Introduction These terms apply to all Services that we (Smile Tactics) provide to you anytime, whether now or in the future. In the case of conflict between these terms and the provisions in any other agreements or documents relating to the Services, these terms shall apply and shall be paramount and supersede the conflicting provisions.Terms referring to website development services are intended for projects where Smile Tactics is responsible for services pertaining to the delivery and/or hosting of website design and development services only.
Services If we provide you with the following Services then:
Consulting, Administration and Implementation Services
We shall agree with you upon a Terms of Reference detailing the proposed Consulting, Administration and Implementation Services.
You agree to make information and resources available to us in a timely manner so that we can also fulfil our obligations to you under the Terms of Reference in a timely and efficient manner.
We will use our reasonable endeavours to deliver the Consulting, Administration and Implementation Services to you in accordance with the Terms of Reference.
The Terms of Reference is based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the cost of the Terms of Reference may change (see clause 3).
When the Terms of Reference is agreed and signed or accepted online by you it shall be deemed to be a complete statement of all of your requirements as at the date of signing or online acceptance. If your requirements should change following the date of signing or online acceptance of the Terms of Reference, we will then follow the process outlined in clause 3.
Software and Hosting Services
We will provide access to the Software and Hosting Services you have selected in the Terms of Reference and you will be billed the Subscription Fee applicable for the provision of the Software and Hosting Services. You will not be billed for the Software and Hosting Services until the Completion Date. It is important to understand that you will be billed for the Software and Hosting Services from the Completion Date, which may be earlier than your 'go-live' or 'website launch' date.
We will aim to provide you with consistent and reliable Software and Hosting Services. We use professional data centres and hosting facilities but we are dependent on services provided by our suppliers (including, but not limited to, our Carriers) and cannot guarantee there will be no interruptions to our Software and Hosting Services. When access to your Website or the Software and Hosting Services is disrupted, we will use our reasonable endeavours to reinstate the Software and Hosting Services as soon as possible. We employ a variety of monitoring systems to detect major interruptions to service. If a major interruption is detected by our monitoring systems our network engineers are immediately notified so that they can take appropriate action.
We will deliver the Software and Hosting Services to you in whatever way we deem to be most appropriate. We can at our sole discretion (and at any time) choose to change Carriers or any other suppliers.
Subject to any limitations in the Terms of Reference, you may choose to change the Software and Hosting Services by requesting the change in writing and we will action your request as soon as we are reasonably able to. Any change to the Subscription Fee for the Software and Hosting Services will take effect on the day we notify you that the changed Software and Hosting Services are available for your use.
We reserve the right to remove or change any Software and Hosting Services we may have offered from time to time and either replace them with new Services or move you on to the most similar or suitable Software and Hosting Service then on offer to our customers. If we do remove or change a Software and Hosting Service that affects you, we will give you as much notice as is practically possible but, in any case, not less than 30 days' notice.
Additional Services You agree that the provision of any Additional Services will also be subject to these terms.
Third Party Providers Products and Services On occasion, subject always to clause 5(v)-(vii) (inclusive) below, we may recommend you to purchase products and services from Third Party Providers. Where we do so, we may receive commissions from the Third Party Providers for recommending their products or services to you.
Project Changes
The scope of a website or IT project and the priorities associated with the different aspects of the project will often continue to evolve as the project progresses, problems are encountered and refinements are identified (“Project Variation”). This occurs due to a number of factors including (but not limited to) a refinement in your or our understanding of your expectations, a change in your objectives, an unforeseen circumstance, or an extension or a reduction in the scope of the project. This is a natural and expected occurrence in any website or IT project and is not due to the fault of any particular person. Our team will therefore work in a flexible and collaborative manner with you during the course of the project so that you can participate and provide your feedback and make necessary decisions to progress the project, including making any modifications or adjustments. If this happens, it may be necessary to vary the Terms of Reference or the Estimated Budget. However, for the purposes of expediency and efficiency, you are deemed to have approved, without the need for us to obtain any written approval or confirmation from you and you waive the need for any such written approval or confirmation, any costs incurred or to be incurred by us in carrying out any Project Variation where such costs do not exceed one (1) hour in time or five percent (5%) of the Estimated Budget (whichever is greater).
Testing & Bug Fixing
Initial Testing & Bug Fixing Testing and bug fixing is an integral and vital part of any Customisation. The existence of bugs is a natural and normal occurrence within any website or software development process, and is not due to deficiencies or inefficiency in our systems or processes. It is not cost-effective to develop software without any bugs, or to detect and fix all bugs as part of the initial testing and bugfixing process. Some bugs will surface and be fixed during the initial testing and bug fixing process. Depending on the level of refinement that you may require and the amount of cost that you are prepared to incur, we recommend that you only fix those bugs that will critically impact on the performance of the Customisation and are cost-effective to fix. We normally recommend as a rule of thumb to reserve 20% of the Estimated Budget for initial testing and bug fixing. However, the amount reserved may not be adequate due to a number of reasons, for example, if, as a result of changes made to the project, as described in clause 3 above. In that case, the Estimated Budget will be varied accordingly.
