TERMS OF SERVICE

Updated April 2024

Black Pearl Group (“BPG”) is a market-leading data technology company that pioneers AI-driven sales and marketing solutions predominantly for the US market.  

We’re dedicated to creating high-value, low-cost, data-driven sales and marketing products tailored predominately for the US small-medium business market. Our customers trust BPG to produce simple yet remarkably effective revenue growth tools. 

These BBPG Terms of Use (“Terms”) are agreed to by a customer who wishes to purchase, license or use the BPG products, including but not limited to, Pearl Diver, Black Pearl Mail and Newoldstamp (“Customer”). These Terms are effective as an agreement as of the date you sign up to use the BPG products.  

Services and permitted use 

Each Customer may use the BPG products and services to obtain data of unidentifiable visitors to the Customers’ sites (“Services“). The Customer shall use the Services in compliance with all applicable laws, statutes, rules, regulations, including but not limited to, all applicable privacy, “do not call, “do not mail, and similar do not solicit laws and regulations.  

The Customer may place a pixel tag on the Customer’s site that is used to gather relevant information about the visitors to the site to assist the Customer in reaching its intended audiences. BPG grants to Customer a non-exclusive, nontransferable (except within their control), revokable license to the data received from the use of the Services. Customer shall use the licensed data for marketing and management purposes only and not transfer possession, right, title or sub-license the data to any third parties for any purpose. 

Customer will only put pixel tags on Customer’s sites, and in no event shall include pixel tags on any website primarily engaged in pornography, gambling, or the sale of tobacco products. 

The Services are provided to Customer based on domain name. If Customer does not own or control the specified Customer domain names, then BPG will have no obligation to provide Customer with the Services. BPG does not control the availability of any domain name Customer seeks to register or renew and will have no liability relating to Customer’s use of the domain name. Customer shall remain liable for any infringement of a third party’s rights or violations of any applicable laws with respect to the specified Customer domain name. 

Silver Partner 

If you are a Silver Partner (referral partner), Customer is obligated to provide the contact details of any customers that Customer refers or introduces to BPG. Failure to comply with this requirement will either necessitate Customer’s transition to a direct partnership tier, either as a Gold or Platinum Partner with BPG or result in no compensation. Such a transition will be formalized through the execution of a contract, representing an enhanced level of engagement and collaboration with the Company’s services and community. Be advised, transitioning to these elevated partnership tiers incurs associated costs. This policy is instituted to uphold transparency, trust, and the integrity of our partnerships, thereby fostering mutual growth and success. 

Compliance 

The Customer shall maintain on its sites, mobile apps, and other digital assets, a privacy policy which complies with all applicable laws. Which includes, but is not limited to, informing visitors to the sites of the placement of the pixel tags and what data is collected through them and include the intended use of the data. Certain jurisdictions have strong requirements, BPG suggests Customer reviews these requirements in detail.  

Customer warrants and indemnifies BPG, that Customer shall undertake the following regarding these Terms: 

• Permissions. Customer shall obtain and inform viewers as required by applicable law;
   
• Mandatory Customer Privacy Policy wording. In addition to having a Privacy Policy as required by applicable law, the below mandatory wording is to be included: ‘Third Party Pixels and Cookies you visit or use our site may be used by our online data partners or vendors to associate these activities with information they or others have about you, which may include but is not limited to, your email address and phone number. We (or service providers on our behalf) may send communications and marketing to through the information received. You may opt out of receiving this marketing by visiting [insert your opt out]’. 

Customer will use commercially reasonable efforts to prevent unauthorized use of the Services’ and to terminate any unauthorized use. Customer will promptly notify BPG of any such use. 

Data Processing 

This section applies if BPG processes subscriber data subject to applicable Data Protection Law on behalf of Customer as a processor while providing Services pursuant to these Terms (“Subscriber Data”). 

As between BPG and Customer, Customer is controller of Subscriber Data, and BPG shall process Subscriber Data only as a processor acting on behalf of the Customer. 

Customer agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Subscriber Data and any processing instructions it issues to BPG; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for BPG to process Subscriber Data and provide the Services. 

BPG shall process Subscriber Data only for the purposes described in these Terms and only in accordance with Customer’s lawful instructions. The parties agree that these Terms set out the Customer’s complete instructions to BPG in relation to the processing of Subscriber Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and BPG. 

Data subjects are any individual accessing and/or using the Services through the Customer’s account (“Users”); and any individual: (i) whose email address is included in the Customer’s Distribution List; (ii) whose information is stored on or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services (collectively, “End Users”). 

Data collected of Subscriber and Users: identification and contact data (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility). 

Data collected of End Users: identification and contact data (name, date of birth, gender, general, occupation or other demographic information, address, title, contact details, (including email addresses), personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information). 

