ALL THE SMOKE PRODUCTIONS
TERMS OF SERVICE
Effective Date: October 1, 2026
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. SECTION 22 CONTAINS A BINDING ARBITRATION PROVISION AND A CLASS ACTION WAIVER. BY USING THE SERVICES, YOU AGREE TO RESOLVE DISPUTES WITH US BY INDIVIDUAL BINDING ARBITRATION RATHER THAN IN COURT, AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION, UNLESS YOU OPT OUT WITHIN THIRTY (30) DAYS AS DESCRIBED IN SECTION 22.9. SECTION 23 SHORTENS THE TIME IN WHICH YOU MAY BRING A CLAIM TO ONE (1) YEAR.
These Terms of Service (these “Terms”) govern your access to and use of allthesmokeproductions.com, allthesmoke.store, our email and text messaging programs, our podcast and video content, our social media pages and any other website, application, feed or service that links to these Terms (collectively, the “Services”). The Services are provided by All The Smoke Productions, LLC, a Delaware limited liability company (the “Company”, “we”, “us” or “our”).
By accessing or using the Services, you agree to these Terms and to our Privacy Policy, which is incorporated herein by reference. If you do not agree, do not use the Services. If you are accepting these Terms on behalf of an entity, you represent that you have authority to bind that entity, and “you” refers to that entity. In these Terms, “include” and “including” mean including, but not limited to.
1. Eligibility; Accounts
1.1 Age. You must be at least thirteen (13) years of age to use the Services and at least eighteen (18) years of age, or the age of majority in your jurisdiction, to purchase merchandise, enter a promotion, subscribe to text messages or make a Submission. If you are between thirteen (13) and eighteen (18) years of age, you may use the Services only with the involvement of a parent or legal guardian, who agrees to be bound by these Terms on your behalf. By using the Services you represent that you meet these requirements and that you have not previously been suspended or removed from the Services.
1.2 Accounts. Certain features require an account. You agree to provide accurate and complete information, to keep it current, to keep your credentials confidential and to be responsible for all activity under your account. You will notify us promptly at info@allthesmokeproductions.com of any unauthorized use of your account. We may refuse, suspend or terminate any account at our discretion.
1.3 Geographic Scope. The Services are operated from the United States. We make no representation that the Services or any Company Content are appropriate or available in any other jurisdiction, and access from jurisdictions where the content is illegal is prohibited. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local law.
2. Changes to the Services and to These Terms
2.1 The Services. We may modify, suspend or discontinue all or any part of the Services at any time, with or without notice. We are not liable to you or to any third party for any modification, suspension or discontinuation of the Services or of any Company Content.
2.2 These Terms. We may modify these Terms from time to time. If we make material changes we will revise the Effective Date above and, where required by law, provide additional notice, which may include posting a notice on a Site or sending an email to the address associated with your account or subscription. Changes are effective when posted, except that changes to Section 22 (Dispute Resolution) apply only prospectively as described in Section 22.12. Your continued use of the Services after changes are posted constitutes your acceptance of the modified Terms.
3. Company Content; Limited License; Restrictions
3.1 Ownership. Company Content is owned by us or our licensors and is protected by United States and international copyright, trademark, trade dress and other intellectual property laws. Except for the limited license in Section 3.2, no right, title or interest in any Company Content is transferred to you.
3.2 License to You. Subject to your compliance with these Terms, we grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Services, and to stream, download and view Company Content that we make available for that purpose, in each case for your personal, non-commercial use only.
3.3 Restrictions. Except as expressly permitted in these Terms or by applicable law, you will not: (a) copy, reproduce, distribute, publicly perform, publicly display, republish, broadcast, syndicate, re-upload or create derivative works from any Company Content; (b) use any Company Content in connection with any product, service, advertisement, sponsorship or endorsement without our prior written consent; (c) remove, obscure or alter any copyright, trademark or other proprietary notice, or any watermark, attribution or digital rights management measure; (d) use any Company Content to train, develop, fine-tune, benchmark, evaluate or otherwise improve any artificial intelligence or machine learning model or system, or to create any synthetic voice, likeness or performance of any person appearing in the Company Content; (e) use any robot, spider, scraper, crawler or other automated means to access, monitor, index or copy the Services or any Company Content, other than a standards-compliant search engine crawler that obeys our robots.txt file; (f) circumvent, disable or interfere with any security, access control, rate limit or usage restriction; (g) frame, mirror or deep-link to the Services in a manner that obscures their source; or (h) attempt to derive the source code of, reverse engineer or decompile any part of the Services.
