Cookies Policy

Smokeball Terms of Service (“Terms”)

These Terms of Service apply to any Order Forms agreed or renewals effected on or after 1 July, 2023.

Smokeball Terms of Service (“Terms”)

These Terms of Service apply to any Order Forms agreed or renewals effected on or after 1 July, 2023.

“You” and “Your” means the Client detailed on the Client Form. Your use of Smokeball UK Pty Ltd (“Smokeball”) Services, as defined below, is conditional upon Your acceptance of these Terms of Service (“Terms”),and subject to Smokeball’s Privacy Notice at www.smokeball.co.uk/privacy. Your continued use of the Services after any changes to the Terms (see further clause 5 below) shall constitute Your agreement to be bound by such changes.

1.Defined Terms

In this Agreement:

• "Add-on" means an additional 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 below.
• "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 in an Order Form.
• “Interfacing Third Party” means any entity that provides 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 section 2 below.
• “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 below.
• “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.
• “Smokeball System Requirements” means the system requirements published at smokeball.co.uk/system-requirements.
• “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.co.uk/pricing.
• "Third Party Service" means any products or services of an Interfacing Third Party.
• “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 andagree 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 (including clause 3 below), will end on expiry of the fixed term specified in 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’ (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 during Your agreed Subscription Term, except in accordance with clause 3 and clause 18 below.

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 30 days after the date of the notice.  If You pay Subscription Fees monthly, then the Subscription Fees in Your final month will be pro-rated to account for the period remaining in the month at the end of Your Subscription Term.

3. Renewal of Fixed Subscription Term

At least sixty (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 thirty (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:

• 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,

the non 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 accordance with any Auto-Renewal pricing we have notified to You under this clause.

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).

4.Trial Period

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. Any offer of a free trial period is at Smokeball's absolute discretion and Smokeball may revoke such an offer, or end any free trial period, at any time.

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 apaid Subscription for the Services.

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 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 systems, 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, including as set out in this clause 5 and clause 6 below.

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 during Your current Subscription Term 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.co.uk/terms. The Service Change will take effect thirty (30) days after the date the email is sent to You or at such later time specified by Smokeball.

6. Smokeball System Requirements

You are responsible for ensuring that You (and Your Related Party Users) 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.co.uk/system-requirements. The change will take effect thirty (30) days after the date the email is sent to Your Nominated Contact 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.

7. 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) 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 and use 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.

8.Usage Restrictions

You agree not to:

• modify, decompile, reverse-engineer, reproduce, duplicate, copy, sell, resell, adapt, or exploit the Services;
• use (or permit or enable any person to use) the Services:
• for any unlawful, offensive, threatening, defamatory, pornographic, obscene, or other purpose violating anyone’s rights;

o    in a manner which infringes the intellectual property rights of any person; or

o    to send, store, or upload any “spam” or any malicious or harmful code or virus of malicious or destructive nature; or

·        permit any third party to use or access the Services (other than Related Party Users), or to permit Your Users to use the Services for the benefit of any third party.

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:

·        the access, actions, use, and data uploaded to the Service using a user ID allocated to You or any of Your Users;

·        protecting the confidentiality of usernames and passwords to the Service, as well as maintaining the accuracy of the personal data provided to Smokeball; and

·        maintaining or implementing procedures and policies to prevent any unauthorised access or use of usernames and passwords and must immediately notify Smokeball if a username or password has been lost, stolen, or compromised.

You must immediately notify Smokeball of any unauthorised access to or use of the Services.

9. Changes to Users

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.

Related Party Users do not count towards Your total number of Users for the purposes of calculating your Subscription Fees.

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.

10. Changes to 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.

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.

11.Add-ons

Smokeball may from time to time make Add-ons available for purchase. If You purchase an Add-on, then:

·        You must pay the applicable Fees for that Add-on; and

·        You will be permitted to access and use the Add-on for Your Subscription Term.

12. Support& Maintenance

Smokeball shall provide support during the Subscription Term as described at smokeball.co.uk/feature/support-and-training. The support offering may change from time to time in accordance with clause 5of 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.

13. Fees

You must pay:

·        the Subscription Fee specified in Your Order Form, according to the billing frequency stated in Your Order Form (or in the case of an Auto-Renewal, the Subscription Fee that applies in accordance with clause 3 above); and

·        any on-boarding fees or other Fees specified on Your Order Form at the times specified on Your Order Form.

Smokeball will not increase the Fees during Your current Subscription Term, except where:

·        Smokeball exercises its right in clause 3 above following an Auto-Renewal;

·        You add Users in accordance with Clause 9 above or change Subscription Tiers in accordance with Clause 10 above;

·        You purchase an Add-on in accordance with clause 11 above; or

·        You are on a Monthly Subscription, in which case Smokeball may increase the Fees at any time on sixty (60) days' notice in writing to You.

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. 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.

15.Taxes & VAT

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 ‘VAT inclusive’, all Fees are exclusive of any applicable VAT.

