Terms of Service

These terms of service (“Terms”) govern the purchasing entity’s (“Customer”, "your" and “you”) access to and use of certain Services of Aply Limited (company number 7044021) (“APLYiD”, “we”, “our”, or “us”). The particular Service(s) which we will make available to you will be specified in the ordering document that is signed by you and us and which references these Terms (“Order Form”). Each Order Form is subject to, and governed by, these Terms.  Together, these Terms and the applicable Order Form constitutes the entire “Agreement”. The Agreement is entered into between APLYiD and the Customer with effect from the Effective Date stated in the Order Form. 

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1. Definitions and Interpretation

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1.1
In the Agreement, unless the context requires otherwise:

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Affiliate means any entity that controls, is controlled by, or is under common control with, a party;

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AML Legislation means any applicable anti-money laundering legislation, regulations and industry guidance, including the Australian Anti-Money Laundering and Countering Financing of Terrorism Act 2006 (Cth)  and associated rules and regulations, in each case as may be amended or replaced from time to time;

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APLYiD Marks means our name, logos and other trade marks that are displayed on the Services;

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Applicant means a person (whether a customer, prospective customer, or otherwise) whose identity you wish to verify using the SaaS Services;

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Applicant Data means any data (including Personal Information) collected by you from, or provided directly to us by, an Applicant for the purpose of verifying their identity via the SaaS Services;

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Authorised User means any Affiliate (only where permitted under clause 3.2), employee, officer or agent of yours who you authorise to access and use the SaaS Services or Documentation in accordance with the Agreement;

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Business Day means a day other than a Saturday, Sunday or public holiday in Sydney, Australia;

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Confidential Information means any information (in whatever form) about or belonging to a party that:

(a) is by its nature confidential;
(b) the other party knows or should know is confidential; or
(c) is expressly identified as confidential,

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and is disclosed to, or obtained by, the other party in connection with the Agreement;

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Customised Application means an onboarding web form, EIDV application or other Service provided by us that is customised to include Your Branding (and any other content specified by you), in accordance with clause 9.5;

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Database means the database of a Data Source that we use to retrieve data from, or confirm data with, for the purpose of providing the Services;

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Data Protection Legislation means all applicable laws and regulations relating to data protection and privacy in any jurisdiction in which our or your obligations are performed or data is being processed, stored or used in connection with the Agreement;

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Data Source means a supplier to us of data that is used for providing the Services; 

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Documentation means the documentation (if any) made available to you by us, which sets out a description of, and the user instructions for, the SaaS Services;

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Effective Date means (a) the date specified as such in the Order Form; or (b) if no date is specified in the Order Form, the date the Agreement is signed by both parties;

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EIDV means electronic identity verification;

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EIDV Report means the report that is generated and made available to you when you use the SaaS Services; 

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Fees means the fees payable by you for the Services, as set out in the Order Form or as otherwise agreed between the parties in writing;

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Go-Live Date means (a) the date specified as such in the Order Form; or (b) if no date is specified in the Order Form, the Effective Date;

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Good Industry Practice means exercising the skill, diligence and care expected of a skilled and experienced person in the same or similar circumstances;

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Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

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Initial Subscription Term means (a) the period specified as such in the Order Form; or (b) if no period is specified in the Order Form, 12 months from the Go-Live Date;

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Other Application means a software application owned or developed by you or a third party that interoperates with the SaaS Services;

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Permitted Purpose means to verify the identity of an Applicant, solely for your own internal use in a commercial capacity and to the extent necessary to: 

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(a) satisfy your identity verification or other obligations under applicable law; 

(b) prevent fraud as related to, or misuse of, your own goods and services; or

(c) improve the safety or security of your business, operations and services;

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Personal Information means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, including by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

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Privacy Policy means our privacy policy located at https://www.aplyid.com/privacy-policy; 

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Professional Services means the services (if any) identified as such and described in the Order Form;

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Renewal Term has the meaning given in clause 2.2;

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SaaS Services means the services, applications, tools (including Customised Applications) and data we make available to you on a software-as-a-service basis, as described in more detail in the Order Form;

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Services means any services we provide to you under the Agreement and includes the SaaS Services, Professional Services, Support Services and Third Party Services;

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Support Services means the services (if any) identified as such and described in the Order Form;

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Third Party Services has the meaning given in clause 15.1;

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Transaction means, for the purposes of calculating the Fees, a single request initiated via, or unit of, the SaaS Services (as may be further described in Schedule 1);

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Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect (a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) access to or the operation of any program or data, including the reliability of any program or data; or (c) the user experience, in each case including worms, trojan horses, viruses and other similar things or devices;

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Website means our website at www.aplyid.com, or any other URL address for our website that we notify you of;

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Your Branding means your name, trade mark registrations and applications and other marks and logos (if any) that you make available to us to incorporate into a Customised Application; 

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Your Data means any data (including Personal Information) provided to us by you or your Authorised Users for the purpose of using, or facilitating use of, the Services. Your Data includes Applicant Data. 

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1.2

In the Agreement, unless the context requires otherwise:

• (a) a reference to a statute includes all regulations under and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its terms;
• (b) the singular includes the plural and vice versa;
• (c) references to a “party” or “parties” are to the parties to the Agreement;
• (d) “person” includes a natural person and any entity whether or not incorporated; and
• (e) the words “includes” or “including” do not imply any limitation.

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1.3
If there is a conflict between any terms of the Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise):

• (a) first, these Terms;
• (b) second, the Order Form (except that if the Order Form expressly varies or overrides any specified provision of these Terms, that variation will apply in accordance with its terms and will not be considered a conflict);
• (c) third, any other terms of, or incorporated by reference into, the Agreement.

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2. Term

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2.1

The Agreement will commence on the Effective Date and will continue for the Initial Subscription Term unless terminated earlier in accordance with its terms.

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2.2

The Agreement will automatically renew for further periods equivalent to the Initial Subscription Term (each a “Renewal Term”) upon expiry of the Initial Subscription Term or relevant Renewal Term, unless either party gives written notice to the other party, no less than 60 days before the end of the Initial Subscription Term or relevant Renewal Term, to terminate the Agreement at the end of the Initial Subscription Term or relevant Renewal Term.

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3. Access to SaaS Services

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3.1

We grant you a non-exclusive, non-transferable right to access and use the SaaS Services and the relevant Documentation during the term of this Agreement solely for the Permitted Purpose.

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3.2
We may extend the licence in clause 3.1 to one or more of your Affiliates, only to the extent this is expressly agreed in the Order Form.

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3.3
Without limiting any of your other obligations under this Agreement:

• (a) you will be responsible for determining the level of access that each Authorised User has to the SaaS Services,      and you agree that we will not be responsible for any issue arising due to:
•       (i) any act or omission of any Authorised User; or
•       (ii) you incorrectly granting a level of access to an Authorised User;
• (b) you will ensure that each Authorised User complies with the terms of the Agreement; and
• (c) any act or omission of an Authorised User relating to the SaaS Services will be treated as your act or omission. Without limiting our other rights and remedies, we can terminate any authority or access you have granted to any Authorised User if we consider they have put you in breach of the Agreement.

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3.4

You acknowledge that we regularly upgrade and update the SaaS Services. We will provide you with reasonable notice of any such changes if we consider this is necessary. You agree to be responsible for the costs of implementing any upgrades required in your technology environment to ensure that you can access the upgraded or updated SaaS Services.

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3.5
You will:

• (a) create (via the Services) logins and passwords for your Authorised Users’ access and use of the SaaS Services and ensure those logins and passwords are kept confidential;
• (b) promptly disable any login account if you or we discover that any details have been disclosed or compromised, or if an Authorised User ceases to be employed by you or otherwise no longer requires access to the Services, and notify us of the disablement; and
• (c) allow us or a Data Source at any time on reasonable notice to audit your use of the SaaS Services to establish whether they are being used in accordance with the Agreement.

3.6

You will not access, store, distribute or transmit any Viruses, and we can, without liability and without limiting our other rights and remedies, disable your (and your Authorised Users’) access to the SaaS Services if you are in breach of this clause.

