These OfficeHQ Terms of Service (these “Terms”) govern the access and use of all services and products offered by OfficeHQ Pty Ltd (“OHQ”) (ABN 95 105 928 363). These Terms constitute a legally binding agreement between OHQ and any individual or entity that accesses or otherwise uses or receives any OHQ services or products (“Customer”).
1. APPLICABILITY OF THESE TERMS
These Terms apply to Customer’s use of all services offered by OHQ (“OHQ Services”), OHQ’s website located at www.officehq.com.au (“OHQ Website”), and any mobile apps offered by OHQ, regardless of where such apps were obtained by Customer (“OHQ Apps”). In these Terms, the OHQ Services, OHQ Website and OHQ Apps are collectively referred to as “OHQ Offerings.” OHQ may from time to time change these Terms, and any other terms or conditions appearing on the OHQ Website that may be referred to in these Terms, in accordance with Section 7.
2.1 Account. Customer must register with OHQ before receiving any OHQ Services. After such registration is complete, OHQ will establish an online account for Customer (“Customer’s Account”) that can be accessed on the client portal on the OHQ Website and, at OHQ’s option, from one or more OHQ 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 unauthorised access to Customer’s Account, Customer will immediately change Customer’s Password and notify OHQ. 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 OHQ:
(a) OHQ will assign to Customer a unique telephone number for use with OHQ Services provided to Customer; or
(b) Customer may port their existing telephone number to OHQ’s telecommunications carrier for use with OHQ Services provided to Customer.
To the extent not prohibited by applicable law or regulation, in the event that any Trial Service or OHQ Paid Service (as defined in Section 4 below) is terminated, OHQ may retain the assigned telephone number for use as it sees fit.
3. TRIAL SERVICE
3.1 Trial Period. Subject to these Terms, OHQ may provide to Customer a live receptionist answering service (“Trial Service”) during a trial period commencing on Customer’s registration with OHQ and expiring within a number of days specified by OHQ, which period may be extended or shortened by OHQ 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 OHQ in its discretion. The Trial Service is not applicable for prior Customers of OHQ, casual Customers or new Customers that require OHQ Services for promotional or advertising campaigns.
3.2 Trial Usage Charges. At no charge to Customer, OHQ 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 OHQ in its discretion and (b) the amount of such incremental charges will be determined, and may be changed, by OHQ in its discretion. OHQ will notify the Customer of the amount of the Trial Usage Credit and the amount of incremental charges.
3.3 Termination of Trial Service. OHQ may terminate the Trial Service at any time for any reason or no reason. Without limiting the foregoing, OHQ may terminate the Trial Service upon expiration of the Trial Service Term, depletion of the Trial Usage Credit, or commencement of any OHQ Paid Services (as defined in Section 4 below). After the termination of the Trial Service, Customer will need to purchase OHQ Paid Services, as described in Section 4 below, in order to continue to receive services from OHQ. 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 OHQ 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 OHQ Website or in these Terms (“OHQ Paid Services”). Customer will select a pricing plan for each OHQ Paid Service requested by Customer from the pricing plans offered by OHQ (“Pricing Plans”). Prior to providing any OHQ Paid Services, OHQ may require that Customer to provide information about a credit card to which Customer authorises OHQ to submit charges as permitted under these Terms (“Customer’s Credit Card”).
4.2 Paid Service Terms. Each OHQ Paid Service that Customer requests and OHQ agrees to provide (which agreement may be withheld by OHQ acting reasonably) is referred to in these Terms as a “Selected Paid Service.” Subject to these Terms, OHQ 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. MOBILE APPS
5.1 License. Subject to these Terms, OHQ grants to Customer a personal, limited, nonexclusive, nontransferable, nonsublicenseable license to install and use each OHQ App on devices for which it was designed solely for the purpose of accessing Customer’s Account and using OHQ Services.
5.2 Restrictions. Customer will not, and will have no right to (a) modify or create derivative works of any OHQ App; (b) sell, rent, lease, lend, distribute or sublicense any OHQ App; or (c) decompile, reverse engineer or disassemble, or otherwise attempt to derive the source code of, any OHQ App, or encourage, assist or authorise any other person to any of the foregoing.
5.3 Updates. OHQ may, but will have no obligation to, make available to Customer updates, upgrades and new versions of one or more OHQ Apps (collectively, “App Updates”). Each App Update will be deemed to be an OHQ 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 OHQ if Customer fails to comply with this Section 5, or upon termination of all Selected Paid Services. In addition, OHQ may terminate such license at any time with respect to any or all OHQ Apps (and will endeavour to provide reasonable written notice, where practicable prior to termination) and upon such termination OHQ may modify the affected OHQ Apps to make them inoperable. Upon any termination of such license with respect to any OHQ App, Customer will cease all use of such OHQ 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 OHQ Apps are reserved and retained by OHQ and its licensors. Customer will not acquire any intellectual property rights or other rights in any OHQ App as a result of downloading or using it.
