Terms of Service

“You” and “Your” shall mean the Client detailed on the Client Order Form.  Your use of Smokeball Pty. Ltd. (“Smokeball”) Services, as defined below, is conditional upon our acceptance of the Terms at www.smokeball.com/terms-of-service and Privacy Policy at www.smokeball.com/privacy.  Your continued use of the Services after any changes to the Terms shall constitute Your consent to be bound by such changes.

  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. 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 Monthly Subscription Fee as stated on your Client Order Form. 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.
  3. Minimum System Requirements. The minimum system requirements to install and operate Smokeball are located at www.smokeball.com/smokeball-system-requirements
  4. Fees. You shall pay the Monthly Subscription Fee set forth in the Client Order Form per the billing frequency stated in the Client Order Form and any Onboarding Pack Fee stated in the Client Order Form. By providing us your payment information, you expressly authorize us to charge you for all fees incurred in connection with your Subscription.  Monthly Subscription Fees are subject to change and any change in price would be applicable at time of renewal of your Subscription Term.
  5. Subscription Term. The term of Your Subscription shall be the Subscription Term stated on the Client Order Form. The Subscription Term commences from the date Smokeball processes your initial payment.  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 60 days prior to the expiration of the current term.
  6. Taxes. You shall be responsible for any and all taxes or any charges imposed by federal, state, or a local governmental entity.
  7. 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 Services and may delete Your account and data after thirty (30) days.  Smokeball shall grant You access to the Services for thirty (30) days for the sole purpose of permitting You to retrieve Your data.
  8. Early Termination before installation of Smokeball. You may request to terminate Your Subscription if: (1) you have not installed Smokeball on any system; (2) you provide written notice to terminate to Smokeball; and (3) you pay Smokeball an early termination fee equal to six (6) months of your Monthly Subscription Fee as stated on the Client Order Form. Any fees paid prior to your request to terminate your Subscription are non-refundable.
  9. Users. You may access and use the Services up to the number of users specified on your Client Order Form. 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, the term will be coterminous with the pre-existing Subscription Term, and you shall be charged for the additional user calculated on a pro-rata basis at the time the additional user is activated.
  10. 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.
  11. 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 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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 MONTHLY SUBSCRIPTION FEES actually paid by YOU for a one year period immediately preceding the date the cause of action arose.
  16. 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.
  17. 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.
  18. 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.
  19. 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.  All notices to Smokeball shall be made via certified mail addressed to: Smokeball, 200 W. Adams St., Ste. 2700, Chicago, IL 60606.
  20. Updates. Smokeball reserves the right to update, change, or amend these Terms. Smokeball will notify the Client of such changes and the Terms will be located at www.smokeball.com/terms

 

 

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