Master Services Agreement
This Master Services Agreement (“Agreement”) is between First AML and the customer identified in the Order Form (“Customer”), and is effective as of the Commencement Date. This Agreement allows Customer to purchase access to the Services under one or more Order Forms. Certain capitalised terms are defined in Section 1 (Definitions and Interpretation) and others are defined contextually in this Agreement.
1. Definitions and Interpretation
1.1 In this Agreement, the following definitions apply:
Agreement means Master Services Agreement, including all order forms, sections, schedules, and documents incorporated by reference.
AML/CFT Jurisdiction means the jurisdiction indicated as such in the applicable Order Form.
Applicable Laws means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 if the AML/CFT Jurisdiction is New Zealand; the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) if the AML/CFT Jurisdiction is Australia; and the Proceeds of Crime Act 2002 and Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692) if the AML/CFT Jurisdiction is the United Kingdom.
Authorised Service Recipient means a Person named, or who falls within a class of Person described, in an Order Form as an ‘Authorised Service Recipient’ in respect of whom you may request that we provide Services for you to provide them with the benefit of such Services under clause 2.8, and includes any such Person in respect of whom you give notice under clause 2.8(b).
Business Days means any day (other than a Saturday, Sunday or public holiday) on which registered banks are open for normal banking business in the AML/CFT Jurisdiction.
CDD means an identification procedure carried out by us on a Client, including an Identity Check and a Screening Check, as applicable.
Clients means the Persons on whom you have instructed us to conduct CDD, including any related Persons upon whom CDD is to be conducted in accordance with the SOP (where relevant).
Commencement Date shall be the earlier of:
- the date indicated as such in an Order Form or, if no date has been specified, 20 business days from the date of signing; or
- the date on which you first submit a CDD case via the Platform,
and shall renew with each subsequent Order Form.
Confidential Information has the meaning given to it in clause 4.1.1 below.
Customer Data means the information, materials, documents, and other Intellectual Property or data (including Personal Data) collected, used, disclosed, stored or otherwise handled in connection with this Agreement that we process on your behalf. Customer Data expressly excludes our Intellectual Property.
Data Protection Laws means the Privacy Act 2020 if the AML/CFT Jurisdiction is New Zealand; the Privacy Act 1988 (Cth) if the AML/CFT Jurisdiction is Australia; and the European General Data Protection Regulation 2016/679, the UK Data Protection Act 2018, and the Swiss Federal Data Protection Act (each as applicable to the respective Party in its role in the processing of personal data under this Agreement and, where applicable, in accordance with the DPA) if the AML/CFT Jurisdiction is the United Kingdom.
Domestic Company means a company which is domiciled in the AML/CFT Jurisdiction (and with all related entities on which CDD is conducted also domiciled in the AML/CFT Jurisdiction).
Dormant means CDD that is unable to be completed within the timeframe set out in the SOP due to non-cooperation of any person (other than First AML) involved in the process.
DPA has the meaning given to it in clause 5.5 below, and can be accessed at https://www.firstaml.com/legal and as modified from time to time.
FATCA/CRS means the Foreign Account Tax Compliance Act and the Common Reporting Standard.
Fees means all of the fees and costs set out in an Order Form, and includes any implementation and platform fees, together with any other amounts that may become payable by you.
First AML means First AML Limited (company number 6553092) if the AML/CFT Jurisdiction is New Zealand; First AML Pty Limited (company number 643929140) if the AML/CFT Jurisdiction is Australia; and First AML UK Limited (company number 13802565) if the AML/CFT Jurisdiction is the United Kingdom.
First AML Data means any personal data relating to a data subject (as defined in Data Protection Laws) which is subject to Data Protection Laws and which we (or our group or affiliate entities) collect or receive in connection with the Services and processes for the purposes of enabling our Retrieval Process, as a data controller and, where applicable, in accordance with the DPA.
Force Majeure means an event or circumstance which is beyond the reasonable control of a party, whether or not it was reasonably foreseeable when entering into this Agreement, including:
- natural catastrophes, strikes, accidents, power failures, acts of war, terrorism, civil or military disturbances; and
- epidemics, pandemics, COVID-19 and government sanctioned restrictions and orders,
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Identity Check means an attempt to verify a Client’s identity.
Individual means any natural person, wherever resident.