Ongoing Bug Fixing Bugs may also continue to surface from time to time in any Customisation due to various reasons such as changes to web browsers, devices or third party APIs (Application Programming Interfaces) which may interfere with the effective functioning of a Customisation, or the way you use a Customisation may expose weaknesses that weren’t previously apparent, and other Customisations to the Website may conflict with existing ones. In all cases you will need to pay to fix these bugs if you deem it to be cost-effective and necessary to do so.
Warranties
Subject always to paragraphs (iii) and (iv) of this clause, we warrant that we will provide all our Services with the care and skill that can be expected from a competent marketer and website designer.
Subject always to paragraphs (iii) and (iv) below, if we supply you with a Website, we also warrant that for 30 days from the Completion Date (“Warranty Period”) the Website will conform to the Terms of Reference. If this warranty is breached within the Warranty Period we will bring the Website into conformity with the Terms of Reference at our cost.
The warranties referred to in paragraphs (i) and (ii) above shall not apply:
to any deviation attributable to, or caused directly or indirectly by, your negligence, misuse, or any alteration and/or modification made by you and/or any third party to the Website that we have not permitted in writing; or
to the inability or failure of the Website to perform or function in conformity with the Terms of Reference where such inability or failure is attributable to, or caused directly or indirectly by, your negligence, misuse, or any alteration and/or modification made by you and/or any third party to the Website that we have not permitted in writing; or
to any open source platform, framework, or library (for example WordPress, Drupal, Magento etc) used or incorporated in the Website including any open source plugins; or
if you move the hosting of the Website from us to another hosting provider during the Warranty Period or at any time after the Completion Date (as applicable).
We do not warrant that the Website will:
be completely free of defect or error (commonly referred to as ‘bugs’); or
be completely secure; or
work on all devices, screen resolutions, internet browsers and operating systems.
Except as expressly stated in these terms, all conditions and warranties, express or implied, are excluded to the maximum allowed by law.
Also, if we recommend that you use a Third Party Provider's products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you. For the avoidance of doubt, this includes (for example) the use of any automatic credit card transaction process facility or payment gateway, website system or plugin or add-on, content management system or plugin or add-on, ecommerce system or plugin or add-on, accounting system or plugin or add-on, inventory management software or add-on or plugin, point of sale (POS) system or plugin or add-on, retail management system or add-on or plugin, customer relationship management (CRM) system or plugin or add-on, intranet system or plugin or add-on, document management system or plugin or add-on, or file storage system or plugin or add-on.
Where you have purchased products or services to be provided by other Third Party Providers, the terms of those Third Party Providers shall apply to their products and services.
It is also your responsibility to observe and comply with all relevant legislation and regulations including, but not limited to, any applicable taxation regulations and accounting principles when using any of our Services or a Third Party Provider's products or services. In particular, and by way of examples only, when using any Third Party Provider's accounting software, inventory management software, point of sale (POS) system, or retail management system, it is your responsibility to seek the appropriate accounting, business or financial advice from your own accountant, business or financial adviser (as the case may be). It is also your sole responsibility to determine the suitability or fitness for any particular purpose of any of our Services or any Third Party Provider's products or services. We do not provide any accounting or financial advice, and any recommendation by us to use any of our Services or any Third Party Provider's products or services should not be construed as the provision of accounting or financial advice by us.
Your Responsibilities
It is your responsibility to:
promptly provide, all the information, assistance and approvals that we may reasonably require so that we can operate our business efficiently and profitably and fulfil our obligations to you under the Terms of Reference in a timely and efficient manner. In particular, you must respond to any request from us to:
provide any information or any additional information; or
provide your feedback on matters specified in our request; or
provide your approval to proceed to the next immediately following stage of your project; and
in each case, within the time frame stipulated in the request or, if no time frame is specified, within seven (7) days (time being of the essence); and
maintain backup data necessary to replace any of your data that is lost or damaged from any cause; and
obtain, and if required pay for, any consents and licenses required for you or us to incorporate third-party materials in the Website; and
follow any instructions provided by us in respect of the Website and/or the Services and ensure that your employees, agents and contractors who use the Website and the Services also meet your responsibilities under these terms when using the Website and/or the Services; and
keep strictly confidential any password and log-on we give you for access to the administration functions of the Website.
If you fail to respond promptly to our requests in accordance with clause 6(i)(a) then (without affecting our rights under clause 13(iv)(f)) we may, but are not obligated to, proceed to the next immediately following stage of your project in order that we can complete our work and deliver your project in a cost-efficient and timely manner.
You confirm that all data, images, video, presentations, files, documents, animations, software and other information or content you supply to us or place on your Website (“Your Materials”):
are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and
will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Terms of Reference, to infringe upon any person's Intellectual Property including, but not limited to, any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993.
