© 2021 - SmileWise Corporate BVBA
www.smilewise.co.uk
Smilelign Marketing Partner
Free Marketing Audit
© 2019 - SmileWise UK
Discover the easy wins to optimize your Patient Experience
Benefit from the knowledge of experts
like the Singing Dentist or Ashley Latter
30 to 60 min. free audit to boost your clinic's growth for years to come
Learn how your whole team consistently can offer an exquisite patient experience
Discover the easy wins to optimize your Patient Experience
Benefit from the expertise of communication & experience experts
such as the Singing Dentist or Ashley Latter
30 to 60 min. free audit to boost your clinic's growth for years to come
Learn how your whole team consistently can offer an exquisite patient experience get the best results
SmileWise Customer Terms of Service
Last Modified: June 25, 2019
Build your Business Intelligence and make smarter data-driven decisions
Generate more new patients and follow-up more effectively
Turn best practices into actionable insights
Discover the easy wins to optimize your Patient Experience
Benefit from the expertise of communication & experience experts
such as the Singing Dentist or Ashley Latter
30 to 60 min. free audit to boost your clinic's growth for years to come
Learn how your whole team consistently can offer an exquisite patient experience get the best results
Clinic Growth Solutions
Sales Enablement Software
for patient-centric
Dental Practices.
Build your Business Intelligence and make smarter data-driven decisions
Generate more new patients and follow-up more effectively
Turn best practices into actionable insights
Drive growth with an integrated Sales & Marketing Solution
We help clinics and groups run campaigns with more visibility of outcomes in a more scalable way.
Get a birds-eye view on how marketing spend turns into ROI
Make smarter, data-driven decisions
See KPI's clearly and pinpoint funnel stages that need attention
Stay on top of performance
by getting the right insights
Faster & more effective follow-up
Building rapport
& better ethical selling
Share Best Practice Data leading to treatment uptakes between clinics
Implement the ideal
patient experience
based on actionable insights & best practices.
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us, SmileWise Corporate BVBA and its
subsidiaries and/or affiliated parties (“SmileWise”). It describes the services we will provide
to you, how we will work together, and other aspects of our business relationship. It is a legal
document so some of the language is necessarily “legalese”, but we have tried to make it as
readable as possible. These terms are so important that we cannot provide our products and
services to you unless you agree to them. By using the Subscription Service or receiving the
Consulting Services, you are agreeing to these terms.
We periodically update these terms. If you have an active SmileWise subscription, we will let
you know when we do via an email or in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you
a roadmap of the Agreement:
A. DEFINITIONS. This is where we provide the detail on what the key defined terms in the
Agreement mean. You can think of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our
Subscription Service and Consulting Services are provided. For example, you can find
information on access and acceptable use. These terms apply to all of our products and service
offerings.
C. SUBSCRIPTION TERMS. Customers of ours subscribe to use our software, and there are
some fundamental terms that apply to each subscription. There are some differences between
the different types of subscriptions, and here’s where you can find that detail.
D. PRODUCT DISCLOSURES. We offer several different products and there are some
important things to know before you use them.
E. GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are
filled with legal terms. In this section, we’ve collected the many of the remaining legal terms
that make up our Customer Terms of Service.
F. JURISDICTION SPECIFIC TERMS. With customers across the globe, this final section is
where we address most of the differences in these terms that vary based on customer location.
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in
here.
"Billing Period" means the period for which you agree to prepay fees under an Order Form,
which will be the same as or shorter than the Subscription Term as specified in the Order Form.
For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term,
with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Communication Services" means third-party forums, online communities, blogs, personal
web pages, calendars, and/or other social media communication facilities (such as Facebook,
Twitter and LinkedIn) linked to or from the Subscription Service that enable you to
communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us ("Discloser") to the
other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential
Information will include Customer Data and information about the Discloser’s business plans,
technical data, and the terms of the Order. Confidential Information does not include any
information that (i) is or becomes generally known to the public without breach of any
obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the
Discloser.
"Contact" means a single individual (other than a User) whose Contact Information is stored
by you in the Subscription Service.
"Contact Information" means the name, email address, phone number, online user name(s),
telephone number, and similar information submitted by visitors to your landing pages on the
Subscription Service or uploaded by you to the Subscription Service.
"Consulting Services" means the professional services provided to you by us, which may
include training services, installation, integration or other consulting services.
