a. Annature provides and otherwise facilitates identity verification services to third party clients who may request that such services are provided to Requested Recipients (Services). These Services may include, but are not limited to, independent verification of the Collected Information with relevant entities using Annature’s subcontractors.
b. These terms and conditions (Terms) apply to any Services that Annature provides to you at the request of a Client. By accepting the Services, the Requested Recipient confirms it has read, understood and agree to these Terms.
c. In these Terms, Annature, we or us means Annature Pty Ltd ACN 642 595 015 and their Personnel and you or Requested Recipient means the person(s) using the Services from time to time.
2. Annature's obligations
a. Annature agrees to perform the Services:
- with due care, skill and diligence in a timely manner; and
- in accordance with all applicable laws and regulations relating to the performance of the Services.
b. Annature must maintain, at its cost, any licences, accreditations, certifications or registrations required by law to perform the Services.
You acknowledge and agree that:
- the scope of the Services is limited to reviewing and verifying your identity using the Collected Information;
- Annature is not otherwise responsible in any way whatsoever for any advice, services or products supplied to you by the Client; and
- Annature may vary the scope of the Services from time to time. Any additional or varied services provided by Annature will be governed by these Terms.
3. Your obligations
You agree to:
- provide us with the Collected Information;
- cooperate with us and act reasonably in connection with the Services; and
- comply with these Terms and all applicable laws, regulations, rules and other codes of conduct.
3.2 Accuracy of Information
You acknowledge and agree that:
- the Collected Information is true, accurate and relevant in all respects;
- you irrevocably and unconditionally consent to our collection of the Collected Information and use of such Collected Information as reasonably necessary to provide the Services;
- we may provide the Collected Information to our Personnel or the Client in connection with the Services;
- we will implement and maintain security measures with respect to the Collected Information in accordance with Good Industry Practice; and
- to the extent such information is materially inaccurate, misleading or incomplete to such an extent that, in our opinion, it requires a change to the Services or the fees then we may, at our election, revise or amend the Scope of Services.
You must not, and must not permit any third party to, access or use the Services or the Platform:
- to develop, construct or operate products or services in competition with the Services or the Platform; or
- where you or such third party is a direct competitor of Annature or operates products or services which are in direct competition with Annature
4. Intellectual Property Rights
a. The Intellectual Property Rights in the Services and the Platform are, and shall remain the property of, Annature. Annature reserves the right to grant a licence to use the Services and the Platform to any third party.
b. You must do all things that Annature reasonably requires to perfect its right, title and interest in and to the Intellectual Property Rights in the Services and/or the Platform.
c. You shall use reasonable endeavours to prevent any infringement of Annature’s Intellectual Property Rights in the Services and/or the Platform and shall promptly report to Annature any such infringement that comes to its attention.
Annature grants you a revocable, non-exclusive, non-transferable and royalty-free right to use the Platform to the extent necessary to obtain the full benefit of the Services.
4.3 Collected Information
a. As between the parties, all Intellectual Property Rights in the Collected Information remain your property, and nothing in these Terms shall be construed as giving us or the Client any rights to such Intellectual Property Rights.
b. You grant us and our subcontractors an irrevocable, royalty free and transferable licence to access and use all Intellectual Property Rights in the Collected Information:
- for the purposes of providing the Services from time to time;
- for Annature’s internal purposes;
- for storage purposes; and
- on an anonymised and de-identified basis for the purpose of analysing the Collected Information and/or improving our services and product offerings.
4.4 Your warranty and indemnity
a. You warrant that:
- you hold any necessary licence of or consents relating to all Intellectual Property Rights in the Collected Information; and
- in utilising any Collected Information, Annature will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
b. You indemnify Annature from and against any liability arising out of any claim by a third party (including the Client) that the Collected Information violates or infringes any Intellectual Property Rights owned by a third party.
4.5 Annature's warranty and indemnity
a. Annature warrants that:
- it owns, or holds any necessary license of, all Intellectual Property Rights in the Services and the Platform; and
- in utilising the Services and the Platform, you will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
b. Annature indemnifies you from and against any liability arising out of any claim by a third party that it and the Services or the Platform violates or infringes any Intellectual Property Rights owned by a third party.
4.6 Restrictions on use
You acknowledge and agree that you will:
- promptly report to Annature any errors, defects or malfunctions in relation to the Services or the Platform;
- not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services or the Platform;
- not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or the Platform or create a derivative work from the Services or the Platform by any means;
- or not purport to grant to a third party any right to access or use our Services or the Platform except as Annature permits in writing.
