Terms of Service
Last Updated: August 1, 2023
As used in these Terms of Service (“Terms” or “Agreement”), the term “You” and “Your” shall mean the Client (“Firm”) detailed on the Client Order Form. This Agreement governs Your use of the Smokeball Subscription, as defined below. Your use of the Smokeball Subscription is conditional upon Your acceptance of these Terms. The Client Order Form and any subsequent changes to User licenses or billing, whether written or submitted online, are a part of and incorporated by reference into thisAgreement. If You are entering into this Agreement on behalf of a company, You represent that You are over the age of eighteen (18) and have the complete authority to enter into this Agreement on behalf of Your company. Your continued use of the Subscription after any changes toshall constitute your agreement to be bound by such changes.
1. Defined Terms
As used in this Agreement:
- "Add-on" means an additional feature or functionality that is offered by Smokeball for purchase separately from the core Smokeball Services and which is used in conjunction with the core Smokeball Services.
- "Agreement" means the agreement constituted by these Terms and a Client Order Form.
- "Auto-Renewal" means an automatic renewal or extension of Your Subscription in accordance with clause 4.
- "Client Data" means any of Your clients’ or other individual’s personal data, credit data, transaction data, system data, other data, information, or material that You accept, utilize, process, or collect from clients or individuals, and/or submit to Smokeball while using the Subscription.
- "Client Order Form" refers to the purchase order form or renewal order form executed by You and Smokeball or notice of renewal email for Your Subscription, detailing Your number of Users, total monthly Subscription Fee, Onboarding Fee (if applicable), initial Subscription Tier, and Subscription Term.
- "Data Backup" includes documents and basic matter and contact card data.
- "End Date" refers to the date stated in the Client Order Form on which your contract obligations end with Smokeball. End Date may also refer to your Renewal Date as defined below.
- "Financing Agreement" means the funding agreement between You and the Financing Partner for Subscription.
- "Financing Arrangement" means an application submitted by You to the Financing Partner for credit approval.
- "Financing Partner" means a third-party creditor provider referred to You by Smokeball for Subscription.
- "Interfacing Third Party" means any entity that provides products or services that are delivered in, through, that interface with, or are integrated with Your Subscription also known as “third-party integrations”.
- "Main Firm Contact" serves as the dedicated individual and the corresponding email address for You who will receive the Operational Emails (as defined).
- "Migration" refers to the act of transferring software programs from one operating environment into Smokeball.
- "Onboarding Fees" will be detailed on the Client Order Form and are any additional training and services fees separate and apart from the total monthly Subscription Fee.
- "Operational Emails" refer to emails intended for important service announcements or any changes to these Terms that are sent to the Main Firm Contact for each Client by Smokeball.
- "Related Party Users" means Your clients, employees of counter-party law firms, and other relevant third parties that you permit to interact with the Services in connection with the services that you provide to your clients.
- "Renewal Date" refers to the End Date listed on your Client Order form at which time You need to have notified Smokeball of Your intention to renew Your Subscription.
- "Services" means any software, application, document, or service provided by Smokeball (including Add-ons), but does not include Third Party Services. Also referred to as "Subscription".
- "Smokeball" means Smokeball Incorporated, having its principal place of business at: 200 West Adams, Suite 1450, Chicago, IL 60606. Smokeball may also be referred to in this Agreement as “We,” “Our,” or “Us.”
- "Start Date" refers to the date stated in the Client Order Form on which your contract obligations begin with Smokeball.
- "Subscription" means any software, application, document, or service provided by Smokeball (including Add-ons), but does not include Third Party Services. Also referred to as “Services”.
- "Subscription Duration" will be the number of months listed in the Subscription Term (“Term”) section stated on the Client Order Form, or as otherwise specified.
- "Subscription Fee" means the fee for Your Subscription specified on your Client Order Form or, in the case of Auto-Renewal, specified in Your email notification.
- "Subscription Term" means the term of your Subscription, which is as specified on your Client Order Form or specified in notice of Your Auto-Renewal. Also referred to as “Term”.
- "Subscription Tiers" are the tiers of Subscription offered by Smokeball, which can be found here: https://www.smokeball.com/pricing.
- "Term" will be the number of months listed in the Term section stated on the Client Order Form. Also referred to as “Subscription Duration.”
- "Usage Data" shall mean data related to the use or operation of the Subscription, such as usage related data and technical data collected in connection with the use of the Subscription. Usage Data is not Client Data.
- "User(s)" refers to an individual authorized by You to access and use Your Smokeball Subscription.
2. Grant of License
You are granted a non-exclusive, limited, and non-transferable User license to use and access the Subscription subject to Your payment of the Subscription Fees owed. You are responsible for all activities that occur under Your User accounts, including Your Users’ compliance with these Terms.
