These General Terms shall apply to all use of the Service. Additional Terms may also apply depending on the specific Services purchased from Brontech. These Additional Terms are attached to this Agreement as appendices and shall form part of the Agreement where selected.
1. DEFINITIONS AND INTERPRETATION
1.1. In these General Terms the following definitions shall apply:
'Additional Terms' means the special terms and conditions relating to particular aspects of the Service as set out in the appendices to this Agreement which will apply if the Client has selected that aspect of the Service on the Order Form.
'Agreement' means the Additional Terms, these General Terms, and the relevant Order Form, which in the case of conflict rank in the order of precedence set out above.
'Business Day' means Monday to Friday (excluding public and bank holidays in Australia).
'Charges' means the charges set out in the Account Page of the bronID Identity Verification Portal.
'Client' means the organisation, firm, company or public authority that created an account with the bronID Identity Verification Portal.
'Client Information' means data and any other materials provided or otherwise made available to Brontech by or on behalf of the Client. This may include Personal Data on individuals such as the Client's employees and customers.
'Confidential Information' means any information relating to the business of the disclosing Party which is not publicly available including, but not limited to, (i) Client Information, information regarding the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing Party;
(ii) any information, findings, data or analysis derived from Confidential Information including the Output Material; (iii) the existence and terms of this Agreement; and (iv) any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing Party.
'Data Subject' means a living individual about whom a Data Controller holds Personal Data. For the purposes of this agreement, this may include an individual whose details are provided to Brontech by the Client as part of the Client Information.
'Event of Force Majeure' means any one or more acts, events, omissions or accidents beyond the reasonable control of a Party, including but not limited to: strikes, lock-outs or other industrial disputes (other than a Party's own); failure of a utility service, or transport network or information technology or telecommunications service; act of God (including without limitation fire, flood, earthquake, storm or other natural disaster); war, threat of war, riot, civil commotion or terrorist attack; malicious damage (including without limitation the acts of hackers); epidemic; compliance with any law or governmental order, rule, regulation or direction; and/or default, non-performance or late performance of suppliers or sub- contractors.
'Brontech' means Brontech Pty Ltd of Level 2 125 York Street, Sydney CBD 2000 NSW, ABN: 16613400623.
'Group Company' means in relation to a Party, that Party, any subsidiary or holding company from time to time of the Party and any subsidiary from time to time of a holding company of that Party, as defined by Corporations Act 2001, as amended from time to time.
'Helpdesk' means the helpdesk facility provided by Brontech to handle enquiries and administration for the Service.
'Intellectual Property Rights' means (i) patents, rights to inventions, rights in designs, trademarks and trade names, copyright and related rights, rights in goodwill, database rights and know-how, whether registered or not; (ii) all other intellectual property rights or forms of protection and similar or equivalent rights anywhere in the world (whether registered or not) which currently exist or are recognised in the future; and (iii) all applications, extensions and renewals to any such rights.
'Order Form' means the order that was made through the bronID Identity Verification Portal. This could a one of identity verification or a batch identity verification.
'Output Material' means all information provided to a Client by Brontech including the results of any enquiry or search, reports, certificates or management information relating to the Client's use of the Service.
'Party' means a party to this Agreement and 'Parties' shall be construed accordingly.
'Permitted User' means anyone who has been given access to the Service by the Client in accordance with the terms of this Agreement.
'Personal Data' means data which relates to a living individual who can be identified (i) from that data, or (ii) from that data and other information which is in the possession of, or is likely to come into the possession of, the Data Controller and includes any expression of opinion about the individual and any indication of the intentions of the Data Controller or any other person in respect of the individual.
'Prepayments' means the prepayments of the Charges to be made by the Client as indicated on the Order Form.
'Privacy and Data Protection Requirements' the The Privacy Act 1988 (Privacy Act) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by The Office of the Australian Information Commissioner (OAIC) or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
'Professional Services' means the professional services as indicated on the Order Form and provided in accordance with the terms of Schedule 1.
'Service' means the bronID service, the Standard Support Services and the Professional Services as detailed in the Order Form together with any other ancillary services provided by Brontech to the Client pursuant to this Agreement.
'Sign Up Date' means the date the Client created an account with the bronID Identity Verification Portal.
'Standard Support Services' means the standard support services as indicated on the Order Form.
'System Administrator' means the individual(s) named as such on the Order Form or their replacement(s) as notified to Brontech by the Client who will be familiar with the use of the Service and be the first point of contact for all Permitted Users of the Service.
'User Profile' means the specific configuration of the Service created for the Client as detailed on the Order Form.
1.2. The headings in this Agreement do not affect its interpretation.
1.3. References to clauses, sections and appendices are to clauses, sections and appendices of this Agreement.
1.4. Words in the singular include the plural and vice versa.
1.5. A reference to 'writing' or 'written' does not include electronic mail or facsimiles.
2. TERM OF THE AGREEMENT
2.1. This Agreement will start on the Sign Up Date and will continue for the until terminated in accordance with clause 11 of these General Terms.
3. PROVISION OF THE SERVICE
3.1. Brontech will provide the Client with the Service detailed in the Order Form in accordance with the terms set out in this Agreement.
