Terms of Service

smashscrap.ca ("SMASH") – Website Terms of Use

smashscrap.ca ("SMASH", "we", "our" or "us") owns and operates smash-auctions.com, an online digital platform that provides a business-to-business ("B2B") auction marketplace for catalytic converters and other scrap inventory and materials, as well as related inventory management tools (our "website"). Any of the related services we provide and through our interactions with users and potential users through our website shall be referred to as the "Services" throughout these Terms of Use.

PLEASE READ THESE TERMS OF USE ("TERMS") CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SMASH. THESE TERMS GOVERN YOUR ACCESS TO AND USE OF OUR WEBSITE OR THE SERVICES. BY VISITING OUR WEBSITE OR OTHERWISE USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS (INCLUDING THE LINKED DOCUMENTS REFERRED TO IN THESE TERMS), AS REVISED FROM TIME TO TIME. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT ACCESS OR USE OUR WEBSITE OR THE SERVICES. IF YOU ARE DISSATISFIED WITH THESE TERMS OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO OUR WEBSITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESS TO AND USE OF OUR WEBSITE, AND ALL ASPECTS OF THE SERVICES. YOU MAY ONLY USE OUR WEBSITE OR THE SERVICES IF YOU ARE A RESIDENT OF CANADA (EXCLUDING QUEBEC) AND THE UNITED STATES. IF YOU USE OR ACCESS THESE SERVICES FROM OUTSIDE THESE JURISDICTIONS, YOU DO SO AT YOUR OWN RISK. YOU REPRESENT THAT YOU ARE AT LEAST THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION. IF YOU ARE USING OUR SERVICES ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" WILL REFER TO SUCH ORGANIZATION. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE OUR WEBSITE OR THE SERVICES.

These Terms are effective on the earlier of the date (a) you click to accept these Terms, or (b) you first access our website, sign up for an account as a seller, buyer or both. You acknowledge SMASH's Privacy Policy located on our website (the "Privacy Policy"), as revised from time to time, and you consent and agree to our collection, use and disclosure of personal information as described in the Privacy Policy.

1. Limited License

SMASH grants you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to access and use our website, the Services, and the content that SMASH makes available to you on our website, including marketing, materials, text, audio, video, photographs, maps, illustrations, graphics, the Marks (as hereinafter defined) and other media ("Content"), in each case subject to and conditional on your continued compliance with the terms and conditions of these Terms. All Content available through our website is owned by SMASH and SMASH's third-party providers. All Content is provided for informational purposes only, and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. These Terms permit you to use our website for your personal use only, and not for any commercial purpose other than for transactions enabled by the functionality of our website. For greater certainty, SMASH, in its sole discretion, may terminate or suspend your license to use our website and/or some or all of the Services or Content at any time, for any reason or no reason, with or without notice to you, and without any liability to you or any other person. If SMASH terminates or suspends your license to use the some or all of the Services or Content, these Terms will nevertheless continue to apply in respect of your use of the Services and Content prior to such termination or suspension.

2. SMASH is a Facilitator and Disclaimer

You acknowledge and agree that SMASH is acting only as an intermediary for buyers and sellers, and while the Services facilitate engagement between buyers and sellers, SMASH is not a party to any transaction or contract between any buyer and seller. SMASH does not control, authenticate or review the quality or the accuracy of the description of catalytic converters, materials or any other products made available by sellers on our website, nor does SMASH assume any responsibility for the accuracy, reliability or completeness of any information provided by buyers or sellers on our website. In the event you have a dispute with any buyer or seller, as the case may be, you agree to address such dispute directly with the other party.

ACCORDINGLY, SMASH EXPRESSLY DISCLAIMS AND YOU RELEASE SMASH AND ITS OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS, LAWSUITS, PROCEEDINGS OR DAMAGES (DIRECT, INDIRECT, OR OTHERWISE) OF ANY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH DISPUTE, EXCEPT TO THE EXTENT SUCH DISPUTE WAS CAUSED DIRECTLY BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SMASH.

