Terms of Service
A. IDKit provides an online platform which clients can make available to their employees, customers, clients, suppliers, other stakeholders or end users, to verify the identity of such persons.
B. You have engaged IDKit to provide it with access to the Platform in accordance with your Subscription Package, and (if applicable) to provide certain other associated features as set out in your Subscription Package (collectively the Services).
C. These Terms of Service, together with your Subscription Package, set out the terms upon which IDKit will provide the Platform and other Services to you (together, this Agreement).
This Agreement is a legally binding contract between you (Client, you and your) and OCR Labs IDKIT Pty Ltd (ACN 640 504 249) (IDKit, we, us and our).
If you are entering into this Agreement on behalf of an entity or organisation, then "you" means that entity or organisation, and you acknowledge that you are binding that entity or organisation to this Agreement, and have the authority to do so.
It is agreed as follows.
1 Contract structure and precedence
(a) The terms of engagement for the provision of the Platform and the Services are set out in this Agreement (comprising these Terms of Service and your Subscription Package).
(b) Any new features or tools which are added to the Platform (including any Updates under clause 8) will also be subject to this Agreement.
(c) Each party must perform its obligations as set out in this Agreement. The parties must comply with any special conditions set out in your Subscription Package.
(d) In the event of a conflict, inconsistency or ambiguity between any provisions of the documents comprising this Agreement, the provisions will prevail in the following decreasing order:
(i) your Subscription Package; (ii) the provisions of these Terms of Service; and (iii) any other documentation incorporated by reference into this Agreement.
2 Subscription Period
(a) This Agreement commences on the Commencement Date and will continue until the end of the initial Subscription Period, unless the Services are cancelled in accordance with the terms of this Agreement.
(b) At the end of the initial Subscription Period this Agreement will be automatically extended for successive Subscription Periods unless:
(i) either party cancels the Services by notice given through the relevant functionality included in the Platform (or, in the case of IDKit, by written notice) prior to the end of the then current Subscription Period; or (ii) the Services are otherwise cancelled in accordance with this Agreement.
3 Subscription Package
(a) Client may update its Subscription Package through the relevant functionality in the Platform.
(b) An update to the Subscription Package in accordance with clause 3(a) will take effect from the commencement of the next Subscription Period.
(c) IDKit may vary a Client's Subscription Package from time to time, by providing Client with no less than 20 days' written notice. Such variation will take effect from the commencement of the next Subscription Period following the expiry of the notice period. If the variation would have a material adverse impact on the Client and is not required by Law, Client may elect to cancel the Services using the relevant cancellation functionality in the Platform. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.
(d) In the event of a variation to the Subscription Package, Client's access to the Platform and the Services will otherwise continue to be subject to the terms of this Agreement.
(a) Subject to Client's compliance with this Agreement, IDKit grants to Client a non-exclusive, limited, non-sublicensable, non-transferable, revocable licence to access and use the Platform in the Territory during the Term in accordance with this Agreement. IDKit acknowledges that Users may from time to time be located outside of the Territory, and this will not be considered a breach of the Client's licence to the Platform, provided that Client does not actively attempt to use the Platform or market it to Users outside the Territory.
(b) IDKit will or will procure the performance of the IDKit Partner to:
(i) assist with delivering or otherwise providing access to the Platform as required for Client to exercise its rights under clause 4(a) and as required pursuant to this Agreement; and (ii) provide Client with services and support pursuant to your Subscription Package.
5 Use of the Services
(a) IDKit shall make the Platform available to Client on and from the Go-Live Date and for the remainder of the Term in accordance with the terms of this Agreement.
(b) Client shall grant each Administrator the relevant Administrator Access to perform its managerial functions.
(c) Client is responsible for any and all actions taken by Administrators and must procure that each Administrator complies with, and does not seek to circumvent, any restrictions imposed on such access by IDKit and/or by Client. To the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit will not be liable for any Loss arising out of or in connection with any Administrator's failure to maintain the security of its login credentials. Client is responsible for any and all actions taken using an Administrator's login credentials. Client will immediately notify IDKit of any unauthorised use of which Client or its Administrators or other Personnel become aware.
(d) Client will make the Platform available to Users in a manner consistent with this Agreement and in accordance with any reasonable instructions given to Client by IDKit from time to time. To the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit will not be liable for any Loss arising out of or in connection with a User's failure to maintain the security of their session on the Platform. Client will immediately notify IDKit of any unauthorised use of which Client becomes aware.
