Smokestack (“Smokestack”, “we”, “us” or “our”) provides data-driven sales, marketing and audience intelligence technology designed to help businesses understand, engage and grow their audiences.

These Smokestack Terms of Service (“Terms”) apply to any customer who purchases, accesses, licenses or uses Smokestack’s products, platform, data or related services (“Customer”, “you” or “your”).

These Terms become effective from the date you sign up for, purchase or otherwise begin using the Smokestack Services.

Services and permitted use

Smokestack provides products and services that allow Customers to obtain information and insights relating to visitors to Customer websites and other digital properties. This information may include data identifying, or capable of identifying, individual visitors (“Services”).

Customer may use data licensed or made available through the Services only for legitimate marketing, sales, promotional and related business analytics purposes.

Customer must not:

• use the data to determine or inform an individual’s eligibility for employment, credit, insurance, housing or similar decisions;

• use the data for discriminatory, unlawful or other high-risk purposes;

• transfer, sell, sublicense or otherwise provide possession, title or rights to the data to a third party except where expressly permitted under these Terms;

• use the Services or data as a consumer report or for any purpose regulated by the Fair Credit Reporting Act (“FCRA”) or similar legislation.

As part of the Services, Customer may place a Smokestack pixel, tag or similar tracking technology (“Pixel”) on Customer-controlled websites or digital properties. The Pixel may collect information relating to visitors in order to assist Customer in understanding and reaching relevant audiences.

Smokestack grants Customer a limited, non-exclusive, non-transferable, revocable licence to use data provided through the Services in accordance with these Terms.

Customer may only place Smokestack Pixels on websites, applications or digital properties that Customer owns or lawfully controls.

Customer must not deploy the Pixel on websites primarily engaged in pornography or unlawful activity.

Customer may not use the Services in connection with illegal, unlicensed or non-compliant gambling, tobacco or other regulated activities.

Where Customer markets age-restricted or regulated products or services, Customer is responsible for implementing appropriate age-gating and compliance measures. Customer must not knowingly market regulated products or services to minors.

Customer must not use the Services in a manner that violates applicable law, advertising platform requirements or publisher policies.

Any gambling, tobacco or other age-restricted attributes made available through the Services may only be used for lawful marketing to adult audiences where Customer is legally permitted to advertise those products or services.

Certain information made available through Smokestack may consist of modelled, inferred or aggregated marketing indicators. For example, an estimated credit range may represent an area-level or aggregated marketing statistic.

Such information is not a credit score, consumer report or financial account record and is provided solely for marketing and analytics purposes.

Customer must not use this information to make eligibility or adverse-action decisions relating to credit, lending, insurance, housing, employment or similar matters.

The Services may be provisioned based on Customer domain names.

If Customer does not own or lawfully control a domain submitted for use with the Services, Smokestack has no obligation to provide Services in relation to that domain.

Smokestack does not control the availability, registration or renewal of Customer domain names and has no liability relating to Customer’s ownership or use of those domains.

Customer remains responsible for ensuring that its domain names do not infringe third-party rights or violate applicable laws.

For clarity, Customer must not use the Services or data for:

• FCRA or consumer-report purposes;

• lending decisions, underwriting or adverse-action decisions;

• employment screening, hiring decisions or background checks;

• insurance eligibility or pricing;

• housing or tenant screening;

• similar eligibility determinations;

• targeting or marketing to minors.

Customer must not use household-composition attributes, including information indicating the presence of children, for the purpose of targeting children.

Where Customer markets regulated products or services, including gambling or tobacco products, Customer is solely responsible for all age-gating, licensing, advertising and compliance obligations.

Referral and partner programmes

Where Customer participates in a Smokestack referral or partner programme, Customer must comply with the requirements applicable to that programme.

Where required by the applicable programme, Customer must provide sufficient contact information relating to customers or prospective customers introduced to Smokestack so that the referral can be properly identified and administered.

Failure to comply with the relevant referral requirements may result in the referral being ineligible for compensation or Customer being required to transition to another partnership arrangement.

Any transition to a different Smokestack partnership tier may require a separate agreement and may involve additional fees.

Smokestack maintains these requirements to support transparency, accurate referral attribution and the integrity of its partner programmes.

Compliance

Customer must maintain an accurate and legally compliant privacy policy on all websites, mobile applications and other digital properties on which the Services are used.

