S&S IT Consultants Ltd.
Terms and Conditions – May 2018

The Client’s attention is drawn to all the provisions and particularly to Clauses 6, 7, and 14. 

1. Interpretations

1.1 Definitions:
Business Hours are 9am to 6pm, Monday to Friday excluding English public holidays.

Client is the person, company or firm that purchases Services from S&S IT Consultants Ltd, company no. 10236833, whose registered office is at Hartham Park, Hartham Lane, Corsham, England, SN13 0RP (“Systems & Smiles”)

Confidential Information is each party’s business or technical information, including but not limited to any information relating to software, designs, costs, prices and names, finances, marketing plans, business opportunities, customers (actual or intended), suppliers, present future plans/ideas/intended activities, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential and/or proprietary.

Fees are based on per user or project basis in accordance with Systems & Smiles support plans as published on the website at https://systemsandsmiles.com, as agreed in writing in advance or as set out in the Order Form.

Incidents are support requests of an urgent or time sensitive nature. These carry a response time of 1 business hour.

Notice is defined in Clause 24 .

Order is the Client’s explicit consent for the request of Services upon sign-up via the website or as set out in the Order Form.

Services (unless otherwise specified) are the IT support services supplied by Systems & Smiles to Client under the terms of these Conditions.

Server is any machine running a server operating system or running a Client operating system that is providing production-level services to another machine or the client. A production Server is any machine that is providing direct production-level services to another machine(s) and/or their clients. This includes, but no limited to: file servers, web servers, printer server, directory servers, redundant ‘hot-spare’ servers, a backup or archive Server is any machine that is responsible for the copying or storage of data that is not directly accessed by other client machines (“Backup Server”).

Support Requests are support requests which are non-urgent and are subject to being pre-booked via Systems & Smiles booking form.

Supported Users are users of the Client who are entitled to receive the Services. A list of these will be provided by the Client to Systems & Smiles upon the Order and reviewed by Systems & Smiles on a regular basis

2. Basis of contract
   
   2.1 The Order constitutes an offer to purchase Services in accordance with these Conditions.

2.2 Systems & Smiles agrees to supply Services to the Client, and the Client agrees to pay the Fees for the same subject to these Conditions and an Order which is accepted under Clause 2.6 which together (with the Client Charter) shall be the contract (“Contract”).

2.3 The Services will be provided by appropriate means including phone call, email response, support ticket response, meeting in person, remote desktop support, or by automated support software.

2.4 Systems & Smiles agrees to provide the Services in connection with all computers, Servers, monitors and networking devices owned by the Client installed at the Client’s premises at the Commencement Date.

2.5 These 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.

2.6 This Order shall only be deemed accepted when the Client agrees to the Conditions contained herein and provides valid payment details. A confirmation email will be sent to the Client and instructions to commence provided to Systems & Smiles at which point and on which date the Contract shall come into existence (“Commencement Date”).

3. No Partnership

Systems & Smiles is engaged as an independent contractor. Nothing herein is or will be deemed or construed to create a joint venture, partnership, or agency between the parties and neither has authority to act for the other.

4. Confidentiality

4.1 A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to the Contract except with the other party’s prior written permission.

4.2 Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

4.3 A disclosure by one party of Confidential Information of the other party to the extent required by law shall not be considered a breach of the Contract, provided the compelled party promptly provides the other party with prior Notice of such disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

4.4 Confidential Information shall not include any information that:

1. is or becomes generally known to the public without breach of any obligation owed to the other party;
2. was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party;
3. was independently developed by a party without breach of any obligation owed to the other party; or
4. is received from a third party without breach of any obligation owed to the other party.

5. Systems & Smiles obligations Systems & Smiles shall:

1. use reasonable commercial endeavours to provide the Services to the Supported Users in accordance with the Conditions;
2. hold and use all personally identifiable information about Client employees in accordance with it data protection policy at https://systemsandsmiles.com/terms/data-protection; and
3. comply with all reasonable requests and instructions which the Client may issue from time to time in connection with the Contract.

