Terms and Conditions of Use
Last updated: 17th November 2021
Reason for update: Clarification for post-Brexit data handing
1. In these Terms & Conditions the following words have the following meaning:
1.1. “Applicable Laws” means any law, statute, regulation or by-law that may apply from time to time in any jurisdiction to the delivery of the Services;
1.2. “Authorised User” means any party authorised by a Subscriber to access the Services.
1.3. “Commencement Date” means the date we first deliver the Services(s) to you.
1.4. “Company Personal Data” means any Personal Data Processed by a Processor on behalf of the Company pursuant to or in connection with the provision of the Services;
1.5. “Content” means the content owned or licensed by SMB available on the Site including any materials, documents or policies accessed or used in any way.
1.6. “Content Provider” means any person providing Content to or services accessed through the Site.
1.7. “Data Protection Laws” means the UK Data Protection Laws and to the extent applicable EU Data Protection Laws;
1.8. “Delete” means to remove or obliterate Personal Data such that it cannot be recovered or reconstructed;
1.9. “EEA” means the European Economic Area;
1.10. “EU Data Protection Laws” means EU Regulation 2016/678, known as the General Data Protection Regulation, or GDPR, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time;
1.11. “Fair Use Policy” as detailed in Clause 7.
1.12. “Instructions” means the processing activities you are requesting that we provide as part of the Services, as more specifically defined in clause 4.1 below.
1.13. “Helpdesk” means technical support.
1.14. “Month” means a calendar month commencing on the date we start providing the Services to you and each consecutive calendar month.
1.15. “Online Account” means, where applicable, the online account we have dedicated for your use which is only accessible through our Website using your unique username and password.
1.16. “Sales Literature” means any sales literature provided to you by SMB or that is available via the Website as updated from time to time.
1.17. “Service(s)” means the SMB services as described in our Sales Literature (and, if you have not elected to receive all parts of the service, those parts of it which you have elected to receive).
1.18. “Service Provider” means any authorised reseller of the service under the SMB partner programme or SMB itself where subscribing directly.
1.19. “Site” means www.smb.co.uk or a ‘Service Provider’ site, powered by SMB.
1.20. “SMB”, “we”, “us” and “our” means SMB Partners Limited (company number 06155042) of The Pinnacle, 170 Midsummer Boulevard, Milton Keynes, MK9 1BP.
1.21. “Sub-processor” means any person (other than any employee of SMB) appointed by us or on our behalf to process Company Personal Data.
1.22. “Subscriber” means the party that subscribed for the Services.
1.23. “Term” has the meaning set out in clause 11 below.
1.24. “User” means a Subscriber and/or an Authorised User as the context so permits.
1.25: “UK Data Protection Laws” means the UK GDPR (as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018), the Data Protection Act 2018 as amended and any other legislation relating to personal data in force in the United Kingdom from time to time.
1.26. “the Website” means www.smb.co.uk .
1.27. “you”, “your”, “your company” and “directors” means any subscriber.
1.28. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the UK GDPR/GDPR (as applicable).
2. BECOMING A SUBSCRIBER
2.1. To become a Subscriber of the Service you must agree to these Terms & Conditions. By subscribing and using the Service you confirm your acceptance of these Terms & Conditions.
2.2. By accepting these Terms & Conditions, you undertake that you are authorised to act and to accept these Terms & Conditions on behalf of your business and that you will take all reasonable steps to ensure that Authorised Users comply with the Terms & Conditions. You further agree to fully and effectively indemnify us against any claim arising from a breach or purported breach of this clause.
2.3. We are not authorised and do not give investment, tax, audit or legal advice and we shall have no liability whatsoever to you in connection with these matters.
3.1 For the purposes of the Services we are a Processor and you are a Controller. In our role as a Processor we shall comply with all applicable Data Protection Laws in the Processing of Company Personal Data, and not Process Company Personal Data other than in accordance with the Instructions.
