TERMS OF SERVICE
- Data Protection All personal data used by SMA Digital will be collected, processed, and held in accordance with the provisions of the UK GDPR.
- Data Processing 2.1 In this Schedule:
2.1.1 Terms such as “personal data,” “data subject,” “data controller,” “data processor,” and “personal data breach” shall have the meanings defined in Article 4 of the EU Regulation 2016/679, also known as the General Data Protection Regulation (“GDPR”).
2.1.2 “Data Protection Legislation” refers to the following:
- The UK GDPR, which is the retained EU Law version of the EU Regulation 2016/679 General Data Protection Regulation.
- The Data Protection Act 2018 (“DPA”).
- Any legislation succeeding the GDPR or the DPA.
2.2 Both Parties shall adhere to all applicable data protection requirements specified in the Data Protection Legislation. This Clause 2 and other provisions in this Agreement do not exempt either Party from their obligations under the Data Protection Legislation.
2.3 For the purpose of the Data Protection Legislation, SMA Digital is the “Data Processor,” and You are the “Data Controller.”
2.4 The types of personal data, the extent, nature, and purpose of processing, and the duration of processing are detailed in the Annex to this Schedule.
2.5 The Data Controller must ensure that it obtains all necessary consents and notices to enable the lawful transfer of personal data to the Data Processor for the purposes outlined in the Annex to this Schedule.
2.6 The Data Processor, regarding personal data processed in relation to its performance under this Agreement, will: 2.6.1 Process personal data only based on written instructions from the Data Controller unless processing is required by law. The Data Processor will promptly inform the Data Controller of such processing unless prohibited by law. 2.6.2 Implement appropriate technical and organizational measures, approved by the Data Controller, to protect personal data from unauthorized or unlawful processing, accidental loss, damage, or destruction. The measures will be proportionate to the potential harm from these events, considering current technology and cost. The specific measures will be agreed upon between the Data Controller and the Data Processor and documented in the Annex to this Schedule. 2.6.3 Ensure that all personnel with access to personal data, for processing or other purposes, are contractually obligated to maintain the confidentiality of the personal data. 2.6.4 Not transfer personal data outside the United Kingdom and/or the European Economic Area without prior written consent from the Data Controller, and only if specific conditions are met. 2.6.5 Assist the Data Controller, at the Data Controller’s cost, in responding to data subject requests and complying with the Data Protection Legislation, including security, breach notifications, impact assessments, and consultations with supervisory authorities. 2.6.6 Notify the Data Controller without undue delay if a personal data breach occurs. 2.6.7 On the written instruction of the Data Controller, delete or return all personal data and copies upon the termination of this Agreement, unless retention is required by law. 2.6.8 Maintain complete and accurate records of all processing activities and the technical and organizational measures to demonstrate compliance with this Clause. These records will be available for audits by the Data Controller or authorized parties.
2.7 The Data Controller grants general authorization for the appointment of Sub-processors. The Sub-processors and their purposes are listed below:
- Sub-processor: Flywheel
- Purpose: Cloud hosting
- Location of data processing: EU
- Sub-processor: SendGrid
- Purpose: Email sending
- Location of data processing: USA
If the Data Processor seeks to replace an existing Sub-processor or appoint a new Sub-processor, they will provide the Data Controller with a 30-day prior notice. The Data Controller has the right to object to this change within 14 days after receiving the notice. The Data Controller’s sole remedy for disagreement is to cancel the Subscription. For each Sub-processor, the Data Processor will:
- Enter into a written contract with the Sub-processor that contains terms similar to those in this Part 3.
- Remain liable to the Data Controller for the Sub-processor’s failure to fulfill its obligations regarding personal data processing.
Annex to Schedule As per Clause 2.4 of the Schedule, the following details the types of personal data, the scope, purpose, and nature of processing, and the duration of processing: Scope, purpose, and nature: Processing for the following purposes:
- Provision of the Service and technical support related to Data Controller’s use of the services.
- Producing anonymized or aggregated statistical reports, research, product and service development by Data Processor. Duration of processing: The term of the agreement and two years after. Types of personal data: Contact details, profile information, and interests. Categories of data subject: End-customers of the Data Controller.