“Crowdsourced Data” means the information you submit to us (if you use our CRM) to update
the data in certain properties in our company database. You’ll recognize these properties in
SmileWise CRM because they are flagged with a grey ‘sprocket’ which turns orange on hover,
or highlighted in some other way, and are identified as being filled from SmileWise’s Insights
database. Crowdsourced Data will not be considered Customer Data or Confidential
Information for purposes of this Agreement. For more information on Crowdsourced Data
please see our Product Privacy Policy.
"Customer Data" means all information that you submit or collect via the Subscription Service.
Customer Data does not include Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit for
public display through the Subscription Service.
“Enrichment Data” means the data we make available to you as part of the Subscription Service
and Crowdsourced Data. Enrichment Data does not include personally identifiable
information. We may obtain Enrichment Data from public or third party sources and our
internal data processes provided from Customer Data.
“Free Services” means the Subscription Service or other products or features made available
by us to you on an unpaid trial or free basis.
"SmileWise Content" means all information, data, text, messages, software, sound, music,
video, photographs, graphics, images, and tags that we incorporate into the Subscription
Service or Consulting Services, including Enrichment Data.
"Order" or "Order Form" means the SmileWise-approved form or online subscription process
by which you agree to subscribe to the Subscription Service and purchase Consulting Services.
Most Orders are completed through our online payment process or via in-app purchase. The
Order may be referred to as a "Statement of Work" if you are purchasing only Consulting
Services.
“Paid Users” means those types of Users (defined below) for which we charge you fees as set
forth in our Product and Services Catalog.
“Product and Services Catalog” means SmileWise’s Product and Services Catalog available on
the SmileWise- website, as updated by us from time-to-time.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account
information; Social Security numbers or local equivalents; passport numbers; driver’s license
numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health
condition or information; or other employment, financial or health information, including any
information subject to the Health Insurance Portability and Accountability Act, the Payment
Card Industry Data Security Standards, and other regulations, laws or industry standards
designed to protect similar information; and (b) any information defined under EU data
protection laws as ‘Sensitive Personal Data’.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based inbound marketing and sales applications,
tools and platforms that you have subscribed to by an Order Form or that we otherwise make
available to you, and are developed, operated, and maintained by us, accessible
via http://smilewise.co.uk or another designated URL, and any ancillary products and services,
including website hosting, that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription
Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For
Free Services, the Subscription Term will be the period during which you have an account to
access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are
provided by third parties which interoperate with or are used in connection with the
Subscription Service. These products and services include non-SmileWise apps available from,
for example, the following: our integrations products page, partner directory, template
marketplace, links made available through the Subscription Service and non-SmileWise
services listed on the SmileWise- website.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service,
including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are
authorized to use the Subscription Service for your benefit and have unique user identifications
and passwords for the Subscription Service.
"SmileWise", "we", "us" or “our” means the applicable contracting entity as specified in the
‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Subscription Service or
receiving the Consulting Services and identified in the applicable account record, billing
statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription
Service as described in this Agreement and the applicable Order. We may also provide you
access to use our Free Services at any time by activating them in your SmileWise account. We
might provide some or all elements of the Subscription Service through third party service
providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service
by placing an additional Order or activating the additional features from within your SmileWise
account (if this option is made available by us.). This Agreement will apply to all additional
Order(s) and all additional features that you activate from within your SmileWise account.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a
week, except for planned down-time for maintenance.
4. Consulting Services. You may purchase Consulting Services by placing an Order with us.
Unless we otherwise agree, the Consulting Services we provide are described in the Product
and Services Catalog and will be delivered in English. Fees for these Consulting Services are
in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will
be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all
expenses incurred in connection with the Consulting Services. Any invoices or other requests
for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those
hours will expire as indicated in the applicable description, which expiration period will
commence upon purchase (the “Expiration Period”). If there are deliverables included in the
Consulting Services purchased, it is estimated that those deliverables will be completed within
the time period indicated as the delivery period in the applicable description, which delivery
period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period
or Delivery Period indicated, then it will be one hundred and eighty (180) days from
purchase. If the Consulting Services provided are not complete at the end of the Delivery
Period due to your failure to make the necessary resources available to us or to perform your
obligations, such Consulting Services will be deemed to be complete at the end of the Delivery
Period. If the Consulting Services provided are not complete at the end of the Delivery Period
due to our failure to make the necessary resources available to you or to perform our
obligations, the Delivery Period will be extended to allow us to complete such Consulting
Services.
