Virtual Receptionist Service Terms
Answeringservice.com (or “ANS”) means ReceptionHQ LLC (Company Number R13564778). These Terms of Service (these “Terms”) overn the access and use of all services and products offered by ANS and constitute a legally binding agreement between ANS and any individual or entity that accesses or otherwise uses or receives any ANS services or products (“Customer”).
1. APPLICABILITY OF THESE TERMS
These Terms apply to Customer’s use of all services offered by ANS (“ANS Services”), ANS’s website located at www.answeringservice.com (“ANS Website”), and any smart phone apps offered by ANS, regardless of where such apps were obtained by Customer (“ANS Apps”). In these Terms, the ANS Services, ANS Website and ANS Apps are collectively referred to as “ANS Offerings.” ANS may from time to time change these Terms, and any other terms or conditions appearing on the ANS Website that may be referred to in these Terms, in accordance with Section 7.
2.1 Account. Customer must register with ANS before receiving any ANS Services. After such registration is complete, ANS will establish an online account for Customer (“Customer’s Account”) that can be accessed on the client portal on the ANS Website and, at ANS’s option, from one or more ANS Apps.
2.2 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. 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 ANS. Customer will not, and will have no right to, transfer Customer’s Account or Customer’s Password to any third party.
2.3 Telephone Number.
After Customer registers with ANS:
(a) ANS will assign to Customer a unique telephone number for use with ANS Services provided to Customer; or
(b) Customer may port their existing telephone number to ANS’s telecommunications carrier for use with ANS Services provided to Customer.
To the extent not prohibited by applicable law or regulation, in the event that any Trial Service or ANS Paid Service (as defined in Section 4 below) is terminated, ANS may retain the assigned telephone number for use as it sees fit.
3. TRIAL SERVICE
3.1 Trial Period. Subject to these Terms, ANS may provide to Customer a live receptionist answering service (“Trial Service”) during a trial period commencing on Customer’s registration with ANS and expiring within a number of days specified by ANS, which period may be extended or shortened by ANS in its discretion (such period, “Trial Service Term”). Customer acknowledges and agrees that the scope and details of the Trial Service will be determined by ANS in its discretion. The Trial Service is not applicable for prior Customers of ANS, casual Customers or new Customers that require ANS Services for promotional or advertising campaigns.
3.2 Trial Usage Charges. At no charge to Customer, ANS 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 ANS in its discretion and (b) the amount of such incremental charges will be determined, and may be changed, by ANS in its discretion. ANS will notify the Customer of the amount of the Trial Usage Credit and the amount of incremental charges.
3.3 Termination of Trial Service. ANS may terminate the Trial Service at any time for any reason or no reason. Without limiting the foregoing, ANS may terminate the Trial Service upon expiration of the Trial Service Term, depletion of the Trial Usage Credit, or commencement of any ANS Paid Services (as defined in Section 4 below). After the termination of the Trial Service, Customer will need to purchase ANS Paid Services, as described in Section 4 below, in order to continue to receive services from ANS. 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 ANS 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 ANS Website or in these Terms (“ANS Paid Services”). Customer will select a pricing plan for each ANS Paid Service requested by Customer from the pricing plans offered by ANS (“Pricing Plans”). Prior to providing any ANS Paid Services, ANS may require that Customer to provide information about a credit card to which Customer authorizes ANS to submit charges as permitted under these Terms (“Customer’s Credit Card”).
4.2 Paid Service Terms. Each ANS Paid Service that Customer requests and ANS agrees to provide (which agreement may be withheld by ANS acting reasonably) is referred to in these Terms as a “Selected Paid Service.” Subject to these Terms, ANS 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. SMART PHONE APPS
5.1 License. Subject to these Terms, ANS grants to Customer a personal, limited, nonexclusive, nontransferable, non-sublicenseable license to install and use each ANS App on devices for which it was designed solely for the purpose of accessing Customer’s Account and using ANS Services.
5.2 Restrictions. Customer will not, and will have no right to (a) modify or create derivative works of any ANS App; (b) sell, rent, lease, lend, distribute or sublicense any ANS App; or (c) decompile, reverse engineer or disassemble, or otherwise attempt to derive the source code of, any ANS App, or encourage, assist or authorize any other person to any of the foregoing.
5.3 Updates. ANS may, but will have no obligation to, make available to Customer updates, upgrades and new versions of one or more ANS Apps (collectively, “App Updates”). Each App Update will be deemed to be an ANS App for the purposes of these Terms.
