Valid from 01.02.2020
1.1 These General Terms and Conditions (hereinafter “GTC”) apply to all Contracts (as defined in clause 1.4) between smec Ltd, company registration number 12147111 (hereinafter “smec”), and its clients (hereinafter “Client”), regardless of how such Contracts are concluded.
1.2 smec is a service company that serves national and international clients in the fields of e-commerce and online marketing through the provision of software (software-as-a-service solution) and comparable tools, consulting activities and/or paid provision of expertise.
1.3 Conclusion of contract
Unless agreed otherwise in a separate written agreement, the contract between smec and the Client for the use of products and services specified in the individual agreement is concluded as follows: Based on the individual agreement or performance agreement (scope) the Client (supported by smec as needed) commissions smec with the services specified therein. A possibly used scope defines the performance description of the agreed services. smec shall draw up and submit a quotation to the Client for the agreed services. The contract is concluded when the Client signs and returns the quotation
1.4 A “Contract” comprises these GTC, any Software-specific Terms and Conditions (as applicable) and the Scope Document.
1.5 Unless expressly agreed in writing, these GTC apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.6 Within 10 working days of conclusion of the Contract with the Client as set out in clause 1.3, smec may unilaterally withdraw from and/or terminate the Contract for its convenience, without liability to the Client.
2.1 smec will provide consultation and support services to the Client in relation to its online marketing activities in accordance with the Scope. In particular, this consultation and support will be provided through market analysis, conceptual design of advertising campaigns, ongoing assistance therewith and/or provision of software.
2.2 smec makes no warranty regarding the achievement of any predefined campaign objectives or any associated increase in the Client’s revenue. The Client acknowledges smec is under no obligation to achieve specific parameters used to determine the success of a campaign, such as click rates, conversion rates, costs per click, and/or other determinable or measurable parameters with regard to the Client’s revenue or sales numbers.
2.3 The Client acknowledges that the success of an online marketing campaign is dependent on many factors that cannot be controlled or influenced by smec or the Client, regardless of the measures implemented or the advertising budget used. In particular, these factors include supply and demand in the respective target market, availability of the advertised products, online trends and hype and market-relevant activities of competitors.
2.4 The Client’s perception of the success or failure of a campaign that was designed and/or managed by smec will not enable any conclusions to be drawn regarding defective performance or any other breach of contractual obligations. Such defectiveness or breach of contractual obligations can only apply if the campaign designed by smec based on the information provided by the Client was not suitable to achieve the campaign goals indicated by the Client and confirmed by smec even under favourable market conditions.
2.5 Insofar as sample key figures are presented in the context of advertising the services of smec, these figures only illustrate possible market opportunities from the use of services or campaigns provided by smec, based on prior experience. The potentials for improvement in conversion rates, costs per click or other relevant values presented in this context are approximate values that, based on an initial assessment of the market environment of the Client, could be achieved through the use of smec services based on prior experience. However, these improvements do not at any time constitute agreed contractual content or an achievement owed by smec.
3.1 Subject always to the rest of this clause 3, smec:
3.1.1 will make all software provided by smec as part of the Services (“Software”) available for use by the Client 24 hours a day, 365 days a year; and
3.1.2 warrants 99% availability of its Software measured over the calendar year.
3.2 smec may interrupt the provision of its Services and the availability of the Software in order to carry out:
3.2.1 routine, necessary maintenance works (provided that such works will be communicated to the Client in advance where possible and such works will not affect the availability quota); and
3.2.2 emergency necessary maintenance works (provided that such works will be communicated to the Client in advance where possible). It is acknowledged by the Client that such works may affect the availability quota and will not count towards the availability quota (even where the Client was not notified in advance).
3.3 The calculation of availability will not take into account, and smec is not responsible for internet/network-related and similar downtime resulting from hardware and software being down due to technical or other problems outside the smec’s control (including, without limitation, force majeure events, or any fault of Google or other third parties).
4.1 The Client will keep up to date the data and information that smec requires for the provision of the Services and will provide this data and information in a format that is suitable for smec’s processing. smec is not responsible for any damage or loss resulting from the delayed or inaccurate provision of data by smec.