3.2. Brontech will use reasonable endeavours to provide the Service in accordance with any timetable agreed with the Client. However, the Client acknowledges and accepts that any dates given by Brontech are estimates only and that delivery of the Service will be dependent upon the Client's timely cooperation with Brontech as well as other factors outside of Brontech's reasonable control.
3.3. The Client acknowledges and accepts that occasionally Brontech, in providing the Service, may be required to:
(a) change the technical specification of the Service for operational reasons, however, Brontech will ensure that any change to the technical specification does not materially reduce or detrimentally impact the performance of the Service;
(b) give the Client instructions which it reasonably believes are necessary for reasons of health, safety or the quality of any Service provided by Brontech and the Client shall comply with such instructions; and
(c) suspend the Service for operational reasons such as repair, maintenance or improvement or because of an emergency, in which case Brontech will give the Client as much on-line, written or oral notice as possible and shall ensure that the Service is restored as soon as possible following suspension.
3.4. The Client shall be responsible for:
(a) ensuring that it has a minimum of one System Administrator who is familiar with the use of the Service and can act as the first point of contact for all Permitted Users of the Service;
(b) informing Brontech of any changes to the Client's System Administrator's contact details without undue delay;
(c) providing the telecommunications and network services and correctly configured hardware and other equipment needed to connect to the Service;
(d) the configuration and management of access to the Service including configuration of the Client's network, firewall, DNS, routers, personal computers and User Profile; and
(e) obtaining Brontech's prior written consent to any integration of the Service into a website or call centre application which the Client may wish to undertake; and
(f) any work required for any integration approved by Brontech.
3.5. The Client must inform Brontech, without undue delay, of any changes to the information which the Client supplied within the Order Form.
4. USE OF THE SERVICE
4.2. The Client must ensure that any software, equipment and materials which are used with the Service:
(a) are connected and used in accordance with any instructions and security procedures specified by Brontech or other relevant third party licensor;
(b) are technically compatible with the Service and meet the minimum technical specifications detailed on the Order Form.
4.3. The Client shall only access the Service as permitted by Brontech and shall not attempt at any time to circumvent system security or access the source software or compiled code.
4.4. The Service is provided solely for the Client's own internal use. The Client must not resell or attempt to resell the Service (or any part or facility of it, including the Output Material) to any third party without first entering into an appropriate agreement signed by an authorised representative of Brontech.
4.5. The Client must not use the Service for the purposes of verifying the identity of Data Subjects where the Client does not have the relevant permission or consent from the Data Subject in accordance with the Privacy and Data Protection Requirements.
4.6. The Service is protected by Intellectual Property Rights. The Client must not copy, store, adapt, modify, transmit or distribute the Service except to Permitted Users or permit anyone else to do the same.
4.7. The Client shall be responsible for the creation, maintenance and design of all Client Information.
4.8. The Client warrants that it shall comply with all apply legislation, instructions and guidelines issued by regulatory authorities, relevant licences and any other codes of practice which apply to the Client and its use of the Service including those which relate to the provision of Client Information.
4.9. The Client is responsible for the acts and omissions of all Permitted Users of the Service and is liable for any failure by a Permitted User to perform or observe the terms and conditions of this Agreement including without limitation to the provisions set out in the Additional Terms and any instructions issued under clauses 3.3(b) and 4.2.
4.10. If the Client uses the Service in contravention of this clause 4 then Brontech shall be entitled to treat the contravention as a material breach of this Agreement which cannot be remedied for the purposes of paragraph 11.3(b).
5.1. The Client is responsible for the security and proper use of all user identities ('User IDs') and passwords used in connection with the Service (including changing passwords on a regular basis).
5.2. The Client shall take all necessary steps to ensure that User IDs are kept confidential, secure, are used properly and are not disclosed to any unauthorised parties. For the avoidance of doubt, the Client will be responsible for all Charges for the Service where its User ID has been used to access the Service.
5.3. The Client must immediately inform Brontech if there is any reason to believe that a User ID or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
5.4. Brontech reserves the right to suspend User ID and password access to the Service if at any time Brontech reasonably considers that there is or is likely to be a breach of security or misuse of the Service and/or to require the Client to change any or all of the passwords used by the Client in connection with the Service.
6. CHARGES AND PAYMENT
6.1. The Client shall pay all Charges due under this Agreement before using the Service. The Client should pay the invoice by using the payment method in his bronID Account Order Form.
6.2. If specified in the Order Form that the Client is to pay the Charges in advance or by direct debit, then such payments shall be made on or before the date specified in the Order Form.
6.3. Charges will be invoiced and paid in Australian Dollars unless otherwise agreed in the Order Form. Where applicable, GST will be added to the Charges.
6.4. If the Client fails to pay any part of the Charges when due, it shall be liable to pay Brontech interest on such part of the Charges from the due date for payment at an annual rate of 10%.
6.5. In the event of late payment, if the Client undergoes a restructure or re-organisation, or if the Client has been affected by one of the circumstances listed in clause 11.3, on receipt of Brontech's reasonable request, the Client shall pay a deposit or provide a guarantee as security for payment of future invoices for the Service.
