SMOKEBALL TERMS OF SERVICE
Last updated 11/21/2018
- 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.”
- Grant of License. You are granted a non-exclusive, limited and non-transferable license to use and access the Service subject to payment of the Subscription Fee as stated on Your Client 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 not to use the Service 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 (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Smokeball immediately of any such unauthorized use; and (ii) comply with all applicable laws and regulations in Your use of the Service.
- Minimum System Requirements. The minimum system requirements to install and operate Smokeball are located at www.smokeball.com/smokeball-system-requirements.
- Subscription Term. The term of your Subscription shall be the Subscription Term stated on the Client Order Form or Renewal Client Order Form, commencing on the date the respective order form is signed. Except as otherwise stated in Your order form, Your Subscription will automatically renew (“Auto-Renew”) for successive terms unless we discontinue your service, You sign a Renewal Client Order Form for an extended term or You provide us with written notice of non-renewal at least 30 days prior to the expiration of the current Subscription Term. Upon Your Subscription renewing for a successive term, Your Subscription Fee may be subject to change. In the event You have increased Your user license number above the number reflected on Your original Client Order Form, the license count for your Auto-Renew or Your Renewal Client Order Form will be the number of active licenses as of Your renewal date.
- Fees. You shall pay the Subscription Fee and any additional Training and Services Fees stated in the Client Order Form. Subscription Fees are based on the number of user licenses purchased in the Client Order Form, not the extent of actual usage. Except as otherwise provided, Subscription Fees are non-refundable, and the number of licenses cannot be decreased below the number listed on the Client Order Form, or Renewal Client Order Form, where applicable. 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. Subscription Fees are subject to change and any change in price would be applicable at the time of renewal of Your Subscription Term.
- Taxes. You shall be responsible for any and all taxes or any charges imposed by federal, state, or a local governmental entity.
- 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. You agree that upon the termination of Your Subscription, we may immediately deactivate Your Service and may delete Your account and data after 30 days. Smokeball shall grant You access to the Services for 30 days for the sole purpose of permitting You to retrieve Your data.
- Users. You may access and use the Services up to the number of users specified on your Client Order Form, or Renewal Client Order Form where applicable. The sharing of user licenses by multiple people is not permitted. If you wish to add additional users during your Subscription Term, you may enable the additional user through Smokeball Settings within Smokeball or contact Smokeball for assistance. With respect to additional users, an Extra User Addendum will be executed for the new user licenses, the term will be coterminous with the pre-existing Subscription Term and you shall be charged for the additional user as of the date the additional user is activated. Except as otherwise provided, the number of licenses cannot be decreased below the number listed on the Client Order Form, or Renewal Client Order Form where applicable, during the current Subscription Term.
- 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 the Service. You shall be responsible for protecting the confidentiality of User IDs 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 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.
- 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 are responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all data submitted by You to the Service. 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. Smokeball will not access Your data without Your permission and will only access data to the extent 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 and will not disclose any data to the extent allowed by law.
- 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 (court order or subpoena) and to comply with law enforcement authorities in an investigation of a criminal or civil matter.
- 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. 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.
- 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.
- 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.
- 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.
- 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.
- 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.