4.2 If, when managing a campaign (e.g. Google Ads), smec is required to administer or use a media budget for the Client, the Client will provide the funds to be administered or used to smec in advance of expenditure by smec and in a timely manner. It is acknowledged by the Client that smec is under no obligation to use its own funds for the execution of a Client’s campaign. smec will have no liability to the Client for any damage, loss (including any loss of profit) or decrease in remuneration suffered by the Client as a result of the Client’s failure to provide any agreed media budget to smec in a timely manner in advance.
4.3 The Client must provide all login data and passwords required by smec for the provision of the Services and, in the event of any changes to such login data and passwords, immediately inform smec of the updated data in writing.
4.4 At the request of the Client, smec will return any of the Client’s login data and passwords to the Client. smec acknowledges that it has no right to retain such data following such request from the Client.
4.5 The Client must keep all login data and passwords necessary for its use of Software secure, not to share them with, and prevent any unauthorised access by, third parties. In the event of any loss, dissemination (whether intentional or not) of, or unauthorised access to, this data, the Client must immediately inform smec in writing. The Client will indemnify and hold harmless smec for all loss and damages incurred by smec resulting from the loss, dissemination of, or unauthorised access to, such login data.
4.6 If smec is required to attend appointments (including, without limitation, conferences, workshops, review meetings) on-site at the Client’s premises, smec is entitled to charge the Client for as follows:
4.6.1 travel allowance for each smec employee attending the appointment per day. For the avoidance of doubt, this lump sum will include travel costs by car, train and taxi as well as other costs and expenses like parking fees and daily allowances.
4.6.2 If arrival and departure by plane is reasonably necessary or hotel and/or other accommodation costs are reasonably necessary, both due to the long duration as well as due the timing of the appointment, these actual costs will be charged additionally to the Client without surcharge. smec will pay attention to choosing the cheapest and most efficient way for different connections and transport options. In the event of a postponement or cancellation of the appointment by the Client, the Client must reimburse smec for any non-refundable travel and subsistence costs and/or cancellation costs which are incurred by smec; and
4.6.3 time spent by smec employees travelling to on-site appointments on a per employee basis (such amounts to be charged separately at the applicable hourly rate and/or deducted from any agreed monthly quota).
4.7 The Client is solely responsible for paying any foreign currency charges incurred in connection with payments or other transactions, and such charges must in no circumstances be charged to smec.
4.8 The Client acknowledges that if Services are quoted at a per-employee daily or hourly rate, this information constitutes an estimate (to the best of smec’s knowledge) of the time and cost to be incurred for the result desired by the Client. If Services are agreed in the form of a lump sum, this includes all services described in detail in the Scope Document. If smec’s actual outlay or incurred costs exceeds the costs specified in an estimate or Scope Document, smec reserves the right to charge for any extra time or effort expended at the defined hourly rate.
5.1 smec undertakes to provide the Services in accordance with the Contract, but makes no warranty regarding the achievement of any outcome intended by the Client.
5.2 smec provides its Services both manually (as performed by smec’s employees) and automatically (via the Software). The fact of whether in an individual case an activity was performed manually or with automated assistance cannot be used to justify a conclusion that Services are defective or that there has been a breach of any contract by smec.
5.3 The Client acknowledges that smec’s campaigns (which may form part of the Services) always extend over several months. During this period, phases of active campaign operations (campaign initiation and updates) alternate with phases of fewer modifications (campaign observation and evaluation), and in some of these phases measures will neither be implemented by employees nor by the Software used. This irregularity is an essential part of a long-term advertising campaign and will not under any circumstances be considered defective provision of the Services, or any breach of contract by smec.
6.1 Nothing in the GTCs (or any Contract) excludes or limits the liability of either party for:
6.1.1 death or personal injury caused by its negligence;
6.1.2 fraud or fraudulent misrepresentation; or
6.1.3 any other liability which cannot lawfully be excluded or limited.