The privacy policy must comply with all applicable privacy and data protection laws and, where required, explain:

• that tracking technologies such as the Smokestack Pixel are used;

• the types of information collected through those technologies;

• the purposes for which that information may be used;

• how information may be shared with third-party data providers or vendors;

• how individuals can exercise applicable privacy choices or opt-out rights.

Privacy requirements vary significantly between jurisdictions. Customer is responsible for understanding and complying with the requirements that apply to its business and users.

Customer represents and warrants that it will obtain all permissions, notices and consents required by applicable law before using the Services.

Where applicable, Customer’s privacy policy must include wording substantially similar to the following:

Third-party pixels and cookies used when you visit or interact with our website may allow our online data partners or service providers to associate those activities with information that they or others hold about you, which may include information such as your email address or telephone number. We, or service providers acting on our behalf, may use this information to send marketing or other communications. You may opt out by visiting [insert applicable opt-out link].

Customer will use commercially reasonable efforts to prevent unauthorised use of the Services and will promptly terminate or restrict unauthorised access where discovered.

Customer must promptly notify Smokestack of any known or suspected unauthorised use.

CASL compliance

Without limiting Customer’s other obligations under these Terms, Customer is solely responsible for ensuring that any commercial electronic messages it sends, or causes to be sent, to recipients in Canada using the Services or licensed data comply with Canada’s Anti-Spam Legislation (“CASL”).

This includes, where required:

• obtaining valid consent;

• providing prescribed sender identification;

• including legally compliant unsubscribe mechanisms;

• honouring unsubscribe requests;

• maintaining appropriate consent and unsubscribe records.

Use of Canadian data

Where Customer accesses or uses information provided through the Services relating to individuals in Canada, Customer will:

(a) use that information only to engage with individuals in their professional or business capacity, such as through their business email address or office telephone number, rather than in their personal, family or household capacity; and

(b) comply with any additional restrictions applying to Canadian data that Smokestack communicates to Customer from time to time.

Data Processing

This section applies where Smokestack processes personal data on behalf of Customer as a processor or service provider in connection with the Services (“Subscriber Data”).

As between Smokestack and Customer, Customer is the controller of Subscriber Data and Smokestack processes Subscriber Data on Customer’s behalf.

Customer agrees that:

1. Customer will comply with all obligations applicable to it as a controller under applicable privacy and data protection laws (“Data Protection Laws”); and

2. Customer has provided, or will provide, all required notices and has obtained, or will obtain, all permissions, consents and rights necessary for Smokestack to process Subscriber Data and provide the Services.

Smokestack will process Subscriber Data only for the purposes described in these Terms and in accordance with Customer’s lawful instructions.

These Terms constitute Customer’s complete instructions to Smokestack in relation to the processing of Subscriber Data unless the parties agree otherwise in writing.

Roles

Smokestack may act in different capacities depending on the information being processed.

For Subscriber Data provided by Customer, Smokestack generally acts as a processor or service provider on behalf of Customer.

For personal information collected through the Smokestack Pixel, and for licensed data made available through the Services, including visitor-resolution data, Smokestack and its applicable data partners may act as independent controllers, third parties or businesses under applicable privacy laws.

Such information may be compiled from Smokestack’s or its data partners’ own sources and is not necessarily processed solely on Customer’s behalf.

Making personal information available through the Services may constitute a “sale”, “sharing” or similar disclosure of personal information under certain US state privacy laws.

Smokestack maintains appropriate consumer opt-out mechanisms and processes applicable consumer privacy-rights requests as described in the Smokestack Privacy Policy.

Data subjects

For the purposes of these Terms, data subjects may include:

• individuals accessing or using the Services through Customer’s account (“Users”);

• individuals whose email address or other information appears within Customer-uploaded contact or distribution lists;

• individuals whose information is stored within or collected through the Services;

• individuals whom Customer or its Users contact, market to or otherwise communicate with through or using the Services (“End Users”).

Information relating to Customers and Users

Information processed in connection with Customer and its Users may include:

• identification and contact information, including name, business address, title, email address, telephone number and username;

• account and payment information;

• employment information, including employer, job title, location and area of responsibility.

