Terms of Service

/Terms of Service
Terms of Service

SMOKEBALL TERMS OF SERVICE
Last updated 10/03/2019

This is a legally enforceable software as a service (“SaaS”) License Agreement governing Your use of the Smokeball Software. As used in this agreement, the term “You” and “Your” shall mean the Client detailed on the Client or Renewal Order Form.  Your use of Smokeball Inc. (“Smokeball”) Subscription, as defined below, is conditional upon Your acceptance of the following Terms and Conditions of Service (“Terms”) at www.smokeball.com/terms/ and Privacy Policy at www.smokeball.com/privacy/. If You are entering into this agreement on behalf of a company, You represent that You are over the age of 18 and have the complete authority to enter into this agreement on behalf of Your company. Smokeball reserves the right to update, change, or amend these Terms. Smokeball will notify the Client, pursuant to these Terms, by way of an Operational Email sent to the Main Firm Contact, of such changes and the Terms will be located at www.smokeball.com/terms/.  Your continued use of Smokeball fourteen (14) days after any notice of changes to the Terms or Privacy Policy shall constitute Your consent to be bound by such changes.

  1. As used in this Agreement:
    1. “License Agreement” means this User Agreement, the original Client Order Form or Renewal Order Form, and any subsequent changes to User licenses or billing, whether written or submitted online;
    2. “Smokeball” means Smokeball Incorporated, having its principal place of business at: 200 West Adams, Suite 1450, Chicago, IL 60606 USA;
    3. “Terms” means the Terms and Conditions of Service (“Terms”), located at smokeball.com/terms/, and the Privacy Policy, located at www.smokeball.com/privacy/;
    4. “Client Data” means any of Your customer’s or other individual’s personal data, credit data, biometric data, transaction data, system data, other data, information or material that You accept, utilize, process or collect from customers or individuals and/or submit to Smokeball in the course of using the Subscription;
    5. “Data Backup” includes documents and basic matter and contact card data;
    6. “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. Smokeball reserves the right to collect, aggregate, monitor, and use Usage Data to improve the functionality, performance, and aid in further development of the Subscription;
    7. “Subscription” means any software or service provided by Smokeball, including but not limited to Smokeball Software, any of the Smokeball websites, manuals, FAQ’s, Smokeball Support, Communicate, Smokeball Billing and all related collateral materials, logos, and goodwill, all of which are exclusively the property of Smokeball;
    8. “Client Order Form(s)” refers to the original Smokeball SaaS Order Form, doubly executed by You and Smokeball for Your Smokeball Subscription, detailing Your Users, Total Monthly Subscription Fee, Onboarding Fee and Subscription Term;
    9. “Renewal Order Form” Refers to the original Smokeball SaaS Order Form or Renewal Order Form for a new Subscription Term for Your Smokeball Subscription, detailing Your Users, Total Monthly Subscription Fee and Subscription Term;
    10. “User(s)” refer to Your Smokeball Software license(s) and the corresponding individual(s) utilizing the license(s);
    11. “Effective Date” refers to the date the Client Order Form is executed by both You and Smokeball;
    12. “Renewal Date” refers to the day immediately following the expiration of your current Subscription Term;
    13. “Subscription Fee” will be equal to the monthly fee amount multiplied by the number of Users, as indicated on your Client or Renewal Order Form, or then in effect, as defined in Sections 1.8 and 1.9;
    14. “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. Any Users added after the Effective Date may be subject to Onboarding Fees;
    15. “Subscription Term” will be the number of months listed in the Subscription Term section stated on the Client or Renewal Order Form or upon Your selection of an annual renewal or Auto-Renew (Smokeball does not offer month-to-month Subscription Terms);
    16. “Auto-Renew” means Your Subscription will Automatically Renew for successive annual terms unless we discontinue Your Subscription, You sign a Renewal Order Form for a Subscription Term longer than You originally contracted for or You provide us with written notice of non-renewal at least 30 days prior to the expiration of the current Subscription Term;
    17. “Main Firm Contact” serves as the dedicated individual and corresponding email address for each Client that will receive the Operational Emails to be utilized for important service announcements or any changes to our Terms or Privacy Policy.
  2. Internet Delays. Your Subscription may be subject to delays or limitations inherent in the use of the Internet. Smokeball is not responsible for any delays, failures or other damage that may result from such issues.
  3. Minimum System Requirements.The minimum system requirements to install and operate Smokeball are located at smokeball.com/smokeball-system-requirements and are subject to change and it is Your responsibility to ensure the minimum system requirements are maintained.
  4. Smokeball shall provide support at https://support.smokeball.com. Failure to maintain minimum system requirements may preclude Client from receiving optimal technical software support. Smokeball 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;
  5. Maintenance. Smokeball will provide, subject to timely payment of fees due and payable to Smokeball, maintenance services with respect to the Subscription during the Subscription Term of this License Agreement, as follows:
    1. Software Bug Fixes. Periodic updates to the Smokeball Software that will incorporate corrections of any defects and fixes of any minor bugs to the Smokeball Software;
    2. Telephonic or electronic communications to You regarding the use of the Subscription within the scope of the License Agreement, during Smokeball’s standard support hours.
  6. Grant of License.You are granted a non-exclusive, limited and non-transferable User license to use and access the Subscription subject to payment of the Subscription Fee as stated on Your Client or Renewal Order Form. 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 Service.  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 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, 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, the Subscription, and notify Smokeball immediately of any such unauthorized use.