You agree not to modify, reverse engineer, reproduce, duplicate, copy, sell, resell, adapt, or exploit the Subscription. You agree to comply with all local, state, federal, and foreign laws, rules, regulations, or treaties in connection with Your use of the Subscription, including, but not limited to, those related to data security and privacy, and the collection and transmission of Client Data.
You agree not to use the Subscription for any unlawful, offensive, threatening, infringing (including, but not limited to, copyright, trademark, or patent infringement), defamatory, pornographic, obscene, or other purpose violating anyone’s rights, including privacy rights. You agree not to send, store, or upload any “spam” or any malicious code or virus of malicious or destructive nature. You shall use commercially reasonable efforts to prevent unauthorized access to, or use of, Subscription and notify Smokeball immediately of any such unauthorized use.
3. Subscription Term and Subscription Fee
The term of Your Subscription commences on the Start Date listed on your Client Order form or as listed in your Auto-Renewal notification and continues thereafter for the Subscription Duration, unless earlier terminated as set forth herein. The fees may be subject to change pursuant to Section 11. There is no early termination for convenience, in other words neither Smokeball nor You has the right to terminate this Agreement or cancel the Subscription, without cause, during Your agreed Subscription Term.
The Subscription Fee is a fixed fee for the entire Subscription Term and is not refundable, cancellable, or avoidable including, but not limited to, failure to complete financing approval process pursuant to Section 11, reasonable delays in Migration, or due to a ‘change of mind’, including where You choose to reduce or cease Your use of the Subscription during the agreed Subscription Term.
If Smokeball has agreed that You may pay the Subscription Fee in periodic installments, then each installment is a partial payment of the Subscription Fee and is not a severable payment for the use of the Subscription for the installment period.
Your Subscription Fees per User are fixed during the Subscription Term but may be increased for any subsequent Subscription Term or upon the addition or removal of Users pursuant to clauses 4 and 5 below. You will be provided with any notice of increase in Your Subscription Fees at least sixty (60) days prior to the commencement of any subsequent Subscription Term.
4. Renewal and Auto-Renewal
At least sixty (60) days prior to the End Date of your Subscription Term, we will notify you that the end of the Subscription Term is approaching and provide you information pertaining to Your renewal that sets out the terms (including Subscription Fees) that we propose will apply to a renewal of your Subscription Term.
If you do not wish to renew Your Subscription Term, then you must notify us at least 30 days prior to End Date or Renewal Date of Your Subscription Term. If by the End Date or Renewal Date You have not notified Smokeball that You do not wish to renew, then on the End Date or Renewal Date of Your Subscription Term, your Subscription will automatically renew as a 12-month subscription, invoiced and paid monthly, at Smokeball's then standard pricing (and as notified to you by Smokeball).
You acknowledge and agree that your Subscription Fee may increase at Renewal or upon Auto-Renewal. Smokeball shall use the number of Users as of your Renewal Date as the User count for your new Subscription Term and the Subscription Fee will be adjusted accordingly. This includes any Users that may have been added to Your Subscription pursuant to clause 5.
If Your Subscription is subject to an Auto-Renewal, in accordance with this clause, at any time during the first thirty (30) days of the new Subscription Term, either party may terminate the Subscription. No fees incurred during this period shall be refundable. After this 30-day period has elapsed, Your Subscription Term may only be terminated in accordance with this clause, or as otherwise stated in this Agreement.
You may access and use the Subscription up to the number of Users specified on Your Client Order Form. In the event You have increased Your total number of Users during a Subscription Term, the User count for the new Subscription Term will be based on the number of Users as of Your Renewal Date. You agree:
- The number of Users cannot be decreased below the number of Users listed on Your Client Order Form during the Subscription Term, whether the Users are active or not.
- You may decrease the number of Users only at the time of Renewal. If you are subject to an Auto-Renewal, Smokeball shall use the number of Users as of your Renewal Date as the User count for your new Subscription Term.
- When adding additional User(s), the User rate will be equal to the then-current monthly fee. Additional Users will be coterminous. In other words, all additional Users shall be contracted through the end of Your Subscription Term. If Your Subscription is financed pursuant to clause 11, Users added past the number specified on the Client Order Form will be charged and processed directly through Smokeball.
- Smokeball may offer You the option to pay for additional Users on a month-to-month basis (referred to as “Flex Users”). The User rate for a Flex User will be higher than the then-current monthly fee and subject to change. You may contact Smokeball for pricing information. Flex users will be charged and processed monthly, directly through Smokeball. Unless otherwise specified, any additional users are considered coterminous pursuant to clause 5, section C above.