6.1 Pricing. The charges for each OHQ Paid Service may include (a) subscription charges that do not vary based on Customer’s usage of the OHQ Paid Service (“Subscription Charges”) and/or (b) incremental charges that are incurred based on Customer’s usage of the OHQ 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 OHQ Paid Services are set forth in the price list on the OHQ Website (“Price List”) and below in Section 6.2, both of which may be revised by OHQ from time to time as set forth in Section 7. All prices quoted excluded GST and any other applicable taxes.
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. OHQ Paid Services may attract the following additional charges dependent on Customer usage and preferences.
Messaging and Call Transfer
|Message by SMS||$0.10 per message ($0.20 multi segment)|
|Call transfer to landline or mobile||$0.30 per call|
|Call to international number||Dependent on country – please enquire if you anticipate calls being transferred outside of Australia|
|Unsuccessful transfer attempts|
(not applicable to per minute plans)
|$0.20 per unsuccessful attempt|
|Virtual Address||$100 per month|
|Additional Phone Number||$10 per month|
|1300 and 1800 Numbers|
(Available on all call plans)
|$20 per month and $25 set up fee|
|1300 and 1800 Numbers|
(Available on call plans of 25 calls/mins or less per month)
|$5 per month, excess call surcharge and $25 set up fee|
Excess call surcharge: $0.10 per call MessageExpress, $0.20 per call MyReceptionist and $0.15 per minute MyAssistant.
|Plan||Included Minutes||Subscription Charges||Usage Charges|
|MessageCentre Fax||100||$25||$0.20 per minute|
|MessageCentre Voicemail Lite||Nil||$5||$0.15 per minute|
|MessageCentre Voicemail||200||$20||$0.15 per minute|
|MessageCentre Divert||nil||$20||$0.20 per minute|
After Hours Calls. Calls answered by OHQ outside of 8am to 6pm Monday to Friday or on Australian National Public holidays (in the Customer’s local time) will incur a surcharge of $1.00 per call or $0.60 per call for MessageExpress.
Payment Processing Fee. All payments made to QHQ by Customers in accordance with these Terms will be subject to a payment processing fee (the “Payment Processing Fee”) of:
- 0.75% (including GST) of the total invoice value (including GST amount) for credit cards; or
- $0.88 (including GST) for direct debit.
The Payment Processing Fee will be displayed on the Customer’s invoice.
6.3 Discounts. If OHQ 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 OHQ 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 OHQ 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, OHQ may establish the Prepaid Usage Credit by charging to Customer’s Credit Card an amount of $50 or as otherwise specified by OHQ 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 OHQ (which will be $0 unless OHQ notifies Customer otherwise), OHQ 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. OHQ will otherwise have the right to increase the Prepayment Amount upon reasonable written notice to Customer if OHQ determines, in its discretion, that the Prepayment Amount is insufficient to cover Excess Usage Charges incurred by Customer.
(e) OHQ 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 OHQ 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 OHQ receives such request unless Customer requests, and OHQ agrees, that the new Pricing Plan will take effect during the Paid Service Term in which OHQ 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 OHQ 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 OHQ Offerings provided to Customer or any payments or transactions under these Terms, excluding OHQ’s income taxes. If OHQ is obligated to collect or pay any such Taxes, OHQ may charge to Customer’s Credit Card the amount of such Taxes except to the extent Customer provides OHQ with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.8 Credit Card Payments. Customer hereby authorizes OHQ to submit charges to Customer’s Credit Card as permitted under this Section 6. Notwithstanding anything to the contrary, OHQ may, acting reasonably at its discretion, require that (a) a different credit card be provided as Customer’s Credit Card, or (b) any amount OHQ 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 Australian 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 the Small Business Variable Overdraft rate (Series ID FILRSBVOO as published by the Reserve Bank of Australia) until such amount is paid in full, (b) Customer will be responsible for all reasonable expenses (including collection and legal fees) incurred by OHQ in collecting such amount and (c) OHQ 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. OHQ 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. Such calls qualify as inbound calls and may result in Usage Charges under the applicable Pricing Plans.
7. Changes to Terms and Services.
7.1 Revisions to Prices. OHQ 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 OHQ 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 OHQ 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 OHQ 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 OHQ. If Customer does not select a valid new Pricing Plan prior to the effective date of such discontinuation, then (i) OHQ 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. OHQ 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, OHQ’s Fair Use Policy (as defined in Section 8.4 below) or any other terms or conditions appearing on the OHQ 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 OHQ 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 OHQ Offerings. If Customer does not terminate such Selected Paid Services and discontinue its use of all other affected OHQ 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 OHQ (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 OHQ. 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 OHQ 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 OHQ to forward calls or messages to any phone numbers not under Customer’s direct control. In addition, Customer acknowledges and agrees that OHQ will have the right to refuse to forward calls and messages to any telephone number in OHQ’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 OHQ Offerings. Customer will not use any OHQ Offerings to engage in, or to encourage or assist others to engage in, any illegal or fraudulent activities.
