Service agreement

Terms of Use

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These Terms of Use (“Terms”) constitute the contract between Tommaso DI VRUSA, operating the 3Smiles platform, and any professional, natural or legal person acting in the course of their commercial, industrial, craft or liberal activity (the “Subscriber”), accessing the 3Smiles SaaS service available at app.3smiles.eu. Access to the Service implies full and unreserved acceptance of these Terms, including Annex 1 (Data Processing Agreement).

Definitions

Subscriber : any natural or legal person acting in the course of their professional activity (commercial, industrial, craft or liberal), who takes out a 3Smiles Subscription and accesses the Service as a professional.

Subscription : the Subscriber's subscription to a 3Smiles pricing plan (monthly or annual), granting access to the Service for the chosen period, with automatic renewal unless terminated under the conditions set out in the Terms.

Data Processing Agreement (or DPA) : the agreement relating to the processing of personal data, concluded in accordance with Articles 28 and 29 of the GDPR, governing 3Smiles's obligations as a data processor.

Personal data : any information relating to an identified or identifiable natural person, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data or an online identifier, in accordance with Article 4 of Regulation (EU) 2016/679 (GDPR).

Publisher : the natural or legal person operating the 3Smiles platform and responsible for the publication, operation and provision of the Service accessible via app.3smiles.eu and the 3smiles.eu showcase site.

Force majeure : any external, unforeseeable and irresistible circumstance reasonably beyond the control of the parties, including in particular a natural disaster, a generalised infrastructure failure, a fire, a war, a governmental act, a cyberattack of exceptional scale or any other situation making performance of the contract impossible, within the meaning of Belgian law.

Security incident : any breach of security leading to the accidental or unlawful destruction, loss, alteration, disclosure of, or unauthorised access to, personal data transmitted, stored or otherwise processed.

Maintenance : the planned or exceptional operations of updating, correcting or securing the Service, which may result in temporary unavailability.

Subscription period : the duration of the Subscription chosen at the time of the order (monthly or annual), during which the Subscriber benefits from access to the Service, with automatic renewal unless terminated.

Intellectual property : all exclusive rights to intellectual creations, in particular copyright, rights to trademarks, designs and models, patents, database rights and any other similar rights protected by the Belgian Code of Economic Law and the applicable international conventions.

Service : the 3Smiles SaaS platform available at app.3smiles.eu, comprising in particular the features for managing service requests via QR code, real-time notification of teams, configuration of spaces and tables, collection of anonymised customer reviews and access to performance indicators (KPIs), provided via a standard web browser.

Prices : the prices displayed on the 3smiles.eu site or in the commercial offer in force at the time of subscription, exclusive of tax, the applicable VAT being that legally due according to the Subscriber's situation.

Users : the natural persons authorised by the Subscriber to access and use the Service in the course of their professional activity, in particular the staff members of the relevant restaurant or hospitality establishment.

1. Purpose of the service

3Smiles is a SaaS platform intended for restaurant and hospitality establishments, allowing in particular:

  • the management of customer service requests via QR code;
  • real-time notification of the floor teams;
  • the configuration of spaces, tables and types of services;
  • the collection of anonymised customer reviews;
  • access to performance indicators and dashboards (KPIs).

The Service is provided via a standard web browser, without the installation of specific hardware or a mobile application, unless expressly stated otherwise.

2. Access and registration

Access to the Service requires the creation of an account via Microsoft Entra External ID.

The Subscriber undertakes to provide accurate, complete and up-to-date information.

Each account is associated with one or more establishments. The Subscriber is solely responsible for the confidentiality and use of their credentials. Any action carried out from the account is deemed to originate from the Subscriber or a User authorised by them.

3Smiles may suspend or refuse access to the Service in the event of:

  • breach of these Terms;
  • fraudulent or abusive use;
  • a threat to the security of the Service;
  • non-payment;
  • significant legal, technical or reputational risk.

Service reserved for professionals: access to the platform and its features is reserved for professionals. The Subscriber declares that they act in the course of their professional activity. Consequently, the right of withdrawal provided for consumers (art. VI.47 of the Belgian Code of Economic Law) does not apply to this contractual relationship.

3. Subscriptions, prices and payment

3.1 Subscription plans

The subscription plans, the associated features, any usage limits and the applicable prices are those displayed on the site or specified in the commercial offer in force at the time of subscription.

