1. APPLICABILITY OF THESE TERMS
These Terms apply to Customer’s use of all services offered by BSC (“BSC Services”), BSC’s website located at www.Blackswan-consulting.com (“BSC Website”), and any mobile apps offered by BSC, regardless of where such apps were obtained by Customer (“BSC Apps”). In these Terms, the BSC Services, BSC Website and BSC Apps are collectively referred to as “BSC Offerings.” BSC may from time to time change these Terms, and any other terms or conditions appearing on the BSC Website that may be referred to in these Terms, in accordance with Section 7.
2. SIGN-UP
2.1 Account.
Customer must register with BSC before receiving any BSC Services. After such registration is complete, BSC will establish an online account for Customer (“Customer’s Account”) that can be accessed on the client portal on the BSC Website.
2.2 Basis of contract.
Customer registering with BSC constitutes an offer by Customer to purchase BSC Services in accordance with these Terms. The Customer registration shall only be deemed to be accepted once BSC has created a Customer Account at which point and on which date a contract (“Contract”) shall come into existence. These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or dealing.
2.3 Password.
Customer will not share with any third party, and will otherwise keep secret, any password that can be used to access Customer’s Account (“Customer’s Password”). Customer will be solely responsible for all activities conducted through Customer’s Account, and will be liable for all losses and damages arising from any use or misuse of Customer’s Account, provided that Customer’s liability will be proportionately reduced to the extent BSC’s breach of the Terms or other wrongful act or omission caused or contributed to these losses or damages. If Customer believes that any third party knows Customer’s Password or that there has been any unauthorized access to Customer’s Account, Customer will immediately change Customer’s Password and notify BSC. Customer will not, and will have no right to, transfer Customer’s Account or Customer’s Password to any third party.
2.4 Telephone Number.
After Customer registers with BSC:
(a) BSC will assign to Customer a unique telephone number for use with BSC Services provided to Customer; or
To the extent not prohibited by applicable law or regulation, in the event that any Trial Service or BSC Paid Service (as defined in Section 4 below) is terminated, BSC may retain the assigned telephone number for use as it reasonably sees fit.
3. TRIAL SERVICE
3.1 Trial Period.
Subject to these Terms, BSC may provide to Customer a live receptionist answering service (“Trial Service”) during a trial period commencing on Customer’s registration with BSC and expiring within a number of days specified by BSC, which period may be extended or shortened by BSC in its discretion provided the Customer is notified (such period, “Trial Service Term”). Customer acknowledges and agrees that the scope and details of the Trial Service will be determined by BSC in its discretion. The Trial Service is not applicable for prior Customers of BSC, casual Customers or new Customers that require BSC Services for promotional or advertising campaigns.
3.2 Trial Usage Charges.
At no charge to Customer, BSC will provide Customer with a credit to be applied to incremental charges that are incurred based on Customer’s usage of the Trial Service (“Trial Usage Credit”). Customer acknowledges and agrees that (a) the amount of the Trial Usage Credit will be determined by BSC in its discretion and (b) the amount of such incremental charges will be determined, and may be changed, by BSC in its discretion. BSC will notify the Customer of the amount of the Trial Usage Credit and the amount of incremental charges. However, trial minutes will not exceed 200 minutes.
3.3 Termination of Trial Service.
BSC or Customer may immediately terminate the Trial Service at any time for any reason or no reason by providing written notice to the other. Without limiting the foregoing, BSC may terminate the Trial Service upon expiration of the Trial Service Term, depletion of the Trial Usage Credit, or commencement of any BSC Paid Services (as defined in Section 4 below). After the termination of the Trial Service, Customer will need to purchase BSC Paid Services, as described in Section 4 below, in order to continue to receive services from BSC after the end of the Trial Service Term. Any portion of the Trial Usage Credit not used prior to termination of the Trial Service will be forfeited and may not be used in connection with any BSC Paid Services.
4. PAID SERVICES
4.1 Adding Paid Services.
Customer may at any time request to receive one or more of the paid services described on the BSC Website or in these Terms (“BSC Paid Services”). Customer will select a pricing plan for each BSC Paid Service from the pricing plans offered by BSC (“Pricing Plans”). Prior to providing any BSC Paid Services, BSC may require that Customer provide information about a credit card to which Customer authorizes BSC to submit charges as permitted under these Terms (“Customer’s Credit Card”).
4.2 Paid Service Terms.
Each BSC Paid Service that Customer requests and BSC agrees to provide (which agreement may be withheld by BSC acting reasonably) is referred to in these Terms as a “Selected Paid Service.” Subject to these Terms, BSC will provide the Selected Paid Services for consecutive one (1) calendar month periods (each such period, a “Paid Service Term”) until terminated in accordance with these Terms.