We might provide some or all elements of the Consulting Services through third party service
providers. Consulting Services are non-cancellable and all fees for Consulting Services are
non-refundable.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term
unless you: (i) exceed your User or other applicable limits (see the ‘Limits’ section below), (ii)
upgrade products or base packages, (iii) subscribe to additional features or products, including
additional Contacts, or (iv) unless otherwise agreed to in the Order.
For our products that have applicable User limits, you will be charged fees associated with all
Paid Users.
b. Fee Adjustments in Next Billing Period. We determine the Contact tier for the next Billing
Period by reviewing the number of Contacts in your account. For our Full-Service Marketing
Products, we complete this review between forty (40) and twenty-five (25) days before the start
of your next Billing Period. If the number of Contacts in your account exceed your Maximum
Contacts when we complete this review, then your Subscription Fee will increase at the
beginning of the next Billing Period up to the tier price which corresponds with the reviewed
number of Contacts. Tier prices are as set forth in our Product and Services Catalog.
We allow you to reasonably manage the number of Contacts during the course of a Billing
Period and will not count Contacts removed before our review, unless these Contacts are
temporarily removed to avoid a fee increase. If Contacts are temporarily removed to avoid a
fee increase, we may consider the maximum number of Contacts from the reviewed Billing
Period for the purposes of determining your Contact tier.
This review and upgrade process will continue for each Billing Period during the Subscription
Term.
c. Payment by credit card. If you are paying by credit card, you authorize us to charge your
credit card or bank account for all fees payable during the Subscription Term. You further
authorize us to use a third party to process payments, and consent to the disclosure of your
payment information to such third party.
d. Payment against invoice. If you are paying by invoice, we will invoice you no more than
forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing
Period, and other times during the Subscription Term when fees are payable. All amounts
invoiced are due and payable within thirty (30) days from the date of the invoice, unless
otherwise specified in the Order Form.
e. Payment Information. You will keep your contact information, billing information and credit
card information (where applicable) up to date. Changes may be made on your Billing Page
within your SmileWise account. All payment obligations are non-cancellable and all amounts
paid are non-refundable, except as specifically provided for in this Agreement. All fees are due
and payable in advance throughout the Subscription Term. If you are a SmileWise Agency
Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and
to guarantee payment of all fees.
f. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to
pay any taxes applicable to your use of the Subscription Service and performance of Consulting
Services. You shall have no liability for any taxes based upon our gross revenues or net income.
If you are located in the European Union, all fees are exclusive of any VAT and you represent
that you are registered for VAT purposes in your member state. At our request, you will provide
us with the VAT registration number under which you are registered in your member state. If
you do not provide us with a VAT registration number prior to your transaction being
processed, we will not issue refunds or credits for any VAT that was charged. If you are subject
to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you
must pay the amount deducted or withheld as required by law and pay us an additional amount
so that we receive payment in full as if there were no deduction or withholding.
6. Use and Limitations of Use
a. Acceptable Use. You will comply with our Acceptable Use Policy
at http://legal.smilewise.com/acceptable-use ("AUP").
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system,
including, "robots," "spiders," or "offline readers," that sends more request messages to our
servers in a given period of time than a human can reasonably produce in the same period by
using a conventional browser; (ii) use the Subscription Service in any manner that damages,
disables, overburdens, or impairs any of our websites or interferes with any other party's use of
the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service;
(iv) access the Subscription Service other than through our interface; or (v) use the Subscription
Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using
the Subscription Service under the laws of the country in which you are resident or from which
you access or use the Subscription Service. The Subscription Service is not designed to comply
with industry-specific regulations such as the Health Insurance Portability and Accountability
Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security
Management Act (FISMA), so you may not use the Subscription Service where your
communications would be subject to such laws.
You will notify us right away of any unauthorized use of your Users’ identifications and
passwords or your account by contacting us at support@smilewise.co.uk.
c. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE
TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT
HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE
SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
d. Use of Communication Services. You agree to use Communication Services only in
compliance with any terms of use specified by each Communication Service. We do not control
the content, messages or information found in the Communication Services. We will not have
any liability with regards to the Communication Services and any actions resulting from your
use of the Communication Services.
e. Third-Party Sites and Products. Third-Party Sites and Products are not under our control.
Third-Party Sites and Products are provided to you only as a convenience, and the availability
of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-
Party Site or Product.
