SMILE Terms and Conditions
Last Updated: April 2017
Definitions and Interpretation in this Agreement:
- “SMILE” or “The Company” is We are SMILE Ltd.
- “The Client” means the client receiving the Services as defined by the Project Scope.
- “Agreement” means the binding contract, created by the Client’s acceptance of the quote, comprising these written terms and conditions and the quote.
- “Price” means the price payable for the Services, as set out in the quote.
- “Services” means the services to be provided by SMILE pursuant to the quote.
- “Project Scope” is the work that needs to take place, or result with the specified features and functions. If requirements are too subjective or are not completely defined and described, amendments will be inevitable, which will change the scope of the project. This is usually determined at the discovery phase of a project. All projects have 3 constraints and one constraint cannot be changed without affecting the other two:
- Time to complete
- “Change Control” is a document that outlines proposed changes to the Project Scope, the impact of the change with decision and allocation details. This document will be agreed upon by both SMILE and the Client.
- A binding contract shall be formed when the Client has indicated its intention to commission SMILE, by a written notice of acceptance to SMILE (signing this document).
- By accepting SMILE’s quote for Services, the Client shall be deemed to have accepted the terms and conditions of this Agreement, which shall govern the purchase of all Services.
- Both The Client and SMILE may not unfairly or unjustly withhold or delay agreement from Change Control.
- SMILE shall provide Services, design and products, to the client as set out in the Project Scope hereto and upon the terms set out in this agreement.
- Orders may be accepted by SMILE by telephone, followed up with a written confirmation and duly signed purchase order.
- The Client may be required to pay a deposit before any work can commence.
- Any service delivered to the Client that is found not to comply with the Project Scope will be replaced at no extra charge.
- Proofs of all work will be submitted to the Client for approval. SMILE shall incur no liability for any errors not corrected by the Client in the proofs.
- Notwithstanding clause 4.1, following delivery the client should review the service and ensure that it complies with the Project Scope. In the event that it does not comply with the agreed Project Scope, the Client shall provide written notice of the same within 30 days of delivery of the service.
- SMILE shall not be liable for delay or failure in the delivery of the product arising from events beyond its reasonable control or due to the failure or late delivery by the client to provide such information as set out in the Project Scope.
- Contacts at the Company may be added to the online systems including the SMILE Mailing List for ongoing communication.
Hosting and Support
- We reserve the right to refuse to develop on, or deploy to, any server other than those procured by SMILE.
- SMILE does not host any work on internal servers and all work is hosted on trusted 3rd party servers. We cannot take responsibility for mistakes made by the 3rd party. However, as part of our support packages, we will manage any problems for you.
- Hosting and/or Support can be paid for annually or monthly. Hosting/Support fees are non-refundable. Please note, that if your hosting is suspended or revoked, you will not receive a refund.
- Unless otherwise agreed in writing, SMILE’s invoices must be paid in full within 30 days of the invoice date unless stated otherwise.
- Late Payments will result in the following:
- recovery of time and/or costs incurred chasing the payment.
- late payment fees.
- immediate suspension of support, maintenance and hosting.
- If the Client has approved a quotation given by SMILE and later SMILE has reason to believe that the actual Price will or may exceed the estimate, SMILE shall immediately advise the Client using Change Control.
- VAT is chargeable on all Services at the current rate. Any items exempt from VAT will carry the * symbol.
- SMILE reserve the right to invoice you for work done to date at any point during the project once agreed via Change Control.
Intellectual property rights
- The Company agrees that all property, copyright and other intellectual property rights in the design Service, shall be assigned to the Client in the event that the Client pays the sum of £560 (ex VAT) or 2% of the cost of IP creation – whichever is greater – in addition to any other costs.
- This does not include derived or licensed works whereby the sale of IP is non-transferable or not permitted.
- SMILE may use any media or design produced by SMILE in its portfolio physically or digitally.
- SMILE may include a credit on the website.
- The Client and SMILE acknowledge that it may receive or otherwise become aware of confidential information relating to the other party (“Confidential Information”). The Client and SMILE agree to keep all Confidential Information confidential at all times and undertake not to use or disclose such Confidential Information other than for the sole purpose of delivering the agreed Services.
- This Clause 7 shall not preclude the disclosure of SMILE’s or the Client’s Confidential Information which:
- is in or falls into the public domain or
- must be disclosed by law.