5. Reserved
6. PRICING & PAYMENTS
6.1 Pricing.
The charges for each BSC Paid Service may include (a) subscription charges that do not vary based on Customer’s usage of the BSC Paid Service (“Subscription Charges”) and/or (b) incremental charges that are incurred based on Customer’s usage of the BSC Paid Service, e.g., without limitation, excess inbound call charges, messages sent via SMS, call transfer charges and after-hour charges (“Usage Charges”). The charges for the BSC Paid Services are set out in the price list on the BSC Website (“Price List”) and below in Section 6.2, both of which may be revised by BSC from time to time as set forth in Section 7. All prices quoted exclude any applicable taxes.
6.2 Fees and Charges
6.2(a) Subscription Charges
Higher volume plans and pricing are available for BSC Services. Please contact us for further information. Unused monthly call allowances expire each month.
Discounts. Suppose BSC grants to Customer any discount for any Selected Paid Service. In that case, BSC will notify Customer in writing about the details of the discount and the period during which it will apply. The discount will be applied to the applicable charges set out in the Price List or these Terms and will apply only during the period specified by BSC in writing (“Discount Period”), after which the charges set out in the Price List or these Terms will apply without such discount.
6.3 Subscription Charges Payments.
For each Selected Paid Service, the applicable Subscription Charge for each Paid Service Term may be charged to Customer’s Credit Card in advance of such Paid Service Term (which will not be more than one (1) day prior to the commencement of a Paid Service Term). With respect to any Selected Paid Service that is added during the course of (i.e., not on the first day of) a Paid Service Term, the Subscription Charge for such Paid Service Term will be pro-rated for the remainder of such Paid Service Term and may be charged to Customer’s Credit Card when BSC starts providing such Selected Paid Service.
6.4 Usage Charges Payments.
(a) Customer will be charged for minute usage at the rate set for their subscription that exceeds the minutes included in their subscription as shown in the pricing chart under 6.2.
6.5 Pricing Plan Changes.
Customer may request to change the Pricing Plan it selected for any Selected Paid Service to a different Pricing Plan. If BSC approves such request (acting reasonably), the new Pricing Plan will take effect on the first day of the Paid Service Term following the Paid Service Term in which BSC receives such request unless Customer requests, and BSC agrees, that the new Pricing Plan will take effect during the Paid Service Term in which BSC receives such request, in which case the following will apply:
(a) Customer’s Paid Service Term for the new Pricing Plan will commence from midnight Mountain Standard Time on the day of the change (unless Customer and BSC agree otherwise); and
(b) If there are unused usage allowances in the previous Pricing Plan, the Customer will receive a credit to its account calculated as:
Credit % (defined below) x Subscription Charge of previous Pricing Plan
Credit % means the amount equal to the lesser of:
days remaining in the Paid Service Term divided by the average number of days in a month (30.4 days); or
unused usage allowances in the previous Pricing Plan divided by usage allowances of the previous Pricing Plan.
(c) Usage Charges incurred by Customer during a Paid Service Term in excess of usage allowances will be calculated under the terms of the Pricing Plan that was in place at the time of the usage; and
(d) Except as set out in Section 6.6(b) above, where a Pricing Plan change occurs pursuant to this Section 6.6, Customer will not be entitled to any refunds or credits for any amounts previously paid, and any charges previously incurred by Customer will remain payable by Customer.
6.6 Taxes.
Customer will be responsible for any taxes, duties, levies or other governmental charges (collectively, “Taxes”) assessed or imposed in connection with any BSC Offerings provided to Customer or any payments or transactions under these Terms, excluding BSC’s income taxes. Customer will be responsible for paying applicable sales and use taxes for the purchase of any Paid Services based on the address that Customer provides when registering with BSC. If BSC is obligated to collect or pay any such Taxes, BSC may charge to Customer’s Credit Card the amount of such Taxes except to the extent Customer provides BSC with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.7 Credit Card Payments.
Customer hereby authorizes BSC to submit charges to Customer’s Credit Card as permitted under this Section 6. Notwithstanding anything to the contrary, BSC may, acting reasonably at its discretion, and after providing Customer with reasonable notice, require that
(a) a different credit card be provided as Customer’s Credit Card, or
(b) any amount BSC is permitted to charge to Customer’s Credit Card be paid by Customer using an alternate method of payment, e.g., check or electronic funds transfer.
6.8 Other Payment Terms.
All amounts payable by Customer under these Terms will be charged in United States dollars and paid via a payment method agreed by the parties. If any amount payable by Customer under these Terms is not paid when due (including, without limitation, due to a charge to Customer’s Credit Card being declined or initially accepted but subsequently reversed):
(a) Customer may be charged a late payment fee, penalty, or interest on any overdue amount at a rate of 10% per annum, which will accrue on a daily basis from the due date until such amount is paid in full;
(b) Customer will be responsible for all reasonable expenses (including collection and legal fees) reasonably incurred by BSC in collecting such amount; and
(c) BSC reserves the right to re-direct Customer’s telephone calls to an automated answering service with immediate effect until such amount is paid in full after providing Customer written notice of the redirection unless there is a genuine dispute about the invoice as reasonably determined by BSC.
