CONTRACT DETAILS
Commencement date: Is the date of the earliest estimate approved by you for the services
CUSTOMER DETAILS (you, your)
Company name:
Address:
Contact email:
SUPPLIER DETAILS (we, us or our)
Company name: THE SMARTTHING LIMITED (company number: 07016770)
Registered office: Suite 4. 35c Windsor House, Harrogate, HG1 2PW
Contact email: sales@smartthing.org
SERVICE DETAILS
| Services | We shall provide services to you as detailed in our estimate(s) and their associated specification documents. |
| Estimate(s) | |
| Price(s) | As detailed in our estimate(s) and finalised in later issued invoice(s) |
PERFORMANCE DETAILS
| Performance date(s) and times(s) | We will work with you to agree on an appropriate schedule for the delivery of the services. |
| Supplier contact phone number | +44 (0) 20 3322 3051 or +1 (909) 340 3045 |
TERMS AND CONDITIONS
1 ABOUT THESE TERMS
1.1 These terms and conditions (the Terms), including the Contract Details above (together the Contract) set out the terms on which you can purchase our consultancy services (the Services).
1.2 Please read these Terms carefully. These Terms tell you who we are and other important information. They describe how we sell our Services, set out your rights and responsibilities and tell you what to do if there is a problem. These Terms also limit our liability.
1.3 Please note that we reserve the right to update, change or replace any part of these Terms at our sole discretion. However, the Terms which apply to your order will be those in force at the time you submitted your order to us.
1.4 We will collect some personal data about you in order to process your order (e.g. your name, email address, payment details and delivery information).
1.5 If we process personal data on your behalf, you agree to apply the terms of the data processing addendum available at http://www.smartthing.com/dpa/ (“DPA”), which are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to this Agreement shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and any of their Appendices.
1.6 These Terms cover the terms and conditions if you purchase Services whether over the phone, via our websites or via email. For information regarding access to and use of our websites, please see our Terms and Conditions in the footer of our main website: http://smartthing.org.
2 WHO ARE WE?
2.1 We are THE SMARTTHING LIMITED, registered in England and Wales with company number 07016770 whose registered address is Suite 4. 35c Windsor House, Harrogate, HG1 2PW. Our VAT number is GB783080228.
2.2 We are a company providing software and consultancy services to businesses.
2.3 If you have any questions about this Contract, please contact us using the details below:
- Email: sales@smartthing.org
3 PERFORMANCE OF THE SERVICES
3.1 We will perform the Services in accordance with the terms of this Contract, including to meet the terms set out in the Contract Details (in particular, the Service Details and Performance Details).
3.2 The Services performed by us will conform to their description. This description will either be set out in the Contract Details above or, if required, (for example, where we need to provide a more detailed description) provided to you separately in writing.
3.3 We will provide the Services using reasonable care and skill.
3.4 If we have agreed to perform our Services to you based on information provided by you, you are responsible for ensuring that the information you provide is correct.
3.5 While we make every effort to perform our Services to you on the performance dates and times set out in the Contract Details or as soon as reasonably possible, the time of performance is not guaranteed.
3.6 Sometimes we are prevented from performing the Services because of something outside of our control. If there might be a delay before we can start or restart the Services, we will email you to let you know as soon as reasonably possible. However, we are not liable to you for any losses you incur as a result of any delay caused by circumstances beyond our reasonable control (for example, but not limited to, severe weather, accidents or unpredictable traffic delays).
3.7 All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Contract whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.
4 PRICE AND PAYMENT
4.1 The price for our Services will be shown in the Contract Details at the start of this Contract (the Price). Our invoices detail the price for the Services and any associated taxes due.
4.2 We will charge the Price to you via the payment method we have agreed with you in writing. All amounts due must be paid in full in advance. All credit card and debit card payments need to be authorised by the relevant card issuer.
4.3 If you are purchasing our Services as a business customer, you may set up an invoice account with us. Your invoice will be sent to the email address you provided when you placed your order and must be paid by you within 30 days of receipt.
4.4 Where you fail to pay our invoice in accordance with clause 4.3, we shall be entitled to:
4.4.1 charge interest on any balance outstanding at the rate of 4% per year above the Bank of England’s base rate (or where the Bank of England’s base rate is less than 0%, interest shall be charged at 4% per year); and
4.4.2 suspend all or part of the Services until payment has been made in full.