6.7. If the Client breaches any term of this Agreement and the Client has received preferential pricing or payment terms under this Agreement, any preferential pricing or payment terms shall cease to apply immediately upon Brontech's notice to the Client. At Brontech's sole discretion, if the Client's breach is capable of remedy, Brontech may specify in the notice a time period within which the Client must remedy the breach to avoid the cessation of the preferential pricing or payment terms. In the event that any preferential pricing or payment terms cease to apply pursuant to this clause 6.7, Brontech's standard pricing and payment terms will apply in respect of the Client's continued use of the Service and the Client shall account to Brontech immediately upon written demand for any shortfall in the Charges paid by the Client.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. The Client acknowledges that all Intellectual Property Rights in the Service and the Output Materials belong and shall continue to belong to Brontech and/or Brontech's third party suppliers. Brontech grants a non- transferable licence to the Client to use the Service and Output Material in accordance with the terms of this Agreement.
7.2. Brontech acknowledges all Intellectual Property Rights in the Client Information belong and shall continue to belong to the Client. The Client grants to Brontech a non-transferable, non-exclusive, royalty free licence to use, disclose and copy the Customer Information to enable Brontech to provide the Service and carry out its obligations under this Agreement.
7.3. The Client warrants that:
(a) it will not use or exploit the Intellectual Property Rights in the Service or Output Material or permit others to use or exploit the Intellectual Property Rights in the Service or Output Material outside of the terms of the licence granted to the Client in clause7.1 this Agreement;
(b) all computers and/or IT systems which Brontech are required to use, access or modify as part of the Professional Services are legally licensed to the Client or are the Client's property and that such activities by Brontech will not infringe the rights of any third party;
(c) the use of the Service in conjunction with any software, equipment, materials and/or services (which are not supplied by Brontech) will not infringe the rights of any third party;
(d) Brontech's compliance with any designs or specifications provided by the Client, or on the Client's behalf will not infringe the rights of any third party.
8. CONFIDENTIALITY AND PUBLICITY
8.1. Each Party undertakes that it shall not at any time disclose the other Party's Confidential Information to any third party except as permitted by clauses 8.3, 8.4 and 8.5 or to the extent necessary for the proper performance of this Agreement.
8.2. Each Party warrants to the other that it shall apply the same security measures and degree of care to Confidential Information disclosed to it as it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own Confidential Information.
8.4. Each Party may disclose the other Party's Confidential Information:
(a) to its or its Group Companies' employees, officers, representatives, advisers and third party suppliers who need to know such information to perform its obligations under this Agreement. Each Party shall ensure that its and its Group Companies' employees, officers, representatives, advisers and third party suppliers to whom it discloses the other Party's confidential information comply with this clause 8; and
(b) as may be required by law, court order or any governmental or regulatory authority;
8.5. For the purposes of clause 8.1, Confidential Information shall not include information which:
(a) is or becomes generally available to the public (other than through a breach of this Agreement);
(b) is lawfully in the possession of the other Party before the disclosure under this Agreement took place;
(c) is obtained from a third party who is free to disclose it; or
(d) the Parties agree in writing is not confidential or may be disclosed.
8.6. Notwithstanding the terms of this clause 8, once the Order Form has been signed by both Parties, Brontech may issue a press release (or if Brontech wishes, another form of public communication) relating to the Parties' entry into this Agreement
9. DATA PROTECTION
9.1. Both Parties warrant that they will comply with their respective obligations under the Privacy and Data Protection Requirements.
9.2. Where Brontech processes Personal Data on the Client's behalf, Brontech will:
(a) act on and comply with the Client's instructions with regard to the processing of its Personal Data; and
(b) take reasonable steps to ensure the reliability of all Brontech's employees who have access to the Client's Personal Data; and
(c) take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and
(d) where an individual exercises his or her right under any laws in respect of Personal Data processed by Brontech on the Client's behalf or where the Client is required to deal or comply with any assessment, enquiry, notice or investigation by any regulatory or legal body, Brontech will co-operate with the Client's reasonable requests to enable it to comply with its legal obligations which arise as a result of the exercise of such rights or as a result of such assessment, enquiry, notice or investigation
9.3. The Client acknowledges and agrees that it is responsible for:
(a) obtaining the informed consent (permission) of any Data Subjects whose Personal Data is provided to Brontech as part of the Client Information prior to use of the Service.
(b) creating and maintaining an audit trail of all informed consents received from each individual Data Subject.
9.4. The Client shall ensure that the consent provided by a Data Subject with the Privacy and Data Protection Requirements and is sufficient to allow Brontech to access, use, store, transfer and process the Data Subject's Personal Data in accordance with the terms of this Agreement.
9.5. The consent wording must also include reference to the fact that, where appropriate and relevant for the provision of the Service, Personal Data will be transferred outside of Australia in order to perform identity verification or checking and that those countries outside of Australia may not have protections in place for personal data as extensive as those within Australia.
9.6. Brontech relies on the Client for direction as to the extent to which it is entitled to process any Personal Data provided to it by the Client. Consequently, Brontech will not be liable for any claim brought by an individual (whose Personal Data is provided to Brontech by the Client) arising from the processing of Personal Data undertaken by Brontech in accordance with instructions given to it by the Client or in the provision of the Service in accordance with the terms of this Agreement.