6. Payment of Fees, Billing, and Discount
You shall pay the Subscription Fee on the Client Order Form directly to Smokeball, Financing Partner pursuant to Section 11, or as otherwise stated within this Agreement. Subscription Fees are based on the current number of Users listed on the Client Order Form or added during the Subscription Term, not the extent of actual usage. You are responsible for paying for all Users for the entire Subscription Term, unless otherwise stated in this Agreement. Users added in the middle of a billing period will be charged in full on the next applicable payment date. Subscription Fees are non-refundable.
Smokeball will not increase Subscription Fees during Your current Subscription Term except where: 1) You add Users pursuant to clause 5; and/or 2) change Subscription Tier pursuant to clause 9; and/or 3) You purchase and Add-on in accordance with clause 10.
You must provide Smokeball with a valid credit card, debit card, or bank routing information as a condition to signing up for the Subscription. If You provide Your payment information to Smokeball, You expressly authorize that the payment information to be used to pay for all Fees incurred in connection with Your Subscription, including from any Auto-Renewal charges. Subscription Fees are subject to change upon Your Renewal Date.
Client may not unilaterally revoke prior consent authorizing Smokeball to charge the credit or debit card on file to avoid paying applicable Subscription, Add-ons, and Balance Due Fees.
Further, You acknowledge and agree that:
- Updating Payment Information. You agree to update billing and account information within five (5) business days of any change to applicable payment information. If You update Your payment information, Smokeball will charge the latest account provided by You and You represent that You have the legal right to use any payment account that You provide to Smokeball. If You believe that charges to Your account are incorrect, You must contact Smokeball in writing within forty-five (45) days of the date of the disputed charge to be eligible for a credit or adjustment.
- Balance Due. In the event of termination of this Agreement, You agree to pay the balance due on Your Subscription and You agree that Smokeball may use and charge such unpaid Fees to Your payment method on file. Smokeball reserves the right to collect on any remaining balances to Your account.
- Discounts. Smokeball may offer promotional discounts on annual Smokeball services and/or exclusive discounts through Our partnerships with various Bar Associations. Bar Association discounts cannot be combined with any other discounts and proof of Your membership or eligibility may be required.
7. Trial Period
Smokeball may offer you a free trial period during which you may use the Services (or a part of them) without paying any Subscription Fees. The terms of this Agreement apply to Your use of the Services during the trial period, other than the terms of this Agreement relating to the payment of Fees. On expiry of the trial period, You must cease all use of the Services unless and until you have entered into a Client Order Form for a paid Subscription for the Services.
If You have engaged Smokeball to perform a Migration after August 1, 2023, You agree to be bound by the following clause. If You have engaged Smokeball to perform a Migration prior to August 1, 2023, you agree to be bound by the terms of your Migration engagement upon purchase of Your Subscription and the following clause does not apply to Your Subscription.
Both You and Smokeball understand that business requirements may impact the scope and ability to complete a Migration for You on or by a specified date. You acknowledge that timelines provided are made according to an estimated schedule and are subject to change based on action or omission by You or Smokeball. Smokeball shall inform You if such a delay is the result of any action or omission by You, in writing. Smokeball shall provide You with the reasons for the delay, relative to the action or omission, and update You with a revised timeline of Migration completion. Examples of such actions or omissions include, but are not limited to, Smokeball’s receipt of delayed, corrupt, unusable, or incomplete data from You, requests by You to increase scope, Your failure to review data in a timely manner, etc. Migration delay caused by Your action or omission shall not void any obligation to make timely payments to Smokeball or Financier.
You agree to notify Smokeball as soon as reasonably able if You become aware of any issues that have the potential to impact Migration completion (including, but not limited to an inability to provide a data export, review data for completeness by a specified date, attend Migration project check-ins, etc.). Smokeball shall make reasonable efforts, but cannot guarantee, to maintain specified timelines upon requests for delay by You.
Smokeball shall inform You if a Migration delay is the result of any action or omission by Us, in writing. Smokeball shall provide You with the reasons for the delay, relative to the action or omission, and update You with a revised timeline of Migration completion. Delays due to risks that Smokeball could not have reasonably foreseen or are outside of Smokeball’s ability to control or manage, shall not constitute breach.
Due to the complex nature of Migration, Smokeball shall have sixty (60) days to remedy any delays due to risks that Smokeball could have reasonably foreseen and that are within Smokeball’s ability to control or manage (known as the “Period of Delay”). The total aggregate and cumulative liability for any and all claims of any kind arising as a result of or related to Migration delays caused by Smokeball, shall not exceed the sum of Subscription and Migration Fees paid by You during the Period of Delay.
9. Subscription Tiers
You may upgrade Your Subscription Tier at any time within Your Subscription Term. Such an upgrade in Tier can only be applied to all Your Users. Your Users cannot be segmented into different Subscription Tiers.
Subscription Fees relating to the upgrade will apply at Your next monthly payment date and for the remainder of Your Subscription Term. These additional Subscription Fees are payable immediately and in full. The additional costs of upgrading Subscription Tiers will be charged and processed directly through Smokeball pursuant to clause 6.