6. Client obligations The Client shall:

1. co-operate with Systems & Smiles as necessary in order to enable Systems & Smiles to provide the Services;
2. be solely responsible for maintaining backups of machines, Servers, mobile phones, and any other electronic equipment, and the systems for backup;
3. be solely responsible for ensuring that systems including business continuity and failover, and the recovery time objectives/recovery point objectives are robust and sufficient for continuation of business;
4. be responsible for timely notifying Systems & Smiles in writing of any time limits, deadlines, or any other special requirements relating to the Services prior to Systems & Smiles providing the Services. Client notification of such requirements shall not be delayed and may not purport be retroactive in effect and application to Systems & Smiles;
5. notify Systems & Smiles forthwith in writing should the Client need to postpone or rearrange the day and time for the provision of the Services. Any rearranged date and time shall be at the mutual convenience of the parties, and the Client understands and agrees that Systems & Smiles cannot guarantee a rearranged appointment;
6. notify Systems & Smiles forthwith in writing to any starters or leavers leading to changes to personnel on the Supported User list.
7. to ensure only authorised people at the Client are permitted to make changes to the Contract. When a Client signs up, a confirmation email will be sent by Systems & Smiles to it with a link to create an account (using the email address used to sign up and a password of Client’s choosing). In order to make any changes to the Client’s account and/or support plans the Client must only allow authorised person to use those credentials which the Client undertakes will only be shared with people it authorises to make changes and to bind the Client.

7. Services

7.1 Response times and methods: Systems & Smiles shall only respond and be obligated to respond to a fault if it is notified by the following means:

1. email to support@systemsandsmiles.com;
2. by a support ticket logged at https://help.systemsandsmiles.com;
3. by the web booking form on the website;
4. through a live chat session on the Systems & Smiles website;
5. by our telephone hotline on +44 (0)20 3389 7878.

7.2 Support Requests:

7.2.1 Support Requests are valid only if made by email to support@systemsandsmiles.com booking online directly via the Systems & Smiles bookings form, or by a phone call to our Help Desk.

7.2.2 Support Requests do not entail any form of immediate email/telephone support, with the exception of password/login requests.

7.2.3 Support Requests have a response time of 8 business hours. This is the response time for us to begin work on an issue and is not a guarantee for a time to resolution of an Incident.

7.2.4 If the Client requests an expedited response in writing stating it will upgrade the request to an Incident.

7.2.5 Support Requests will be initially dealt with remotely or by drop-in only.

1. It is at Systems & Smiles discretion only if we need to make an on-site visit as a response to a Support Request;
2. The Client cannot request an on-site visit directly;

If the Client would like an on-site visit instead, the request will be upgraded to an Incident.

7.2.6 Support Requests can be for anything, so long as the session is pre-booked as per Clause 7.2.1 and the request is not listed in Clause 7.4 (Exclusions) or if deemed invalid by Systems & Smiles.

7.2.7 Support Request exceptions can be made at the discretion of the engineer. This includes, but not limited to;

1. Prolonged issues / escalation of issues;
2. Tickets that require immediate action as identified by Systems & Smiles, these upgrades do not count towards the Incident quota;
3. If a Systems & Smiles engineer misses an appointment and the client is not notified in good time. Systems & Smiles may escalate it into an Incident at no cost to the client.

7.3 Incidents:

7.3.1 Incidents are valid only if made by email to support@systemsandsmiles.com booking online directly via the Systems & Smiles bookings form, or by a phone call to our Help Desk.

7.3.2 The number of Incidents a client is entitled to is based on their chosen plan and the number of uses supported.

7.3.3 The response time for Incidents is 1 business hour. This is the response time to begin work on an issue and is not a guarantee for a time to resolution of an Incident.

7.3.4 Incidents can be urgent requests or for anything that is time sensitive.

7.3.5 An Incident can be for anything, so long as it’s not listed in Clause 7.4 (Exclusions).

7.3.6 An Incident ticket cannot contain more than one issue. If an Incident contains several unrelated issues, Systems & Smiles will split this up into several Incident tickets and commence work on them independently. Each ticket will be deducted from the quota. Where appropriate, a Client may choose to prioritise which issues to be treated as an Incident and which to be regraded as a Support Request.