Prices are exclusive of tax, unless otherwise stated. The applicable value added tax is that legally due according to the Subscriber's situation.

3Smiles may change its prices for a valid reason, provided it informs the Subscriber at least thirty (30) days before the new prices take effect for ongoing subscriptions. A Subscriber who does not accept the new prices may terminate their subscription before they take effect.

The Subscriber has the right to terminate their subscription in accordance with these Terms.

3.2 Billing and payment

The Subscription is taken out according to the periodicity chosen at the time of the order, monthly or annual, with automatic renewal unless terminated under the conditions set out in these Terms.

Payment is processed via Stripe. 3Smiles never has access to the Subscriber's full payment card details.

In the event of a failed payment, 3Smiles may make further payment attempts and/or suspend access to the Service until the situation is resolved.

In the event of late payment, the Subscriber shall be liable, by operation of law and without prior formal notice, for the late-payment interest provided for by the law of 2 August 2002 on combating late payment in commercial transactions, as well as a fixed recovery indemnity of EUR 40, without prejudice to 3Smiles's right to claim additional compensation for reasonable recovery costs incurred beyond this amount, where duly justified.

Recovery costs and late-payment interest may also be claimed in accordance with the applicable legal provisions.

3.3 Termination and refund

The Subscriber may take out a monthly subscription or an annual subscription, according to the offer chosen at the time of the order.

Monthly subscription: the Subscriber may terminate their subscription at any time. Termination takes effect at the end of the current monthly billing period, provided that the termination request was submitted before the automatic renewal of that period. Any monthly period started remains payable in full.

Annual subscription: the Subscriber is committed for a period of twelve (12) months. They may terminate their subscription at any time, but termination will only take effect at the expiry of the current annual period. Save for a written commercial stipulation to the contrary, no pro rata temporis refund is due in the event of early termination of an annual subscription by the Subscriber. Any annual period started remains payable in full.

Failing termination within the applicable time limits, the Subscription, whether monthly or annual, is tacitly renewed for a new period of the same duration.

3Smiles may suspend or terminate the Service, by operation of law, with immediate effect or after sending a formal notice that has remained without effect for fifteen (15) calendar days, in the event of a serious breach of the Terms, non-payment, fraudulent or abusive use, or serious risk to the Service, other users or third parties.

Suspension of the Service, in particular in the event of non-payment or breach of the Terms, does not give rise to any refund of periods already paid.

3.4 Cessation of 3Smiles's activity

In the event of the definitive cessation of 3Smiles's activity, closure of the Service, liquidation, transfer of activity or any other event making the normal continuation of the Service impossible, 3Smiles may terminate any ongoing Subscription with thirty (30) calendar days' notice given by email or via the Service, save where legally or technically impossible to do so.

During this period, 3Smiles will use reasonable means to enable the Subscriber to retrieve their data in a standard format, as far as possible before the effective closure of the Service.

In the event of termination resulting from the definitive cessation of 3Smiles's activity, the Subscriber may, where applicable, claim a pro rata refund of the sums already paid corresponding to the period not used at the effective date of termination, save for a written agreement to the contrary.

This clause does not apply to temporary suspensions related to maintenance, a technical incident, a case of force majeure or a decision by a competent authority.

4. Obligations of the parties

4.1 Obligations of 3Smiles

Save for an express stipulation to the contrary, 3Smiles is bound by an obligation of means.

3Smiles uses its best efforts to provide the Service with reasonable diligence, security and continuity, without guaranteeing the complete absence of error, interruption or anomaly.

The Subscriber expressly acknowledges that the application is provided as is and that the Service is provided on a standardised basis, without any guarantee of results regarding the commercial, operational or financial objectives sought by the Subscriber.

3Smiles informs the Subscriber of planned maintenance and notifies security incidents in accordance with the GDPR and the Data Processing Agreement.

4.2 Obligations of the Subscriber

The Subscriber undertakes to:

  • use the Service in accordance with its purpose and the Terms;
  • comply with the regulations applicable to its activity, in particular regarding data protection, consumer information and consumer law where these apply to its own activity;
  • inform, where applicable, its customers of the use of the Service for managing requests;
  • guarantee the accuracy, lawfulness and updating of the data it enters into the Service;
  • not attempt to circumvent the security mechanisms, access the data of other Subscribers or disrupt the Service;
  • not reproduce, copy, resell, sublicense, decompile, disassemble or reverse-engineer the Service or its components.