6.2 This clause 6 sets out the entire financial liability of smec (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client in respect of:
6.2.1 any breach of a Contract;
6.2.2 any use made by the Client of the Services; and
6.2.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
6.3 Except as expressly and specifically provided in a Contract:
6.3.1 conditions, warranties, terms and undertakings (whether express or implied), statutory or otherwise relating to the delivery, performance, quality, accuracy, uninterrupted availability and use, fitness for purpose or reliability of the Services are hereby excluded to the fullest extent permitted by applicable laws;
6.3.2 smec will have no liability for any loss or damage caused by:
18.104.22.168 any translation errors in foreign language services (including, without limitation, translations in foreign language campaigns using a third-party tool) and related adverse consequences and damages. If possible, smec will forward the translated version to the Client for approval in advance;
22.214.171.124 any third-party content or links to third-party content present in the Software or other Services;
126.96.36.199 cyberattacks, hacking or phishing attacks against smec or the Client;
188.8.131.52 the theft during a cyberattack of software login data and/or passwords or other data for or used by smec and provided to smec by the Client;
184.108.40.206 malfunction of software that is used or provided by the Client.
6.4 Subject to clause 6.1 and clause 6.5, smec will not, under any circumstances, be liable for any of the following arising from or connection with a Contract:
6.4.1 loss of profits (whether considered to be a direct or indirect loss);
6.4.2 loss of business;
6.4.3 depletion of goodwill and/or damage to reputation;
6.4.4 loss of anticipated savings;
6.4.5 loss of contract;
6.4.6 loss of, damage to, or corruption of data (or damage resulting from such loss of, damage to, or corruption of data);
6.4.7 damage to software;
6.4.8 loss of advertising spend, budget or costs (including, without limitation, any costs;
6.4.9 advertising costs paid out by the Client during advertising campaigns managed by smec and/or advertising costs administered by smec itself for third parties (e.g. Google Ads);
6.4.10 loss of use; or
6.4.11 any special, indirect or consequential loss,
6.5 Subject to clause 6.1 and 6.4, smec’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract will be limited to:
6.5.1 where the event is covered by smec’s liability insurance, the insurance sum of the liability insurance of smec; or
6.5.2 where the event is not covered by smec’s liability insurance; the fees paid by the Client to smec in the 12 month period preceding the date on which the claim arose (excluding any advertising spend, advertising costs or media budget that is administered by smec for the Client).
6.6 smec will have no liability to the extent its failures are caused or contributed to by the Client’s failure to meet any requirements or obligations of smec under the Contract.
6.7 If the Client is provided with clearly marked ALPHA and/or BETA functions for test use of the software delivered to them, any use is at the risk of the Client. The Client recognises that these functions are not fully technologically developed, may contain defects or errors and could cause damage to the Client’s system. In the event of use, smec will have no liability to the Client and provides no warranty regarding the Client’s use of such software.
6.8 The Client undertakes to regularly, but at least on a weekly basis, create backup copies or have copies created of any data sent to smec in connection with the Services and/or to which smec is granted access. In the event of loss, failure to create backup copies will constitute a breach of the Client’s duty to mitigate damages.
6.9 smec will only be liable for regularly checking that the tools used by smec for bid management are functioning correctly.
6.10 Notwithstanding anything else in a Contract, the Client will indemnify, keep indemnified and hold harmless smec (together with its respective employees, officers, subcontractors and agents) in full against all actions, proceedings, demands, claims, judgments and liabilities (howsoever arising and whether in contract, tort, negligence or for breach of statutory duty or misrepresentation) for damages, costs, expenses or any other loss of whatsoever nature including damage to property, financial loss, personal injury and death, which is asserted in any claim or threatened claim by any third party against smec and which relates to or arises from any advertising campaign or other activity conducted by the Client (whether via its Google Ads account or otherwise), including, without limitation, any allegation that such activity:
6.10.1 infringes or misappropriates the intellectual property rights of any third party;
6.10.2 contains any inaccurate, anti-competitive or illegal information;
6.10.3 amounts to anti-competitive behaviour; or
6.10.4 otherwise infringes the rights of any third party.
