Terms of Use

PLEASE READ THESE TERMS OF USE (“Terms,” “Terms of Use,” or “Agreement”) CAREFULL. THESE TERMS AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, AND INCLUDE WAIVERS OF RIGHTS, LIMITATIONS OF LIABILITY, AND YOUR INDEMNITY TO US. THESE TERMS ALSO REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, WAIVING YOUR RIGHT TO A JURY TRIAL AND CLASS ACTION RELIEF.

The service is provided by Gunpowder & Sky, LLC and/or its subsidiaries or affiliates (“G&S,” “we,” “us,” or “our”). Please take a moment to carefully read through these Terms of Use. These Terms of Use are a legally binding agreement between you and G&S, and govern your use of our online, digital, or mobile services, including our websites, software, applications, games, and any of our other products and services in connection with which these Terms of Use are posted or from which they are linked (collectively, the “Service”). By using the Service (including viewing or accessing any content on the Service) you are agreeing to these Terms. Your continued use of the Service constitutes your agreement to these Terms of Use, and the collection and use of your information as described in our Privacy Policy.

Certain aspects of the Service may be subject to additional terms and conditions, which may include, among other things, particularized age requirements, codes of conduct, sweepstakes and contest rules, and payment or subscription terms (collectively, “Additional Terms”). When Additional Terms are made available in connection with any aspect of the Service, those Additional Terms also apply to your use of that aspect of the Service and control in the event of a conflict with these Terms.

Changes to These Terms of Use

You acknowledge and agree that G&S may, in its sole discretion, modify, add or remove any portion of these Terms at any time and in any manner, by posting revised Terms on the Service. You may not amend or modify these Terms under any circumstances. It is your responsibility to check periodically for any changes we make to the Terms. Your continued use of the Service after any changes to the Terms means you accept the changes.

Content; Access, Use and License

All content available through the Service (including, without limitation, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof) is the exclusive property of and owned or controlled by G&S and its licensors or its content providers, and is protected by copyright, trademark and other applicable intellectual property laws. G&S or its licensors or content providers retain full and complete title to the Content, including all associated intellectual property rights, and grant you a limited, non-exclusive license to access the Service, for personal, non-commercial use in accordance with these Terms of Use.

You may not either directly or through the use of any device, software, Internet site, web-based service, or other means

(i) remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms;

(ii) copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content (except as expressly permitted by these Terms of Use);

(iii) incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links; create, recreate, distribute or advertise an index of any significant portion of the Content.

You may not build a business utilizing Content, whether or not for profit. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including without limitation montages, mash-ups and similar videos, and merchandise, unless it is expressly permitted by G&S in writing. This prohibition applies even if you intend to give away the derivative materials free of charge. Further, G&S strictly prohibits any other use of the Service, including but not limited to any use that:

(i) violates the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights;

(ii) uses technology or other means to access, index, frame or link to the Service (including the Content), including without limitation by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Service;

(iii) involves accessing the Service (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices - but not caches or archives - of the Service and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);

(iv) introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(v) damages, disables, overburdens, impairs, or gains unauthorized access to the Service, including G&S’s servers, computer network, or user accounts;

(vi) removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Service (including the Content);

(vii) uses the Service to advertise or promote services that are not expressly approved in advance in writing by G&S;

(viii) collects personally identifiable information in violation of the Privacy Policy;

(ix) encourages conduct that would constitute a criminal offense or give rise to civil liability;

(x) violates these Terms of Use or any guidelines or policies posted by G&S;

(xi) interferes with any other party's use and enjoyment of the Service; or

(xii) attempts to do any of the foregoing.

You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Service. You may not bypass any measures that have been implemented to prevent or restrict access to the Service. Any unauthorized access to the Service by you (including any such access or use that involves in any way an account you may establish on the Service or any device you may use to access the Service) shall terminate the permission or license granted to you by G&S.