- Intellectual Property Rights 8.1 Company Ownership: We maintain ownership of all rights, title, and interest, including intellectual property rights, in the Service and all related technologies. This includes any algorithms or processes developed by Us, along with any derivatives, modifications, or improvements to these technologies, whether created in connection with the Service or not.
8.2 Customer Property: You retain ownership and all intellectual property rights in (a) Your content; and (b) all data and reports provided to You by Us, which are prepared based on the analysis of Your content, subject to Our underlying rights in the Service.
- Liability 9.1: To the fullest extent permitted by law, We disclaim any liability to any user for any loss or damage, whether foreseeable or not, arising in contract, tort (including negligence), breach of statutory duty, or any other way, related to the use of Our Site or the reliance upon any Content found on Our Site.
9.2: We exclude all representations, warranties, and guarantees, whether express or implied, that may apply to Our Site or any Content included on Our Site.
9.3: We shall not be liable for loss of profits, sales, business, revenue, business opportunities, goodwill, reputation, anticipated savings, business interruption, or any indirect or consequential loss or damage.
9.4: While We take reasonable measures to ensure that Our Site is free from viruses and malware, We do not accept liability for any loss or damage resulting from viruses, malware, distributed denial of service attacks, or other harmful events affecting your hardware, software, data, or other materials due to your use of Our Site or any other site linked from Our Site.
9.5: We bear no responsibility or liability for disruptions or non-availability of Our Site caused by external factors, including but not limited to ISP equipment failures, host equipment failures, communications network failures, natural events, acts of war, or legal restrictions and censorship.
9.6: Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, death or personal injury caused by negligence, or other forms of liability that cannot be excluded or restricted by law.
9.7: Our total liability to you for all other losses arising from any contract between you and Us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, is limited to the total amount of your Subscription Fees in the 12-month period ending on the date of the breach or claim.
9.8: You shall defend, indemnify, and hold Us harmless against all claims, actions, proceedings, losses, damages, expenses, and costs (including court costs and reasonable legal fees) arising from your use of the Services and/or Our Site unless caused by our negligence.
- Viruses, Malware, and Security 10.1: We take reasonable precautions to maintain the security of Our Site and ensure it is free from viruses and other malware.
10.2: You are responsible for safeguarding your hardware, software, data, and other materials from viruses, malware, and internet security risks.
10.3: You must not intentionally introduce viruses, malware, or any malicious or technologically harmful material to or through Our Site.
10.4: Unauthorized access to any part of Our Site, the server on which it’s stored, or any other server, computer, or database linked to Our Site is prohibited.
10.5: Attacking Our Site through denial of service attacks, distributed denial of service attacks, or any other means is strictly prohibited.
10.6: Breaching the provisions from sub-Clauses 17.3 to 17.5 may constitute a criminal offense under the Computer Misuse Act 1990. Any such breaches will be reported to relevant law enforcement authorities, and We will cooperate fully with those authorities by disclosing your identity. Your right to use Our Site will cease immediately in the event of such a breach.
- Acceptable Usage Policy 11.1: You may use Our Site only in a lawful manner. Specifically, you must not:
11.1.1. Use Our Site for unlawful or fraudulent purposes. 11.1.2. Intentionally send, upload, or transmit data containing viruses, malware, or any code designed to harm computer hardware, software, or data. 11.1.3. Use Our Site to harm others. 11.1.4. Abuse, harass, threaten, stalk, defame, or violate the rights of other users or third parties. 11.1.5. Publish or distribute unlawful, harmful, obscene, indecent, libelous, profane, defamatory, racist, or objectionable material. 11.1.6. Use data from other users in a way they would object to. 11.1.7. Encourage illegal or rights-violating activity. 11.1.8. Supply or post misleading content. 11.1.9. Pose as another user, third party, or organization employee to obtain user or third-party information. 11.1.10. Transmit viruses, trojans, worms, or other malicious programs or code intended to compromise hardware, software, or other equipment. 11.1.11. Attempt to gain unauthorized access to our servers or equipment to disrupt, impair, overload, hinder, or compromise the safety, security, or privacy of any Services provided by users and Us. 11.1.12. Repurpose the Service or content, remove or obscure notices, or infringe upon third-party trademarks, patents, trade secrets, or intellectual property. 11.1.13. Send spam emails or promote activities like pyramid schemes or chain letters. 11.1.14. Use technical means to access the Service or its content. 11.2: We reserve the right to suspend or terminate your access to Our Site if you materially breach the provisions of this Clause 18 or any of the other provisions of these Terms and Conditions.