5.1 Automatic termination
These Terms (except those expressed or intended to survive termination) will automatically terminate following completion of the Services by Annature.
5.2 Termination for cause
Either party may at any time terminate these Terms with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party repeatedly breaches any term of these Terms in such a manner as to reasonably justify the opinion that their conduct is inconsistent with them having the intention or ability to give effect to these Terms; or
- the other party suffers an Insolvency Event.
5.3 Termination by Annature
Annature may terminate these Terms immediately at any time without cause by providing written notice to you.
5.4 Obligations on termination or expiry
On termination or expiry:
- Annature will cease to provide the Services to the Client;
- the Client will pay or otherwise authorise payment of all amounts owing on amend to Annature;
- and each party will, on request of the other party, return to the other party or destroy all Confidential Information, provided that a party may retain any Confidential Information that is archived or otherwise backed-up in the ordinary course of its business and the obligations in clause 6 will continue to apply to that Confidential Information until such time as it is returned or destroyed.
a. Clauses 5, 6.2, 7 to 9 and 11 to 13 survive the expiry or earlier termination of these Terms.
b. Termination of these Terms will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination
a. Each party agrees to, and shall ensure each of their Personnel:
- hold in strict confidence all Confidential Information of the other party;
- use the Confidential Information solely to perform or to exercise their rights under these Terms;
- not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
- use their best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.
b. The obligations in clause 8 do not apply:
- where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms;
- to the extent necessary to enable disclosure required by law;
- or to any disclosure agreed in writing between the parties.
7. Limited warranty and exclusion of liability
7.1 Limitation of Liability
a. This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their Personnel) to each other in respect of: and
- any breach of these Terms;
- any use made of the Services; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
b. As far as the law permits and unless otherwise specified in these Terms:
- all liability to a party for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the grossly negligent act or omission of a party, is excluded;
- you shall be solely responsible, as against Annature, for any opinions, recommendations, or other conclusions made or actions taken by you or any other third party based (wholly or in part) on the results obtained from your use of the Services;
- Annature shall have no liability for any loss, destruction, unauthorised access or use or other damage arising from or relating to the Collected Information;
- Annature shall have no liability with respect to any Collected Information that the Client downloads or otherwise accesses outside of the Platform;
- Annature shall have no liability for any damage caused by errors or omissions in any information or instructions, including without limitation the Collected Information, that you or the Client provides to it in connection with the Services; and
- all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms.
Each party must mitigate any loss they suffer because of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.
7.3 Maximum liability
To the extent permitted by law, Annature’s total liability under or in connection with the provision of the Services is, at the option of Annature:
- reprovision of the Services; and
- refund of any amount paid by you or on your behalf for receipt of the Services.
7.4 Consequential Loss
Notwithstanding clause 9.3 and to the extent permitted by law, neither party, nor their Personnel, shall be liable to the other party for any Consequential Loss
7.5 Australian Consumer Law
If the Australian Consumer Law applies to the supply of goods or services under these Terms, Annature acknowledges and agrees that its services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to you will apply:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us;
- and to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
b. Without prejudice to the generality of clause 8(a), you agree and warrant that you have all necessary and appropriate consents and notices in place to enable lawful transfer to Annature of any personal data or information, including without limitation in connection with the Collection Information, for the duration and purposes of these Terms so that Annature may lawfully use, process and transfer the personal data in accordance with these Terms.
c. Annature shall notify you immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect you and shall respond without delay to all queries and requests for information from you about any security incident, whether discovered by Annature or by you.
9. Force Majeure
a. Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to these Terms if such delay is due to a Force Majeure Event.
b. If a Force Majeure Event continues for a period of 60 consecutive days, then either party may terminate the Services affected by the Force Majeure Event by providing written notice to the other party.
10. Dispute Resolution
a. Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to these Terms (Dispute), unless the party starting the proceedings has complied with this clause.
b. A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).
c. Following the Dispute Notice being given, a representative of both parties with authority to negotiate and settle the Dispute must endeavour in good faith to resolve the Dispute within 14 days.
d. If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:
- if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of Queensland or the nominee of the President to nominate a mediator (which nomination the parties must accept);
- if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;
- if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;
- the parties will be jointly responsible for the fees of the mediation, and each party is to bear their own costs in relation to the mediation;
- the mediation will be held in Brisbane, Queensland;
- the parties may be legally represented at the mediation; and
- the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.
e. Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.
