Prosperwell – Terms and Conditions
These Terms and Conditions apply to the Smooth Digital Order Form. The Order Form takes precedence over these Terms and Conditions.
Together with the Order Form, these Terms and Conditions form the entire agreement (and supersedes any other agreements, order forms, purchase orders, proposals, written or not) between Smooth Group Limited (company number, 099920839 with registered company address at 20 – 22 Wenlock Rd, London N1 7GU), (“us”, “Smooth Digital” or “we”) and the customer detailed on the Order Form (“you”) for the subscription and use of the Services (the “Agreement”).
In the event of any changes required to these Terms and Conditions, then the parties shall set out the additional terms that are to apply in the Order Form.
Agreed Terms and Conditions:
1.1 Capitalised terms in these Terms and Conditions shall be defined as set out below unless otherwise defined in the Order Form.
2. Commencement and duration
2.1 The Services shall be provided during the Initial Term as set out in the Order Form. The Initial Term automatically renews for additional rolling 2-month periods, until it is terminated in accordance with the Agreement (the “Term”).
3.1 In consideration of payment of the Price (as defined in the Order Form), we agree to provide the Services as set out in the Order Form in accordance with the Agreement. In providing these Services, we shall:
a. exercise reasonable care and skill;
b. act in accordance with good industry practice; and
c. comply with all applicable laws.
3.2 You shall:
a. co-operate with us and act in good faith in all matters relating to the Agreement;
b. provide us with such information, materials, and access to any systems as we may reasonably require to supply the Services and ensure that such information is complete and accurate in all material respects;
c. ensure that any content and information provided on your Website is correct and up to date, and complies with all applicable laws;
d. notify us immediately of any changes to a campaign, Website or business that may affect the Services;
e. not unreasonably withhold any approval or consent we require in the provision of the Services;
f. comply with all applicable laws in relation to your receipt and use of the Services;
h. use your best endeavours to ensure that the Website is free of any bugs, viruses, or other defects that may impact on the Services;
i. keep in force IT security policies to protect against unauthorized access to your Website, databases or other IT systems; and
j. have and maintain all required licences, authorisations, permits, approvals and consents necessary for the proper performance of the Agreement.
4.1 Each party warrants, represents and undertakes that they have the respective authority to enter into this Agreement.
4.2 You warrant that you own the Intellectual Property, or have the necessary permissions, licences, and consents to enable us to use the content you provide us under this Agreement for the Services.
4.3 Notwithstanding anything else in this Agreement, we do not warrant that your use of our Services shall be uninterrupted or error-free.
5.1 Both parties shall keep all Confidential Information secret and confidential and not use or exploit the Confidential Information in any way except for the purposes of effecting any obligations under this Agreement or unless permitted under this clause.
5.2 Each party may disclose Confidential Information to any of its officers, employees, advisers, contractors, and subcontractors that need to know the relevant Confidential Information for the purposes of providing and using the Services, provided that each person complies with the obligations set out in this clause 5.
5.3 Each party may disclose the Confidential Information to the minimum extent required by:
a. doing or saying something required by a court or competent jurisdiction or any regulatory, judicial, governmental, or similar body or taxation authority of competent jurisdiction;
b. reporting a suspected criminal offence to the police or any law enforcement agency; or
c. cooperating with the police or any law enforcement agency regarding a criminal investigation or prosecution.
5.4 The obligations set out in clause 5.1 shall not apply where a recipient can reasonably show that the Confidential Information is or has become generally available to the public (other than as a result of the information being disclosed in breach of this Agreement).
5.5 If requested by a provider of Confidential Information, a recipient of such Confidential Information shall immediately destroy or return any documents and other records of the Confidential Information that has been supplied or generated by the recipient.
5.6 Unless you expressly request otherwise in writing via email to firstname.lastname@example.org, we may announce the fact that you are a customer of Smooth Digital in our marketing materials and website, and which may include using your logo.