(e) Where APIs form part of the Platform, Client will use those APIs reasonably, in a manner consistent with this Agreement and in accordance with any reasonable instructions given to Client by IDKit from time to time.
(f) Where Client is required to specify a domain for the operation of the Platform, IDKit may verify that Client owns or controls that domain. If Client does not own or control the domain specified in the Subscription Package (if any), then IDKit will have no obligation to provide Client with the Platform via such domain.
6 Use of the Platform
(a) To the extent permitted by Law (including the Australian Consumer Law if applicable), Client is solely responsible for ensuring that all information it provides or inputs on the Platform is accurate and up-to-date, including being solely responsible for creating and updating its own account, and each Administrator account and profile.
(b) Client's authorisation to use the Services and the Platform is subject to the payment of all Fees payable under this Agreement.
(c) Client acknowledges that IDKit may collect, use and disclose IDKit Data in connection with Client's and its User's use of the Platform and other Services without restriction, provided such IDKit Data does not include any Personal Information.
(d) Client shall ensure that it complies with all applicable Laws in connection with its, its Administrators' and its Users' use of the Platform and other Services, and acknowledges that it is solely responsible for such compliance.
(e) To the extent that Client wishes to configure its Users' experience of the Platform (for example, by configuring the home page), Client must do so in accordance with:
(i) the tools made available by IDKit on the Platform; and (ii) IDKit's or the IDKit Partner's reasonable instructions to Client.
(f) Each party must notify the other if it becomes aware of any Fault which may have a material adverse effect on the use of the Platform.
(g) Both parties will work together in good faith and will use reasonable endeavours to ensure that any Fault is rectified within a reasonable period.
7 Client restrictions
(a) Except to the extent required by Law, Client must not and must ensure that its Administrators and Users do not:
(i) without the prior written consent of IDKit, access or use the whole or any part of the Platform or Services, except as expressly authorised by this Agreement; (ii) copy or replicate, or directly or indirectly allow or cause a third party to copy or replicate, the whole or part of any of the Associated Documentation except and strictly only to the extent such copying is necessary for the normal use of the Associated Documentation or Platform; (iii) remove or obscure any proprietary notice (including any copyright, trade mark, service mark, or tagline) or other notices contained in the Platform or the Associated Documentation; (iv) circumvent any mechanisms in the Platform intended to limit Client's or any Administrator's or User's (as applicable) use of or access to areas within or components of the Platform; (v) sub-licence, rent, sell, lease, distribute, exploit, commercialise or otherwise transfer the Platform or Associated Documentation, except as expressly permitted under this Agreement; or (vi) vary, alter, modify, interfere with, reverse disassemble, decompile or reverse engineer, or otherwise seek to obtain or derive the source code from any part of the Platform (or directly cause or permit any other person to do so).
(b) Client must not and must ensure that its Administrators and Users do not, access or use the Platform, or post, provide or transmit any information, content or data in any way that:
(a) IDKit may implement (in its absolute discretion) Updates to the Platform from time to time.
(b) Except for Updates required for compliance with Laws or to address critical security issues, IDKit will notify Client in advance of any such Updates which would materially alter the Platform or Services or have a material detrimental impact on the Platform.
(c) If the Update or any other change or limitation imposed by IDKit has the effect of materially adversely altering Client's ability to use the Services or Platform, Client may elect to cancel the Services using the relevant cancellation functionality in the Platform. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.
9 Fees, payment and GST
9.1 Fees and Payment
(a) Client must pay the Fees, without set-off, abatement or deduction, in accordance with this clause 9 and the Client's Subscription Package.
(b) If Client fails to pay the Fees in accordance with the Subscription Package, then IDKit may on reasonable notice to Client (which notice may be given by the IDKit Partner, if applicable), where practicable, suspend the Services until payment is received in full.
(c) IDKit and Client agree that the Fees may be increased by IDKit provided that:
(i) IDKit (or the IDKit Partner, if applicable) must notify Client in writing of the revised Fees at least 30 days prior to the commencement of the updated Fees taking effect; and (ii) Client shall have the right to cancel the Services if it does not accept the revised Fees. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.
(a) If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
(b) Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
(c) If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d) In providing an invoice, a party shall provide proper tax invoices if GST is applicable to the Fees.
(e) Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) shall have that meaning in this Agreement.
(f) All payments to be made by Client under this Agreement shall be made free and clear of and without deduction for or on account of taxes unless Client is required to make such a payment subject to the deduction or withholding of taxes, in which case the sum payable by Client (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that IDKit (or the IDKit Partner, as applicable) receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.
