**Smokeball Terms of Service**

Smokeball Terms of Service

Smokeball Terms of Service (“Terms”)

These Terms of Service apply to any Order Form for Smokeball or FamilyProperty software or services that is agreed or renewed on or after 1 March 2024.

“You” and “Your” means the Client detailed on the Client Form. Your use of Smokeball Australia Pty Ltd's (“ Smokeball”) Services, as defined below, is conditional upon Your 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 agreement to be bound by such changes.

1. Defined Terms

In this Agreement:

"Add-on" means an additional module, service, feature or functionality that is offered by Smokeball for purchase separately from the core Smokeball Services and which is used in conjunction with the core Smokeball Services.
"Agreement" means the agreement constituted by these Terms and an Order Form.
"Auto-Renewal" means an automatic renewal or extension of a Fixed Term Subscription in accordance with clause 3.
"Client Data" has the meaning given to that term in clause 20.
"Client Form” means the document or electronic or web form used by Smokeball from time to time and submitted or agreed by You, and that sets out details about You, the Services you have ordered, the Fees and other relevant matters.
“Fees” means the Subscription Fees and any other fees and charges specified in an Order Form.
"Fixed Term Subscription" means a Subscription for a specified period as detailed on an Order Form.
“Interfacing Third Party” means any third party entity that provides Interfacing Services.
"Interfacing Services" means products or services that are delivered in or through, or that interface or are integrated with, the Services.
"IPR Claim" means a claim by a third party against You alleging that Your use of the Services in accordance with this Agreement infringes the intellectual property rights of that third party.
"Monthly Subscription" means a month-to-month Subscription as further described in clause 2.
“Minimum System Requirements” means the system requirements published at smokeball.com.au/system-requirements.
“Nominated Contact” means Your nominated contact person that will receive Operational Emails and other important service announcements.
"Operational Email" has the meaning given in clause 30.
“Order Form” means the most recent Client Form or Renewal Form submitted or agreed by You.
"Related Party Users" means Your clients, barristers engaged by You, employees of counterparty law firms and other relevant third parties that you permit to interact with the Services in connection with the services that you provide to your clients.
“Renewal Form” means the document or electronic or web form used by Smokeball from time to time and submitted or agreed by You as part of a renewal of Your Subscription.
“Services” means any software, application, document or service provided by Smokeball (including Add-ons), but does not include Third Party Services.
“Subscription” means Your right to access and use the Services in accordance with this Agreement for a specified term.
"Subscription Fees" means the Fee for Your Subscription specified on Your Order Form or, in the case of Auto-Renewal, notified in accordance with clause 3.
“Subscription Term” means the term of your Subscription, which is as specified on your Order Form or determined in accordance with clause 2, and includes any Auto-Renewal term in accordance with clause 3.
“Subscription Tiers” means the tiers of Subscription offered by Smokeball, which can be accessed at: smokeball.com.au/pricing.
"Third Party Service" means any products or services of a third party (including Interfacing Services).
“Users” means Your officers, employees, contractors and agents over which you retain management and control and that are authorised by You to use any of the Services.

2. Subscription Term

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:

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
unless extended or terminated in accordance with this Agreement, will end on expiry of the fixed term specified on Your Order Form.

Where You have purchased a Fixed Term Subscription, You acknowledge and agree that:

the Subscription Fee is a fixed fee for the entire Subscription Term, and is not refundable or avoidable due to ‘change of mind’;
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;
neither Smokeball nor You has the right to terminate this Agreement or cancel the Services during Your agreed Subscription Term.

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.

3. Renewal of Fixed Subscription Term

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 provide you with a Renewal Form that sets out the terms that we propose will apply to a renewal or extension of your Subscription Term.

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.

We recognise that ongoing access to the Services may be important to the operation of Your business. If, by the Notification Date:

neither party has notified the other that it does not wish to renew Your Subscription; and
you have not accepted or submitted a Renewal Form,

then on expiry of your Subscription Term your Subscription including any add-ons will automatically renew as a 12 month subscription invoiced and paid monthly at Smokeball's then standard pricing.

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

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.

4. Trial Period

Smokeball may offer you a free trial period during which you may use the Services 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.

5. 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. Smokeball may from time to time update, change or amend these Terms and/or the Services (a Service Change). 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.

6. Smokeball System Requirements

You are responsible for ensuring that you comply with the then current Minimum System Requirements throughout Your Subscription Term. The Minimum System Requirements are subject to change from time to time.

7. Grant of Licence

You are granted a revocable, non-exclusive, limited, non-sublicensable and non-transferable licence to use and access the Services during Your Subscription Term.

You may permit Your Related Party Users to access the Services, but only to the extent enabled in the Services. You are responsible for all acts or omissions of Your Users and Related Party Users.

8. Usage Restrictions

You agree not to:

modify, decompile, reverse-engineer, reproduce, duplicate, copy, sell, resell, adapt, or exploit the Services;
use the Services for any unlawful purpose;
permit any third party to use or access the Services (other than Related Party Users).

9. Changes to Users

If you add new Users during Your Subscription Term, the Subscription Fees will be increased accordingly.

10. Changes to Subscription Tiers

You may upgrade your Subscription Tier at any time within the Subscription Term.

11. Add-ons

Smokeball may from time to time make Add-ons available for purchase.

12. Support & Maintenance

Smokeball shall provide support during the Subscription Term as described at https://support.smokeball.com/hc/en-au.

13. Fees

You must pay the Subscription Fee specified on Your Order Form. Smokeball will not increase the Fees during Your current Subscription Term, except in specified conditions.

14. Payment method

You agree to provide us with a valid credit card or other payment method acceptable to us for payment of the Fees.

15. 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).

16. Financing Agreements

If requested by You, Smokeball may refer you to a third party credit provider to enable you to submit an application to the Financier for credit.

17. Suspension

Smokeball reserves the right to suspend Your access to the Services if there is a breach of the usage restrictions.

18. Termination

Either party may terminate this Agreement if the other party is in material breach of this Agreement.

19. Cessation of use

If You no longer wish to use the Services, provide written notice to Smokeball at least 30 days prior to expiry of Your Subscription Term.

20. Client Data

As between Smokeball and You, You will retain all ownership of all data that You or any of Your Users upload or generate from the Services. Smokeball may need to access Client Data to assist with your questions.

21. Data Security

Smokeball takes measures designed to protect Your data. Those measures are described in our Security Policy at www.smokeball.com.au/security.

22. Usage Data

Usage Data means data related to the use or operation of the Services, such as anonymous usage related data.

23. Liability

Smokeball warrants that it will comply with laws applicable to it. You acknowledge and agree that the Services have not been specifically designed or tailored for You.

24. Third Party Services

The Services may include links to or display content from third party websites. We do not warrant, endorse, or accept any liability for any Third Party Links.

25. Privacy & GDPR

Smokeball may collect personal information in connection with the Services, treated in accordance with its Privacy Policy.

26. Force Majeure

Neither party shall be responsible for any interruption caused by a Force Majeure Event.

27. Severability

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

28. Choice of Law

This Agreement shall be governed by and construed under the laws of New South Wales, Australia.

29. No Relationship

Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between You and Smokeball.

30. Notices

You agree that we may provide You any and all notices through email, regular post, or by a recognized commercial carrier.