6. Payment terms
6.1 Unless otherwise stated in the Order Form or where we receive payment by BACS pursuant to clause 6.3, we shall invoice you on signature of the Order Form and before each subsequent campaign Cycle or monthly renewal period.
6.2 Unless we agree otherwise and in writing, payment for the Services will be made by you by Direct Debit payment within 7 days of receipt of our invoice.
6.3 At our sole discretion, we may accept BACS or an alternative form of payment from you, in which case we shall set out separately the method, amount and dates for when such payments are due.
6.4 VAT shall be payable on all sums due under the Agreement.
6.5 We are entitled to change the Price at any time during the Term, and such change to the Price (“Price Change”) will come into effect 15 business days after we notify you in writing, unless you notify us by email to email@example.com that you do not accept the Price Change. If you do not accept to our Price Change and have notified us in accordance with this clause, the Services shall continue at the same Price however, we reserve the right to terminate this Agreement on 14 days’ written notice.
6.6 Notwithstanding our other rights or remedies under this Agreement, for any overdue sums not paid within 7 days from receipt of an invoice or in accordance with any agreed separate terms, we may suspend the Services until such amounts are paid in full and we reserve the right to charge interest in accordance with the Late Payment of Commercial Debt (Interest) Act 1998 (as amended by the Late Payment of Commercial Debts Regulations 2013/395).
7. Campaign Changes and Pauses
7.1 Any requests for changes to the Services, campaign brief or specified budget for the campaign must be confirmed by both you and us in writing before they are implemented. We may increase the Price or other charges in relation to the Services as a result of your change request. We shall notify you of the impact on any timetable for the Services and changes to the Price or other charges, and we will only carry out the change where you and we have agreed in writing. Where you do not agree, we shall continue to provide the Services as if you had not made any request for a change.
7.2 Depending on the required changes, approved changes may take effect as a new Cycle and are subject to the terms of this Agreement.
7.3 We may pause a campaign at any time for operational reasons and we will use our best endeavours to provide you with reasonable written notice should this occur.
7.4 You may make a written request to pause a campaign, and at our sole discretion, we may agree to implement a pause. During any such suspension period, and unless we agree otherwise and in writing, you will be still required to pay the Management & Optimisation Fee as set out in the Order Form for each week the campaign is suspended for.
7.5 If the applicable campaign is suspended for more than 30 days, you may be required to pay the Set-up Fee again to re-start the campaign.
8.1 Either party may end this Agreement immediately:
a. if the other party breaches any part of this Agreement and does not remedy such breach within 14 days of being given written notice of the breach by the other party; or
b. the other party (i) becomes insolvent, (ii) ceases carrying on a substantial part of their business, or (iii) is deemed unable to pay their debts within the meaning of section 123 of the Insolvency Act 1986.
8.2 Subject to clause 8.3, you may terminate this Agreement for convenience:
a. on not less than 14 days’ written notice to us, where such notice expires on the end of the Initial Term; or
b. on not less than 60 days’ written notice to us, where such notice expires on the end of any subsequent Cycles or monthly renewal periods.
8.3 Where we are providing you with solely live-chat services:
a. you may terminate this Agreement for convenience by giving us at least 2 Cycle’s written notice; and
b. with respect to live chat services based on CPL Budget, if you choose to terminate the Agreement during the Initial Term, you serve us with written notice no later than the date on which you have no less than 50% of billable leads remaining in the final Cycle of the Initial Term.
8.4 If you terminate for convenience in accordance with clause 8.2, any sums paid to us in advance are non-refundable, including any parts of the CPL Budget.
8.5 We may terminate this Agreement for convenience on not less than 14 day’s written notice to you.
8.6 Upon termination, all outstanding unpaid invoices must be paid within 7 days.
8.7 The following provisions shall survive termination of this Agreement: clause 5 (Confidentiality), clause 8 (Termination), clause 10 (Data Protection), clause 11 (Limitation of Liability) clause 14 (Non-Solicit and Non-Interference), Clause 16 (No Automatic Waiver), clause 19 (Severance), clause 20 (Disputes) and clause 21 (Governing Law and Jurisdiction).