G&S reserves the right to limit or terminate your access to or use of the Service at any time without notice for any reason whatsoever. G&S neither warrants nor represents that your use of Content will not infringe rights of third parties not affiliated with G&S. Termination of your access or use will not waive or affect any other right or relief to which G&S may be entitled, at law or in equity.

Data Integrity

You represent that any information, data and other materials you provide on or through the Service or to G&S through any other means is true, accurate, current and complete. You are responsible for updating and correcting the information you have provided. You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. Some features that may be available on the Service require registration. By registering, you agree to provide true, accurate, current and complete information about yourself.

Privacy

For information about G&S’s policies and practices regarding the collection, use, disclosure and other processing of personal information on the Service, please read the Privacy Policy. The Privacy Policy is incorporated by reference and made part of these Terms of Use. By agreeing to these Terms of Use, you agree that your use of the Service is governed by the Privacy Policy in effect at the time of your use. We may update the Privacy Policy from time to time in our sole discretion, and post an updated version of the notice at the website address provided above.

User Submissions

With respect to any content you submit or make available through on or through the Service (other than personal information, which is handled in accordance with the Privacy Policy), you grant G&S a non-exclusive, perpetual, irrevocable, non-terminable, unrestricted, worldwide, royalty-free license to use, copy, reproduce, distribute, publicly display, publicly perform, transmit modify, create derivative works, and sublicense such content or any part of such content, by any means and in all media formats and channels now known or hereafter devised in perpetuity, and to advertise and promote such use, without any notice or permission from you or any other person, and without compensation or attribution to you or any other person.

Please retain copies of all content you submit, as G&S is under no obligation to store or return any such content you. Your submission of content will not be subject to any obligation of confidentiality, attribution, or otherwise. G&S only acts as a passive conduit for any content submitted by you, and will not be liable for any use, disclosure, or exposure of any such content, including possibly objectionable or offensive content, to you, any other user, or any third party. G&S is under no obligation to monitor any user submitted content or use of the Service, but G&S reserves the right to monitor or moderate user content, in our sole discretion, and to enforce our or a third party’s intellectual property rights in any user submitted content. G&S reserves the right to discard or remove any user submitted from the Service in its sole discretion and without any liability whatsoever.

You acknowledge that you are responsible for any content you may submit through the Service, including the legality, reliability, appropriateness, originality and copyright of any such content. You hereby represent and warrant that the any content you upload to, distribute or otherwise publish through the Service does not:

(i) contain any confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. of foreign laws;

(ii) contain software viruses or malware;

(iii) contain advertisements or solicitations of any kind, or other commercial content;

(iv) impersonate others;

(v) contain personal information, except where we expressly ask you to provide such information;

(vi) contain messages purporting to speak on behalf of G&S or containing confidential information or expressing opinions concerning G&S;

(vii) contain messages that offer unauthorized downloads of any copyrighted, confidential or private information;

(viii) contain multiple messages placed within individual folders by the same user restating the same point;

(ix) contain chain letters of any kind; or

(x) contain identical (or substantially similar) messages to multiple recipients advertising any product or service, expressing a political or other similar message, or any other type of unsolicited commercial message; this prohibition includes but is not limited to (a) functionality that may be available on the Service to send messages to people who do not know you or who are unlikely to recognize you as a known contact; (b) using the Service to connect to people who do not know you and then sending unsolicited promotional messages to those direct connections without their permission; or (c) sending messages to distribution lists, newsgroup aliases or group aliases.

Links

The Service may contain links to other websites or resources that are operated by third parties not affiliated with G&S. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Inclusion of links to other sites or resources should not be viewed as an endorsement of the content of linked sites or resources. Different terms and conditions and privacy policies may apply to your use of any linked sites or resources. G&S is not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any such content, products or services available on or through any such linked site or resource.