  7. Subscription Term.  The duration of your Subscription shall be the Subscription Term stated on the Client or Renewal Order Form, commencing on the Effective Date. Except as otherwise stated in Your Client or Renewal Order Form, Your Subscription will Auto-Renew as defined in Section 1.16.  Upon Your Subscription renewing for successive annual terms, Your Subscription Fee may be subject to change. In the event You have increased Your User number above the number reflected on Your most recent Client or Renewal Order Form, the User count for your new Subscription Term will be the number of Users as of Your Renewal Date.
  8. Users. You may access and use the Subscription up to the number of Users specified on Your Client or Renewal Order Form. The sharing of Users by multiple people is not permitted. Except as otherwise provided, the number of Users cannot be decreased below the number listed on the Client or Renewal Order Form during the applicable Subscription Term.
    1. Adding Additional Users. The User rate will be equal to the monthly fee amount listed on the Client or Renewal Order Form.
    2. Removing Additional Users. Except as otherwise provided, the number of Users cannot be decreased below the number listed on the Client or Renewal Order Form during the applicable Subscription Term.
  1. Payment of Fees and Charges.You shall pay the Subscription Fee and any Onboarding Fees stated on the Client Order Form on the Effective Date and You must provide Smokeball with a valid credit card, debit card or bank routing information as a condition to signing up for the Subscription.  Subscription Fees are based on the number of Users listed on the Client or Renewal Order Form, not the extent of actual usage. You are responsible for paying for all Users listed on the Client or Renewal Order Form for the entire Subscription Term, whether the Users are active or not. Users added in the middle of a billing period will be charged in full on the next applicable payment date.  Except as otherwise provided, Subscription Fees and Onboarding Fees are non-refundable.  If You provide Your payment information to Smokeball, You expressly authorize that the payment information be used to pay for all fees incurred in connection with Your Subscription, including from an Auto-Renew. Users added after the Effective Date may be subject to additional Onboarding Fees. Subscription Fees are subject to change and any change in price of Users would be applicable on Your Renewal Date.
    1. 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.
    2. 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 charge such unpaid fees to Your credit card, debit card, or bank account on file. Client may not unilaterally revoke prior consent authorizing Smokeball to charge the credit or debit card on file to avoid paying the balance due.
  2. Taxes. You shall be responsible for any and all taxes or any charges imposed by federal, state, or a local governmental entity.
  3. Non-Payment and Suspension or Termination for Delinquent Accounts. Smokeball reserves the right to suspend or terminate this License Agreement and Your access to the Subscription if Your account becomes delinquent or You are otherwise unable to provide proper payment. Smokeball will provide delinquency and suspension notifications via the Smokeball Software. You will receive a warning message indicating impending account suspension at thirty (30) days delinquent.  If your delinquency is not rectified within forty-five (45) days, Smokeball reserves the right to suspend Your access to the Smokeball Software until Your account is brought current.
  4. Termination. Smokeball may terminate Your Subscription if You breach any of Your obligations under these Terms and such breach is not cured within sixty (60) days of notice from Smokeball. You agree that upon Smokeball terminating Your Subscription for breach of Your obligations, Smokeball may deactivate Your services and may delete Your account and data after 30 days. Upon request, Smokeball will provide You with a data backup as defined in Sections 1.5 and 13.
  5. Backup of Data. Smokeball shall grant You access to the Smokeball Software for thirty (30) days after the expiration of your Subscription Term for the sole purpose of permitting You to retrieve Your data. Smokeball will provide client with a Data Backup upon request, as defined in Section 1.5.
  6. 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 allow IDs to be shared among Your Users.  You shall be responsible for the access, actions, use, and data uploaded to Smokeball Software.  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.
  7. Client’s Data.You retain all rights of ownership of any and all data You upload, import, or generate into the Smokeball Software. You are responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all data submitted by You. You acknowledge and agree that Smokeball may need to access and view Your data to assist with Your questions, technical support requests, content team requests, training or other issues.  You acknowledge and agree that Smokeball may access Your data for internal research for development purposes. To the extent that You give Smokeball access to Your data, Smokeball shall treat Your data as confidential and will not disclose any data to the extent allowed by law. Information regarding retrieval of client data can be found in Sections 1.5 and 13. Any feedback, comments, recommendations, feature requests, ideas and suggestions for improvements to Smokeball (“Feedback“) will be considered non-confidential and non-proprietary to You. All Feedback shall be exclusively owned by Smokeball.
  8. Response to Legal Process.Smokeball shall provide You timely notice of the legal process, to the extent allowed by law. Smokeball reserves the right to provide Your data to third parties if required or compelled by law (such as, but not limited to, a court order or subpoena) and to comply with law enforcement authorities in an investigation of a criminal or civil matter.
  9. Disclaimer of Warranty.You acknowledge that use of the Subscription is at Your own risk. 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.
  10. 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 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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 mailing address listed on the Client Order Form. A dedicated email address will be utilized for important service announcements or any changes to our Terms or Privacy Policy and an Operational Email 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.
  15. EU General Data Protection Regulation (GDPR). Smokeball complies with the EU’s new General Data Protection Regulation (GDPR), effective as of May 25, 2018.