8.4 OHQ Fair Use Policy. In connection with its use of OHQ 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. OHQ 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 MyReceptionist and Message Express subscriptions. After providing reasonable notice, OHQ 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, OHQ 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 OHQ 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 OHQ Offerings to third parties, or use or otherwise exploit any OHQ Offerings for the purpose of selling or otherwise providing to third parties the benefit of any OHQ Offerings or any products or services that are similar to any OHQ Offerings;
(b) overburden, disable or otherwise disrupt any OHQ Offerings or interfere with the use of any OHQ Offerings by any other OHQ customers; or
(c) obtain or attempt to obtain any materials or information regarding any OHQ Offerings or any other user of OHQ Offerings through any means not intentionally made available or provided for by OHQ through the OHQ Website or any OHQ App.
8.6 Indemnification. Customer will indemnify, defend, and hold harmless OHQ 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. OHQ may suspend the performance of any or all Selected Paid Services if any charge submitted by OHQ 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. OHQ will endeavour to provide prior written notice of suspension where it is practicable to do so.
9.2 Emergency Suspension. OHQ may suspend the performance of any or all Selected Paid Services and disable Customer’s access to Customer’s Account and any OHQ Offerings if OHQ 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 OHQ Services, or (b) there has been any unauthorised access to Customer’s Account or unauthorised use of any OHQ 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 OHQ 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 OHQ’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 OHQ
(a) For Cause. OHQ 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. OHQ 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 OHQ 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. OHQ 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. OHQ will refund to Customer any unused balance of the Prepaid Usage Credit if (i) OHQ 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, OHQ 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, OHQ 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 OHQ Service, OHQ will not be responsible in any way for answering calls, taking or delivering messages, or performing any other activities in connection with such OHQ Service.
(d) Customer’s Account. Upon termination of all OHQ Services, OHQ may terminate Customer’s Account and Customer’s access thereto.
(e) Customer Data. OHQ will have no obligation to retain any data or other information (including, without limitation, any messages or call logs) obtained or generated by OHQ in connection with any OHQ Service after termination of such OHQ Service unless otherwise agreed in writing between OHQ and Customer.
(f) Service Reinstatement. Following termination of any OHQ Service, OHQ will have no obligation to reinstate or otherwise recommence such OHQ Service. If OHQ elects (in its discretion) to reinstate or otherwise recommence a terminated OHQ Service, OHQ may require that Customer pay a reinstatement fee of $25.
12. GDPR DATA PROTECTION (relevant to individuals located in the EU)
12.1 OHQ 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 OHQ and Customer acknowledge that these Terms, in part or whole, do not relieve, remove or replace, either OHQ or Customer’s obligations under the Act or GDPR.
12.2 OHQ and Customer acknowledge that for the purposes of the Act and GDPR, OHQ 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 OHQ 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 endeavours to safeguard and protect all personal data from unauthorised 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 organisation 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 organisation, including the identification of that third country or international organisation and, the documentation of suitable safeguards; and
(d) a general description of the technical and organisational 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, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
12.4 OHQ 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 authorised 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 authorised 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 authorises 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 United States 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 OHQ the Processor and as Processor, OHQ 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 OHQ offerings is at Customer’s sole risk. To the maximum extent permitted by applicable law, the OHQ Offerings are provided “as is” and “as available,” with all faults and without warranty of any kind, and OHQ expressly disclaims all representations and warranties (whether express, implied, statutory or otherwise) regarding any OHQ 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, OHQ makes no representations or warranties regarding the quality, accuracy or content of any information or messages received on behalf of Customer, and OHQ does not warrant that any OHQ offering will be free of mistakes, defects or inaccuracies, will be available without interruption, or will meet Customer’s requirements.
13.2 Statutory Guarantees. OHQ 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 OHQ and Customer by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, to the extent to which OHQ is entitled to do so, OHQ’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) OHQ 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 OHQ knew or should have known of the possibility of such damages, or (b) OHQ’s aggregate liability under or in connection with this Agreement exceed the total of all amounts paid by Customer to OHQ for the OHQ 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 OHQ, and that OHQ would not have been willing to enter into these Terms or to provide any OHQ 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 New South Wales, Australia.
(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 arbitration or 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 mediation guidelines published by the Law Society of New South Wales, at the request of either party, to:
(a) a mediator agreed on by the parties; or
(b) if the parties are unable to agree on a mediator within 7 days after the end of the Initial Period, a mediator nominated by the then current President of the Law Society of New South Wales.
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 New South Wales, Australia and the parties agree to submit to the jurisdiction of the Courts of New South Wales, Australia in connection with any dispute relating to this Agreement.
16.2 Force Majeure. If OHQ 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 OHQ, which will not be unreasonably withheld.
16.7Entire 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 OHQ to Customer required, permitted or otherwise contemplated by these Terms may be provided by OHQ to Customer by email, text message, message in the client portal on the OHQ website, telephone or voicemail message.
Last Updated: 16 November 2020