These Terms of Service apply to any Order Forms agreed or renewals effected on or after 1 July, 2023.
In this Agreement:
Smokeball may offer Services as either a Fixed Term Subscription or as a Monthly Subscription.
When you purchase a Subscription you purchase it for the Subscription Term specified on your Order Form. You acknowledge and agree that the Fees have been agreed based on the length of the Subscription Term.
2.1 Fixed Term Subscriptions
A Fixed Term Subscription:
Where You have purchased a Fixed Term Subscription, You acknowledge and agree that:
2.2 Monthly Subscriptions
A Monthly Subscription will commence on the date specified in Your Order Form (or if no date is specified, the date Your Order Form is accepted by Smokeball) and will continue until either You or Smokeball notifies the other that it wishes to end the Subscription Term, in which case the Subscription Term will end one month after the date of the notice.
At least 60 days prior to the expiry of your Subscription Term we will notify you that the end of the Subscription Term is approaching and, unless we intend to discontinue your Service, provide you with a Renewal Form that sets out the terms (including Fees) that we propose will apply to a renewal or extension of your Subscription Term, and the pricing that will apply to any Auto-Renewal.
If you do not wish to renew or extend Your Subscription Term, then you must notify us at least 30 days prior to expiry of your Subscription Term (the Notification Date). If we intend to discontinue our Service to You, then we will notify you prior to the Notification Date and provide you with at least one further reminder prior to the expiry of Your Subscription Term.
We recognise that ongoing access to the Services may be important to the operation of Your business. If, by the Notification Date:
then on expiry of your Subscription Term your Subscription will automatically renew as a 12 month subscription invoiced and paid monthly at Smokeball's then standard pricing (as notified to you by Smokeball). You acknowledge and agree that your Subscription Fee may increase as a result of that renewal.
In the event You have increased or decreased Your User numbers when compared to the User numbers reflected on Your most recent Order Form, the User count for your new Subscription Term will be the number of Users as of Your renewal date (and the Subscription Fee will be adjusted accordingly).
If your Subscription has automatically renewed in accordance with this clause, then at any time during the first three months of the renewal term either party may terminate the Subscription on 30 days' notice to the other party. During that period Smokeball will continue to attempt to contact you regarding agreeing a Renewal Form for the extension of Your Subscription. After that three month period Your Subscription Term may only be terminated in accordance with clause 18.
Smokeball may offer you a free trial period during which you may use the Services (or a part of them) without paying any Subscription Fees.
The terms of this Agreement apply to Your use of the Services during the trial period, other than the terms of this Agreement relating to the payment of Fees.
On expiry of the trial period You must cease all use of the Services unless and until you have entered into an Order Form for a paid Subscription for the Services.
You acknowledge and agree that:
Smokeball may from time to time update, change or amend these Terms and/or the Services (a Service Change), including during a current Subscription Term. However, Smokeball will not make a Service Change that requires you to pay any additional Fees, or deprives you of a substantial or material benefit of the Services or these Terms.
Smokeball will notify You of a Service Change by email sent to Your Nominated Contact, and the updated Terms will be located at smokeball.com.au/terms. The Service Change will take effect thirty days after the date the email is sent to You or at such later time specified by Smokeball.
You are responsible for ensuring that you comply with the then current Smokeball System Requirements throughout Your Subscription Term.
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 Your Nominated Contact and the updated requirements will be located at smokeball.com.au/system-requirements. The change will take effect thirty days after the date the email is sent to you or at such later time specified by Smokeball.
You agree that 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 Smokeball System Requirements.
You are granted a revocable (except in accordance with this Agreement), non-exclusive, limited, non-sublicensable and non-transferable licence to use and access the Services (subject to payment of the Fees) during Your Subscription Term (and any free trial period if applicable).
The licence is personal to You and permits You (and Your Users) to use the Services, but only for your internal business purposes, and on an IT system that meets the Smokeball System Requirements.
You may access and use the Subscription up to the number of Users specified on Your Order Form, except that if specified in Your Order Form or otherwise agreed by Smokeball, a limited number of 'flex' Users may be included in Your Subscription for an additional Fee. The sharing of a User account by more than one person is not permitted.