7.3.7 It is at Systems & Smiles discretion to determine at what point in the lifetime of a ticket an issue can be regraded to a Support Request and whether a client will be credited back for an Incident.

7.3.8 Clients can request Incidents be dealt with remotely or on-site.

7.3.9 An Incident is not limited by time and lasts for as long as an issue is present. However, if it is determined that the issue is due to an issue outside of Systems & Smiles control or if a recommended course of action is not followed within a reasonable period, then each request instance is counted as an Incident.

7.3.10 If a client has used up their quota of Incidents they can:

1. Wait until the next billing cycle when their quota will be restored;
2. Pay a per-Incident fee;
3. Upgrade to the next plan, effective immediately, for a minimum period of 30 days, paid upfront. They can then choose to stay on the new plan or downgrade back after the minimum period has elapsed.

7.3.11 Unused Incident credits do not roll over to subsequent months, nor can they be banked. The quota is reset to the appropriate amount on the start of each billing period.

7.3.12 For clients with unlimited Incidents, recurring Incidents originating or due to inactivity on the client’s behalf will result in temporary suspension of support or the requirement to purchase Incident credits for all issues resulting from the fault until it is rectified.

7.3.13 Unlimited Incidents are subject to a fair use policy. Continued abuse or inappropriate use of Incidents will prompt verbal and/or written notifications and ultimately either a change in the Fees or termination of the Contract.

7.4 Exclusions:
7.4.1 Classifications of Support Requests and Incidents is at the discretion of Systems & Smiles.

7.4.2 The following list are examples of tasks and requests that fall outside the support remit (for both Support Requests and Incidents) and will be treated as a separately billed project. The list is not exhaustive and it is at Systems & Smiles discretion to regrade requests as projects. In doing so, Systems & Smiles must notify the Client in writing before commencing work.

1. Email archiving and filing for administrative reasons
2. Email migration / Email server setup
3. Data entry
4. Large amounts of computer filing or archiving
5. Computer data transfer (for machine swaps); excluding data transfers from a dead machine to a replacement.
6. Cabling or rewiring
7. New server setups
8. Large changes to server/network configuration or topology
9. Office relocation

7.5 The Client may select one of the three support plans: (1) Base; (2) Plus; and (3) Ultimate.

7.6 The Client may upgrade or downgrade their plan at any time with a minimum period of 30 days between each change. Upgrades are effective immediately, for a minimum period of 30 days, paid upfront. Downgrades can be effected after the minimum period has elapsed. We will prorate mid- month changes.

7.6.1 Incident Credits will be reset according to the new plan allowance upon plan changes. Unused credits will not be carried over or retained.

7.6.2 If the Client has multiple Servers and downgrades to the Base plan, they will be requested to nominate a supported server. Any support provided to Servers outside of this nomination will result in a per-Incident fee be charged, per additional server.

7.7 Each plan includes an unlimited amount of pre-booked Support Requests (Clause 7.2) and a set number of Urgent Incident credits (Clause 7.3).

7.8 Infrastructure monitoring includes Backup Servers across all plan levels. Monitoring and support is included for 1 production Server on the Base plan and on multiple Production Servers for the Plus and Ultimate plans.

7.8.1 Monitoring of infrastructure includes the installation of specialist software on all compatible hardware that will enable Systems & Smiles to audit, log and alert (via secure Cloud servers) activity that meets or exceeds specifically set parameters.

1. Monitoring (where appropriate) of Client devices will be included for all Client-owned devices and offered on all Supported Users’ machines. Monitoring and logging will be used for, but not limited to: remote access, diagnostics and pro-active alerts.
2. Whilst every attempt will be made to monitor all key pieces of infrastructure, Systems & Smiles cannot guarantee that all devices will be compatible. Under such circumstances, Systems & Smiles will inform the Client and provide the Client with a recommendation of compatible alternative or the opportunity for the Client to waive monitoring (and any benefits that result from pro-active monitoring) for the device in question.
3. The Client can, at their discretion, instruct Systems & Smiles to remove or not install any monitoring software. Systems & Smiles will not bear any liability for any supported hardware/ software that develops a fault without monitoring software.

