“We” or “Us” means “Resilient Plc, trading as Smartnumbers, registered in England and Wales No: 01403177”.
“You” means the customer to whom We provide the Service in accordance with these terms and conditions.
“API Charges” means the charges that You may incur in the importing or exporting of files into the Services.
“Authorised Customer Contact” means the email address You provided to Us in the relevant Order.
“Charges” means the fees payable by You to Us for use of the Services.
“Connection Charges” means the one off charge You pay to Us when the Service is first set up as set out in the relevant Order.
“Contract” means the same as set out in section 2.2.
“Customer Data” means any data (including Personal Data), documents, text, drawings, diagrams, images or sounds (together with any database made up of any of those), embodied in any medium, that are supplied to Us by You or on Your behalf, or which We are required to generate, process, store or transmit pursuant to any Contract and including, for the avoidance of doubt, any recordings of telephone calls as part of the Services, which may include data regarding Your users (“Users”).
“Data Protection Laws” means all privacy laws applicable to any Personal Data processed under these terms and conditions, including without limitation, the General Data Protection Regulation 2016/679 (the “GDPR”) and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable Supervisory Authority, all as amended, re-enacted and/or replaced and in force from time to time.
“Insolvency Event” means, in respect of either party:
- other than for the purposes of a bona fide reconstruction or amalgamation, such party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved, or that party being otherwise dissolved; or
- the appointment of an administrator of, or the making of an administration order in relation to, either party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; or
- that party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making an application to a court of competent jurisdiction for protection from its creditors; or
- that party being unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or
- that party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors.
“Minimum Term” means the period of 12 months from the Service Due Date or such longer period as We may agree with You.
“Order” means the same as set out in section 2.1.
“Regulatory Body” means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled by any applicable law or regulation to supervise, regulate, investigate or influence the matters dealt with in any Contract or any other of Your affairs.
“Service Due Date” means the date on which Your Services or part of Your Services will be available for use.
“Service” or “Services” means the telephony, storage, transcription, API, directory and messaging services to be supplied by Us to You under these terms and conditions and as set out on the website in the relevant Order.
“Storage Charges” means the charges that You may incur in storing of audio and associated files with the Service.
“Subscription Charges” means the recurring monthly charge You pay to Us for use of the Service as set out in the relevant Order.
“Telephony Charges” means the charges that You may incur making or receiving telephone calls using the Services.
“Transcription Charges” means the charges that You may incur in the creation of transcripts from audio files that you may store in the Service.
“Website” means www.resilientplc.com
2.1. These terms and conditions contain general terms relating to the provision by Us to You of the Services and should be read in conjunction with the information included on the smartnumbers Order Form completed by You (“Order”).
2.2. Each Order will form a separate contract (a “Contract”) between You and Us on the terms contained in the Order and in these terms and conditions. Each Contract will be separately terminable by either party in accordance with sections 2.3 and 10.
2.3. We reserve the right to suspend the Service without notice if We believe the Service is being used by You in breach of these terms and conditions or if You notify Us that someone has gained unauthorised access to the Service. Either party (the “non-defaulting party”) shall have the right to terminate any Contract upon written notice to the other party (the “defaulting party”) in the event of a breach of these terms and conditions that remains uncured 30 days after the non-defaulting party gives the defaulting party notice of such breach. For the avoidance of doubt, failure to pay the charges due under section 4.1 and 4.2 will constitute a breach.
2.4. You agree that We shall not be liable to provide the Service unless and until an Order has been accepted by Us in relation to the Service.
2.5. You agree that We operate a (fair use policy) which We may update from time to time.
2.6. Each party shall have the right to terminate any Contract immediately if an Insolvency Event affecting the other party has occurred.
2.7. Upon termination of a Contract (and, in relation to (i), at any time on Your written request), We shall (i) deliver the Customer Data to You; (ii) on Your written request, erase all Customer Data from computer and communications systems and devices used by Us, including such systems and data storage services provided by third parties (in each case to the extent technically practicable) and confirm in writing that this has been done; and (iii) for up to 12 months after the expiry or termination of the Contract, provide access during normal working hours to You and/or Your agents to such information relating to the Contract and relevant Services as remains in Our possession or control, including information necessary to demonstrate Our compliance with the Data Protection Laws.
The obligations you have to us
3.1. You shall ensure that You do not use the Service for unlawful purposes, including (but not limited to) the transmission of material that is defamatory or which infringes on the intellectual property rights of any third party.
3.2. You will be provided with passwords for accessing or using the Service and You must treat such passwords as confidential and must not reveal them to any third party. You are responsible for all activities that occur under the passwords that You have. You shall ensure that the passwords that You have are changed regularly.