7. Subscription Term, Termination, Suspension
a. Term and Renewal. Your initial subscription period will be specified in your Order, and,
unless otherwise specified in your Order, your subscription will automatically renew for the
shorter of the subscription period, or one year. To prevent renewal of the subscription, the
required notice must be provided within the timeframe as specified in the ‘Subscription Types’
section below.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the
‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our
standard pricing available in our Product and Services Catalog on the date of renewal will
apply. If you use our Free Services, we will make the Free Services available to you free of
charge until earlier of (a) the date on which your free subscription is terminated or (b) the start
date of your paid subscription.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date
and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop
using the SmileWise subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all
Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach
if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other
party becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We
may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that
you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our
prospects, or our customers. This Agreement may not otherwise be terminated prior to the end
of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all
Subscription Services without notice for: (i) use of the Subscription Service in a way that
violates applicable local, state, federal, or foreign laws or regulations or the terms of this
Agreement, (ii) use of the SmileWise email send service that results in excessive hard bounces,
SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests
for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading
material that infringes or is alleged to infringe on the copyright or trademark rights of any
person or entity. We may, without notice, review, edit and delete any Customer Data or
Customer Materials that we determine in good faith violate these terms or the AUP, provided
that, we have no duty to pre-screen, control, monitor or edit your Customer Data or Customer
Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any
amount due. Unless the full amount has been paid, we may suspend your access to any or all
of the Subscription Services ten (10) days after such notice. We will not suspend the
Subscription Service while you are disputing the applicable charges reasonably and in good
faith and are cooperating diligently to resolve the dispute. If a Subscription Service is
suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription
Service.
f. Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being
subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in
denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for
the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing
harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or
any access to the Subscription Service. We will try to limit the suspension to the affected
portion of the Subscription Service and promptly resolve the issues causing the suspension of
the Subscription Service. Nothing in this clause limits our right to terminate for cause as
outlined above, if we determine that you are acting, or have acted, in a way that has or may
negatively reflect on or affect us, our prospects, or our customers.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free
Services for any reason at any time without notice. We may terminate your subscription to the
Free Services due to your inactivity.
h. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we
will continue to make available to you our Free Services provided however, this may not be
the case if your Agreement was terminated for cause. You may request the deletion of your
SmileWise account after expiration or termination of your subscription by sending a request to
privacy@smilewise.co.uk. You will continue to be subject to this Agreement for as long as you
have access to a SmileWise account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription
Service and SmileWise Content, and if we request, you will provide us written confirmation
that you have discontinued all use of Enrichment Data (unless, of course, you have a source
other than the Subscription Service for such Enrichment Data.) We may or may not provide
you the opportunity to retrieve Customer Data after termination or expiration, depending on
the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section
below. If you terminate this Agreement for cause, we will promptly refund any prepaid but
unused fees covering use of the Subscription Service after termination. If we terminate this
Agreement for cause, you will promptly pay all unpaid fees due through the end of the
Subscription Term. Fees are otherwise non-refundable.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer two (2) main types of subscriptions: (1) Full-Service
Subscriptions and (2) Free Subscriptions. There are different terms that apply depending on the
subscription you purchase, and we cover those differences in this section. Unless otherwise
agreed to in an Order, the following subscription types apply to the products specified:
(1) Full-Service Subscriptions; and
(2) Free Subscriptions: SmileWise CRM and all other products for which you do not pay us a
Subscription Fee that we do not otherwise name in this ‘Subscription Types’ section.
2. Limits. The limits that apply to you will be specified in your Order Form, this Agreement
or in our Product and Services Catalog, and for our Free Subscriptions, these limits may also
be designated only from within the product itself. You must be 18 years of age or older to use
the Subscription Service.
For our Full-Service Subscriptions, if we make modifications to the limits set forth in the
Product and Services Catalog that would negatively impact you, these modifications will not
apply to you until the start of your next renewal Subscription Term. On renewal, the current
product usage limits in our Product and Services Catalog will apply to your subscription, unless
you and we otherwise agree.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our
sole discretion without notice to you, regardless of whether or not these are used in conjunction
with other products or services for which you pay us a fee.
3. Downgrades. For our Professional and Enterprise edition products, you may not downgrade
your subscription and in order to avoid additional charges, you should purchase the appropriate
tier of Subscription Service for your anticipated needs.
4. Modifications. We modify the Subscription Service from time to time, including by adding
or deleting features and functions, in an effort to improve your experience.