10.1. Neither Party excludes or limits its liability for death or personal injury resulting from its negligence, fraudulent misrepresentation or any other type of liability that cannot by law be excluded or limited.
10.2. Neither Party excludes or limits its liability in respect of clauses 7 (Intellectual Property Rights), 8 (Confidentiality) and 9 (Data Protection) of this Agreement.
10.3. Subject to clauses 10.1 and 10.2 each Party's aggregate liability to the other Party under or in connection with this Agreement, whether such liability arises in contract, tort (including, without limitation, negligence) misrepresentation or otherwise, shall be limited to either the Charges payable in the 3 month period preceding the breach.
10.4. Subject to clauses 10.1 and 10.2 neither Party shall be liable for loss of profits, business or anticipated savings, loss or destruction of data, loss of use of data, loss of reputation, loss of goodwill, any special, indirect or consequential loss or damage.
10.5. Due to Brontech's reliance on third party data suppliers, and telecommunication services, over which Brontech has no direct control, Brontech cannot warrant:
(a) the accuracy, suitability for purpose/requirements and/or uninterrupted availability of the Service or Output Materials;
(b) that the use of the Service and/or the Output Materials will meet the Client's business requirements and the Client accepts that the Service was not designed or produced to its individual requirements and that it was responsible for its selection.
Consequently, the Client agrees that except as expressly set out in this Agreement, all warranties, conditions and other terms relating to the Service and this Agreement whether express or implied by law, custom or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
11. SUSPENSION AND TERMINATION
11.1. Brontech may suspend all or part of the Service immediately and without notice in the event that the Client has committed a material breach of this Agreement or Brontech acting reasonably suspects that the Client has committed a material breach of this Agreement.
11.3. Either Party may terminate this Agreement (or, if Brontech wish, part of it) on immediate notice in writing to the other if any of the following applies:
(a) the other Party commits a material or persistent breach of this Agreement, which is capable of remedy, and it fails to remedy the breach within 10 Business Days of a written notice to do so. A breach shall be capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance;
(b) the other Party commits a material or persistent breach of this Agreement which cannot be remedied;
(c) any meeting of creditors of the other Party is held or any arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement) is proposed or entered into by or in relation to the other Party (other than for the purpose of a bona fide solvent re-construction, re-organisation or amalgamation);
(d) the other Party ceases or threatens to cease carrying on business or is or becomes unable to pay its;
(e) a nominee, supervisor, receiver, administrator, administrative receiver or liquidator is appointed in respect of the other Party or any encumbrancer takes possession of, or any distress, lien, execution or other process is levied or enforced (and is not discharged within seven days) upon, the assets of the other Party;
(f) an order is made for the bankruptcy or winding-up of the other Party or a resolution for its winding up is passed;
(g) a notice of intention to appoint an administrator is filed with the court or served on any creditor of the other Party; an application for an administration order is issued at court in respect of the other Party;
(h) a meeting is convened for the purpose of considering a resolution for the winding up of the other Party or the making of an application for an administration order or the dissolution of the other Party; or
(i) any event analogous to any of clauses 11.3 (c) to (i) above occurs in any jurisdiction.
11.4. When this Agreement terminates the Client will:
(a) cease using the Service or in the case where access to a specific part of the Service has been terminated cease to use the specified part of the Service; and
(b) promptly pay any outstanding and unpaid invoices due for the Service whether the invoice was submitted before or after the termination of this Agreement.
11.5. When this Agreement terminates the Parties will return or destroy (at the option and request of the disclosing Party) any Confidential Information belonging to the other Party in its possession or control.
11.6. The termination of this Agreement does not affect the accrued rights, remedies and obligations or liabilities of the Parties existing at termination. Nor shall it affect the continuation in force of any provision of this Agreement that is expressly or by implication intended to continue in force after termination.
12. AUDIT RIGHTS
12.1. Brontech is required by its third party data suppliers and regulatory bodies to include a right of audit in all of its Client Agreements. The following provisions of this clause 12 are to give effect to that requirement.
12.2. Upon reasonable prior written notice to the Client and upon reasonable grounds, Brontech shall be entitled to conduct an on-site audit or to appoint a third party auditor to conduct an on-site audit of the Client's premises used in connection with the Service for the purposes of investigating the Client's compliance with its obligations under this Agreement.
12.3. Audits shall not be carried out on more than one occasion per year of this Agreement unless Brontech reasonably believes that the Client is in material breach of the Agreement or unless Brontech is required to do so by any regulatory body with competent jurisdiction or one of Brontech's third party suppliers engaged in connection with the Service. Brontech or its auditor may be accompanied by representatives of any such regulatory body or third party supplier in respect of any such audit imposed on Brontech.
12.4. All audits will be conducted in a manner that does not materially disrupt, delay or interfere with the Client's performance of its business and shall be carried out at the expense of Brontech or its third party suppliers. Should the audit reveal a breach of the Agreement by the Client, the Client shall reimburse Brontech or its third party suppliers for the full cost of the audit.
