THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF clause 8.

1.Interpretation

1.1Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases Services from the Supplier.

Customer Default : has the meaning set out in clause 4.2.

Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.

Data Subject: an individual who is the subject of Personal Data.

Deliverables: the Smilefile Services delivered by the Supplier for the Customer.

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.

Order: the Customer's written acceptance of the Supplier's quotation.

Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Company is the Data Controller and in relation to which the Processor is providing services under this agreement.

Processing and process: have the meaning set out in section 1(1) of the Data Protection Act 1998.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.

Supplier: J J Thompson (Orthodontic Appliances) Limited registered in England and Wales with company number 00812727.

Supplier Materials: has the meaning set out in clause 4.1(g).

1.2Interpretation:

(a.b.a)A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(a.b.b)Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(a.b.c)A reference to writing or written includes email.

2.Basis of contract

2.1The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3Any descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3.Supply of Services

3.1The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Supplier’s quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4.Customer's obligations

4.1The Customer shall:

(d.a.a)ensure that the terms of the Order are complete and accurate;

(d.a.b)co-operate with the Supplier in all matters relating to the Services;

(d.a.c)provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's facilities and/or information technology as reasonably required by the Supplier in order to be able to deliver the Service;

(d.a.d)provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(d.a.e)prepare the Customer's information technology systems for the supply of the Services

(d.a.f)obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

(d.a.g)keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and

(d.a.h)comply with any additional obligations as set out in the Specification.  

4.2If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(d.b.a)the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(d.b.b)the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and

(d.b.c)the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5.Data Protection

5.1The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.

5.2The Supplier shall process the Personal Data only in accordance with the provision of the Services and shall not process the Personal Data for any purpose other than those expressly authorised by the Customer.

5.3The Supplier shall take reasonable steps to ensure the reliability of all its employees and any third parties who may have access to the Personal Data.

5.4Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

5.5The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:

(e.e.a)take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

(v.v.i.i)the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

(v.v.i.ii)the nature of the data to be protected.

(e.e.b)take reasonable steps to ensure compliance with those measures.

5.6Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this agreement.

5.7The Customer acknowledges that the Supplier is reliant on the Customer for ensuring that the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer's instructions or failure to obtain permission from a Data Subject for the processing of their data.

5.8The Supplier may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor's contract:

(e.h.a)is on terms which are substantially the same as those set out in this agreement; and

(e.h.b)terminates automatically on termination of this agreement for any reason.

6.Charges and payment

6.1The Charges for the Services shall be as set out in the Supplier’s quotation.  

6.2The Supplier shall invoice the Customer monthly in arrear.

6.3The Customer shall pay each invoice submitted by the Supplier:

(f.c.a)within 30 days of the date of the invoice; and

(f.c.b)in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

6.4All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.5If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment , then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above HSBC 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 Customer shall pay the interest together with the overdue amount.

6.6The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7.Intellectual property rights

7.1All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

7.2The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

7.3All Supplier Materials are the exclusive property of the Supplier.

8.Limitation of liability:

8.1Nothing in the Contract shall limit or exclude the Supplier's liability for:

(h.a.a)death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(h.a.b)fraud or fraudulent misrepresentation; or

(h.a.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.

8.2Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(h.b.a)loss of profits;

(h.b.b)loss of sales or business;

(h.b.c)loss of agreements or contracts;

(h.b.d)loss of anticipated savings;

(h.b.e)loss of use or corruption of software, data or information;

(h.b.f)loss of damage to goodwill; and

(h.b.g)any indirect or consequential loss.

8.3Subject to clause 8.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.

8.4The 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 the Contract.

8.5This clause 8 shall survive termination of the Contract.

9.Termination

9.1Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 3 months' written notice.

9.2Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(i.b.a)the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(i.b.b)the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(i.b.c)the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(i.b.d)the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.  

9.4Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10.Consequences of termination

On termination of the Contract for any reason:

(j..a)the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(j..b)the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(j..c)the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(j..d)clauses which expressly or by implication survive termination shall continue in full force and effect.

11.General

11.1Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2Assignment and other dealings.

(k.b.a)The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

(k.b.b)The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

11.3Confidentiality.

(k.c.a)Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).

(k.c.b)Each party may disclose the other party's confidential information:

(xi.iii.ii.i)to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and

(xi.iii.ii.ii)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(k.c.c)Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

11.4Entire agreement.

(k.d.a)This agreement 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.

(k.d.b)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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

11.5Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(k.f.a)waive that or any other right or remedy; or

(k.f.b)prevent or restrict the further exercise of that or any other right or remedy.

11.7Severance. If any provision or part-provision of the Contract 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 the Contract.

11.8Notices.

(k.h.a)Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.

(k.h.b)A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

(k.h.c)The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.9Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.

11.10Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.11Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.