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3.7

You will not:

• (a) except as expressly permitted under the Agreement, or by any law which cannot be excluded by agreement between us:
•      (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or         distribute all or any part of the Services or Documentation; or
•      (ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part           of the SaaS Services;
• (b) access the Services or Documentation to build a product or service which competes with the Services;
• (c) use the Services or Documentation to provide the same services to third parties;
• (d) make the Services or Documentation available to any third party (other than to Authorised Users in accordance       with the Agreement);
• (e) undermine the integrity or security of the Services or the Website;
• (f) use the SaaS Services in a manner likely to cause excessive load or otherwise interfere with the delivery of the      SaaS Services to third parties;
• (g) obtain, or assist third parties in obtaining, access to the Services or Documentation other than as provided under      this clause 3; or
• (h) attempt to do any of the things specified in paragraphs (a) to (g) above.

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3.8

You will use all reasonable efforts to prevent any unauthorised access to, or use of, the Services or Documentation and promptly notify us of any such access or use

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4. Integration with Other Applications

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4.1

The SaaS Services may include functionality or features which use or integrate with Other Applications, as may be specified in the Order Form.  To use such functionality or features, you may need to obtain access to Other Applications from their providers, and to grant us access to your account(s) on those Other Applications.  We cannot guarantee the continued availability of Other Applications (or the functionality or features which utilise them) and we can stop providing them at any time without liability to you.

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4.2

You must:

• (a) comply (and ensure any Authorised Users comply) with the terms of use for any Other Applications; and
• (b) ensure we are authorised to access your account(s) on Other Applications where required in the Order Form or as       otherwise reasonably required by us to provide the SaaS Services.

4.3

Any use by you of Other Applications, and any exchange of data between you and the provider of any Other Application is a matter solely between you and the applicable provider and we do not have any liability for, or warrant or support, Other Applications or their providers.

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5. Professional Services and Support Services

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5.1

We will:

• (a) provide the Professional Services and Support Services using Good Industry Practice and appropriately qualified      personnel; and
• (b) use reasonable efforts to provide the Professional Services and Support Services within any timeframes agreed       between the parties.

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6. Data

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6.1

If you, or any Authorised User or Applicant, provide us with Personal Information, then our Privacy Policy applies. The Privacy Policy forms part of the Agreement.

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6.2

You agree that you have sole responsibility for: (a) the legality, reliability, integrity, accuracy and quality of Your Data and (b) how you obtain Your Data.

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6.3

Each of us will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable efforts to back-up Your Data. You agree that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use all reasonable efforts to restore such lost or damaged data from the latest back-up of Your Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party or your failure to comply with this clause 6.3.

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6.4

You agree, and will procure that your Authorised Users agree, that we can store, process and use Your Data for the purpose of:

• (a) performing our obligations under the Agreement, including to verify the identity of, or perform credit checks in      respect of, an Applicant (as applicable);
• (b) ensuring that you are complying with the terms of the Agreement;
• (c) solely on an aggregated or anonymous basis, enhancing or developing the SaaS Services,
       provided that we comply with the Privacy Policy and our confidentiality obligations under clause 10.

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6.5

We may share Your Data with third parties (including Data Sources and providers of Third Party Services) to perform services on our behalf. Some of these third parties may be located outside Australia.  We will ensure that they agree to use Personal Information only as required to perform their functions (and not for any other purpose) and in accordance with the Australian Privacy Principles, or that they are subject to a law or binding scheme that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which the Australian Privacy Principles protect the information, and to process the Personal Information in accordance with Data Protection Legislation.

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6.6

Except to the extent we have obtained direct authorisation from an Applicant to process their Personal Information, you are solely responsible for obtaining from Applicants all necessary consents with respect to Applicant Data.  Those consents must comply with all applicable Data Protection Legislation and be sufficient to authorise us to perform the Services in accordance with the Agreement. You warrant that you  will obtain all necessary consents from each Applicant prior to using the Services in relation to that Applicant.

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6.7

You must keep a record of all consents referred to in clause 6.6 above and, within 5 Business Days of a request by us, provide us with a copy of such consents.  You agree that we may share evidence of such consents with a Data Source

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6.8

Our rights under clauses 6.4, 6.5, 6.6 and 6.7 apply notwithstanding any other terms of, and survive termination or expiry of, the Agreement.

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6.9

We may from time to time require you to use specific consent wording for the purposes of clause 6.6 and withhold access to one or more Databases until we are satisfied that you are using such specific wording.

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6.10

If an Applicant does not consent to having their identity verified by us (or withdraws their prior consent), then we are not obligated to perform any Services in respect of that Applicant and you are solely responsible for providing an alternative means of verification for that Applicant.

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6.11

You agree that we can allow any Other Application and its provider to access Your Data as required for the interoperation or integration of that Other Application with the SaaS Services. We are not responsible for any disclosure, modification or loss of Your Data caused by any Other Application or its provider.

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6.12

You agree that:

• (a) access to certain Databases may require you to obtain separate prior approval by the relevant Data Source (“Approval”) and/or acceptance by you of the Data Source’s terms and conditions (“Data Source T&C”). You may be required to complete forms and/or provide information directly to a Data Source in order to obtain that Approval;
• (b) where available, and solely for the purpose of obtaining an Approval, you authorize us to apply to the relevant Data Source on your behalf for that Approval, and to take all steps necessary in connection with the application;  
• (c) you will take all reasonable steps required to obtain, and bear all costs associated with, any Approval and will be solely responsible for complying with the Data Source T&C;
• (d) either we, a Data Source or a Third Party Service may remove or suspend your access to certain Databases or Third Party Services from time to time, including where we, the Data Source or Third Party Service believe that the terms and conditions on which the Database(s) or Third Party Services have been made available (including the Data Source T&C and our agreements with the Data Source(s) or providers of Third Party Services) are, or are likely to be, violated, or where our agreement with the Data Source or provider of a Third Party Service is terminated;
• (e) notwithstanding anything to the contrary in the Agreement, to ensure compliance with our obligations under applicable law and under our agreements with Data Sources and providers of Third Party Services, we may share information and data concerning your use of the Services with Data Sources and providers of Third Party Services at their lawful request, and you will provide all reasonable cooperation in connection with such requests; and
• (f) you must have and maintain appropriate technical, physical and organisational measures and safeguards against unauthorized or unlawful access to or use of, or accidental loss, destruction or damage of, any data that you receive, or which is displayed, via the Services.

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7. Your Obligations

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7.1

You will:

• (a) make, and continue to make, your own assessment of the suitability, adequacy, compatibility and appropriateness of the Services for your own purposes;
• (b) have in place alternative means of verification in the event an Applicant does not consent to having their identity verified by us, or we are unable to verify their identity;
• (c) provide us with all necessary co-operation and access to any information, premises and technology environment to the extent required for us to provide the Services. You warrant that you are authorised to provide that access and information;
• (d) comply with all applicable laws (including all Data Protection Legislation in respect of the collection, use and disclosure of Personal Information included in Your Data) in relation to the use of the Services and your activities under the Agreement;
• (e) use the Services, Website and Documentation only in accordance with the terms of the Agreement;
• (f) ensure that your network and systems comply with any reasonable specifications provided by us from time to time;
• (g) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to ours (and we will not be liable for any problems, conditions, delays, delivery failures or any other loss or damage arising from your network connections or telecommunications links or caused by the internet);
• (h) promptly notify us of any defect in the Services or the Website and provide us with the opportunity to correct the malfunction. You agree that we may suspend access to or provision of the Services or the Website until a correction can be made; and
• (i) maintain, and make available to us within a reasonable timeframe at our request, all information and records necessary to demonstrate your compliance with the Agreement.

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8. Fees and Payment

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8.1

You will pay the Fees to us in accordance with this clause 8, except to the extent otherwise agreed by us in writing.

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8.2
Unless otherwise specified in Schedule 1, any fixed Fees will be payable in advance and all other Fees will be payable in arrears.