Lowering the Subscription Tier of Your Subscription is 1) not allowed within a Subscription Term, even if You upgraded Your Tier previously within that Subscription Term; but 2) is allowed at time of Renewal. Unless otherwise indicated on Your Client Order Form, Your Subscription Tier is Prosper+.
Smokeball may from time to time make Add-ons available for purchase. If You purchase an Add-on, 1) you must pay the applicable Fees for that Add-on pursuant to clause 6; and 2) you will be permitted to access and use the Add-on for your Subscription Term.
11. Financing Subscription Through Financial Partner
If requested by You, Smokeball may refer you to a third-party credit provider (“Financing Partner” or “Financier”) to enable you to submit an application to the Financier for credit which, if approved, will be provided pursuant to a Financing Agreement between you and the Financier.
Further, You acknowledge and agree that:
- The Financing Agreement is only between You and the Financing Partner. You further acknowledge that while this Agreement establishes the terms and conditions for Your use of the Subscription, the specific terms and conditions of the Financing Agreement are separately established by You and the Financing Partner.
- Smokeball is not the lender and has no legal authority to modify a Financing Agreement between You and Financier or any other third party. Smokeball’s role in connection with any Financing Arrangement is limited to referring You to a Financing Partner and providing administrative assistance with the process of completing and submitting credit applications and related documents.
- Smokeball is not a financial advisor, a credit provider, or a credit broker. Smokeball and its personnel cannot, and have not, provided You with any financial advice or financial services in relation to a Financing Arrangement or Financing Agreement.
- You have taken responsibility to obtain Your own independent legal, financial, taxation or other advice relating to a Financing Agreement to the extent You consider necessary or appropriate.
- Smokeball does not represent or warrant that any credit application that You submit will be accepted by the Financing Partner or result in a Financing Agreement.
- You agree while You may direct a Financier to pay Smokeball on Your behalf, Your obligation to pay the agreed fees to Smokeball is independent of any Financing Arrangement.
- In no event shall Smokeball be responsible for any liability arising out of or in connection with a Financing Agreement between You and a Financing Partner.
- Smokeball may have an agreement with the Financier requiring Smokeball to suspend Your Subscription, or take reasonable action, if You fail to make payments to the Financier.
In the event You complete the Financier’s approval process and are denied a Funding Agreement with the Financier, your Subscription Term shall default to twelve (12) months, and you will be notified, in writing, of the new total monthly Subscription Fee.
Failure to complete Financing paperwork or ‘change of mind’ shall not void your contractual obligation with Smokeball and Smokeball has the right to process payment directly for the Fees and Subscription Term listed on the Client Order Form.
If You choose to use a Financing Partner and the approval process is not completed within fourteen (14) days of the Start Date listed on your Client Order Form, the initial Subscription Term shall default to twelve (12) months and you will be notified, in writing, of the new total monthly Subscription Fee. You acknowledge that this Subscription Fee may be higher than that listed on your Client Order Form.
You acknowledge that the effective dates and obligations of Your Subscription (Start Date and End Date listed on the Client Order Form) with Smokeball and those listed on Your Financing Agreement may be different. Unless otherwise specified in this Agreement, Smokeball shall provide Subscription services up until the End Date listed on the Client Order Form or with Financing Partner, whichever is later.
You shall be responsible for all taxes or charges imposed by federal, state, or a local governmental entity (other than taxes on Smokeball’s income). Smokeball shall notify You of any changes or requirements by law that may impact your Subscription Fees. Any taxes or charges imposed by federal, state, or local government entity that You may be subject to, shall not constitute breach or void any obligation to pay Smokeball for Your Subscription Term.
13. Non-Payment, Suspension, and Termination of Delinquent Accounts
Smokeball reserves the right to suspend or terminate this Agreement and Your access to the Subscription if Your account with Smokeball or a Financing Partner becomes delinquent or You are otherwise unable to provide proper payment.
Smokeball will provide delinquency and suspension notifications via email and/or the Smokeball Subscription platform. You will receive a warning message indicating impending account suspension at thirty (30) days delinquent. If Your delinquency is not rectified within thirty (30) days, Smokeball reserves the right to suspend Your access to the Smokeball Subscription until Your account is brought current or terminate pursuant to clause 14 below. Any new Subscription will require past balances to be brought current.
There is no early termination, unless otherwise stated, or provided in these Terms. Either party (First Party) may terminate this Agreement if the other party is in material breach of this Agreement and such breach is not capable of being cured or is not cured within thirty (30) days of receipt of notice from the First Party requiring it to do so, or as otherwise agreed to in these Terms or in writing.
