Date: 5 October 2023
These terms may have changed since you last reviewed them so it is important that you read through them carefully.
Your attention is specifically drawn to clause 20 which sets out limits on our liability.
1. Where to find information about us and our products
You can find everything you need to know about us, Smoothmind Limited, and our products and services on our website, or in the quote we have sent you where you have made an enquiry about our bespoke services. We also confirm the key information to you in writing before you order, either by email, in your online account or on paper.
2. We don’t give business customers all the same rights as consumers
For example, business customers can’t cancel their orders, they have different rights where there is a problem with a product and we don’t compensate them in the same way for losses caused by us or our products. Where a term applies just to businesses or just to consumers, this is clearly stated. You are a business customer if you are buying products wholly or mainly for use in connection with your trade, business, craft or profession, even if you are an individual.
3. If you are a business customer this is our entire agreement with you
If you are a business customer these terms constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in these terms and that you have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
4. When our contract comes into force
4a. By placing an order you are promising that you are over the age of 18 years old.
4b. These terms and the contract are made only in the English language.
4c. You may place an order with us for goods, services or digital contents that we provide via the online shopping order process or by way of written acceptance of our quotation as may be applicable. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate and meets your requirements.
4d. We contact you to confirm we’ve received your order and we accept it when we dispatch or supply the product or grant you access to online content that is behind a paywall, or if earlier when we confirm in writing that we have accepted your order. It is only when your order is accepted that our contract comes into force.
4e. Sometimes we reject orders, for example, because a product is unexpectedly out of stock, because a credit reference we have obtained is unsatisfactory, because you are located outside our delivery areas, as stated on our website or because the product was mispriced by us. When this happens, we let you know as soon as possible and refund any sums you have paid.
4f. Where you have made an enquiry regarding bespoke services and we issue a quote, that quote is not an offer and is only valid for the period of time specified on the quote.
4g. These terms and conditions apply to our contract to the exclusion of any other terms that a business customer may seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
4h. Each order that is accepted will constitute a separate contract.
5. We charge you when you order
Unless agreed otherwise in writing, payment for products is in advance and we charge you when you place your order. However, for some products such as the online subscription services we take payment at regular intervals, as explained to you during the order process. If your product is goods (rather than digital content or services), you will own it once we have received payment in full.
6. If you are a business customer you have no set-off rights
If you are a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. We charge interest on late payments
If we’re unable to collect any payment you owe us we charge interest on the overdue amount at the rate of 2% a year above the Bank of England base rate from time to time. This interest accrues on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You pay us the interest together with any overdue amount.
8. We pass on increases in VAT
If the rate of VAT changes between your order date and the date we supply the product, we adjust the rate of VAT that you pay, unless you have already paid in full before the change in the rate of VAT takes effect.
9. We’re not responsible for delays outside our control
9a. We will use reasonable endeavours to meet any dates given for the delivery or supply of products. However, all dates given for delivery or supply are estimates and time shall not be of the essence in relation to delivery or supply.
9b. If our supply of your product or the services is delayed by an event outside our control, such as acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service., we contact you as soon as possible to let you know and do what we can to reduce the delay. We won’t compensate you for the delay, but if the delay is likely to last for more than 30 days you can contact our Customer Service Team: email@example.com to end the contract and receive a refund for any products or services you have paid for in advance, but not received, less reasonable costs we have already incurred.
10. Intellectual Property Rights
Save in relation to content that you provide to us, all intellectual property rights in or arising out of or in connection with the goods, services or digital content are owned or licenced by us.
11. Products can vary slightly from their pictures
A product’s true colour may not exactly match that shown on your device or its packaging may be slightly different.
12. Service specific terms
12a. Subscription Services and other Online Services
Where the services you have ordered include subscription services or online training or access to/stream digital content, the following additional terms will apply:
- We cannot promise that your use of the subscription services will be uninterrupted or error free.
- We may from time to time change the content of subscription and online services to add content, delete content or modify content.
- You are responsible for your devices and communication networks and facilities including the internet required to access the subscription services.