12.5. The Client shall provide Brontech (or any regulatory body or third party supplier as relevant) with full access to its premises, employees, computers, IT systems and records as required for the purpose of any such audit.
12.6. Prior to undertaking an audit under this clause 12 Brontech shall be entitled (but not obligated) to submit to the Client questions regarding the Client's performance of its obligations under this Agreement. The Client shall respond to these questions within 14 days of receiving such request. The submission of questions under this clause 12.6 will not prejudice Brontech's audit rights under this clause.
13. DISPUTE RESOLUTION
13.1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a 'Dispute') then the Parties shall follow the procedure set out in this clause 13, specifically:
(a) either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a 'Dispute Notice'), together with relevant supporting documents. On service of the Dispute Notice, authorised representatives of Brontech and the Client shall attempt in good faith to resolve the Dispute;
(b) if the authorised representatives of Brontech and the Client are for any reason unable to resolve the Dispute within 10 Business Days of service of the Dispute Notice, the Dispute shall be escalated to senior officers of Brontech and the Client who shall attempt in good faith to resolve the matter; and
(c) if the senior officers of Brontech and the Client are for any reason unable to resolve the Dispute within 30 Business Days of it being referred to them, the parties will attempt to settle it by way of mediation. Should the parties fail to reach a settlement within 25 Business Days from the date of engaging in such mediation, the Parties shall be entitled to refer the Dispute to the courts of New South Wales in accordance with clause 18.2 of this Agreement.
13.2. Notwithstanding clause 13.1 above, the Parties shall be entitled to seek injunctive or other equitable relief at any point should that Party deem it necessary to protect the legitimate business interests of that Party.
14.1. Neither Party shall directly or indirectly (whether alone or in conjunction with or on behalf of any other person, business or organisation) solicit or entice away (or attempt to solicit or entice away) any person employed or engaged by the other Party or the other Party's Group Company in connection with this Agreement during the term of this Agreement or for a further period of 12 months after the termination of this Agreement other than by means of an advertising campaign open to all comers and not specifically targeted at any of the other Party's or the other Party's Group Companies' staff.
14.2. If either Party breaches clause 14.1 it shall, on demand, pay to the other Party a sum equal to one year's basic salary or the annual fee that was payable by the other Party to that employee, worker or independent contractor plus the recruitment/sourcing costs incurred by the other Party in replacing such person. The Parties agree that this sum is proportionate to both Parties' interests in enforcing the provisions of this clause 14.
15. EVENT OF FORCE MAJEURE
15.1. Neither Party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three consecutive months, the Party not affected may terminate this Agreement immediately by giving written notice to the affected Party.
16.1. Notices required to be given under this Agreement must be in writing and may be delivered by email or by courier, or sent by first class post to the following addresses:
(a) to [email protected]
(b) to Brontech at its registered office address and marked for the attention of the Company Secretary,
(c) to the Client at the address to which the Client asks Brontech to send invoices or the Client's registered office address (in the case of a corporate body).
16.2. Any notice shall be deemed to have been duly received:
(a) if sent by email;
(b) if delivered by hand or by courier, when left at the address referred to in this clause 16.1;
(c) if sent by first class post, two Business Days after the date of posting.
16.3. This clause does not apply to the service of any proceedings or other documents in any legal action.
17.1. Save where expressly provided for elsewhere in this Agreement, if either Party wishes to change this Agreement, the Parties agree that each Party will:
(a) notify the other detailing the proposed change and the reason for it;
(b) discuss the proposed change;
(c) notify each other whether the proposed change is feasible and the likely financial, contractual, technical and other effects of the proposed change;
(d) decide whether it agrees to this Agreement being amended to incorporate the change and notify the other Party.
17.2. Agreed changes to this Agreement will be recorded in writing and will form part of this Agreement when signed by authorised signatories of both Parties.
17.3. The Client may not assign or transfer (in whole or part) any of its rights or obligations under this Agreement, without Brontech's prior written agreement (which must not be unreasonably withheld or delayed).
17.4. Brontech will inform the Client if it assigns or transfers (in whole or part) any of its rights or obligations under this Agreement.
17.5. Save where expressly stated in the Additional Terms, a person who is not party to this Agreement has no right under this Agreement or otherwise to enforce any term of this Agreement.
17.6. This Agreement constitutes the entire agreement between the Parties and replaces and supersedes all previous written or oral agreements relating to its subject matter.
17.7. The Parties agree that:
(a) neither Party has been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it; and
(b) in connection with this Agreement its only rights and remedies in relation to any representation, warranty or other assurance are for breach of contract and that all other rights and remedies are excluded, except in the case of fraud.
17.8. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
17.9. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all counterparts shall together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
17.10. No failure or delay by a Party to exercise any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other remedy.
17.11. Unless otherwise stated herein, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any other rights or remedies provided by law.
18. GOVERNING LAW AND JURISDICTION
18.1. By entering into this Agreement, the Parties warrant that they each have the right, authority and capacity to enter into and be bound by the terms and conditions of this Agreement and that they agree to be bound by these.
18.2. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed and construed in accordance with the laws of New South Wales, Australia.