3.4 Clips and Fair Use. Nothing in these Terms limits any right you have under applicable copyright law, including fair use. Our brand features may not be used, however, in any manner that suggests sponsorship, endorsement or affiliation where none exists, and nothing in this Section 3.4 permits the uses restricted by Section 3.3(d).
3.5 Reservation. All rights not expressly granted are reserved. The license in Section 3.2 terminates automatically on any breach of this Section 3.
4. Submissions and User Content
This Section 4 governs any content you submit, post or send to us, including questions, comments, stories, photographs, artwork, audio, video, voicemails, direct messages, fan mail, tags, posts and replies directed to us or to any account, hashtag, inbox, voicemail line or address we operate (collectively, “Submissions”).
DO NOT SEND US ANYTHING YOU WANT KEPT CONFIDENTIAL, ANYTHING YOU EXPECT TO BE PAID FOR, OR ANYTHING YOU DO NOT OWN.
4.1 License You Grant to Us. By making a Submission, you grant the Company a perpetual, irrevocable, worldwide, non-exclusive, royalty free, fully paid, transferable and sublicensable license to use, host, store, reproduce, edit, excerpt, dub, subtitle, modify, adapt, create derivative works from, publish, perform, display, distribute, transmit, broadcast and otherwise exploit your Submission, in whole or in part, in any and all media now known or hereafter devised, throughout the universe, in perpetuity, for any purpose, including in our podcast and video episodes, on our websites and social media channels, in clips, compilations, trailers, promotional materials, merchandise and advertising, and in connection with any sponsorship or commercial arrangement.
4.2 Name and Likeness. You grant us the right to use your name, voice, likeness, image, social media handle, city and state, and biographical information contained in or supplied with your Submission, in connection with the uses permitted by Section 4.1, and you waive any right to inspect or approve any use, any resulting product or any copy that may be used in connection with it.
4.3 No Compensation. You will not be entitled to any compensation, credit, attribution, royalty or other consideration for any Submission or for any use of a Submission, and no employment, partnership, joint venture, agency or fiduciary relationship is created by your Submission.
4.4 No Confidentiality; Ideas and Pitches. Submissions are not confidential and are not submitted in confidence. We receive a large volume of ideas, suggestions and materials, and ideas similar to yours may already be under consideration or in development by us or by others.
You acknowledge that (a) we have no obligation to review, use, credit, return or keep any Submission; (b) our use of any material that is similar or identical to your Submission creates no obligation to you; and (c) nothing in these Terms limits our right to develop, acquire or exploit any material of our own or from any other source.
We do not accept unsolicited scripts, treatments, formats or other creative pitches, and any such material sent to us is a Submission governed by this Section 4.
4.5 Your Representations. By making a Submission you represent and warrant that: (a) you meet the age requirements in Section 1.1; (b) you own or control all rights in the Submission, including all rights in any music, footage, photographs, artwork, trademarks and other material appearing in it, and you have obtained all consents necessary to grant the licenses in Sections 4.1 and 5.2; (c) every identifiable person appearing or heard in the Submission has consented to its use as described in this Section 4, and where any such person is a minor, that person’s parent or legal guardian has consented; (d) the Submission is not defamatory, obscene, harassing, threatening or unlawful, does not infringe or misappropriate the rights of any person, and does not violate the terms of any platform on which it was created or posted; (e) the Submission contains no confidential information belonging to any person and discloses no matter you are under an obligation not to disclose; and (f) no consent, payment or clearance is required from any guild, union, collecting society or other third party for our use of the Submission.