- You agree to comply with our Acceptable Use Policy which we may update from time to time. The current version can be found at https://www.smoothmind.com/acceptable-use-policy/.
- If we terminate your account you promise not to set up another account without our express permission.
12b. In Person Training and Consultancy
Where the services you have ordered include in person training or consultancy services, the following additional terms will apply:
- You need to ensure that your premises used for the delivery of the services is compliant with all relevant health and safety laws and you provide us with such access and other facilities as we may reasonably require and prepare the premises for the supply of the services.
- You need to ensure that you cooperate with us in all matters relating to the provision of the services
12c. Advertising Services
Where the services you have ordered include advertising services the following additional terms apply:
- You promise that you own or are the licensee, with the right to sublicence, any intellectual property rights in the material you provide to us in connection with the advertising services.
- You grant to us a fully paid up, non-exclusive, royalty free licence to copy and modify any materials provided by you for the purpose of providing the advertising services.
- We do not offer an editing service. It is therefore your responsibility to ensure that the content of any advertisement is correct, accurate, not misleading, compliant with all applicable laws and only contains material that you have the right to reproduce. We will not be liable for any mistakes or errors in the content of the material you provide to us.
- We reserve the right to take down or remove any adverts which in our opinion, acting reasonably, infringe a third party’s intellectual property rights and/or are unlawful in any way including but not limited to any applicable advertising standards.
- You promise to pay us any and all losses, claims, costs, damages including reasonable legal and other professional fees and expenses plus vat that we suffer in the event that a claim is brought against us for infringement of a third party’s intellectual property rights or for breach of any applicable laws, in respect of any material you provide to us in connection with the advertising services.
You are responsible for obtaining and maintain all necessary licences, permissions and consents which may be required for the goods, services or digital content before the delivery/supply date.
13. We charge you if you don’t give us information we need
We charge you additional sums if you don’t give us information we’ve asked for about how we can access your property for delivery or to provide services. For example, we might need to re-deliver or, reschedule services.
14. Consumer rights to change your mind
14a. If you are a consumer and you bought online, you have a legal right to change your mind. This clause 14 does not apply to business customers.
14b. For most of our products bought online, you have a legal right to change your mind within 14 days about your purchase and receive a refund of what you paid for it. You have to pay the costs of return. This is subject to some conditions, as set out in paragraph 14c.
14c. You can’t change your mind about an order for:
- digital products, after you have started to access or stream these;
- services, once these have been completed;
- products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them;
- sealed audio or sealed video recordings or sealed computer software, once these products are unsealed after you receive them;
- goods that are made to your specifications or are clearly personalised; and
- goods which become mixed inseparably with other items after their delivery.
14d. If you change your mind about a product you must let us know no later than 14 days after:
- the day we deliver your product, if it is goods. If the goods are for regular delivery (for example, a subscription), you can only change your mind after the first delivery. If the goods are split into several deliveries over different days, the period runs from the day after the last delivery.
- the day we confirm we have accepted your order, if it is for a service.
- the day we confirm we have accepted your order, if it is for digital content for download, access or streaming, although you can’t change your mind about digital content once we have started providing it.
14e. To let us know you want to change your mind, contact our Customer Service Team: firstname.lastname@example.org or manage your subscription for subscriptions services in “My Dashboard” on the website.
14f. If your product is goods, you have to return it (and any free gifts provided with it) to us within 14 days of your telling us you have changed your mind. Returns are at your own cost. You can send the product back to us, using an established delivery service. If you do this you should keep a receipt or other evidence from the delivery service that proves you have sent it and when you sent it. If you don’t do this and we don’t receive the goods at all or within a reasonable time we won’t refund you the price.
14g. We only refund standard delivery costs. We don’t refund any extra you have paid for express delivery or delivery at a particular time.
14h. You have to pay for services you received before you change your mind. If you bought a service we don’t refund you for the time you were receiving it before you told us you’d changed your mind.
14i. We reduce your refund if you have used or damaged a product. If you handle the product in a way which would not be acceptable in-store, we reduce your refund, to compensate us for its reduced value. In some cases, because of the way you have treated the product, no refund may be due.
