Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer's acceptance of these Terms and Conditions before providing any such services to the Customer.
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Charges" means the following amounts:
the amounts specified in Section 4 of the Services Order Form;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer" refers to you or your organisation
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider during the Term of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(iii) data supplied by a Customer that may identify an individual patient;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer (for example note templates); transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Customer Indemnity Event" has the meaning given to it in Clause 17.3;
"Customer Personal Data" means Personal Data that is processed by the Provider on behalf of the Customer as data processor in relation to the Agreement and includes any data relating to an identified or identifiable natural person (such as name, email address, date of birth, telephone number).
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer.
"Effective Date" means the date following the Customer completing and submitting the online Sign Up Form published by the Provider on the Provider's website.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the Smilenotes application, which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Minimum Term" means, in respect of the Agreement, the minimum subscription period selected by the Customer at sign-up, being either one month or one year, as applicable;
"Mobile App" means any mobile application made available by the Provider from time to time through the Google Play Store and/or the Apple App Store in connection with the Hosted Services.
"Permitted Purpose"
means the use of the Hosted Services by the Customer for lawful clinical, administrative, record-keeping, practice management, and patient communication purposes, including the sending of service-related emails, appointment notifications, reminders, and operational communications via the Services, in accordance with these Terms and Conditions.
"Personal Data"
has the meaning given to it in the UK GDPR, the EU GDPR (Regulation (EU) 2016/679) where applicable, and the Data Protection Act 2018.
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Smile Notes Ltd, a company incorporated in England and Wales (registration number 9447490) whose registered office is at 40 Fisher Hill Way, Cardiff, CF15 8DR, trading as “Smilenotes”.
"Provider Indemnity Event" has the meaning given to it in Clause 17.1;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online Sign Up form published by the Provider and completed and submitted by the Customer, incorporating these Terms and Conditions by reference;
"Set Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Section 2 of the Services Order Form;
"Support Services" means support in relation to the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Google Chrome, Mozilla Firefox, Apple Safari or Microsoft Edge, or any other modern web browser that the Provider agrees in writing shall be supported;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3.1 The Provider shall provide the Set Up Services to the Customer.
3.2 The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in Section 2 of the Services Order Form.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 1 8.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.
3.4 Subject to any written agreement of the parties to the contrary, the Provider shall retain all Intellectual Property Rights in the tools, methods, structures, layouts and configuration techniques used in the performance of the Set Up Services. Customer-specific instances of configured templates remain available for the Customer’s use within the Hosted Services.
4.1 The Provider shall create an Account for the Customer on or promptly following the Effective Date and shall provide login details for that Account to the Customer.
4.2 The Provider hereby grants to the Customer a licence to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the named users identified in the Services Order Form (or an employee or person under direct supervision of the Customer);
(b) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Services Order Form;
4.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
(f) the Customer must not rely on the Hosted Services as a substitute for professional clinical judgment, diagnosis or treatment decisions.
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
4.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer Account comply with Schedule 1 (Acceptable Use Policy).
4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, provided that the Provider has given the Customer reasonable prior notice of such suspension.
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
6.3 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue.
6.4 Template Configuration Services.
6.5 Where the Customer requests assistance in creating or configuring templates, workflows, or forms within the Services, the Provider will implement such templates based solely on the Customer’s instructions. The Provider does not review, validate, or approve the clinical, regulatory, or professional suitability of any template.
6.6 Templates configured at the Customer’s request do not constitute medical, clinical, or professional advice. The Customer remains solely responsible for ensuring that all templates are clinically appropriate, lawful, and compliant with applicable professional and regulatory requirements.
6.7 Customer Materials.
6.8 The Customer warrants that any documents, guidance, or materials provided to the Provider do not contain Personal Data unless strictly necessary for the requested configuration and expressly permitted under the Data Processing Agreement. The Customer must not provide real patient data or special category data as part of any template configuration request.
6.9 Ownership and Reuse.
6.10 Templates configured for a Customer remain available for that Customer’s use within the Services. The Provider retains all intellectual property rights in the underlying software, template structures, logic, layouts, and non-identifying configuration methods, and may reuse generalised and anonymised elements for the purpose of improving the Services, provided that such reuse does not identify the Customer or include Customer-specific content.
7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.
8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, process, transmit and transform the Customer Data solely to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for such performance.
8.2 The Customer warrants to the Provider that the Customer Data / the use of the Customer Data by the Provider in accordance with the Agreement will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
8.3 The Provider shall create a back-up copy of the Customer Data on a daily basis and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken. Back-ups are maintained for disaster recovery purposes only and do not constitute an archival or long-term data retention service.
8.4 For the avoidance of doubt, templates, workflows or configurations created by the Provider at the Customer’s request may incorporate Customer guidance but shall not include Customer Personal Data. Ownership and reuse of such templates is governed by Clauses 3.4, 6.7 and 10.
10.1 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
11.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
11.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
11.3 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the date of execution of the Agreement.
12.1 Payment is not required to start a 30 day free trial of the service.
At the end of the trial period a subscription plan must be selected to continue using the service.