DISCLAIMERS

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, THE CONTENT, AND ANY OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, G&S DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY OR NONINFRINGEMENT; OR THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM THE SERVICE SHALL CREATE ANY WARRANTY OF ANY KIND. G&S DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, PLATFORM, OR SERVICE LINKED TO THE SERVICE, WHETHER IN TERMS OF THEIR CORRECTNESS, ACCURACY, VALIDITY, PROPRIETY, RELIABILITY, LEGALITY, SECURITY, OR OTHERWISE. G&S MAKES NO WARRANTIES THAT YOUR USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, OR SERVICE LINKED TO FROM THE SERVICE WILL NOT INFRINGE THE RIGHTS OF OTHERS; AND G&S ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH SERVICES, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY OTHER WEBSITE, APP, PLATFORM OR SERVICE LINKED TO THE SERVICE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

LIMITATION OF LIABILITY

IN NO EVENT SHALL G&S OR ITS AFFILIATES, PARENTS, SUBSIDIARIES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT PROVIDERS) (COLLECTIVELY, THE “G&S PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, ACTUAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SERVICE (INCLUDING ANY CONTENT, INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH THE SERVICE), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE G&S PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED $50.

Indemnities

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE G&S PARTIES FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WITHOUT LIMITATION YOUR USE OF THE CONTENT). G&S RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

Trademarks and Copyrights

The trademarks, logos and service marks (“Marks”) displayed on the Service are the property of G&S or its licensors or content providers, or other parties. None of the Marks may be copied, downloaded, or otherwise exploited. You may not use frames or utilize framing techniques or technology to enclose any content included on the Service without G&S’s express written consent. Further, you may not utilize any content on or from the Service in any meta tags or any other “hidden text” techniques or technologies without G&S’s express written consent. All content (including any software programs) available on or through the Service is protected by copyright, trademark and other applicable U.S. and foreign laws.

Claims of Intellectual Property Infringement

G&S reserves the right to terminate users of the Service who are repeat copyright infringers. G&S may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts and/or memberships of users who may be infringing the intellectual property of a third party.

If you believe that Content or other material provided through the Service infringes your copyright, or your intellectual property rights have been otherwise violated, please notify G&S in accordance with the procedure set forth below. We will process each notice of alleged infringement and take appropriate action in accordance with applicable intellectual property laws. A notification of claimed copyright infringement should be emailed to G&S's copyright agent at dmca@G&S.com (subject line: "DMCA Takedown Request"). You may also contact us by mail or facsimile at:

ATTN: COPYRIGHT AGENT

Gunpowder & Sky, LLC

25 West 31st Street, 3rd Floor Front

New York, NY 10001

copyright@gunpowersky.com

To be effective, the notification must be in writing and contain the following information:

(i) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive copyright interest;

(ii) a description of the copyrighted work that you claim has been infringed;

(iii) a description of where the material that you claim is infringing is located on the Service that is reasonably sufficient to enable G&S to identify and locate the material;

(iv) your address, telephone number, and, if available, email address;

(v) 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

(vi) a statement by you that the above information in your notice is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material.

G&S may update this contact information from time to time without notice to you. We will post the current contact information on the Service.

Applicable Law and Venue

Except as otherwise provided herein, these Terms of Use will be governed by, construed, and enforced in accordance with the laws of the State of California, as they are applied to agreements entered into and to be performed entirely within California, excluding only the California body of laws concerning conflicts of law. Except as provided below, you consent to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California, including for any action seeking to compel arbitration or vacate an arbitral award, and consent to the personal jurisdiction of such courts. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies) will not apply to these Terms and is hereby disclaimed.

Arbitration

If a dispute arises under these Terms of Use between you and G&S, such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the American Arbitration Association, under their rules for consumer arbitrations. The venue for all disputes arising under these Terms of Use shall be Los Angeles County, California. All disputes in arbitration will be handled solely between the named parties, and not on any representative or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR TO A JURY TRIAL.

The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Use, including, but not limited to, any claim that all or any part of these Terms of Use is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, other than class relief. The arbitrator’s award will be written, and binding, on the parties and may be entered as a judgment in any court of competent jurisdiction.