5.4 License Termination. The license granted to Customer in Section 5.1 will be terminated by written notice from ANS if Customer fails to comply with this Section 5, or upon termination of all Selected Paid Services. In addition, ANS may terminate such license at any time with respect to any or all ANS Apps (and will endeavor to provide reasonable written notice, where practicable prior to termination) and upon such termination ANS may modify the affected ANS Apps to make them inoperable. Upon any termination of such license with respect to any ANS App, Customer will cease all use of such ANS App and delete all copies thereof.
5.5 Ownership. Except for the rights explicitly granted to Customer in these Terms, all right, title and interest in the ANS Apps are reserved and retained by ANS and its licensors. Customer will not acquire any intellectual property rights or other rights in any ANS App as a result of downloading or using it.
6.1 Pricing. The charges for each ANS Paid Service may include (a) subscription charges that do not vary based on Customer’s usage of the ANS Paid Service (“Subscription Charges”) and/or (b) incremental charges that are incurred based on Customer’s usage of the ANS 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 ANS Paid Services are set forth in the price list on the ANS Website (“Price List”) and below in Section 6.2, both of which may be revised by ANS from time to time as set forth in Section 7. All prices quoted excluded any applicable taxes.
6.2 Fees and Charges
Higher volume plans and pricing are available – please contact us for further information.
Higher volume plans and pricing are available – please contact us for further information.
Initial setup from $50 depending on complexity.
Higher volume plans and pricing are available – please contact us for further information.
*Unused monthly call/minute allowances expire each month.
|Number of additional contacts||Price (per month)|
|2 – 5||$10|
|6 – 10||$15|
|11 – 20||$20|
|21 – 50||$30|
|More than 50||Price on application|
Setup and maintenance of contact lists may incur additional charges,
Customer may place their account on hold to retain their phone number and avoid reactivation fees for $5 per month.
Usage Charges. ANS Paid Services may attract the following additional charges dependent on Customer usage and preferences.
Messaging and Call Transfer
|Message by SMS||$0.05 per message ($0.10 multi segment)|
|Call transfer to landline or cell phone||$0.20 per call|
|Call transfer to international number||Dependent on country – please enquire if you anticipate calls being transferred outside of the United States|
|Virtual Address||$50 per month|
|Additional Numbers||$10 per month|
|Plan||Included Minutes||Subscription Charges||Usage Charges|
|MessageCentre Voicemail||200||$9.95||$0.06 per minute|
After Hours Calls. Calls answered by ANS outside of 5am to 7pm Monday to Friday local time in Phoenix, Arizona or on a United States Federal Holiday (based on Mountain Standard Time) will incur a surcharge of $0.30 per call or $0.20 per call for Message Express.
Telemarketing Calls. Calls identified by ANS as being from telemarketers or promotional companies will not be deducted from subscription allowances or incur the excess call rates stated above in this Section 6.2. ANS makes best endeavors but takes no responsibility for the accurate identification of such calls as being from telemarketers or promotional companies.
ANS defines a telemarketing call as one that:
- solicits interest from prospective customers, relates to a political campaign or contains music and/or messages with no apparent association to Customer, and
- is either a recording or from a natural person where Customer has instructed ANS to immediately terminate such a call
Short Duration Calls. From 4 January 2021, calls answered by ANS that are under 5 seconds in duration will not be deducted from subscription allowances or incur the excess call rates stated above in this Section 6.2.
6.3 Discounts. If ANS grants to Customer any discount for any Selected Paid Service, such discount will be applied to the applicable charges set forth in the Price List or these Terms and will apply only during the period specified by ANS in writing (“Discount Period”), after which the charges set forth in the Price List or these Terms will apply without such discount.
6.4 Subscription Charges. 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. With respect to any Selected Paid Service that is added in the middle 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 ANS starts providing such Selected Paid Service.
6.5 Usage Charges.
(a) Customer will be required to maintain a prepaid credit to be applied to Usage Charges incurred by Customer (“Prepaid Usage Credit”). On or before the first day of the first Paid Service Term, ANS may establish the Prepaid Usage Credit by charging to Customer’s Credit Card an amount of $50 or as otherwise specified by ANS in writing (“Prepayment Amount”). Customer may not transfer the Prepaid Usage Credit to any third party.