7.9 Proactive checkups and office visits will be in the form of recurring onsite visits of up to 2 hours, as booked and agreed with Systems & Smiles on a weekly, monthly or quarterly basis, depending on the plan. Where a visit isn’t suitable or not required, Systems & Smiles will remotely perform checkups for the Client, including but not limited to; updating internal documentation, writing client-facing documentation, checking logs, ticket and performance analysis..

7.10 Maintenance includes updates and patching, and break/fix support of all infrastructure at the Client’s premises, including:

1. Support for routers, switches, wireless access points, and servers;
2. Support for cloud based infrastructure, excluding revenue generating systems;
3. Support, management and updating of end-user devices including computers and mobile devices owned directly by the Supported User.

7.11 Strategic guidance and consultancy will be provided to the Client on upgrades and improvements to the Client’s IT systems as well as planning for future changes.

Work done outside the plans, Base, Plus, and Ultimate, including but not limited to installing new infrastructure, server installations, email migrations, office moves, work on web servers, work on personal devices or users home networks, will be agreed and detailed in additional Orders accepted by Systems & Smiles and billed separately.

7.12 Systems & Smiles does not guarantee in any way whatsoever that it shall be available to provide the Services outside Business Hours. Systems & Smiles response times shall not be affected in any way by events outside Business Hours.

8. Subcontracting

Systems & Smiles may engage subcontractors to fulfil its obligations under the terms of the Contract.

9. Fee Rates

Systems & Smiles reserves the right to periodically review the Fees and shall provide the Client with no fewer than 30 days prior Notice of any changes to the Fees made as a result of such reviews.

10. Purchase of supplies

10.1 Systems & Smiles may need to purchase equipment, supplies, accessories, or software in order to provide the Services under the Contract.

10.2 Systems & Smiles shall obtain prior written approval from the Client before making any purchase on the Client’s behalf in connection with providing the Services.

11. Payment

11.1 Systems & Smiles shall invoice the Fees to the Client in advance for the Services and/or upon completion by Systems & Smiles of any chargeable work and/or on making any approved purchase on the Client’s behalf in connection with the Services.

11.2 Payment of the Fees shall be made by the Client to Systems & Smiles within 28 days of the invoice date unless there is any item disputed in good faith which is timely notified in writing to Systems & Smiles before that period expires. Time for payment shall be of the essence of the Contract.

11.3 Payment shall be made by Clients entering a valid credit card account details on sign up. Client undertakes to and warrants it shall maintain this valid credit card account until 3 months after termination of the Contract. The initial Fees payment will come from this credit card account. After the initial Fee payment, the Client is able to opt in to invoice billing, which will then allow payment Fees via BACS, cheque or otherwise, on 30 day payment terms. Systems & Smiles shall retain the credit card details and will collect any Fees unpaid after 30 days after invoicing from the credit card account.

11.4 The Client understands and agrees that, in the event that the Client fails to comply with this Clause 11, Systems & Smiles reserves the right to:

1. suspend performance of its obligations under the Contract immediately and without notice, and or to terminate the Contract;
2. render a final invoice;
3. charge interest on any late payments in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, on the amount unpaid at the rate of 8% per annum above the Bank of England base rate from time to time, from (and including) the date on which payment was due until (and excluding) the date on which payment in full is made; and
4. claim compensation for any reasonable debt recovery costs incurred by Systems & Smiles from the Client should any action be undertaken to obtain settlement of the account.

12. Alterations to facilities or equipment

12.1 In the event that the Client alters, interferes with, or damages in any way whatsoever any facilities, including but not limited to email or file sharing, or equipment configured, or set up, and/or maintained by Systems & Smiles without Systems & Smiles express prior written consent, the Client shall do so at its own risk and liability.