The Customer must pay the Charges in advance by credit/ debit card using the secure online form powered by Stripe.com;
If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may suspend or terminate access to the Platform in accordance with Clauses 4.11 and 20.4.
13.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer / no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
13.2 Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
13.3 This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is lawfully disclosed to the Provider by a third party without restriction on disclosure.
13.4 The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
13.5 The provisions of this Clause 13 shall continue in force indefinitely following the termination of the Agreement.
14.0 Data location and storage The Hosted Services are designed to store and process Customer Data within data centres located in the United Kingdom and/or the European Economic Area (EEA). Where Customer Data is stored or processed within the EEA, such processing shall be subject to the EU GDPR in addition to the UK GDPR, as applicable.
14.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the UK GDPR and the Data Protection Act 2018).
14.2 The Provider warrants to the Customer that:
(a) it will act only on instructions from the Customer in relation to the processing of Customer Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data;
(c) it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement;
(d) it will process the Customer Personal Data in compliance with all applicable laws; and
14.3 The Provider shall notify the Customer as soon as practicable if:
(a) any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
(b) the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or
(c) the Provider receives a request from a data subject for access to any of the Customer Personal Data.
14.4 The Provider shall co-operate with the Customer in relation to:
(a) any request from the Customer to amend or delete any of the Customer Personal Data;
(b) any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and
(c) any request from a data subject for access to any of the Customer Personal Data, at the cost and expense of the Customer.
14.5 The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.
14.6 The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider's duties in respect of that Personal Data.
14.7 The parties acknowledge that, for the purposes of the UK GDPR, the Customer is the data controller and the Provider is the data processor. The processing of Customer Personal Data shall be governed by Schedule 5 – Data Processing Agreement, which is incorporated into and forms part of this Agreement.
15.1 The Provider warrants to the Customer that:
(a) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions;
16.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
16.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure. The Customer accepts responsibility for the risks arising out of its use of the Hosted Services, including risks associated with security and performance, subject always to the Provider complying with its obligations under Clause 14.
16.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
16.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16.5 In the event of any loss or damage to your data, the Provider will make reasonable endeavours to restore data from the latest back-up.
16.6 The Hosted Services are a record-keeping and practice management tool only and do not provide medical, clinical or diagnostic advice. The Customer remains solely responsible for compliance with all applicable professional, clinical and regulatory obligations.
17.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions.
18.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
18.2 The limitations and exclusions of liability set out in this Clause 18 and elsewhere in the Agreement:
(a) are subject to Clause 18.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
18.3 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
18.4 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
18.5 The Provider shall not be liable to the Customer in respect of any loss of use or production.
18.6 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
18.7 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
18.8 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
18.9 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total Charges paid by the Customer to the Provider in the one month immediately preceding the event or series of related events.
18.10 Demonstration Template Collections are provided for illustrative purposes only, are not endorsed by any professional or regulatory body, and must be reviewed and customised by the Customer prior to clinical use.
18.11 Nothing in this Agreement shall limit or exclude either party’s liability to the extent such liability may not be limited or excluded under applicable data protection law, including the UK GDPR, the EU GDPR (where applicable), or the Data Protection Act 2018.
18.12 The Customer acknowledges that, in entering into the Agreement, it has not relied on any representation, warranty or statement made by or on behalf of the Provider that is not expressly set out in the Agreement, and shall have no remedy in respect of any such representation, warranty or statement.
19.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
19.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
19.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
20.1 The Provider may terminate the Agreement by giving to the Customer not less than 30 days' written notice of termination, expiring at the end of any calendar month. The Customer may terminate the Agreement by providing written instructions using the online form made available on the Settings Page. The Customer remains liable for payment of the applicable Minimum Term (being either one month or one year, depending on the subscription selected).
20.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach / material breach of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(b) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
20.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
20.4 The Provider will terminate the Agreement immediately if:
(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid.
20.5 Upon termination of the Agreement for any reason, the Customer shall have a reasonable period to export Customer Data, after which the Provider may securely delete such data in accordance with its data retention policy, subject to applicable law.
20.6 Following termination or expiry of the Agreement for any reason, the Customer may request a copy of its Customer Data in a commonly used, machine-readable format for a period of 30 days following termination. After such period, the Provider shall securely delete or anonymise the Customer Data in accordance with its retention policies, unless retention is required by applicable law.
23.1 Notwithstanding any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
25.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
25.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
26.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
26.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
27.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
27.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
28.1 The Provider may vary the Agreement by giving the Customer at least 30 days’ written notice of the proposed variation.
28.2 If the Customer does not agree to a proposed variation under Clause 28.1, the Customer may terminate the Agreement by giving written notice to the Provider within 14 days of receipt of the variation notice.
28.3 Continued use of the Services following the expiry of the notice period shall constitute acceptance of the variation.
29.1 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
29.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
29.3 The provisions of this Clause 29 are subject to Clause 18.1.
30.1 The Agreement shall be governed by and construed in accordance with the laws of England and Wales.
30.2 The courts of England and Wales shall have exclusive jurisdiction.
31. Interpretation
31.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
31.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
31.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the website at https://smilenotes.co.uk any successor website, and the services available on that website or any successor website (the " Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Smilenotes (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services or by agreeing to this Policy, you warrant and represent to us that you are at least 18 years of age.
