These Terms apply to your use of the Services (as that term is defined below). By setting up an account, subscribing or accessing and using the Services:
We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.
These Terms were last updated on 10th October 2022
In these Terms:
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the software owned by us (or our licensors) that is used to provide the Services. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Services.
Fees means the applicable fees set out on our pricing page on the Website or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 7.4.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Loss means any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
A party includes that party’s permitted assigns.
Permitted Users means your personnel who are authorised to access and use the Services on your behalf in accordance with clause 5.3.
A person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Personal information means information about an identifiable, living person.
Personnel includes officers, employees, contractors, subcontractors and agents, but a reference to your personnel does not include us.
Sales Tax means sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
Services means the service having the core functionality described on the Website, as the Website is updated from time to time.
Start Date means the date that you set up an account to use the Services or first access or use the Services (whichever is the earlier).
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
User ID means a unique name and/or password allocated to you or a Permitted User to allow you or a Permitted User to access the Services or any part of the Services.
Verification Services means Services involving the verification of the identity of an individual or of a document.
We, us or our means Avid AML Limited, a New Zealand company, company number 7744597.
Website means the internet site at www.avidaml.com, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa. Including and similar words do not imply any limit.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
We must use reasonable efforts to provide the Services:
a) in accordance with these Terms and applicable law;
b) exercising reasonable care, skill and diligence; and
c) using suitably skilled, experienced and qualified personnel.
Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person.
Subject to clause 4.4, we must use reasonable efforts to ensure the Services are available on a 24/7 basis. However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
The Services include, or interoperate with, a range of third party service features. In particular, the Verification Services and the politically exposed persons (PEPs), sanctions & adverse media services involve third party service features. We do not make any warranty or representation on the availability of any third party service features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
You and your personnel must:
When accessing the Services, you and your personnel must:
a) not impersonate another person or misrepresent authorisation to act on behalf of others or us;
b) correctly identify the sender of all electronic transmissions;
c) not attempt to undermine the security or integrity of the Underlying Systems;
d) not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
e) not attempt to view, access or copy any material or data other than:
f) neither use the Services in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. Without limiting clause 5.2, no individual other than a Permitted User may access or use the Services. You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
A breach of any of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.
You and your Permitted Users must keep your and their User ID secure and:
a) not permit any other person to use your or their User ID, including not disclosing or providing it to any other person; and
b) immediately notify us if you become aware of any disclosure or unauthorised use of your or their User ID, by sending an email to email@example.com.
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
Subject to clause 11.6, you indemnify us and our personnel against any Loss arising from:
a) any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading;
b) your failure to comply with these Terms, including any failure of a person who accesses and uses the Services by using your or your Permitted Users’ User ID; or
c) your or your Permitted Users’ use of, or reliance on, the Services.
6.1 You acknowledge that:
a) we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b) to the extent that this is necessary but subject to clause 9, we may authorise a member or members of our personnel to access the Data for this purpose.
6.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.3 You acknowledge and agree that:
a) we may:
b) our rights under clause 6.3a above will survive termination of expiry of the Agreement; and
c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.4 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Services, we and our third party feature providers are acting as your agent for the purposes of applicable privacy law, and acting as processors to the extent that the European Union General Data Protection Regulation (GDPR) applies. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
6.1 While we will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the Services.
6.6 You agree that we and our third party feature providers may store Data (including any personal information) in secure servers in various locations globally and may access that Data (including any personal information) from time to time in countries in which we each have operations.
7.1 You must pay us the Fees:
a) for your subscription to the Service, in advance of the subscription period you have selected (e.g. monthly, annual); and
b) for any usage based or top up options (as set out on our pricing page on the Website at [www.avidaml.com] or as agreed otherwise in writing between you and us, e.g. for Verification Services, politically exposed persons (PEPs), sanctions & adverse media services), in advance of your use of the relevant feature.
7.2 The Fees exclude Sales Tax, which you must pay on taxable supplies.
7.3 You must pay the Fees electronically in cleared funds without any set off or deduction.
7.4 We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Services on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Services in accordance with this clause, you are deemed to have accepted the increased Fees.
8.1 Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
8.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
8.4 If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b) we may use or disclose the feedback for any purpose.
8.5 You acknowledge that the Services may link to third party websites or feeds that are connected or relevant to the Services. Any link from the Services does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
9.1 Each party must, unless it has the prior written consent of the other party:
a) keep confidential at all times the Confidential Information of the other party;
b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1a and 9.1b.
9.2 The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
b) required by law (including under the rules of any stock exchange);
c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
10.1 To the maximum extent permitted by law:
a) the Services are provided "as is" and “as available” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose;
b) all conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to the amount set out in clause 11.2; and
c. without limiting clauses 10.1a and 10.1b, we make no representation concerning the quality of the Services and do not promise that the Services will:
10.2 You agree and represent that you are acquiring the Services, and accepting these Terms, for the purpose of trade. The parties agree that:
a) to the maximum extent permissible by law, no consumer protection legislation applies to the supply of the Services or these Terms; and
b) it is fair and reasonable that the parties are bound by this clause 10.2.