For our Full-Service Subscriptions, we will not make changes to the Subscription Service that
materially reduce the functionality provided to you during the Subscription Term.
For our Limited Service Subscriptions and Free Subscriptions, we may make changes that
materially reduce the functionality provided to you during the Subscription Term.
5. Customer Support. If you pay us a Subscription Fee for our Professional or Enterprise
edition products, phone, email and in-app support is included at no additional cost. Phone
support for Professional or Enterprise edition subscriptions is available from 8pm Sunday to
8pm Friday EST (Eastern Standard Time), with reduced hours during holidays in Singapore,
Ireland, and the US. We accept email and in-app support questions 24 Hours per Day x 7 Days
per Week. Email and in-app questions can be submitted through the help widget in the lower
right hand corner of your account or by following the link at http://help.smilewise.com. Email
and in-app responses are provided during phone support hours only. We attempt to respond to
email and in-app support questions within one business day; in practice, our responses are
generally even faster. We do not promise or guarantee any specific response time. We may
limit or deny your access to support if we determine, in our reasonable discretion, that you are
acting, or have acted, in a way that results or has resulted in misuse of support or abuse of
SmileWise representatives. Issues resulting from your use of API's or your modifications to
code in the Subscription Service may be outside the scope of support. We will only provide
support for integrations which are listed in-app as being supported by SmileWise.
If you do not pay a Subscription Fee, support is available to you through the SmileWise
Community available at: community.smilewise.com.
6. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term
and Renewal’ section above.
Unless otherwise specified in your Order, to prevent renewal of a Full-Service Subscription,
you or we must give written notice of non-renewal and this written notice must be received no
less than ten (10) days in advance of the end of the Subscription Term.
Unless otherwise specified in your Order, to prevent renewal of a Limited Service Subscription,
you or we must give written notice of non-renewal and this written notice must be received
before the next renewal period begins.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you
do not want to renew by turning auto-renew off by accessing the billing details information in
your SmileWise account, or by following the steps here, as applicable.
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close
your account.
7. Retrieval of Customer Data. For our Full-Service Subscriptions, as long as you have paid
all fees owed to us, if you make a written request within thirty (30) days after termination or
expiration of your subscription, we will provide you with temporary access to the Subscription
Service to retrieve, or we will provide you with copies of, all Customer Data then in our
possession or control. If we provide you with temporary access to the account, we may charge
a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to
us. Thirty (30) days after termination or expiration of your Subscription, we will have no
obligation to maintain or provide you the Customer Data and may, unless legally prohibited,
delete all Customer Data in our systems or otherwise in our control.
For our Limited Service and Free Subscriptions, we will not provide you with any access to
Customer Data after termination or expiration of your subscription.
D. PRODUCT DISCLOSURES
For important information on our products, please visit our SmileWise Product Disclosures
page found here. For privacy disclosures about the Subscription Service, please see our Product
Privacy Policy found here.
E. GENERAL LEGAL TERMS
1. Customer Data
a. Limits on SmileWise. We will not use, or allow anyone else to use, Customer Data to contact
any individual or company except as you direct or otherwise permit. We will use Customer
Data only in order to provide the Subscription Service and Consulting Services to you and only
as permitted by applicable law, this Agreement, and our Product Privacy Policy. If you have
engaged with a partner of ours that participates in our Agency Partner Program, we may
monitor your partner’s activity within your SmileWise account and make information related
to your subscription available to your partner for the purposes of managing and improving the
SmileWise Agency Partner Program. We will not use Contact Information for our own
marketing purposes.
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers
and use the information gathered in an aggregate and anonymous manner. You agree that we
may use and publish such information, provided that such information does not incorporate
any Customer Data and/or identify you. We may, however, use Customer Data as part of
internal data processes to develop and improve Enrichment Data. With these internal data
processes, in no event will Customer Data be disclosed, included within or provided to other
customers or third parties. For clarity any data provided to other customers or third parties will
only be in an aggregated and anonymous manner.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and
technical safeguards to protect Customer Data. You consent to the processing of Customer
Data in the United States.