Information relating to End Users

Depending on the Services used and information available, information relating to End Users may include:

• identification and contact information;

• name;

• age or date of birth where lawfully available;

• gender or demographic information;

• occupation;

• address;

• professional title;

• email address;

• telephone number;

• interests and preferences;

• purchase or marketing preferences;

• publicly available social media information;

• IP address;

• website and product usage information;

• cookie and device information;

• navigation information;

• approximate location information;

• browser information;

• other lawfully obtained marketing and audience intelligence data.

Where financial or transactional information is processed as part of Customer’s own use of the Services, such processing will be subject to the applicable payment and privacy requirements.

Operational data

Customer acknowledges that Smokestack may collect, use and disclose technical and operational information relating to the provision, support, security and use of the Services.

This may include usage metrics, service logs, billing records and diagnostic information.

Smokestack may use this information for billing, account administration, technical support, product operation, security, fraud prevention and service improvement.

This does not grant Smokestack a general right to use the substantive content of Subscriber Data for unrelated purposes.

Where operational information constitutes personal information under applicable Data Protection Laws, Smokestack acts as controller of that information and processes it in accordance with these Terms, the Smokestack Privacy Policy and applicable law.

Tracking technologies and consent

Customer acknowledges that Smokestack may use cookies, unique identifiers, Pixels, web beacons and similar technologies (“Tracking Technologies”) in connection with the Services.

Customer is responsible for maintaining any privacy notices, consent mechanisms, opt-in mechanisms and opt-out mechanisms required under applicable Data Protection Laws to allow Smokestack to lawfully deploy Tracking Technologies and collect information from End User devices.

The Smokestack Pixel does not independently determine, evaluate or verify whether legally valid consent has been obtained.

Where consent is required, Customer is responsible for ensuring that its consent-management mechanism operates before the Smokestack Pixel fires.

Customer must ensure that the Pixel is prevented from firing where required consent has been declined or withdrawn.

Subprocessors

Customer agrees that Smokestack may appoint third-party subprocessors to process Subscriber Data in connection with the Services.

Smokestack may update its subprocessors from time to time.

Smokestack will ensure that subprocessors processing Subscriber Data are subject to appropriate contractual and confidentiality obligations.

Security

Customer is responsible for reviewing the information made available by Smokestack regarding its security practices and independently determining whether the Services meet Customer’s security requirements and obligations under applicable law.

Customer acknowledges that security measures evolve in response to technological developments.

Smokestack may update or modify its technical and organisational security measures from time to time, provided those changes do not materially reduce the overall security of the Services.

Any telephone numbers appearing within data made available through the Services may not have been screened against the United States Federal Trade Commission National Do Not Call Registry or other applicable suppression lists.

Customer is solely responsible for undertaking any required Do Not Call, consent, suppression-list or telemarketing compliance checks before using telephone data for marketing or sales purposes.

Customer is responsible for secure use of the Services, including:

• safeguarding account credentials;

• maintaining appropriate access controls;

• securing Subscriber Data during transmission;

• maintaining appropriate backups;

• encrypting Subscriber Data where appropriate;

• ensuring its Users follow reasonable security practices.

Customer responsibility for Subscriber Data

TO THE FULLEST EXTENT PERMITTED BY LAW, SMOKESTACK ACCEPTS NO LIABILITY FOR A BREACH, DISCLOSURE OR LOSS OF SUBSCRIBER DATA TO THE EXTENT CAUSED BY CUSTOMER’S ACTS, OMISSIONS, NEGLIGENCE OR FAILURE TO COMPLY WITH THESE TERMS OR APPLICABLE LAW.

CUSTOMER AGREES TO INDEMNIFY SMOKESTACK AGAINST CLAIMS, PENALTIES, COSTS OR LIABILITIES ARISING FROM CUSTOMER’S FAILURE TO COMPLY WITH ITS DATA-PROTECTION OBLIGATIONS UNDER THESE TERMS OR APPLICABLE LAW.

International processing

Customer acknowledges that Smokestack, its affiliates and its subprocessors may process Subscriber Data in countries other than the country in which Customer is located.

Where required by applicable law, Smokestack will implement appropriate safeguards for international transfers of Subscriber Data.

Confidentiality

Smokestack will ensure that employees, contractors, agents and subprocessors authorised to process Subscriber Data are subject to appropriate confidentiality obligations.