10.3 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
a) supplying the Services again; and/or
b) paying the costs of having the Services supplied again.
11.1 To the maximum extent permitted by law:
a) you access and use the Services at your own risk; and
b) we are not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection with these Terms, the Services, or your access and use of (or inability to access or use) the Services. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
11.2 To the maximum extent permitted by law and only to the extent clause 11.1 does not apply, our maximum aggregate liability under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Services in the month preceding first event giving rise to liability). The cap in this clause 11.2 includes the cap set out in clause 10.1a.
11.3 Neither party is liable to the other under or in connection with these Terms or the Services for any:
a) loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b) consequential, indirect, incidental or special damage or loss of any kind.
11.4 Clauses 11.1, 11.2 and 11.3 do not apply to limit our liability under or in connection with these Terms for:
a) personal injury or death;
b) fraud or wilful misconduct; or
c) a breach of clause 9.
11.5 Clause 11.3 does not apply to limit your liability:
a) to pay the Fees;
b) under the indemnity in clause 5.7; or
c) for those matters stated in clause 11.4a to 11.4c.
11.6 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
11.7 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Services.
12.1 Unless terminated under this clause 12, these Terms and your right to access and use the Services:
a) starts on the Start Date; and
b) continues until a party gives at least 30 days’ notice that these Terms and your access to and use of the Services will terminate on the expiry of that notice.
12.2 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Services if the other party:
a) breaches any material provision of these Terms and the breach is not:
b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
12.3 You may terminate these Terms and your right to access and use the Services in accordance with clause 7.4.
12.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
12.5 On termination of these Terms, you must pay all Fees for the provision of the Services prior to that termination.
12.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
12.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 12.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
12.8 At any time prior to one month after the date of termination, you may request:
a) a copy of any Data stored using the Services, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
b) deletion of the Data stored using the Services, in which case we must use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 12.8a to the extent that you have previously requested deletion of the Data.
12.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Services and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
a) undermined, or attempted to undermine, the security or integrity of the Services or any Underlying Systems;
b) used, or attempted to use, the Services:
c) transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
d) otherwise materially breached these Terms.
13.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
13.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
13.4 Subject to clause 6.4 and (if applicable) paragraph 2b of Schedule 2 and paragraph 1 of Schedule 3, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
13.5 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [insert email address].
13.6 These Terms, and any dispute relating to these Terms or the Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Services.
13.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 5.7, 8, 9, 11, 12.4 to 12.8 and 13.6 and (if applicable) paragraph 5 of Schedule 2 and paragraph 1 of Schedule 3, continue in force.
13.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
13.9 Subject to clauses 2.1 and 7.4, any variation to these Terms must be in writing and signed by both parties.
13.10 These Terms set out everything agreed by the parties relating to the Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. The parties agree that it is fair and reasonable that the parties are bound by this clause 13.10.
13.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
If you use Verification Services as part of the Services, the terms set out in this Schedule (in addition to the terms set out in clauses 1 to 13 of these Terms) apply to your use of those services:
1. In addition to the defined terms set out in clause 3 of these Terms, in this Schedule:
Access Forms means the forms you must complete to obtain access to or use the Verification Services or any Third Party Service, as advised by us from time to time.
Government Verification Service means an identity or document verification service provided by or on behalf of a relevant government or government agency.
Responsible Agency means a person or agency appointed by a relevant government or government agency to administer a Government Verification Service.
Security Incident means any event or action that results in or is reasonably suspected to result in:
Third Party Services means any third party service, website, database or data feed used by us or our service providers to provide the Verification Services, including the Government Verification Services.
Verification Transaction means an identity or document verification request submitted using the Services.
Verification Transaction Results means the results of a Verification Transaction provided by us (or our service providers) to you using the Services, and includes any information match result provided through use of a Government Verification Service.
2. Prior to accessing and using the Verification Services, you must provide us with the Access Forms.
3. You authorise us to seek approval, as your agent, for you to access and use the Verification Services.
4. Subject to clause 11.6, you indemnify us and our personnel against any Loss arising from or in connection with us acting as your agent in accordance with paragraph 2 of this Schedule.
5. You acknowledge that you will not be able to access the Verification Services until you have been approved by the relevant third party service provider and (if applicable) the Responsible Agency.
6. You and your personnel must access and use the Verification Services and the Verification Transaction Results solely for your own, lawful internal business purposes.