3.2 We may appoint Sub-processors. Before any Sub-processor first Processes Company Personal Data we shall carry out adequate due diligence to ensure that the Sub-processor is capable of providing a level of protection for Company Personal Data equivalent to that provided by us in respect of its performance of the Services. We shall also ensure that the arrangement between us and the Sub-processor is governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Agreement and meet the requirements of article 28(3) of the UK GDPR/GDPR (as applicable). You may request copies of our agreements with Sub-processors at any time by writing to us, and we shall provide you with copies (which may be redacted to remove confidential commercial information) within a reasonable period of time thereafter.
3.3 Our current Sub-Processors are Fasthosts (www.fasthosts.co.uk), Zendesk (www.zendesk.com), Microsoft (www.microsoft.com) and MailChimp (www.mailchimp.com). We may at our reasonable discretion enter into alternative or additional Sub-processor arrangements. If we intend to do so then we will give you one calendar month’s prior written notice of the proposed appointment of any Sub-processor, including full details of the Processing activities to be undertaken by the Sub-processor thereby giving you the opportunity to object so such changes.
3.4 Our Sub-Processor arrangements with Zendesk, Microsoft and MailChimp necessitate the transfer of Company Personal Data outside of the European Economic Area. Adequate safeguards are in place governing the transfer by us of Company Personal Data outside of the EEA. We shall not transfer Company Personal Data outside of the EEA unless appropriate safeguards are in place including Model Contract Clauses.
4. USING THE SERVICE
4.1 By using the Service you are instructing us to Process Company Personal Data for the purposes of human resources management. The Company Personal Data relates to your employees. We shall only Process Company Personal Data inputted and amended by your authorised personnel, so as to produce the reports and outcomes required for the Services. In addition to you, your employees will have access to their Personal Data, and we will Process the Company Personal Data so as to give such access. You authorise us to transfer Company Personal Data outside of the European Economic Area where we deem it reasonably necessary to do so to provide the Services, provided that appropriate safeguards are in place.
4.2 You agree to ensure that all information or documentation that you provide to us or that is provided to us on your behalf is complete, true and accurate, up to date and relevant to you, your company, your Authorised Users and/or your respective affairs. You agree that we may rely on information you provide, in particular, to establish your business status and to provide you with appropriate information. We may suspend your use of the Service if you provide us with inaccurate information.
4.3 As part of the Service, you will need to provide us with Company Personal Data. It is your responsibility to have in place a lawful basis for that processing as required by Article 6 of UK GDPR/GDPR (as applicable) and to have in place appropriate privacy notices directing Data Subjects as to the specific Processing activities conducted by us on your behalf. A privacy notice, detailing the Processing that we undertake can be found on our website at https://www.smb.co.uk/privacy-policy/.
4.4 You agree to indemnify us in respect of any losses or damages suffered by us:
(A) as a result of any misrepresentations or any dishonesty and/or fraudulent behaviour; or
(B) on your part or that of others providing information to us on your behalf; and
as a result of any breach of Data Protection Laws by you.
4.5 You must ensure that you keep us informed of any change of your address, telephone number and email address. If you fail to do so, communications may go astray, for which we will not be responsible.
4.6 You will regularly check for communications from us so that you are fully aware of any changes to the Services.
4.7 You may only use the Service in the course of your normal internal business activities and not for private, personal reasons and not for any third party. The Services may not be suitable for businesses in jurisdictions other than the United Kingdom.
4.8 We may restrict access to your Online Account or the Services at any time to allow for maintenance and updating.
4.9 We have a zero tolerance policy with regard to any abusive behaviour towards our staff or any representative of a 3rd party acting on our behalf. If you act in a manner which, in our reasonable opinion, constitutes abusive behaviour towards our staff or representatives, this will be considered a material breach of these Terms & Conditions and your contract with us may be terminated.
4.10 Your login is for your use only and you must keep your password secret. You may not sell or transfer your login to anyone else.
4.11 All copyright, trade marks, database right and other intellectual property rights in the Services (including the Content ) are owned by SMB or licensed to it by third parties. When you use the Services, you may retrieve and view the Content on-screen and print out on paper or store electronically (including in your ‘my documents’ virtual office) that Content which your subscription model allows you to access.