10 Intellectual Property Rights
(a) The parties acknowledge and agree that all rights, title and interest (including Intellectual Property Rights) in:
(i) the Platform, the Services, Associated Documentation and the IDKit Marks, including in any improvements thereto (including as they may incorporate any Feedback), and all other Intellectual Property Rights arising from any work done by or on behalf of IDKit in connection with this Agreement remain with IDKit and/or its licensors at all times; (ii) notwithstanding clause 10.1(a)(iii), all rights in the IDKit Data, including in any improvements thereto, immediately vest in and remain with IDKit at all times; and (iii) Client Materials (including, for example, Client Marks), including in any improvements thereto, remain with Client and/or its licensors at all times, and nothing in this Agreement is intended to transfer any such right, title or interest to the other party.
(b) In the event that Client acquires any Intellectual Property Rights described in clause 10.1(a)(i) or 10.1(a)(ii), Client:
(i) hereby assigns all of such right, title and interest in and to such Intellectual Property Rights to IDKit; (ii) will upon demand by IDKit (or the IDKit Partner, if applicable) do all such things and execute such documents as IDKit (or the IDKit Partner, if applicable) may reasonably require to give effect to that assignment; and (iii) must provide all reasonable assistance requested by IDKit to protect, defend and assert IDKit's interests in such Intellectual Property Rights.
(c) In the event that IDKit acquires any Intellectual Property Rights described in clause 10.1(a)(iii), IDKit:
(i) hereby assigns all of such right, title and interest in and to such intellectual property to Client; and (ii) will upon demand by Client do all such things and execute such documents as Client may reasonably require to give effect to that assignment.
(d) Client must notify IDKit immediately if it becomes aware of any:
(i) breach of any of IDKit's Intellectual Property Rights; or (ii) any claim by any third party relating to Intellectual Property Rights in the Platform or Services.
(e) Client, or its Personnel, may from time to time provide feedback (including suggestions, ideas, information, comments, process descriptions or other information) to IDKit and/or the IDKit Partner (Feedback). Client absolutely and unconditionally assigns to IDKit all rights, title and interests (including all Intellectual Property Rights) in and to any Feedback immediately upon creation, free of all encumbrances and third party rights and Client must do all reasonable things necessary to give effect to such assignment, including executing any required documents or effecting any required registrations.
10.2 Client Materials
(a) Client agrees and acknowledges that it is solely responsible for any Client Materials.
(b) Client must ensure that Client Materials, and the collection, use, processing, disclosure and dissemination of Client Materials via the Platform:
(i) do not infringe the Intellectual Property Rights of any person; and (ii) comply with all applicable Laws.
(c) Notwithstanding any other clause in this Agreement, Client agrees that IDKit will have the right to access, process, display, store and host (or procure a third party to process, store and host) Client Materials, for the purposes of:
(i) providing Client with the Services and use of the Platform, (ii) internal training; and (iii) testing, improving and developing new features for the Platform and Services, and grants IDKit a royalty-free, worldwide, transferrable, non-exclusive licence to do so.
11 Confidential Information and publicity
(a) Subject to clauses 11.1(b) and 11.1(c), a party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement (including the terms set out in the Subscription Package) or any other Confidential Information of the other party.
(b) A party may only disclose Confidential Information of the other party:
(i) to its Related Bodies Corporate, and its and their respective employees, legal advisors or consultants, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons have a need to know such information in connection with this Agreement; (ii) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or (iii) to the extent required by Law or pursuant to a binding order of a Governmental Agency.
(c) IDKit may disclose Confidential Information of Client to the extent necessary in connection with a capital raising, financing or acquisition, but will use reasonable efforts to minimise the scope of such disclosure.
__11.2 Publicity __
(a) Client acknowledges and agrees that, notwithstanding this clause 11, IDKit (and the IDKit Partner, if applicable) may disclose to third parties the fact that Client has entered into this Agreement with IDKit, including in any marketing or other material used by IDKit or the IDKit Partner, including case studies regarding the Client’s involvement with IDKit, and in white papers if applicable). We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
(b) Client grants to IDKit (and the IDKit Partner, if applicable) a royalty-free, non-exclusive licence to use and display the Client Marks on their respective websites or in their respective marketing materials for the purposes of clause 11.2(a).