6.9 Unwanted Calls.
BSC does not take any responsibility for any inbound calls, including, without limitation, any inbound calls from (a) telemarketers or promotional companies, (b) callers who misdialed, or (c) callers who do not leave messages. BSC makes best endeavors to facilitate the blocking of numbers as nominated by Customer to minimize the number of such calls; however, these calls qualify as inbound calls and may result in Usage Charges in accordance with Section 6.2.
6.10 Invoices.
BSC will email Customer and make available via the client portal invoices which:
- Outline the Subscription Charge within a reasonable period of time upon the commencement of a Paid Service Term
- Outline the Usage Charges and relevant fees that have accrued to Customer during the relevant period of service
- Are calculated by reference to the data recorded by BSC. BSC’s records are sufficient proof of a charge that is payable unless they are shown to be incorrect.
6.11 Invoice disputes.
Customer will use its reasonable endeavors to notify BSC of any invoice dispute within fourteen (14) days of receipt of an invoice, following the process outlined in Section 15. If Customer disputes an invoice, the invoice must continue to be paid on time; however, BSC will credit or refund Customer if it is later reasonably determined by BSC or pursuant to the dispute resolution process outlined in Section 15 that the invoice was incorrect and the Customer is entitled to a credit or refund.
7. CHANGES TO TERMS AND SERVICES
7.1 Revisions to Prices.
BSC may revise the Price List or charges set out in these Terms from time to time. Such revisions may include, without limitation, changes to the amounts of the Subscription Charges or Usage Charges for BSC Paid Services, changes to the usage allowances included in the Pricing Plans, and discontinuation of Pricing Plans.
(a) Each such revision will take effect after reasonable advance written notice is provided to Customer (for example, by being posted to the BSC Website), except that any such revision that affects a Selected Paid Service will apply to Customer starting at the commencement of a Paid Service Term beginning no less than thirty (30) days from the date which BSC provides notice of such revision to Customer in accordance with Section 16.8. If Customer does not agree to any such revision, Customer may terminate the affected Selected Paid Services in accordance with Section 10.1 below on and from the effective date of the revision and discontinue its use of such Selected Paid Services. If Customer does not terminate its use of any affected Selected Paid Service prior to the effective date of such revision, Customer will be deemed to have agreed to such revision with respect to such Selected Paid Service.
(b) If a Pricing Plan selected by Customer is discontinued, BSC will provide Customer with reasonable advance notice of no less than thirty (30) days and Customer will be given the option of selecting a new Pricing Plan from then-current pricing plans offered by BSC. If Customer does not select a valid new Pricing Plan prior to the effective date of such discontinuation, then (i) BSC may suspend the affected Selected Paid Service until Customer selects a valid new Pricing Plan after providing reasonable advance written notice to Customer or (ii) Customer may terminate the affected Selected Paid Service pursuant to Section 10.1 on and from the effective date of the discontinuation by providing written notice to BSC.
7.2 Changes to Services or Terms.
BSC may from time to time make changes to any Selected Paid Service (including, without limitation, the scope, nature and other details of such Selected Paid Service), these Terms, BSC’s Fair Use Policy (as defined in Section 8.4 below), or any other terms or conditions appearing on the BSC Website that may be referred to in these Terms, in each case by providing reasonable advance written notice to Customer in accordance with Section 16.8. Each such change will be effective on the date of such notice if such change is made by BSC to comply with any applicable laws or to address any actual or reasonably likely potential third-party claims, or if such notice is provided to Customer during the Trial Service Term, provided that Customer may terminate the affected Selected Paid Service pursuant to Section 10.1 on and from the effective date of the change by providing written notice to BSC if the nature or functionality of the affected Selected Paid Services is materially impacted by the change. It will be effective at the end of the Paid Service Term in which such notice is delivered, provided that if such notice is delivered less than fifteen (15) days prior to the end of such Paid Service Term, such change will be effective at the end of the subsequent Paid Service Term. If Customer does not agree to such change, Customer may terminate the affected Selected Paid Services in accordance with Section 10.1 below on and from the effective date of the change and discontinue its use of all other affected BSC Offerings. If Customer does not terminate such Selected Paid Services and discontinue its use of all other affected BSC Offerings in accordance with this Section 7.2, Customer will be deemed to have agreed to such change. For avoidance of doubt, this paragraph does not apply to changes to the Price List, which are addressed in Section 7.1.
8. OTHER OBLIGATIONS OF CUSTOMER
8.1 Information Provided by Customer.
Customer represents that all information provided by Customer to BSC (including, without limitation, all contact information and information regarding Customer’s Credit Card) is accurate, up-to-date, and complete at the time it is provided to BSC. Customer will update all such information so that it remains accurate, up-to-date, and complete at all times.