4.12 If you experience any problems using the SMB Service please contact the Helpdesk at firstname.lastname@example.org or online at http://support.smb.co.uk. For training and quality control purposes, your correspondence may be recorded and/or monitored. Any malicious, fraudulent or hoax correspondence to the Helpdesk may result in your access to the Services being suspended. SMB may restrict access to the Site or the Services at any time to allow for maintenance and updating.
4.13 If any free trial of the Services is offered on the Site, Subscribers of the free trial acknowledge that there may be certain elements of the Services that are not made available to them under the free trial.
5. FAIR USE POLICY
5.1 Our Fair Use Policy is designed to make sure that the Service remains cost-effective, reliable and accurate whenever you use it.
5.2 The vast majority of our customers uses the Service considerately and their usage of resources is not disproportionate. However, a very small number of our Users use the Service inappropriately. This means that service quality for all Users is potentially affected, especially at peak times.
5.3 Our Fair Use Policy manages inappropriate use and makes sure the Service can be used fairly by everyone.
5.4 If you regularly use the Service inappropriately, and we believe this could unfairly affect another User’s use of the Service, we will contact you to inform you of this fact and discuss your usage of the Service with a view to proposing a way to rectify the situation. If you continue to use the Service inappropriately we reserve the right to end your agreement with us or increase your fees inline with your usage. We will, however, discuss this with you and give you notice before proceeding.
5.5 Our Fair Use Policy applies to all our Users. It will affect you only if you are one of the very few Users who make inappropriate use of our Service.
5.6 Our definition of unfair use is any use of the Service by a User that would under reasonable circumstances have the effect of limiting the availability of the Service to any other User.
5.7 If you make use of our unlimited email support facility for non-urgent queries you are unlikely to be affected by our Fair Use Policy.
6. DATA SUBJECTS RIGHTS
6.1 As a Processor we shall implement appropriate technical and organisational measures to facilitate the Company’s ability to respond to requests to exercise Data Subject rights under the Data Protection Laws. In particular we shall promptly notify you if we or any Sub-processor receive a request from a Data Subject under any Data Protection Laws. Neither we nor any Sub-processor shall respond to that request except on your documented instructions, unless so required by Applicable Laws. In that case, and to the extent permitted, we shall inform you of that legal requirement before we or the Sub-processor responds to the request.
7. PERSONAL DATA BREACH
7.1 We shall notify you immediately upon becoming aware of a Personal Data Breach affecting Company Personal Data, and we shall provide you with sufficient information to allow you to meet any obligations to report or inform Data Subjects of the Personal Data Breach under Data Protection Laws or otherwise as required by you. We shall co-operate with you and take such steps as are directed by you to assist in the reporting, investigation, mitigation and remediation of each such Personal Data Breach.
8. DISCLOSURE OF INFORMATION FOR COMPLIANCE PURPOSES
8.1 We shall provide you with reasonable assistance with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which you may reasonably consider necessary to comply with Data Protection Laws. If, in our reasonable opinion, that assistance is going to involve significant cost, time or effort on our part then we may charge for that assistance. If such assistance would involve the disclosure of our confidential information then may refuse to provide such co-operation, or require you to enter into a confidentiality agreement before we disclose it.
8.2 Provided that we receive reasonable notice, then on receipt of a request from you we shall make available to you all information reasonably necessary to demonstrate our compliance with our obligations as a Processor under GDPR, and shall contribute to audits and inspections, where we are reasonably able to do so.
9.1 You must pay for the Service(s) in accordance with our current fee structure which is detailed in your invoices.
9.2 Payment will not be deemed to have been made until the funds have cleared our account. You will pay for the Service(s) by an approved payment method as detailed in your invoices. We will collect and you will pay our fees in advance on a monthly basis.
