SMOKEBALL TERMS OF SERVICE
Last updated 3/1/2022
1. As used in this Agreement:
- “License Agreement” means this User Agreement, the Client Order Form or Renewal Order Form, and any subsequent changes to User licenses or billing, whether written or submitted online;
- “Smokeball” means Smokeball Incorporated, having its principal place of business at: 200 West Adams, Suite 1450, Chicago, IL 60606 USA;
- “Client Data” means any of Your client’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;
- “Data Backup”includes documents and basic matter and contact card data;
- “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, and/or usage, of the Subscription;
- “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, and any other Client services provided by Smokeball, Communicate, Smokeball Billing and all related collateral materials, logos, and goodwill, all of which are exclusively the property of Smokeball;
- “Subscription Tiers” are the tiers of Subscription offered by Smokeball, which can be found here: http://www.smokeball.com/pricing/. Unless otherwise indicated on your Client Order Form, or Renewal Order Form, the Subscription Tier is Prosper.
- “Client Order Form(s)” refers to the original, or upgraded Subscription Tier, 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;
- “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; You may receive an email that will act as a Renewal Order Form.
- “User(s)” refer to Your Smokeball Software license(s) and the corresponding individual(s) utilizing the license(s);
- “Effective Date” refers to the date the Client Order Form is executed by both You and Smokeball; or the date on the Renewal Order Form for the new Subscription Term to be effective. For Clients using the Start Subscription Tier, this is the date the Subscription was initiated;
- “Renewal Date”refers to the day immediately following the expiration of your current Subscription Term;
- “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 1.9 and 1.10;
- “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 of the initial Client Order Form may be subject to Onboarding Fees;
- “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, or provide for early termination, unless otherwise stated, or provided in these terms.);
- “Auto-Renew” means Your Subscription will Automatically Renew for successive annual terms unless we discontinue Your Subscription; or You provide us with written notice of non-renewal at least 30 days prior to the expiration of the current Subscription Term;
- “Financing Partner” means a third-party creditor provider referred to You by Smokeball for Subscription.
- “Financing Arrangement” means an application submitted by You to the Financing Partner for credit approval.
- “Financing Agreement” means the funding agreement between You and the Financial Partner for Subscription.
2. 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.
3. Minimum System Requirements. The minimum system requirements to install and operate Smokeball Desktop 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. In order to maintain currency with industry standards and third party IT systems the Smokeball System Requirements are subject to change from time to time, including during a current Subscription Term. Smokeball will notify You of any such change by email sent to Main Firm Contact and the updated requirements will be located at the address above. The change will take effect thirty days after the date the email is sent to you or at such later time specified by Smokeball. The Subscription Fee for the Subscription have 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 Services because you do not comply with the then current Smokeball Minimum System Requirements.
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:
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, or from your initiation of the Start Subscription Tier. 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, 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. The fees have been agreed based on the length of Subscription Term. The Subscription Fee is a fixed fee for the entire Subscription Term, and is not refundable or avoidable due to ‘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 instalments 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. There is no early termination, 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. Except as otherwise stated in Your Client or Renewal Order Form, Your Subscription will Auto-Renew as defined in Section 1.q. 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. Bar Membership Discounts. Through Smokeball’s partnerships with various bar associations, you may be eligible to receive an exclusive 10% discount on annual Smokeball services. This discount cannot be combined with any other discounts. Proof of membership may be required per Subscription. Fraudulent attestation will result in removal of discount.
9. 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. When adding additional user(s), the User rate will be equal to the monthly fee amount listed on the Client or Renewal Order Form. Additional users will be contracted through the end of Your Subscription Term listed on your Client or Renewal Order Form. If Your Subscription is financed, users added past the number specified on the Client or Renewal Order Form will be charged and processed directly through Smokeball.
10. 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 actively using the Subscription or not. Users added in the middle of a billing period will be charged in full on the next applicable payment date. 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.
- 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. Client may not unilaterally revoke prior consent authorizing Smokeball to charge the credit or debit card on file to avoid paying the balance due. Smokeball reserves the right to collect on any remaining balances to Your account.
11. Subscription Tiers. You may upgrade your Subscription Tier at anytime within the Subscription Term. Such an upgrade in tier can only be applied to all of your Users. Your Users cannot be segmented into different Subscription Tiers. The additional costs of upgrading Subscription Tiers will be charged and processed directly through Smokeball. Lowering the Subscription Tier of your Subscription is not allowed within the Subscription Term, even if You upgraded your tier previously within the Subscription Term, but is allowed at time of Renewal.