(b) For each Selected Paid Service, all Usage Charges incurred by Customer in excess of the usage allowances included in the Pricing Plan selected by Customer (“Excess Usage Charges”) will be deducted automatically from the balance of the Prepaid Usage Credit. The usage allowances included in each Pricing Plan will expire if not used within the time periods to which they apply, and in any event, unused usage allowances for any Paid Service Term will not be carried over to any subsequent Paid Service Term.
(c) Each time the balance of the Prepaid Usage Credit decreases below a certain threshold amount determined by ANS (which will be $0 unless ANS notifies Customer otherwise), ANS may charge to Customer’s Credit Card an amount equal to that which restores the Prepaid Usage Credit to $0 plus the Prepayment Amount, which will be added to the balance of the Prepaid Usage Credit (“Prepayment Charge”).
(d) The Prepayment Amount will increase for subsequent Prepayment Charges should the value of a Prepayment Charge exceed a $50 increment higher than it has previously (for example if a Prepayment Charge is $170, the Prepayment Amount would be set to $150 for subsequent Prepayment Charges). This practice will apply until the Prepayment Amount is set at the maximum value of $500. ANS will otherwise have the right to increase the Prepayment Amount upon reasonable written notice to Customer if ANS determines, in its discretion, that the Prepayment Amount is insufficient to cover Excess Usage Charges incurred by Customer.
(e) ANS may charge to Customer’s Credit Card any Excess Usage Charges incurred by Customer that exceed the available balance of the Prepaid Usage Credit.
6.6 Pricing Plan Changes. Customer may request to change the Pricing Plan it selected for any Selected Paid Service to a different Pricing Plan. If ANS 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 ANS receives such request unless Customer requests, and ANS agrees, that the new Pricing Plan will take effect during the Paid Service Term in which ANS receives such request, in which case the following will apply:
(a) Customer’s Paid Service Term for the new Pricing Plan will commence the following day (unless Customer and ANS agree otherwise); and
(b) if there are unused usage allowances in the previous Pricing Plan, the Customer will receive a credit to their account calculated as:
Credit % (defined below) x Subscription Charge of previous Pricing Plan
Credit % is 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 in place at that time of the usage; and
(d) except as set forth in Section 6.6(b) above, 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.
6.7 Taxes. Customer will be responsible for any taxes, duties, levies or other governmental charges (collectively, “Taxes”) assessed or imposed in connection with any ANS Offerings provided to Customer or any payments or transactions under these Terms, excluding ANS’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 ANS. If ANS is obligated to collect or pay any such Taxes, ANS may charge to Customer’s Credit Card the amount of such Taxes except to the extent Customer provides ANS with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.8 Credit Card Payments. Customer hereby authorizes ANS to submit charges to Customer’s Credit Card as permitted under this Section 6. Notwithstanding anything to the contrary, ANS may, acting reasonably at its discretion, require that (a) a different credit card be provided as Customer’s Credit Card, or (b) any amount ANS is permitted to charge to Customer’s Credit Card be paid by Customer using a method of payment other than Customer’s Credit Card, e.g., cheque or electronic funds transfer.
6.9 Other Payment Terms. All amounts payable by Customer under these Terms will be charged in United States dollars to Customer’s Credit Card or otherwise 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 a charge to Customer’s Credit Card being declined or initially accepted but subsequently reversed), (a) Customer may be charged interest at a rate of 10% per annum calculated daily until such amount is paid in full, (b) Customer will be responsible for all reasonable expenses (including collection and legal fees) incurred by ANS in collecting such amount and (c) ANS reserves the right to re-direct Customer’s telephones calls to an automated answering service with immediate effect until such amount is paid in full.
6.10 Unwanted Calls. ANS 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) or callers who do not leave messages. ANS 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.
7. Changes to Terms and Services.
7.1 Revisions to Prices. ANS may revise the Price List or charges set forth 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 ANS 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 notice is provided by being posted to the ANS 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 ANS 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 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, Customer will select a new Pricing Plan from then-current pricing plans offered by ANS. If Customer does not select a valid new Pricing Plan prior to the effective date of such discontinuation, then (i) ANS may suspend the affected Selected Paid Service until Customer selects a valid new Pricing Plan or (ii) Customer may terminate the affected Selected Paid Service by written notice.