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8.3
On or about the first day of each month, we will issue a valid tax invoice to you for:

• (a) any fixed Fees due; and
• (b) any other Fees incurred in the previous month(s) and yet to be invoiced.

Unless otherwise specified by us, each invoice will be payable by the 20th of the month in which the invoice is sent. Payment details will be specified on the invoice.

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8.4

If you fail to pay any invoice then without affecting any of our other rights and remedies:

• (a) where the invoice is more than 60 days overdue, we may, without liability to you, disable access to the SaaS Services, or cease providing the Professional Services and Support Services, and be will be under no obligation to provide any Services to you while the invoice(s) concerned remain unpaid; and
• (b) we may charge you interest that will accrue on any due amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.

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8.5

All amounts referred to in the Agreement are stated in Australian Dollars and are exclusive of GST or other value added tax (if any).

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8.6
You are responsible for paying all taxes associated with your purchases under the Agreement (other than taxes assessed against us based on our income). If you are required by law to deduct or withhold taxes or charges from the amounts due to us under the Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.

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8.7
After the Initial Subscription Term, we may change the Fees at any time by giving you at least 30 days’ prior written notice, provided that we will not increase the Fees more than once in any Renewal Term. If you do not agree to the change in Fees you may terminate the Agreement by giving us at least 15 days’ prior written notice.

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9. Intellectual Property Rights

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9.1

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You agree that we or our licensors own all Intellectual Property Rights in the:

• (a) SaaS Services (including Customised Applications, but excluding Your Branding);
• (b) EIDV Reports;
• (c) Website;
• (d) Documentation; and
• (e) APLYiD Marks,

together with all modifications, enhancements and other developments (whether or not recommended or suggested by you). Except as expressly provided in the Agreement, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the SaaS Services, EIDV Reports, Website, Documentation or APLYiD marks.

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9.2

We grant you a non-exclusive, non-transferable right to download and use the EIDV Reports solely for your own use for the Permitted Purpose. You must not share or make available any EIDV Report to any third party except the Applicant to which the EIDV Report relates.  

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9.3
We confirm that we have all the rights in relation to the Services, Website and Documentation that are necessary to grant all the rights we purport to grant under the Agreement.

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9.4
We agree that you own, or are authorised to process, Your Data. You grant to us a non-exclusive right to use Your Data (including to provide Your Data to a Data Source for processing in accordance with the Agreement) to perform our obligations and exercise our rights under the Agreement.

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9.5

Where the SaaS Services include a Customised Application:

• (a) you will provide us as soon as possible with Your Branding and other content or material required for the Customised Application in the format we specify;
• (b) we will develop the Customised Application and agree the content of the Customised Application with you (subject to the terms of the Agreement);
• (c) you grant us a non-exclusive right for the term of the Agreement to use Your Branding and any other content or material you provide in relation to the Customised Application, for the purpose of us developing and providing you with the Customised Application and in accordance with any reasonable guidelines set by you from time to time; and
• (d) any other terms (including any further Fees) in relation to the Customised Application will be set out in the Order Form.

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9.6

You grant us a non-exclusive right to use Your Branding on the Website and our marketing materials to identify you as a customer of APLYiD in accordance with any reasonable guidelines set by you from time to time

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10. Confidentiality

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10.1

Each party (the “Recipient”) must:

• (a) keep strictly confidential any Confidential Information of the other party (the “Discloser”); and

• (b) only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under the Agreement.

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10.2

The obligations of confidentiality in clause 10.1 will not apply to information that:

• (a) was independently developed by the Recipient, or available to the Recipient from a third party with the right to disclose it;
• (b) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information;
• (c) the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser any assistance (at the Discloser’s cost) the Discloser reasonably requests in doing this; or
• (d) the Recipient discloses to its accounting, legal or technical services professionals for the purposes of them providing professional services to the Recipient, only if they have a need to know the information to provide those services and are subject to confidentiality obligations at least equivalent to those in this clause.

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10.3

Each party will on demand and, in any event, on termination of the Agreement, deliver to the other party all Confidential Information supplied by or obtained from the other party pursuant to the Agreement.

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10.4

Notwithstanding any other provisions of this clause 10, we can mention or refer to your name, and identify you as a customer of ours, in any publicity or marketing collateral (including any case studies) and you grant us a continuing right to use your name and logo for such purposes, including after termination of the Agreement.

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10.5

This clause 10 will survive termination of the Agreement.

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11. Warranties and Liability

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11.1

Each party warrants that it has the power and authority to enter into and perform its obligations under the Agreement.

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11.2

We warrant that the SaaS Services:

• (a) will function substantially as described in the Documentation; and
• (b) do not infringe the copyright of any third party.

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11.3

If we are in breach of either warranty in clause 11.2 above, we will, at our option, either:

• (a) modify the SaaS Services to conform to the Documentation or be non-infringing (as applicable); or
• (b) provide a workaround solution.

If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate the Agreement by giving written notice to the other party, in which case we will refund to you all Fees pre-paid to us for unused Services. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty in clause 11.2(a).

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11.4

We will not be liable for a breach of either warranty in clause 11.2 to the extent any non-conformance or infringement is caused by:

• (a) Your Data, or any instructions or materials you provide to us;
• (b) your use of the SaaS Services contrary to the Agreement, the Documentation or any other of our instructions; or
• (c) modification or alteration of the SaaS Services, or integration with Other Applications, by any party other than us or our authorised contractors or agents.

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11.5

Except as expressly set out in the Agreement, we do not warrant:

• (a) that your use of the Services or Website will be uninterrupted or error-free;
• (b) that the Services, Website or Documentation will meet your requirements or will always be available, either in their current form or at all;
• (c) the accuracy, correctness, reliability or completeness of any information, provided or obtained through use of the Services.

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11.6

You agree that:

• (a) you are solely responsible for ensuring the accuracy and correctness of Your Data;
• (b) you must satisfy yourself as to the adequacy, appropriateness and compatibility of the Services for your requirements, including any compliance obligations under AML Legislation, and you are solely responsible for complying with all of your obligations under applicable law, including AML Legislation;
• (c) you have not relied on any statements or representations that we have made as to the adequacy of the Services or the reliability or independence of any Database, other than as expressly recorded in the Agreement;
• (d) the Services only verify that the Applicant Data is consistent with the information held in the Databases specified in the Order Form or otherwise selected by you when using the Services;
• (e) we may rely on the provision of services by third parties (including data centre, hosting and outsourcing providers) in order to provide the SaaS Services (“Third Party Providers”) and the SaaS Services may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers; and
• (f) we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers.

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11.7

Except as expressly set out in the Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, including the Australian Competition and Consumer Act 2010 (Cth), the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), the Services, Website and Documentation are provided on an “as is” basis.

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11.8

You agree to pay us, on demand, the full amount of any costs, losses, expenses and damages we and our Affiliates incur:

• (a) in connection with any claim that you or Your Data infringes the rights (including the Intellectual Property Rights) of any third party;
• (b) resulting from your failure to obtain from Applicants all necessary consents with respect to their Personal Information as required under clause 6.6; or
• (c) in connection with any claim against us by a third party resulting from your, or any Authorised Users’, use of the Services (except to the extent any such claim is a direct result of our breach of the Agreement or our negligent or malicious act or omission).

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11.9

Except for: (i) your liability under clause 11.8; (ii) a breach by either party of its confidentiality obligations (which is subject to the separate limitation in clause 11.10 below); (iii) a party’s liability for fraud or willful misconduct or breach of any Non-excludable Rights; or (iv) an infringement by either party of the other’s Intellectual Property Rights:

• (a) neither party will be liable to the other party for loss of profits, loss of revenue, or any indirect, consequential or special loss or damage incurred by the other party as a result of anything done by the first party under the Agreement; and
• (b) our total liability arising out of all claims for loss or damage under the Agreement will not exceed in aggregate an amount equal to the Fees actually paid by you in the six months immediately prior to the first time you make a claim under the Agreement for any loss or damage.