4.6 Release. You release and forever discharge the Company, its affiliates and their respective members, managers, officers, employees, agents, hosts, producers, licensees, distributors, sponsors and assigns from any and all claims, demands, damages, liabilities, costs and expenses of any kind, whether known or unknown, arising out of or relating to any Submission or any use of a Submission permitted by these Terms, including claims for defamation, invasion of privacy, right of publicity, false light, infliction of emotional distress, copyright infringement and breach of any implied contract or implied-in-fact contract.
4.7 Waiver of Civil Code Section 1542. You acknowledge that you have read and understand California Civil Code Section 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
You expressly waive the protections of Section 1542 and of any comparable statute or rule of any other jurisdiction.
4.8 Moral Rights. To the fullest extent permitted by applicable law, you waive, and agree not to assert, any moral rights, droit moral, rights of paternity or integrity, or similar rights you may have in any Submission, and you consent to any act or omission that would otherwise infringe such rights.
4.9 Our Discretion. We may edit, refuse, remove or decline to use any Submission for any reason or for no reason, and we may block or ban any user. We do not endorse any Submission, and the views expressed in a Submission are those of the person who made it. We have no obligation to monitor Submissions, and any monitoring we do undertake does not create an obligation to monitor further.
4.10 Third Party Platforms. Where you make a Submission through a social media or other third party platform, your use of that platform is governed by its terms in addition to these Terms. Where a platform’s terms prevent us from exercising a right granted in Section 4.1, we will exercise that right only to the extent permitted by that platform.
4.11 Removal Requests. You may ask us to stop using a Submission by writing to info@allthesmokeproductions.com with “Submission Removal” in the subject line. We will remove it from our archive and stop new uses. We cannot recall episodes, clips or posts already published and distributed, and platforms hosting that content retain their own copies.
5. Feedback
If you send us suggestions, ideas or feedback about the Services, you grant us a perpetual, irrevocable, worldwide, royalty free license to use and exploit that feedback for any purpose without obligation or compensation to you. Feedback is not confidential.
6. Prohibited Conduct
You will not: (a) violate any applicable law, regulation or these Terms; (b) infringe or misappropriate the intellectual property, privacy, publicity or other rights of any person; (c) post or transmit any content that is unlawful, defamatory, harassing, abusive, threatening, obscene, hateful or that depicts or promotes violence or self-harm; (d) impersonate any person or misrepresent your affiliation with any person or entity, including the Company, its hosts or its guests; (e) upload any virus, malware or other harmful code; (f) attempt to gain unauthorized access to the Services or to any account, system or network connected to the Services, or probe, scan or test their vulnerability; (g) interfere with or disrupt the integrity or performance of the Services, including by overloading, flooding or spamming; (h) use any automated means, bot, script or purchasing software to acquire merchandise, tickets or limited releases, or to circumvent any quantity limit; (i) harvest, scrape or collect information about other users; (j) resell, sublicense or commercially exploit any part of the Services or Company Content; or (k) encourage or enable any third party to do any of the foregoing.
7. Merchandise Orders
7.1 Orders. Merchandise offered through our store is subject to these Terms and to the product descriptions, pricing, shipping and return policies posted at the point of sale. All orders are offers to purchase and are subject to acceptance by us. We may limit or cancel quantities purchased per person, per household or per order, refuse or cancel any order, and correct pricing or description errors, including after an order has been submitted and payment processed. Where we cancel an order that has been paid for, your sole remedy is a refund of amounts paid.
7.2 Pricing, Taxes and Availability. Prices are stated in United States dollars and are subject to change without notice. You are responsible for all applicable sales, use and excise taxes, customs duties and import fees. Product descriptions, images and colors are approximate and we do not warrant that they are accurate, complete, reliable or error free. Availability is not guaranteed.
7.3 Shipping and Risk of Loss. Shipping timeframes are estimates and are not guaranteed. Title and risk of loss pass to you upon our delivery of the merchandise to the carrier. We are not responsible for carrier delay, loss or damage in transit except as stated in the posted shipping policy.
7.4 Returns and Refunds. Returns and refunds are governed by the refund policy posted in the store, which is incorporated herein by reference. Custom, personalized and final sale items are not returnable except where required by law.
7.5 Promotion Codes and Gift Cards. Discount codes, promotion codes and gift cards are issued in our discretion, have no cash value except as required by law, may not be combined unless stated, are void where prohibited and may be revoked where obtained through error, fraud or in violation of these Terms. Gift cards are subject to the additional terms provided with them.