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6.1 Content must not consist of advice or instructions published for general use outside the Customer’s private professional records where such advice could reasonably be expected to cause harm if acted upon.
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
10.1 You acknowledge that we do not actively monitor the Content or the use of the Services.
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
1.1 This Schedule 2 sets out the Provider's availability commitments relating to the Hosted Services.
1.2 In this Schedule 2, "uptime" means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.
2.1 The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.5% during each calendar month.
2.2 The Provider shall not be liable for any failure to meet the availability target except to the extent that such failure arises directly from the Provider’s failure to use reasonable endeavours in accordance with this Schedule.
2.3 The availability target set out in this Schedule is a target only and not a guarantee or warranty. Except as expressly stated in this Schedule, the Customer acknowledges that it has no right to service credits, refunds, or other compensation in respect of any failure to meet the availability target.
1.1 This Schedule 3 sets out the service levels applicable to the Maintenance Services.
2.1 The Provider shall where practicable give to the Customer written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.
2.2 The Provider shall provide all scheduled Maintenance Services outside Business Hours.
3.1 The Provider shall apply Updates to the Platform as follows:
(a) third party security Updates shall be applied to the Platform;
(b) the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
(c) other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer.
4.2 The Provider shall give to the Customer at least 5 Business Days' prior written notice of the application of an Upgrade to the Platform.
2.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3 The Provider shall ensure that the helpdesk is accessible by email and using the Provider's web-based ticketing system.
2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
This DPA governs processing of Personal Data for the duration of the Agreement and any post-termination deletion period.
Processing includes storage, retrieval, transmission and deletion of Personal Data for the purpose of providing the Hosted Services. Processing may also include the review of Customer-provided instructions or documents for the purpose of configuring templates or workflows at the Customer’s request. Such documents are used solely to carry out the requested configuration and are deleted following completion. Processing may take place within the United Kingdom and/or the European Economic Area (EEA), depending on system architecture, resilience, and availability requirements. No processing outside these regions occurs unless appropriate safeguards are implemented.
The Customer is the Controller.
The Provider is the Processor.
The Provider shall:
Measures include:
7.1 The Provider may appoint sub-processors for hosting, infrastructure, and related services. The Provider shall make available an up-to-date list of sub-processors on request or via its website and shall remain fully responsible for the acts and omissions of its sub-processors.
7.2 Without limitation to the foregoing, the Provider uses Stripe Payments Europe, Ltd. as a sub-processor for the purpose of processing subscription payments. Such processing may include the Customer’s billing contact details and payment-related metadata. Stripe acts as an independent controller in respect of payment card data and as a processor or controller (as applicable) in respect of other personal data, in accordance with its own privacy documentation.
7.3 The Provider uses The Rocket Science Group LLC (trading as “Mailchimp”) as a sub-processor for the purpose of managing email communications relating to the Services, including service notices, onboarding communications, and product-related updates. Such processing may include the Customer’s name, email address, and related account metadata.
7.4 The Provider uses SparkPost, Inc. as a sub-processor for the purpose of sending transactional and service-related email communications via the Services. Such communications include: (a) user account and security-related emails (including welcome messages, authentication messages, and password resets); and (b) patient-facing communications initiated by the Customer, including appointment confirmations, notifications, reminders, and other administrative messages relating to the Customer’s use of the Services. Processing may include email addresses, names, appointment metadata, and related identifiers.
7.5 The Provider remains fully liable for sub-processors.
8.1 Customer Data may be stored and processed within the United Kingdom and/or the European Economic Area (EEA).
8.2 Where Customer Data is processed within the EEA, such processing shall be subject to the EU GDPR.
8.3 Customer Data shall not be transferred outside the UK or the EEA unless appropriate safeguards are in place in accordance with the UK GDPR and EU GDPR, including adequacy regulations or standard contractual clauses.
The Provider shall make available information reasonably necessary to demonstrate compliance. Such information shall be provided subject to reasonable confidentiality and security requirements.
Each party is liable for breaches of UK GDPR caused by its own acts or omissions.
On termination, Personal Data shall be securely deleted or returned in accordance with retention policies.
Nature and purpose of processing
Creation, configuration, or modification of clinical note templates within the Smilenotes platform at the Customer’s request, based on written instructions or guidance provided by the Customer.
Duration of processing
For the duration of the configuration task only. Any Customer-provided documents are deleted promptly following completion of the requested work.
Categories of Data Subjects
As determined by the Customer. No data subjects are required for template configuration.
Categories of Personal Data
Not intended to include Personal Data. Where Customer-provided materials contain limited Personal Data, such data is processed solely to fulfil the Customer’s documented instructions.
Special Categories of Personal Data
Not required. Customers are instructed not to include special category data.
Processing operations
Review of Customer instructions, configuration of template structure and fields within the Smilenotes system, and deletion of Customer-provided source materials after completion.
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