Intellectual Property means any copyright, registered or unregistered designs or trademarks, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases, data or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, and with respect to us, means all intellectual property rights arising in connection with our business (whether existing in statute, at common law or in equity), including:
- all copyright (including in source code and object code), know-how, trade secrets, methods (including business methods), technical and non-technical information, processes, characteristics, trademarks, trade names, business names, inventions, patents, design rights, discoveries and formulae;
- in respect of the Platform – all improvements, enhancements, modifications or adaptations to any of the foregoing rights;
- all allied, similar and associated rights, whether registered or unregistered, registrable or unregistrable; and
- all applications to register, and all renewals of, any of the foregoing rights.
International Company means a company which is not domiciled in the AML/CFT Jurisdiction.
OCDD means the re-verification process set out in the SOP.
Order Form means any order for access to the Services or related services that is executed by Customer and references this Agreement.
Payment Terms refers to the Payment Terms, Payment Schedule, Payment Method, Currency, and Tax set out in an Order Form.
Person means a natural person, a company, body corporate, corporation, unincorporated association, firm, partnership or other legal entity (wherever formed).
Personal Data means “Personal Information” as defined in the Privacy Act 2020 if the AML/CFT Jurisdiction is New Zealand; “Personal Information” as defined in the Australian Privacy Act 1988 (Cth) if the AML/CFT Jurisdiction is Australia; and has the meaning given in the European General Data Protection Regulation 2016/679 if the AML/CFT Jurisdiction is the United Kingdom.
Personal Data Breach means a “Notifiable Data Breach” as defined in the Privacy Act 2020 if the AML/CFT Jurisdiction is New Zealand; an “Eligible Data Breach” as defined in the Australian Privacy Act 1988 (Cth) if the AML/CFT Jurisdiction is Australia; and a “Personal Data Breach” as defined in the European General Data Protection Regulation 2016/679 if the AML/CFT Jurisdiction is the United Kingdom.
Platform means our online CDD platform at https://app.firstaml.com/ and described in the Scope of Services.
Reporting Entity means an entity which is required to conduct CDD on its customers or clients, as may be defined in Applicable Laws.
Scope of Services means (as applicable):
- our conducting of CDD on Clients on your behalf;
- our conducting of OCDD on Clients on your behalf;
- our obtaining FATCA/CRS and/or Wholesale Investor Certificates from Clients on your behalf; and
- our provision of the Platform to you to enable you to store and manage Client information in a secure and structured manner.
Screening Check refers to checks against:
- politically exposed persons lists;
- sanctions lists; and
- publicly available media/press to obtain further information about an individual’s background, conducted by us on individuals or entities.
Services means the services to be provided by us to you, as instructed by you via the Platform from time to time; such services being limited to those set out in the Scope of Services.
SOP means the regionally applicable First AML Standard Operating Procedure, which is incorporated into this Agreement, as may be accessed at https://www.firstaml.com/legal (or as otherwise provided by First AML) and as modified from time to time.
Specific Terms refers to the terms contained in the section titled “Specific Terms” on page 1 (if any), and take priority over any other terms in this Agreement.
Tax means either applicable Goods & Services Tax or Value Added Tax, as indicated by the abbreviation of either ‘GST’ or ‘VAT’ in the Order Form.
Term means the period from the Commencement Date until the date this Agreement is terminated in accordance with its terms, and includes the Initial Term (as defined below in clause 9.1.1) and any Renewal Terms (as defined below in clause 9.1.2).
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Units means the verification units purchased in an Order Form.
1.2 In this Agreement, the following rules of interpretation apply:
- references to written or in writing shall include all modes of presenting or reproducing words, figure and symbols in a visible form (including via email);
- references to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them
- references to a statute or statutory provision means to that statute or statutory provision as amended, consolidated and/or replaced from time to time; and
- no rule of construction (including the contra proferentem rule) applies to the disadvantage of a party because the party (or its relevant advisor) was responsible for the drafting of this Agreement or any part of it.
2. Performance of the Services
2.1.1 We will perform the Services with due care and skill and in accordance with the SOP and this Agreement. Where necessary to perform the Services, we will liaise directly with Clients to obtain relevant information and documents.
2.1.2 If we consider that any instruction or direction from you constitutes a variation to the Scope of Services, then we will not be obliged to comply with such instruction or direction unless you make a written variation request and we accept such request. Any acceptance of a variation request may be subject to a variation in Fees which, on acceptance by you, will form part of the Fees.