This section only applies if the Order Form shows that the applicable service has been selected. If so, these conditions will apply, in addition to the General Terms and any applicable Schedule. Any definition not provided in these Additional Terms shall have the same meaning as set out elsewhere in the Agreement.
Item check references are included below for clarity and refer to the item check numbers listed in the Order Form. For the avoidance of doubt, Brontech may update the item check references from time to time. In such case Brontech will endeavour to provide the Client with written confirmation of the change.
PART A: The data that Brontech uses to provide item check is supplied by one of its Australian data partners. Brontech is obliged under the terms of its agreement with its Australian data partner to ensure the Client accepts and agrees that it may only use the Australian Data Services provided as part of item checks for the purposes of verifying the identity of specific individuals with whom the Client has an existing or prospective business relationship. Such use must be confined to facilitating the carrying out of an application identification procedure on a person under the Australian Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth).
PART B: The data that Brontech uses to provide item checks is supplied by one of its Australian data partners (the 'Data Provider'). Brontech is obliged under the terms of its agreement with the Data Provider to ensure that all Clients agree to and comply with the following provisions:
1.1. In these terms and conditions, unless the context clearly indicates otherwise:
'AML/CTF Act' means the Anti-Money Laundering and Counter- Terrorism Financing Act 2006 (Cth);
'Applicable Laws' means all applicable law, enactments, regulations, regulatory policies, binding guidelines, binding industry codes, regulatory permits and licenses which are in force from time to time including, without limitation, AML/CTF Act, applicable data protection and Privacy Laws and the GST Act;
'Applicant' means a person who applies for a Customer Product;
'Application' means an application for a Customer Product; 'Approved Purpose' means the purposes of verifying an Applicant's identity solely for the Customer's internal business purposes and for the purposes of complying with all Applicable Laws; 'Business Rules' means the instructions provided to the Data Provider regarding the processing of an Applicant's Personal Information as part of a Service Request;
'Customer' means the Client (the individual, body corporate or public authority named on the Order Form to whom the Service is to be provided).
'Customer Materials' means Materials supplied by Customer or on behalf of Customer for use in the provision of the Service;
'Customer Product' means financial products or any other Designated Service offered by the Customer involving the provision of Designated Services as defined in the AML/CTF Act;
'Confidential Information' means these terms and conditions and all confidential information, material and technology disclosed or provided in any form by any party to the other party in connection with the subject matter of these terms and conditions;
'Data Provider Database' means a database owned by or licensed to Data Provider but not listed as a Proprietary Database;
'Employees' means officers, employees, agents, sub-contractors and representatives;
'Future Data Sets' means any other data sets that may be provided by Data Provider to Customer, and may include data obtained from websites operated by government entities or authorities;
'ID Index' means the custom built system of analysing and scoring the data comprised in the Customer Materials and the search results provided to Customer in response to an Service Request and includes Customer's particular search parameters based on the Business Rules;
'Intellectual Property Rights' means all current and future registered and unregistered rights in respect of patents, copyright (including Moral Rights), designs, circuit layouts, trademarks, trade secrets, know-how, confidential information, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967;
'Material' means any material, whether tangible or intangible, in any form, including documents, records, software, data and any other information;
'Personal Information' has the same meaning as in the Privacy Act 1988 (Cth);
'Privacy Law' means:
(a) the Privacy Act 1988 (Cth);
(b) any Guidelines, Public Interest Determinations or other advices relating to Personal Information issued by the Office of the Federal Privacy Commissioner in Australia; and
(c) any other requirement under Australian law, industry code or policy relating to the handling of Personal Information;
'Proprietary Database' means each of the following databases either owned by Data Provider, or for which Data Provider has rights of access:
(a) Data Provider Identity Data;
(b) Data Provider Commercial Credit Database;
(c) Insurance Claims Database;
(d) National Tenancy Database; and
(e) Any other database agreed by the parties from time to time; 'Public Database' means each of the following public databases:
(f) Australian Electoral Roll ' Current;
(g) Australian Electoral Roll ' Historical 2004
(h) Data Provider Phone Number Directory;
(i) Data Provider Public Records;
Any other database agreed by the parties from time to time;
'Service' means Data Provider's electronic customer verification service (incorporating the ID Index) by which Data Provider applies the Business Rules to an Applicant to verify an Applicant's identity using Proprietary Databases, Public Databases, Third Party Databases and/or Future Data Sets (as agreed) for the purpose of allowing the Applicant to obtain a specified Customer Product using agreed access and delivery methods;
'Service Materials' means a service, product or work and any related documentation to be supplied by Data Provider to Customer; 'Service Request' means an automated request by Customer to Data Provider for Data Provider to verify an Applicant's details using the Service;
'Third Party Database' includes and is not limited to the following databases:
(a) Visa Entitlement Verification Online;
(b) DFAT's My Passport;
(d) Births, Deaths and Marriages for each of New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, Northern Territory and the Australian Capital Territory;
(e) Government Drivers License authorities or agencies in each of New South Wales, Victoria, Queensland, South Australia, and the Australian Capital Territory; and
(f) Sanctions List;
2. CUSTOMER ACKNOWLEDGEMENTS
2.1. Terms: The Customer acknowledges that these terms and conditions govern use of the Service and further terms and conditions apply to use of the data that is transmitted as part of the Service. Accordingly:
(a) where it is an existing subscriber to one or more of the Proprietary Databases, the terms and conditions of use applicable to those Proprietary Databases will continue to apply to the Customer's use within the provision of this Service;
(b) where, pursuant to the Business Rules, the Customer requests Data Provider to use other Data Provider Databases in providing the Service, the terms and conditions of use of those Data Provider Databases will apply, in addition to these terms;
(c) where, pursuant to the Business Rules, the Customer requests Data Provider to use Third Party Databases in providing the Services, the terms and conditions of use of those Third Party Databases will apply to the Customer (where applicable), in addition to these terms.