8.2 Forwarding Phone Numbers.
Some BSC Offerings may involve the forwarding of calls or messages to phone numbers specified by Customer (“Forwarding Telephone Numbers”). Customer represents that all Forwarding Telephone Numbers are under Customer’s direct control, and Customer will not direct BSC to forward calls or messages to any phone numbers not under Customer’s direct control. In addition, Customer acknowledges and agrees that BSC will have the right to reasonably refuse to forward calls and messages to any telephone number, in which case Customer will need to provide a different telephone number to receive forwarded calls and messages.
8.3 Compliance with Laws.
Customer must at all times comply with all laws, regulations, standards, and codes applicable in connection with its use of BSC Offerings and the Customer’s supply of its product and service to its callers. Customer will not use any BSC Offerings to engage in, or to encourage or assist others to engage in, any illegal or fraudulent activities.
8.4 BSC Fair Use Policy.
In connection with its use of BSC Offerings, Customer will at all times comply with this fair use policy (“Fair Use Policy”). The Fair Use Policy pertains to:
(a) Customer’s usage during the Trial Service Term. BSC may shorten or end the Trial Service Term of the Customer with immediate effect should it determine, at its absolute discretion, that the Customer’s usage is in any way unreasonable.
(b) Customer’s inbound call durations on AI Cemetery Phone Receptionist. After providing reasonable (30 days) written notice to Customer, BSC may require that Customer’s Account be re-configured, or terminate any or all Selected Paid Services with effect at the end of the next Paid Service Term ending no sooner than thirty (30) days after notice is provided, should it determine, in its reasonable option, that the Customer’s inbound call durations are in any way excessive or unreasonable.
(c) Customer’s call transfer durations. After providing reasonable (30 days) written notice, BSC may require that Customer’s call transfers be charged on a per minute basis or terminate any or all Selected Paid Services with effect at the end of the next Paid Service Term ending no sooner than thirty (30) days after notice is provided, should it determine in its reasonable opinion that the Customer’s use of call transfers is in any way unreasonable.
This Fair Use policy may be amended by BSC from time to time by providing reasonable written notice (30 days) to Customer.
8.5 Other Prohibited Activities.
Customer will not, and will have no right to:
(a) Sell, resell, or otherwise provide any BSC Offerings to third parties, or use or otherwise exploit any BSC Offerings for the purpose of selling or otherwise providing to third parties the benefit of any BSC Offerings or any products or services that are similar to any BSC Offerings;
(b) Overburden, disable, or otherwise disrupt any BSC Offerings or interfere with the use of any BSC Offerings by any other BSC customers; or
(c) Obtain or attempt to obtain any materials or information regarding any BSC Offerings or any other user of BSC Offerings through any means not intentionally made available or provided for by BSC through the BSC Website or any BSC App.
8.6 Indemnification.
Customer will indemnify BSC from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of any breach by Customer of these Terms or any third-party claim relating to any of Customer’s products, services, or businesses, provided that Customer’s liability under or in connection with this indemnity will be proportionately reduced to the extent BSC’s breach of the Terms or other wrongful act or omission caused or contributed to BSC’s liability, damages, or costs.
9. SERVICE SUSPENSION
9.1 Insufficient Funds.
BSC may suspend the performance of any or all Selected Paid Services if any charge submitted by BSC to Customer’s Credit Card as permitted under these Terms is declined or is initially accepted but subsequently reversed, or any amount payable by Customer under these Terms is not otherwise paid when due, after providing Customer with seven (7) days prior written notice to pay all outstanding amounts in full.
9.2 Emergency Suspension.
BSC may immediately suspend the performance of any or all Selected Paid Services and disable Customer’s access to Customer’s Account and any BSC Offerings if BSC has a reasonable belief that:
(a) Customer has committed any breach of Section 8 or has engaged in any activity that could pose a serious threat or risk to BSC or its employees (including attracting calls causing undue stress for BSC employees) or disrupt any BSC Offerings; or
(b) There has been any unauthorized access to Customer’s Account or unauthorized use of any BSC Services in Customer’s name.
9.3 Customer Default.
If BSC’s performance of any of its obligations under these Terms is prevented or delayed by any act or omission by Customer or failure by Customer to perform any obligation, including Sections 9.1 and 9.2 above, (“Customer Default”):
(a) Without limiting or affecting any other right or remedy available to it, BSC shall have the right to suspend performance of any of the BSC Offerings until Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays BSC’s performance of any of its obligations;
(b) BSC shall not be liable for any costs or losses sustained or incurred by Customer arising from BSC’s failure or delay to perform any of its obligations as set out in this Section 9; and
(c) Customer shall reimburse BSC on written demand for any costs or losses reasonably sustained or incurred by BSC arising from the Customer Default, provided that Customer’s liability under or in connection with this indemnity will be proportionately reduced to the extent BSC’s breach of the Terms or other wrongful act or omission caused or contributed to BSC’s costs or losses.
9.4 Effect of Suspension.
In the event of a suspension in accordance with this Section 9, applicable charges will continue to accrue to Customer.