Charges and payments
4.1. In each case the Order will set out all appropriate charges for the Service, applicable from the “Service Due Date” which will be billed quarterly in advance unless otherwise specified in your Order.
4.2. Telephony Charges, Storage Charges, Transcription Charges and API Charges will be billed in accordance with our tariff and will be billed monthly in arrears. Fixed line tariff (proactive recovery and directed recovery) and mobile tariff (business sponsored and user sponsored).
4.3. We reserve the right to revise the Charges other than Telephony Charges on giving not less than three months’ prior written notice, such revisions not to come into effect prior to the next renewal of any Contract in accordance with section 9.1. We reserve the right to revise the Telephony Charges from time to time to reflect revisions made by Our communication providers. You may request Us to provide reasonable and satisfactory evidence of any revision made by Our communication providers.
4.4. If any invoice becomes overdue We reserve the right to charge interest at 3% above the base rate of the Royal Bank of Scotland and suspend the Service if such invoice remains overdue for four weeks.
5.1. Subject to section 5.2, the intellectual property rights and/or other proprietary rights in the information (including hard copy and electronic, human-readable and otherwise) used or created by Us in providing the Service will be owned by Us or the licensors We have. Nothing in this section 5 will limit either party’s obligations with regard to data protection in section 8.
5.2. We acknowledge that the Customer Data is Your property and You reserve all intellectual property rights and/or other proprietary rights which may, at any time, subsist in the Customer Data. To the extent that any intellectual property rights and/or other proprietary rights in any of the Customer Data vest in Us by operation of law, such intellectual property rights and/or other proprietary rights shall be assigned by Us to You by operation of section 5.2 immediately upon the creation of such Customer Data.
5.3. We shall:
(a) preserve, so far as possible, the security and integrity of the Customer Data and prevent any loss, disclosure, theft, manipulation or interception of the Customer Data; and
(b) make secure back-up copies of the Customer Data on a regular basis as agreed with You.
5.4. Resilient warrants that it is sufficiently authorised and/or licensed to provide the Services and to utilise the intellectual property comprised in the Services. Resilient shall and hereby indemnifies the Customer for any losses, costs and damages in respect of any third party claim brought against it in this regard. This provision shall survive termination of any Contract. You will notify Us of any such claim and We will take control over the defence.
Representations and warranties
6.1. Each party warrants to the other that it has the full and sufficient right and authority to enter into these terms and conditions and to grant the rights and licences granted herein.
6.2. We warrant that the Services will be provided with reasonable care and skill.
6.3. You agree that We do not warrant or enter into any other term to the effect that any software will be entirely free from defects or that its operation will be entirely error free.
6.4. Apart from the terms set out in this section 6, no conditions, warranties or other terms apply to the Service or to anything else supplied under these terms and conditions. In particular, the terms implied by sections 3 to 5 of the supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
Limitation of liability
7.1. Other than set out in section 7.4, neither party shall be liable (whether for breach of contract, (including without limitation negligence), or for any other reason) arising out of or in connection with these terms and conditions for any: (i) loss of profits, sales and/or revenue); (ii) goodwill and/or reputation; (iii) loss or waste of management or staff time; and/or (v) indirect, consequential or special loss.
7.2 We shall not be liable for any failure in the Service which arises because of any circumstances which we cannot reasonably be expected to control. The payment obligations You have will be suspended for the period of any such circumstances which causes a default or delay in the performance of the obligations We have to You under these terms and conditions.
7.3 Subject to section 7.1 and 7.4, the total aggregate liability We have to You under each Contract and in relation to anything which We may have done or not done in connection with the Contract concerned (and whether the liability arises because of breach of Contract, negligence or for any other reason) in respect of any Contract shall be limited to the greater of (i) 100% of all amounts payable by You under the Contract concerned in the relevant Contract Year and (ii) the amount of any fine incurred by You as a result of or in connection with such act or omission.
7.4 Neither party’s liability: (i) for death or personal injury caused by its negligence; (ii) for fraudulent misrepresentation or for any other fraudulent act or omission; and/or (iii) for any other liability which may not lawfully be excluded or limited, is excluded or limited by these terms and conditions, even if any other term of these terms and conditions would otherwise suggest that this might be the case.
8.1. All capitalised terms used in this section shall have the meaning given to them in the Data Protection Laws.
8.2. Where We obtain, Process and store Personal Data that You give Us We will do so in accordance with the Data Protection Laws and our Data Protection Policy which can be obtained via our website at https://smartnumbers.com. You undertake to comply with Data Protection Laws at all times and shall have sole responsibility for the accuracy, quality and legality of such Personal Data and the means by which You acquired it.
