1. Service. Service shall mean any software or service provided by Smokeball, including but not limited to Smokeball software, any of the Smokeball websites, manuals, FAQ’s, and all related collateral materials, logos, user interface, taglines, and goodwill, all of which are exclusively the property of Smokeball and collectively referred to as the “Service.”
2. Smokeball System Requirements. Smokeball System Requirements shall mean the Smokeball System Requirements published on smokeball.com which are subject to change without notice.
3. Training Plan. Training Plan shall mean the Training Plan published on smokeball.com, which is subject to change without notice.
4. Grant of License. You are granted a non-exclusive, limited and non-transferable license to use and access the Services subject to payment of the Subscription Fee (“SF”). You agree not to modify, reverse engineer, reproduce, duplicate, copy, sell, resell, adapt, or exploit the Service without the express written permission from Smokeball. You agree not to use the Service for any unlawful, offensive, threatening, infringing, defamatory, pornographic, obscene, or other purpose violating anyone’s rights. You agree not to send, store, or upload any “spam” or any malicious code or virus of malicious or destructive nature.
5. Fees. You agree to provide us with a valid credit card for payment of the Subscription Fees (“SF”) and the Onboarding Pack Fee (“OPF”). By providing us Your payment information, You expressly authorize us to charge You for all fees incurred in connection with Your Subscription.
6. Subscription Fees. You shall pay the Subscription Fee set forth in the Client Order Form and according to the billing frequency stated in the Client Order Form. The Subscription Fee is non-refundable after the expiration of the 90-Day Money Back Guarantee, as described below. Subscription Fees may be increased at the then advertised Subscription Fee on the anniversary date of the execution of the Client Order Form.
7. Onboarding Pack Fee. The Onboarding Pack Fee (“OPF”) is a one-time non-refundable fee that includes personalized training, automation of ten (10) templates, remote installation, and setup of Your letterhead.
8. Taxes. You shall be responsible for any and all taxes or any charges imposed by federal, state, or a local governmental entities.
9. Subscription Term. The term of Your Subscription is one year from the execution date of the Client Order Form. Your Subscription shall automatically renew for successive one-year terms unless we discontinue Your Service or You provide us with written notice of non-renewal at least 30 days prior to the expiration of the current term.
10. Termination. Smokeball may terminate Your Subscription if You breach any of Your obligations under these Terms and such breach is not cured within 30 days of receipt of notice from Smokeball. Upon termination of Your subscription, You shall 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. Smokeball shall grant You access to the Services for 5 business days for the sole purpose of permitting You to retrieve Your data.
11. Termination Before Installation. You may terminate Your Subscription before the commencement of the 90-Day Money Back Guarantee by giving written notice to Smokeball, paying Smokeball an early termination fee equal to fifty percent (50%) of your Subscription Fee for twelve (12) months as stated on the Client Order Form, and paying any and all fees due to Smokeball for consulting, additional training, form conversion, automation, and any other associated fees.
12. 90 Day Money Back Guarantee. The 90 Day Money Back Guarantee commences from the installation of Smokeball Services on any of Your systems and expires ninety (90) calendar days from the date of installation. You may request to terminate Your Subscription and obtain a refund of any paid Subscription Fees subject to the following: (a) Request is made within fourteen (14) calendar days after the expiration of the 90 Day Money Back Guarantee; (b) Service is installed on a system that complies with the then applicable Recommended System Requirements as stated on the Smokeball System Requirements, as described above; (c) You and Your staff shall have completed the Training Plan, as described above; (d) Only the Subscription Fee is refundable and all other fees are non-refundable; and (e) You must uninstall, delete, and erase any and all copies of the Services from all of Your systems, extract any of Your data within 5 business days of cancellation, and take any and all steps necessary to ensure that neither You nor anyone through You continues to have or use any part of the Services, and if requested confirm in writing that this has been completed.
13. Access and Security. Each user of Smokeball requires a unique user ID and password. Any additional user must have his or her own unique user ID and password. You shall not share Your ID with another person. You shall be responsible for the access, actions, use, and data uploaded to the Service. You shall be responsible for protecting the confidentiality of usernames and passwords to the Service, 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 usernames and passwords, and will notify Smokeball if a username or password has been lost, stolen, or compromised. You agree to immediately notify Smokeball of any unauthorized access or use.
14. Client’s Data. You retain all ownership of any and all data You upload, import, or generate, including documents, contacts, and other entries into the Service. You acknowledge and agree that Smokeball may need to access and view Your data to assist with Your questions, technical support requests, training or other issues. Smokeball will not access Your data without Your permission and will only access data which is reasonably necessary to address or complete Your requests or issues. To the extent that You give Smokeball access to Your data, Smokeball shall treat Your data as confidential. Smokeball treats Your data as confidential information and will not disclose any data to the extent allowed by law.
15. Response to Legal Process. Smokeball reserves the right to provide Your data to third parties if required or compelled by law (court order or subpoena) and to comply with law enforcement authorities in an investigation of a criminal or civil matter. Smokeball may provide You notice of the legal process, to the extent allowed by law.
16. Usage Data. Usage Data shall mean data related to the use or operation of the Services, such as anonymous usage related data and technical data collected in connection with the use of the Services. It does not include any of Your data. Smokeball reserves the right to collect, aggregate, monitor, and use Usage Data to improve the functionality, performance, and aid in further development of the Service.
17. Disclaimer of Warranty. YOU ACKNOWLEDGE THAT USE OF THE SERVICE IS AT YOUR OWN RISK. SMOKEBALL PROVIDES THE SERVICE 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 SERVICE 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 SERVICE. 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.
18. 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 GOODWILL, 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 SERVICES 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.
19. Force Majeure. Neither You nor Smokeball shall be responsible for any interruption, delay, or other failure to perform under these Terms 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, 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.
20. Severability. 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.
21. 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 the Terms 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.
22. Notices. You agree that we may provide You any and all notices, statements, and other communications to You through email, regular U.S. mail, or by a recognized commercial carrier addressed to the address listed on the Client Order Form. You are responsible for providing Smokeball with any changes or updates to Your contact information.
23. Updates. Smokeball reserves the right to update, change, or amend these Terms. Smokeball will notify the Client of such changes and the new Terms will be located at smokeball.com/terms-of-use.