10. SERVICE TERMINATION
10.1 Termination by Customer.
(a) For Cause.
Customer may terminate any Selected Paid Service on written notice to BSC:
(i) If BSC is in material breach of the Terms and the breach remains unremedied for more than thirty (30) days after receipt of a written notice from Customer to remedy the breach; or
(ii) Customer has the right to terminate pursuant to Section 7.1 or Section 7.2, in which case Customer will have access to the BSC Offerings for any remaining period of the Paid Service Term and be entitled to a refund of any unused balance of the Prepaid Usage Credit, from which has been deducted any amounts Customer incurred prior to termination or that are owed by Customer pursuant to these Terms.
(b) For Convenience.
Customer may terminate any Selected Paid Service at any time by sending BSC an email to [email protected], that identifies the Selected Paid Services to be terminated and the date on which Customer desires such termination to take effect (“Requested Termination Date”), which date will be no earlier than three (3) days after the date such email is sent. If a new Paid Service Term starts earlier than three (3) days after such email is sent, Customer will incur the applicable Subscription Charge for the new Paid Service Term (the “Final Paid Service Term”). The effective date of such termination will be, either (i) the Requested Termination Date, or should Customer not state a Requested Termination Date, (ii) the last day of the Final Paid Service Term. Irrespective of the effective date of termination, Customer will have access to the Selected Paid Services until the last day of the Final Paid Service Term.
(c) Where Customer terminates pursuant to this Section 10.1(b):
(i) Default position the Subscription Charges which have been pre-paid will be retained and the BSC Offerings available to Customer until the last day of the Final Paid Service Term (subject to reinstatement fees under clause 10.3(e)) and the unused balance of the Prepaid Usage Credit will be retained by BSC for future use by Customer if Customer decides to re-instate or otherwise re-commence the BSC Service pursuant to Section 10.3(e); or
(ii) Refund Request where Customer requests a refund of the unused Prepaid Usage Credit referred to in Section 10.1(c)(i) and BSC agrees to the request (acting reasonably), BSC will refund Customer this amount from which has been deducted an administration fee of $30 (to cover BSC’s reasonable costs in processing the refund) and any amounts Customer incurred prior to termination or that are owed by Customer pursuant to these Terms.
10.2 Termination by BSC
(a) For Cause.
BSC may terminate any Selected Paid Service on written notice to Customer if:
(i) Customer is in material breach of Section 5.2, 8.3, 8.4 or 8.5 of these terms,
(ii) Customer is in material breach of any other section these Terms and the breach remains unremedied for more than thirty (30) days after receipt of a written notice from BSC to remedy the breach, or
(iii) Customer ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, avails itself of or becomes subject to any petition or proceeding relating to insolvency or the protection of the rights of creditors, or any other insolvency or bankruptcy proceeding or other similar proceeding for the settlement of Customer’s debt is instituted.
Where BSC terminates any Selected Paid Service pursuant to this Section 10.2(a), BSC will have no obligation to refund any Subscription Charges pre-paid by Customer for any such Selected Paid Service for the terminated portion of the relevant Paid Service Term or the unused balance of any Prepaid Usage Credit.
(b) For Convenience.
BSC may terminate for convenience any Selected Paid Service by providing written notice to Customer in accordance with Section 16.8. Such termination will be effective immediately if such Selected Paid Service is terminated by BSC to comply with any applicable laws or to address any actual or reasonably likely potential third party claims; otherwise, BSC must provide Customer with at least thirty (30) days’ prior written notice, with the termination being effective at the end of the Paid Service Term ending no sooner than thirty (30) days following such notice being given provided that Customer will be entitled to a refund of the unused balance of the Prepaid Usage Credit, from which has been deducted any amounts Customer incurred prior to termination or that are owed by Customer pursuant to these Terms.
10.3 Other Effects of Termination
(a) No Refunds.
Unless expressly provided by these Terms or otherwise required by law, BSC will have no obligation to refund any Subscription Charges or any unused balance of the Prepaid Usage Credit if the Selected Paid Services are terminated by either party.
(b) Phone Calls and Messages.
Following termination of any BSC Service, BSC will not be responsible in any way for answering calls, taking or delivering messages, or performing any other activities in connection with such BSC Service.
(c) Customer’s Account.
Upon termination of all BSC Services, BSC may terminate Customer’s Account and Customer’s access to the Account.
(d) Customer Data.
BSC will have no obligation to retain any data or other information (including, without limitation, any messages or call logs) obtained or generated by BSC in connection with any BSC Offerings after termination of such BSC Services unless otherwise agreed in writing between BSC and Customer.
(e) Service Reinstatement.
Following termination of any BSC Services, BSC will have no obligation to reinstate or otherwise recommence such BSC Services. If BSC elects (in its discretion) to reinstate or otherwise recommence a terminated BSC Services, BSC may require that Customer pay a reinstatement fee of $50 (to cover BSC’s reasonable costs in processing the reinstatement).