8.3. For the purposes of the Data Protection Laws, We shall be:
8.3.1. a Controller in respect of account information You give Us (which may include contact details of individuals within your organisation that We deal with to manage and administer the Services); and
8.3.2. a Processor in respect of any other Personal Data which You give Us (which includes the Customer Data).
8.4. You agree that the type of Personal Data We will Process under these terms and conditions and the duration, nature and purpose of the Processing, and the categories of Data Subjects, are as described in Annex 1.
8.5. We will only Process the Personal Data in accordance with Your instructions and will have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of this Personal Data and against its accidental loss, destruction or damage, to the extent required by Us under the Data Protection Laws.
8.6. Your Personal Data may be stored electronically or otherwise (including in hard copy form). We shall ensure that all personnel who have access to and/or Process such Personal Data are obliged to keep it secure and confidential.
8.7. We will not cause or permit any Personal Data to be transferred outside the European Economic Area without first seeking Your instructions, which may include the requirement to execute the Standard Contractual Clauses for transfers from Controllers to Processors approved by the Commission pursuant to Decision 2010/87/EU or to have in place any other legal safeguard(s) as recognised by the Data Protection Laws.
8.8. You grant Us a general authorisation to appoint (a) other members of Our group, as sub-processors and (b) additional third party data centre operators and/or outsourced support providers, as sub-processors, to support the provision of the Services. We will maintain a list of sub-processors and notify You of the names of new and replacement sub-processors prior to them sub-processing any Personal Data. If You object to any new or replacement sub-processor, You will notify Us of such objection in writing within five business days of the notification and We will seek to resolve the matter in good faith. If the parties are unable to resolve the matter within a reasonable period of time, which shall not exceed sixty (60) days, You may terminate the applicable Services (with respect only to those Services which cannot be provided by Us without the use of the objected-to new sub-processor) by providing written notice to Us.
8.9. We shall ensure that any sub-processor We engage in the provision of the Services is engaged on the basis of a written contract which imposes on such sub-processor terms equivalent to those imposed on Us in this section 8 (“Relevant Terms”). We shall procure the performance by such sub-processor of the Relevant Terms and shall be directly liable to You for any breach by such sub-processor of any of the Relevant Terms.
8.10. In line with our Data Breach Policy We will inform You in the event of a Personal Data Breach affecting any Customer Data. We will do so without undue delay; providing You with sufficient information to allow You to meet any obligations or inform Data Subjects or Supervisory Authorities of such Personal Data Breach. We will co-operate with You and take reasonable steps in the investigation, mitigation and remediation of any such Personal Data Breach.
8.11. We will provide such assistance as You reasonably request (taking into account the nature of Our Processing and the information available to Us) in relation to Your obligations under the Data Protection Laws with respect to:
8.11.1. responding to requests from any Data Subjects seeking to exercise their rights under Chapter III of the GDPR;
8.11.2. Data Protection Impact Assessments; and
8.11.3. Your compliance with Your obligations under the GDPR with respect to the security of the Processing of the Personal Data, provided that You shall pay Our charges for providing the assistance in section 8.11, at Our standard consultancy rates.
8.12. You agree that with Your consent We may use the name of Our organisation and Your logo in marketing materials associated with the Service and We agree that We will not disclose to any third party how You are using the Service without written permission from You.
Term and termination
9.1. Each Contract shall commence on the date set out in the Order for a Minimum Term. Each contract shall renew automatically for successive terms equal in length to the Minimum Term unless terminated by either party giving the other not less than one month’s written notice prior to the next renewal date provided such notice cannot expire before the end of the Minimum Term. This clause 9.1 is without prejudice to the right We have to terminate under section 2.3.
9.2. Each Contract will not affect any accrued rights or liabilities which either You or Us may have by the time termination takes effect.
10.1. The Service may be made available to You as a Trial Service and these same Terms and Conditions shall apply, subject to (i) any separate arrangements made with respect to the Term of the Trial Service and (ii) any other commercial arrangements agreed in respect of the Trial Service.
11.1. You may not sub-licence or assign any of the rights or obligations which You have under these terms and conditions.
11.2. These terms and conditions and any relevant Order sets out all of the terms that have been agreed between You and Us in relation to the subjects covered by it. Subject to section 7.4, no other representations or terms shall apply or form part of any Contract between the parties. You acknowledge that You have not been influenced to enter into these terms and conditions by anything We have said or done or committed to do, except as expressly recorded herein.
11.3. In the event of any provision in these terms and conditions being held to be void, voidable or unenforceable this shall not affect the validity or enforceability of any other section of these terms and conditions or of the remainder of these terms and conditions as a whole.