9. Intellectual Property
9.1 The Intellectual Property in the content and Website that you own the rights to, will continue to be owned by you.
9.2 You acknowledge and agree that (i) the Intellectual Property in our platform, software, live chat application, reporting suite, and website is owned by us and (ii) the content that we create or load onto the Smooth Digital MCC as part of the Services (including any Google, Bing and/or Facebook campaigns) (“Smooth Content”), shall be owned by us.
9.3 Subject to full payment of the Price, we grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence for the Term of the Agreement to download, modify and use the Smooth Content for receiving and using the Services and for your internal business reference purposes only.
9.4 Where you sign up to use our live chat application (as set out in the Order Form), then you are granted a limited, personal licence to use the live chat application for your business Website only and for the duration set out in the Order Form. The licence may not be transferred or sublicensed to any other party without our written consent. All our rights in the live chat application are reserved in full.
9.5 You grant us a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Term of this Agreement to copy and modify content you own the Intellectual Property to for the purpose of providing the Services and carrying out our obligations under the Agreement.
10. Data Protection
10.1 As part of the Services, we will be using Personal Data for the purpose of providing certain functionalities such as the live chat application and reporting suite.
10.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove, or replace, a party’s obligations or rights under the Data Protection Legislation.
10.3 Both you and we acknowledge that:
a. for the purposes of the Data Protection Legislation, if we process any Personal Data on your behalf when making the Services available to you, then you are the Controller, and we are the Processor in relation to such Personal Data;
b. the data processing particulars in the Order Form sets out the scope, nature, and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject; and
c. the Personal Data may be transferred or stored outside the UK or the country where you are located in order to carry out the Services and our other obligations under this Agreement as set out in the Order Form.
10.4 You shall ensure you have all necessary permissions, consents and lawful basis and comply with applicable Data Protection Legislation in processing the Personal Data and in particular that you have the necessary consents to process any special categories of personal data.
10.5 Without prejudice to the generality of clause 10.1, where we act as a data processor to you, then we shall, in relation to the Personal Data:
a. process that Personal Data only on your documented written instructions (which are to process the Personal Data in order to perform the Services under this Agreement and in accordance with the data processing particulars in the Order Form) unless we are required Data Protection Legislation. Where we are relying on Data Protection Legislation as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by Data Protection Legislation unless the Data Protection Legislation prohibits us from notifying you;
b. ensure that we have in place appropriate technical and organisational measures, which we shall regularly review, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c. not transfer any Personal Data outside of the UK unless appropriate safeguards in relation to the transfer have been put in place;
d. assist you in responding to any request from a data subject in respect of their Personal Data and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
e. notify you without undue delay on becoming aware of a personal data breach (not less than 48 working hours of becoming aware);
f. at your written direction, delete or return personal data and copies thereof to you within 90 days of termination of this Agreement unless required by Data Protection Legislation to store the personal data;
g. submit to audits and inspections in relation to the processing, and provide you with whatever information you need to ensure that we are both meeting our obligations under article 28 of UK GDPR; and
h. maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
10.6 You consent to us appointing the third parties set out in the Order Form as third-party sub-processors of Personal Data under this Agreement. We confirm that we have entered or (as the case may be) will enter with the third-party sub-processor into a written agreement substantially on that third party’s standard terms of business or containing the model clauses and in either case which we confirm reflects and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party sub-processor appointed by us pursuant to this clause 10.
10.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement) or with the model clauses in the event that the United Kingdom does not have a declaration from the EU Commission that it has appropriate measures in place for the processing of personal data.
10.8 We will follow our archiving and security procedures for the Personal Data as set out in our data retention policy, available at: https://www.iubenda.com/privacy-policy/85424053/legal. We will delete Personal Data 90 days after termination and you can request access to this data for download during this period.