You agree that (without limitation) it will be a material breach if: 1) You use the Subscription in breach of any law or in a manner that causes Smokeball to be in breach of law; if You infringe Smokeball’s intellectual property rights; or 2) If Your account is validly suspended in accordance with clause 13 and you have not remedied the basis of suspension after thirty (30) days; or 3) If through Your wrongful act or omission you create a risk to the Services or any user of the Services.
Upon termination of your Subscription, you must immediately cease all use of the services. You agree that upon the termination of Your Subscription, we may immediately deactivate your Services and may delete your account and data after thirty (30) days.
In the event of termination of this Agreement, You agree to pay the balance due on Your Subscription (if any) and You agree that Smokeball may charge such unpaid fees to Your credit card, debit card, or bank account on file. You may not unilaterally revoke prior consent authorizing Smokeball to charge the credit or debit card on file to avoid paying the balance due.
15. Backup of Data
Smokeball shall grant You access to the Smokeball Subscription for thirty (30) days after the expiration or termination of Your Subscription Term for the sole purpose of permitting You to retrieve Your data. Smokeball will provide You with a Data Backup upon request. You acknowledge that Smokeball shall only provide you with a Data Backup as defined. Smokeball shall not provide you with an electronic or hard copy of all data You may have uploaded or stored on the platform, and it is solely Your obligation to retrieve any and all data You may need after the expiration or termination of your Subscription within 30 days.
16. Cessation of Use
If You no longer wish to use the Subscription, You should provide written notice to Smokeball at least thirty (30) days prior to expiration of Your then-current Subscription Term. You must uninstall, delete, and erase any and all copies of the Subscription from all of Your systems, extract any of Your data within thirty (30) days of the end of the Subscription Term, and take any and all steps necessary to ensure that neither You nor anyone through You (including Your Users) continues to have or use any part of the Subscription. Cessation of Use does not void your obligation to pay Subscription Fees in full through the End Date of your Subscription. You will continue to have access to Smokeball until the end of Your Subscription Term.
17. Access and Security
Each User of Smokeball requires a unique User identification (“ID”) and password. Any additional User must have his or her own unique User ID and password. You shall not allow IDs and passwords to be shared among Your Users. You shall be responsible for the access, actions, use, and data uploaded to Smokeball Subscription. You shall be responsible for protecting the confidentiality of User IDs and passwords to the Subscription, as well as maintaining the accuracy of the personal information provided to Smokeball. You shall be responsible for maintaining or implementing procedures and policies to prevent any unauthorized access or use of User IDs and passwords and will notify Smokeball if a User ID or password has been lost, stolen, or compromised. You agree to immediately notify Smokeball of any unauthorized access or use. You shall be responsible for always maintaining secure measures to protect against the unauthorized access of Your account and You agree to immediately notify Smokeball of any such unauthorized access or use.
18. Client Data
You retain all rights of ownership of all data You upload, import, or generate into or as part of Your Subscription. You are responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data submitted by You.
You are responsible for ensuring that You have all necessary rights and consents, including third party privacy consents (“Client Consents”), to enable You to provide the Client Data to Smokeball and to permit Smokeball to access and use the Client Data for the purpose of delivering the Subscription, and otherwise in accordance with this Agreement. You shall indemnify, defend, and hold harmless Smokeball for any loss, damages, costs, and expenses Smokeball suffers or incurs as a result of Your failure to obtain and maintain such Client Consents as may be required. You acknowledge that Smokeball is not a legal authority, cannot, and has not provided you with advise related to the necessity of Client Consents within your jurisdiction.
You acknowledge and agree that Smokeball may need to access and view Your Client Data including, but not limited to the following circumstances: to assist with Your questions, technical support requests, document automation requests, training, and other topics or requirements. To the extent that You give Smokeball access to Client Data, Smokeball shall treat such Client Data as confidential and will not disclose any Client Data to the extent allowed by law.
Smokeball reserves the right to provide Client Data to third parties if required or compelled by law (including by court order or subpoena). Smokeball shall provide you notice of the legal process, to the extent allowed by law, as soon as reasonably possible.
If You request services from any Interfacing Third Parties, then we may, and You authorize us to, provide Your Client Data to those Interfacing Third Parties as required to enable those Interfacing Third Parties to supply those services to You.
19. Usage Data
Smokeball reserves the right to collect, aggregate, monitor, and use Usage Data to improve the functionality, performance, and aid in further development, and/or usage, of the Subscription. You acknowledge and agree that Smokeball may access Usage Data for internal research or development, Subscription, and/or benchmarking purposes.
20. Feature Requests and Suggestions
Any feedback, comments, recommendations, feature requests, ideas, or suggestions for improvements to Smokeball (“Feedback“) will be considered non-confidential and non-proprietary to You. All Feedback shall be exclusively owned by Smokeball and Smokeball retains all rights to use any Feedback You provide freely and without compensation or acknowledgement to You or anyone else. No implied or expressed guarantees are made by Smokeball that your Feedback will be implemented and failure to implement Feedback shall not be considered a material breach.