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11.10

Each party’s total liability in respect of a breach by that party of its confidentiality obligations under the Agreement will not exceed in aggregate an amount equal to 5 times the Fees actually paid by you in the 12 months immediately prior to the first event giving rise to the breach.

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11.11

You agree that no Authorised User can make a claim in relation to the Agreement, provided that where any Authorised User incurs any loss or damage which, if incurred by you, would be recoverable from us, then you can make a claim in relation to such loss or damage on the Authorised User’s behalf.

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11.12

For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), our liability is limited, at our option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.

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12. Free Services

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12.1

If you register for a free trial on the Website, we will make some or all of the SaaS Services available to you on a trial basis and free of charge (“Free Services”) until the earlier of: (a) the end of the free trial period for which you registered to use the Free Services; and (b) the start date of any Services you have purchased under an executed Order Form. Free Services are provided on an as is basis, and, despite any other provision in these Terms, all liability, conditions, warranties and guarantees in relation to the Free Services (whether express or implied) are excluded by us to the maximum extent permitted by law.  Nothing in these Terms requires: (c) you, on termination of the Free Services, to acquire the right to access and use any Service on a paid basis; or (d) us, on termination of the Free Services, to provide you with access and use of any Service, in each case unless you purchase the right to access and use Services under an Order Form.  Except as set out in this clause 12.1, these Terms apply to your access and use of the Free Services.

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13. Termination

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13.1

Unless otherwise agreed in the Order Form:

• (a) you may terminate the Agreement by giving written notice to us no later than 30 days after the Go-Live Date, in which case: (i) if you are on a monthly pricing plan, you will not be entitled to a refund of the first month’s fixed Fees; (ii) if you are on an annual pricing plan, we will pay to you a pro-rated refund of any pre-paid fixed Fees, and (iii) we will invoice you for any other Fees incurred during the first month; and
• (b) either party may terminate the Agreement in accordance with clause 2.2.

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13.2

Either party can terminate the Agreement immediately at any time on notice to the other party if the other party:

• (a) is in material breach of the Agreement and such breach: (i) is not capable of remedy; or (ii) is capable of remedy  and is not remedied within 15 Business Days following written notice from the other party specifying the breach and requiring it to be remedied; or
• (b) goes into liquidation, has a receiver or statutory manager appointed in respect of any of its assets, becomes insolvent or makes any arrangement with its creditors; or
• (c) is subject to an Unavoidable Event that continues for a period of more than 30 days.

If we terminate the Agreement under this clause 13.2 or you terminate the Agreement under clause 13.1 you will not be entitled to any refund of the Fees and any Fees owed to us under the Agreement will become immediately due and payable.

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13.3

Either party can terminate the Agreement if any other agreement between the parties (the “Linked Agreement”) has been terminated in accordance with the terms of the Linked Agreement, and the termination of the Linked Agreement has a material adverse impact on either party’s ability to perform the Agreement. Except where the Linked Agreement is terminated for your breach, we will pay to you a pro-rated refund of any pre-paid fixed Fees.

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13.4

On termination or expiry of the Agreement for any reason:

• (a) all licences granted under the Agreement will immediately terminate (other than those expressly stated to survive termination) and you must cease using the SaaS Services and Documentation;
• (b) each party will return, and make no further use of all property and materials (and all copies of them) belonging to the other party; and
• (c) the accrued rights of the parties as at termination will not be affected or prejudiced.

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13.5

Termination of this Agreement will not affect the provisions of this Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated or not).

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14. Sub-contracting

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14.1

We can sub-contract any of our obligations under the Agreement without your consent.

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14.2

If we use a sub-contractor, we are not relieved of any of our liabilities or obligations under the Agreement.

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15. Third Party Services

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15.1

We may make available to you, or facilitate your purchase of, the services of a third party who has authorised us to sell or make available to you such services (“Third Party Services”).

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15.2

Where the Services include any Third Party Service(s), you agree:

• (a) that we do not provide or control the Third Party Services;
• (b) to enter into and be bound by any additional terms and conditions that govern your access to and use of the Third Party Service(s) that may be required by the provider of the Third Party Service(s);
• (c) you will be solely responsible for complying with your obligations under such additional terms and conditions; and
• (d) we will not be responsible for any delays, failures, or any other loss or damage arising out of or in connection with any Third Party Services.

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16. Disputes

16.1

If a dispute occurs relating to the Agreement (“Dispute”), a party may not commence any legal proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.

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16.2
A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

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16.3
On receipt of that notice, the parties will use all reasonable efforts to resolve the Dispute by discussion, consultation, negotiation or other informal means.

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16.4
If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 16.2 (or within any further period agreed in writing by the parties), either party may commence court proceedings.

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17. Unavoidable Events

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17.1

Neither party will have any liability under the Agreement for any delay or failure to perform its obligations if the delay or failure is caused by any event beyond that party’s reasonable control and the delay or failure could not have been prevented by following Good Industry Practice (“Unavoidable Event”). If an Unavoidable Event happens, the affected party must promptly give written notice of the facts and circumstances of the Unavoidable Event to the other party and use its best efforts to mitigate any effects.

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18. General

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18.1

The Agreement constitutes the entire agreement between you and us about its subject matter and The Agreement constitutes the entire agreement between you and us about its subject matter and replaces any previous understandings or agreements about that subject matter.  The parties acknowledge that the Agreement comprises only the applicable Order Form and these Terms (including any other document expressly incorporated by reference in the applicable Order Form or these Terms). Each party acknowledges that in entering into this Agreement it has not relied on any oral or written statements, collateral or other warranties, assurances, undertakings, or representations that were made by or on behalf of the other party in relation to the subject matter of this Agreement at any time before its signature (together, "Pre-Contractual Statements"), other than those that are set out expressly in this Agreement. To the extent permitted by law, each party waives all rights and remedies which might otherwise be available to it in relation to Pre-Contractual Statements. For the avoidance of doubt, any additional, conflicting or inconsistent terms (whether contained in requests for proposal, sales presentations, purchase orders or any other document) are expressly excluded,  and neither party will be entitled to rely on, or have any remedies in respect of, any statement or representation that is not set out in the Agreement.

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18.2
The Agreement may not be amended or varied except by agreement in writing signed by the parties.
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18.3

The Agreement will not be deemed to create a partnership, joint venture or (other than where expressly agreed otherwise) agency relationship of any kind between the parties.

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18.4
If any part or provision of the Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement will continue to operate.

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18.5
A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.

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18.6
A party can exercise a right, power or remedy under the Agreement at its discretion, and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party under the Agreement does not prevent a further exercise of that (or any other) right, power or remedy.

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18.7
You will not assign, transfer or otherwise deal with the Agreement, or any of your rights or obligations under the Agreement, whether in whole or in part, without our prior written consent.

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18.8

Notices and other communications under the Agreement are to be given in writing by email, personal delivery or by post and must be:

• (a) sent to the correct email or address specified in writing by each party for that purpose from time to time. The designated email address for notices for each party is set out on the Order Form; and
• (b) marked for the attention of the designated person or office holder (if any).

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18.9

A notice or communication in relation to the Agreement will be deemed to be received:

• (a) in the case of a letter, on the tenth Business Day after posting; or
• (b) in the case of email, on the Business Day on which the email is successfully delivered; and
• (c) in the case of personal delivery, when delivered.

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18.10

The Agreement may be executed in any number of counterparts (including any scanned PDF counterpart), each of which will be deemed an original, but all of which together will constitute the same instrument.  No counterpart will be effective until each party has executed at least one counterpart.
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18.11

The Agreement (including any dispute or claim relating to non-contractual obligations) will be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia. If you wish to bring any claim or other action against us in connection with the Agreement then you must bring that claim or other action against us in New South Wales.

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Terms of Service

These terms of service (“Terms”) govern the purchasing entity’s (“Customer”, "your" and “you”) access to and use of certain Services of Aply UK Limited (company number 13510349) (“APLYiD”, “we”, “our”, or “us”). The particular Service(s) which we will make available to you will be specified in the ordering document that is signed by you and us and which references these Terms (“Order Form”). Each Order Form is subject to, and governed by, these Terms.  Together, these Terms and the applicable Order Form constitutes the entire “Agreement”. The Agreement is entered into between APLYiD and the Customer with effect from the Effective Date stated in the Order Form.