7. You acknowledge and agree that:
a) you are solely responsible for ensuring that your business processes operate satisfactorily despite the Verification Services and/or the Verification Transaction Results being subject to faults, errors, interruption or breakdown or being partially or fully unavailable for any reason, including having an alternative process for dealing with an individual whose identity cannot be verified using the Verification Services;
b) any information provided by us or our service providers regarding the availability performance, service levels or characteristics of or relating to the Verification Services and/or the Verification Transaction Results are non-contractual statements of intent and are not a representation or warranty of any kind; and
c) the Verification Services and the Verification Transaction Results are provided based on information provided to us by third parties and we do not independently verify the accuracy or completeness of that information.
8. You must ensure that each individual whose information is provided to us for a Verification Transaction has provided all necessary consents (Consent) to their information being collected, used, held and processed for that purpose.
9. A Consent may be given on:
a) a one-off basis (i.e. for each Verification Transaction); or
b) an ongoing basis (i.e. for a series of Verification Transactions).
10. You must allow an individual to withdraw a Consent by notifying you:
a) in the case of a one-off Consent, before the Verification Transaction is carried out; or
b) in the case of a one-off Consent, before any Verification Transaction, or any further Verification Transaction, is carried out.
11. You must obtain Consents in the form (if any):
a) required by us; and
b) in the case of a Government Verification Service, required by the relevant Responsible Agency.
12. You must ensure that a Consent given on an ongoing basis expires after 12 months, unless withdrawn earlier.
13. You must ensure that you collect, use, hold and process the following information in accordance applicable privacy and data protection laws, including taking reasonable steps to protect such information from unauthorised access, use, modification, loss or disclosure:
a) information provided to us for a Verification Transaction; and
b) Verification Transaction Results.
14 You must:
a) ensure that no person (including the individual that is the subject of a Verification Transaction) other than your Permitted Users who have a need to know can access a Verification Transaction Result; and
b) subject to applicable law, not take any adverse action against an individual who is the subject of a Verification Transaction unless you have:
15. You must promptly report any Security Incident to us, and provide us with all information reasonably required by us or any relevant Responsible Agency in connection with the Security Incident.
16. We may suspend or restrict your access to any or all of Verification Services (and relevant related Services) until we are satisfied that a Security Incident has been addressed.
17. You must keep records of Verification Transactions and Verification Transaction Results and provide those records, on request, to:
a) us; and
b) in the case of a Government Verification Service, the relevant Responsible Agency.
If you use the Australia DVS Services (as defined below) as part of the Services, the terms set out in this Schedule (in addition to the terms set out in clauses 1 to 13 of these Terms and in Schedule 1) apply to your use of those services:
1. In addition to the defined terms set out in clause 3 of these Terms and in Schedule 1, in this Schedule:
Australia DVS Business User Agreement means an agreement between you and the Australian Government on the terms set out at https://www.dvs.gov.au/users/Documents/BUtermsandconditions.pdf (or such other URL notified to you by us).
Australia DVS Services means document verification services provided by the Australian Government.
Australian Government means the Commonwealth of Australia.
Australian Privacy Act means the Privacy Act 1988 (Cth).
New Zealand Privacy Act means the Privacy Act 1993 (New Zealand).
2. You authorise us to:
a) register you as a business user of the Australia DVS Services; and
b) enter into the Australia DVS Business User Agreement as your agent,
using the Data you have provided to us about you and your Permitted Users.
3. You warrant that:
a) you have read, understood, and agree to, Australia DVS Business User Agreement;
b) at all times that you are using the Australia DVS Services:
4. At all times that you are using the Australia DVS Services, you must comply with the Australia DVS Business User Agreement.
5. Subject to clause 11.6, you indemnify us and our personnel against any Loss arising from or in connection with us acting as your agent in accordance with paragraph 2b of this Schedule.
6. Any disclaimer, exclusion, limitation of liability or indemnity set out in these Terms for our benefit is also provided for the benefit of, and is enforceable by (including by way of defence), the Australian Government.
If you use the New Zealand Confirmation Services (as defined below) as part of the Services, the terms set out in this Schedule (in addition to the terms set out in clauses 1 to 13 of these Terms and in Schedule 1) apply to your use of those services:
1. In addition to the defined terms set out in clause 3 of these Terms and in Schedule 1, in this Schedule:
New Zealand Confirmation Services means document verification services provided by the New Zealand Government.
New Zealand Government means the government of New Zealand.
2. You acknowledge that:
a) the Responsible Agency may terminate your right to access and use the New Zealand Confirmation Services by notice to you and us if:
b) we may be required to supply information about your use of the New Zealand Confirmation Services to the Responsible Agency, and that we may maintain records of Verification Transaction Results for this purpose.
3. For clarity, termination of your right to access and use the New Zealand Confirmation Services under paragraph 2a of this Schedule applies in respect of those services only, and these Terms will continue in all other respects.
4. Paragraph 2a of this Schedule, and any disclaimer, exclusion, limitation of liability or indemnity set out in these Terms for our benefit, is also provided for the benefit of, and is enforceable by (including by way of defence), the New Zealand Government.