If Client needs to cancel a scheduled training with Smokeball, Client will notify Smokeball as soon as reasonably possible. If You or Your Users cancel a scheduled training less than one (1) business day of the scheduled training and/or cancel multiple scheduled trainings, the Client may be charged a cancellation fee. If Client schedules more than one training at the time, without the express approval of Smokeball, Smokeball reserves the right to cancel the additional scheduled trainings.
- From time to time between the Start Date and End Date of the Subscription Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Smokeball’s Client Order Form shall be considered Smokeball’s Confidential Information.
- Confidential Information does not include information that: 1) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this clause 22(A) by the Receiving Party or any of its Representatives; 2) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; 3) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; or 4) as established by documentary evidence, was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information. Subject to Section 22(B), the Receiving Party shall: 1) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; 2) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and 3) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
- If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: 1) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under clause 22(A); and 2) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this clause 22(B), the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Confidential Information so disclosed.
23. Representations & Warranties; Disclaimer of Warranty
- Mutual Representations and Warranties. You and Smokeball each represent and warrant to the other that:
- It is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; and
- It has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and
- This Agreement is a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- Additional Smokeball Warranties. Smokeball represents, warrants, and covenants to You that:
- Smokeball will use commercially reasonable efforts to keep the Subscription free of any viruses, malware, or other harmful code; and
- The Subscription will conform, in all material respects, with its description on Smokeball’s website and any then-current documentation made available by Smokeball to Client through or in connection with the Subscription.
- Additional Client Representations, Warranties, and Covenants. You represent, warrant, and covenant to Smokeball that You own or otherwise have and will have the necessary rights and consents in and relating to Client Data (including, without limitation, Client Consents) so that, as received by Smokeball and processed in accordance with these Terms, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any other rights of any third party or violate any applicable law.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 23(A) AND SECTION 23(B), SMOKEBALL PROVIDES THE SUBSCRIPTION “AS IS” WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SMOKEBALL DOES NOT GUARANTEE THAT THE SUBSCRIPTION WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. SMOKEBALL MAKES NO WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SUBSCRIPTION. SMOKEBALL DISCLAIMS ALL WARRANTIES OF ANY KIND RELATED TO YOUR HARDWARE OR SOFTWARE BEYOND THE WARRANTIES PROVIDED BY THE MANUFACTURER OF YOUR HARDWARE OR SOFTWARE. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT: SMOKEBALL PROVIDES THE SUBSCRIPTION TO YOU SUBJECT ONLY TO THE TERMS, CONDITIONS AND WARRANTIES EXPRESSLY CONTAINED WITHIN THIS AGREEMENT, AND THOSE IMPOSED BY LAW WHICH CANNOT BE EXCLUDED; THE SUBSCRIPTION HAS NOT BEEN SPECIFICALLY DESIGNED OR TAILORED FOR YOU, AND THAT YOU ARE RESPONSIBLE FOR ENSURING THAT THE SUBSCRIPTION WILL MEET YOUR REQUIREMENTS AND WILL ACHIEVE THE RESULTS THAT YOU WISH TO ACHIEVE FROM USE OF THE SUBSCRIPTION; YOU ARE RESPONSIBLE FOR ENSURING THAT YOU HAVE THE SOFTWARE, HARDWARE AND OTHER SYSTEMS OR INFRASTRUCTURE REQUIRED TO ACCESS AND USE THE SUBSCRIPTION, INCLUDING, BUT NOT LIMITED TO, BY COMPLYING WITH THE SMOKEBALL MINIMUM SYSTEM REQUIREMENTS; AND YOU ACKNOWLEDGE THAT USE OF THE SUBSCRIPTION IS AT YOUR OWN RISK.
24. Disclaimer of Legal Advice
Smokeball is not a law firm. You acknowledge that Smokeball services may include access to forms and other documents, including automated documents, that are accessed or generated through the Services (“Forms”) and prompts and reminders regarding potential deadlines, due dates, and other requirements relating to legal or business practice (“Notifications”) through Smokeball or through an Interfacing Third-Party.
You acknowledge that Forms and Notifications may not have been developed, designed, or approved by legal practitioners and are not provided to You with any legal or professional opinion or endorsement of any kind. Smokeball does not represent or warrant that any Forms, Notifications, or other elements of the Services: 1) comply with or reflect applicable laws; 2) are suitable for your particular use, objectives, or circumstances; or 3) are up to date or current.