Security incidents

Upon becoming aware of a material security incident affecting Subscriber Data, Smokestack will notify Customer without undue delay where required by applicable law.

Smokestack will provide information relating to the incident as it becomes known and as reasonably necessary for Customer to satisfy its legal obligations.

Subprocessor information

Smokestack will provide an up-to-date list of relevant subprocessors upon written request from Customer.

Return and deletion of Subscriber Data

Upon termination or expiry of the Services, Smokestack will, at Customer’s election and where reasonably practicable, delete or return Subscriber Data in Smokestack’s possession or control.

This requirement does not apply where Smokestack is required by applicable law to retain certain information.

Any retained Subscriber Data will remain subject to appropriate safeguards and will not be processed except where required by law or otherwise permitted under these Terms.

Data subject requests

The Services may provide controls that allow Customer to retrieve, correct, delete, export or restrict Subscriber Data.

Customer may use these controls to assist it in responding to requests made by data subjects or privacy regulators.

Where Customer cannot independently access information required to respond to a valid data protection request, Smokestack may, at Customer’s expense where permitted by law, provide reasonable assistance.

Where Smokestack receives a request directly relating to Subscriber Data for which Customer is the controller, Smokestack will generally refer the request to Customer unless Smokestack is legally required to respond directly.

Law enforcement requests

Where a law enforcement authority requests Subscriber Data from Smokestack, Smokestack may, where appropriate and legally permitted, direct the authority to request the information directly from Customer.

Smokestack may provide Customer’s basic contact information for that purpose.

Where Smokestack is legally compelled to disclose Subscriber Data, Smokestack will provide Customer with reasonable notice where legally permitted so that Customer has an opportunity to seek appropriate legal remedies.

Data protection impact assessments

Where required by applicable Data Protection Laws, Smokestack will, at Customer’s expense where appropriate, provide reasonably requested information regarding the Services to assist Customer in carrying out data protection impact assessments or consultations with data protection authorities.

Subprocessors

Smokestack may use third-party providers for services including cloud hosting, data storage, authentication, communications, analytics, customer support, billing, payment processing, incident management and related infrastructure.

Where applicable to the Smokestack Services, subprocessors may include:

SubprocessorLocationServicesGoogleUSAAuthentication, product analytics and search servicesMicrosoftUSAAuthentication, cloud hosting, databases, email and collaborationAmazon Web ServicesUSADNS, infrastructure and hosting servicesOktaUSAAuthentication servicesHubSpotUSACustomer relationship management and customer supportZohoUSAConsumer opt-out and data-subject request managementSalesforce / SlackUSAInternal communication servicesZoomUSACommunication servicesSakariUSACommunication servicesAtlassianUSAIncident tracking and task managementSnowflakeUSAData warehousingMaxioUSABilling and payment processingWindcaveNew ZealandPayment processingCybersourceUSAPayment processingPayPalUSAPayment processing

Smokestack may add, remove or replace subprocessors as its infrastructure and business requirements change.

Acceptable use

Customer agrees that it will not, and will not permit Users or third parties to, use the Services:

• to violate or encourage the violation of another person’s legal rights;

• for any unlawful, invasive, infringing, defamatory, deceptive or fraudulent purpose;

• to knowingly transmit malware, viruses, worms, Trojan horses, corrupted files, malicious code, hoaxes or other destructive or deceptive material;

• to interfere with the Services or infrastructure used to provide the Services;

• to interfere with another customer’s, reseller’s or authorised user’s access to the Services;

• to alter, disable, interfere with or circumvent security or technical controls;

• to probe, scan, test or reverse-engineer the Services for the purpose of identifying vulnerabilities, defeating restrictions or evading filtering;

• to use data obtained through the Services for credit, insurance, employment, housing, tenant-screening, underwriting or other eligibility decisions;

• to use the Services for unlawful targeting of minors;

• in any manner prohibited by these Terms or applicable law.

Failure to comply with these acceptable-use requirements may result in restriction, suspension or termination of the Services.

Smokestack may impose reasonable usage limits, including limits on outbound communications or data access, where necessary to protect service performance, platform integrity, security, compliance or other users.

Modifications

Smokestack may make commercially reasonable changes to the Services from time to time.

Where a change materially affects the Services, Smokestack will use reasonable efforts to notify Customer.