3. Use of Website

By accessing or using the website and the Services, you agree to comply with all applicable laws, rules and regulations (including, but not limited to, laws related to the sale and recycling of scrap metals and catalytic converters, import/export laws, environmental laws, and laws relating to privacy, copyright, trademark, confidential information, trade secret, libel, slander or defamation). Engaging in prohibited conduct may subject you to civil liability and criminal prosecution under applicable laws and constitutes a breach of this Agreement. If you have reason to believe that another person is using the website in a way that is harmful to you (e.g., to impersonate or imitate you, or to stalk, bully, threaten, intimidate or otherwise harass you), we urge you to contact your local authorities, or appropriate municipal, provincial, state or federal agencies. We have the right, but not the obligation, to delete any communications, content or other materials on this website at any time without notice or liability to you.

4. Restrictions

You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Content or otherwise violate local or worldwide copyright laws in your use of our website and Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (c) use, alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Content. SMASH has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Content provided by third parties through our website. You are granted no licenses or rights in or to any Content.

5. Account, Passwords, and Security

Certain areas of the website require registration or otherwise ask you to provide information to participate in certain features or access certain Services. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the website. If the website requires you to create an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as required by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. SMASH is not liable for any loss that you may incur as a result of someone else falsifying their information as required by the applicable registration form.

During the registration process, you will be asked to enter your full name, phone number and valid e-mail address, as well as your organization name, organization phone number, organization email, organization address, and other information relating to your organization's set-up, such as your business registration number, your official corporate documents, or your tax identification number. You will also need to choose a password. It is entirely your responsibility to maintain the confidentiality of your password and account. Sharing or transferring accounts is prohibited. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify SMASH immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the website. SMASH is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge, and is not responsible for any delay in shutting down your account after you have reported a breach of security to us.

6. Verifying Your Information

SMASH, either directly or through a third-party service provider, reserves the right to contact you by email or phone, or require you to provide additional information and supporting documentation to verify the information you may provide to SMASH in relation to your use of the website, including accuracy of account information (including your correct name, contact information, and address), information relating to your business, including relevant constating documents, and any other Know-Your-Business (KYB) information that is needed to provide you with the information you have requested from SMASH or to grant you access to use of some or all of the Services.

7. Minors

The website is not intended for use by individuals under the age of majority. If you are under the legal age of majority in your jurisdiction of residence or if you are under the age of majority in the location from which you are using or accessing the website, please exit the website and do not attempt to use the Services offered on or through the website. Your profile may be deleted and your account may be cancelled without notice if we believe that you are under the age of majority.

8. Cancellation of Account due to Improper Activity

By creating an account, you confirm that the information provided is true and that you agree to abide by these Terms. Your account can be cancelled without notice if SMASH determines, in its sole discretion, that false or misleading information has been provided, that the goods being offered for sale are illegal or have been acquired through illegal means, the goods being offered for sale are not rightfully owned by a seller or the seller does not have the right to offer the goods for sale, these Terms have been violated, or other abuses have occurred.

9. Unacceptable Use

You will not (a) make our website, or the Services or the Content available to, or use our website, or the Services or the Content for the benefit of, anyone other than yourself, (b) sell, resell, license, sublicense, distribute, make available, rent or lease our website, the Services or the Content, or include our website, the Services or the Content in a service bureau or outsourcing offering, (c) use our website or the Services to store, transmit, buy or sell stolen, dangerous, infringing, libelous, or otherwise unlawful or tortious goods or other materials, or to store or transmit material in violation of third-party rights, including intellectual property rights, ownership and privacy rights, (d) use our website or the Services to send spam, or to store or transmit any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data, (e) interfere with or disrupt the integrity or performance of our website or the Services, (f) attempt to gain unauthorized access to our website, the Services or the Content or their related systems or networks, (g) access or use any SMASH intellectual property except as permitted under these Terms, (h) copy or make derivative works from all or any part of our website, the Services or the Content or any part, feature, function or user interface of our website, (i) frame or mirror any part of our website, the Services or the Content, or otherwise incorporate any portion of our website, the Services or the Content into any product or service, (j) access or use our website, the Services or the Content in order to build a competitive product or service or to benchmark with a non-SMASH product or service, (k) reverse engineer our website, the Services, or any software used to provide them (to the extent such restriction is permitted by applicable laws), (l) access or use any part of our website, the Services or the Content that is (expressly or implicitly) not intended for use by you, (m) use any non-SMASH automation code in relation to our website, the Services or the Content (including any "bot" or "spider"), (n) collect or harvest any information from our website, the Services or the Content in a bulk or systematic way, (o) remove, alter, or obscure any proprietary notices on our website, the Services or the Content, (p) probe, scan, or test the vulnerability of our website or the Services or any network connected to them, or breach the security or authentication measures on them or on any network connected to them, (q) collect, harvest, reverse look-up, trace, or otherwise seek to obtain any information on any other user of or visitor to our website or the Services, (r) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of our website or the Services or any systems or networks connected to them, or (s) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message you send to SMASH or any other person on or through our website or the Services.