You acknowledge and agree that: 1) the Services are not a substitute for legal or other professional skill, judgment and experience, and should only be used by or under the supervision of qualified legal practitioners; 2) the Notifications may not be accurate or up-to-date and you are responsible for validating (or ignoring) Notifications based on your own professional skill, judgment and experience; and 3) Forms are provided in the Service as templates for You to edit and change to suit your circumstances, using your own professional skill, judgment and experience and may include technical inaccuracies or typographical errors and do not necessarily reflect recent changes or developments in the law or industry practice.
25. Limitations of Liability
Neither Smokeball nor You shall be liable to the other for any indirect, incidental, consequential, special, exemplary, or punitive damages (including, without limitation, damages for loss of business profits, loss of good will, loss of business opportunity, loss of data, work stoppage, computer failure or malfunction, or other pecuniary loss) whether under a theory of contract, warranty, tort, or otherwise, even if the other party has been notified of possible damages. In no event shall either party’s total aggregate and cumulative liability for any and all claims of any kind arising as a result of or related to the Subscription provided, exceed the sum of the Subscription Fees actually paid by You for a one-year period immediately preceding the date the cause of action arose. This paragraph does not apply to clause 26 regarding Indemnification nor clause 8 regarding Migration. Nothing in these Terms shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between You and Smokeball. Also, neither party to these Terms shall have the right, power, or authority to create any obligations or duty, express or implied, on behalf of the other or third parties.
- Firm Indemnification. In addition to any other indemnification obligations set forth in this Agreement, You shall defend, indemnify, and hold Smokeball harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Smokeball resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) arising from or related to: (a) Your use or attempted use of the Subscription in violation of these Terms; (b) Your violation of any law or rights of any third party; (c) Client Data, including any processing of Client Data by or on behalf of Smokeball in material accordance with this Agreement or Your instructions; (d) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of You or any User, including Smokeball’s compliance with any specifications or directions provided by or on behalf of You or any User; or (e) negligence or more culpable acts or omissions (including recklessness or willful misconduct) by You, any User, or any third-party on behalf of You or any User, in connection with this Agreement.
- Infringement Indemnification by Smokeball. Smokeball shall defend, indemnify, and hold You harmless from and against any Losses arising out of or resulting from any Third-Party Claim to the extent such Losses do or are alleged to arise out of or result from a claim that the Subscription, or Your or any User’s use thereof, actually does or threatens to infringe, misappropriate, or otherwise violate any United States intellectual property right, provided, however, that Smokeball shall have no liability or obligation for any Third-Party Claim or Losses to the extent that such Third-Party Claim or Losses arise out of or results from: (a) Client Data or any third-party materials; (b) access to or use of the Subscription in combination with any hardware, system, software, network, apparatus, or other materials or service not provided by Smokeball; (c) modifications of the Subscription other than by or on behalf of Smokeball; (d) any act, omission, or other matter described in clause 26(A). If the Subscription or any portion thereof are, or in Smokeball’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Your or any User’s use of the Subscription are enjoined or threatened to be enjoined, Smokeball may, at its option and sole cost and expense: (i) obtain the right for You and its Users to continue to use the Subscription as contemplated by this Agreement; (ii) modify or replace the Subscription, in whole or in part, to seek or make the Subscription (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Subscription under this Agreement; or (iii) by written notice to You, terminate this Agreement, and require You to immediately cease any use of the Subscription and, subject to Your compliance with the rest of this Agreement and notwithstanding anything to the contrary in this Agreement, You will be entitled to a refund of any prepaid fees for any remaining unused portion of the Subscription Term as of the effective date of such termination and You shall have no further obligation, cost, or expense for any remaining Subscription Fees for the remainder of the Subscription Term. Notwithstanding the foregoing, You agree that Smokeball has no liability arising from Your use of any Interfacing Third Party, third-party integration, or arising from third-party products and services. You assume the risk of unavailability of any integration or any third-party products or services due to downtime of the third party. Smokeball reserves the right to modify or cancel third party integration at any time without notice.
27. Interfacing Third Party Services and Third Party Links
- Third Party Links: Smokeball may include links to or display content from Your use of any third-party integration websites or arising from the integrations to third-party platforms that offer products and services (“Third-Party Links”). You assume the risk of unavailability of any integration of any Third-Party Links. Third-Party Links are provided solely as a convenience for You. Smokeball attempts to select and provide Third Party Links that we believe may be of use to You, but we do not warrant, endorse, or accept any liability for any Third-Party Links, or any products or services offered through them.
- Interfacing Third Party Services: Smokeball services may interface or be integrated with products or services supplied by Interfacing Third Party service providers (Interfacing Services). You acknowledge and agree that the Interfacing Services are supplied to You pursuant to an agreement between You and the relevant Interfacing Third Party. We do not warrant, endorse, or accept any liability for any Interfacing Services
Notice and disclaimer: You acknowledge and agree that 1) the Third Party Links and Interfacing Services are offered by third parties that may include our related bodies corporate; 2) We may receive financial or other benefits, including commissions, as a result of making Third-Party Links available through the Subscription or Your purchase of products and services through Third-Party Links or Interfacing Services; 3) We may add, remove, or cancel Third-Party Links or Interfacing Services at any time without notice; and 4) Third-Party Links and Interfacing Service Providers may terminate, withdraw or cancel their services in accordance with the terms of its agreement with You.