If you are an individual consumer using the Service primarily for personal reasons, as opposed to a business user or individual accessing the Service for business purposes, and you are located within the United States (i) you may alternatively select your state of residence as the place of arbitration, but all other actions remain subject to the venue and choice of law provisions herein; (ii) G&S will pay all arbitration administrative fees and fees for the arbitrator’s services, other than the filing fee required for you to initiate a claim; (iii) if the claim you wish to assert against us is for less than $10,000 then, at your election, the arbitration may proceed in-person, by telephone, or by written briefs or you may in lieu of arbitration bring your claim in small claims court. If either party files a claim in state or federal court that is required by these Terms of Use to have been brought to arbitration, then the other party will be entitled to such party’s reasonable attorneys' fees incurred in successfully compelling arbitration. Additionally, if you are an individual consumer, you may opt-out of this Arbitration Agreement within thirty (30) days of first accepting these Terms by fully and accurately completing an opt out form, including providing: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username associated with your Account; and (iv) the date of your initial use of the Service.

Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in Los Angeles County, California. However, after such request for relief has been adjudicated by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein.

Waiver of Class Action

You and G&S agree that any dispute hereunder will be resolved on an individual basis and that any claims brought under these Terms of Use or in connection with the Service must be brought in the parties’ individual capacities, and not as a plaintiff or class member in any putative class, collective, or representative proceeding. The parties further agree that they will not participate in any class action (existing or future) brought by any third party arising under this Agreement or in connection with the Service. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration hereunder can proceed on a class-wide basis, then such class action is not subject to arbitration and must be litigated in state or federal court in Los Angeles County, California.

General

If any of the provisions set forth in these Terms of Use are deemed invalid, void, or for any reason unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the unenforceable condition shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions of these Terms of Use or the Terms of Service. Section headings are for reference purposes only and do not limit the scope or extent of such section.

The failure of G&S to act with respect to a breach of these Terms of Use by you or others does not waive G&S’s right to act with respect to subsequent or similar breaches.

If any content on the Service, or your use of the Service, is contrary to the laws of the place where you are when you access it, the Service is not intended for you, and we ask you not to use the Service. G&S makes no representation that every aspect of the Service is appropriate or available for use in any particular jurisdiction You are responsible for informing yourself of the laws of your jurisdiction and complying with them. When you choose to access and use the Service, you agree that you do so on your own initiative and at your own risk; you will not use the Service if you are prohibited from receiving products, services, or software originating from the United States; you are responsible for complying with local laws and regulations, if and to the extent local laws and regulations are applicable; and you specifically agree to comply with all applicable laws and regulations concerning the transmission of technical data exported from the country in which you reside. If there is a conflict between any of the terms herein and your rights in your place of residence, your rights under applicable law will control as to those specific terms.

G&S does not guarantee it will take action against all breaches of these Terms of Use.

Assignment

You may not assign these Terms of Use (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of G&S, which may be withheld at G&S’s sole discretion. Any attempted assignment that does not comply with these Terms of Use shall be null and void. G&S may assign these Terms of Use, in whole or in part, to any third party in its sole discretion.

Entire Agreement and Admissibility

These Terms of Use constitute the entire agreement and understanding between you and G&S with respect to the subject matter thereof and supersede all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to such subject matter. Notwithstanding anything to the contrary herein, if you used the Service prior to the date you accepted these Terms, you hereby acknowledge and agree that these Terms of Use commenced on the date you first used the Service (whichever is earlier) and will remain in full force and effect while you use the Service.

Survival of Terms

Notwithstanding any other provisions of these Terms of Use, or any general legal principles to the contrary, any provision of these Terms of Use that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms of Use.

Force Majeure

G&S shall be excused from performance under these Terms of Use or the Terms of Service, to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of G&S. In the event that G&S is temporarily unable to ship to you a purchased item because of such an event, G&S will give you the option of deferring shipment or receiving a refund of your charges.

Electronic Communications

When you use the Service, or send emails to G&S, you are communicating with G&S electronically. You consent to receive electronically any communications related to your use of the Service. G&S will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from G&S intended for receipt by a customer shall be deemed delivered and effective when sent to the email address you provide on the Service.