10. Fees and Commissions

a) No Usage Fee

Access to and use of the website is offered without any listing, subscription, or buyer access fee. While SMASH currently charges no fees for access and use of the website, SMASH reserves the right to charge usage fees, and will provide user notice through the website of any usage fee changes before they become effective. If you continue accessing or using the Service after such notice, you must pay all applicable fees. SMASH is not involved in, and does not participate in, any pricing discussions, negotiations, or determinations, and SMASH does not set, control, or influence the purchase price, quantity, quality, specifications, delivery arrangements, inspections, payment terms, or any other terms of sale agreed between buyers and sellers. All pricing and contractual terms are established solely by the buyer and seller, and any contract of sale is entered into directly between them. For greater certainty, SMASH is not a broker, dealer, agent, representative, fiduciary, or advisor for either party, and has no authority to make representations or warranties on either party's behalf.

b) Seller Commission

In consideration for SMASH's services, the seller agrees to pay SMASH a commission equal to a percentage of the final winning bid price specified in SMASH's then current Seller Commission Schedule (the "Commission Rate") (the resulting amount, the "Commission") for each successful transaction generated from use of the website (each, a "Transaction"). A Transaction occurs at the time the buyer and seller mutually accept and agree (whether via the website's acceptance/confirmation flow or otherwise as recorded on the website) to enter into binding terms for the sale and purchase of the listed materials offline (the "Transaction Agreement"). The Commission is non-refundable and is earned immediately upon the formation of the Transaction Agreement, or the parties' confirmation to SMASH of its intention to enter into the Transaction Agreement. SMASH reserves the right to modify, in its sole discretion, the Commission Rate or any other terms and conditions relating to Commissions from time to time by posting an updated Seller Commission Schedule on the website or by providing notice to the seller. Any change to the Commission Rate will apply only prospectively to Transactions for which the Transaction Agreement is formed on or after the effective date of such change. If SMASH and the seller agree in writing to a specific Commission Rate for certain listings or for a defined period, that agreed upon rate will govern for those listings or that period.

c) Commission Calculation

Unless expressly stated otherwise in writing by SMASH, the Commission is calculated on the gross final winning bid price for the applicable materials, excluding: (i) applicable sales, value-added, or similar taxes; and (ii) separately itemized shipping, logistics, handling, insurance, or other third-party charges that are not included in the final winning bid price. The seller must maintain accurate records sufficient to verify the final winning bid price and the date/time the Transaction occurred and, upon reasonable request, provide documentation to confirm Commission amounts due.

d) Transaction Fee

In consideration for SMASH's services, the seller agrees to pay SMASH a transaction fee, ranging from $50 to $200 depending on the amount of the final winning bid price specified in SMASH's then current Transaction Fee Schedule (the "Transaction Fee Rate") (the resulting amount, the "Transaction Fee") for each successful transaction generated from use of the website (each, a "Transaction"). The Transaction Fee is earned upon the irrevocable formation of the Transaction Agreement, or the parties' irrevocable confirmation to SMASH of its intention to enter into the Transaction Agreement. SMASH reserves the right to modify, in its sole discretion, the Transaction Fee Rate or any other terms and conditions relating to the Transaction Fee from time to time by posting an updated Transaction Fee Schedule on the website or by providing notice to the seller. Any change to the Transaction Fee Rate will apply only prospectively to Transactions for which the Transaction Agreement is formed on or after the effective date of such change. If SMASH and the seller agree in writing to a specific Transaction Fee Rate for certain listings or for a defined period, that agreed upon rate will govern for those listings or that period.