11. PRIVACY
11.1
Information collected by BSC from Customer and its callers may be used, disclosed and shared by BSC in accordance with BSC’s privacy policy as available on the BSC Website (“BSC Privacy Policy”) and as may be amended from time to time. The Customer agrees to regularly review BSC Privacy Policy.
12. GDPR DATA PROTECTION (relevant to individuals located in the EU)
12.1
BSC and Customer both agree to comply with the relevant data protection regulation and laws (the “Data Protection Laws”), these being; up to and including 24 May 2018, the Data Protection Act 1998 (the “Act”) and thereafter the General Data Protection Regulation (“GDPR”) (as amended or updated from time to time). Further BSC and Customer acknowledge that these Terms, in part or whole, do not relieve, remove or replace, either BSC or Customer’s obligations under the Act or GDPR.
12.2
BSC and Customer acknowledge that for the purposes of the Act and GDPR, BSC is the data processor (the “Processor”) and the Customer is the data controller (the “Controller”) in relation to Customer’s personal data (“Personal Data”). The Controller hereby appoints the Processor with respect to processing activities undertaken in the course of the provision of receptionist services.
12.3
BSC and Customer acknowledge and agree that the Processor is subject to the following obligations:
12.3.1 The Processor shall comply with the relevant Data Protection Laws and must:
(a) only act on the written instructions of the Controller and ensure those acting under their authority do the same;
(b) ensure that people processing the data are subject to a duty of confidence;
(c) use its best endeavors to safeguard and protect all personal data from unauthorized or unlawful processing, including (but not limited to) accidental loss, destruction or damage;
(d) ensure that all processing meets the requirements of the GDPR and related Data Protection Laws;
(e) ensure that where a Sub-Processor is used, they:
only engage a Sub-Processor with the prior consent of the Controller;
inform the Controller
12.3.1 The Processor shall comply with the relevant Data Protection Laws and must:
(a) Only act on the written instructions of the Controller and ensure those acting under their authority do the same;
(b) Ensure that people processing the data are subject to a duty of confidence;
(c) Use its best endeavors to safeguard and protect all personal data from unauthorized or unlawful processing, including (but not limited to) accidental loss, destruction, or damage;
(d) Ensure that all processing meets the requirements of the GDPR and related Data Protection Laws;
(e) Ensure that where a Sub-Processor is used, they:
- Only engage a Sub-Processor with the prior consent of the Controller;
- Inform the Controller of any intended changes concerning Sub-Processors;
- Implement a written contract containing the same data protection obligations as set out in these Terms;
- Understand that any failure on the part of the Sub-Processor to comply with the Data Protection Laws, the Processor remains fully liable to the Controller for the performance of the Sub-Processor’s obligations; and
- Assist the Controller in providing subject access and allowing data subjects to exercise their rights under the Data Protection Laws.
(f) Assist the Controller in meeting its data protection obligations in relation to:
- The security of processing;
- Data protection impact assessments; and
- The investigation and notification of personal data breaches.
(g) Delete or return all personal data to the Controller as requested unless not permitted to do so by law;
(h) Make available to the Controller all information necessary to demonstrate compliance with the obligations laid down in the relevant Data Protection Laws;
(i) Inform the Controller immediately if they have done something (or are asked to do something) infringing on Data Protection Law;
(j) Cooperate with supervisory authorities in accordance with GDPR Article 31; and
(k) Notify the Controller of any personal data breaches in accordance with GDPR Article 33.
12.3.2 The Processor is responsible for ensuring that each of its employees, agents, subcontractors, or vendors are made aware of its obligations regarding the security and protection of the personal data and the terms set out in these Terms.
12.3.3 The Processor shall maintain induction and training programs that adequately reflect the Data Protection Law requirements and regulations.
12.3.4 Any transfers of personal data to a third country or an international organization shall only be carried out on documented instructions from the Controller; unless a legal requirement exists, the Processor shall inform the Controller of that legal requirement before processing.
12.3.5 The Processor shall maintain a record of all categories of processing activities carried out on behalf of the Controller, containing:
(a) The name and contact details of the Processor(s) and of each Controller on behalf of which the Processor is acting;
(b) The categories of processing carried out on behalf of each Controller;
(c) Transfers of personal data to a third country or an international organization, including the identification of that third country or international organization and the documentation of suitable safeguards; and
(d) A general description of the technical and organizational security measures referred to in Article 32(1).
12.3.6 The Processor shall maintain records of processing activities in writing, including in electronic form, and shall make the record available to the supervisory authority on request.
12.3.7 When assessing the appropriate level of security and the subsequent technical and operational measures, the Processor shall consider the risks presented by any processing activities, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored, or otherwise processed.
12.4 BSC and Customer acknowledge and agree that the Controller is subject to the following obligations:
12.4.1 The Controller is responsible for verifying the validity and suitability of the Processor before entering into a business relationship.