7.6 Payment; Chargebacks. By submitting payment information you represent that you are authorized to use the payment method and authorize us and our payment processor to charge it for the total amount of your order. Payment card details are collected and processed by our payment processor and are not stored by us. Where a chargeback is initiated for a delivered order, we may suspend your account and recover the disputed amount and related fees.
7.7 Resale. Merchandise is sold for personal use only. Purchases made for commercial resale are prohibited, and we may cancel any order we reasonably believe is placed for resale or by an automated means.
8. Promotions, Sweepstakes and Contests
Sweepstakes, contests, giveaways and similar promotions offered through the Services are governed by the official rules posted for that promotion, which are incorporated herein by reference and which control in the event of a conflict with these Terms as to that promotion. No purchase is necessary to enter or win any promotion we offer unless the official rules state otherwise and the promotion is structured as a lawful contest of skill. Promotions are void where prohibited.
9. Email and Text Messaging Programs
9.1 Email. If you subscribe to our email program you may unsubscribe at any time using the link in any email or by contacting us as described in Section 27 (Notices; Contact).
9.2 Enrollment and Consent to Text Messages. By providing your mobile telephone number and affirmatively opting in, you agree to receive recurring automated marketing and informational text messages from us at that number, including messages sent using an automatic telephone dialing system.
Consent to receive text messages is not a condition of purchasing any goods or services. You represent that you are the subscriber to, or the customary user of, the mobile telephone number you provide, that you are at least eighteen (18) years of age, and that you will notify us promptly if the number is reassigned or you no longer use it.
9.3 Message Frequency and Charges. Message frequency varies and depends on your interaction with us. Message and data rates may apply. Charges are billed by and payable to your mobile service provider, we are not responsible for any charges you incur, and you should contact your carrier for details of your plan.
9.4 Opting Out. You may opt out at any time by replying STOP to any message from us. You will receive a single message confirming your opt-out, after which we will send no further marketing messages to that number.
You may also opt out by emailing info@allthesmokeproductions.com with the subject line “SMS Stop” and the mobile number to be removed, or by any other reasonable method. We honor revocations of consent made through any reasonable means.
9.5 Help. Reply HELP to any message for assistance, or contact us at info@allthesmokeproductions.com or 877-642-2877.
9.6 Supported Carriers and Delivery. The program may not be available on all carriers. Carriers are not liable for delayed or undelivered messages. We do not guarantee that any message will be delivered and we are not liable for any delay in or failure of delivery.
9.7 Privacy. Information collected through the program is handled as described in our Privacy Policy. We do not sell mobile telephone numbers collected for the program and we do not share them with third parties for their own marketing purposes. We disclose them to the service providers that operate the program on our behalf.
9.8 Changes; Disputes. We may modify or terminate the text messaging program, or any of its features, at any time, with or without notice. Section 22 applies to any dispute arising out of or relating to the program, including any claim under the Telephone Consumer Protection Act or any state analogue.
10. Third Party Platforms, Services and Links
The Services contain links to, and our content is distributed through, websites, platforms and services we do not control, including video, podcast, social media, e-commerce, ticketing and payment platforms. Your use of those platforms is governed by their own terms and privacy policies.
We are not responsible for the content, policies, availability, security or practices of any third party platform, and a link or distribution arrangement does not constitute an endorsement. Any dealings between you and a third party, including payment and delivery of goods or services, are solely between you and that third party.
11. Advertising, Sponsorships and Endorsements
Our content includes advertising, sponsorships, paid promotions, affiliate arrangements and products in which we or our hosts hold an interest. We disclose these relationships as required by applicable law, including the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising.
Statements made about a sponsor’s products are the sponsor’s own, and we make no representation or warranty about any product or service advertised or promoted through the Services.
12. Content Disclaimers
12.1 Guest and Host Statements. Statements, opinions and claims made by hosts, guests, callers and third parties in our content are their own and do not necessarily reflect the views of the Company. We do not verify, adopt or endorse them.