e) Buyer Default Fee

In the event that the buyer defaults on their obligations relating to a Transaction Agreement or cancels a Transaction Agreement, the buyer will be subject to a fee equal to five percent (5%) of the total Transaction value (a "Default Fee"). If the Default Fee is not paid within five (5) business days following the defaulted or cancelled Transaction Agreement, subject to subsections 10(j), 10(k) and 10(l) below, the buyer's account shall be suspended, and the buyer shall be prohibited from using the Platform until the outstanding Default Fee is paid in full. The Buyer acknowledges that the Default Fee is intended as liquidated damages to compensate SMASH for administrative and operational costs incurred as a result of the default or cancellation of the Transaction Agreement by the buyer, and is not to be construed as a penalty.

f) Compliance with Applicable Laws

You represent and warrant that you will comply with all applicable laws in relation to the Transaction, including those relating to payment (and not providing payment in cash, as may be required by applicable laws), environmental laws, transaction registration (to the extent required under applicable laws), import and export laws, environmental laws, and any other applicable laws, rules and regulations governing the purchase and sale of scrap metal and/or catalytic converters.

g) Not a Party to Transaction and No Funds Held by Platform

You acknowledge and agree that SMASH is not a party to any Transaction, and further acknowledge and agree that SMASH does not act as an escrow agent and does not receive, hold, transmit, or process the buyer's payment for the Transaction. Payment for the goods and materials relating to a Transaction is made directly between buyer and seller under the terms they agree. SMASH is not responsible for collection, settlement, payment timing, or non-payment by either party.

ACCORDINGLY, YOU RELEASE SMASH AND EACH OF ITS OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS, LAWSUITS, PROCEEDINGS OR DAMAGES (DIRECT, INDIRECT, OR OTHERWISE) OF ANY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY TRANSACTION THAT YOU ENGAGE THROUGH YOUR USE OR ACCESS OF WEBSITE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS, DEMANDS, LAWSUITS, PROCEEDINGS OR DAMAGES ARE A RESULT OF SMASH'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

h) Adjustments

If a Transaction Agreement is amended by mutual agreement of the buyer and seller after it has initially occurred, both the buyer and seller must inform SMASH of any adjustment to the final winning bid price or any adjustment that would affect the Commission calculation or Transaction Fee, as outlined in subsections 10(c) and 10(d) respectively. In relation to an amended Transaction Agreement, SMASH may apply appropriate adjustments to the invoiced Commission and Transaction Fees, as applicable.

i) Taxes

Any fees collected by SMASH, including Commissions, are exclusive of, and you are responsible for payment of, all taxes, levies, duties, tariffs, assessments, export and import fees, or other similar local, state, provincial, federal or foreign jurisdiction governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes imposed by any jurisdiction arising from the payment of the fees to SMASH or SMASH's provision of the website, except taxes based on SMASH's income (collectively, the "Taxes"). If SMASH has the legal obligation to pay or collect Taxes for which you are responsible under this section, SMASH will invoice you and you will pay that amount unless, prior to your purchase, you provide SMASH with a valid tax exemption certificate authorized by the appropriate taxing authority.

j) Invoicing and Payment

Following a Transaction or a defaulted Transaction Agreement, SMASH will automatically issue an invoice for the Commission, Transaction Fee and/or, if applicable, the Default Fee and any other applicable fees and charges on our website. You authorize SMASH to charge your payment card on file for any applicable fees and charges. If the automatic charge is unsuccessful, you must pay the invoice within three (3) business days of the invoice date, subject to subsections 10(k) and 10(l) below. You authorize SMASH to pursue payment of any applicable fees and charges and to use lawful collection measures in the event of non-payment.

k) Payment

Use of the website may allow you to register or include a form of payment in relation to your use of the website, including a credit card or debit card. In the case that you have provided a form of payment on your account in relation to your use of the website, you agree that SMASH is authorized to charge or withdraw from your desired method of payment all applicable fees (including Commissions, Transaction Fees and Default Fees), taxes and other charges in relation to your use of the Services or any Transaction. You acknowledge and agree that: (a) your agreement with your method of payment issuer governs use of that method of payment, and you must refer to that agreement to ascertain your rights and liabilities when using that method of payment, including any additional charges or fees applied by your method of payment issuer; (b) you are responsible for any additional charges or fees applied by your method of payment issuer to you; and (c) you are responsible for checking your method of payment issuer account information, such as account balances and statements. You represent and warrant that if you are fulfilling a transaction on the website with a credit card that (i) any credit card information you supply is true, correct and complete, (ii) you have the right to use the credit that you supply; (iii) charges incurred by you will be honoured by your credit card company, and (iv) you will pay the charges incurred by you at the posted prices, including any applicable taxes.