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1. Definitions and Interpretation

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1.1

In the Agreement, unless the context requires otherwise:

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Affiliate means any entity that controls, is controlled by, or is under common control with, a party;

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AML Legislation means any applicable anti-money laundering legislation, regulations and industry guidance, including the Proceeds of Crime Act 2002, Terrorism Act 2000 and the Money Laundering, Terrorist Financing and Transfer of Funds 2017 and associated regulations , in each case as may be amended or replaced from time to time;

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APLYiD Marks means our name, logos and other trade marks that are displayed on the Services;

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Applicant means a person (whether a customer, prospective customer, or otherwise) whose identity you wish to verify using the SaaS Services;

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Applicant Data means any data (including Personal Information) collected by you from, or provided directly to us by, an Applicant for the purpose of verifying their identity via the SaaS Services;

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Authorised User means any Affiliate (only where permitted under clause 3.2), employee, officer or agent of yours who you authorise to access and use the SaaS Services or Documentation in accordance with the Agreement;

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Business Day means a day other than a Saturday, Sunday or public holiday in the United Kingdom;

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Confidential Information means any information (in whatever form) about or belonging to a party that: 

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(a) is by its nature confidential;
(b) the other party knows or should know is confidential; or
(c) is expressly identified as confidential,

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and is disclosed to, or obtained by, the other party in connection with the Agreement;

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Customised Application means an onboarding web form, EIDV application or other Service provided by us that is customised to include Your Branding (and any other content specified by you), in accordance with clause 9.5;

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Database means the database of a Data Source that we use to retrieve data from, or confirm data with, for the purpose of providing the Services;

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Data Processing Addendum means any data processing addendum agreed between the parties for the purposes of the Agreement;

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Data Protection Legislation means all applicable laws and regulations relating to data protection and privacy in any jurisdiction in which our or your obligations are performed or data is being processed, stored or used in connection with the Agreement, including the GDPR and the UK GDPR in particular;

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Data Source means a supplier to us of data that is used for providing the Services; 

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Documentation means the documentation (if any) made available to you by us, which sets out a description of, and the user instructions for, the SaaS Services;

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Effective Date means (a) the date specified as such in the Order Form; or (b) if no date is specified in the Order Form, the date the Agreement is signed by both parties;

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EIDV means electronic identity verification;

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EIDV Report means the report that is generated and made available to you when you use the SaaS Services; 

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Fees means the fees payable by you for the Services, as set out in the Order Form or as otherwise agreed between the parties in writing;

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Go-Live Date means (a) the date specified as such in the Order Form; or (b) if no date is specified in the Order Form, the Effective Date;

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Good Industry Practice means exercising the skill, diligence and care expected of a skilled and experienced person in the same or similar circumstances;

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Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

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Initial Subscription Term means (a) the period specified as such in the Order Form; or (b) if no period is specified in the Order Form, 12 months from the Go-Live Date;

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Other Application means a software application owned or developed by you or a third party that interoperates with the SaaS Services;

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Permitted Purpose means to verify the identity of an Applicant, solely for your own internal use in a commercial capacity and to the extent necessary to: 

(a) satisfy your identity verification or other obligations under applicable law; 

(b) prevent fraud as related to, or misuse of, your own goods and services; or

(c) improve the safety or security of your business, operations and services;

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Personal Information means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, including by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Information also includes personal data as defined in the General Data Protection Regulation (EU) 2016/679, hereinafter referred to as the “GDPR”;

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Privacy Policy means our privacy policy located at https://www.aplyid.com/privacy-policy; 

Professional Services means the services (if any) identified as such and described in the Order Form;

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Renewal Term has the meaning given in clause 2.2;

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SaaS Services means the services, applications, tools (including Customised Applications) and data we make available to you on a software-as-a-service basis, as described in more detail in the Order Form;

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Services means any services we provide to you under the Agreement and includes the SaaS Services, Professional Services, Support Services and Third Party Services;

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Support Services means the services (if any) identified as such and described in the Order Form;

Third Party Services has the meaning given in clause 15.1;

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Transaction means, for the purposes of calculating the Fees, a single request initiated via, or unit of, the SaaS Services (as may be further described in Schedule 1);

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UK GDPR means the UK Data Protection Act 2018, the EU General Data Protection Regulation 2016/679, as amended by Schedule 1 of the Data Protection, Privacy and Electronic Communications (Amendments, etc.) (EU Exit) Regulations 2019;

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Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect (a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) access to or the operation of any program or data, including the reliability of any program or data; or (c) the user experience, in each case including worms, trojan horses, viruses and other similar things or devices;

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Website means our website at www.aplyid.com, or any other URL address for our website that we notify you of;

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Your Branding means your name, trade mark registrations and applications and other marks and logos (if any) that you make available to us to incorporate into a Customised Application; 

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Your Data means any data (including Personal Information) provided to us by you or your Authorised Users for the purpose of using, or facilitating use of, the Services. Your Data includes Applicant Data. 

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1.2

In the Agreement, unless the context requires otherwise:

• (a) a reference to a statute includes all regulations under and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its terms;
• (b) the singular includes the plural and vice versa;
• (c) references to a “party” or “parties” are to the parties to the Agreement;
• (d) “person” includes a natural person and any entity whether or not incorporated; and
• (e) the words “includes” or “including” do not imply any limitation.

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1.3
If there is a conflict between any terms of the Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise):

• (a) first, these Terms;
• (b) second, the Order Form (except that if the Order Form expressly varies or overrides any specified provision of these Terms, that variation will apply in accordance with its terms and will not be considered a conflict);
• (c) third, any other terms of, or incorporated by reference into, the Agreement.

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2. Term

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2.1

The Agreement will commence on the Effective Date and will continue for the Initial Subscription Term unless terminated earlier in accordance with its terms.

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2.2

The Agreement will automatically renew for further periods equivalent to the Initial Subscription Term (eachThe Agreement will automatically renew for further periods equivalent to the Initial Subscription Term (each a “Renewal Term”) upon expiry of the Initial Subscription Term or relevant Renewal Term, unless either party gives written notice to the other party, no less than 60 days before the end of the Initial Subscription Term or relevant Renewal Term, to terminate the Agreement at the end of the Initial Subscription Term or relevant Renewal Term.

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3. Access to SaaS Services

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3.1

We grant you a non-exclusive, non-transferable right to access and use the SaaS Services and the relevant Documentation during the term of this Agreement solely for the Permitted Purpose.

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3.2
We may extend the licence in clause 3.1 to one or more of your Affiliates, only to the extent this is expressly agreed in the Order Form.

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3.3
Without limiting any of your other obligations under this Agreement:

• (a) you will be responsible for determining the level of access that each Authorised User has to the SaaS Services,      and you agree that we will not be responsible for any issue arising due to:
•       (i) any act or omission of any Authorised User; or
•       (ii) you incorrectly granting a level of access to an Authorised User;
• (b) you will ensure that each Authorised User complies with the terms of the Agreement; and
• (c) any act or omission of an Authorised User relating to the SaaS Services will be treated as your act or omission. Without limiting our other rights and remedies, we can terminate any authority or access you have granted to any Authorised User if we consider they have put you in breach of the Agreement.

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3.4

You acknowledge that we regularly upgrade and update the SaaS Services. We will provide you with reasonable notice of any such changes if we consider this is necessary. You agree to be responsible for the costs of implementing any upgrades required in your technology environment to ensure that you can access the upgraded or updated SaaS Services.

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3.5
You will:

• (a) create (via the Services) logins and passwords for your Authorised Users’ access and use of the SaaS Services and ensure those logins and passwords are kept confidential;
• (b) promptly disable any login account if you or we discover that any details have been disclosed or compromised, or if an Authorised User ceases to be employed by you or otherwise no longer requires access to the Services, and notify us of the disablement; and
• (c) allow us or a Data Source at any time on reasonable notice to audit your use of the SaaS Services to establish whether they are being used in accordance with the Agreement.