In order to reduce fraud and to protect sensitive credit card information, you agree that you will not store credit card details and will only process credit card transactions using systems that are PCI DSS compliant (visit http://www.pcisecuritystandards.org for more information) and that are authorised by us or your banking institution.
This clause applies where you have requested and require us to access and/or extract some or all of the content and/or data from your existing information assets including, but not limited to, your website, Google account, Microsoft account, YouTube account, Facebook account, LinkedIn account, Apple account, or any other database or account and to incorporate such content and/or data into any new website, online account, or database that we are building for you, redesigning for you, or setting up for you. For the purpose of carrying out the tasks described in the foregoing, you have given (or will give us) the relevant details and access rights to access your information assets. By giving us the relevant details and access rights to your existing information assets you warrant and undertake that:
you are the legal owner of your existing information assets and their contents and data, including all Intellectual Property Rights in or relating to the contents and data;
you have full and unfettered rights to deal with your existing information assets and their contents and data;
you unequivocally authorise and empower us (including our employees and contractors) to access your existing information assets:
to use, transfer and/or upload, in accordance with your instructions, all or part of the contents and/or data of your existing information assets to your website, online account or database that we are building, redesigning or setting up for you;
to use, extract and/or copy, in accordance with your instructions, all or part of the contents or data of your existing information assets including, without limitation, your product and service information, your company overview, your customer database, and your analytics and performance metrics; and
you will indemnify us against any claims, demands, proceedings (including all legal costs arising therefrom on a full indemnity basis) that may be made against us by any third party for alleged unauthorised access to your existing information assets, unauthorised use, extraction or copying of the contents or data of your existing information assets or for infringement of such third party's Intellectual Property Rights in or relating to your existing information assets contents or data.
Intellectual Property
We need to be able to use our code (including, but not limited to, any Customisation code), website interfaces, layouts and templates for more than one client. Therefore, except for any Intellectual Property in Your Materials and any Content Materials, we and our suppliers own all Intellectual Property in the Website (including, but not limited to, any code, the user and administration interfaces, measurement, administration and tracking tools) and all new Intellectual Property (if any) developed or created by us, our agents, employees and contractors in connection with the Services including, but not limited to, elements (in source and object code) which form part of the generic functionality of the Website or elements (in source and object code) which implement visual features or the layouts of the Website (including, but not limited to, the Content Materials) (collectively, “Smile Tactics' IP”).
Provided you meet your payment obligations for the Consulting, Administration and Implementation Services you are granted a personal, non-exclusive, non-transferable license to use Smile Tactics' IP for the term of and in the manner anticipated in the Terms of Reference. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Terms of Reference. However, unless we have expressly agreed otherwise in writing, no license is given for you to use Smile Tactics' IP to develop any products or software that will be sold by you or anyone else.
Provided you meet your payment obligations for the Consulting, Administration and Implementation Services, but subject to clause 7(iv) below, you are granted all Intellectual Property rights (including copyright) in the Content Materials provided as part of the Content Services except where the Content Materials are owned by third parties and licensed to us in which case we will endeavour to obtain the necessary sublicence or consent for you to use such Content Materials in the manner anticipated in the Terms of Reference.
The Website may include open source computer software or components from open source software that is made available under a licence that complies with the Open Source Definition: http://opensource.org/osd ("Open Source Software"). We provide the Open Source Software to you on the terms set out in the licence for the relevant Open Source Software.
We expressly disclaim any warranty or other assurance to you regarding the Open Source Software.
In the course of providing the Services to you, we may implement various measurement, tracking and optimisation tools and methodologies to assist us to collect, measure, track, analyse, assess, report on, or optimise, your website (whether created by us or others), any social networking services utilised by you including (without limitation) Facebook, Linkedin and Twitter, and any other online marketing or e-business initiatives that may be in place from time to time. The data generated including (without limitation) the analyses, assessments and reports are our subject to the terms and policies of those third-party tracking tools. Whilst data may be collected and analysed we will not share that data with any third party (other than our parent company or its subsidiaries, or their respective successors in title).
Liability
We will not be liable to you, or any third party, in any way whatsoever for any:
loss or damage to information or data from any cause; or
breach of security; or
loss of profit; or
incidental, indirect, special or consequential loss or damage; or
change (adverse or otherwise whatsoever) to your website or web page rankings as a result of certain actions taken by a search engine as further explained in paragraph (ii) below.
Search Engine Optimisation (“SEO”) is a process of applying various techniques to improve the ranking (or visibility) of a website or web page in a search engine’s unpaid, organic results. Different search engines use different formulas for ranking a website or a web page and, from time to time, a search engine may change the formulas it uses for that purpose. We have no control whatsoever over the search engine or the changes a search engine may make to its formulas. When a search engine changes its formulas for ranking websites or web pages, your rankings with that particular search engine may be positively or negatively impacted. You acknowledge and agree that where you have purchased SEO services from us or from a Third Party Provider (whether or not recommended by us) we will not be held responsible for any changes (adverse or otherwise whatsoever) in your rankings as a result of changes made by a search engine to its formulas for ranking a website or a webpage.