l) Late Fees; Collection Costs; Set-Off

Overdue amounts may accrue interest at 2% per month (24% per annum) or the maximum amount permitted under applicable laws, from the due date until paid. You agree to reimburse SMASH for reasonable costs of collection (including reasonable legal fees where permitted). If applicable, SMASH may set off amounts owed by you against any amounts otherwise payable by SMASH to you.

m) Payment Processor

SMASH will use a payment processor and its affiliates (collectively, "Payment Processor") in processing Commissions or payments to SMASH and providing related payment services (the "Payment Processor Services"). You acknowledge your use of the Payment Processor Services is conditional on your acceptance of the Payment Processor's terms and policies provided on its website. Personal information you submit during your use of the Payment Processor Services is subject to the SMASH's Privacy Policy and Payment Processor's privacy policies. From time to time, SMASH may change the service provider it uses to support the payment processing services, or SMASH may offer the option of using other service providers. If SMASH does so, then, in order to continue to use the payment processing services, you may be required to agree to additional terms imposed by SMASH.

n) Additional Services

Subject to section 17 (Third Party Services) of these Terms, from time to time, SMASH may provide additional services to buyers and sellers either directly or through use of a third-party service provider, including freight, shipping and delivery services or warranty and inspection services (collectively, the "Additional Services"). Any such Additional Services may be subject to additional fees and shall be subject to additional terms and conditions between you and SMASH or you and a third party that is providing the Additional Services on SMASH's behalf.

11. Trademarks

Certain names, graphics, logos, icons, designs, words, titles and phrases on our website, including "SMASH", or "Industrial Metals" may constitute trademarks, trade-names, trade dress and/or associated products and services of SMASH or its affiliates (the "Marks"), and are protected in Canada and internationally and their display on our website does not convey or create any licence or other rights in the Marks. Any use of any of the Marks, in whole or in part without prior written authorization of SMASH or such third party is strictly prohibited.

12. Reservation of SMASH Rights

SMASH has and will retain all right, title and interest in and to our website, the Services and Content and the software and systems used to provide them (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights), and all copies, modifications and derivative works of any of them. You acknowledge that you are obtaining only a limited right to access and use our website and the Services. No rights are granted to you under these Terms other than as expressly set forth in these Terms.

13. Mobile Device Data Charges

You are solely responsible for any data and wireless charges and similar fees associated with your use of our website or the Services through a mobile device.

14. License to Use Your Feedback

Where applicable, you grant to SMASH and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by you.

15. Non-Identifiable Information

Any non-identifiable information gathered by us through your use of our website and the Services may be used by us for our own marketing, promotional and product development purposes and more specifically may be stored in a database and used by us to identify, customize and personalize user access, and assess utilization of our website and the Service. Such information may be shared with our affiliates, suppliers, licensors, partners and clients in furtherance of the foregoing purposes, but shall in no way identify any specific buyer, seller or identifiable individual.

16. Third Party Services

Our website, the Services and Additional Services may allow you to access and use services provided by third parties, including, but not limited to, third party payment processor services, Know-Your-Business ("KYB") services, and freight brokerage and shipping services (collectively, "Third Party Services"). You are responsible for all fees and taxes that may be charged for the use of Third Party Services. You use any Third Party Services at your own risk. SMASH makes no representations or warranties with respect to, nor does it guarantee or endorse, any Third Party Services.

ACCORDINGLY, SMASH EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ALL THIRD PARTY SERVICES, AND YOU AGREE THAT SMASH SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS OR AS A RESULT OF YOUR USE OF THIRD PARTY SERVICES. IF YOU HAVE ANY ISSUES WITH A THIRD PARTY SERVICE, YOU MUST CONTACT THE PROVIDER OF THE THIRD PARTY SERVICE DIRECTLY.