12.2 Systems & Smiles shall not be liable in any way whatsoever for problems, loss or damage caused either directly or indirectly as a result of the Client’s alteration of or interference with facilities, equipment, and/or the Client’s network or system.

13. Client warranties – software licensing

13.1 The Client warrants that all software it provides to Systems & Smiles for installation, configuration, or use in any way, has been legally obtained, paid for, and is properly licensed for use by the Client.

13.2 The Client further warrants that it has legally purchased a sufficient number of copies of such software and or software licences for all its uses and that it has not and will not violate any licence in any way whatsoever.

13.3 Systems & Smiles has no knowledge as to the licensing of software provided to it by the Client and the Client hereby indemnifies Systems & Smiles against all or any costs, claims, damages, demands and expenses that may be incurred by or made against Systems & Smiles by any third party by reason of the Client’s unlawful use of software.

14. Limitation of liability

14.1 Neither party limits its liability for death or personal injury caused by its negligence, or that of its employees, agents or subcontractors; or fraud or fraudulent misrepresentation by it or its employees; or any other act or omission, liability for which may not be limited under law.

14.2 Subject to Clause 14.1, Systems & Smiles total aggregate liability in respect of all other claims, losses or damages, whether arising from tort (including negligence), breach of statutory duty, restriction, breach of contract or otherwise under or in connection with the Contract, shall in no event exceed the maximum cover for which Systems & Smiles carries professional indemnity insurance. 

14.3 Subject to Clause 14.1 neither party shall in any circumstances be liable to the other party for:

1. any indirect, special or consequential loss or damage;
2. any loss of profits, sales, agreements or contracts, savings, business opportunities, revenue, economic loss or damage to goodwill (in each case whether arising directly or indirectly as a result of the applicable course in action); and
3. any loss of, corruption to or alteration of any Client data, software or information.

14.4 The parties expressly agree that the provisions of this Clause 14 are a reasonable allocation of risk/reward and that if any limitation or provision contained or expressly referred to in this Clause 14 is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted. If any party becomes liable for loss or damage which would otherwise have been excluded, that liability shall be subject to the other limitations and provisions set out in this Clause14.

15. Force majeure

Systems & Smiles shall not be liable to the Client or deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Systems & Smiles obligations in relation to the Services, if the delay or failure was due to any cause beyond Systems & Smiles reasonable control, including, but not limited to, Acts of God, explosion, flood, tempest, fire or accident, war or threat of war, riot, sabotage, insurrection, civil disturbance, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary, or local authority, strikes, IT viruses, malware, telecommunication or power failure.

16. Non-solicitation of employees

16.1 The Client acknowledges that Systems & Smiles has a substantial investment in its employees that provide Services to the Client under the Contract and that such employees are subject to Systems & Smiles control and supervision.

16.2 The Client agrees not to solicit, hire, employ, retain, or contract with any employee of Systems & Smiles without Systems & Smiles prior written consent during the term of the Contract and for 12 months following termination.

17. Termination

17.1 In the event that the Client ceases, or threatens to cease, or disposes of or threatens to dispose of all or a substantial part of its business, Systems & Smiles shall be entitled to terminate the Contract forthwith.

17.2 Either party may terminate the Contract with immediate effect in the event of any material breach of these terms or conditions and / or the Contract by the other party, provided always that the injured party has given the other party fourteen (14) days written notice of such material breach to remedy it to the reasonable satisfaction of the injured party (with both parties acting at all times in good faith). Such termination shall not affect any right which any party terminating the Contract may have against the other as a consequence of the breach.

17.3 In the event that the Client wishes to terminate for any reason other than material breach in accordance with Clause 17.2 the Client shall give three (3) months written notice to System & Smiles.

17.4 Systems & Smiles may terminate the Contract in accordance with Clauses 11.4(i) and 18.2.

17.5 On the termination of the Contract for any reason and on prompt payment of any outstanding Fees Systems & Smiles shall provide such commercially reasonable assistance as the Client reasonably requests, including delivery to the Client, or to such person as the Client notifies in writing, of all documents and data in the custody of Systems & Smiles belonging to the Client.