28. Minimum System Requirements
The Minimum System Requirements to install and operate the Smokeball Subscription are located at https://www.smokeball.com/smokeball-system-requirements (“Minimum System Requirements”). To maintain currency within industry standards and third-party IT systems, the Smokeball Minimum System Requirements are subject to change from time to time, including during Your current Subscription Term. It is Your responsibility to ensure the Minimum System Requirements are maintained.
In the event the Smokeball Minimum System Requirements are modified during a current Subscription Term, Smokeball will make commercially reasonable efforts to notify You, by way of an email, or other reasonable means, to the Main Firm Contact, prior to such change taking effect. The updated requirements will be located at the website address above.
The Subscription Fee for the Subscription has been agreed on the basis that Smokeball may change the Smokeball Minimum System Requirements during the Subscription Term. You will not have any right to a refund of any fees, or other remedy, if You are unable to use the Subscription because You do not comply with the then-current Smokeball Minimum System Requirements.
29. Internet Delays
Your Subscription may be subject to delays or limitations inherent in the use of the Internet and/or cloud services used by Smokeball. Smokeball is not responsible for any delays, failures or other damage that may result from such issues.
Smokeball shall provide support at https://support.smokeball.com (“Support”). Failure to maintain Minimum System Requirements may preclude You or Your Users from receiving optimal technical software Support. Smokeball’s Support will be unavailable at times for routine maintenance and will be unavailable on the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Black Friday, Christmas Eve, and Christmas Day.
31. Changes to Service and Terms
Smokeball may update, upgrade, revise, or change the Subscription, its features, and functionality (collectively, “Updates”) at any time. You acknowledge and agree that:
- Smokeball delivers its Services using a ‘one to many’ Software as a Service model that is generally not tailored to any specific customer’s requirements; and
- Smokeball is required to continually update and change its software and related service offering in order to maintain currency with industry standards and third-party IT systems, and otherwise meet its business and other requirements; and
- the Fees for the Subscription have been determined and agreed on the basis that Smokeball will have the flexibility to change the Services and these Terms as set out in this Agreement; and
- Smokeball will not make Updates that require you to pay any additional Subscription Fees in your then-current Subscription Term or that deprive you of a substantial or material benefit of the Services or these Terms.
32. Force Majeure
Neither You nor Smokeball shall be responsible for any interruption, delay, or other failure to perform under these Terms (other than an obligation to pay the fees or other money) due to acts beyond the control of the responsible party or the occurrence of a Force Majeure. Force Majeure shall mean events not reasonably foreseeable or otherwise caused by or under the control of the party claiming Force Majeure, including Acts of God, natural disasters (e.g. lightning, earthquakes, hurricanes, floods) wars, riots, explosions, terrorism, vandalism, civil unrest, governmental acts, pandemics (whether declared or undeclared, and including restrictions imposed as a result of a pandemic), injunctions, failures of telecommunication providers or internet service providers; failure of third party suppliers, service providers, or vendors; and any other cause beyond the reasonable control of a party.
If any provision of these Terms is held to be invalid or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objective of the original provision as permitted by law, and the remaining provisions shall remain in full force and effect.
34. Choice of Law
These Terms and any dispute arising out of or in connection with these Terms shall be governed by and construed under the Law of the State of Illinois, without regard to the principles of conflict of laws. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the Illinois state and federal courts for Cook County, Illinois, and the parties’ consent to the personal and exclusive jurisdiction of these courts.
35. Notices and Operational Emails
You agree that we may provide You all notices, statements, and other communications to You through email, regular U.S. mail, or by a recognized commercial carrier addressed to the mailing address listed on the Client Order Form. A dedicated email address (Main Firm Contact) will be utilized for important service announcements, changes to Minimum System Requirements, and any changes to our Terms.
Operational Emails will be sent to Your Main Firm Contact. Operational Emails are not for marketing purposes and cannot be opted out of. You are responsible for providing Smokeball with any changes or updates to Your contact information in writing. All notices to Smokeball shall be made via certified mail addressed to: Smokeball, 200 West Adams Street, Suite 1450, Chicago, Illinois 60606.
36. Entire Agreement
This Agreement, together with any other documents incorporated herein by reference (including any subsequent changes to User licenses or billing, whether written or submitted online), constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter. In the event of any inconsistency between the statements in the body of this Agreement and any other documents incorporated herein by reference, the statements in the body of this Agreement shall control.