9.3 Due to the ongoing nature of the Service your chosen payment method may require a limit to be placed on the amount we can bill you for each month. We will usually request a limit higher than the amount of your current Services subscription so that you have the flexibility of being able to increase the Services you wish to receive without needing to cancel your contract and start a new one.
9.4 We will notify you (on your Online Account and/or by email) of any changes to the published fees at least 30 days in advance of such changes.
9.5 We will post the invoice for your fees electronically to your Online Account and you will not receive a paper copy.
9.6 If we agree to provide Services in addition to those specified, you may incur additional charges which we will agree with you in writing prior to the commencement of such services.
9.7 You will pay for (except that no payment is required by a Subscriber of any free trial of the SMB Service that is offered on the Site), and be able to terminate, the SMB Service in accordance with our current termination policy.
10. ARREARS IN FEES AND LATE PAYMENT
10.1 If any fees, expenses or disbursements owed to us by you are more than 30 days overdue or we receive notification from your bank of cancellation of your direct debit or payment authority , we may suspend your Service(s) immediately, including disabling access to your Online Account.
10.2 If you fail to make payment in full on the due date, we may charge you interest on the outstanding fees. Such interest will accrue on a daily basis at the rate of 4% above the base rate of the Bank of England as prevailing at the time from the due date until the date of payment.
10.3 We will only reactivate your Service(s) if you have paid all overdue fees, expenses and disbursements and are not otherwise in breach of these Terms & Conditions. We reserve the right to charge an additional administration fee for reactivation of the Services (including where we must reinstate an approved payment method).
10.4 We accept no liability whatsoever for any direct or indirect losses, such as penalties for late returns to Companies House or HMRC, related to accounts that are on suspension due to non-payment or cancellation of their approved payment method.
11. TERM AND TERMINATION
11.1 The agreement commences on the Commencement Date. Either party may terminate this Agreement on one Month’s notice.
11.2 To terminate any or all of the Services, a nominated representative of the Subscriber should select the option to cancel the subscription within their Online Account.
11.3 If you terminate the Service(s), we will not charge you for closing down your Online Account.
11.4 We may terminate your use of the Service immediately on notice and without refund if, in our reasonable opinion, you have committed a material breach of these Terms & Conditions or you under go any insolvency event (unless for the purpose of a solvent corporate reconstruction).
11.5 Subject to clause 11.6 below, we reserve the right to hold all data, records and information until full payment of any arrears is made.
11.6 On termination you will no longer have access to the subscription-based areas of the Site, including any Content you may have stored. Any Content will be retained in accordance with our standard retention policy. However, within 14 days of Termination you may request that we provide you wish a complete copy of all Company Personal Data by secure file transfer in a commonly used format, or that we delete all copies of Company Personal Data. We shall aim to comply with any such request within 28 days of receipt of it. If such a request is made when arrears are outstanding then we shall only be obliged to comply with any request to the minimum requirements of the Applicable Laws.
12. SECURITY & CONFIDENTIALITY
12.1 We shall ensure all employees, agents or contractors who may have access to Company Personal Data are subject to express, written and legally enforceable confidentiality undertakings; given adequate training on information security; and are subject to disciplinary or similar sanction in the event of a breach of their obligations. We shall also ensure that access to Company Personal Data is strictly limited to those individuals who need to know/access the relevant Company Personal Data for the purposes of providing the Services, and complies with Applicable Laws in the context of that individual’s duties to the Processor.
12.2 We shall, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of unauthorised disclosure or misuse of that information, including, as appropriate, the measures referred to in Article 32(1) of the UK GDPR/GDPR (as applicable), and we shall ensure that when we assess the appropriate level of security, we shall take account of the risks that are presented by Processing, in particular from a Personal Data Breach.
12.3 We expect you to apply adequate security measures to protect Company Personal Data to which you have access. In particular, you must keep the username and password to your Online Account confidential and not divulge it to any third parties.
12.4 Your Online Account will be located on a secure server which conforms to good industry standards for authentication, encryption and data integrity.