In addition, You may permit Your Related Party Users to access the Services, but in each case only to the limited extent enabled in the Services (for example, to view, upload and interact with specific documents). You must ensure that you have all consents and authorities to disclose information to, and collect and use information from, Related Party Users. You must comply with any limitation or restriction in the Services relating to Related Party Users.
You are responsible for all acts or omissions of Your Users and Related Party Users as though they were Your acts or omissions.
You agree that Smokeball owns all right, title and interest, including all intellectual property rights, in the Services and in all related collateral and materials, including domain names, company and business names, trademarks, logos, and goodwill.
You agree not to:
Each User and Related Party User of the Services requires a unique user ID and password. Any additional User must have their own unique user ID and password. You must not, and must ensure each of Your Users do not, share a user ID with another person.
You are responsible for:
You must immediately notify Smokeball of any unauthorised access to or use of the Services.
If you add new Users during Your Subscription Term (other than where you are permitted to add a 'flex' User in accordance with Your Order Form or as agreed with Smokeball), the Subscription Fees will be increased accordingly. The increase will be calculated using the ‘per User rate’ specified on Your most recent Order Form. Additional users will be contracted through the end of Your then current Subscription Term.
If you pay Subscription Fees monthly, the additional Subscription Fees will apply at Your next monthly payment date and for the remainder of Your Subscription Term. Otherwise, Smokeball will invoice you separately for the additional Subscription Fees applicable for the remainder of your Subscription Term. Those additional Subscription Fees are payable immediately and in full, unless Smokeball agrees that they may be paid in monthly instalments. If Your Subscription is financed (see clause 16 below), the Fees for additional Users are payable directly to Smokeball and may not be covered by your financing arrangement.
The number of Users cannot be decreased below the number listed on Your Order Form during Your Subscription Term. You are responsible for paying for all Users listed on Your Order Form for the entire Subscription Term, whether the Users are active or not.
You may upgrade your Subscription Tier at any time within the Subscription Term. An upgrade in Subscription Tier can only be applied to all of your Users. Your Users cannot be segmented into different Subscription Tiers.
If you pay Subscription Fees monthly, additional Subscription Fees relating to the upgrade will apply at Your next monthly payment date and for the remainder of Your Subscription Term. Otherwise, Smokeball will invoice you separately for the additional Subscription Fees applicable for the remainder of your Subscription Term. Those additional Subscription Fees are payable immediately and in full, unless Smokeball agrees that they may be paid in monthly instalments. If Your Subscription is financed (see clause 16 below), the Fees for the upgrade in Subscription Tier are payable directly to Smokeball and may not be covered by your financing arrangement.
Downgrading the Subscription Tier of Your Subscription is not permitted within the Subscription Term, even if You upgraded your tier previously within the Subscription Term, but is permitted as part of a renewal of your Subscription.
Smokeball may from time to time make Add-ons available for purchase. If You purchase an Add-on, then:
Smokeball shall provide support during the Subscription Term as described at https://support.smokeball.com/hc/en-au. The support offering may change from time to time in accordance with clause 5 of these Terms.
Smokeball support will be unavailable at times for routine maintenance, and unless notified otherwise will be unavailable outside of Smokeball’s standard support hours.
You must pay:
Smokeball will not increase the Fees during Your current Subscription Term, except where:
You agree to provide us with a valid credit card or other payment method acceptable to us for payment of the Fees. By providing us your payment information, You expressly authorise us to charge you for all Fees incurred in connection with your Subscription, including for an Auto-Renewal.
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 notify Smokeball in writing as soon as possible to request a credit or adjustment.
You shall be responsible for any and all taxes or any charges imposed by government entities (other than taxes on Smokeball’s income).
Except where the Fees are expressly stated as being ‘GST inclusive’, all Fees are exclusive of any applicable GST.
If a party (Supplier) makes a supply under or in connection with this agreement in respect of which GST is payable, the recipient of the supply (Recipient) must pay to the Supplier, an additional amount equal to the GST payable on the supply (GST Amount).