7.2 Changes to Services or Terms. ANS 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, ANS’s Fair Use Policy (as defined in Section 8.4 below) or any other terms or conditions appearing on the ANS Website that may be referred to in these Terms, in each case by providing 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 ANS to comply with any applicable laws or to address any actual or potential third party claims, or if such notice is provided to Customer during the Trial Service Term; otherwise, 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 and discontinue its use of all other affected ANS Offerings. If Customer does not terminate such Selected Paid Services and discontinue its use of all other affected ANS Offerings prior to the effective date of such change, 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 ANS (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 ANS. 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 ANS 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 ANS to forward calls or messages to any phone numbers not under Customer’s direct control. In addition, Customer acknowledges and agrees that ANS will have the right to refuse to forward calls and messages to any telephone number in ANS’s discretion, in which case Customer will need to provide a different telephone number to receive forwarded calls and messages.
8.3 Compliance with Laws. Customer will at all times comply with all applicable laws and regulations in connection with its use of ANS Offerings. Customer will not use any ANS Offerings to engage in, or to encourage or assist others to engage in, any illegal or fraudulent activities.
8.4 ANS Fair Use Policy. In connection with its use of ANS 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. ANS 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 Answer and Message Express subscriptions. After providing reasonable notice, ANS may require that Customer’s Account be re-configured, that Customer transition to a MyAssistant subscription or terminate any or all Selected Paid Services with effect at the end of the then current Paid Service Term, should it determine, at its absolute discretion, that the Customer’s inbound call durations are in any way excessive or unreasonable.
(c) Customer’s call transfer durations. After providing reasonable notice, ANS 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 then current Paid Service Term, should it determine, at its absolute discretion, that the Customer’s use of call transfers is in any way unreasonable.
This Fair Use policy may be amended by ANS from time to time.
8.5 Other Prohibited Activities. Customer will not, and will have no right to:
(a) sell, resell or otherwise provide any ANS Offerings to third parties, or use or otherwise exploit any ANS Offerings for the purpose of selling or otherwise providing to third parties the benefit of any ANS Offerings or any products or services that are similar to any ANS Offerings;
(b) overburden, disable or otherwise disrupt any ANS Offerings or interfere with the use of any ANS Offerings by any other ANS customers; or
(c) obtain or attempt to obtain any materials or information regarding any ANS Offerings or any other user of ANS Offerings through any means not intentionally made available or provided for by ANS through the ANS Website or any ANS App.
8.6 Indemnification. Customer will indemnify, defend, and hold harmless ANS from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any breach by Customer of this Section 8 or any third party claim relating to any of Customer’s products, services or businesses.
9. SERVICE SUSPENSION
9.1 Insufficient Funds. ANS may suspend the performance of any or all Selected Paid Services if any charge submitted by ANS 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. ANS will endeavor to provide prior written notice of suspension where it is practicable to do so.
9.2 Emergency Suspension. ANS may suspend the performance of any or all Selected Paid Services and disable Customer’s access to Customer’s Account and any ANS Offerings if ANS has any reason to believe that (a) Customer has committed any breach of Section 8 or has engaged in any activity that could disrupt any ANS Services, or (b) there has been any unauthorized access to Customer’s Account or unauthorized use of any ANS Services in Customer’s name.
10. SERVICE TERMINATION
10.1 Termination by Customer. Customer may terminate any or all of the Selected Paid Services at any time by sending ANS an email to firstname.lastname@example.org 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. The effective date of such termination will be, at ANS’s election, either (i) the Requested Termination Date or (ii) three (3) days after the date such email is sent. If a new Paid Service Term starts prior to the effective date of such termination, Customer will incur the applicable Subscription Charge for the new Paid Service Term.
10.2 Termination by ANS
(a) For Cause. ANS may terminate any or all Selected Paid Services if (i) Customer commits a breach of Section 5.2, 8.3, 8.4 or 8.5, (ii) Customer commits any other breach of these Terms and fails to remedy such breach within five (5) days, 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.
(b) For Convenience. ANS may terminate for convenience any Selected Paid Service by providing notice to Customer in accordance with Section 16.8. Such termination will be effective immediately if such Selected Paid Service is terminated by ANS to comply with any applicable laws or to address any actual or potential third party claims; otherwise, it will be effective at the end of the Paid Service Term in which such notice is delivered.
10.3 Effect of Termination
(a) Subscription Charges. ANS will have no obligation to refund any Subscription Charges paid by Customer for any Selected Paid Service upon any termination thereof.