2.2. Terms subject to change: Where a third party data supplier imposes any restrictions on conditions of use on the Customer pursuant to that third party data supplier's agreement with Data Provider, Data Provider reserves the right to impose these conditions on the Customer, and the Customer agrees to comply with them.
2.3. Applicant's consent: The Customer must obtain the consent of each Applicant for the provision of the Services.
2.4. Third Party Database: The Customer acknowledges that the terms and conditions of Third Party Databases may require an Applicant to conduct identity verification in an Applicant's own name. In addition to clause 2.3 therefore, the Customer must obtain the authority of the Applicant for Data Provider to act as the Applicant's agent in accessing Third Party Databases for identity verification.
3. CUSTOMER OBLIGATIONS
3.1. Service Requests: The Customer will dispatch Service Requests to the Service as Applications are made and not, unless instructed by Data Provider, in batches or in a way that is otherwise likely to disrupt Data Provider's provision of the Service. Specifically, the Customer must not at any time process more than 500 transactions per hour.
3.2. General: Without limiting the Customer's obligations under these terms and conditions, the Customer must:
(a) not use the Service, Service Materials or any other data generated by use of the Service, for any purpose other than the Approved Purpose;
(b) not resell the Service, Service Materials or any other data generated by use of the Service (whether or not other information or services are added to it and whether or not it is incorporated into another service or other data);
(c) not change, delete or alter the data contained in the metadata fields of the data provided by Data Provider as part of the Service (though this shall not prevent the Customer from adding to such data); and
(d) comply with other reasonable product compliance requirements which Data Provider may notify to the Customer from time to time.
3.3. Customer data: The Customer is solely responsible for maintaining regular backups of all Customer data associated with the Services. To the extent that Data Provider is in possession of Customer data, Data Provider will be responsible for the maintenance, confidentiality, privacy and security of any such data. The Customer acknowledges that Data Provider may disclose to its third party suppliers for identity verification purposes only. The Customer is responsible for ensuring that it has appropriate consents in place to support such disclosure.
3.4. AML/CTF Act: The parties acknowledge that the AML/CTF Act, among other regulations, places certain obligations on the Customer in relation to identifying and verifying the identity of its customers, reporting and record keeping. The Customer acknowledges that while the Service provided by Data Provider under these terms and conditions assists the Customer to comply with the AML/CTF Act, the obligation to comply with this legislation remains with the Customer.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership and use of Intellectual Property Rights: The parties agree that other than as provided in this clause 4 (Intellectual Property Rights), nothing in these terms and conditions transfers ownership in, or otherwise grants any rights in any Intellectual Property Rights of a party.
4.2. Service Materials: If Data Provider provides any Service Material to the Customer, then Data Provider grants to the Customer a non- transferable, non-exclusive, royalty-free licence for the Term to use Data Provider Material solely for the purpose of the Customer being able to use the Service.
4.3. Customer Materials: The Customer grants to Data Provider a perpetual, non-transferable, non-exclusive, royalty free licence to use and exercise all of the Intellectual Property Rights in the Customer Materials for the purpose of enabling Data Provider to deliver the Service for the benefit of the Customer only.
18.3. Intellectual Property markings not effective: If any Intellectual Property Rights are expressly transferred or licensed by a party under these terms and conditions, then such transfer or licence applies in accordance with its terms, notwithstanding any inconsistent marks of a party (eg ') that may be attached to that intellectual property.
5.1. Privacy: If, as a result of these terms and conditions, the Customer is able to access any information about identifiable individuals held by or on behalf of Data Provider (and the Data Provider Group Companies), then the Customer:
(a) must comply all applicable Privacy Laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, as if it were regulated by these laws;
(b) must comply with any privacy code or policy which has been adopted by Data Provider as if it were bound by that code or policy;
(c) must comply with any direction of Data Provider that is consistent with the laws, codes and policies referred to in paragraphs (a) and (b) above;
(d) not to do any act or engage in any practice that would breach the Privacy Laws or cause Data Provider to breach the Privacy Laws;
(e) take all steps which are reasonable in the circumstances to protect any Personal Information held by it in connection with these terms and conditions from misuse, interference or loss, and from unauthorised access, modification or disclosure;
(f) not transfer any Personal Information provided by Data Provider in connection with these terms and conditions to a country or territory outside of Australia, without Data Provider's prior written consent;
(g) immediately notify Data Provider if it becomes aware of a breach of the Privacy Law in connection with these terms and conditions and notwithstanding any other provision of these terms and conditions, will take steps to remedy the breach immediately;
(h) comply with any reasonable direction of Data Provider to observe any recommendation of any government body relating to acts or practices of the Customer that the government body considers to be in breach of the obligations of this clause; and
(i) indemnify Data Provider and any Related Body Corporate from time to time of Data Provider and their respective Employees for any loss or damage caused or contributed to by the Customer's failure to comply with the Privacy Laws.