11.3: We exclude any liability arising from any actions taken in response to breaches of these Terms and Conditions.
11.4: You must fully comply with local, national, or international laws and regulations.
11.5: If you breach these Terms of Service by sending unsolicited bulk email (spam) or any other bulk communications, you agree to pay Us £50 for each email or communication sent.
- Events Outside of Our Control (Force Majeure) 12.1: We are not liable for any failure or delay in fulfilling Our obligations due to any cause beyond Our reasonable control, including power failure, ISP failure, strikes, civil unrest, natural disasters, acts of terrorism or war, or other events beyond Our control.
12.2: If such an event adversely affects Our obligations, We will inform you promptly, minimize the delay, suspend affected obligations and extend time limits. If the event continues for more than 90 days, We will cancel the Contract and provide refunds within 30 days.
- Changes to these Terms and Conditions 13.1: We may change these Terms and Conditions at any time. Any changes become binding on you upon your first use of Our Site after implementation. You are advised to check this page periodically.
13.2: In case of conflicts between the current and previous versions of these Terms and Conditions, the current provisions shall prevail.
- Contacting Us To contact us, please use the following method: email: email@example.com.
- Communications from Us 15.1: We may send important notices to you via email related to service changes or changes to these Terms and Conditions.
15.2: We will not send marketing emails without your consent, and you may opt out at any time. Any marketing emails include an unsubscribe link.
- How We Use Your Personal Information (Data Protection) 16.1: We will collect, process, and hold personal data in accordance with the Data Protection Legislation and your rights thereunder.
- Other Important Terms 17.1: We may transfer Our obligations and rights under these Terms of Service to a third party. You may not transfer your obligations and rights without Our written permission.
17.2: The Contract is between you and Us. No other person or third party is entitled to enforce any provision of these Terms of Service.
17.3: If any provision is found unlawful or unenforceable, it shall be deemed severed, and the remaining provisions will be valid and enforceable.
17.4: Failure to exercise a right does not constitute a waiver, and no waiver of a breach means no waiver of future breaches.
17.5: We may revise these Terms of Service in response to changes in laws and regulatory requirements.
- Law and Jurisdiction 18.1: These Terms of Service are governed by English law.
18.2: Any disputes are subject to the exclusive jurisdiction of the courts of England and Wales.
- Definitions and Interpretation 1.1 In these Terms of Service, unless the context requires otherwise, the following definitions apply:
- “Account”: Refers to an account that Users must create to access and/or utilize specific areas of Our Site.
- “Content”: Encompasses all text, images, audio, video, scripts, code, software, databases, or any other form of information capable of being stored on a computer and visible on, or forming part of, Our Site.
- “Contract”: Designates a contract for the purchase of a Subscription, as explained in Clause 6.
- “Data Protection Legislation”: Comprises all prevailing UK legislation regarding data protection and privacy, including but not limited to the Data Protection Act 2018, the UK GDPR (General Data Protection Regulation), and any directly applicable EU regulation relating to data protection and privacy as long as EU law remains legally effective in the UK, alongside any successor legislation pertaining to data protection and privacy.
- “Services”: Denotes the services accessible through Our Site.
- “Subscription”: Represents a subscription to Our Site that grants access to use our Services.
- “Subscription Confirmation”: Signifies Our acceptance of your Subscription order and confirmation of your Subscription purchase.
- “We/Us/Our”: Refers to SMA Digital, a limited company registered in England under company number 10047806, with its registered office located at 7 Bell Yard, London, WC2A 2JR, United Kingdom.