Where a variation to these Terms would:
- have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect, provided that if you do not agree to the variation, you may terminate these Terms without penalty by providing us with written notice prior to the date that the variation will take effect. We will give you an additional notice 3 days before the expiration of that period; or
- the parties may be legally represented at the mediation; and
- not have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect.
11.2 Entire agreement
These Terms supersedes all previous agreements about its subject matter. These Terms embodies the entire agreement between the parties.
11.3 No waiver
a. The failure of either party at any time to enforce any of the terms or provisions of these Terms or to exercise any right under these Terms does not constitute a waiver of any such right or affect the party's privilege to enforce that right.
b. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
c. A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
These Terms does not create a relationship of employment, trust, agency, partnership, power of attorney, or of joint venture between you and Annature.
11.5 Governing law and jurisdiction
Queensland law governs these Terms. Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts.
a. A clause or part of a clause of these Terms that is illegal or unenforceable may be severed from hese Terms and the remaining clauses or parts of the clause of these Terms continue in force.
b. If any provision of these Terms is deemed to be or is adjudicated to be unlawful or unenforceable, such provision is to be severed from these Terms and all other remaining provisions remain in force.
11.7 Assignment and subcontracting
a. You must not assign or otherwise deal with, in whole or in part, any of your rights and obligations under these Terms without the prior written consent of Annature.
b. Annature may assign, novate or otherwise transfer, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of you. You shall execute all documents reasonably required to give effect to this clause.
c. Annature may subcontract, in whole or in part, any of its rights and obligations under these Terms without the prior written consent of you. You acknowledge and agree that any such subcontractors may also subcontract, in whole or in part, any of their rights and obligations, without the prior written consent of you.
11.8 Further assurances
Each party must do all things reasonably necessary to give effect to these Terms and the transactions contemplated by it.
11.9 No merger
The rights and obligations of the parties under these Terms do not merge on completion of any transaction contemplated by these Terms.
Each party bears its own costs in relation to the preparation and signing of these Terms.
a. A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail, or sent by email to that person's address as set out in these Terms.
b. A notice, consent or communication is given and received:
- if it is hand delivered, on the day it is given;
- if it is sent by post, three Business Days after posting (if within Australia) or seven Business Days after posting (if outside Australia);
- and if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a Business Day, or the next Business Day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.
12. Defined terms and interpretation
12.1 Defined terms
In these Terms:
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
Client means the third party client who has engaged Annature to provide the Services to you, as notified to you by Annature from time to time.
Collected Information means any information relating to you and your identity and any other information necessary for Annature to perform the Services in a timely manner, including without limitation any requested identification documents.
Confidential Information means any information:
- relating to the business and affairs of a party;
- relating to the Requested Recipient, clients, employees, sub-suppliers or other persons doing business with a party;
- relating to the terms and existence of these Terms;
- relating to the Intellectual Property Rights of a party;
- which is by its nature confidential;
- which is designated as confidential by a party; or
- which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, marketing, financial and Requested Recipient information, forecasts, and strategies and any other commercially valuable information of a party
Consequential Loss means any consequential, special, indirect or incidental loss including without limitation loss of profit, loss of revenue, business interruption, loss of business, loss of opportunity, loss of reputation or loss in connection with breach of third party contracts or arrangements.
Good Industry Practice means practices followed when work is undertaken in accordance with all of the following:
- in a sound and workmanlike manner;
- with due care and skill;
- to the standard expected of an experienced and competent supplier of similar goods or services; and
- in accordance with all applicable laws.
GST means good and services tax.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes but is not limited to any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Personnel means a party’s directors, officers, employees, agents, contractors and subcontractors as the context permits.
Platform means the website, app or other platform that Annature uses in connection with the Services.
Privacy Legislation means:
- the Privacy Act 1988 (Cth) (Privacy Act) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
- the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act; and
- all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.
Service Request means the order submitted by the Client through the Platform for the provision of the Services to you.
Services has the meaning given to that term in clause 1.
Term means the term commencing on acceptance by you of these Terms or the Services and continuing until the Services are provided by Annature.
In these Terms:
- A reference to a party to these Terms or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns.
- A reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced.
- A reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- If any day on or by which a person must do something under these Terms is not a Business Day, then the person must do it on or by the next Business Day.
- A reference to '$' or 'dollar' is to Australian currency.