6 EXCLUSION OF DATA PROVIDER'S LIABILITY
6.1. Disclaimer: Data Provider makes no warranties or representations about information sourced from third parties that is provided under the Service, or its reliability, accuracy, completeness, or currency and excludes all liability for any loss or damage in relation to the accuracy, completeness, currency or quality of information sourced from third parties that is provided under the Service.
6.2. No warranty: The Customer acknowledges and agrees that the Service (including for the avoidance of doubt its content) are provided 'as is', 'as available' and with all faults and is provided without any covenants, promises or guarantees as to accuracy, functionality, performance, merchantability, system integration, data accuracy or fitness for any purpose. Any conditions, terms or warranties as to the same implied or imposed by statue or common law are hereby excluded to the fullest extent permitted by law.
6.3. Limitation of Liability: To the extent permitted by law, Data Provider limits its liability in respect of any failure to comply with a statutory guarantee which cannot be excluded to the resupply of services or the cost of resupplying the services.
18.4. Exclusion of liability: Neither Data Provider nor the Data Provider Group Companies shall have any liability whatsoever to the Customer (including in negligence and breach of statutory duty) and the Customer shall have no remedies against them with respect to the Service, or any use of or reliance on the same made by the Customer or any person through the Customer, including without limitation any loss of data or the inability to retrieve data, resulting from or incidental to the use of the Service or any direct, indirect, incidental, consequential, special, exemplary or punitive damages, any loss of profit, investment, trading, reliance or wasted expenditure, any liability to third parties, or any other form of loss or liability, regardless of cause, and whether in tort, contract, strict liability, statutory duty or liability or under any other form of action, and even if Data Provider was advised of the possibility of such damages.
7 APPLICABLE LAW
18.5. These terms and conditions shall be exclusively governed by the laws of New South Wales and the Customer agrees to submit to the exclusive jurisdiction of the Courts of New South Wales in relation to any matter relating to these terms and conditions and the Service.
8.1. Connectivity: Although reasonable commercial precautions have been taken, the Data Supplier does not guarantee that access to the Service will be uninterrupted, or that there will be no failures, errors or omissions or loss of transmitted information, or that no viruses will be transmitted.
8.2. Damage to Systems: the Data Supplier does not accept responsibility for any interference or damage to the Client's computer systems or data which arises in connection with the provision of the Service.
8.3. Price Increases: the Data Supplier may increase its fees for the Service on not less than 30 days' notice once per year. Notwithstanding the above, the fees for access to the Service may be automatically increased by an amount equal to the increase in any tax, fee, levy, government charge, goods and services tax or analogous tax or any other tax or regulatory or legislative cost or statutory fee, or third party input costs upon or in relation to the Services.
9 DOCUMENT VERIFICATION SERVICE (DVS)
9.1. Where the Client has selected to use one or more of the item checks the following terms will also apply in addition to the other provisions in this Appendix 1.
9.2. 'Document Verification Service (DVS)' means the data transmission service provided by the Commonwealth of Australia represented by the Attorney-General's Department ABN 92 661 124 436 to Business Users (as that term is defined in and) subject to the Document Verification Service Business User Terms and Conditions of Use available at http://www.dvs.gov.au/dvs-access/Pages/default.aspx;
9.3. Where, pursuant to the Business Rules, the Customer requests Data Provider use the DVS, the Customer must:
(a) nominate Data Provider as its Gateway Service Provider in accordance with; and
(b) be approved as a Business User in accordance with; and
(c) otherwise comply with the Document Verification Service Business User Terms and Conditions
10.1. Notwithstanding the other termination provisions in this Agreement, under the terms of Brontech's agreement with the Data Provider the supply of the Australian Data Services set out within this Part B can be terminated at any time by Brontech providing the Client with 30 days' notice.
10.2. Information held on the Audit Trail will be accessible online by the Client's System Administrator.
10.3. Brontech will hold the Audit Trail information online for a period of 6 months from the date of the Identity Verification. Brontech will retain an offline Audit Trail for the duration of this Agreement.
10.4. When this Agreement ends, Brontech will provide the Client with a facility to download the Client's Audit Trail information for the Client's retention once all Charges due to Brontech under this Agreement have been paid. The facility will be available for 30 days after the Client has been notified of the availability of the download facility after which time the audit trail will be deleted from the service.
10.5. If the Client requires from Brontech a copy of the offline Audit Trail during the term of this Agreement, Brontech will let the Client know on a case- by-case basis what that charge will be.
10.6. Where the Order Form shows that the Document Image Validation product has been selected, Brontech will hold within its Audit Trail the image the client submitted for validation ("Stored Image") online for a maximum period of 3 months from the date of the transaction. For the avoidance of doubt, Brontech will not retain any offline storage of Stored Images for the Client.