If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
If a payment is calculated by reference to or as a specified percentage of another amount or revenue stream, that payment will be calculated by reference to or as a specified percentage of the amount or revenue stream exclusive of GST.
If requested by You, Smokeball may refer you to a third party credit provider (the Financier) to enable you to submit an application to the Financier for credit which, if approved, will be provided pursuant to a Funding Agreement between you and the Financier (a Financing Arrangement).
You acknowledge and agree that:
Smokeball reserves the right to suspend Your access to the Services if:
Smokeball will provide overdue payment and suspension notifications to the Main Contact. In the case of overdue payment, You will receive a warning message indicating impending account suspension on or after thirty (30) days overdue. If any overdue Fees remain unpaid thirty (30) days after receipt of the warning message, then Smokeball reserves the right to suspend Your access to the Services until all overdue Fees have been paid.
Smokeball will lift any suspension once it is satisfied, acting reasonably, that the basis for the suspension has been remedied.
Either party (First Party) may terminate this Agreement if the other party is in material breach of this Agreement and such breach is not capable of being cured, or is not cured within 30 days of receipt of notice from the First Party requiring it to do so.
You agree that (without limitation) it will be a material breach if You use the Services 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; if Your account is validly suspended in accordance with clause 17 and you have not remedied the basis of suspension after 30 days; or if through Your wrongful act or omission you create a risk to the Services or any user of the Services.
Upon termination of your Subscription, you must 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 (30) thirty days from the termination of Your Subscription for the sole purpose of permitting you to retrieve your data.
In the event of termination of this Agreement, You agree to pay the balance due on Your Subscription (if any) and You agree that Smokeball may charge such unpaid fees to Your credit card, debit card, or bank account on file. You may not unilaterally revoke prior consent authorising Smokeball to charge the credit or debit card on file to avoid paying the balance due.
If You no longer wish to use the Services, you should provide written notice to Smokeball at least 30 days prior to expiry of Your Subscription Term. You will continue to have access to Smokeball until the end of Your then current Subscription Term, and limited access for 30 days thereafter for the sole purpose of retrieving Your data.
You must uninstall, delete, and erase any and all copies of the Services 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.
As between Smokeball and You, You will retain all ownership of all data that You (or any of Your Users) upload or import to, or generate from, the Services (Client Data). This includes (but is not limited to) documents, contacts, and other entries into Smokeball. You acknowledge and agree that Smokeball may need to access and view Client Data to assist with your questions, technical support requests, training or other issues. Smokeball will only access Client Data which is reasonably necessary to address or complete Your requests or issues.
Smokeball reserves the right to provide Client Data to third parties if required or compelled by law (including court order or subpoena) or a direction of a government authority, or where it is required or compelled to comply with a request of law enforcement authorities in an investigation of a criminal or civil matter. Smokeball shall provide you notice of the legal process, to the extent allowed by law.
If you request services from any Interfacing Third Parties, then we may (and You authorise us to) provide Your Customer Data to those Interfacing Third Parties as required to enable those Interfacing Third Parties to supply those services to 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 process, access and use the Client Data for the purpose of delivering the Services 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.
Smokeball takes a number of organisational, technical and physical measures designed to protect Your data, both during transmission and once we receive it. Those measures are described in our Security Policy which is available at www.smokeball.com.au/security.
Usage Data means 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 Client Data or Your personal information. 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.
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.
Smokeball warrants that:
You acknowledge and agree that:
You should be aware that certain guarantees may be conferred on you under the Australian Consumer Law. Nothing in this agreement limits, excludes or modifies any terms, warranties or guarantees that are conferred on you under the Australia Consumer Law and which it is unlawful under the Australian Consumer Law to exclude (Non-Excludable Term).
If it is legally permitted to do so, where Smokeball is liable for a breach of any such Non-Excludable Term, then Smokeball limits its liability to the following: (1) in the case of goods, one or more of the following at Smokeball’s discretion: (a) the replacement of the goods or the supply of the equivalent goods; (b) the repair of the goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of having the goods repaired; and (2) in the case of services: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again.