3.6

You will not access, store, distribute or transmit any Viruses, and we can, without liability and without limiting our other rights and remedies, disable your (and your Authorised Users’) access to the SaaS Services if you are in breach of this clause.

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3.7

You will not:

• (a) except as expressly permitted under the Agreement, or by any law which cannot be excluded by agreement between us:
•      (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or         distribute all or any part of the Services or Documentation; or
•      (ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part           of the SaaS Services;
• (b) access the Services or Documentation to build a product or service which competes with the Services;
• (c) use the Services or Documentation to provide the same services to third parties;
• (d) make the Services or Documentation available to any third party (other than to Authorised Users in accordance       with the Agreement);
• (e) undermine the integrity or security of the Services or the Website;
• (f) use the SaaS Services in a manner likely to cause excessive load or otherwise interfere with the delivery of the      SaaS Services to third parties;
• (g) obtain, or assist third parties in obtaining, access to the Services or Documentation other than as provided under      this clause 3; or
• (h) attempt to do any of the things specified in paragraphs (a) to (g) above.

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3.8

You will use all reasonable efforts to prevent any unauthorised access to, or use of, the Services or Documentation and promptly notify us of any such access or use.

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4. Integration with Other Applications

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4.1

The SaaS Services may include functionality or features which use or integrate with Other Applications, as may be specified in the Order Form.  To use such functionality or features, you may need to obtain access to Other Applications from their providers, and to grant us access to your account(s) on those Other Applications.  We cannot guarantee the continued availability of Other Applications (or the functionality or features which utilise them) and we can stop providing them at any time without liability to you.

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4.2

You must:

• (a) comply (and ensure any Authorised Users comply) with the terms of use for any Other Applications; and
• (b) ensure we are authorised to access your account(s) on Other Applications where required in the Order Form or as       otherwise reasonably required by us to provide the SaaS Services.

4.3

Any use by you of Other Applications, and any exchange of data between you and the provider of any Other Application is a matter solely between you and the applicable provider and we do not have any liability for, or warrant or support, Other Applications or their providers.

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5. Professional Services and Support Services

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5.1

We will:

• (a) provide the Professional Services and Support Services using Good Industry Practice and appropriately qualified      personnel; and
• (b) use reasonable efforts to provide the Professional Services and Support Services within any timeframes agreed       between the parties.

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6. Data

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6.1

If you, or any Authorised User or Applicant, provide us with Personal Information, then our Privacy Policy applies. The Privacy Policy forms part of the Agreement.

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6.2

You agree that you have sole responsibility for: (a) the legality, reliability, integrity, accuracy and quality of Your Data and (b) how you obtain Your Data.

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6.3

Each of us will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable efforts to back-up Your Data. You agree that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use all reasonable efforts to restore such lost or damaged data from the latest back-up of Your Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party or your failure to comply with this clause 6.3.

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6.4

You agree, and will procure that your Authorised Users agree, that we can store, process and use Your Data for the purpose of:

• (a) performing our obligations under the Agreement, including to verify the identity of, or perform credit checks in      respect of, an Applicant (as applicable);
• (b) ensuring that you are complying with the terms of the Agreement;
• (c) solely on an aggregated or anonymous basis, enhancing or developing the SaaS Services,
       provided that we comply with the Privacy Policy and our confidentiality obligations under clause 10.

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6.5

We may share Your Data with third parties (including Data Sources and providers of Third Party Services) to perform services on our behalf. Some of these third parties may be located outside the UK.  We will ensure that they agree to use Personal Information only as required to perform their functions (and not for any other purpose), and to process the Personal Information in accordance with Data Protection Legislation, in particular the GDPR and/or UK GDPR.

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6.6

Except to the extent we have obtained direct authorisation from an Applicant to process their Personal Information, you are solely responsible for obtaining from Applicants all necessary consents with respect to Applicant Data.  Those consents must comply with all applicable Data Protection Legislation and be sufficient to authorise us to perform the Services in accordance with the Agreement. You warrant that you  will obtain all necessary consents from each Applicant prior to using the Services in relation to that Applicant.

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6.7

You must keep a record of all consents referred to in clause 6.6 above and, within 5 Business Days of a request by us, provide us with a copy of such consents.  You agree that we may share evidence of such consents with a Data Source

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6.8

Our rights under clauses 6.4, 6.5, 6.6 and 6.7 apply notwithstanding any other terms of, and survive termination or expiry of, the Agreement.

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6.9

We may from time to time require you to use specific consent wording for the purposes of clause 6.6 and withhold access to one or more Databases until we are satisfied that you are using such specific wording.

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6.10

If an Applicant does not consent to having their identity verified by us (or withdraws their prior consent), then we are not obligated to perform any Services in respect of that Applicant and you are solely responsible for providing an alternative means of verification for that Applicant.

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6.11

You agree that we can allow any Other Application and its provider to access Your Data as required for the interoperation or integration of that Other Application with the SaaS Services. We are not responsible for any disclosure, modification or loss of Your Data caused by any Other Application or its provider.

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6.12

You agree that:

• (a) access to certain Databases may require you to obtain separate prior approval by the relevant Data Source (“Approval”) and/or acceptance by you of the Data Source’s terms and conditions (“Data Source T&C”). You may be required to complete forms and/or provide information directly to a Data Source in order to obtain that Approval;
• (b) where available, and solely for the purpose of obtaining an Approval, you authorize us to apply to the relevant Data Source on your behalf for that Approval, and to take all steps necessary in connection with the application;  
• (c) you will take all reasonable steps required to obtain, and bear all costs associated with, any Approval and will be solely responsible for complying with the Data Source T&C;
• (d) either we, a Data Source or a Third Party Service may remove or suspend your access to certain Databases or Third Party Services from time to time, including where we, the Data Source or Third Party Service believe that the terms and conditions on which the Database(s) or Third Party Services have been made available (including the Data Source T&C and our agreements with the Data Source(s) or providers of Third Party Services) are, or are likely to be, violated, or where our agreement with the Data Source or provider of a Third Party Service is terminated;
• (e) notwithstanding anything to the contrary in the Agreement, to ensure compliance with our obligations under applicable law and under our agreements with Data Sources and providers of Third Party Services, we may share information and data concerning your use of the Services with Data Sources and providers of Third Party Services at their lawful request, and you will provide all reasonable cooperation in connection with such requests; and
• (f) you must have and maintain appropriate technical, physical and organisational measures and safeguards against unauthorized or unlawful access to or use of, or accidental loss, destruction or damage of, any data that you receive, or which is displayed, via the Services.

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7. Your Obligations

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7.1

You will:

• (a) make, and continue to make, your own assessment of the suitability, adequacy, compatibility and appropriateness of the Services for your own purposes;
• (b) have in place alternative means of verification in the event an Applicant does not consent to having their identity verified by us, or we are unable to verify their identity;
• (c) provide us with all necessary co-operation and access to any information, premises and technology environment to the extent required for us to provide the Services. You warrant that you are authorised to provide that access and information;
• (d) comply with all applicable laws (including all Data Protection Legislation in respect of the collection, use and disclosure of Personal Information included in Your Data) in relation to the use of the Services and your activities under the Agreement;
• (e) use the Services, Website and Documentation only in accordance with the terms of the Agreement;
• (f) ensure that your network and systems comply with any reasonable specifications provided by us from time to time;
• (g) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to ours (and we will not be liable for any problems, conditions, delays, delivery failures or any other loss or damage arising from your network connections or telecommunications links or caused by the internet);
• (h) promptly notify us of any defect in the Services or the Website and provide us with the opportunity to correct the malfunction. You agree that we may suspend access to or provision of the Services or the Website until a correction can be made; and
• (i) maintain, and make available to us within a reasonable timeframe at our request, all information and records necessary to demonstrate your compliance with the Agreement.

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8. Fees and Payment

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8.1

You will pay the Fees to us in accordance with this clause 8, except to the extent otherwise agreed by us in writing.