Smokestack may also update these Terms from time to time by publishing an amended version on the Smokestack website.

Where Smokestack makes a material change to these Terms, Smokestack will provide reasonable notice to Customer.

If a change to these Terms has a material adverse effect on Customer, Customer may terminate the affected Services by providing 30 days’ written notice, subject to any applicable agreement between the parties.

Billing and Payment

Customer may purchase Services under monthly, quarterly, bi-annual, annual or other agreed billing arrangements.

Unless otherwise expressly agreed in writing, subscription and prepaid fees are charged in advance and are non-refundable, including where Customer cancels the Services before the end of a prepaid billing period.

Smokestack may change its published pricing by providing at least 30 days’ notice.

Where Services are charged according to time-based usage, any partial day may be rounded up to a full day for billing purposes where specified in the applicable order or pricing arrangement.

Unless otherwise agreed, fees are payable in US dollars.

Subscription fees are due at the beginning of the applicable billing period and again upon renewal.

Customer authorises Smokestack and its payment providers to charge Customer’s nominated payment method for amounts properly due.

Overdue amounts may accrue interest at a rate of 2.5% per month or the maximum rate permitted by law, whichever is lower.

Customer will be responsible for reasonable collection costs incurred by Smokestack in recovering overdue amounts, including reasonable legal fees where permitted by law.

If Customer fails to pay amounts due within 30 days of the due date, Smokestack may suspend Customer’s access to the Services.

Customer is responsible for all applicable taxes relating to its purchase and use of the Services.

Where Smokestack is required to collect or remit taxes, those taxes may be added to Customer’s invoice.

Except where expressly stated in these Terms or required by applicable law, fees are non-refundable.

Technical Support Services

Customer is responsible, at its own expense, for responding to questions and complaints from Customer’s End Users or third parties relating to Customer’s use of the Services.

Customer should use commercially reasonable efforts to resolve support issues before escalating them to Smokestack.

Where Customer cannot resolve an issue, Customer may escalate it to Smokestack through the support channels made available by Smokestack.

Customer authorises authorised Smokestack technical personnel to access Customer’s account, dashboard and relevant Customer Data where reasonably necessary to investigate and resolve technical, security or support issues.

If Customer becomes aware that one of its Users has breached these Terms, Customer must take appropriate action, which may include suspending that User’s access, and must promptly notify Smokestack where the breach may affect the Services or other users.

Customer is responsible for ensuring its authorised Users comply with these Terms.

Where Smokestack reasonably determines that an emergency security, legal or platform-integrity issue exists, Smokestack may immediately suspend the relevant account, User or access to the Services.

Confidential Information

Each party agrees to protect the other party’s confidential information using at least the same degree of care that it uses to protect its own confidential information of a similar nature.

Neither party will disclose the other party’s confidential information except to employees, contractors, advisers and agents who reasonably need access to that information and who are subject to appropriate confidentiality obligations.

Each party may use confidential information only to exercise its rights and fulfil its obligations under these Terms.

Each party is responsible for breaches of this section caused by persons to whom it provides confidential information.

Confidential information does not include information that:

• was already lawfully known to the receiving party without confidentiality restrictions;

• becomes publicly available through no breach by the receiving party;

• is independently developed without use of the disclosing party’s confidential information; or

• is lawfully received from a third party without confidentiality restrictions.

A party may disclose confidential information where required by law, court order or regulatory authority.

Where legally permitted, the receiving party will use reasonable efforts to notify the disclosing party before making the disclosure and provide an opportunity to challenge or limit it.

Intellectual Property Rights

Smokestack and its licensors retain all rights, title and interest in and to the Services and all related intellectual property.

This includes, without limitation, patents, trademarks, trade names, inventions, discoveries, improvements, processes, methodologies, software, technology, databases, copyrights, database rights, designs, domain names, confidential information, know-how and trade secrets relating to the design, development, operation, support or delivery of the Services.

Except as expressly permitted under these Terms, Customer must not, and must not permit another person to:

• copy, reproduce or create derivative works from the Services;

• alter or modify the Services;

• reverse engineer, reverse assemble, reverse compile or otherwise attempt to derive the source code or underlying technology of the Services;

• remove, alter or obscure trademarks, copyright notices, proprietary legends or other identifying information;

• interfere with or challenge Smokestack’s intellectual property rights;

• use Smokestack intellectual property outside the scope of the rights expressly granted under these Terms.