12.2 No Professional Advice. Nothing in the Services is intended as legal, financial, tax, medical, psychological or other professional advice. Content about training, nutrition, supplements, recovery or wellness is for entertainment and general information only, and you should consult a qualified professional before acting on any of it.
12.3 Wagering Content. Our content may discuss sports betting, odds, fantasy sports and related topics for entertainment purposes. Nothing in the Services is a recommendation to place any wager, and we make no representation about the accuracy of any odds, prediction or analysis.
Sports wagering is restricted by age and jurisdiction, is not legal everywhere, and you are responsible for compliance with the law where you are located. If you or someone you know has a gambling problem, help is available at 1-800-GAMBLER.
12.4 Historical Content. Episodes and clips reflect information available at the time of recording and are not updated.
13. Accessibility
We are working to make the Services accessible to people with disabilities and to conform to recognized accessibility standards. If you encounter difficulty using any part of the Services, contact us at info@allthesmokeproductions.com with a description of the difficulty and the page or content involved, and we will work with you to provide the information or transaction you need through an alternative method.
14. Copyright Complaints
14.1 Notice. We respond to notices of alleged copyright infringement consistent with the Digital Millennium Copyright Act. If you believe that material available through the Services infringes a copyright you own or control, send a written notice to our designated agent that includes: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to be infringed; (c) identification of the material claimed to be infringing and information reasonably sufficient to permit us to locate it; (d) your contact information; (e) a statement that you have a good faith belief that the use is not authorized by the copyright owner, its agent or the law; and (f) a statement, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner or authorized to act on the owner’s behalf.
DMCA Designated Agent:
Dylan Dreyfuss
All The Smoke Productions, LLC
P.O. Box 10129
Marina Del Rey, CA 90295
Email: info@allthesmokeproductions.com
14.2 Counter-Notice. If your material was removed and you believe it was removed in error or by misidentification, you may send a counter-notice to our designated agent containing: (a) your physical or electronic signature; (b) identification of the material and the location at which it appeared before removal; (c) a statement under penalty of perjury that you have a good faith belief the material was removed by mistake or misidentification; (d) your name, address and telephone number; and (e) a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or, if your address is outside the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided the original notice or that person’s agent.
14.3 Repeat Infringers. We may terminate, in appropriate circumstances, the access of any user who is determined to be a repeat infringer.
14.4 Misrepresentation. Under 17 U.S.C. Section 512(f), a person who knowingly materially misrepresents that material is infringing, or that it was removed by mistake, may be liable for damages, including costs and attorneys’ fees.
15. Trademarks and Brand Use
ALL THE SMOKE and the other names, logos and marks appearing in the Services are trademarks or service marks of the Company or its licensors. You may not use them without our prior written consent, except in a nominative, descriptive manner that does not suggest sponsorship, endorsement or affiliation.
Fan pages and fan accounts must not use our marks in a manner likely to cause confusion as to source or affiliation, and must not present themselves as official.
16. Privacy
Our collection and use of information is described in our Privacy Policy, our Cookie and Tracking Technologies Notice and our State Law Privacy Rights Supplement, each of which is incorporated herein by reference.
17. Export Controls and Sanctions
You represent that you are not located in, and are not a national or resident of, any country subject to comprehensive United States sanctions, and that you are not listed on any United States government list of prohibited or restricted parties. You will not use or export any part of the Services in violation of United States export control or sanctions laws.
18. Electronic Communications
By using the Services you consent to receive communications from us electronically, including by email and by posting to a Site, and you agree that all agreements, notices, disclosures and other communications we provide electronically satisfy any legal requirement that they be in writing.
This consent is given for purposes of the federal ESIGN Act and comparable state law. You may withdraw this consent by contacting us as described in Section 27, in which case we may suspend or terminate your access to features that require electronic delivery.
19. Disclaimers
THE SERVICES AND ALL COMPANY CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY CONTENT IS ACCURATE, COMPLETE OR CURRENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
20. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, HOSTS, PRODUCERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT YOU PAID TO US IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM AND (B) ONE HUNDRED DOLLARS ($100).