17. Links to Other Sites

Our website, Services or Content may provide links that redirect users to external third party websites. These sites have not necessarily been reviewed by SMASH and are maintained by third parties over which SMASH exercises no control. Accordingly, SMASH expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites.

18. Content, Functionality and Access

SMASH may at any time, with or without notice, without liability, and for any reason (a) remove any Content from our website or the Services, (b) remove any functionality from our website or the Services, (c) change any functionality on our website or the Service, (d) modify our website, and (e) deny any person access to our website or the Services. SMASH furthermore reserves the right to take any action related to our website, the Services or to Content that is required to comply with applicable law.

19. Disclaimer of Warranties

IN ADDITION TO ANY AND ALL OTHER DISCLAIMERS SET OUT IN THESE TERMS, THE WEBSITE, THE SERVICES AND THE CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. YOUR USE OF OUR WEBSITE, THE SERVICES AND THE CONTENT IS AT YOUR OWN RISK. SMASH DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, COVENANTS AND CONDITIONS (EXPRESS, IMPLIED OR STATUTORY) IN CONNECTION WITH OUR WEBSITE, THE SERVICES AND THE CONTENT, INCLUDING ANY WARRANTIES, REPRESENTATIONS, COVENANTS, CONDITIONS, OR OTHER TERMS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, AND NON-INFRINGEMENT. SMASH MAKES NO REPRESENTATION OR WARRANTY OR ANY OTHER TERM THAT OUR WEBSITE, THE SERVICES OR THE CONTENT WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION, OR THAT OUR WEBSITE, THE SERVICES AND THE CONTENT WILL BE SECURE, OR THAT OUR WEBSITE OR ANY FILES OR INFORMATION THAT YOU DOWNLOAD FROM OUR WEBSITE, THE SERVICES OR THE CONTENT, WILL BE FREE OF MALICIOUS CODE. SMASH IS NOT RESPONSIBLE FOR THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM OUR WEBSITE OR THE SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH OUR WEBSITE, THE SERVICES AND THE CONTENT IS TO STOP USING THEM.

20. Limitation of Liability

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SMASH (AND SMASH'S DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, SUPPLIERS AND AGENTS, AND THE PROVIDERS OF CHANNELS, THIRD PARTY SERVICES AND THIRD PARTY CONTENT, AND THE SUPPLIERS OF PRODUCTS) FOR ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING LEGAL FEES AND EXPENSES) (COLLECTIVELY "LOSSES") TO YOU RELATED TO OUR WEBSITE, THE SERVICES OR THE CONTENT, OR THESE TERMS, EXCEED THE TOTAL AMOUNT PAID BY YOU TO SMASH IN COMMISSIONS FOR THE SERVICES IN THE PAST 12 MONTHS.

21. No Claim for Certain Damages

IN NO EVENT WILL SMASH (OR SMASH'S DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, SUPPLIERS OR AGENTS, OR THE PROVIDERS OF THIRD PARTY SERVICES AND THIRD PARTY CONTENT, AND THE SUPPLIERS OF PRODUCTS) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, OR FOR ANY LOSS OF REVENUE, SAVINGS, INCOME, BUSINESS, PROFIT, GOODWILL OR REPUTATION WHATSOEVER BASED ON ANY LEGAL THEORY (INCLUDING TORT OR NEGLIGENCE), AND EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

22. Some Disclaimers, Exclusions or Limitations May Not Apply

In some circumstances, applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages. Solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.

23. Indemnity

You will indemnify and hold SMASH (and SMASH's directors, officers, employees, partners, suppliers and agents) harmless from all Losses arising from your use of our website, or the Services or the Content, or your breach of any of these Terms.

24. Failure to Comply

If you fail to comply with these Terms, then, without limiting any other right or remedy available to SMASH, SMASH may suspend or terminate your license to use all or any part of our website, or the Services or the Content.

25. Export Controls

These Terms are expressly made subject to any laws, regulations, orders or other restrictions on export from the United States of America (U.S.) or Canada of our website, or the Services or the Content, or any information about any of them, which may be imposed from time to time by the governments of the U.S. or Canada. You shall not export our website, or the Services or the Content, or any information about any of them without the prior written consent of SMASH and compliance with such laws, regulations, orders and other restrictions. You represent and warrant that (a) you are not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a "terrorist supporting" country, and (b) you are not listed on any U.S. or Canadian government list of prohibited or restricted parties.