12.5 As a Subscriber you may have access to confidential material (including but not limited to the Content and software used to provide the Services). You may only use confidential material for the purposes intended under these Terms & Conditions and you may not use or disclose the confidential material for any other purpose unless permitted in writing by the Service Provider or us or ordered to do so by a court of competent jurisdiction or regulatory authority.
13.1 These Terms & Conditions may be amended at any time and where this affects your rights and obligations the Service Provider will notify you of any amendment by placing a notice in a prominent place on the Site (or by email to the address provided to us by you). If you do not agree with the change you should stop using the Services. If you continue to use the Services following notification of a change to these Terms & Conditions, the changed Terms & Conditions will apply to you.
13.2 We are continually seeking to improve the Services. We reserve the right, at our discretion, to make changes to any part of the Site or the Services as a result of our policy of updating and improving the Site or Services or for technology, security, legal or regulatory reasons.
14. WARRANTIES AND EXCLUSIONS OF LIABILITY
14.1 We do not limit liability for death or personal injury caused by our negligence or for fraudulent misstatement by us.
14.2 Our liability to you (however such liability arises, including by way of negligence) is limited as follows: if there is a fault on our Website or on your Online Account, our liability to you is to correct that fault as soon as reasonably practicable. Subject to clause 14.1, this clause 14.2 sets out our entire liability to you under these Terms & Conditions. If this limitation is held inapplicable or unenforceable our liability to you shall be limited to the amount paid by you for the relevant Service(s) for the year in which the act or omission which gave rise to your claim arose, or otherwise shall be limited to the minimum permissible by the Applicable Laws.
14.3 Without prejudice to clauses 14.1 or 14.2, we shall not be liable (however arising, including by way of negligence) for (a) any loss of revenue or profits or any loss of data or (b) any indirect or consequential loss or damage of any kind.
14.4 This clause 14 (Warranties and Exclusions of liability) shall survive the termination and/or expiry of this agreement.
14.5 We will use reasonable skill and care in making the Services available to you, in ensuring that the Content is accurate at the time it is added to the Services and in developing software which is capable of providing Content in accordance with the descriptions on the Site.
14.6 Because of the nature of the Services, the Internet and computer software and hardware, the Service Provider and SMB do not give you any warranties other than those in this clause or otherwise as expressly set out in this Agreement. In particular, the Service Provider and SMB make no warranty that the Services will be uninterrupted or error-free or suitable for your particular business needs or that the Site is free from infection by viruses or anything else that has contaminating or destructive properties. The Service Provider and SMB accept no responsibility for errors in the Content caused by your use of the Services or any modifications made by you or your advisers to the Content. We strongly recommend that you keep up-to-date virus checking software on the system you use to access the Site.
15.1 You acknowledge that “SMB” and “SMB.co.uk” are trademarks and that you must not use them without the written permission of SMB.
15.2 You may not assign, sub-licence or otherwise transfer these Terms & Conditions.
15.3 The courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms and conditions or their subject matter or formation (including non-contractual disputes or claims).
15.4 If any court of competent jurisdiction finds any provision of these Terms & Conditions invalid, the invalidity of that provision will not affect the validity of the remaining provisions, which shall remain in effect.
15.5 Failure by the Service Provider or us to exercise any right or remedy under these terms does not constitute a waiver of that right or remedy.
15.6 With the exception of the Content Providers, a person who is not a party to these Terms & Conditions shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of these Terms & Conditions. This shall not affect any right or remedy of a third party which exists or is available apart from that Act. For the avoidance of doubt, the parties to these terms are SMB, the Service Provider and the Subscriber.
15.7 The Service Provider and us shall not be responsible for any breach of these Terms & Conditions caused by circumstances beyond our control. In particular, We shall not be liable to you for any failure or interruption of the Services due to or connected with any breakdown or failure of the Internet or any telecommunications systems or any computer hardware or software of us or any third party which is required for the performance of the Services by us (including without limitation any breakdown or failure caused by a computer virus or hacking).
15.8 These Terms & Conditions constitute the entire understanding and agreement between you and the Service Provider/us in relation to the Services.