2.2 Unit Allocation
2.2.1 Units for use of the Services (including CDD that has become Dormant and for OCDD) will be allocated on the basis set out in the Unit Allocation schedule of the relevant Order Form.
2.2.2 Should Customer’s total Unit usage during the Term exceed the total number of Units purchased and available, Customer will be charged at First AML’s then standard “PAYG Rate” (or the rate set out as such in the applicable Order Form) for all additional Units used during the Term, and will be invoiced for all such Units monthly in arrears.
2.2.3 Unless stated otherwise in the applicable Order Form, Units will expire 12 months from the Commencement Date of the applicable Order Form.
We, and you, agree to cooperate at all times to ensure that the Services can be provided efficiently and in accordance with this Agreement. In particular, you agree to provide (at no cost to us and in a timely manner) all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement. This includes providing us with the name and contact details of any Clients you require us to conduct CDD on, and ensuring that such Clients are informed that we will be contacting them, and on whose behalf we will contact them.
2.4 Platform Use
2.4.1 Subject to your ongoing compliance with this Agreement (including payment of all Fees when due), we grant you a non-exclusive, non-transferable and non-sublicensable, personal and revocable licence to access and use the Platform during the Term.
2.4.2 Your use of the Platform, and that of any person you authorise, is subject to compliance at all times with the terms of this Agreement.
2.5 Your Obligations
2.5.1 You will:
- pay the Fees in accordance with the Payment Terms;
- perform all your obligations under this Agreement;
- provide us with all reasonable assistance in the performance of our obligations under this Agreement;
- not, except with our prior written consent, share any Client information provided by us via CDD on any Person to any other Reporting Entity. If you do, you will pay us the relevant Fees in respect of the Person whose information was shared;
- comply with all applicable laws, including Data Protection Laws, and do all other things necessary to legally disclose any Personal Data to us and to enable us to provide our Services in accordance with this Agreement and all applicable laws; and
- indemnify and hold us harmless against any liability, expense, cost, loss or damage relating to, and will (at your own cost) defend or settle, any claim, suit, action or proceeding brought against us:
- alleging that our use or possession of any Personal Data provided by you, or obtained on your behalf, breaches Data Protection Laws;
- for any acts or omissions by you that result in us being liable for a failure to give notice of a Personal Data Breach under Data Protection Laws; and
- as a result of, or in connection with, your non-compliance with Applicable Laws.
2.6 Access to databases
2.6.1 To perform our Services under this Agreement, we may require the use of certain information from relevant third party databases.
2.6.3 For the purpose of conducting Identity Checks against any relevant third party database, you agree to the terms set out in each of the applicable Schedules to this Agreement and authorise, and appoint, us as your agent to:
- apply for access to, and then access, any third party databases we deem necessary for the performance of our Services, including applying for any necessary login details;
- collect relevant Personal Data from Clients for submission during the Identity Check process; and
- conduct Identity Checks against relevant third party databases.
2.7 Customer identification
We may identify you as a customer in our marketing collateral, including through use of your logo in accordance with any brand guidelines that you have published, but will cease this use upon your written request.
2.8 Provision of Services to Authorised Service Recipients
If the Order Form contemplates Services being provided for the benefit of an Authorised Service Recipient:
- we will provide the Services to you, under this Agreement, for you to provide the benefit of the Services to such Authorised Service Recipient;
- you must promptly notify us of any Person who engages you and who is or would be an Authorised Service Recipient on whose behalf you intend to request the provision of the Services;
- nothing in the Platform Terms will prevent you from requesting the provision of, or providing the benefit of, the Services to an Authorised Service Recipient;
- you warrant that:
- you are authorised to appoint us as agent of the Authorised Service Recipient for the purposes contemplated by clause 2.6.3, (as if references in that clause to ‘you’ and ‘your’ were references to the Authorised Service Recipient);
- where you provide us with any Customer Data which relates or belongs to an Authorised Service Recipient, you have the right to grant us the licence contemplated by clause 5.3.2;
- notwithstanding clause 2.5.1d, you may share with an Authorised Service Recipient Client information provided by us on any Person for whom we undertake CDD for you for the benefit of that Authorised Service Recipient;
- any obligation imposed on you under this Agreement (other than your obligation to pay the Fees) will be read as an obligation on you to ensure that the Authorised Service Recipient complies with that obligation as if such obligation had been imposed on the Authorised Service Recipient directly;
- you must:
- indemnify us on demand for all liability, expense, cost, loss or damage we incur arising from any proceeding, demand, action or other claim by an Authorised Service Recipient against us arising from or in connection with our performance of the Services;
- ensure that your terms of engagement with each Authorised Service Recipient contain a waiver in our favour of our liability to the Authorised Service Recipient arising from or in connection with the performance of the Services (and must provide us with reasonable evidence of this on our request).