(b) Prepaid Usage Credit. ANS will refund to Customer any unused balance of the Prepaid Usage Credit if (i) ANS terminates all Selected Paid Services for convenience in accordance with Section 10.2(b) above or (ii) Customer terminates a Selected Paid Service in accordance with Section 10.1 in response to, and within ten (10) days of, ANS making a change or revision as described in Section 7.1(a) or 7.2, and there are no other Selected Paid Services. Unless otherwise required by law, ANS will have no obligation to refund any unused balance of the Prepaid Usage Credit if the Selected Paid Services are terminated by either party under any other circumstances.
(c) Phone Calls and Messages. Following termination of any ANS Service, ANS will not be responsible in any way for answering calls, taking or delivering messages, or performing any other activities in connection with such ANS Service.
(d) Customer’s Account. Upon termination of all ANS Services, ANS may terminate Customer’s Account and Customer’s access thereto.
(e) Customer Data. ANS will have no obligation to retain any data or other information (including, without limitation, any messages or call logs) obtained or generated by ANS in connection with any ANS Service after termination of such ANS Service unless otherwise agreed in writing between ANS and Customer.
(f) Service Reinstatement. Following termination of any ANS Service, ANS will have no obligation to reinstate or otherwise recommence such ANS Service. If ANS elects (in its discretion) to reinstate or otherwise recommence a terminated ANS Service, ANS may require that Customer pay a reinstatement fee of $50.
12. GDPR DATA PROTECTION (relevant to individuals located in the EU)
12.1 ANS 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 ANS and Customer acknowledge that these Terms, in part or whole, do not relieve, remove or replace, either ANS or Customer’s obligations under the Act or GDPR.
12.2 ANS and Customer acknowledge that for the purposes of the Act and GDPR, ANS 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 ANS 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 of any intended changes concerning Sub-Processors;
- they 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) tell the Controller immediately if they have done something (or are asked to do something) infringing on Data Protection Law;
(j) co-operate 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 this Agreement.
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 ANS 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:
(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 the Australia and the United Kingdom;
(d) When the Processor handles phone calls on behalf of the Controller, the caller may provide Personal Data of their own to Processor in the form of their contact details to be forwarded to Controller. In this instance the caller is the controller and ANS the Processor and as Processor, ANS 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 ANS offerings is at Customer’s sole risk. To the maximum extent permitted by applicable law, the ANS Offerings are provided “as is” and “as available,” with all faults and without warranty of any kind, and ANS expressly disclaims all representations and warranties (whether express, implied, statutory or otherwise) regarding any ANS offerings or any other aspects of this Agreement, 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, ANS makes no representations or warranties regarding the quality, accuracy or content of any information or messages received on behalf of Customer, and ANS does not warrant that any ANS offering will be free of mistakes, defects or inaccuracies, will be available without interruption, or will meet Customer’s requirements.
13.2 Statutory Guarantees. ANS 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 ANS and Customer by law. However, where such statutory provisions apply, to the extent to which ANS is entitled to do so, ANS’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; and
(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. To the extent not prohibited by applicable law, and regardless of the theory of liability (contract, tort or otherwise), in no event will (a) ANS be liable under or in connection with this 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, even if ANS knew or should have known of the possibility of such damages, or (b) ANS’s aggregate liability under or in connection with this Agreement exceed the total of all amounts paid by Customer to ANS for the ANS 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 of its essential purpose.
13.4 Essential Part of Bargain. Customer acknowledges that the disclaimers of warranties and limitations of liability set forth in these Terms are essential to the bargain between Customer and ANS, and that ANS would not have been willing to enter into these Terms or to provide any ANS 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 forth 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 this Agreement 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 this Agreement:
(a) “Business Days” means any day other than a Saturday, Sunday or public holiday in Arizona, United States.
(b) “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
- this Agreement and any or all of its terms.
15. DISPUTE RESOLUTION
15.1 Subject to section 15.9, a party must not start court proceedings in respect of a dispute arising out of or in connection with this agreement (“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 this Agreement to immediately terminate this Agreement.
16.1 Governing Law and Venue. This Agreement 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 this Agreement.
16.2 Force Majeure. If ANS 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 this Agreement 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 this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement 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 this Agreement is independent and survives termination of this Agreement. Any other term which by its nature is intended to survive termination of this Agreement survives termination of this Agreement.
16.6 Assignment. Customer will not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement, without the prior written consent of ANS, 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 agreements or understandings between the parties in connection with its subject matter.
16.8 Notices to Customer. Any notice from ANS to Customer required, permitted or otherwise contemplated by these Terms may be provided by ANS to Customer by email, text message, message in the client portal on the ANS website, telephone or voicemail message.
Last Updated: 16 November 2020