In any event, our maximum aggregate liability to you arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total Charges paid by you under the relevant Terms of Reference in the six (6) month period immediately preceding the event giving rise to liability.
The limitations and exclusions of liability in this clause 8 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
Sometimes we will not be able to fulfill our responsibilities for whatever reason. If such a situation should arise, then clause 8(i), 8(iii) and 8(iv) will apply.
You agree that we should not be exposed to your business and operational risks and so you agree:
that we will not be liable for the results you achieve (or not achieve) from your use of the Services, including any loss of profits, costs or damages related to products or services that you sell, or are unable to sell; and
to indemnify us against any claims, damages, liabilities, costs and expenses whatsoever and howsoever arising out of the conduct of your business, including your use of the Services and the Website.
If you are not satisfied with the Services, your sole and exclusive remedy is to terminate the Terms of Reference in accordance with clause 13.
Pricing Structures and Payment Terms
Pricing Structures
We have the following pricing structures:
Fixed Price: Where a fixed price is given, the service, package or product will be charged based on a fixed predetermined amount as detailed in the Terms of Reference (“Fixed Price”).
Time and Materials: Where an Estimated Budget is given in the Terms of Reference or has been varied by virtue of clause 3(i), the Estimated Budget (whether original or as varied) is just an estimate and is dependent on the resources utilised and the time expended by us. You will be charged for all the actual hours of work performed at our hourly rate, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project (“Time and Materials”).
Payment of the price whether Fixed Price or Time and Materials may be on Due Date Payment Terms or On Account Payment Terms.
Payment Terms
Due Date Payment Terms: You agree to pay the Charges for:
Consulting, Administration and Implementation Services and Software and Hosting Services as and when they fall due; and
notwithstanding the above, in the event that we are providing you with a website, the Charges associated with hosting that website from the Completion Date.
All Charges are expressed in the currency specified in the Terms of Reference and payment must be made in that currency unless expressly stated otherwise in the Terms of Reference. All Charges are exclusive of all taxes and duties, such as GST or VAT, and such taxes and duties (if any) shall be paid in the same currency specified in the Terms of Reference.
Unless otherwise specified above, you agree to pay all invoices within 14 days of the invoice date (time being strictly of the essence). You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.
If you do not pay the Charges on time we may, at our option do any or all of the following:
suspend or restrict your use of the Services;
terminate the relevant Terms of Reference in accordance with clause 13;
refer your account to our debt collection agency;
charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
set-off any amounts due from you against any moneys due from us or held in our account to your credit.
and, for the avoidance of doubt, if we have agreed to allow you to pay the Charges by instalments and you defaulted on the payment of an instalment when due, time being strictly of the essence, then, the whole of the Charges then outstanding and remaining unpaid shall become immediately due and payable, without any demand or other formalities of any kind on our part, and we may exercise any and all of our rights as set out in (a) to (f), inclusive, above.
If your project goes on hold or has stalled ("Stoppage") because:
you have failed to fulfill your obligations under clause 6(i)(a); or
you have requested us to stop work on your project; or
we have been unable, despite three (3) repeated attempts, to contact you or communicate with you at your last known email address or phone number; and
in each case, the Stoppage continues for more than three (3) consecutive months from the date we or you (as applicable) made the relevant request or, in case of (c) above, since the last of our unsuccessful attempts to contact you or communicate with you, then, you will be treated as having abandoned your project (“Abandoned Project”), and, in this event we need you to understand:
that when you confirm the Terms of Reference (whether online, or by signing a hardcopy version or otherwise), you commit to purchasing and paying us for the body of work described in the Terms of Reference; and
that as a result of that commitment by you, and acting in good faith and in reliance of that commitment, we would then schedule and plan the implementation of that body of work and mobilise and commit our time and resources to your project to the exclusion of other projects; and
that when you abandon your project (for whatever reason), the consequences for us and our staff are significant as the body of work that we had scheduled to undertake and complete is now not being undertaken anymore; and
that even if we may have only completed a small portion of your project at the time that you abandon your project, our costs are disproportionately incurred, in that a disproportionate part of the costs of any project are incurred in the early stages of the project, including (but are not limited to);
upfront costs incurred before the Terms of Reference was finalised in scoping your project, research and analysis of your needs, potential project challenges, and appropriate solutions and recommendations; and
project planning costs for planning the implementation of your project and scheduling and mobilising the appropriate human resources; and
actual costs of implementation; and
that the agreed purchase price for your project is designed to cover (without limitation) all of the above costs; and
that the Abandoned Project will not only cause us to sustain loss in respect of the costs described in paragraph (4) above, but also further costs and losses including (but not limited to) costs and disbursements incurred by us for unsuccessfully following up with you, repeatedly, regarding our request(s), costs for rescheduling your project to later date(s), costs and losses associated with idle or under-utilised human resources and equipment, costs associated with severance payments, loss (including revenue loss) arising from the commitment of our time and resources to your project to the exclusion of other projects, costs associated with sourcing and scheduling replacement work to mitigate our losses arising from your Abandoned Project, and costs and expenses associated with finalising the Abandoned Project such as clerical, accounting, legal and other similar costs; and
that in addition to any amounts that you already owe us, we will need to charge you the Early Termination Charges as a genuine agreed pre-estimate of the costs and losses sustained by us as result of the Abandoned Project and you irrevocably agree to indemnify and pay us forthwith, without set-off or deduction, on receipt of our invoice therefor; and
that we shall be entitled to set-off and deduct any of such invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, prepaid time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
that you will not be entitled to a refund of any of the monies already paid by you towards your project; and
subject to clause 13(viii), but without derogating from any of the foregoing provisions above, we will be wholly discharged from any further obligations or performance under the Terms of Reference for the Consulting, Administration and Implementation Services or these terms.
If you have purchased time in advance for our Services ("Prepaid Time"), you must redeem the Prepaid Time no later than twelve (12) months from the date of purchase ("Expiry Date"). Any time redeemed will be deducted from the current balance standing to your credit. On the Expiry Date any unredeemed time will no longer be redeemable and any moneys paid in respect of the unredeemed time will not be refundable.
If you have more than one project with us and one project (Project A) has a funding surplus and the other project (Project B) has a funding shortfall, you agree, and you hereby authorise us to use and apply any of the surplus funds held by us in respect of Project A to carry out the necessary works to complete Project B, to the intent that the funds paid by you for Project A and Project B shall be treated as if they have been paid for a combined project. You agree that any rights of set-off that you may have against any of the surplus funds held by us in respect of Project A are hereby waived irrevocably and you shall not be entitled to be refunded any of the surplus funds so applied.
Privacy
You authorise us or our agents to:
access, collect, retain and use any information about you;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness;
for the purpose of meeting our obligations and enforcing our rights under these terms and the Terms of Reference; or
for the purpose of marketing products and services to you.
disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by you.
with the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents, representatives and Carriers for the purpose of meeting our obligations under these terms and the Terms of Reference.
Monitor and record communications you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.
Where you are an individual the authorities under clause 10(i) are authorities or consents for the purposes of the Privacy Act 1993.
You shall have the right to request us for a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.
In order to better provide and/or improve the Services, we may analyse website data and/or the various online marketing, social networking or e-business initiatives. Data collected for the analyses will be aggregated data and will be used for our statistical or research purposes. We may retain and use that data but will not share that data with any third party unless:
we have your consent; or
disclosure is required by law; or
we need to provide the data to a third party to carry out tasks on our behalf (for example, data storage) with strict restrictions that prevent the data from being used or shared except as directed by us, and subject to strict confidentiality and security measures; or
the third party is our parent company or its subsidiaries, or their respective successors in title.
Confidential Information
Each party will keep all information about the Terms of Reference, the Services, the Website and other information that is confidential to the other party (”Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Terms of Reference and as permitted in these terms.
Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 11; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party's Confidential Information.
Conflict Of Interest Titus Mulquiney, the managing director of Smile Tactics is also owner/director of a separate business entity: the dental practice 'Stanmore Bay Dental Studio Limited'. This information is publicly disclosed and is available on the website and in various Smile Tactics videos available online. By accepting the terms of service, you acknowledge this fact.Smile Tactics will take all precautions to ensure that all client information, particularly with respect to client customers/patients will be treated with the strictest of confidence. Such information may be accessible to Smile Tactics (such as for reporting purposes or retargeted audience marketing). In such cases, information will be used solely for the purposes intended and explicitly agreed upon in writing.
Suspension of Services
We may suspend the provision of the Services to you:
if you do not meet all of your responsibilities under the Terms of Reference or these terms, provided we give you 7 days notice of such suspension.
if a Carrier supplying services to us suspends or interrupts its service to us and that suspension or interruption affects our ability to provide the Services to you.
in an emergency or whenever we, any Carrier, or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property.
We may, without any prior notice to you, remove material from or block access to your Website where we have received a notice of infringement under section 92C of the Copyright Act 1994 or any similar legislation in any other jurisdiction, or the removal or denial of access is in compliance with the requirements of the Harmful Digital Communications Act 2015 or in compliance with any order issued under or pursuant to that legislation. You agree that we shall have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action. If there is a dispute between you and a third party regarding your Website or the contents of your Website, you acknowledge that it is your responsibility to resolve such dispute with the third party and you agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or actions on a full indemnity basis.
Unless we otherwise agree, the Charges will continue to apply where we have suspended the Services or blocked access to your Website or otherwise removed any alleged infringing material pursuant to this clause.
Termination
Termination of Software and Hosting Services by you Subject at all times to any minimum term associated with any Software and Hosting Services, you may otherwise terminate the Software and Hosting Services (whether these are included in a Terms of Reference or otherwise), at any time after the expiry of such minimum term, by giving us one (1) month's written notice of termination.
Termination of Software and Hosting Services by us We may terminate the Software and Hosting Services (whether these are included in a Terms of Reference or otherwise), at any time, by giving you three (3) month's written notice of termination.
Upon termination by you or by us (as applicable) of the Software and Hosting Services pursuant to clause 13(i) or clause 13(ii):
any amounts owing by you to us for Software and Hosting Services must be paid immediately; and
subject to clause 13(viii) and without derogating from the foregoing provision in (a) above, we will be regarded as wholly discharged from any further obligations or performance for Software and Hosting Services with effect from and on the date of termination.
Early Termination of Consulting, Administration and Implementation Services by you for convenience You may choose to terminate the Terms of Reference before the completion of your project (as described in the Terms of Reference) (“Early Termination”), but, if you choose to do so, you need to understand:
that when you confirm the Terms of Reference (whether online, or by signing a hardcopy version or otherwise), you commit to purchasing and paying us for the body of work described in the Terms of Reference; and
that as a result of that commitment by you, and acting in good faith and in reliance of that commitment, we would then schedule and plan the implementation of that body of work and mobilise and commit our time and resources to your project to the exclusion of other projects; and
that when you decide on and bring into effect an Early Termination, the consequences for us and our staff are significant as the body of work that we had scheduled to undertake and complete is now not being undertaken anymore; and
that even if we have only completed a small portion of your project at the time of the Early Termination, our costs are disproportionately incurred, in that a dispropriate part of the costs of any project are incurred in the early stages of the project; such costs include (but are not limited to):
upfront costs incurred before the Terms of Reference was finalised in scoping your project, research and analysis of your needs, potential project challenges, and appropriate solutions and recommendations; and
project planning costs for planning the implementation of your project and scheduling and mobilising the appropriate human resources; and
actual costs of implementation; and
that the agreed purchase price for your project is designed to cover (without limitation) all of the above costs; and
that Early Termination by you (for whatever reason), will not only cause us to sustain loss in respect of the costs described in paragraph (d) above, but also further costs and losses including (but not limited to) costs and losses associated with idle or under-utilised human resources and equipment, costs associated with severance payments, loss (including revenue loss) arising from the commitment of our time and resources to your project to the exclusion of other projects, costs associated with sourcing and scheduling replacement work to mitigate our losses arising from your Early Termination, and costs and expenses associated with finalising the Early Termination such as clerical, accounting, legal and other similar costs; and
that in addition to any amounts that you already owe us, we will need to charge you the Early Termination Charges as a mitigation of the costs and losses sustained by us as a result of the Early Termination and you irrevocably agree to indemnify and pay us forthwith, without set-off or deduction, on receipt of our invoice therefor; and
that we shall be entitled to set-off and deduct any of such invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, prepaid time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
that you will not be entitled to a refund of any of the monies already paid by you towards your project; and
that we will immediately cease all work, or, if work has already stopped we will not carry out any or any further work, on the Consulting, Administration and Implementation Services (as described in the Terms of Reference).
Early Termination of Consulting, Administration and Implementation Services by us for convenience We may terminate a Terms of Reference without cause by notice in writing to you at any time. If we terminate under this clause we will promptly repay to you all of the Charges you have paid to us under that Terms of Reference up to the date of termination with the exception of Charges for the Software and Hosting Services and subject to clause 13(viii), we shall be wholly discharged from any further obligations under the Terms of Reference or these terms.
Termination of Consulting, Administration and Implementation Services by you for breach You may terminate the Terms of Reference at any time if:
we are placed in voluntary administration, receivership or liquidation; or if
we have breached a term of the Terms of Reference or these terms and failed to remedy such breach after being given written notice by you emailing the details of such breach to [email protected] and allowing at least 30 days for us to remedy the breach; and
upon termination by you pursuant to this clause:
we will immediately cease all work, or, if work has already stopped we will not carry out any or any further work, on the Consulting, Administration and Implementation Services (as described in the Terms of Reference); and
we will invoice you, and you will immediately pay without set-off or deduction the amount invoiced on receipt of the invoice, for any expenses, disbursements and charges incurred but not yet invoiced as at the date of termination; and
we shall be entitled to set-off and deduct any invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, prepaid time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
subject to clause 13(viii), but without derogating from any of the foregoing provisions above, we will be wholly discharged from any further obligations or performance under the Terms of Reference for the Consulting, Administration and Implementation Services or these terms.