- SMILE may talk freely about its involvement in the project.
Representation and Warranties
- SMILE represents and warrants to the Client that:
- The product (other than any part provided by the Client) will be SMILE’s original work, or consist of material owned by third parties for which SMILE has obtained all necessary consents or materials in the public domain and will not infringe upon the copyright or any other right of any person or company;
- SMILE has the full power and authority to enter into and perform this Agreement.
- The client represents and warrants to SMILE that:
- none of the contents and materials provided to SMILE by the Client for inclusion in the Project will infringe any copyright or other right of any person or company, and that all necessary rights and permissions, with respect to the use of such contents and materials in connection with the Products and the Project.
- the Client has the full power and authority to enter into and perform this Agreement.
- With respect to any breach by either party of any of the foregoing warranties, the breaching party hereby indemnifies the other party against any loss or damage (including reasonable legal costs) incurred by reason of such breach.
Liability and insurance
- The Client shall be liable for and shall indemnify SMILE against any and all claims, actions, liabilities, losses, damages or expenses (including legal expenses) incurred by SMILE which arise out of or in connection with, directly or indirectly, the Client's performance under this Agreement, including without limitation any losses, damages or expenses arising out of or in connection with:
- any infringement or alleged infringement of any intellectual property rights caused by the use of any Services; and
- any claim made against SMILE in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Services and/or the Client's use of the Services.
- Subject to any separately expressed contractual terms and conditions of this Agreement, in no event shall The Client or SMILE be liable to the other party for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
- Each of the parties hereto agrees to give notice forthwith to the other upon becoming Aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
- If a default due to an Event of Force Majeure shall continue for more than 4 weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of an Event of Force Majeure.
- We want a smooth running project as much as you do, but we want to be prepared for every outcome. Your happiness is at the center of everything we do, so if you ever find yourself concerned with how your project is running, we want to know so we can put it right. That’s why we have a traffic light system for airing concerns:
- Green Light Meeting: You’ve got evidenced concerns about the project, but work can still take place until this meeting. We’ll discuss your concerns and address them head on, in the meeting we’ll look at what we’ll do to put it right. We’ll make those changes to get the project back on the right path.
- Amber Light Meeting: Since you last raised your concerns, you’ve given us the right amount of time to make our changes but you feel that the same issues have not been addressed, and you have evidence of this. Work will halt on the project in order to discuss the issues. We’ll discuss your concerns, find a different approach and address them head on again, in the meeting we’ll look at what we’ll do to put it right. We’ll make those changes to get the project back on the right path.
- Red Light Meeting: At this point, you don’t feel that you’re left with any other option but to cancel the project. We’ll all meet up to discuss why we’ve not addressed your concerns correctly, and see if the situation is recoverable. If we think it is, we will offer to do so, but you are not obligated to take us up on this. Alternatively you may choose to terminate this Agreement (see Term and Termination). It is likely that we’ll need to arrange a further meeting to discuss any handover options and a settlement fee.
- You must move through the meetings (12.1.1, 12.1.2, 12.1.3, sequentially, and you cannot skip meetings. We enforce this so that you can’t bottle up issues to a point where it is not recoverable. Calling these meetings is very serious, and we’ll respect them as such.
Term and Termination
- If the escalation procedure (clause 12) has been followed and the outcome of a Red Light Meeting is to terminate, then a contract may be terminated at any time through a separate letter which must be signed by both parties.
- If the client decides to conclude business with SMILE:
- all hours to date, plus a fee equal to one day's work or 50% of the remaining hours that were expected to be completed on the project (whichever is greater), shall be payable upon production of an invoice by SMILE.
- any advances or preliminary payments will be considered as a rejection fee.
- ownership of all copyrights shall be retained by SMILE.
- SMILE or The Client may terminate this Agreement forthwith upon written notice in the event of:
- any material or persistent breach of this Agreement by the Client or SMILE which breach is not remedied (if remediable) within 30 days after the service of written notice requiring the same; or
- the Client or SMILE becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt. and licenses have been obtained
- Upon termination of this Agreement for any reason, the Client or SMILE shall immediately deliver to, or otherwise dispose of as directed by SMILE or the Client, any and all materials and property in its possession, custody or control belonging or relating to SMILE or the Client.
- The terms of and obligations imposed by Clauses 6 and 7 shall survive the variation or termination of this Agreement for any reason.