26. Amendments

SMASH may unilaterally amend all or any part of these Terms at any time by updating these Terms on our website. We will provide you with notice of the proposed amendments by posting an amended version of these Terms with a new version date. We will include a link to the previous version of the Terms beneath the new version date. The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of the Terms will continue to apply. If you disagree with any amendments, you may refuse the amendments and cease using our website, the Services and the Content within the 30-day notice period. There will be no cost or penalty for doing so. If you continue to access or use our website, or the Services or the Content after the 30-day period, you thereby agree to the amended Terms. You agree to review these Terms regularly to determine your rights and responsibilities.

27. Governing Law & Jurisdiction

These Terms, and any dispute, controversy or claim arising under, out of, in connection with, or related to (a) our website, or the Services or the Content, or (b) these Terms, or their subject matter, negotiation, performance, renewal, termination, interpretation, or formation, shall be governed by and interpreted according to the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario, without regard to any conflicts of law rules that might apply the laws of any other jurisdiction. You and SMASH each attorn to the exclusive jurisdiction of the courts of Ontario in respect of any such dispute, controversy or claim, except that, notwithstanding the foregoing, (a) you agree that SMASH shall be entitled to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction anywhere in the world restraining any breach, threatened or actual, of your obligations under any provision of these Terms, and (b) you agree that SMASH shall be entitled to seek and be awarded an order from a court of competent jurisdiction anywhere in the world for the purpose of recognizing and enforcing any interim or final judgement, order, injunction, award or other relief granted or provided by the courts of Ontario, and you hereby waive any defence you might then have to the granting of such an order.

28. Injunction

You acknowledge that any breach, threatened or actual, of these Terms will cause irreparable harm to SMASH, such harm would not be quantifiable in monetary damages, and SMASH would not have an adequate remedy at law. You agree that SMASH shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction anywhere in the world restraining any breach, threatened or actual, of your obligations under any provision of these Terms, and without the necessity of showing or proving any actual or threatened damage or harm, notwithstanding any rule of law or equity to the contrary. You hereby waive any requirement that SMASH post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to SMASH to enforce any provision of these Terms.

29. Class Action Waiver

Any proceedings to resolve or litigate any dispute, controversy or claim arising under, out of, in connection with, or related to (a) our website, the Services, and the Content, or (b) these Terms, or their subject matter, negotiation, performance, renewal, termination, interpretation, or formation, will be conducted solely on an individual basis. Neither you nor SMASH will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.

30. General

If any provision of these Terms is unlawful, void, or unenforceable, then that provision shall be deemed severed from the remaining provisions and shall not affect the validity and enforceability of the remaining provisions. All rights and remedies of SMASH granted or recognized in these Terms are cumulative, are in addition to and not in substitution for any rights or remedies at law and may be exercised at any time and from time to time independently or in any combination. In these Terms (a) references to currency are to the lawful money of Canada, (b) "person" includes individuals, corporations, partnerships, joint ventures, associations, trusts, unincorporated organizations, societies and all other organizations and entities recognized by law, and (c) "including" (and similar variations) means including without limitation. These Terms, together with any applicable Additional Service terms and conditions, represent the entire agreement between you and SMASH with respect to use of our website, the Services, and the Content, and they supersede all prior or contemporaneous terms, agreements, communications and proposals, whether electronic, oral, or written between you and SMASH with respect to any of the foregoing. Failure by SMASH to insist on strict performance of any of the terms or conditions of these Terms or any Additional Service terms and conditions, as the case may be, will not operate as a waiver by SMASH of that or any subsequent default or failure of performance. SMASH's affiliates, SMASH's directors, officers, employees, partners, suppliers, and agents are third party beneficiaries of the sections titled "Disclaimer of Warranties", "Limitation of Liability", "No Claim for Certain Damages" and "Indemnity". There are no other third-party beneficiaries of these Terms. You may not assign these Terms without the prior written consent of SMASH. SMASH may assign these Terms without restriction. These Terms will enure to the benefit of and will be binding on you and SMASH and your and its respective successors and permitted assigns.