- Information About Us 2.1 Our Site is owned and managed by SMA Digital, a limited company registered in England under company number 10047806, with its registered office situated at 7 Bell Yard, London, WC2A 2JR, United Kingdom.
- Terms of Service 3.1 These Terms of Service constitute the comprehensive agreement between you and Us regarding your Subscription purchase from Us. You acknowledge that you have not relied on any statement, representation, warranty, assurance, or promise made by or on behalf of Us that is not explicitly outlined in these Terms of Service. You agree not to make any claims for innocent or negligent misrepresentation or negligent misstatement based on any statement not contained herein.
- Payment 4.1 Payments for Subscriptions are to be made in advance on a monthly or yearly basis. Your selected payment method will be charged upon processing your order. If you have provided an email address for invoicing purposes, a monthly invoice email will be dispatched to this email address.
4.2 Payments must be made in full, without set-off, counterclaim, deduction, or withholding, except where deduction or withholding of tax is legally mandated.
4.3 Failure to make a payment to Us on time will result in the suspension of your access to Our Site. If payment is not made within 30 days after Our reminder, We reserve the right to cancel the Contract. Outstanding sums owed to Us will remain payable.
4.4 If you believe We have charged you an incorrect amount, please promptly contact Us at firstname.lastname@example.org to rectify the issue.
- Provision of Services 5.1 Services pertinent to your Subscription will become accessible immediately upon Our dispatch of a Subscription Confirmation. These Services will remain available for the duration of your Subscription, including any renewals, or until the Contract is terminated for other reasons.
5.2 In specific situations, We may suspend the provision of Services, whether in full or in part, for the following reasons: 5.2.1. To address technical issues or effect essential minor technical alterations. 5.2.2. To update the Services to comply with pertinent changes in the law or other regulatory requirements. 5.2.3. To make significant modifications to the Services.
5.3 If We need to suspend the availability of Services for the reasons stated in sub-Clause 5.2, We will provide advance notice of the suspension and explain the necessity behind it, unless the suspension is required urgently due to reasons such as a significant problem with the Services. In the case of an extended suspension (or if We anticipate an extension exceeding 30 days), you have the option to terminate the Contract, as elaborated in sub-Clause 7.2.
5.4 We may suspend the provision of Services if We do not receive your payment on time. You will be notified of non-payment on the due date, and if you fail to make payment within 30 days of Our notification, We may suspend the Services until all outstanding sums owed are received. During the suspension of Services, you will not incur charges for any Services.
- Licence 6.1 Upon purchasing a Subscription, We will grant you a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use our Services. This license does not grant you any rights in Our Services, including any material that We may license from third parties.
6.2 Except as permitted under these Terms of Service, you are prohibited from copying, renting, selling, publishing, republishing, sharing, broadcasting, or transmitting the Services (or any portion thereof) or making it publicly available.
- Ending Your Subscription 7.1 You have the option to cancel your Subscription at any time. Pro rata refunds for any remaining Subscription Period will not be provided, but you will retain access to the Services for that period (up to the renewal or expiration date, as applicable), after which the Contract will be concluded.
7.2 To exercise your right to cancel under this Clause 7, you can notify Us of your cancellation via email or within your Account section. Cancellation by email is effective as of the date you send your message. If you prefer to cancel by contacting Us directly, please email us at email@example.com, providing your name, email address, and account URL.
7.3 While we may inquire about your reasons for cancellation, you are under no obligation to provide details.
7.4 We take reasonable measures to ensure the full availability and functionality of the Service at all times, though we cannot guarantee this.
7.5 If you access the Services for free during a trial period offered by Us, We may close your Account and/or deny your access to and use of the Services by giving you one month’s notice, without incurring liability.
7.6 We may terminate your Subscription and user Account, along with all associated content and materials, at any time in the following situations: 7.6.1. You have breached, or We suspect you are in breach of, these Terms of Service. 7.6.2. We suspect that you are engaging in illegal activities. 7.6.3. Any fees due under these Terms of Services remain unpaid for thirty (30) days from the due date. 7.6.4. In Our reasonable opinion, the security or integrity of the Services has been, or may be, compromised or otherwise be at risk.