THE LIMITATIONS IN THIS SECTION APPLY TO ALL CLAIMS IN THE AGGREGATE, ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US, AND SURVIVE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTHING IN THESE TERMS LIMITS LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
21. Indemnification
You will indemnify, defend and hold harmless the Company, its affiliates and their respective members, managers, officers, employees, agents, hosts and producers from and against any claims, demands, actions, damages, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, arising out of or relating to (a) your use of the Services; (b) your Submissions; (c) your violation of these Terms; or (d) your violation of any law or the rights of any third party.
We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, at your expense, in which case you will cooperate with us in asserting any available defense. You will not settle any matter subject to this Section without our prior written consent.
22. Dispute Resolution; Binding Arbitration; Class Action Waiver
22.1 Scope. This Section 22 applies to any dispute, claim or controversy arising out of or relating to these Terms, the Services, any Submission, any purchase, any communication we send you or the relationship between you and the Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and whether arising before, during or after the termination of these Terms (each, a “Dispute”). It includes any dispute about the validity, enforceability, scope or arbitrability of this Section 22, except as stated in Section 22.6.
22.2 Informal Resolution. Before initiating arbitration or any proceeding, you and the Company agree to attempt in good faith to resolve the Dispute informally. You will send written notice of the Dispute to info@allthesmokeproductions.com and to the address in Section 27, describing the claim, the facts on which it is based and the relief sought, and including your name, address and the email address associated with your use of the Services. We will send notice to the email or postal address we have for you.
Either party may request an individualized telephone or videoconference settlement conference, and both parties will participate in good faith. If the Dispute is not resolved within sixty (60) days after the notice is received, either party may commence arbitration.
This informal resolution process is a condition precedent to commencing arbitration, the applicable limitations period is tolled while it is pending, and an arbitration demand filed before it is complete may be dismissed on that basis.
22.3 Agreement to Arbitrate. Any Dispute not resolved under Section 22.2 will be resolved exclusively by final and binding individual arbitration before a single arbitrator administered by JAMS under its Streamlined Arbitration Rules and Procedures and, where applicable, its Consumer Arbitration Minimum Standards, each as then in effect. The Federal Arbitration Act governs the interpretation and enforcement of this Section 22.
22.4 Seat; Format. The arbitration will be seated in Los Angeles County, California. At your election the arbitration may be conducted (a) on the documents alone, (b) by telephone or videoconference, or (c) in person in the county of your residence or in Los Angeles County. The arbitrator will issue a reasoned written award, which may be entered as a judgment in any court of competent jurisdiction.
22.5 Fees. Payment of filing, administration and arbitrator fees is governed by the JAMS rules then in effect, including any rule allocating the greater share of those fees to the Company in a consumer arbitration.
Where you demonstrate that the fees would be prohibitive compared with the cost of litigation, we will pay as much of your filing and hearing fees as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive. Each party otherwise bears its own attorneys’ fees and costs, except where a statute or the arbitrator’s award provides otherwise.
22.6 Class Action Waiver. You and the Company agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, coordinated, private attorney general or other representative proceeding.
The arbitrator may not consolidate the claims of more than one person and may not preside over any form of representative or class proceeding. Notwithstanding Section 22.1, the enforceability of this Section 22.6 is for a court and not the arbitrator to decide.
If this Section 22.6 is found unenforceable as to a particular claim or request for relief, then that claim or request for relief, and only that one, will be severed and brought in a court of competent jurisdiction, and all remaining claims will proceed in arbitration.
22.7 Jury Trial Waiver. You and the Company each waive any right to a trial by jury with respect to any Dispute, whether resolved in arbitration or, where a Dispute proceeds in court under this Section 22, in court.
22.8 Mass Filings. If twenty-five (25) or more similar demands for arbitration are asserted against the Company by or with the assistance of the same law firm or coordinated group of counsel, the parties will cooperate with JAMS to process those demands in batches of no more than fifty (50), with a single arbitrator appointed per batch, a single set of filing fees due per batch, and an initial batch of no more than fifty (50) bellwether demands resolved before any further batch proceeds.
The limitations period is tolled for demands held pending completion of earlier batches. This Section is intended to reduce cost and delay for both sides and does not waive any party’s right to individualized resolution of its own claim.