2. SmileWise’s Proprietary Rights. This is an Agreement for access to and use of the
Subscription Service, and you are not granted a license to any software by this Agreement. The
Subscription Service and Consulting Services are protected by intellectual property laws, they
belong to and are the property of us or our licensors (if any), and we retain all ownership rights
to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on
the SmileWise Content, the Subscription Service, or the Consulting Services in whole or in
part, by any means, except as expressly authorized in writing by us. Our trademarks include,
but aren’t limited to, those listed at http://legal.smilewise.com/trademarks (which we may
update at any time without notice to you) and you may not use any of these without our prior
written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in
connection with your use of the Subscription Service (unless, of course, you have a source
other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made
available to you based on Customer Data, but we will not use your Customer Data to enrich
data for other parties, except as we describe in the 'Aggregate Data' section above. The
Enrichment Data we provide may be provided from or through third party service providers or
public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services,
provide suggestions for improving it, and vote on suggestions they like. You agree that all such
comments and suggestions will be non-confidential and that we own all rights to use and
incorporate them into the Subscription Service or Consulting Services, without payment or
attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to
the Customer Materials and Customer Data. This Agreement does not grant us any ownership
rights to Customer Materials or Customer Data. You grant permission to us and our licensors
to use the Customer Materials and Customer Data only as necessary to provide the Subscription
Service and Consulting Services to you and as permitted by this Agreement. If you are using
the Subscription Service or receiving Consulting Services on behalf of another party, then you
represent and warrant that you have all sufficient and necessary rights and permissions to do
so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential
Information using the same degree of care that it uses with its own confidential information of
similar nature, but with no less than reasonable care, (ii) not use any Confidential Information
for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information
to any third party (except our third party service providers), and (iv) limit access to Confidential
Information to its employees, contractors, advisors and agents. Upon notice to the Discloser,
the Receiver may disclose Confidential Information if required to do so under any federal,
state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our customer list
and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against
any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and
our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third
party not affiliated with us to the extent that such Action is based upon or arises out of (a)
unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or
breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of
the Subscription Service by any other person using your User information. We will: notify you
in writing within thirty (30) days of our becoming aware of any such claim; give you sole
control of the defense or settlement of such a claim; and provide you (at your expense) with
any and all information and assistance reasonably requested by you to handle the defense or
settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on
us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these
indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO
REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY,
AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION
SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE,
SMILEWISE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE.
APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT
ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE,
SMILEWISE CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS"
WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL
WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR
STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE
CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR
BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT
APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES,
YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE
‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR
INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS
OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY
TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE
AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE
THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY
PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS
LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES,
AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU
OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN
OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S.
DOLLARS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-
PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY
OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT
YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT
PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
8. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer
Terms of Service, including the fees and charges associated with the use of the Subscription
Service (but, your fees and charges won’t change during the Subscription Term except as we
explain in the ‘Fees and Payments’ section above.) If we update or change these Customer
Terms of Service, the updated Customer Terms of Service will be posted at
www.smilewise.co.uk and we will let you know via email or in-app notification. The updated
Customer Terms of Service will become effective and binding on the next business day after it
is posted. When we change these Customer Terms of Service, the "Last Modified" date above
will be updated to reflect the date of the most recent version. If you would like to receive an
email notification when we update the Customer Terms of Service, send us an email at
info@smilewise.com. For the Product Disclosures page, if we make updates or changes we
will provide notice of those changes at our discretion. The updated Product Disclosures page
will be effective upon posting. We encourage you to review these Customer Terms of Service
periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us
in writing within thirty (30) days after receiving notice of modification. If you give us this
notice, your subscription will continue to be governed by the terms and conditions of the
Customer Terms of Service prior to modification for the remainder of your current term. Upon
renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or
remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any
right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if
caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or
telecommunication outage that is not caused by the obligated party; government restrictions;
or other event outside the reasonable control of the obligated party. Each party will use
reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for non-payment or breach of a party’s proprietary
rights, no action, regardless of form, arising out of or relating to this Agreement may be brought
by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership,
employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with Belgian laws (where applicable) in our
provision of the Subscription Service, the Consulting Services and our processing of Customer
Data. We reserve the right at all times to disclose any information as necessary to satisfy any
law, regulation, legal process or governmental request. You will comply with all laws in your
use of the Subscription Service and Consulting Services, including any applicable export
laws. You must comply with all applicable laws related to the recording of phone calls and
ensure all proper consent to record is obtained prior to making any such recording. You will
comply with the sanctions programs administered by the Office of Foreign Assets Control
(OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-
export, or transfer the Subscription Service or Consulting Services to prohibited countries or
individuals or permit use of the Subscription Service or Consulting Services by prohibited
countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or
unenforceable by applicable law, then the invalid or unenforceable provision will be deemed
superseded by a valid, enforceable provision that most closely matches the intent of the original
provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed
delivered as of the date of actual receipt.