12.4.2 The Controller shall carry out adequate and appropriate onboarding and due diligence checks for all Processors, with a full assessment of the mandatory Data Protection Law requirements.
12.4.3 The Controller shall verify that the Processor has adequate and documented processes for data breaches, data retention, and data transfers in place. The Controller shall obtain evidence from the Processor as to the:
(a) Verification and reliability of the employees used by the Processor;
(b) Any certificates, accreditations, and policies as referred to in the onboarding process;
(c) Technical and operational measures used in safeguarding the Personal Data; and
(d) Procedures in place for allowing data subjects to exercise their rights, including (but not limited to), subject access requests, erasure & rectification procedures, and restriction of processing measures.
12.4.5 Where the Controller has authorized the use of any Sub-Processor by the initial Processor, the Controller must verify that similar data protection agreements are in place between the initial Processor and Sub-Processor.
12.4.6 Where the Controller has authorized the use of any Sub-Processor by the initial Processor, the details of the Sub-Processor must be added to a register of Sub-Processors.
12.5 The Controller and Processor acknowledge they understand and agree to the following specifics with respect to the Processor’s processing activities:
(a) The Sub-Processors used by the Processor are noted in BSC’s Privacy Policy and include PayPal, Microsoft, Bandwidth, Twilio, and Mailchimp;
(b) The Controller authorizes the Processor to transfer certain Personal Data to other member entities of the wholly owned group to which the Processor belongs in order for receptionist services to be provided outside of local operating hours. These other member entities are located in Australia and the United Kingdom;
(c) The nature and purpose of processing activities undertaken, types of Personal Data processed, and security measures in place are all outlined in BSC’s Privacy Policy;
(d) When the Processor handles phone calls on behalf of the Controller, the caller may provide Personal Data of their own to the Processor in the form of their contact details to be forwarded to the Controller. In this instance, the caller is the controller, and BSC is the Processor. As Processor, BSC relies on the concept of “legitimate interest” (as defined in GDPR Article 6(1)(f)) in collecting this Personal Data and transmitting it to Customer; and
(e) The appointment by the Controller of the Processor will remain until terminated by either party in accordance with the notice periods outlined in section 10.
13. LIMITATIONS OF LIABILITY
13.1 Disclaimer of Warranties.
Customer acknowledges and agrees that Customer’s use of the BSC offerings is at Customer’s sole risk. Subject to Section 13.2 and to the maximum extent permitted by applicable law, the BSC Offerings are provided “as is” and “as available,” with all faults and without warranty of any kind, and BSC expressly disclaims all representations and warranties (whether express, implied, statutory, or otherwise) regarding any BSC Offerings or any other aspects of these Terms, including, without limitation, any warranties of non-infringement of third-party rights, accuracy, quiet enjoyment, and any warranties arising out of any industry custom or course of dealing. Without limiting the foregoing, BSC makes no representations or warranties regarding the quality, accuracy, or content of any information or messages received on behalf of Customer, and BSC does not warrant that any BSC Offering will be free of mistakes, defects, or inaccuracies, will be available without interruption, or will meet Customer’s requirements.
13.2 Statutory Guarantees.
BSC does not exclude, restrict, or modify any liability that cannot be excluded, restricted, or modified, or which cannot be excluded, restricted, or modified except to a limited extent, as between BSC and Customer by law. However, where such statutory provisions apply, to the extent to which BSC is entitled to do so, BSC’s liability will be limited at its option to:
(a) In the case of a supply of goods:
- The replacement of the goods or supply of equivalent goods;
- The payment of the cost of replacing the goods or acquiring equivalent goods;
- The payment of the cost of having the goods repaired; or
- The repair of the goods;
(b) In the case of services:
- The supply of the services again; or
- The payment of the cost of having the services supplied again.
13.3 Limitations of Liability.
References to liability in this Section 13 include every kind of liability arising under or in connection with these Terms including liability in contract, tort (including negligence), misrepresentation, restitution, or otherwise. To the extent not prohibited by applicable law:
(a) Neither party be liable under or in connection with these Terms Agreement for any indirect, special, incidental, consequential, exemplary, or punitive damages, or any damages for business interruption or loss of revenues, profits, business, or data; and
(b) BSC’s maximum aggregate liability under or in connection with these Terms is limited to the total of all amounts paid by Customer to BSC for the BSC Offerings giving rise to liability applicable to the Paid Service Terms during which the events giving rise to liability occurred.
The foregoing limitations will apply even if the above-stated remedy fails its essential purpose.
13.4 Essential Part of Bargain.
Customer acknowledges that the disclaimers of warranties and limitations of liability set out in these Terms are essential to the bargain between Customer and BSC, and that BSC would not have been willing to enter into these Terms or to provide any BSC Offerings to Customer absent any such disclaimers or limitations.