Nothing in these Terms transfers ownership of Smokestack intellectual property to Customer.

Termination

Either party may terminate or suspend performance under these Terms where the other party materially breaches these Terms and fails to remedy that breach within 30 days after receiving written notice.

Either party may immediately suspend or terminate the Services where:

• the other party ceases business operations;

• the other party becomes subject to insolvency or similar proceedings;

• the other party commits a material breach that cannot reasonably be cured;

• the other party repeatedly breaches these Terms despite previous remedies or warnings.

Upon termination:

1. rights granted by one party to the other under these Terms will cease, except where expressly stated otherwise;

2. Customer’s right to access and use the Services will end;

3. Smokestack may provide Customer with a commercially reasonable period in which to retrieve Customer Data where appropriate and technically feasible.

Where Customer does not wish to renew the Services for a further subscription term, Customer must provide at least seven days’ written notice before the applicable renewal date unless another cancellation period has been agreed in writing.

Indemnification

Customer will indemnify, defend and hold harmless Smokestack and its officers, directors, employees, contractors and affiliates against liabilities, damages, losses, costs and reasonable legal fees arising from a third-party claim relating to:

• Customer Data;

• Customer domain names;

• Customer branding, materials or content infringing a third party’s intellectual property rights;

• Customer’s use of the Services in breach of these Terms;

• Customer’s breach of applicable law;

• Customer’s breach of privacy, data protection, anti-spam, telemarketing or marketing laws, including CASL;

• Customer’s unlawful or unauthorised use of licensed data.

If Smokestack reasonably believes that the Services infringe a third party’s intellectual property rights, Smokestack may, at its discretion:

(a) obtain the right for Customer to continue using the affected Services;

(b) provide a substantially equivalent non-infringing replacement; or

(c) modify the affected Services so they are no longer infringing.

If Smokestack reasonably determines that none of these options is commercially practical, Smokestack may suspend or terminate the affected Services.

Where Smokestack terminates affected prepaid Services solely for this reason, Smokestack will provide a pro-rata refund of prepaid fees relating to the unused period of those affected Services.

Disclaimer

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

SMOKESTACK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

SMOKESTACK DOES NOT WARRANT THAT INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICES WILL BE COMPLETE, ACCURATE OR ERROR-FREE, OR THAT THE SERVICES OR CUSTOMER DATA WILL BE FREE FROM DEFECTS, INTERRUPTIONS, MALICIOUS CODE OR SECURITY VULNERABILITIES.

CUSTOMER ASSUMES RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND DATA ARE APPROPRIATE FOR CUSTOMER’S INTENDED USE.

CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK ASSOCIATED WITH ITS USE OF DATA AND THE SERVICES TO THE EXTENT PERMITTED BY LAW.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, SMOKESTACK WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS FOR LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, LOSS OF GOODWILL OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES.

EXCEPT TO THE EXTENT LIABILITY CANNOT LAWFULLY BE LIMITED, SMOKESTACK’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO SMOKESTACK DURING THE ONE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Miscellaneous

Assignment

Customer may not assign or transfer its rights or obligations under these Terms without Smokestack’s prior written consent.

Force Majeure

Neither party will be liable for delay or failure to perform its obligations to the extent caused by circumstances beyond its reasonable control.

These circumstances may include natural disasters, war, terrorism, civil unrest, industrial action, governmental action, widespread telecommunications failures, internet disruption, power failures or similar events.

No Waiver

Failure by either party to enforce a provision of these Terms does not constitute a waiver of that provision or any other provision.

Severability

If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

No Agency

The parties are independent contractors.

Nothing in these Terms creates a partnership, joint venture, fiduciary relationship, employment relationship or agency between the parties.

Equitable Relief

Nothing in these Terms prevents either party from seeking injunctive, equitable or other urgent relief where appropriate.

Governing Law

These Terms are governed by and construed in accordance with the laws of New Zealand.

The parties submit to the exclusive jurisdiction of the courts of New Zealand in relation to disputes arising from or connected with these Terms or the Services.

Survival

Any provisions which by their nature are intended to survive termination or expiry of these Terms will continue in effect following termination.