11.4. No term of these terms and conditions is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these terms and conditions.
11.5. These terms and conditions shall be governed and construed in accordance with English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these terms and conditions, but We are also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce the intellectual property rights that We have.
12.1. Except to the extent set out in this section 12, or where disclosure is expressly permitted by any Contract, each party shall:
(a) treat the other party’s confidential information as confidential; and
(b) not disclose the other party’s confidential information to any other person without the owner’s prior written consent.
12.2. Section 12.1 shall not apply to the extent that:
(a) such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or
(b) such information was obtained from a third party without obligation of confidentiality; or
(c) such information was already in the public domain at the time of disclosure otherwise than through a breach of any Contract; or
(d) such information was independently developed without access to the other party’s confidential information.
12.3. We acknowledge that Customer’s Data is likely to contain price-sensitive information, trade secrets, commercial secrets or other confidential information belonging to You. We undertake to treat such information as confidential and undertake not to use, or to procure another to use, under any circumstances, such information to trade or exchange securities of any kind or to engage in other activities that may result in financial gains for Us or Our affiliates as a result of the use of such information. We acknowledge that You may be irreparably harmed by the breach of the terms of this Section by Us or Our sub-contractors. We agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by Us or for which we are liable, and that the entity seeking a remedy shall be entitled to apply for, in addition to monetary damages, the remedies of injunction, specific performance and such equitable relief as a remedy for such breach.
13.1. We shall allow You and any auditors of or other advisers or an applicable Regulatory Body to access any of Our premises other than Our data centres, Our personnel and relevant records as may be reasonably required in order to:
(a) satisfy or fulfil any legal or regulatory obligation or legally enforceable request by any Regulatory Body; or
(b) undertake verification that the Services are being provided in accordance with any Contract.
13.2. Subject to Our confidentiality obligations, We shall provide You (and Your auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.
How you can make a complaint
14.1. We strive to provide the best customer service possible and if there is anything you’re not happy with, please let us know so that we can work with you to put things right and provide a better service in future.
If you wish to raise a complaint, the best way to contact our Customer Support Team is:
By email : email@example.com
By phone: 0306 790 2000.
We will make every effort to resolve your complaint straight away.
Annex 1 – Personal data
For the purposes of section 8.4 of the terms and conditions, the parties set out below a description of the Personal Data being Processed under the terms and conditions and further details required pursuant to the GDPR.
- TYPES OF PERSONAL DATA
1.1 The types of Customer Data Processed by Resilient or its Sub-Processors may include:
- contact information such as first name, surname, gender, mobile phone number, employer, and email addresses;
- third party contact information such as first name, surname, mobile phone number, employer, and email addresses;
- recordings such as voicemails, voice recordings and text messages;
- correspondence, comments and opinions when the Customer contacts us directly by email, phone or when completing an online form;
- traffic data We see as part of providing connectivity, such as phone numbers called, the time and duration of calls;
- credential information such as encrypted passwords, hints and similar security information;
- preferences for marketing communications, how our website is displayed and how the Customer uses the Service;
- information about how you access and use the Service;
- log files and information about the Customer’s devices.
This list is not exhaustive as You may specify additional Personal Data that is Processed.
- THE NATURE OF PROCESSING
2.1 We Process any information that is generated by Your use (or Your employees’, agents’ or subcontractors’ use) of the Service. Given that recordings can be made and stored, any type of Personal Data could be captured or provided inadvertently by the User. Any access to the content of such communications by Us is strictly in accordance with Applicable Law.
- PURPOSE OF PROCESSING
3.1 We (and Our subcontractors) may Process User Personal Data to provide you the Service including: (i) the provision of the Services; (ii) account relationship management; (iiI) sending bills; or (iv) customer service.
3.2 We (and Our subcontractors) may Process User Personal Data because it is in our legitimate interests as a business to use Your information including: (i) improving and innovating Our Service; (ii) marketing and tailoring Our Service to You; (iii) research and analytics; or (iv) credit checks, fraud prevention and security.
3.3 We (and Our subcontractors) may Process User Personal Data to meet our legal and regulatory obligations which may include sharing the same with law enforcement agencies.
- DURATION OF PROCESSING
4.1 Until the later of (i) expiry/termination of the Services or (ii) the date upon which Processing is no longer necessary for the purposes of either party performing its obligations under these terms and conditions (to the extent applicable).
- CATEGORIES OF DATA SUBJECT
The Personal Data may concern the following categories of Data Subjects:
- Your Users;
- third party participants in voice calls or text messages to and from Your Users; and
- Your employees, directors and contractors.
This list is not exhaustive as You may specify additional Personal Data that is Processed.