If a party (Supplier) makes a supply under or in connection with this agreement in respect of which VAT is payable, the recipient of the supply (Recipient) must pay to the Supplier, an additional amount equal to the VAT payable on the supply (VAT 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 VAT.

16. 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.

17. Suspension

Smokeball reserves the right to suspend Your (and Your Related Party Users') access to the Services if:

·        there is a breach of the usage restrictions in clause 8 above; or

·        Your account with Smokeball, or with a Financier with whom You have a Financing Arrangement (as described in clause 16) and who has paid Fees to Smokeball on Your behalf, becomes overdue following the process described below.

Smokeball will provide overdue payment and suspension notifications to the Nominated 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 (and Your Users' and Related Party Users') 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.

18. Termination

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 thirty (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 clause17 and You have not remedied the basis of suspension after thirty (30) days; or if through Your wrongful act or omission You create a risk to the Services or any Smokeball customers that use 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.

19. Cessation of use

If You no longer wish to use the Services, You should provide written notice to Smokeball at least thirty (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 thirty(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 thirty (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 and Related Party Users) continues to have or use any part of the Services, and if requested confirm in writing that this has been completed.

20. Client Data

As between Smokeball and You, You will retain all ownership of all data that You (or any of Your Users or Related Party 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 Client 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.

21. 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.co.uk/security.

22.Feedback

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, and any improvements or developments we make to our services based on such Feedback, shall be exclusively owned by Smokeball.

23. Liability

23.1     Warranty

Smokeball warrants that:  

• it will comply with laws applicable to it as a provider of software subscription services;
• it will use commercially reasonable efforts to keep the Services free of any viruses, malware, or other harmful code; and    
• it has all rights (including intellectual property rights) to permit You to access and use the Services in accordance with this Agreement.

You acknowledge and agree that:

• Smokeball provides 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. All other terms, conditions and warranties, whether express, implied or imposed, are     excluded;
• the Services have 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 Services;
• Smokeball does not guarantee that the Services 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 (and that such systems or infrastructure satisfy the Smokeball System Requirements).

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:

• neither Smokeball nor You shall be liable to the other for any:

 
• 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; or
 
• indirect, incidental, consequential, special, exemplary, or punitive damages,

whether under a theory of contract, warranty, tort (including negligence), 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 (or paid by a Financier on Your behalf) for a one-year period immediately preceding the date the cause of action arose.

23.3     Exception

The exclusion and limitation in clause 23.2 does not apply to limit or exclude liability:

• of a party for death or personal injury caused by its negligence;
• of a party for fraud or fraudulent misrepresentation;
• of Smokeball under the indemnity in clause 23.5 below;
• of You for any act or omission of Your or Your Users which causes Smokeball to be in breach of any law or which breaches the usage restrictions in section 8 above;
• of You for infringement of Smokeball's or a third party's intellectual property rights; or
• of You under the indemnity in clause 20 relating to Client Consents.

23.4     Disclaimer of Legal Advice

The Services 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).

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 Solicitors Regulation Authority in the UK, 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.

23.5     IP infringement claims

If there is an IPR Claim Smokeball will indemnify You against:

• if Smokeball has agreed that You may participate in or conduct the defence of the IPR Claim, Your reasonable costs of investigating and defending the IPR Claim;
• a settlement amount approved by Smokeball and paid by You to settle the IPR Claim; and
• any damages finally awarded against You in the IPR Claim,

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 section8 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 indemnify You in accordance with this clause, grant Smokeball sole control of the defence and settlement of the claim. Smokeball shall have no liability to You under the indemnity in this clause where You have contravened the requirements in this paragraph, and this has prejudiced the defence or 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, Your Users and Related Party 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. Third Party Services

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. To the maximum extent permissible by law, we do not warrant, endorse, or accept any liability for any Interfacing Services.

24.3     Notice and disclaimer

You acknowledge and agree that:

• the Third Party Links and Interfacing Services are offered by third parties that may 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; or
 
• Your purchase of Interfacing Services;

• we may remove or cancel a Third Party Link, or add a new Third Party Link, at any time; and
• an Interfacing Service Provider may terminate, withdraw or cancel an Interfacing Service in accordance with the terms of its agreement with You.

25. Call Recordings

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, subject to applicable laws.  

26. Force Majeure

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.

27. 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.

28. 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 England and the Jurisdiction of the English courts.

29. 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 the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party.

30. 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 Your Order Form. You are responsible for providing Smokeball with any changes or updates to Your contact information.

We will email Your Nominated Contact for important service announcements, including any Service Changes (as described in clause 5above), or changes to the Minimum System Requirements (as described in clause 6above) (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[info@smokeball.co.uk]or such other address notified by Smokeball from time to time.

32. Rights of Third Parties

Except where expressly provided to the contrary in these Terms:

• a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce or to enjoy the benefit of any term of these Terms; and
• the consent of such person is not required to rescind, vary, suspend, enforce, or terminate these Terms, to assign or transfer any rights or obligations under these Terms, or to grant any waiver under or in connection with these Terms, at any time.