5 IF THE SERVICES DO NOT MEET THEIR DESCRIPTIONS
5.1 Where the Services do not meet their descriptions:
5.1.1 you must notify us in writing within 14 days of receiving the Services and any deliverables setting out the nature and extent of the faults or defects; and
5.1.1 we shall, at our option, remedy the fault with the Services or refund (in whole or in part) the Price you have paid for the Services.
6 YOUR OBLIGATIONS AND RESTRICTIONS
6.1 You agree that:
6.1.1 you will pay the Price for the Services;
6.1.2 you will provide complete and accurate information when placing an order;
6.1.3 you will comply with this Contract, and any other documents referred to in it, when placing an order for Services; and
6.1.4 in reading and accepting this Contract, you are aware of and understand your rights and responsibilities, and if you are not sure, you have contacted us for more information.
6.2 You shall, without limitation, and as we reasonably deem necessary and applicable to allow us to perform Services:
6.2.1 grant us access and provide us with access the Services Location, including any equipment, systems and facilities;
6.2.2 provide us with information, data and access to staff members;
6.2.3 make decisions that we reasonably request about the performance of the Services and provide us with instructions in a timely fashion.
6.3 You understand that we are not liable for any delay or failure to provide the Services which arises as a result of your failure to comply with this clause 6.
6.4 You agree to apply the terms of the service level agreement (“SLA”) to the delivery of this Agreement. The SLA is available at http://www.smartthing.com/sla. The terms therein are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses attached to the SLA, your agreeing to this Agreement shall be treated as signing of the SLA, including, without limitation, the Standard Contractual Clauses and any of their Appendices.
6.5 You agree to apply the terms of the software license agreement (“License”) to the delivery of this Agreement. The License is available at http://www.smartthing.com/license. The terms therein are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses attached to the License, your agreeing to this Agreement shall be treated as signing of the License, including, without limitation, the Standard Contractual Clauses and any of their Appendices.
7 OUR INTELLECTUAL PROPERTY RIGHTS
7.1 You agree that we and our licensors own all Intellectual Property Rights in the Services and deliverables we provide. This Contract does not grant you any rights to any Intellectual Property Rights in the Services or in the deliverables.
7.2 To the extent that you acquire any Intellectual Property Rights in the Services you will, on our written demand, assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to us. You shall execute all such documents and do such things as we may consider necessary to give effect to this clause 7.2 at your own cost.
7.3 You must not use our trademarks or our tradenames on your website or in any marketing materials without our express written consent.
7.4 For the purpose of this clause 7, Intellectual Property Rights means copyright, patents, rights in confidential information, know-how, trade secrets, trademarks, trade names, design rights, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case:
(a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and wherever existing.
8 CONFIDENTIALITY
8.1 Each party undertakes that it will not at any time during this Contract, and for a period of 3 years after termination of this Contract, disclose to any person any Confidential Information belonging to the other party except as permitted in the following clause.
8.2 Each party may disclose the other party’s Confidential Information:
8.2.1 to those of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information are aware of that party’s obligations under this clause 8; and
8.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 The restrictions in clause 8.1 will not apply to such information that:
8.3.1 is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge, in each case other than by breach of this Contract; or
8.3.2 subsequently comes lawfully into the possession of such party from a third party.
8.4 Neither of the parties shall use any of the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
8.5 For the purpose of this clause 8, Confidential Information means all data or information (whether technical, commercial, financial or of any other type) in any form acquired under, pursuant to or in connection with, this Contract and any information used in or relating to the business of the parties (including information relating to the parties’ products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs), and which are for the time being confidential to the disclosing party.
9 OUR LIABILITY TO YOU
9.1 We are not liable to you for any losses you incur where the Services are delayed or cannot be performed because:
9.1.1 you fail to make information available to us or fail to provide us with adequate instructions or information to allow us to perform the Services; or
9.1.2 you fail to make the location available to us or fail to prepare the location as required for us to provide the Services, or fail to provide us with adequate instructions or information to allow us to perform the Services.
9.2 We are not liable to you for any loss or damage that was not foreseeable, any loss or damage not caused by our breach or negligence, or any business loss or damage. If we are affected by an unforeseeable event, we will promptly write to you to let you know if this means we are unable to fulfil the Contract.
9.3 Nothing in these terms excludes or limits our liability for any death or personal injury caused by our negligence, liability for fraud or fraudulent misrepresentation, or any other liability that the law does not allow us to exclude or limit.
9.4 Subject to the below, our liability under or in connection with these terms (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) will not exceed the price for the Services paid by you.