17.6 Clauses which expressly or by implications survive termination shall continue in full force and effect.

18. Summary termination for insolvency

18.1 The Client shall notify Systems & Smiles in writing immediately upon the occurrence of any of the following events:

18.1.1 Where the Client is an individual in England and Wales a petition is presented for the Client’s bankruptcy or a criminal bankruptcy order is made against the Client or he or she makes any arrangements with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors or elsewhere in the UK or outside makes or suffers any similar act of insolvency; or

18.1.2 Where the Client is a firm or a number of persons acting together in any capacity, if any event in Clause 18.1.1 occurs in respect of any partner in the firm or of any of those persons; or a petition is presented for the Client to be wound up as an unregistered company; or

18.1.3 Where the Client is a company, if the company passes a resolution for winding up or the court makes an administration order or winding up order, or the company makes a composition or arrangement with its creditors, or an administrative receiver, liquidator, receiver or manager is

appointed by a creditor or by the court, or possession is taken of any of its property under the terms of a floating charge or makes or suffers any similar act of insolvency.

18.2 On the occurrence of any of the events described in Clauses 18.1.1-18.1.3, whether notified by the Client or not, Systems & Smiles shall be entitled to terminate the Contract with immediate effect.

19. Rights and obligations on termination

Following the termination of the Contract (whether by Notice or otherwise) neither party shall not have any further obligations or rights arising out of the Contract thereafter except in respect of such provisions as are expressed to operate on or after termination including but not limited to Clauses 4, 16, 17.2 and 17.7.

20. No Assignment

Client shall not assign, transfer, or charge any of its rights or obligations under the Contract, in whole or in part.

21. Third parties

The Contracts (Right of Third Parties) Act 1999 is excluded from applying to the Contract and nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract.

22. Amendment, waiver and variation

Save in relation to incremental variations in Fees, (in the event of any third party fees and or costs rising) Systems & Smiles may vary and amend the terms and conditions of the Contract upon 30 days prior written notice to the Client subject always to the agreement of the Client (acting at all times in good faith) such agreement not to be unreasonably withheld or delayed. No other amendment, waiver or variation to the Contract shall be binding unless agreed in writing and signed by duly authorised representatives of both parties.

23. Waiver

No delay or failure by either party to exercise any of its powers, rights or remedies under the Contract will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.

24. Notices

All notices to be given under the Contract will be in writing (which may include online website communication or email) sent by or on behalf of the party giving it and shall, unless delivered personally, be left at, or sent to, the address of the recipient designated in accordance with this Clause 24 (“Notice”). Notices may be delivered personally by hand, by first class pre-paid letter, by facsimile transmission, by online website response, or by email. Any Notice given under the Contract shall be deemed served if delivered personally, on delivery; if sent by first class post, two clear days after the date of posting; and if sent by facsimile or e-mail, when dispatched provided that, in the case of facsimile, a sent/received report is obtained and in the case of an online website communication or email, a response (other than an automated reply response) is received.

25. Severability

If any part of the Contract is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the Contract, the remainder of which will continue to be valid and enforceable to the fullest extent permitted by law.

26. Entire agreement

These Terms and Conditions, the Client Charter and the Order Form constitutes the entire agreement between the parties to it with respect to its subject matter and shall have effect to the exclusion of any other memorandum, agreement, or understanding of any kind, whether oral or written, between the parties hereto preceding the date of the Contract and touching and concerning its subject matter.

27. Authorisation

The Client acknowledges and agrees that the person agreeing to the Contract on its behalf is authorised to do so and shall bind the Client to all the terms and conditions contained herein, and represents and warrants that such person is acting within the scope of his or her authority as an officer, director, partner, duly authorised agent or employee of the Client.

28. Governing law and jurisdiction

The 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) (“Claims”) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the

courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or any Claims.