22.9 Your Right to Opt Out. You may opt out of this Section 22 by sending written notice of your decision to opt out to info@allthesmokeproductions.com with the subject line “Arbitration Opt-Out”, or by mail to the address in Section 27, within thirty (30) days after you first accept these Terms.
The notice must include your name, mailing address and the email address associated with your use of the Services. If you opt out, this Section 22 will not apply to you and Section 24 (Governing Law; Venue) will govern, and opting out will not affect any other provision of these Terms or any other agreement between you and the Company.
22.10 Exceptions. Notwithstanding the foregoing, (a) either party may bring an individual claim in small claims court if it qualifies and remains in that court, and (b) either party may seek temporary or preliminary injunctive relief in any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of its intellectual property or confidential information, without the necessity of posting a bond.
22.11 Confidentiality. The arbitration and all records relating to it are confidential, except as necessary to prepare for or conduct the arbitration, to confirm, correct, modify or vacate an award, or as otherwise required by law. Nothing in this Section prevents a party from reporting conduct to a government agency.
22.12 Changes to This Section. If we make a material change to this Section 22 after the date you last accepted these Terms, that change does not apply to any Dispute of which we had actual notice on or before the date of the change, and does not apply to any claim you assert within thirty (30) days after the change is posted. Your continued use of the Services after that period constitutes acceptance of the change.
22.13 Survival. This Section 22 survives termination of these Terms and any termination of your use of the Services.
23. Time Limit on Claims
To the fullest extent permitted by applicable law, any claim arising out of or relating to these Terms or the Services must be commenced within one (1) year after the claim accrues, and a claim not commenced within that period is permanently barred. This Section does not apply where the applicable limitations period cannot be shortened by agreement.
24. Governing Law; Venue
These Terms and any Dispute are governed by the laws of the State of California, without regard to its conflict of laws principles, and the United Nations Convention on Contracts for the International Sale of Goods does not apply.
Subject to Section 22, you and the Company submit to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California, and waive any objection to jurisdiction or venue in those courts.
25. Termination
We may suspend or terminate your access to the Services at any time, with or without cause and with or without notice. You may stop using the Services at any time.
Sections 3 through 6, 11 through 12 and 14 through 28 survive any termination, together with any provision that by its nature should survive.
26. California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following notice: the
Complaint Assistance Unit of the Division of Consumer Services of the California Department of
Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento,
California 95834, or by telephone at (800) 952-5210.
27. Notices; Contact
We may provide notices to you by email to the address associated with your account or subscription, by posting on a Site, or by any other reasonable means.
Notices to us must be sent to:
All The Smoke Productions, LLC
Attn: Legal
P.O. Box 10129
Marina Del Rey, CA 90295
Email: info@allthesmokeproductions.com
28. General
Entire Agreement. These Terms, together with our Privacy Policy, Cookie and Tracking Technologies Notice, State Law Privacy Rights Supplement and any official rules or policies posted for a specific feature or promotion, constitute the entire agreement between you and the Company regarding the Services and supersede all prior agreements, understandings and negotiations on that subject.
Severability. If any provision of these Terms is held invalid or unenforceable, that provision will be enforced to the maximum extent permitted and the remaining provisions will remain in full force and effect, except as stated in Section 22.6.
No Waiver. Our failure to enforce any provision is not a waiver of our right to do so later, and no waiver is effective unless in writing and signed by us.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent, and any attempt to do so is void. We may assign these Terms without restriction, including in connection with a merger, financing, reorganization or sale of assets.
Force Majeure. We are not liable for any failure or delay in performance caused by events beyond our reasonable control, including acts of God, flood, fire or explosion, labor disputes, war, terrorism, epidemic, utility or telecommunications failure, platform outage or governmental action.
No Third Party Beneficiaries. These Terms confer no rights on any person other than you and the Company, except that the persons identified in Sections 20 and 21 are intended beneficiaries of those Sections.
Relationship. Nothing in these Terms creates any partnership, joint venture, agency, franchise or employment relationship between you and the Company.
Interpretation. Headings are for convenience only and do not affect interpretation. These Terms will not be construed against the drafter.
Language. These Terms are drafted in English, and the English version governs in the event of any conflict with a translation.