7.1 The contractual relationship between smec and the Client is – unless otherwise agreed in writing – concluded for an indefinite period of time.
7.2 Unless otherwise agreed in writing, the fee to be paid by the Client is based on the currently valid price list. If smec provides any part of the Services on a daily, per person rate, the parties may agree an increased quota at any time by written agreement, subject always to such increase being no less than 0.5 person-days (and where one person day consists of 8 working hours directly assignable to the Client or the Client’s project). Any unused quota will be carried over to the following month and billed annually or upon termination of the Contract.
7.3 Unless otherwise agreed in writing, smec will invoice the Client for the fees in advance on a calendar monthly basis (each monthly billing cycle being from the first of the month to the last day of the month). If the first day of provision of the Services is not the first day of the month, the partial month will be calculated and charged on a pro-rata basis. Thereafter, smec will invoice in advance on a calendar monthly basis.
7.4 Payment for services agreed to be provided on a one-off basis or regularly (such as initial adjustments to the software during setup or account management), plus the applicable VAT, is payable monthly in advance within 10 days of the invoice date.
7.5 The invoices will be sent to the Client at the e-mail address deposited by the Client or provided in the individual agreement.
7.6 If the contractual relationship was concluded for an indefinite period of time, each of the contracting parties has the right to terminate the contractual relationship with one month’s notice to the end of the current billing cycle. The Client must send its notice of termination to [email protected], or it will not be considered to have been received.
7.7 If a contract was concluded between the parties for a set period of time, neither of the parties will be entitled to give ordinary notice of termination. A contractual relationship concluded for a set period of time will, upon expiry of the set period, automatically be renewed for a further set period of the same duration unless it is terminated by one of the contracting parties in writing in compliance with a notice period of one month to the end of the contract term.
7.8 Prohibition of compensation and assignment
The Client may only offset or assert a right of retention with legally determined or uncontested claims against smec. The Client can only assign receivables from this contract to third parties with written approval from smec.
8.1 All agreed prices and conditions will be adjusted by smec at the beginning of each calendar year, at the earliest after the first year of the contract period (maximum once a year), by the increase of the Consumer Price Index (CPI UK, 2015) that has occurred in the last 12 months.
8.2 In addition, a price adjustment by smec is also permitted in case of an increase of other external factors, beyond smec’s control (such as an increase or new introduction of legally prescribed fees), during the contract period; in this case the price adjustment is made in the same proportion as the increase of the respective external factor.
8.3 The temporary omission of a price adjustment shall not constitute a waiver by smec of the annual price and conditions adjustment.
9.1 Prices and payment terms for the smec services used by the Client will be stipulated in individual agreements or product-specific terms and conditions.
9.2 All smec services that are not performed on a one-off basis share the feature that costs associated with the implementation of the software necessary for the performance of the service as well as with market observation and campaign organisation will not initially be reimbursed in full, but will be taken into account in the ongoing support costs.
9.3 smec is entitled, in the event of a qualified payment default by the Client, to suspend the provision of its Services and/or the functionality of the Software until all outstanding and due payments have been made in full by the Client. For the purpose of this clause, a “qualified payment default” is where payments (or parts thereof) have not been made despite a written reminder from smec, in which smec provided a subsequent and reasonable period for remedy (such period to be determined in smec’s absolute discretion).
9.4 smec’s right to suspend its own service and/or the functionality of the software used or provided will not entitle the Client to refuse payment of current claims or (even only) withhold partial amounts. A justified pause by smec will not constitute grounds for the Client to end the contractual relationship with smec early for good cause.
9.5 In the event of late payment in the case of a Contract for payments in instalments, smec will be entitled at any time to demand, and the Client must make immediate payment of all outstanding amounts to smec.
9.6 If the Client is in default of an agreed (partial) payment, smec is entitled to charge default interest in the amount of 8 percentage points plus the Bank of England base rate for business to business transactions. The assertion of additional default damages or reminder charges and the costs for corresponding legal prosecution will remain unaffected by this. In the event of default of payment, including for partial payments, all possible discount agreements become void. In the event of default of payment, pre-established instalment deadlines will also cease to apply. If the Client is in qualified default of payment (9.3), smec is also entitled to declare immediate dissolution of the contractual relationship with good cause.
