Smokeball ​Terms of Service

Smokeball Terms of Service (“Terms”)

Last Updated: March 1, 2022:

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

1. Defined Terms

In this Agreement:

  • "Client Form” means the document titled ‘Client Form’ (or any replacement form used by Smokeball from time to time) submitted or agreed by You as part of the ordering process for Services and that sets out details about You, the Services you have ordered and other relevant matters.
  • “Fees” means the Subscription Fees, and the On-boarding Pack Fee, and any other fees and charges payable by You under this Agreement.
  • “Main Firm Contact” serves as the dedicated individual and corresponding email address for each Client that will receive the Operational Emails to be utilised for important service announcements or any changes to our Terms or Privacy Policy.
  • “Order Form” means the most recent Client Form or Renewal Form submitted or agreed by you.
  • “Renewal Form” means the document titled ‘Renewal Form’ (or any replacement form used by Smokeball from time to time) submitted or agreed by You as part of a renewal of Your Subscription.
  • “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.
  • “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.
  • “Services” means any software, document or service provided by Smokeball.
  • “Smokeball System Requirements” means the system published at smokeball.com.au/system-requirements.
  • “Subscription” means Your right to access and use the Services in accordance with this Agreement for a specified term.
  • “Subscription Term” means the term of your Subscription, which is twelve (12) months from the execution date of your Order Form or as otherwise specified on your Order Form, or from an Auto-Renew. For Clients using the Start Subscription Tier, the start date of the Subscription Term will begin when the Start Tier subscription was initiated.
  • “Subscription Tiers” means the tiers of Subscription offered by Smokeball, which can be accessed at: smokeball.com.au/pricing. Unless otherwise indicated on your Order Form, or Renewal Order Form, the Subscription Tier is Prosper.
  • “Users” means Your officers, employees, contractors and agents that are authorised by You to use any of the Services.
  • “You” and “Your” means the Client detailed on the Order Form.
2. Subscription Term

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;
  • 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 Service during the agreed Subscription Term);
  • if we have agreed that you may pay the Subscription Fee in periodic instalments then each instalment is a partial payment of the Subscription Fee, and is not a severable payment for the use of the Service for the instalment period; and
  • neither Smokeball nor You has the right to terminate this Agreement or cancel the Services without cause during Your agreed Subscription Term.
3. Renewal of Subscription Term

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. 

4. Changes to this Agreement or the Services

You acknowledge and agree that:

  • Smokeball delivers its Services using a ‘one to many’ Software as a Service model that is generally not tailored to any specific customer’s requirements;
  • Smokeball is required to continually update and change its software and related service offering in order to maintain currency with industry standards and third party IT infrastructure, and otherwise meet its business and other requirements; and
  • the Fees for the Services have been determined and agreed on the basis that Smokeball will have the flexibility to change the Services and these Terms as set out in this Agreement.

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.

5. Smokeball System Requirements

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:

  • the Fees for the Services have been agreed on the basis that Smokeball may change the Smokeball System Requirements during the Subscription Term; and
  • 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 System Requirements.
6. Grant of Licence

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.

7. Users

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.

8. Subscription Tiers

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.

9. Support & Maintenance

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.

10. Training

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].

11. Payment of Fees

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.

12. Subscription Fees

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.

13. On-boarding Pack Fee

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.

14. Taxes & GST

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.]

15. Suspension

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.

16. Termination

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.

17. Cessation of use

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.

18. Access & 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 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.

19. Client Data

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.

To the extent that You give Smokeball access to Client Data, Smokeball shall treat your data as confidential and will use and disclose it only in accordance with its Privacy Policy.

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.

20. Data Security

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.

21. Usage Data

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.

22. Liability

You acknowledge and agree that:

  • we provide 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 Service 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 Service;
  • Smokeball does not guarantee that the Service will always function without disruptions, delays or imperfections; and
  • 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.

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 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 revenue, loss of goodwill, loss of business opportunity, loss of data, work stoppage, computer failure or malfunction,) whether under a theory of contract, warranty, tort, or otherwise, even if the other party has been notified of possible damages; and
  • 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 Fees actually paid by you for a one-year period immediately preceding the date the cause of action arose.
23. Force Majeure

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.

24. 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.


25. 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 Laws of New South Wales, Australia and the Jurisdiction of the Sydney courts.

26. No Relationship

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.

27. Notices

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.

28. Financing Agreements

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:

  • 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;
  • Smokeball may have an agreement with a Financier requiring Smokeball to suspend your Service, or take other reasonable action, if you fail to make payments to your Financier;
  • Smokeball’s role in any Financing Arrangement is limited to referring you to a Financier and, in some cases, 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 Funding 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; and
  • Smokeball does not represent or warrant that any credit application that you submit will be accepted by the Financier, or result in a Financing Arrangement.
29. Disclaimer of Legal Advice

The Service may include:

  • access to forms, precedents and other documents, including automated documents that are accessed or generated through the Services (Precedent Documents); and
  • prompts and reminders regarding potential deadlines, due dates and other requirements relating to legal or business practice (Notifications).

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:

  • comply with, or reflect, applicable laws;
  • are suitable for your particular use, objectives or circumstances; or
  • are up to date or current.

You acknowledge and agree that:

  • the Services are 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;
  • the Notifications may not be accurate or up-to-date, and you are responsible for validating (or ignoring) Notifications based on your own professional skill, judgment and experience;
  • the Precedent Documents:

       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.

30. Privacy & GDPR

Smokeball may collect personal information in connection with the Services. That personal information will be treated in accordance with our Privacy Policy, which is available at www.smokeball.com.au/privacy.

From time-to-time Smokeball may call or contact You about your account, or receive calls from you. Smokeball may record those calls and contacts, and store those records, in accordance with its Privacy Policy and subject to applicable laws.  

[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’.]

31. 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 ThirdParty Links or any products and services offered through them.

You acknowledge and agree that:

  • the Third Party Links are offered by third parties that include our related bodies corporate;
  •  we may receive financial or other benefits, including commissions, as a result of making Third Party Links available through the Services, or Your purchase of products and services through Third Party Links;
  • we may remove or cancel a Third Party Link, or add a new Third Party Link, at any time; and
  • we are not responsible for the content or information contained in any Third Party Links, or any products or services purchased using the Third Party Links, and make no representations or warranties regarding the Third Party Links to you.

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.

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