12. Financing Subscription Through Financial Partner. If You choose to use a Financing Partner with any Smokeball Subscription, and the approval process is not completed within 14 days of the Effective Date, the Total Monthly Subscription Fee will be the price listed here for your tier: http://www.smokeball.com/pricing/, and the Subscription Term will be for twelve months from the Effective Date on your Client Order Form, or Renewal Order Form, unless otherwise stated. If You use a Financing Partner to finance your Subscription, You acknowledge the Financing Agreement is only between You and the Financing Partner. Smokeball is not the lender and has no legal authority to modify a Financing Agreement with a 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. You should consider obtaining your own independent legal, financial, taxation or other advice relating to a Financing Arrangement 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. Further, You acknowledge and 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.
13. Taxes. You shall be responsible for any and all taxes or any charges imposed by federal, state, or a local governmental entity (other than taxes on Smokeball’s income).
14. 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 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 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. Any new Subscription will require past balances to be brought current.
15. 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 16. There is no early termination, unless otherwise stated, or provided in these terms. You agree that (without limitation) it will be a breach of your material obligations if 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 if through your wrongful act or omission you create a risk to the Subscription or any user of the Subscription. Upon termination of your Subscription, you must immediately cease all use of the services, except for the purpose as described in Section 16 below.
16. 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.
17. Cessation of Use: If You no longer wish to use the Subscription, you should provide written notice to Smokeball at least 30 days prior to expiration of Your Subscription Term. You will continue to have access to Smokeball until the end of Your then current Subscription Term. You must uninstall, delete, and erase any and all copies of the Smokeball from all of your systems, and extract any of your data within 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 Services, and if requested confirm in writing that this has been completed.
18. 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. 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 authorized access or use.
19. 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 are responsible for ensuring that you have all necessary rights and consents, including third party privacy 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 (“Client Consents”). You indemnify Smokeball for any loss, damages, costs and expenses Smokeball suffers or incurs as a result of your failure to obtain (and maintain) Client Consents You acknowledge and agree that Smokeball may need to access and view Your data to assist with Your questions, technical support requests, client services team requests, training or other issues. You acknowledge and agree that Smokeball may access Your data for internal research for development, Subscription, and/or benchmarking 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 16. 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. For more information on Smokeball’s security policy see here: https://www.smokeball.com/security-policy/
20. Training. If Client needs to cancel a scheduled training with Smokeball, Client will notify Smokeball as soon as possible. Cancelations made within a business day of the scheduled training, and/or the Client cancels multiple scheduled trainings, the Client may be charged a cancelation fee(s). If Client schedules more than one training at the time, without the express approval of Smokeball, then Smokeball reserves the right to cancel the additional scheduled trainings.
21. Communication from Smokeball. From time-to-time Smokeball may call You about your account, and for the purposes of any and all such call(s), You may be subject to call recording (both audio and visual), and You hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Smokeball asks you on any particular call for consent to record such call. Such recordings are used for training and quality assurance purposes related to Smokeball’s staff. Such recordings are Smokeball’s property, and You have no right to such recordings, which Smokeball has the right to withhold. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be presented as evidence in any legal proceeding in which Smokeball is a party.
22. 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.
23. 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. Further, You acknowledge and agree that: Smokeball provides the Services to you subject only to the terms, conditions and warranties expressly contained within these Terms, 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 Service 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 Service, including by complying with the Smokeball System Requirements.
24. Disclaimer of Legal Advice. Smokeball is not a law firm. The Subscription is 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. This includes, but is not limited to, access to forms, automated documents, and other documents (collectively “Templates”), generated through the Subscription; conflict checking; prompts and reminders regarding potential deadlines, due dates and other requirements relating to legal or business practice. Smokeball has used reasonable endeavors that are generally appropriate for use of the Subscription. Elements of the Subscription 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. Accordingly, Smokeball does not represent or warrant that any elements of the Subscription comply with, or reflects, applicable laws, including, but not limited to, the jurisdiction(s) You may practice in; suitable for your particular use, objectives or circumstances; or are up to date or current. Further, You acknowledge and agree that Templates are provided to in the Subscription for You to edit and change to suit your circumstances, using your own professional skill, judgment and experience; 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 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. This paragraph does not apply to Section 26 regarding Indemnification. 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.
26. Indemnification. Client will defend, indemnify, and hold Smokeball harmless from and against any claim by a third party arising from or related to: (a) your use or attempted use of the Subscription in violation of these Terms; (b) Client violation of any law or rights of any third party; (c) any Client use of the Subscription, including, but not limited to, that results in any claim of infringement, misappropriation, defamation, or violation of any intellectual property, privacy, or other rights.
27. Third Party Integrations. Smokeball may provide the ability to integrate with third party products and services. Such integrations may be used at your option and risk. Access and use of third-party products and services are subject to the terms, conditions, and policies of the providers of the third-party products and services. You agree that Smokeball has no liability arising from your use of any third-party integration or arising from the 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
28. 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.
29. 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.
30. 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.
32. EU General Data Protection Regulation (GDPR). Smokeball complies with the EU’s new General Data Protection Regulation (GDPR), effective as of May 25, 2018.