12 Privacy and security
(c) Each party must comply with the Privacy Act (as though it were an entity bound by the Privacy Act and notwithstanding the small business exception in the Privacy Act) and any other applicable Privacy Laws, in respect of any Personal Information.
(d) Without limiting clause 12(c), Client must, throughout the Term, obtain all necessary Consents, and provide all necessary notices, relevant to:
(i) its (and each Administrator's and User's) use of the Platform and Services, including those in relation to collection, use, disclosure, processing and storage of Personal Information of any individual whose Personal Information may be provided to IDKit, directly or indirectly, as contemplated by this Agreement; (ii) Client's disclosure of Personal Information and/or the results of any use of the Platform or Services directly to Client's customers; (iii) IDKit's disclosure, at Client's direction, of Personal Information and/or the results of any use of the Platform or Services to Client's customers; and (iv) IDKit's (and IDKit's third party suppliers') collection, use, disclosure, processing and storage of Personal Information in connection with this Agreement.
(e) Without limiting clause 12(c), Client acknowledges and agrees that IDKit may require the inclusion of certain language in Consents obtained from, and notices provided to, Users, to assist its own compliance with Law, and Client must comply with such requirements.
(f) Client acknowledges and agrees that IDKit may provide all or part(s) of the Services from any location worldwide.
(g) Subject to any legal requirements, if a party receives a request from an individual for access to or correction of Personal Information about the individual, where such information is in the possession or control of the other party, it must notify the other party and such other party must promptly undertake the correction or provide such access as required by Law.
(h) To the extent permitted by Law (including the Australian Consumer Law if applicable), the parties agree that IDKit makes no warranties as to the suitability of the Services or Platform with regards to Client's privacy obligations at Law or contract, and it is Client's sole responsibility to determine whether the Services or Platform is appropriate for Client.
13 Data breaches
13.1 Data Incidents
If a party (First Party) becomes aware of or suspects any loss of, or unauthorised access to, use or disclosure of, or breach of security in relation to, any data provided to the First Party by the other party in accordance with this Agreement (Data Incident), the First Party must promptly:
(a) notify the other party in writing; (b) investigate the Data Incident and provide the other party with detailed information about the incident; and (c) promptly take all reasonable steps to rectify or remedy such breach where possible.
13.2 Notification to regulator
If a Data Incident occurs and Client wishes to notify the relevant regulator and/or affected individuals, any correspondence or notification to be sent by Client to the relevant regulator (and affected individuals, if applicable) that names IDKit or refers to the Platform or Services, must, to the extent permitted by Law, be in a form approved by IDKit (or its Related Bodies Corporate) in advance.
14 Operating Environment
(a) Client acknowledges that, except to the extent otherwise provided in this Agreement, it is solely responsible for establishing, providing or procuring, maintaining and supporting any Third Party Licences and any operating environment, facilities, systems, networks, devices, equipment and telecommunications and internet connections necessary to use and obtain the benefit of the Platform (Operating Environment).
(b) Client must ensure that the Operating Environment has the necessary specifications, features and third party software required to ensure compatibility with relevant parts of the Platform, as may be notified by IDKit from time to time.
(c) Client acknowledges that the Services may be provided from a multi-tenanted cloud environment.
(d) Client acknowledges that the Platform and Services may incorporate Third Party Content including open source software and that IDKit is not responsible for the accuracy, quality, integrity or reliability of the same.
(e) To the extent permitted by Law (including the Australian Consumer Law, if applicable), IDKit does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Content, including open source software, and IDKit will have no responsibility or liability to Client or any other person arising from or in connection with any error, defect or inaccuracy in any Third Party Content.
(f) IDKit is not responsible for any User's ability to access the Platform or Services, including due to the functionality of the User's Operating Environment.
15 Storage capacity, backup and deletion of Client Materials
15.1 Storage capacity of Client Materials
The parties agree that IDKit may (acting reasonably) limit the amount of Client Materials that Client stores in the Platform. In the event that such a determination is made, IDKit will give Client at least 30 days' notice in writing of the need to reduce the amount of Client Materials stored in the Platform (which notice may be given by the IDKit Partner, if applicable).
__15.2 Backup of Client Materials __
The parties agree that IDKit will perform backups of the Platform and the data stored on the Platform at such times and at such intervals as are reasonable for the purposes of the Platform, but no less than daily.
15.3 Deletion of Client Materials
Without limiting clause 19, the parties agree that IDKit will provide for the deletion of Client Materials, including any backups, upon the written direction of a Client Administrator.