To SmileWise Corporate BVBA or SmileWise Experience UK Ltd.: SmileWise, Zuiderlaan 1-
3, box 9, 9000 Gent, Belgium.
To you: your address as provided in our SmileWise Subscription account information for you.
We may give electronic notices by general notice via the Subscription Service and may give
electronic notices specific to you by email to your e-mail address(es) on record in our account
information for you or through the notifications centre of the Subscription Service. We may
give notice to you by telephone calls to the telephone numbers on record in our account
information for you. You must keep all of your account information current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy,
Product Privacy Policy, and AUP, is the entire agreement between us for the Subscription
Service and Consulting Services and supersedes all other proposals and agreements, whether
electronic, oral or written, between us. We object to and reject any additional or different terms
proposed by you, including those contained in your purchase order, acceptance or website. Our
obligations are not contingent on the delivery of any future functionality or features of the
Subscription Service or dependent on any oral or written public comments made by us
regarding future functionality or features of the Subscription Service. We might make versions
of this Agreement available in languages other than English. If we do, the English version of
this Agreement will govern our relationship and the translated version is provided for
convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or
transfer by reason of merger, reorganization, sale of all or substantially all of your assets,
change of control or operation of law, without our prior written consent, which will not be
unreasonably withheld. We may assign this Agreement to any affiliate or in the event of
merger, reorganization, sale of all or substantially all of our assets, change of control or
operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to
or shall confer upon any third party person or entity any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a
contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the
Uniform Computer Information Transaction Act (UCITA), or any substantially similar
legislation as may be enacted, shall not apply to this Agreement. If you are located outside of
the territory of the United States, the parties agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not govern this Agreement or the rights and
obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority
to enter into this Agreement and that it is binding upon such party and enforceable in
accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this
Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early
Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’,
‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination
of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’,
‘SmileWise’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’,
‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and
‘Contracting Entity and Applicable Law’. Additionally, the ‘Alpha/Beta Services’ section of
the Product Disclosures page and the ‘Crowdsourced Data’ section of our Product Privacy
Policy shall survive expiration or termination of this Agreement.
n. Precedence. In the event of a conflict between the terms of the Customer Terms of Service
and an Order, the terms of the Order shall control, but only as to that Order.
F. JURISDICTION SPECIFIC TERMS
1. Contracting Entity and Applicable Law. Your physical address determines which
SmileWise entity you are contracting with for the Subscription and Consulting Services. For
this Agreement, “located in” means your shipping or physical address.
If you are located in Europe, North America, South America, the Middle East, or Africa, then
you are contracting with SmileWise Corporate BVBA and this Agreement is governed by the
laws of the Republic of Belgium without reference to conflicts of law principles. For contracts
with SmileWise Corporate BVBA, both parties consent to the exclusive jurisdiction and venue
of courts in Brussels, Belgium for all disputes arising out of or relating to the use of the
Subscription Service or the Consulting Services.
If you are located in a geographic region that does not fall into one of the designations
described above, or if you use only the Free Services, then you are contracting with SmileWise
Corporate BVBA .
2. EU Data Processing.
To the extent that SmileWise processes any Personal Data as part of Customer Data that is
subject to the General Data Protection Regulation (the “GDPR”), on Customer’s behalf, in the
provision of the services hereunder, the terms of the SmileWise Data Processing Agreement
shall apply, available by sending an email to info@smilewise.com. For customers that are
located in the European Union or the European Economic Area, the Standard Contractual
Clauses adopted by the European Commission, attached to the Data Processing Agreement,
with SmileWise, Inc., which provide adequate safeguards with respect to the personal data
processed by us under this Agreement and pursuant to the provisions of our Data Processing
Agreement apply. You acknowledge in all cases that SmileWise acts as the data processor of
Customer Data and you are the data controller of Customer Data if you are subject to the
applicable data protection regulations in the European Union and European Economic
Area. Customer will obtain and maintain any required consents necessary to permit the
processing of Customer Data under this Agreement. If you are subject to the GDPR you
understand that if you give an integration provider access to your SmileWise account, you serve
as the data controller of such information and the integration provider serves as the data
processor for the purposes of those data laws and regulations that apply to you. In no case are
such integration providers our sub-processors.