10.1 The parties acknowledge and agree that the intellectual property rights including without limitation all copyrights as well as all rights in software and source codes, trade mark rights and patentable rights in the Software, smec’s website and/or any other materials produced by smec pursuant to the Services (whether in hard copy or electronic form), belong to smec or its licensors.
10.2 The Client will not:
10.2.1 copy, modify, adapt, convert, duplicate, create derivative works from, make error corrections to, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Services in any form or media or by any means;
10.2.2 de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form or in any other manner decode all or any part of the Software and/or Services without prior written approval from smec (not to be unreasonably withheld or delayed);
10.2.3 access, store, distribute or transmit any virus during the course of its use of the Software and/or Services by virtue of employing reasonable anti-virus measures, and smec reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to the Software, Services or material that breaches the provisions of this clause 10.2.3;
10.2.4 assign, transfer, charge, sublicense or deal in any other manner with the Software and/or Services other than as specified under a Contract or with prior written approval from smec;
10.2.5 use the whole or any part of the Software and/or Services other than in accordance with the terms of the Contract;
10.2.6 sell, rent, lease, distribute, display, disclose, or otherwise make the Services and/or the Software available to any third party;
10.2.7 obtain, or assist third parties in obtaining, access to the Services and/or Software; or
10.2.8 access all or any part of the Services and/or the Software in order to build a product or service which competes with all or any part of the Services and/or the Software.
10.3 By using the Software provided by smec, no “personal data” (as defined in EU Regulation 2016/679 “GDPR”) will be recorded and processed. In the event that the Client wishes smec to process personal data on its behalf, the parties undertake to create the legally necessary framework conditions in accordance with the Data Protection Act 2018 and the GDPR.
Both contracting parties are obligated to keep confidential information of the contractual partner that is marked as confidential, to protect it appropriately, and not to disseminate it to third parties. This confidentiality obligation must be conferred by the contracting parties on their respective employees and external professionals (tax advisers, lawyers, IT service providers etc.). The confidentiality obligation covers all information and documents transmitted or made available by smec (eg presentations, contracts, offers, price lists). The confidentiality obligation does not extend to information that was known to the respective contractual partner before contract initiation or conclusion or that is or becomes public knowledge.
Each party may terminate the Contract immediately on written notice at any time for material breach. In particular, the following reasons constitute a material breach:
12.1 non-contractual use of the Software and services by the Client despite a written reminder from smec;
12.2 the Client becoming insolvent or going into liquidation (except for purposes of reconstruction while solvent) or becoming unable to pay its debts or having a receiver appointed over any of its business or any comparable action is taken in relation to the Client in any jurisdiction;
12.3 any other behaviour of the Client that in smec’s reasonable opinion makes it unreasonable for smec to continue the Contract.
13.1 smec may from time to time amend the GTC, including, without limitation, to take account of changed legal framework conditions or to include new / changed services.
13.2 smec will notify the Client in writing no longer than one month before the proposed date of entry into force of the new terms with reference to the affected changes. The changes will be deemed approved by the Client unless the Client objects in writing to the changes 7 days prior to the proposed effective date. smec will also inform the Client about this right to objection. The period for objection is only respected, if the objection is received by smec within the deadline.
14.1 A Contract 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) will be governed by and construed in accordance with the law of England and Wales.
14.2 Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
15.1 If any provision of a Contract is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that will not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of a Contract, or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of a Contract.
15.2 This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. All agreements made prior to or upon conclusion of the contract and all declarations of intent or knowledge (in particular in preliminary discussions or advertising material) will lose all validity upon signature of the contract or these GTC. There are no oral ancillary agreements. Addenda and changes to the contractual relationship require the written form unless otherwise agreed in these terms and conditions. This also applies to the revocation of the written form requirement.
15.3 No person who is not a party to this agreement will have any right to enforce it pursuant to the Contracts (Rights of Third Parties) Act 1999.