligence), or any other legal theory.
You agree to save, indemnify, hold harmless and defend Smokineer, including our subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (collectively, the “Indemnified Parties”), from any and all loss, damages, judgments, awards, costs, expenses, attorneys’ fees and expert witness fees (collectively, “Losses”) in any way relating to or arising out of: (1) any breach of these Terms by you, including any use of Content, Services, or products other than as expressly authorized by these Terms; (2) your use, or inability to use, Smokineer’s Site, Content, Services, or products; or (3) violations of any applicable laws, rules or regulations. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to save, indemnify, hold harmless, and defend the Indemnified Parties from and against any and all resulting Losses in connection therewith, including any claims that may be brought by third parties arising out of your use of Smokineer’s Site, Content, Services, or products.
Restrictions for User-Provided Content
The Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, review portals, and/or other message or communication mediums where users that are unaffiliated with Smokineer may create, upload, or post Content (collectively “Communication Services”). If you elect to use our Communication Services, you may not transmit to, or in connection with, this Site, in any fashion, any material that:
- you do not have the legal right to post;
- infringes on any intellectual property rights, such as copyrights or trademarks;
- violates any law or may be considered to violate any law;
- advocates illegal activity or an intent to commit an illegal act;
- is vulgar, obscene, pornographic, or indecent;
- does not pertain directly to this Site;
- threatens, abuses, libels, defames, harasses, or invades the privacy of any person;
- impersonates or misrepresents your connection to any other entity or person to disguise the origin of the Content;
- advertises any commercial endeavor, solicits funds, advertisers, or sponsors, or otherwise engages in any commercial activity without the express written consent of Smokineer;
- contains viruses, worms, Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any software or hardware or telecommunications;
- amounts to a ‘pyramid’ or similar scheme;
- contains hyperlinks to other sites that contain Content that falls within the descriptions set forth above; or
- otherwise violates these Terms in any respect, as determined by Smokineer, in its sole discretion.
You are solely responsible for any Content you may provide via Communication Services. You acknowledge and agree that neither we nor any third party that provides Content to us will assume or have any liability for any action or inaction by us or such third party with respect to any Content provided by you via Communication Services. By providing Content via Communications Services, you warrant and represent that you own or otherwise lawfully control all of the rights to such Content.
While under no obligation to do so, Smokineer reserves the right to monitor Content provided via Communication Services and Smokineer may, in its sole discretion and without prior notice, remove any such Content for any reason or no reason at all. Further, you have no right of any kind to the use of any Communication Services; Smokineer may suspend or terminate your use of Communication Services, block your access to the Site, or block access by other users to your Content, at any time without prior notice.
Smokineer does not claim ownership of any Content you may provide via Communication Services. However, by providing Content via use of our Communication Services, you are granting Smokineer permission to use your Content in connection with Smokineer’s business, including but not limited to copying, distributing, transmitting, publicly displaying, publicly performing, reproducing, editing, translating, and reformatting your Content, and to publish your name in connection with your Content. No compensation of any kind will be paid for use of your Content as described herein.
User Accounts & Registration
In order to access certain features of the Site you may be required to become a Registered User. A “Registered User” is a user who has registered an account on the Site (“Account”).
Any passwords used for any Account registered for this Site are for personal use only. You are responsible for the security of your password (if any) and for all activities that occur under your account or password. We have the right to monitor your password and may require you to change it or terminate your Account, if, in our sole discretion, we consider your password to be insecure. You are prohibited from using this Site, in any fashion, to compromise our security or tamper with our system resources and/or accounts. Any use of hardware, software, or other tools designed for compromising security (e.g., password guessing programs, cracking tools, or network probing tools) is strictly prohibited. We reserve the right to investigate suspected violations of these Terms, and further reserve the rights: (1) to fully cooperate with law enforcement or court orders requesting or directing us to disclose personally identifying information; or (2) to release information to system administrators, which may include third parties, to resolve security incidents.
In registering any Account on the Site, you agree: (1) to provide true, accurate, current, and complete information about yourself as prompted (“Registration Data”); and (2) to maintain and promptly update your Registration Data to keep it true, accurate, current, and complete.
You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors and will accept full responsibility for any unauthorized use by minors. You may not share your Account or password with anyone, and you agree to: (1) notify Smokineer immediately of any unauthorized use of your password or any other breach of security; and (2) to log out from your Account at the end of each session.
You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself, and you agree not to have more than one Account. Smokineer reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use this Site if you have been previously refused access, terminated as a user, or removed by Smokineer in any other applicable fashion (such as a current suspension).
Notwithstanding anything to the contrary herein, you shall have no ownership or other property interest in your Account. You acknowledge and agree that all rights in and to your Account are and shall forever be owned by Smokineer.
Billing Terms & Conditions
Payment methods accepted through our online store include:
All Payments and transaction are in US Dollar Currency.
You agree to pay all fees or charges incurred, whether in connection to your Account or to any individual purchase of products from this Site, in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Smokineer reserves the right to change its prices and billing methods at any time, either immediately upon posting on to the Site or by email notice to you.
You must provide Smokineer with a valid credit or debit card. By providing Smokineer with your credit or debit card number and associated payment information, you agree that Smokineer, and/or its third-party service providers for payment services, are authorized to immediately invoice your credit or debit account for all fees and charges due and payable to Smokineer and that no additional notice or consent is required. You agree to immediately notify Smokineer of any change in your billing address for any credit or debit card used.