Notwithstanding anything to the contrary in these Terms, Customer acknowledges that BPG shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, BPG is the controller of such data and accordingly shall process such data in accordance with these Terms, the BPG Privacy Policy and Data Protection Laws. 

Customer acknowledges that in connection with the performance of the Services, BPG employs the use of cookies, unique identifiers, web beacons and similar tracking technologies (“Tracking Technologies”). Customer shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by applicable Data Protection Laws to enable BPG to deploy Tracking Technologies lawfully on, and collect data from, the devices of End Users. 

Customer agrees that BPG may engage Subprocessors to process Subscriber Data on Customer’s behalf. The Subprocessors currently engaged by BPG and authorized by Customer are listed below and subject to change. 

Customer is responsible for reviewing the information made available by BPG relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under applicable Data Protection Laws. Customer acknowledges that the security measures are subject to technical progress and development and that BPG may update or modify the security measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer. 

Notwithstanding the above, Customer agrees that except as provided in these Terms, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Subscriber Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Subscriber Data uploaded to the Services. 

BPG DISCLAIMER. BPG ACCEPTS NO LIABILITY FOR BREACHES OF SUBSCRIBER DATA THAT ARE THE FAULT OF CUSTOMER. FURTHERMORE, CUSTOMER AGREES TO FULLY INDEMNIFY BMP FOR ANY CLAIMS OR PENALTIES INCURRED AS A RESULT OF CUSTOMER’S NEGLIGENCE, OR FAILURES TO COMPLY WITH ITS OBLIGATIONS UNDER THESE TERMS AND APPLIABLE DATA PROTECTION LAWS. 

BPG may transfer and process Subscriber Data anywhere in the world where BPG, its affiliates or its Subprocessors maintain data processing operations. BPG shall always provide adequate protection for the Subscriber Data collected, transferred, processed, or retained in accordance with the requirements of applicable Data Protection Laws. 

BPG shall ensure that anyone authorized by BPG to process Subscriber Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality. 

Upon becoming aware of a material security incident, BPG shall notify Customer without undue delay and shall provide timely information relating to the material security incident as it becomes known or as is reasonably requested by Customer. 

BPG shall (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Subscriber. 

Upon termination or expiration of the Services, BPG shall (at Customer’s election) delete or return to Customer all Subscriber Data in its possession or control, save that this requirement shall not apply to the extent BPG is required by applicable law to retain some or all of the Subscriber Data, which Subscriber Data BPG shall securely isolate and protect from any further processing. 

The Services provide Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Subscriber Data, which Customer may use to assist it in connection with its obligations under the applicable Data Protection Law, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Customer is unable to independently access the relevant Subscriber Data within the Services, BPG shall (at Customer’s expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under these Terms. If any such request is made directly to BPG, BPG shall not respond to such communication directly without providing Customer with prior notice, unless legally compelled to do so.  

If a law enforcement agency sends BPG a demand for Subscriber Data (for example, through a subpoena or court order), BPG shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, BPG may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Subscriber Data to a law enforcement agency, then BPG shall give Customer reasonable notice of the demand to allow Customer to seek a court order or other appropriate remedy unless BPG is legally prohibited from doing so.

To the extent BPG is required under the applicable Data Protection Law, BPG shall (at Customer’s expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law. 

The below Subprocessors set out below provide cloud hosting and storage services; content delivery and review services; assist in providing customer support; as well as incident tracking, response, diagnosis and resolution services. 

Acceptable use 

Customer agrees not to allow third parties or Customer’s End Users, to use the Services: 

• to violate, or encourage the violation of, the legal rights of others 
• for any unlawful, invasive, infringing, defamatory, or fraudulent purpose 
• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature 
• to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users 
• to alter, disable, interfere with or circumvent any aspect of the Services 
• to test or reverse-engineer the Services to find limitations, vulnerabilities or evade filtering capabilities
   

Failure to comply with the acceptable use may result in suspension or termination, or both, of the Services pursuant to these Terms. BPG reserves the right to place a daily cap on the number of End-User outbound emails sent within a 24-hour period or terminate the Services. 

Modifications 

BPG may make commercially reasonable changes to the Services from time to time. If BPG makes a material change to the Services, BPG will inform Customer. 

BPG may make commercially reasonable changes to the Terms from time to time and inform Customer by uploading the amended terms on the BPG website. If BPG makes a material change to the Terms, BPG will inform Customer. If the change has a material adverse impact on Customer, the Customer may terminate the Services with 30-days’ notice.  

Billing and Payment 

Customer can pay for the Services either on a monthly in advance or annual in advance basis, considering total usage of the Services. For Newoldstamp, billing may be quarterly in advance.  

BPG may change the published list price at any time with 30 days’ notice. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees.  