9.5 We will not be liable to you under or in connection with these terms (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) for:
9.5.1 consequential, indirect or special losses; or
9.5.2 any of the following (whether direct or indirect):
9.5.3 loss of profit;
9.5.4 loss or corruption of data;
9.5.5 loss or corruption of software or systems;
9.5.6 loss or damage to equipment;
9.5.7 loss of use;
9.5.8 loss of opportunity;
9.5.9 loss of savings, discount or rebate (whether actual or anticipated); or
9.5.10 harm to reputation or loss of goodwill.
10 TERM AND TERMINATION
10.1 This Contract shall start on the date it is signed by both parties (and we shall provide the Services from the Commencement Date) and shall continue until:
10.1.1 all Services have been delivered as per the Contract Details and the Price for the Services has been paid in full, in which case the Contract shall expire;
10.1.2 the Contract is terminated in accordance with clause 5; or
10.1.3 we exercise our right to end the Contract under clause 10.2.
Our right to end the Contract
10.2 We may terminate this Contract at any time by contacting you in writing if:
10.2.1 you commit a serious breach of this Contract;
10.2.2 you do or take part in anything illegal when purchasing our Services; or
10.2.3 you fail to pay any amount due under this Contract.
If you are a business customer:
10.2.4 you are unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986) or you become insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of your business (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with your creditors generally or any analogous event occurs in any applicable jurisdiction; or
10.2.5 you cease or suspend, or threaten to cease or suspend, the carrying on of any part of your business.
10.3 You can cancel your order under clause 5.
10.4 Our rights to terminate this Contract do not affect any of your rights.
11 FEEDBACK AND COMPLAINTS
11.1 We welcome any feedback about our Services. We hope that you are satisfied with any purchase you make with us, and we are always keen to hear about ways to improve our Services. If you have any comments, please let one of our sales staff know, or submit these to support@smartthing.org.
11.2 If you do have any complaints, please let one of our sales staff know.
12 GENERAL
12.1 Interpretation of this Contract: In this Contract:
12.1.1 a person means an individual, a firm or a company (whether or not having a separate legal identity from its members or owners);
12.1.2 clause, schedule and paragraph headings shall not affect the interpretation of this Contract;
12.1.3 references to statutes, regulations or other legislation or enactments referenced herein shall be deemed to be references to that enactment as amended, supplemented, re-enacted or replaced from time to time;
12.1.4 the words include, including and similar words or expressions will not limit the meaning of the words that come before them;
12.1.5 reference to writing or written includes email but not any other form of electronic communication; and
12.1.6 each of the parties shall be referred to as a party or together, the parties.
12.2 Costs: Each party is responsible for its legal and other costs in relation to the preparation and performance of this Contract.
12.3 Survival of terms: The parties intend the following terms to survive termination:
- Clause 4
- Clause 5
- Clause 7
- Clause 9
- Clause 10
- Clause 8
- Clause 12
and all clauses required for their interpretation.
12.4 Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
12.5 Third party rights: For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
12.6 Assignment and other dealings: No party may assign, subcontract or encumber any right or obligation under this Contract, in whole or in part, without the other party’s prior written consent or except as expressly permitted in this Contract.
12.7 Entire agreement: this Contract, and any document referred to in it, contains the whole contract between the parties relating to its subject matter and supersedes any prior contracts, representations or understandings between them unless expressly referred to in this Contract. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not covered in this Contract. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
12.8 Variation: No amendment or variation of this Contract will be valid unless agreed in writing by an authorised signatory of each party.
12.9 Severability: If any clause in this Contract (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Contract as soon as possible.
12.10 Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.11 Notices: Notices under this Contract must be in writing and sent to the other party’s address or email address, as set out in the Contract Details above. Letters sent in the United Kingdom will be deemed delivered 3 business days (excluding English Bank Holidays), after sending. Emails will be deemed delivered the same day (or the next business day, if sent on a non-business day or after 5pm on any business day at the recipient’s location).
12.12 Counterparts: This Contract may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same contract. The Contract may be signed electronically.
12.13 Governing law and jurisdiction: This Contract is governed by the law of England and Wales. All disputes under this Contract will be subject to the exclusive jurisdiction of the courts of England and Wales.
Please sign to indicate that you understand and agree to the terms of this consultancy services agreement. This consultancy services agreement will come into effect on the date that it is signed by both parties.
Signed for and on behalf of THE SMARTTHING LIMITED
Warren Sherliker
CEO and Founder
THE SMARTTHING LIMITED
Signed for and on behalf of THE CUSTOMER
Signature:
Name:
Job title/Role:
Company:
