OUR TERMS OF SERVICE
Important notice: We do not require a signed agreement. Your use of any services or resource provided by us, including this website, denote your complete agreement with and acceptance of these terms and conditions.
1. INTRODUCTION TO THESE TERMS
1.1 Smart Business Solutions is a service for businesses to delegate administration, organising, marketing and other services. By registering for Smart Business Solutions, you confirm that the Smart Business Solutions services you will request will be integral to your business and that you are acting for purposes of your trade, business or profession. The Smart Business Solutions service is not intended for carrying out domestic tasks or for private consumers.
1.3 These Terms are applicable from the date on which you register as a client on the Website for a minimum period of one month (or, if you avail yourself of a free trial, the length of such free trial period), and continue to be applicable until the agreement constituted by these Terms is terminated in accordance with clause 14.
1.5 Your attention is drawn in particular to clause 12 and clause 13.1, which limit Smart Business Solutions liability to you, the Client.
1.6 In the event of any comments or questions in relation to the Services or the Website, the Client should contact Smart Business Solutions at any one of the following addresses: 13 Park Road, Consett, DH8 5EA; or firstname.lastname@example.org.
1.7 Smart Business Solutions is based in the UK. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
2.1 The following definitions apply in these Terms.
Billday: the day of the month on which Client agrees by means of the Website to begin the Monthly Subscription Charge, and the same day in each subsequent month. In the event that the day of the month on which Client agrees by means of the Website to begin the Monthly Subscription Charge does not occur in any month (e.g. 30th in February), the last day of that month shall be substituted in its place as the Billday.
Brief: a request for Services, submitted by Client by means of the Website, setting out the Client’s requirements, including any applicable desired timescales for completion.
Charges: means (i) the Monthly Subscription Charge; and (ii) any additional time-based charges calculated in accordance with Smart Business Solutions standard daily fee rates and agreed with the Client by means of the Website.
Client Material: all documents, information and materials provided by the Client relating to the Services as specified in the Brief.
Client Personal Data: all personal data (as defined in Data Protection Laws) comprised in Client Material.
Confidential Information: information that Client provides to Smart Business Solutions (or to a Freelancer) in a Brief, that Client reasonably expects to be kept secret. This includes confidential details of Client’s business, and any payment card information provided by Client. document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Data Protection Laws: means as applicable and binding on the Client, or Smart Business Solutions and/or the Brief (i) in the United Kingdom, the GDPR, and/or any corresponding or equivalent national laws or regulations; (ii) in member states of the European Union: the GDPR, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and (iii) any applicable laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time.
Freelancer: an individual or entity sub-contracted by Smart Business Solutions to assist in providing the Services for a particular Brief.
GDPR: means the General Data Protection Regulation (EU) 2016/679.
Group: Smart Business Solutions, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time. holding company: has the meaning given in clause 2.2 subsidiary: has the meaning given in clause 2.2
Hourly Charges: charges agreed with Client by means of the Website for any additional time to be spent in fulfilling the Services in excess of the time allocation represented by the Monthly Subscription Charge.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Monthly Subscription Charge: the monthly subscription charge in respect of the Services, as agreed to by Client by means of the Website and representing an agreed allocation of time to be spent each month in providing the Services.
Services: the services to be provided by Smart Business Solutions under these Terms as set out in a Brief, together with any other services which Smart Business Solutions provides or agrees to provide to the Client.
Time Budget: a maximum allocation of time, stated in a particular Brief, which the Client wishes to be decremented from its Smart Business Solutions account in respect of that Brief;
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Website: the Smart-Business-Solutions.co.uk websites (and any territory-specific variant on them), or any Smart Business Solutions mobile application, or any replacement or substitute for them notified to Client.
writing: includes email, SMS, the Website, or any other means of written communication agreed between Client and Smart Business Solutions;
Work: all documents, products and materials developed by Smart Business Solutions or its subcontractors in relation to a Brief in any form, including data, reports and specifications (including drafts).
2.2 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) as a nominee.
3.1 Each task which Client wishes Smart Business Solutions to undertake shall be specified in a Brief. Briefs shall be processed in the following manner:
(a) the Client shall provide Smart Business Solutions with a Brief, setting out the requirements and specifications of the services which it is requesting from Smart Business Solutions, including: a description of what work is to be done; dates by which it is requested to be completed; any relevant Client Materials; and any Time Budget; and
(b) Smart Business Solutions shall confirm to Client by means of email, the Website, SMS or by phone whether or not it accepts the Brief, or if any changes are required to the Brief in order for it to be accepted by Smart Business Solutions.
3.2 Client acknowledges that Smart Business Solutions may in its absolute discretion refuse to agree to accept or complete any Brief. Client acknowledges that without limitation, Smart Business Solutions may refuse to accept or complete any Brief submitted in breach of clause 6.1 below.
3.3 Once the Brief has been agreed and signed in accordance with clause 3.1(b), no amendment shall be made to it except as agreed by the parties in writing.
3.4 In the event that Smart Business Solutions reasonably suspects that a Brief has been submitted otherwise than in accordance with these Terms, it may cancel the Brief without liability to the Client and if so shall credit to the Client any Charges applied by Smart Business Solutions in respect of time spent meeting any such Brief.
3.5 Smart Business Solutions will endeavour to meet the Brief within any stated Time Budget. If it is unable to do so, it will notify Client of the additional time likely required to complete the Brief. Client shall then have the choice of purchasing such additional time allocation or abandoning the Brief (in which case Smart Business Solutions shall be under no obligation to continue work on it).
4. SMART BUSINESS SOLUTIONS OBLIGATIONS
4.1 All Work produced in respect of the Services shall be produced with reasonable skill and care.
4.2 Smart Business Solutions shall use reasonable endeavours to provide the Services, and to deliver the Work to the Client, in accordance with the Brief in all material respects.
4.3 Smart Business Solutions shall use reasonable endeavours to meet any performance dates specified in the Brief, but any such dates shall be estimates only and time for performance by Smart Business Solutions shall not be of the essence of these Terms or of any Brief.
4.4 Whilst Smart Business Solutions will follow the instructions in the Brief, Client acknowledges that it shall have no control over the manner in which, or the location at which, the Services shall be provided, nor the choice of tools and equipment by which the Services will be provided.
4.5 Smart Business Solutions will use all reasonable endeavours to ensure that the Website is free from viruses, trojans, or other malware.
4.6 Client acknowledges that the range of Services provided are neither unlimited nor fixed, and that Smart Business Solutions may without liability (i) refuse to accept any Brief; and (ii) increase or reduce the scope of the Services at any time.
5.1 Smart Business Solutions is confident that it has exercised a reasonable level of due diligence in screening and selecting its Freelancers. But Smart Business Solutions undertakes a wide range of Briefs for a wide range of clients, using a wide range of Freelancers,. Work on the Briefs is provided by Freelancers, who are not employed in your business day to day, and who will inevitably have a subjective assessment of the best way to carry out the Brief. Smart Business Solutions cannot and does not guarantee that all Work will be 100% error-free or comprehensive.
5.2 Smart Business Solutions makes no warranty that:
(a) the Services will meet the Client’s requirements;
(b) the Website will be uninterrupted in its availability, timely, secure, or error-free;
(c) the Work will be error-free or comprehensive;
(d) any particular Freelancer will be available to carry out any Brief;
(e) the Client Material and Confidential Information will be 100% secure against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, despite Smart Business Solutions taking appropriate technical and organisational measures intended to ensure such security; or
(f) the quality of any Work obtained by the Client through the Services will meet the Client’s expectations.
5.3 No advice or information, whether oral or written, obtained by Client from Smart Business Solutions (including from any Freelancer) shall operate to create any warranty not expressly stated in these Terms.
5.4 To the maximum extent permitted by law, Smart Business Solutions disclaims any and all implied warranties in respect of the Work, the Services and the Freelancers, except as expressly set out in these Terms.
6. CLIENT’S OBLIGATIONS
6.1 The Client shall at all times:
(a) co-operate with Smart Business Solutions in all matters relating to the Services;
(b) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the receipt by it of the Services;
(c) ensure that it has the right to submit Briefs, including any Intellectual Property Rights contained in it;
(d) not submit Briefs that it did not create or that it does not have permission to post;
(e) not submit Briefs that require the installation of any software beyond the standard Microsoft Office package; and
(f) refrain from submitting Briefs that, if completed, are likely to involve the infringement of any person’s Intellectual Property Rights or which might be offensive, illegal, defamatory or which might violate the rights, harm, or threaten the safety of any person.
(g) refrain from submitting Briefs that, if completed, are likely to involve the processing of personal data involving individual children, individuals’ criminal records, or any of the following: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
6.2 If Smart Business Solutions performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Smart Business Solutions shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
6.3 The Client shall be liable to pay to Smart Business Solutions, on demand, all reasonable costs, charges or losses sustained or incurred by Smart Business Solutions (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person, and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Terms, subject to Smart Business Solutions confirming such costs, charges and losses to the Client in writing.
6.4 The Client warrants that it has the right to disclose the Confidential Information and the Client Material to Smart Business Solutions and to authorise Smart Business Solutions to use it for the purpose of providing the Services.
6.5 When the Client registers with the Website, the Client will be asked to choose login details for its account. The Client acknowledges and agrees that it is entirely responsible for safeguarding and maintaining the confidentiality of the username and password used to access its account. Client authorises Smart Business Solutions to assume that any person using the Website with Client’s username and password is the Client or is authorised to act for the Client. Client agrees to notify Smart Business Solutions immediately if it suspects or becomes aware of any unauthorised use of its account, or any unauthorised access to or misuse of its login details.
6.6 The Client agrees not to reproduce, duplicate, copy or re-sell the Services, the Website or any part of them.
6.7 The Client acknowledges that it is not entitled to direct or control the work of any Freelancer, or impose any specific time of day or location in which the Brief is to be fulfilled.
7.1 Client acknowledges that:
(a) Smart Business Solutions has made substantial investments in finding and choosing skilled individuals or entities which Smart Business Solutions considers to be suitable Freelancers, and matching them with Briefs as appropriate; and
(b) Smart Business Solutions has a reasonable, legitimate interest in protecting that investment.
(c) Smart Business Solutions has agreements with Freelancers which protect this investment by requiring that Freelancers obtain Smart Business Solutions prior written consent before proposing or accepting any direct or indirect engagement with clients they have worked with. Accordingly, to the fullest extent permitted under applicable law, Client agrees that for a period of 9 months immediately following the last date of acceptance by Smart Business Solutions of a Brief submitted under these Terms, Client shall not without the prior written consent of Smart Business Solutions directly or indirectly solicit any Freelancer to work for Client directly or indirectly in any engagement or business arrangement.
7.2 Smart Business Solutions shall have absolute discretion as to whether or not to grant the consent referred to in clause 7.1 above, which may be subject to financial conditions including payment of sums equivalent to (by way of example only) those specified in clause 7.3.
7.3 Client agrees in the event of breach by it of clause 7.1 above, Client shall pay to Smart Business Solutions a sum equal to 100% of the Charges payable to Smart Business Solutions in respect of all Briefs fulfilled by Smart Business Solutions using the Freelancer in question in the 12 months preceding the date of the most recent Brief undertaken by Smart Business Solutions using that Freelancer. The Client and Smart Business Solutions confirm that these sums represent a genuine pre-estimate of Smart Business Solutions loss for breach of clause 7.1.
8. IF CLIENT IS UNHAPPY WITH THE SERVICES
8.1 If the Client is not satisfied with the Work or any other aspect of the Services, contact should in the first instance be made to email@example.com. If Client can demonstrate that a particular requirement of a Brief accepted by Smart Business Solutions has not been met, but that Hourly Charges have been made (or Client’s allocation of time purchased by the Monthly Subscription Charge has been decremented) in respect of the requirement, Time Etc shall either (at its option) arrange for the Work to be completed satisfactorily arrange for a credit of the time charged in respect of such unmet requirement.
8.2 Refunds are at the sole discretion of Smart Business Solutions.
9. CHARGES AND PAYMENT
9.1 The Client shall be solely responsible for the payment of the Charges.
9.2 All Charges shall be exclusive of VAT, which Time Etc shall add to its invoices at the appropriate rate for Clients.
9.3 Smart Business Solutions shall ensure that every Freelancer whom it engages on the Services records the amount of time spent on the Services.
9.4 The Client shall pay the total Charges to Smart Business Solutions in advance by credit or debit card or via PayPal without deduction or set-off. The Monthly Subscription Charge shall be payable on the Billday of each month.
9.5 The parties agree that Smart Business Solutions may review and increase its Charges. Smart Business Solutions shall give the Client written notice of any such increase in advance of the proposed date of that increase. If such increase is not acceptable to the Client, it may, within 10 days of the date of such notice, terminate the agreement constituted by these Terms by giving written notice to Smart Business Solutions. Such termination shall take effect on the next Billday.
9.6 In the event that payment is not rejected or is for any reason (other than default or negligence of Smart Business Solutions) not received in advance of the relevant Services being provided then, without prejudice to any other right or remedy that Smart Business Solutions may have:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) Smart Business Solutions may suspend all Services until payment has been made in full.
9.7 All sums payable to Smart Business Solutions under these Terms shall become due immediately on its termination, despite any other provision. This clause 9.7 is without prejudice to any right to claim for interest under the law, or any such right under these Terms.
9.8 All amounts due under these Terms shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.9 In the event that following reasonable efforts on Smart Business Solutions part to recover any sums owed to it under these Terms by the Client, Smart Business Solutions may refer the matter to an accredited collections agency. Smart Business Solutions shall be entitled to charge to Client any sums charged by such collection agency in respect of recovery of the outstanding sums.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 As between the Client and Smart Business Solutions, all Intellectual Property Rights and all other rights in the Work shall be owned by Smart Business Solutions. Subject to clause 10.3, Smart Business Solutions licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the Work and the Services for its own internal business uses (including for the purposes of providing its goods and/or services to third parties). In no circumstances shall Client be entitled to resell the Work to any third party without the prior written consent of Smart Business Solutions.
10.2 For the avoidance of doubt, any Confidential Information of Client and any Client Material shall remain in the ownership of Client.
10.3 The Client acknowledges that, where Smart Business Solutions does not own any or all of any pre-existing materials comprised in any Work, the Client’s use of rights in pre-existing materials is conditional on Client obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Client to use the Work.
11. CONFIDENTIALITY AND SMART BUSINESS SOLUTIONS PROPERTY
11.1 Smart Business Solutions shall keep the Confidential Information disclosed to it confidential and, except for the purposes of providing the Services (including disclosing it to Freelancers, who may disclose it to their sub-contractors), or with the prior written consent of the Client, shall not:
(a) use or exploit the Confidential Information in any way;
(b) disclose or make available such Confidential Information in whole or in part to any third party; or
(c) copy, or otherwise record the Confidential Information.
11.2 The obligation in clause 11.1 shall not apply to any information which:
(a) is, or becomes, generally available to the public (other than as a result of disclosure by Smart Business Solutions in breach of these Terms); or
(b) was available to Smart Business Solutions on a non-confidential basis before disclosure by the Client; or
(c) was, is or becomes available to Smart Business Solutions on a non-confidential basis from a person who, to Smart Business Solutions knowledge, is not bound by a confidentiality agreement with the Client, or otherwise prohibited from disclosing the information to the Client; or
(d) was lawfully in the possession of Smart Business Solutions before the information was disclosed to it by the Client; or
(e) the parties agree in writing is not confidential or may be disclosed; or
(f) is developed by or for Smart Business Solutions, independently of the information disclosed by the Client; or
(g) is trivial, obvious or useless.
11.3 Smart Business Solutions may disclose the Client’s Confidential Information to members of its Group and to those of its Freelancers who need to know the Confidential Information for the purposes of providing the Service.
11.4 Smart Business Solutions may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including any securities exchange) or by a court or other authority of competent jurisdiction. However, to the extent it is legally allowed to do so, it must give the Client as much notice of that disclosure as possible.
11.5 At the reasonable request of the Client, Smart Business Solutions shall destroy or return the Confidential Information to the Client and any materials (whether in written or other recorded form) containing, or making use of the Confidential Information.
12. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Terms limits or excludes Smart Business Solutions liability for:
(a) death or personal injury caused by its negligence;
(b) its fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.2 Subject to clause 12.1, Smart Business Solutions shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
12.3 Subject to clause 12.1 and clause 12.2, Smart Business Solutions total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms shall be limited to:
(a) £200 per claim or series of connected claims; and
(b) in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of two times the total Charges paid by the Client in that period.
12.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
13. DATA PROTECTION AND PRIVACY
13.1 Smart Business Solutions strongly recommends that Clients do not include in any Brief or communicate to any Freelancer any details of any bank account, or other financial accounts, or any payment card information. Client acknowledges that Smart Business Solutions shall have no liability to Client in respect of any losses arising out of Client’s provision to Freelancer of any such information.
13.2 In respect of any Client Personal Data, the Client acknowledges and agrees that:
(a) where Client Personal Data is provided to Smart Business Solutions by the Client (not provided to a Freelancer directly), Smart Business Solutions shall be the data processor (as defined in Data Protection Laws) of it, and Smart Business Solutions processing of such Client Personal Data shall be subject to the Smart Business Solutions Data Processing Terms set out below in clause 16;
(b) where Client Personal Data is provided to a Freelancer directly by the Client, the Freelancer shall be the data processor of it, and Client may agree with Freelancer that Freelancer’s processing of such Client Personal Data shall be in accordance with such data processing terms relevant to compliance with Article 28 of GDPR as the Client and the Freelancer may agree in writing; and
(c) in the absence of any such data processing terms being agreed between the Client and the Freelancer, the Freelancer-Client Data Processing Terms available here shall apply to the processing unless and until Client and Freelancer agree between them any other data processing terms.
14.1 Without affecting any other right or remedy available to it, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
(b) the other party commits a material breach of any term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other is affected by an event or process of insolvency, or ceases to conduct business; or
(d) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms.
14.2 Either party may terminate the agreement constituted by these Terms at any time by notice of not less than one full Monthly Subscription Charge period. In the event that notice is given part-way through a Monthly Subscription Charge period, the agreement will terminate on the Billday following the Billday which follows the date on which notice is given.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of these Terms:
(a) the Client shall immediately pay to Smart Business Solutions all of Smart Business Solutions outstanding unpaid invoices and interest. In respect of Services supplied but for which no invoice has been submitted, Smart Business Solutions may submit an invoice, which shall be payable immediately on receipt;
(b) Client may, from one month from the date of such termination, cease to have access to any information in respect of any particular Brief;
(c) the following clauses shall continue in force: clause 7 (Exclusivity), clause 10 (Intellectual property rights), clause 11 (Confidentiality and Smart Business Solutions property), clause 12 (Limitation of liability), clause 15.1, clause 1.7 (Governing law and jurisdiction).
15.2 Termination or expiry of these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16. DATA PROCESSING TERMS
16.1 In this clause, Personal Data, Data Subject, Data Processor and Data Controller shall bear the meanings ascribed to them in Data Protection Laws.
16.2 To the extent that Smart Business Solutions shall process Client Personal Data as Data Processor of the Client, it shall do so in compliance with the obligations placed on it as Data Processor under Data Protection Laws.
16.3 The Client shall at all times comply with all Data Protection Laws in connection with the processing of Client Personal Data. The Client shall ensure all instructions given by it to Smart Business Solutions in respect of Client Personal Data shall at all times be in accordance with Data Protection Laws. The Client shall indemnify and keep indemnified Time Etc against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs arising out of or in connection with any breach by the Client of its obligations under this clause 16.
16.4 Smart Business Solutions shall:
(a) only process the Client Personal Data in accordance with this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(b) if Smart Business Solutions believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws, promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
16.5 Taking into account the state of technical development and the nature of processing, Smart Business Solutions shall implement and maintain appropriate technical and organisational measures to protect the Client Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access, as set out on this page.
16.6 Smart Business Solutions shall inform the Client of any addition, replacement or other changes of third parties (including Freelancers) authorised by Smart Business Solutions to have logical access to and process Client Personal Data in order to provide the Services (“Sub-processors”) and shall provide the Client with the opportunity to reasonably object to such changes on legitimate grounds. The Client acknowledges that these Sub-processors are essential to provide the Services and that objecting to the use of a Sub-processor will prevent Smart Business Solutions from providing the Services to the Client. Smart Business Solutions will enter into a written agreement with the Sub-processor imposing on the Sub-processor obligations comparable to those imposed on Smart Business Solutions under this clause 16, including appropriate data security measures. In case the Sub-processor fails to fulfil its data protection obligations under such written agreement with Smart Business Solutions, Smart Business Solutions will remain liable towards the Client for the performance of the Sub-processor’s obligations under such agreement. The Client provides general written authorisation to Smart Business Solutions to engage Sub-processors as necessary to perform the Services.
16.7 Smart Business Solutions shall (at the Client’s cost):
(a) assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Time Etc; and
(b) taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Client Personal Data.
16.8 Smart Business Solutions may transfer Client Personal Data processed under this Agreement outside the European Economic Area (“EEA”) or Switzerland as necessary to provide the Services. If Smart Business Solutions transfers Client Personal Data to a jurisdiction for which the European Commission has not issued an adequacy decision, Smart Business Solutions will ensure that appropriate safeguards have been implemented for the transfer of Client Personal Data in accordance with Data Protection Laws.
16.9 Smart Business Solutions shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate Smart Business Solutions compliance with the obligations placed on it under this clause 16 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client for this purpose. Any information obtained by the Client as a result shall be treated as confidential.
16.10 Smart Business Solutions shall notify the Client without undue delay and in writing on becoming aware of any security breach in respect of any Client Personal Data.
16.11 On the end of the provision of the Services relating to the processing of Client Personal Data, at the Client’s cost and the Client’s option, Smart Business Solutions shall either return all of the Client Personal Data to the Client or securely dispose of the Client Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Smart Business Solutions to store such Client Personal Data.
16.12 This clause 16 shall survive termination or expiry of this Agreement.
16.13 The Client shall ensure that: Data subjects are provided with appropriate information regarding the processing of their Client Personal Data, including by means of offering a transparent and easily accessible public privacy notice.
16.14 Processing of the Client Personal Data by Smart Business Solutions under these Terms shall be as set out below.
(a) Subject-matter of processing: Processing of Client Personal Data for the purposes of storage and onward transmission to Freelancers.
(b) Duration of Processing: For the duration of the provision of the Services.
(c) Nature and purpose of the processing: storing Client Personal Data comprised in Client Material for the purposes of onward transmission to Freelancers who will undertake processing in respect of a Brief.
(d) Type of Personal Data: Any personal data comprised in Client Materials submitted direct to Smart Business Solutions by the Client (not including Client Materials submitted direct to Freelancers). This will not include ‘special categories of data’ under Article 9 of GDPR.
(e) Categories of Data Subjects: Data subjects identified in personal data comprised in Client Materials submitted direct to Smart Business Solutions by the Client.
17. FORCE MAJEURE
17.1 Force Majeure Event means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers, subcontractors and Freelancers; and
(i) interruption or failure of utility service.
17.2 Provided it has complied with clause 17.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
17.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
17.4 The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate these Terms by giving 1 week’s written notice to the Affected Party.
18.1 Subject to clause 18.2, no variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 18.2 Smart Business Solutions may revise these Terms from time to time and will notify Client of any change in advance by means of the Website. Smart Business Solutions will only revise the Terms applicable to the then-current Monthly Subscription Charge billing period to the extent that they are necessary to reflect the changes in relevant laws and regulatory requirements. All other revisions will apply from the following Monthly Subscription Charge billing period.
19.1 No failure or delay by a party to exercise any right or remedy provided under these Terms 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.2 A reference to writing or written includes e-mail and interaction through the Website. Any obligation on a party not to do something includes an obligation not to allow that thing to be done. References to clauses are to the clauses of these Terms.
19.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
19.4 The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
19.5 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.
19.6 If any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.7 No person who is not a party to this agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19.8 The agreement constituted under these Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms. Nothing in this clause shall limit or exclude any liability for fraud.
19.9 The Client agrees that any terms and conditions inconsistent with or in addition to these Terms, including any Purchase Order terms and conditions purported to be imposed by Client, shall not be applicable.
19.10 The agreement constituted under these Terms is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms. Smart Business Solutions may at any time on 30 days’ notice assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under these Terms.
19.11 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of 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.
19.12 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19.13 No one other than a party to these Terms, their successors and permitted assignees, shall have any right to enforce any of its terms.