Last Updated: March 1, 2022:
In this Agreement:
When you purchase a Subscription you purchase it for the Subscription Term specified on your Order Form. You acknowledge and agree that:
Prior to the expiry of your Subscription Term we will notify you and, unless we intend to discontinue your Service, propose the terms (including Fees) that will apply to a renewal or extension of your Subscription Term.
The terms of any renewal or extension will be documented in a Renewal Order Form and, once agreed, will apply to the renewal or extension period.
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.
Except as otherwise stated in Your Order Form, Your Subscription will Auto-Renew as defined herein, unless You have agreed to a Renewal Order. In the event You have increased Your User number above the number 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. Your new Subscription Fee may be subject to change.
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 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.
This clause does not apply to changes to the Smokeball System Requirements, which are governed by clause 3 above.
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 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, or from your initiation of the Start Subscription Tier. 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 a computer system that meets the Smokeball System Requirements.
You agree not to modify, decompile, reverse-engineer, reproduce, duplicate, copy, sell, resell, adapt, or exploit the Services. You agree not to permit any third party to use or access the Services, or to permit your Users to use the Services for the benefit of any third party. You agree not to use (or permit or enable any person to use) the Service for any unlawful, offensive, threatening, defamatory, pornographic, obscene, or other purpose violating anyone’s rights, or in a manner which infringes the intellectual property rights of any person. You agree not to send, store, or upload any “spam” or any malicious or harmful code or virus of malicious or destructive nature.
You agree that Your Users may only comprise Your officers, employees, contractors and agents over which you retain management and control, and may not comprise the officers, employees, contractors and agents of any third party.
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 may access and use the Subscription up to the number of Users specified on Your Order Form. The sharing of a User account by more than one person is not permitted.
If you add new Users during Your Subscription Term, the Subscription Fees will be increased accordingly. The increase will be calculated using the ‘per User rate’ specified on Your Order Form. Additional users will be contracted through the end of Your Subscription Term listed on your Order Form
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 29 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 are responsible for all activities that occur under Your User accounts, including Your Users’ compliance with these Terms. You indemnify Smokeball for any loss, damage cost or expense it suffers or incurs as a result of an act or omission of any of Your Users, or of any other person using an account allocated to one of your Users.
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.
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 29 below), the Fees for the upgrade in Subscription Tier are payable directly to Smokeball and may not be covered by your financing arrangement.
Downgrading Your 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.
Smokeball shall provide support during the Subscription Term as described at smokeball.com.au/features/support-and-training. The support offering may change from time to time in accordance with clause 2 of these Terms.
Failure to maintain the Smokeball System Requirements may preclude Client from receiving technical support.
Smokeball support will be unavailable at times for routine maintenance, and unless notified otherwise will be unavailable outside of Smokeball’s standard support hours.
If You need to cancel a scheduled training with Smokeball, You must notify Smokeball as soon as possible. If You cancel training within a business day of the scheduled time, and/or if the You cancel multiple scheduled trainings, You may be charged a cancellation fee. [If You schedule more than one training at a time, without the express approval of Smokeball, then Smokeball reserves the right to cancel the additional scheduled trainings].
You agree to provide us with a valid credit card or other payment method acceptable to us for payment of the Subscription Fees and the On-boarding Pack Fee. By providing us your payment information, You expressly authorise us to charge you for all Fees incurred in connection with your Subscription, including for 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.
Smokeball will not increase the Fees during Your current Subscription Term, except where you add Users in accordance with Clause 5 above or change Subscription Tiers in accordance with Clause 8 above.
You must pay the Subscription Fee on Your Order Form and according to the billing frequency stated on the Client Form.
Subscription Fees may be increased at the end of your Subscription Term as part of a renewal of your Service.
The On-boarding Pack Fee is a one-time Fee that is payable for Smokeball’s on-boarding services, which may include personalised training, automation of precedents, software installation, and setup of your letterhead.
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.]
Smokeball reserves the right to suspend Your access to the Services if Your account with Smokeball, or with a Financier with whom you have a Financing Arrangement (as described in Clause 29) and who has paid Fees to Smokeball on your behalf, becomes overdue.
Smokeball will provide overdue and suspension notifications to the Main Contact. You will receive a warning message indicating impending account suspension on or after thirty (30) days overdue. If your delinquency is not rectified within forty-five (45) days, Smokeball reserves the right to suspend Your access to the Services until Your account is brought current.
Smokeball may terminate Your Subscription immediately if you breach any of your material obligations under these Terms and such breach is not capable of being cured, or is not cured within 30 days of receipt of notice from Smokeball. You agree that (without limitation) it will be a breach of your material obligations 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, 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 ten (10) business 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.
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.
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 must not, and must ensure each of Your Users do not, share a user ID with another person. You are responsible for the access, actions, use, and data uploaded to the Service using a user ID allocated to You or any of Your Users. You are 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 are responsible for maintaining or implementing procedures and policies to prevent any unauthorised access or use of usernames and passwords and must notify Smokeball if a username or password has been lost, stolen, or compromised. You must immediately notify Smokeball of any unauthorised access or use.
You 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 not access your Client Data without first advising You (or advising the member of your personnel that you have nominated to engage with Smokeball in relation to a request or issue), and 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 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.
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 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.
Also, 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.
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.
Except to the extent of Smokeball’s liability under a Non-Excludable Term, and without limiting or excluding your obligation to pay the Fees under this Agreement:
Neither party shall be responsible for any interruption, delay, or other failure to perform an obligation under these Terms (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 he 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 the Agreement. 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 4 above), or changes to the Minimum System Requirements (as described in clause 5 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 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:
The Service may include:
However, 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:
o are provided in the Service as templates for You to edit and change to suit your circumstances, using your own professional skill, judgment and experience;
o may include technical inaccuracies or typographical errors; and
o do not necessarily reflect recent changes or developments in the law or industry practice.
[Smokeball does not offer any products or services to individuals located in the European Union(EU). However, where applicable, Smokeball complies with relevant requirements of the EU’s General Data Protection Regulation (GDPR) as a ‘data processor’.]
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 ThirdParty Links or any products and services offered through them.
You acknowledge and agree that:
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.