5. Ownership and processing of data

The Subscriber's data and the operational data generated by the Subscriber's use of the Service belong to or fall under the responsibility of the Subscriber according to their legal nature. 3Smiles only processes them to the extent necessary for the provision of the Service, security, support and performance of the contract.

The Subscriber acknowledges that 3Smiles does not control the accuracy, completeness or lawfulness of the data it enters into the Service. The Subscriber warrants that it has all the rights, authorisations and legal bases necessary to collect, use and process this data in the course of its activity.

Multi-tenant isolation: each establishment has strict logical isolation. One Subscriber's data is never accessible to another Subscriber.

At the Subscriber's request, and under the conditions set out in the contract, 3Smiles may make available an export of the data in a standard format. Upon termination of the contract, the data is deleted or returned within a reasonable time, subject to legal retention obligations.

Where personal data is processed in the course of using the Service, the parties undertake to comply with the applicable data protection regulations, including Regulation (EU) 2016/679. For more information on the processing of personal data, the Subscriber is invited to consult our Privacy Policy.

6. Intellectual property

The entire 3Smiles platform, including the source code, interfaces, models, algorithms, documentation, trademarks, design and graphic elements, is the exclusive property of the Publisher or its licensors.

The Subscription grants the Subscriber a personal, non-exclusive, non-assignable and non-transferable right of use, limited to the duration of the Subscription and to internal use for its Users.

Any access to the source code, any attempt to decompile, reverse-engineer or copy the Service is strictly prohibited.

The Publisher reserves the right to take legal action and to claim compensation for the damage suffered in the event of an infringement of the intellectual property rights provided for herein.

7. Availability and service

3Smiles uses reasonable means to ensure the availability of the Service.

For certain plans, availability targets may be communicated on an indicative basis, without constituting a guarantee of results, save for an express stipulation to the contrary in a written commercial offer.

Interruptions related to maintenance, third-party infrastructure, networks, force majeure or non-compliant use do not give rise to any compensation, save for a mandatory provision to the contrary.

Technical assistance is provided on a best-effort basis, electronically at contact@3smiles.eu. It is available to all Subscribers, whatever their subscription plan.

No response or resolution time, no service level agreement (SLA) and no dedicated resource is included in the standard subscription plans. Such commitments may only result from an express written stipulation in a separate commercial offer. This clause does not limit 3Smiles' liability in the event of fraud, gross negligence or breach of its main obligation.

8. Limitation of liability

To the fullest extent permitted by applicable law, 3Smiles's total liability, all causes combined, is limited to the total amount actually paid by the Subscriber during the twelve (12) months preceding the event giving rise to the damage.

The Subscriber is solely responsible for the quality, availability and security of its internet connection, its local network, its equipment and any technical environment necessary to access the Service. 3Smiles cannot be held liable for interruptions, slowdowns or malfunctions resulting from a failure of these elements.

3Smiles cannot be held liable for indirect, special, incidental, punitive or consequential damages, nor for loss of turnover, customers, data, profit, image or business, except in the event of gross negligence or wilful misconduct or where any limitation would be prohibited by applicable law.

The limitations and exclusions of liability provided for in this article do not apply in the event of fraud, gross negligence, breach of an essential obligation of the contract, harm to life or physical integrity, nor in cases where mandatory law prohibits such limitation.

9. Force majeure

Neither party may be held liable for a failure resulting from a case of force majeure within the meaning of Belgian law, including in particular a natural disaster, a generalised infrastructure failure, a fire, a war, a governmental act, a cyberattack of exceptional scale or any other circumstance reasonably beyond its control.

10. Changes to the Terms

3Smiles may modify these Terms for a valid reason, in particular a legal or regulatory change, a technical or security change, or a change to the Service's features. Any substantial change will be notified to active Subscribers at least thirty (30) days before it takes effect, by email or via the Service.

Continued use of the Service after the entry into force constitutes acceptance of the amended Terms. In the event of refusal, the Subscriber may terminate before the relevant change takes effect.

11. Applicable law and jurisdiction

These Terms are governed by Belgian law.

In the event of a dispute, the parties will first seek an amicable solution within a period of thirty (30) days from the written notification of the dispute.