Termination of Consulting, Administration and Implementation Services by us for breach We may terminate the Terms of Reference at any time if:
you are in breach of clauses 6(i)(a), 6(vi),and 9(v) (or any of them); or
you are placed in voluntary administration, receivership or liquidation; or
in our reasonable opinion, you are using the Services for any unlawful, abusive or fraudulent purpose; or
you abuse, harass or threaten (including, but not limited to, threats of abuse or retribution or using any form of cyber-bullying) verbally or in writing any of our employees, contractors, agents or officers; or
you commit a material breach of the Terms of Reference or these terms or any other agreement between us, when the breach is not reasonably capable of being remedied; or
you have breached a term of the Terms of Reference or these terms and failed to remedy such breach after being given written notice at your last known email address and allowing at least 30 days for you to remedy the breach; and
upon termination by us pursuant to this clause:
we will immediately cease all work, or, if work has already stopped we will not carry out any or any further work; and
in addition to any amounts that you already owe us, we will need to charge you the Early Termination Charges as a mitigation of the costs and possible losses incurred as a result of the termination, and you irrevocably agree to indemnify and pay us forthwith, on receipt of our invoice therefor and without set-off or deduction, the Early Termination Charges; and
we will invoice you, and you will immediately pay the amount invoiced on receipt of the invoice, for any expenses, disbursements and charges incurred but not yet invoiced as at the date of termination, and you will not be entitled to a refund of any of the monies already paid by you towards any expenses, disbursements and charges previously invoiced; and
we shall be entitled to set-off and deduct any invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, prepaid time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
subject to clause 13(viii), but without derogating from any of the foregoing provisions above, we will be wholly discharged from any further obligations or performance under the Terms of Reference or these terms.
Effect of Termination Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 6(v), 6(vi), 7, 8, 9(iii), 9(iv), 9(v), 9(vi), 10, 11, 13 and 14 of these terms will survive termination or cancellation of a Terms of Reference.
Marketing
You agree that we may:
include a reference in the metadata of the Website, crediting the design, development and hosting of the Website to Smile Tactics and/or any of our approved suppliers; and
list you on our marketing materials, including on our website; and
list you on any relevant directory website unless you advise us otherwise; and
from time to time, we may send you e-mails with articles and information about our organisation and products and services that we think may be of interest to you. You may elect not to receive such e-mails at any time by clicking the ‘unsubscribe’ link at the bottom of those e-mails or by contacting Customer Services.
Variation of Terms We may amend or replace these terms from time to time. The amended or replacement terms (“Amended Terms”) will then apply to the Services. We will post the Amended Terms on our website and and we will communicate these changes to you via email or by notifying you via the administration section of your Website (if any). If you object to the Amended Terms, you may terminate a Terms of Reference by providing us with one month's written notice. You will be taken to have accepted the Amended Terms if you make a further request of us to provide Services to you or if you continue to make use of our Services and do not give us any notice to terminate the Terms of Reference. If you are in any doubt as to the current terms of trade that apply to the Services please visit our website http://smiletactics.com/tos or contact us.
Miscellaneous
You agree that the Terms of Reference and these terms comprise the entire agreement between you and us in respect of the Website and the Services and, unless expressly stated in the Terms of Reference, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded. By accepting the Terms of Reference, you also confirm and acknowledge that you have not been induced to purchase the Website and/or the Services by any representation whether verbal, written or otherwise, made by or on behalf of us which is not expressly set out in the Terms of Reference.
You agree that, with the exception of urgent interlocutory relief in respect of use of confidential information or intellectual property in breach of these terms, both of us will attempt to resolve any dispute under these terms by negotiating in good faith for at least 14 days.
The failure by us to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision. If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
If any of your contact details change, you agree to promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have given to us.
You warrant that you have the power to enter into this agreement and have obtained all necessary authorisation to allow you to do so, that you are not insolvent and that this agreement creates binding and valid legal obligations on you.
You may not assign any rights or obligations under these terms without our prior written consent. We may assign any rights under these terms without obtaining your prior approval. We may also sub-contract any of our obligations under these terms, but in so doing, will not be relieved of any liability to you under these terms.
We may decline your application for the Services (and/or any request for Additional Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
These terms and any contract to which they apply (including, but not limited to, the Terms of Reference) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.