14j. If your product is a service, digital content or goods that haven’t been delivered or that we’re collecting from you, we refund you as soon as possible and within 14 days of you telling us you’ve changed your mind. If your product is goods that you’re sending back to us, we refund you within 14 days of receiving them back from you (or receiving evidence you’ve sent them to us). We refund you by the method you used for payment. We don’t charge a fee for the refund.
15. Cancelling a contract for subscription or ongoing services
We tell you when and how you can end an on-going contract with us (for example, for regular services or a subscription to digital content or goods) during the order process and we confirm this information to you in writing after we’ve accepted your order. If you have any questions, please contact our Customer Service Team: email@example.com.
16. If there is something wrong with your product and you are a Consumer
16a. This clause 16 only applies to consumer customers. It does not apply to business customers. Business customers should refer to clause 17.
16b. If you think there is something wrong with your product, you must contact our Customer Service Team: firstname.lastname@example.org
16c. We honour our legal duty to provide you with products that are as described to you on our website and that meet all the requirements imposed by law. Your legal rights are summarised below. These are subject to certain exceptions.
Summary of your legal rights
If your product is goods, the Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of your product your legal rights entitle you to the following:
- Up to 30 days: if your goods are faulty, then you can get a refund.
- Up to six months: if your goods can’t be repaired or replaced, then you’re entitled to a full refund, in most cases.
- Up to six years: if your goods do not last a reasonable length of time you may be entitled to some money back.
If your product is digital content, the Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality:
- If your digital content is faulty, you’re entitled to a repair or a replacement.
- If the fault can’t be fixed, or if it hasn’t been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back.
- If you can show the fault has damaged your device and we haven’t used reasonable care and skill, you may be entitled to a repair or compensation
If your product is services, the Consumer Rights Act 2015 says:
- You can ask us to repeat or fix a service if it’s not carried out with reasonable care and skill, or get some money back if we can’t fix it.
- If a price hasn’t been agreed upfront, what you’re asked to pay must be reasonable.
- If a time hasn’t been agreed upfront, it must be carried out within a reasonable time.
17. If there is something wrong with your product and you are a Business
17a. This clause 17 only applies to business customers. It does not apply to consumer customers. Consumer customers should refer to clause 16.
17b. We warrant that on delivery any products which are goods shall:
- conform in all material respects with their description and any relevant specification;
- be free from material defects in design, material and workmanship;
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
- be fit for any purpose held out by us.
17c. Unless an exception applies (see paragraph 17d) if:
- you give us notice in writing within 5 days of the delivery date that a product does not comply with the warranty set out in paragraph 17b;
- we are given a reasonable opportunity of examining such product; and
- you return such product to us at our cost,
- we shall, at our option, repair or replace the defective product, or refund the price of the defective product in full and this will be your only remedy for breach of the warranty. These terms shall apply to any repaired or replacement products supplied by us.
17d. We will not be liable for a product’s failure to comply with the warranty set out in clause 17b if:
- you make any further use of such product after telling us it is non-compliant;
- the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the product or (if there are none) good trade practice;
- the defect arises because we followed any drawing, design or specification supplied by you;
- you alter or repair the product without our written consent; or
- the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
18. We can change products and these terms
18a. We can always change a product:
- to reflect changes in relevant laws and regulatory requirements;
- to make minor technical adjustments and improvements, for example to address a security threat. These are changes that don’t affect your use of the product; and
- to update digital content, provided that the digital content always matches the description of it that we provided to you before you bought it. We might ask you to install these updates.
18b. We can suspend the supply of a product. We do this to:
- deal with technical problems or make minor technical changes;
- update the product to reflect changes in relevant laws and regulatory requirements; or
- make changes to the product (see We can change products and these terms).
18c. We can stop providing a product, such as an ongoing service or a subscription for digital content or goods. We let you know at least five business days in advance and we refund any sums you’ve paid in advance for products which won’t be provided.