Failing an amicable agreement, the competent courts shall be those of the judicial district of Hainaut, Charleroi division, subject to the mandatory rules of jurisdiction.

12. Partial invalidity

If any provision hereof is held to be null, invalid or unenforceable, the other provisions shall remain fully applicable. The invalid clause shall, as far as possible, be replaced by a valid provision as close as possible to the initial intention of the parties.

13. Assignment

3Smiles may assign, transfer or contribute this contract, in whole or in part, to any entity of its choice, in particular in the event of reorganisation, transfer of activity or financing operation. The Subscriber expressly accepts this possibility.

14. Evidence

The computer records, technical logs, timestamps, electronic confirmations and connection traces kept by 3Smiles may be used as means of evidence between the parties, save for evidence to the contrary.

Annex 1 — Data Processing Agreement (Art. 28 GDPR)

This annex forms an integral part of the Terms and is accepted by the Subscriber upon subscription. It governs the processing, by 3Smiles, of personal data on behalf of the Subscriber, in accordance with Article 28 of the GDPR. No separate signature is required: subscribing to a plan constitutes conclusion of this agreement.

1. Capacity of the parties

The Subscriber (the establishment) acts as data controller for the data it collects from its guests and processes via the service. 3Smiles (Tommaso DI VRUSA) acts as data processor within the meaning of art. 4.8 of the GDPR.

3Smiles remains data controller, independently, for account, billing and Subscriber-relationship management data, governed by the Privacy Policy.

2. Description of the processing

The processing carried out by 3Smiles on behalf of the Subscriber is described as follows:

  • Nature and purpose: provision of the real-time service-request service, back-office, KPIs and customer reviews
  • Duration: the duration of the subscription, plus the deletion period provided for in art. 8 of this annex
  • Categories of data: operational data (service requests, timestamps, table/space), anonymised customer reviews, technical data (IP address, logs)
  • Data subjects: the establishment's guests and the Subscriber's floor staff
  • Sensitive data: no data referred to in art. 9 of the GDPR is processed within the framework of the service

3. Documented instructions

3Smiles processes the data only on the documented instructions of the Subscriber; these Terms and the use of the service's features constitute the initial instructions. 3Smiles informs the Subscriber if an instruction appears to it to be contrary to the GDPR or Belgian law.

4. Confidentiality

3Smiles ensures that the persons authorised to process the data are subject to an appropriate confidentiality obligation, whether legal or contractual.

5. Security of processing (art. 32)

3Smiles implements the technical and organisational measures described in the Privacy Policy (encryption in transit and at rest, MFA, principle of least privilege, monitoring, Azure managed identity), in order to ensure a level of security appropriate to the risk.

6. Sub-processors

The Subscriber authorises 3Smiles to use the following sub-processors:

  • Microsoft Azure (Ireland, EU) — hosting, database, identity, storage, SignalR
  • Stripe, Inc. (USA, governed by the Standard Contractual Clauses) — payment and billing

3Smiles informs the Subscriber of any change of sub-processor at least 30 days in advance, during which period the Subscriber may object on legitimate grounds. Each sub-processor is bound by equivalent data protection obligations.

7. Assistance to the Subscriber

3Smiles assists the Subscriber, as far as possible, in responding to requests to exercise the rights of data subjects (access, rectification, erasure, etc.), in particular via the export and deletion functions of the back-office.

3Smiles assists the Subscriber with regard to security, the notification of data breaches and, where applicable, impact assessments (art. 32 to 36 of the GDPR). In the event of a breach affecting the Subscriber's data, 3Smiles notifies it without undue delay after becoming aware of it.

8. Fate of the data at the end of the contract

Upon termination, and at the Subscriber's choice, 3Smiles deletes or returns the personal data within 30 days, unless subject to a legal retention obligation. The Subscriber may export its data from the back-office before that deadline.

9. Audit and documentation

3Smiles makes available to the Subscriber the information necessary to demonstrate compliance with art. 28 of the GDPR and allows, under reasonable conditions and with notice, the conduct of audits or the communication of the compliance reports of its sub-processors.

10. Transfers and liability

Any transfer of data outside the European Union is governed by appropriate safeguards (Standard Contractual Clauses). The liability of each party under this annex is exercised within the limits set out in Article 8 of the Terms.

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