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8.2
Unless otherwise specified in Schedule 1, any fixed Fees will be payable in advance and all other Fees will be payable in arrears.

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8.3
On or about the first day of each month, we will issue a valid tax invoice to you for:

• (a) any fixed Fees due; and
• (b) any other Fees incurred in the previous month(s) and yet to be invoiced.

Unless otherwise specified by us, each invoice will be payable by the 20th of the month in which the invoice is sent. Payment details will be specified on the invoice.

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8.4

If you fail to pay any invoice then without affecting any of our other rights and remedies:

• (a) where the invoice is more than 60 days overdue, we may, without liability to you, disable access to the SaaS Services, or cease providing the Professional Services and Support Services, and be will be under no obligation to provide any Services to you while the invoice(s) concerned remain unpaid; and
• (b) we may charge you interest that will accrue on any due amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.

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8.5

All amounts referred to in the Agreement are stated in Great British Pounds and are exclusive of GST or other value added tax (if any).

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8.6
You are responsible for paying all taxes associated with your purchases under the Agreement (other than taxes assessed against us based on our income). If you are required by law to deduct or withhold taxes or charges from the amounts due to us under the Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.

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8.7
After the Initial Subscription Term, we may change the Fees at any time by giving you at least 30 days’ prior written notice, provided that we will not increase the Fees more than once in any Renewal Term. If you do not agree to the change in Fees you may terminate the Agreement by giving us at least 15 days’ prior written notice.

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9. Intellectual Property Rights

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9.1

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You agree that we or our licensors own all Intellectual Property Rights in the:

• (a) SaaS Services (including Customised Applications, but excluding Your Branding);
• (b) EIDV Reports;
• (c) Website;
• (d) Documentation; and
• (e) APLYiD Marks,

together with all modifications, enhancements and other developments (whether or not recommended or suggested by you). Except as expressly provided in the Agreement, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the SaaS Services, EIDV Reports, Website, Documentation or APLYiD marks.

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9.2

We grant you a non-exclusive, non-transferable right to download and use the EIDV Reports solely for your own use for the Permitted Purpose. You must not share or make available any EIDV Report to any third party except the Applicant to which the EIDV Report relates.  

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9.3
We confirm that we have all the rights in relation to the Services, Website and Documentation that are necessary to grant all the rights we purport to grant under the Agreement.

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9.4
We agree that you own, or are authorised to process, Your Data. You grant to us a non-exclusive right to use Your Data (including to provide Your Data to a Data Source for processing in accordance with the Agreement) to perform our obligations and exercise our rights under the Agreement.

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9.5

Where the SaaS Services include a Customised Application:

• (a) you will provide us as soon as possible with Your Branding and other content or material required for the Customised Application in the format we specify;
• (b) we will develop the Customised Application and agree the content of the Customised Application with you (subject to the terms of the Agreement);
• (c) you grant us a non-exclusive right for the term of the Agreement to use Your Branding and any other content or material you provide in relation to the Customised Application, for the purpose of us developing and providing you with the Customised Application and in accordance with any reasonable guidelines set by you from time to time; and
• (d) any other terms (including any further Fees) in relation to the Customised Application will be set out in the Order Form.

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9.6

You grant us a non-exclusive right to use Your Branding on the Website and our marketing materials to identify you as a customer of APLYiD in accordance with any reasonable guidelines set by you from time to time

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10. Confidentiality

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10.1

Each party (the “Recipient”) must:

• (a) keep strictly confidential any Confidential Information of the other party (the “Discloser”); and

• (b) only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under the Agreement.

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10.2

The obligations of confidentiality in clause 10.1 will not apply to information that:

• (a) was independently developed by the Recipient, or available to the Recipient from a third party with the right to disclose it;
• (b) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information;
• (c) the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser any assistance (at the Discloser’s cost) the Discloser reasonably requests in doing this; or
• (d) the Recipient discloses to its accounting, legal or technical services professionals for the purposes of them providing professional services to the Recipient, only if they have a need to know the information to provide those services and are subject to confidentiality obligations at least equivalent to those in this clause.

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10.3

Each party will on demand and, in any event, on termination of the Agreement, deliver to the other party all Confidential Information supplied by or obtained from the other party pursuant to the Agreement.

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10.4

Notwithstanding any other provisions of this clause 10, we can mention or refer to your name, and identify you as a customer of ours, in any publicity or marketing collateral (including any case studies) and you grant us a continuing right to use your name and logo for such purposes, including after termination of the Agreement.

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10.5

This clause 10 will survive termination of the Agreement.

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11. Warranties and Liability

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11.1

Each party warrants that it has the power and authority to enter into and perform its obligations under the Agreement.

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11.2

We warrant that the SaaS Services:

• (a) will function substantially as described in the Documentation; and
• (b) do not infringe the copyright of any third party.

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11.3

If we are in breach of either warranty in clause 11.2 above, we will, at our option, either:

• (a) modify the SaaS Services to conform to the Documentation or be non-infringing (as applicable); or
• (b) provide a workaround solution.

If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate the Agreement by giving written notice to the other party, in which case we will refund to you all Fees pre-paid to us for unused Services. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty in clause 11.2(a).

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11.4

We will not be liable for a breach of either warranty in clause 11.2 to the extent any non-conformance or infringement is caused by:

• (a) Your Data, or any instructions or materials you provide to us;
• (b) your use of the SaaS Services contrary to the Agreement, the Documentation or any other of our instructions; or
• (c) modification or alteration of the SaaS Services, or integration with Other Applications, by any party other than us or our authorised contractors or agents.

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11.5

Except as expressly set out in the Agreement, we do not warrant:

• (a) that your use of the Services or Website will be uninterrupted or error-free;
• (b) that the Services, Website or Documentation will meet your requirements or will always be available, either in their current form or at all;
• (c) the accuracy, correctness, reliability or completeness of any information, provided or obtained through use of the Services.

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11.6

You agree that:

• (a) you are solely responsible for ensuring the accuracy and correctness of Your Data;
• (b) you must satisfy yourself as to the adequacy, appropriateness and compatibility of the Services for your requirements, including any compliance obligations under AML Legislation, and you are solely responsible for complying with all of your obligations under applicable law, including AML Legislation;
• (c) you have not relied on any statements or representations that we have made as to the adequacy of the Services or the reliability or independence of any Database, other than as expressly recorded in the Agreement;
• (d) the Services only verify that the Applicant Data is consistent with the information held in the Databases specified in the Order Form or otherwise selected by you when using the Services;
• (e) we may rely on the provision of services by third parties (including data centre, hosting and outsourcing providers) in order to provide the SaaS Services (“Third Party Providers”) and the SaaS Services may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers; and
• (f) we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers.

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11.7

Except as expressly set out in the Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, including the Australian Competition and Consumer Act 2010 (Cth), the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), the Services, Website and Documentation are provided on an “as is” basis.

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11.8

You agree to pay us, on demand, the full amount of any costs, losses, expenses and damages we and our Affiliates incur:

• (a) in connection with any claim that you or Your Data infringes the rights (including the Intellectual Property Rights) of any third party;
• (b) resulting from your failure to obtain from Applicants all necessary consents with respect to their Personal Information as required under clause 6.6; or
• (c) in connection with any claim against us by a third party resulting from your, or any Authorised Users’, use of the Services (except to the extent any such claim is a direct result of our breach of the Agreement or our negligent or malicious act or omission).

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11.9

Except for: (i) your liability under clause 11.8; (ii) a breach by either party of its confidentiality obligations (which is subject to the separate limitation in clause 11.10 below); (iii) a party’s liability for fraud or willful misconduct or breach of any Non-excludable Rights; or (iv) an infringement by either party of the other’s Intellectual Property Rights:

• (a) neither party will be liable to the other party for loss of profits, loss of revenue, or any indirect, consequential or special loss or damage incurred by the other party as a result of anything done by the first party under the Agreement; and
• (b) our total liability arising out of all claims for loss or damage under the Agreement will not exceed in aggregate an amount equal to the Fees actually paid by you in the six months immediately prior to the first time you make a claim under the Agreement for any loss or damage.