23.2 Exclusion and limitation of liability
Subject to clause 23.3 below, except to the extent of Smokeball’s liability under a Non-Excludable Term:
The exclusion and limitation in clause 23.2 does not apply to limit or exclude liability:
23.4 Disclaimer of Legal Advice
The Services may include:
The Precedent Documents and Notifications 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. Smokeball is not a law firm, and is not regulated by the Law Society of NSW or any other professional body.
Accordingly, Smokeball does not represent or warrant that any Precedent Documents, Notifications or other elements of the Services:
You acknowledge and agree that:
23.5 IP infringement claims
If there is an IPR Claim Smokeball will indemnify You against:
provided, however, that Smokeball will have no liability to You to the extent that claim results from: (a) Your Client Data; (b) access to or use of the Services in combination with any hardware, system, software or other materials or services not provided by Smokeball; (c) modifications of the Services other than by or on behalf of Smokeball; or (d) any breach of the usage restrictions in section 8 above.
You must: (a) notify Smokeball promptly on becoming aware of an IPR Claim; (b) provide reasonable cooperation to Smokeball (at Smokeball's expense) in the defence and settlement of the IPR Claim; and (c) provided Smokeball has acknowledged its obligation to indemnity You in accordance with this clause, grant Smokeball control of the defence and settlement of the claim.
If the Services or any portion of them are, or in Smokeball’s opinion are likely to be, claimed to infringe any third-party intellectual property rights, Smokeball may, at its option and sole cost and expense: (i) obtain the right for You and Your Users to continue to use the Services as contemplated by this Agreement; (ii) modify or replace the Services, in whole or in part, to make the Services non-infringing, while providing materially equivalent features and functionality; or (iii) by written notice to You, terminate this Agreement, and require You to immediately cease any use of the Services, in which case You will be entitled to a refund of any prepaid fees for any remaining unused portion of the Subscription Term as of the effective date of such termination. This section 23.5 sets out Your sole and exclusive remedy and Smokeball's sole liability in connection with an IPR Claim.
24.1 Third Party Links
The Services may include links to or display content from third party websites, or integrations to third party platforms, that offer products and services (Third Party Links). Third Party Links are provided solely as a convenience for you. We attempt to select and provide Third Party Links that we believe may be of use to You, but we do not warrant, endorse, or accept any liability for any Third Party Links or any products and services offered through them.
24.2 Interfacing Services
Smokeball Services may interface or be integrated with products or services supplied by Interfacing Service Providers (Interfacing Services). You acknowledge and agree that the Interfacing Services are supplied to you pursuant to an agreement between you and the relevant third party and not by Smokeball. We do not warrant, endorse, or accept any liability for any Interfacing Services.
24.3 Notice and disclaimer
You acknowledge and agree that:
Neither party shall be responsible for any interruption, delay, or other failure to perform an obligation under this Agreement (other than an obligation to pay the Fees or other money) that is caused by a Force Majeure Event. Force Majeure Event shall mean Acts of God, natural disasters (e.g. lightning, earthquakes, storms, 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.
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.
These Terms and any dispute arising out of or in connection with these Terms shall be governed by and construed under the Laws of New South Wales, Australia and the Jurisdiction of the Sydney courts.
Nothing in these terms shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between You and Smokeball. 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 party.
You agree that we may provide you any and all notices, statements, and other communications to you through email, regular post, or by a recognised commercial carrier addressed to the address listed on Your Order Form. You are responsible for providing Smokeball with any changes or updates to your contact information.
We will email your nominated address for important service announcements, including any Service Changes (as described in clause 5 above), or changes to the Minimum System Requirements (as described in clause 6 above) (Operational Emails). Operational Emails are not for marketing purposes and cannot be opted out of.
All notices to Smokeball shall be made via email to your nominated account manager, or such other address notified by Smokeball from time to time.
If your environment does not meet the minimum system requirements, it is likely to impact your Smokeball experience.
Please consult your IT professional.
Any further questions, please call us on 1300 33 55 53.