For purposes of this section, “Sales Tax” means any sales or use tax, and any other tax measured by sales proceeds, which Smokineer is permitted to pass on to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. If any Services or products, or payments for any Services or products, under these Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Smokineer, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant taxing authority, and you will save, indemnify, hold harmless, and defend Smokineer from and against any liability or expense we may incur in connection with such Sales Taxes. Upon request by Smokineer, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.
Smokineer may use third party service providers for payment services (e.g., card acceptance, merchant settlement, and related services). By using the Site to purchase products or Services, you agree to be bound by such third party service providers’ privacy policies and authorize Smokineer to share any information with third party service providers to the minimum extent required to complete your transactions.
Shipping and Delivery
You are responsible for all applicable shipping and/or delivery costs, which shall apply at check-out. Smokineer is not liable for long shipping delays, buyers purchase at their own risk.
Product Returns & Refunds
Apparel may be returned or exchanged if there is a manufacturing defect at no cost to you.
If you receive any defective apparel, you may contact us at email@example.com within fifteen (15) days of the expected delivery date. Include your order number and a photograph of the defected product. You may keep the defective apparel if Smokineer receives your request within said fifteen (15) day period and verifies that the product contains a manufacture defect, at which time Smokineer will send you a conforming product at no cost to you. Please contact us at firstname.lastname@example.org for instructions if you would prefer a refund.
Any apparel may be returned to:
1281 E. Magnolia St. Suite D 164
Fort Collins, CO 80524
Returned items (less shipping costs) will be refunded once received by Smokineer. If a returned item is lost in transit, please allow Smokineer appropriate time to attempt package recovery from shipping company. If you provide all documents/receipts showing the package was shipped, Smokineer will honor the return.
NO RETURNS OR EXCHANGES ARE ALLOWED FOR THE NOMAD.
A limited lifetime warranty is valid for one (1) of each of the individual parts of the Nomad should it break. In order to receive a replacement piece, Smokineer must receive photo evidence of the Nomad and the allegedly defective piece. If there is a defect or other issue with your Nomad, you may keep the product and Smokineer will send out warranty part(s) as needed.
Dispute Resolution – Arbitration and/or Mediation – Class Action Waiver
In the event of any claims, disputes, or other controversies arising out of, or relating to, these Terms, the use of this Site, information obtained through this Site, or any other claims, disputes, or controversies arising out of or relating to this Site, or any other website owned, operated, licensed, or controlled by us (each, a “Dispute”), you agree that the sole and exclusive venue for resolving such Dispute shall be the Judicial Arbitration and Mediation Services (“JAMS”), or its successor, at its offices in Denver, Colorado. Any party may commence dispute resolution (which may include arbitration and/or mediation) by providing to JAMS and the other parties a written notice setting forth the nature of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting an arbitrator and/or mediator, and in scheduling proceedings promptly, not later than thirty (30) days after such written notice is provided. The parties agree that they will participate in any arbitration and/or mediation proceedings in good faith, and that they will share equally in its costs. All offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation or arbitration by any of the parties, their agents, employees, experts, and attorneys, and by the arbitrator, mediator, or any JAMS employees, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in mediation and/or arbitration. All hearings shall be held in Denver, Colorado, and shall be subject to all rules and procedures established and maintained by JAMS. If JAMS ceases to exist and has no successor, then the parties shall submit the Dispute to a mutually acceptable, established alternative dispute resolution entity in Denver, Colorado. Unless otherwise agreed by the parties, any arbitration shall be conducted by a single arbitrator. Unless otherwise agreed by the parties, the mediator (if the parties agree to mediate) shall be disqualified from serving as arbitrator in the case. As more particularly set forth below, where permitted under applicable law, you agree you will not join or consolidate claims submitted for arbitrations with those of any other persons, and you and Smokineer agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless both you and Smokineer agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of representative or class proceeding. The provisions of this clause may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including attorneys’ fees and costs, to be paid by the party against whom enforcement is ordered.
THE REQUIREMENT TO ARBITRATE MEANS YOU ARE WAIVING ANY RIGHT TO A TRIAL BY JURY IN A COURT OF LAW.
These Terms of Service will be governed and interpreted pursuant to the laws of the State of Colorado, notwithstanding any principles of conflicts of law. In the event of any Dispute that is not subject to the mandatory arbitration and/or mediation provisions of these Terms, you specifically consent to personal jurisdiction in Denver Colorado in connection with any Dispute between you and Smokineer, and further agree that the exclusive venue for any such Dispute will be in the Superior Court for the State of Colorado, County of Denver. To the extent allowed by applicable law, any claim or cause of action arising from or relating to your access or use of the Site must be brought within two (2) years from the date on which such claim or action arose or accrued.
Any proceedings under these Terms, including arbitration and/or mediation, will take place on an individual basis; class actions of any kind (including but not limited to class arbitrations and/or representative or collective actions) are not permitted. You agree that you and Smokineer may ONLY bring a Dispute against each other in an individual capacity, and not as a plaintiff or class member in any putative class, collective, and/or representative proceeding, such as in the form of a private attorney general action against the other. Further, unless all parties otherwise agree in writing, an arbitrator, mediator, or judge cannot consolidate more than one individual person or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.
A printed version of these Terms shall be admissible in any judicial, administrative, or arbitration proceeding based on or relating to these Terms to the same extent, and subject to the same conditions, as other business documents generated and maintained in printed form.
1281 E. Magnolia St. Suite D 164
Fort Collins, CO 80524