All payments due are in U.S. dollars unless otherwise agreed. 

Fees for orders are due at the start of the month/year during which Customer received the Services, and at the time of renewal of the Services. Customer authorizes these charges to be made to its designated credit card or debit card.

Late payments may bear interest at the rate of two-and-one-half (2.5%) percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by BPG in collecting such amounts. If Customer does not pay BPG Fees within thirty days, BPG has the right to suspend Customer’s use of the Services.  

Customer is responsible for any taxes, and Customer will pay BPG for the Services without any reduction for taxes. If BPG is obligated to collect or pay taxes, the taxes will be invoiced to Customer. 

Except as provided in these Terms, in no event will BPG provide Customer with a refund.  

Technical Support Services 

Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to BPG. 

If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to BPG in accordance with the guidelines that are provided to Customer by BPG. Customer authorises BPG’s technical team to access Customer’s Data and dashboard from time-to-time to resolve technical issues.

If Customer becomes aware of an End User’s violation of these Terms, then Customer must suspend the applicable End User Account, and promptly notify BPG. Customer must ensure End Users abide by these Terms.

Notwithstanding the foregoing, if there is an emergency security issue, then BPG may automatically Suspend the offending user.  

Confidential Information 

Each party will: (a) protect the other party’s confidential information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the confidential information, except to employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party may use confidential information only to exercise rights and fulfil its obligations under these Terms, while using reasonable care to protect it. Each party is responsible for any actions of its employees and agents in violation of this section. 

Confidential information does not include information that: (a) the recipient of the confidential information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party. 

Each party may disclose the other party’s confidential information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure. 

Intellectual Property Rights 

Customer acknowledges that BPG is the owner of all patents, trademarks, trade names, inventions, discoveries, improvements, processes, formulae, technology, data, copyrights, database rights, design rights, domain names, Confidential Information, know-how or trade secrets and any other intellectual property rights owned or used or enjoyed by BPG or any of its affiliated companies existing, whether registered or unregistered, relating to the design, manufacture, programming, operation or support of the Service. 

Customer shall not, nor permit any other person to copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Services; alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Service without our prior written consent; or do any act that would or might invalidate or be inconsistent with BPG intellectual property rights.
 

Termination 

Either party may suspend performance or terminate the Services if the other party is in breach of these Terms and fails to cure that breach within thirty days after receipt of written notice. Either party may suspend or terminate immediately if (i)the other party ceases its business operations or becomes subject to insolvency proceedings; or (ii) the other party is in breach of these Terms more than two times notwithstanding any cure of such breaches; or materially breaches these Terms. 

If the Services are terminated, then: (i) the rights granted by one party to the other will cease immediately; (ii) BPG will provide Customer access to the Customer Data for a commercially reasonable period of time at BPG’s then-current rates for the applicable Services. 

Customer does not wish to renew for a further term of the Services Customer must provide seven (7) days written notice in advance of the renewal date. 

Indemnification 

Customer will indemnify, defend, and hold harmless BPG from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the acceptable use; or (iv) regarding Customer’s breach of applicable laws and regulations.  

If BPG reasonably believes the Services infringe a third party’s Intellectual Property Rights, then BPG will, at BGP’s discretion: (a) obtain the right for Customer, at BPG’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.

If BPG does not believe the foregoing options are commercially reasonable, then BPG may suspend or terminate Customer’s use of the impacted Services. If BPG terminates the impacted Services, then BPG will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services. 

Disclaimer 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BPG DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. BPG MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES OR THAT THE CUSTOMER DATA IS NOT FREE FROM DEFECTS OR VIRUSES. 

CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR USE OF THE DATA AND USE OF THE BPG’S SERVICES. 

Limitation of Liability 

BPG WILL NOT BE LIABLE UNDER THESE TERMS AND USE OF BPG SERVICES FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. 

BPG MAY NOT BE HELD LIABLE UNDER THESE TERMS FOR MORE THAN THE AMOUNT THAT BPG RECEIVED FROM CUSTOMER DURING THE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 

Miscellaneous 

Assignment. Customer will not assign or transfer any part of the Services without the written consent of BPG. 

Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control. 

No Waiver. Failure to enforce any provision of these Terms will not constitute a waiver.

Severability. If any provision of these Terms is found unenforceable, the balance of the Terms will remain in full force and effect.

No Agency. The parties are independent contractors, and not create an agency, partnership or joint venture. 

Equitable Relief. Nothing in these Terms will limit either party’s ability to seek equitable relief. 

Governing Law. These Terms will be governed by and construed in accordance with New Zealand law. The parties submit to the exclusive jurisdiction of the New Zealand Courts in respect of all matters relating to these Terms and the Services

Survival. The Terms that by their general meaning will survive expiration or termination of the Services.