18d. If our ability to perform the contract is prevented or delayed by any failure by you to fulfil any of your obligations:
- we will be entitled to suspend performance of the contract until you remedy your default, and to rely on your default to relieve us from the performance of the contract, in each case to the extent your default prevents or delays performance of the contract. In certain circumstances your default may entitle us to terminate the contract under clause 19.
- we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the contract; and
- it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from your default.
19. We can end our contract with you
We can end our contract with you for a product and claim any compensation due to us if:
- you don’t make any payment to us when it’s due and you still don’t make payment within 7 days of our reminding you that payment is due;
- you don’t, within a reasonable time of us asking for it, provide us with information, cooperation or access that we need to provide the product; or
- you don’t, within a reasonable time, allow us to deliver the product to you.
20. Limits on our liability for losses caused by our products
20a. Our liability to consumers
This clause 20a only applies to consumer customers. It does not apply if you are a business customer. Business customers should refer to clause 20b. We’re responsible for losses you suffer caused by us breaking this contract unless the loss is:
- Unexpected. It was not obvious that it would happen and nothing you said to us before we accepted your order meant we should have expected it (so, in the law, the loss was unforeseeable).
- Caused by a delaying event outside our control. As long as we have taken the steps set out in the section ‘We’re not responsible for delays outside our control‘.
- Avoidable. Something you could have avoided by taking reasonable action. For example, damage to your own digital content or device, which was caused by digital content we supplied and which you could have avoided by following our advice to apply a free update or by correctly following the installation instructions or having the minimum system requirements advised by us.
- A business loss. We are not liable for any loss you suffer in connection with your trade, business, craft or profession.
20b. Our liability to businesses
This clause 20b only applies to business customers. It does not apply if you are a consumer customer. Consumer customers should refer to clause 20a. If you’re a business, then, except in respect of the losses described in clause 20c:
- we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or any indirect or consequential loss arising under or in connection with any contract between us; and
- our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the greater of £20,000 (twenty thousand pounds) and 100 (one hundred) per cent of the total sums paid by you for products under such contract.
20c. Nothing in these terms shall limit or exclude our liability for:
- death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
- in respect of consumer customers, defective products under the Consumer Protection Act 1987; or
- any matter in respect of which it would be unlawful for us to exclude or restrict liability.
21. No implied terms about goods
For business customers, except to the extent expressly stated in clause 17b, we exclude all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982.
22. We use your personal data as set out in our Privacy Notice
How we use any personal data you give us is set out in our Privacy Notice.
23. You have several options for for resolving disputes with us
Our complaints policy
Our Customer Service Team: email@example.com will do their best to resolve any problems you have with us or our products.
Resolving disputes in court
These terms are governed by English law. If you are a consumer then, wherever you live, you can bring claims against us in the English courts and if you live in Wales, Scotland or Northern Ireland, you can also bring claims against us in the courts of the country you live in. If you are a consumer we can claim against you in the courts of the country you live in. If you are a business you irrevocably agree to submit all disputes arising out of or in connection with our contract with you to the exclusive jurisdiction of the English courts.
24. Other important terms apply to our contract
24a. We can transfer our contract with you, so that a different organisation is responsible for supplying your product. We’ll tell you in writing if this happens and if you are a consumer we’ll ensure that the transfer won’t affect your rights under the contract.
24b. You can only transfer your contract with us to someone else if we agree to this. You need our agreement to transfer your contract with us and it’s entirely up to us whether we give it.
24c. Nobody else has any rights under this contract. This contract is between you and us. Nobody else can enforce it and neither of us will need to ask anybody else to sign-off on ending or changing it.
24d. Our relationship with you. Nothing in the contract between us is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
24e. If a court invalidates some of this contract, the rest of it will still apply. Each paragraph of these terms and conditions operates separately. If a court or other authority decides that some of these terms are unlawful or unenforceable, the rest will continue to apply in full force and effect.
24f. Even if we delay in enforcing this contract, we can still enforce it later. We might not immediately chase you for not doing something (like paying) or for doing something you’re not allowed to, but that doesn’t mean we can’t do it later. If we do waive our rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.