13.5 Exceptions.
The laws of some jurisdictions may not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer. If such laws apply to Customer, some or all of the warranty exclusions and limitations of liability set out in these terms may not apply to Customer.
14. CONFIDENTIAL INFORMATION
14.1 Confidentiality.
Each party must keep all Confidential Information of the other party confidential and secret at all times, only use and disclose that Confidential Information to the extent necessary for compliance with its obligations and duties in accordance with the provisions of these Terms and must take all action necessary to maintain the confidential nature of the other party’s Confidential Information.
14.2 Disclosure required by law.
A party may disclose the Confidential Information of the other party if legally compelled to do so by any judicial or administrative body, in which case it must promptly inform the other party and take all reasonably available legal measures to avoid such disclosure.
14.3 Return or destruction of Confidential Information.
Each party must, on receipt of written notice from the other party requiring the return or destruction of any of the Confidential Information in the possession, custody, or control of the relevant party:
(a) Return to the other party or, at the option of the other party, destroy within 10 Business Days all Confidential Information, including all documentation and materials in its possession or under its control which in any way relate to or embody the Confidential Information together with any and all copies of extracts of the Confidential Information or related documentation;
(b) Provide to the other party or, at the option of the other party, destroy within 10 Business Days all original and copy reports, notes, and records prepared by it in relation to the Confidential Information; and
(c) Where reasonably practicable, delete any Confidential Information that has been entered into a computer, database, or other electronic means of data or information storage by it.
14.4 Definitions.
For the purposes of these Terms:
- “Business Days” means any day other than a Saturday, Sunday, or public holiday in the United States.
- “Confidential Information” means, in respect of a party:
- Any confidential or commercially sensitive information regarding the business or the assets and affairs of that party; and
- These Terms.
15. DISPUTE RESOLUTION
15.1 Subject to section 15.9, a party must not start arbitration or court proceedings in respect of a dispute arising out of or in connection with these Terms (“Dispute”) unless it has complied with this section 15.
15.2 If any Dispute arises, the party claiming that a Dispute has arisen must notify the other party (giving details of the Dispute) and the parties will make every effort to resolve the Dispute by mutual negotiation followed by mediation in accordance with this section 15.
15.3 During the seven-day period after a notice is given under section 15.2 (or such longer period agreed to in writing by the parties to the Dispute) (the “Initial Period”), each party must use its best efforts to resolve the Dispute through mutual negotiation between a representative from each party with authority to agree to a resolution of the Dispute.
15.4 If the parties are unable to reach a resolution of the Dispute by mutual negotiation of their representatives by the end of the Initial Period, each party agrees that the Dispute must be referred for mediation in accordance with the laws of Arizona.
15.5 The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.
15.6 Any information or documents disclosed by a party under this section:
(a) Must be kept confidential; and
(b) May not be used for any purpose except to attempt to resolve the Dispute.
15.7 Each party must bear its own costs of complying with this section, and the parties must bear equally the costs of the mediator.
15.8 If a party has complied with sections 15.1 to 15.4 and the Dispute has not been resolved within 21 days from the end of the Initial Period, then either party may terminate the dispute resolution process by giving written notice to the other party.
15.9 Nothing contained in this section will deny any party the right to seek injunctive relief from an appropriate court.
15.10 The dispute resolution procedures in this section will not apply where a party is entitled under these Terms to immediately terminate these Terms.
16. OTHER
16.1 Governing Law and Venue.
These Terms will be governed by and construed pursuant to the laws of Arizona, United States, and the parties agree to submit to the jurisdiction of the Courts of Arizona, United States, in connection with any dispute relating to these Terms.
16.2 Force Majeure.
If BSC or Customer is prevented from or delayed in complying with an obligation by an event beyond its reasonable control, performance by it of that obligation is suspended during the time compliance is prevented or delayed.
16.3 Severability.
If the whole or any part of a provision of these Terms is invalid or unenforceable in a jurisdiction, it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If, however, the whole or any part of a provision of these Terms is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
16.4 Waiver.
A party does not waive a right, power, or remedy if it fails to exercise or delays in exercising the right, power, or remedy. A single or partial exercise by a party of a right, power, or remedy does not prevent another or further exercise of that or another right, power, or remedy. A waiver of a right, power, or remedy must be in writing and signed by the party giving the waiver.
16.5 Survival.
Any indemnity or obligation of confidentiality in these Terms is independent and survives termination of these Terms. Any other term which by its nature is intended to survive termination of these Terms survives termination of these Terms.
16.6 Assignment.
Customer will not assign, whether in whole or part, the benefit of these Terms or any rights or obligations under these Terms, without the prior written consent of BSC, which will not be unreasonably withheld.
16.7 Entire Agreement.
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous written agreements or understandings between the parties in connection with its subject matter.
16.8 Notices to Customer.
Any notice from BSC to Customer required, permitted, or otherwise contemplated by these Terms may be provided by BSC to Customer by email, text message, message in the client portal on the BSC website, telephone, or voicemail message.