10.9 We will promptly notify you in writing of any actual or suspected loss or damage to the Personal Data. In the event of any loss or damage to Personal Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Personal Data from the latest backup of such Personal Data which is maintained by us in accordance with the archiving procedure set out at https://www.iubenda.com/privacy-policy/85424053/legal. We shall not be responsible for any loss, destruction, alteration, or unauthorised access to, or disclosure of Personal Data caused by any third party (except those third parties sub-contracted by us to perform services related to Personal Data maintenance and back-up). This clause 10.9 is without prejudice to the generality of clause 10.1.
11. Limitation of Liability
11.1 We do not guarantee any specific result from the Services we provide.
11.2 To the extent permitted by law, we exclude all liability for any:
a. errors, mistakes or inaccuracies in the content and information you provide us or that we take from your Website;
b. claims relating to infringement of any third party’s Intellectual Property; or
c. bugs, viruses, trojan horses to or the like which may be transmitted on or through the Services by any third-party.
11.3 Subject to clause 11.5, neither party (nor its employees, agents, or sub-contractors) shall be liable under this Agreement in contract, tort (including negligence and breach of statutory duty) for any:
a. loss of profits;
b. loss of sales or business;
c. loss of or damage to goodwill; or
d. indirect or consequential loss.
11.4 Subject to clauses 11.3 and 11.5, each party’s aggregate liability for any other claims in relation to this Agreement shall not exceed the lower of £500,000.00 or 120% of the sums paid to Smooth Digital under this Agreement in the preceding 12-month period.
11.5 Nothing in this Agreement limits liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
12. No partnership or agency
12.1 Nothing in this Agreement is intended to establish any partnership or joint venture between the parties, constitute any party the agent of another party or authorise any party to make or enter into any commitments for or on behalf of any other party,
13.1 Notices required under this Agreement must be given by email to the addresses set out in the Order Form.
14. Non-Solicit and Non-Interference
14.1 You shall not during the Term of this Agreement and the expiry of 12 months after the termination of the Agreement, solicit or entice away from Smooth Digital or employ or attempt to employ any person who is, or has been engaged as an employee, partner, consultant, or subcontractor for us in the provision of the Services.
14.2 In the event of a breach of clause 14.1, we shall be entitled to a sum equivalent of 120% of the then current gross annual remuneration of our employee, partner, consultant, or subcontractor from you, which you acknowledge is a genuine pre-estimate of our losses caused as a result of a breach of this clause 14.
14.3 You acknowledge that we have expended considerable time, effort, training and resources to create valued business relationships and opportunities with respects to our contractors and suppliers. Therefore, during the Term of this Agreement and 6 months afterward, you agree not to: interfere with our relationships with our contractors or our platform and software suppliers, and nor will you compete with our provision of the Services.
15. Assignment & Sub-contracting
15.1 You may not assign, transfer or sub-contract this Agreement without our prior written approval.
15.2 We may at any time and without your consent assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of our rights and obligations under this Agreement.
15.3 In the event that we sub-contract any parts of the Services to third parties, we shall remain responsible for managing such Services. You are not entitled to directly engage with any such third party without our approval.
16. No automatic waiver
16.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17. Third party rights
17.1 No one other than a party to this Agreement, their successors or permitted assignees, shall have any right to enforce any of its terms.
18.1 Any variation to this Agreement is not valid unless agreed in writing by both parties. In writing includes email.
19.1 If any provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
20.1 In the event of any dispute over the performance of the Services, then and prior to commencing any litigation, the parties shall enter good faith discussions to resolve the dispute. The party alleging non-performance shall provide written details of the basis of its dispute with the other party, and the senior representatives of each party shall use their commercial endeavours to resolve the dispute as expeditiously as possible.
21. Applicable law and jurisdiction
21.1 These terms are governed by English law and the courts of England and Wales shall have exclusive jurisdiction to settle any legal proceedings arising out of or in connection with this Agreement.