Definitions“Abandoned Project” has the meaning given to it in clause 9(vii). “Additional Services” means any additional services (not being Software and Hosting Services or Consulting, Administration and Implementation Services or Third Party Provider products or services) that we agree to provide to you, and, for the avoidance of doubt, Additional Services include (without limitation) any Smile Tactics Tools.“Amended Terms” has the meaning given to it in clause 15.“Carriers” means any entity with whom we have entered into an agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined internet traffic between us and that entity.“Charges” means the charges payable by you to us under the Terms of Reference for the Consulting, Administration and Implementation Services and the Software and Hosting Services set out in the Terms of Reference, and shall include any amount payable in respect of any Project Variation or Additional Services or Third Party Provider products or services.“Customer Services” means the Smile Tactics support team, which is contactable by email on [email protected] or by phone on +64 9 884 8666.“Completion Date” means the date on which we advise you that the Website is ready for the loading of your information and data. For the avoidance of doubt, the Completion Date is not the same as the ‘go-live’ or ‘website launch’ date which may be later in time than the Completion Date.“Confidential Information” has the meaning given to it in clause 11(i).“Consulting, Administration and Implementation Services” means the website design and development, consulting, administration, implementation and marketing services and more fully described in the relevant Service Brochures or Proposal and includes consulting, design, computer programming, Content Services, administration, training and marketing services for the purpose of creating, customising, improving and promoting the Website.“Content Material” means all written copy, illustrations, diagrams, photographs, animations, 3D models, videos or other materials provided to you as part of the Content Services but excluding, elements (in source and object code) which form part of the generic functionality of the Website or elements (in source and object code) which implement visual features or the layouts of the Website (including, but not limited to, the Content Materials.“Content Services” means any copywriting, illustration, photography, video production, or other services to provide Content Material as set out in the Terms of Reference.“Customisation” means a customisation required by you as described in the Customisation Plan.“Customisation Plan” means the plan developed by us in conjunction with you for a Customisation.“Due Date Payment Terms” means the payment terms described in clause 9(ii)(a).“Early Termination” has the meaning given to it in clause 13(iv). “Early Termination Charges” means the charges to be paid by you as a genuine agreed pre-estimate of the costs and losses we will likely incur in dealing with either an Early Termination by you (as detailed in clauses 13(iv)(a), (b), (c), (d) and (e)) or an Abandoned Project (as detailed in clause 9(vii)) or termination for breach (as detailed in clause 13(vii)) (whichever shall be applicable), and shall include the full purchase price described in the Terms of Reference (less any amounts previously invoiced) including any amount designated for Time and Materials (whether or not the invoiced Time and Materials was provided), and any expenses, disbursements and charges incurred by us up to the date of termination, less our estimated profit margin of 10%. For the avoidance of doubt, the deduction of the 10% estimated profit margin shall not apply to amounts previously invoiced, or amounts owing for work already completed prior to the termination or abandonment (as applicable). “Estimated Budget” means the estimated budget for any Services to be provided by us to you on a Time and Materials basis.“Expiry Date” has the meaning given to it in clause 9(viii).“Fixed Price” has the meaning given to it in clause 9(i)(a)(1).“Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trademarks or trade names or goodwill rights associated with such marks, applications for any of the foregoing, the copyright in any copyright works including, but not limited to, any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in the procedure.“Minimum Term” means, where you are paying the Charges using On Account Payment Terms, for a fixed minimum term as set out in the Terms of Reference.“On Account Payment Terms” means the payment terms described in clause 9(ii)(b).“Order Form” means our order form signed or completed (as applicable) by you or on your behalf, which specifies the Services you require from us.“Prepaid Time” has the meaning given to it in clause 9(viii). “Project Variation” has the meaning given to it in clause 3.“Proposal” means the proposal accepted by you or on your behalf, in respect of the Services, and includes any changes to it which were made at your request.“Rebate” means the amount to be deducted from our standard list price or standard hourly rate as part of a Rebate Purchase Arrangement.“Rebate Purchase Arrangement” means the arrangement referred to in clause 9(iii)."Restraint Period" means during the term of the Terms of Reference and for a period of 6 months following the termination of a Terms of Reference (for whatever reason). “Service Brochure” means any brochure(s) detailing the Services.“Services” means the Consulting, Administration and Implementation Services, the Software and Hosting Services and the Additional Services as described in clause 2.“Software and Hosting Services” means the provision of software as a service, website hosting and/or web application hosting as set out in the Terms of Reference."Special Hourly Rate" means the hourly rate payable by you as set out in the Terms of Reference after deducting the Rebate and "Special Rate" has a corresponding meaning.“Special Price” means the price payable by you as set out in the Terms of Reference after deducting the Rebate.“Stoppage” has the meaning given to it in clause 9(vii).“Subscription Fee” means the monthly or annual fee payable by you to us for the Software and Hosting Services and any other services which you may from time to time request us to provide to you.“Terms of Reference” means: (a) the Proposal (if any); and (b) any Estimated Budget; and (c) the Order Form (if any); and (d) the Service Brochure (if any) for each Service you have ordered; and (e) each agreed Project Variation (if any); and (f) the specifications for any Website which forms part of the Services (if any); and (g) the Website Plan (if any)."Third Party Provider" means any provider of products or services other than us. “Time and Materials” has the meaning given to it in clause 9(i)(a)(2).“Warranty Period” has the meaning given to it in clause 5(ii).“we” or “us” means Smile Tactics Limited and “our” has a corresponding meaning.“Website” means the website we create for you as part of the Consulting, Administration and Implementation Services.“Website Plan” means the website plan prepared by us in conjunction with you in respect of the Website.“you” means the customer under the Terms of Reference and “your” has a corresponding meaning.“Your Materials” has the meaning given to it in clause 6(iii).“Smile Tactics' IP” has the meaning given to it in clause 7(i).