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11.10

Each party’s total liability in respect of a breach by that party of its confidentiality obligations under the Agreement will not exceed in aggregate an amount equal to 5 times the Fees actually paid by you in the 12 months immediately prior to the first event giving rise to the breach.

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11.11

You agree that no Authorised User can make a claim in relation to the Agreement, provided that where any Authorised User incurs any loss or damage which, if incurred by you, would be recoverable from us, then you can make a claim in relation to such loss or damage on the Authorised User’s behalf.

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11.12

For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), our liability is limited, at our option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.

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12. Free Services

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12.1

If you register for a free trial on the Website, we will make some or all of the SaaS Services available to you on a trial basis and free of charge (“Free Services”) until the earlier of: (a) the end of the free trial period for which you registered to use the Free Services; and (b) the start date of any Services you have purchased under an executed Order Form. Free Services are provided on an as is basis, and, despite any other provision in these Terms, all liability, conditions, warranties and guarantees in relation to the Free Services (whether express or implied) are excluded by us to the maximum extent permitted by law.  Nothing in these Terms requires: (c) you, on termination of the Free Services, to acquire the right to access and use any Service on a paid basis; or (d) us, on termination of the Free Services, to provide you with access and use of any Service, in each case unless you purchase the right to access and use Services under an Order Form.  Except as set out in this clause 12.1, these Terms apply to your access and use of the Free Services.

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13. Termination

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13.1

Unless otherwise agreed in the Order Form:

• (a) you may terminate the Agreement by giving written notice to us no later than 30 days after the Go-Live Date, in which case: (i) if you are on a monthly pricing plan, you will not be entitled to a refund of the first month’s fixed Fees; (ii) if you are on an annual pricing plan, we will pay to you a pro-rated refund of any pre-paid fixed Fees, and (iii) we will invoice you for any other Fees incurred during the first month; and
• (b) either party may terminate the Agreement in accordance with clause 2.2.

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13.2

Either party can terminate the Agreement immediately at any time on notice to the other party if the other party:

• (a) is in material breach of the Agreement and such breach: (i) is not capable of remedy; or (ii) is capable of remedy  and is not remedied within 15 Business Days following written notice from the other party specifying the breach and requiring it to be remedied; or
• (b) goes into liquidation, has a receiver or statutory manager appointed in respect of any of its assets, becomes insolvent or makes any arrangement with its creditors; or
• (c) is subject to an Unavoidable Event that continues for a period of more than 30 days.

If we terminate the Agreement under this clause 13.2 or you terminate the Agreement under clause 13.1 you will not be entitled to any refund of the Fees and any Fees owed to us under the Agreement will become immediately due and payable.

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13.3

Either party can terminate the Agreement if any other agreement between the parties (the “Linked Agreement”) has been terminated in accordance with the terms of the Linked Agreement, and the termination of the Linked Agreement has a material adverse impact on either party’s ability to perform the Agreement. Except where the Linked Agreement is terminated for your breach, we will pay to you a pro-rated refund of any pre-paid fixed Fees.

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13.4

On termination or expiry of the Agreement for any reason:

• (a) all licences granted under the Agreement will immediately terminate (other than those expressly stated to survive termination) and you must cease using the SaaS Services and Documentation;
• (b) each party will return, and make no further use of all property and materials (and all copies of them) belonging to the other party; and
• (c) the accrued rights of the parties as at termination will not be affected or prejudiced.

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13.5

Termination of this Agreement will not affect the provisions of this Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated or not).

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14. Sub-contracting

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14.1

We can sub-contract any of our obligations under the Agreement without your consent.

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14.2

If we use a sub-contractor, we are not relieved of any of our liabilities or obligations under the Agreement.

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15. Third Party Services

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15.1

We may make available to you, or facilitate your purchase of, the services of a third party who has authorised us to sell or make available to you such services (“Third Party Services”).

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15.2

Where the Services include any Third Party Service(s), you agree:

• (a) that we do not provide or control the Third Party Services;
• (b) to enter into and be bound by any additional terms and conditions that govern your access to and use of the Third Party Service(s) that may be required by the provider of the Third Party Service(s);
• (c) you will be solely responsible for complying with your obligations under such additional terms and conditions; and
• (d) we will not be responsible for any delays, failures, or any other loss or damage arising out of or in connection with any Third Party Services.

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16. Disputes

16.1

If a dispute occurs relating to the Agreement (“Dispute”), a party may not commence any legal proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.

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16.2
A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

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16.3
On receipt of that notice, the parties will use all reasonable efforts to resolve the Dispute by discussion, consultation, negotiation or other informal means.

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16.4
If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 16.2 (or within any further period agreed in writing by the parties), either party may commence court proceedings.

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17. Unavoidable Events

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17.1

Neither party will have any liability under the Agreement for any delay or failure to perform its obligations if the delay or failure is caused by any event beyond that party’s reasonable control and the delay or failure could not have been prevented by following Good Industry Practice (“Unavoidable Event”). If an Unavoidable Event happens, the affected party must promptly give written notice of the facts and circumstances of the Unavoidable Event to the other party and use its best efforts to mitigate any effects.

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18. General

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18.1

The Agreement constitutes the entire agreement between you and us about its subject matter and The Agreement constitutes the entire agreement between you and us about its subject matter and replaces any previous understandings or agreements about that subject matter.  The parties acknowledge that the Agreement comprises only the applicable Order Form and these Terms (including any other document expressly incorporated by reference in the applicable Order Form or these Terms). Each party acknowledges that in entering into this Agreement it has not relied on any oral or written statements, collateral or other warranties, assurances, undertakings, or representations that were made by or on behalf of the other party in relation to the subject matter of this Agreement at any time before its signature (together, "Pre-Contractual Statements"), other than those that are set out expressly in this Agreement. To the extent permitted by law, each party waives all rights and remedies which might otherwise be available to it in relation to Pre-Contractual Statements. For the avoidance of doubt, any additional, conflicting or inconsistent terms (whether contained in requests for proposal, sales presentations, purchase orders or any other document) are expressly excluded,  and neither party will be entitled to rely on, or have any remedies in respect of, any statement or representation that is not set out in the Agreement.

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18.2
The Agreement may not be amended or varied except by agreement in writing signed by the parties.
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18.3

The Agreement will not be deemed to create a partnership, joint venture or (other than where expressly agreed otherwise) agency relationship of any kind between the parties.

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18.4
If any part or provision of the Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement will continue to operate.

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18.5
A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.

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18.6
A party can exercise a right, power or remedy under the Agreement at its discretion, and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party under the Agreement does not prevent a further exercise of that (or any other) right, power or remedy.

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18.7
You will not assign, transfer or otherwise deal with the Agreement, or any of your rights or obligations under the Agreement, whether in whole or in part, without our prior written consent.

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18.8

Notices and other communications under the Agreement are to be given in writing by email, personal delivery or by post and must be:

• (a) sent to the correct email or address specified in writing by each party for that purpose from time to time. The designated email address for notices for each party is set out on the Order Form; and
• (b) marked for the attention of the designated person or office holder (if any).

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18.9

A notice or communication in relation to the Agreement will be deemed to be received:

• (a) in the case of a letter, on the tenth Business Day after posting; or
• (b) in the case of email, on the Business Day on which the email is successfully delivered; and
• (c) in the case of personal delivery, when delivered.

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18.10

The Agreement may be executed in any number of counterparts (including any scanned PDF counterpart), each of which will be deemed an original, but all of which together will constitute the same instrument.  No counterpart will be effective until each party has executed at least one counterpart.
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18.11

The Agreement may be executed in any number of counterparts (including any scanned PDF counterpart), each of which will be deemed an original, but all of which together will constitute the same instrument.  No counterpart will be effective until each party has executed at least one counterpart.
The Agreement (including any dispute or claim relating to non-contractual obligations) will be governed by and interpreted in accordance with the laws of England. If you wish to bring any claim or other action against us in connection with the Agreement then you must bring that claim or other action against us in the courts of England and Wales.

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