3. Fees and Payments
3.1.1. We will charge you Fees for the Services; the billing period for which will commence on the Commencement Date.
3.1.2 All invoices must be paid when due and in accordance with the Payment Terms.
3.1.3. All Fees, expenses and charges are Tax exclusive (unless otherwise stated). If the AML/CFT Jurisdiction is Australia and a supply to you under this Agreement is a taxable supply under a New Tax System (Goods and Services Tax) Act 1999, you agree to pay us an amount equal to the GST we are required to pay on the taxable supply at the same time as paying the amount that is the taxable supply and in addition to the taxable supply.
3.1.4 Prior to the commencement of any Renewal Term, we will provide you with 80 days’ notice in writing of any updates to our pricing. By continuing to use the Services from the commencement of that Renewal Term, you will be deemed to have accepted any updated pricing.
3.1.5 Any Fees described in an Order Form as “one off” will be included in your first invoice.
3.1.6 Any Services provided during the Term for which Fees have not been set out in an Order Form will be charged at First AML’s then standard rate.
3.2 Disputed invoices
If you wish to dispute an invoice, you must notify us in writing as soon as reasonably practicable. The matter will be resolved in accordance with clause 8 and, unless we agree in writing otherwise, the invoice will remain payable in accordance with the Payment Terms.
3.3 Default Interest
If any sum due for payment under this Agreement is not paid on the due date, the party in default shall pay interest on such sum from the due date until the date of actual payment (whether before or after judgment) at the rate of 6% above the Official Case Rate (or the base rate of Barclays Bank PLC if the AML/CFT Jurisdiction is the United Kingdom) from time to time; such interest to accrue on a day to day basis. The Parties acknowledge that this amounts to a substantial remedy for late payment.
3.4 Manner of payment
All sums payable under this Agreement must be paid:
- in the currency specified in the Payment Terms;
- in cleared and immediately available funds;
- into the bank account specified in writing by the recipient of the payment; and
- free and clear of any restriction, condition, set-off, deduction or withholding (except as required by law).
3.5 Suspension of Services if Fees not paid
Notwithstanding anything to the contrary, we have the absolute discretion to suspend the provision of our Services in the event that you fail to pay any Fees in accordance with the terms of this Agreement, until such time as all outstanding amounts are paid.
4.1.1 Subject to clause 4.2, and without limiting any obligation under clause 2.4 (Customer Obligations), each party (the Recipient) shall treat as confidential the following (the Confidential Information):
- the terms of this Agreement and all related negotiations and discussions between the parties; and
- all information acquired by the Recipient in anticipation of, or in connection with, the performances of this Agreement in circumstances that are marked as, or can reasonably be taken to indicate, such information is confidential or which may derive value to a party from being confidential or which would be regarded as confidential by a reasonable business person.
4.1.2 We acknowledge and agree that all information relating to your roles, functions, affairs, stakeholders and Clients disclosed to us (or derived by us from that information or data) in anticipation of, or in connection with, the performance of this Agreement, shall constitute your Confidential Information.
4.2 Permitted use and disclosure
Clause 4.1 will not prohibit a party (Disclosing Party) from using or disclosing any Confidential Information where:
- the Disclosing Party has the prior written consent of the Recipient;
- the information becomes public information without fault on the part of the Disclosing Party;
- the information is necessary to be disclosed to enable a party to perform its obligations, or exercise its rights, under this Agreement;
- the Disclosing Party discloses such information to its personnel, provided that the relevant personnel agree to adhere to the Disclosing Party’s confidentiality obligations under this clause 4 or substantially similar obligations; or
- the Disclosing Party has a statutory obligation to disclose such information or is required to make such disclosure by law (including, for the avoidance of doubt, under Data Protection Laws or under a subpoena).
5. Intellectual Property and Personal Data
You agree that all rights, title and interest in and to all Intellectual Property:
- currently owned or licensed by us (including in the Platform) shall remain owned or licensed by us; and
- that is created, or has been created or will or may be created by or on behalf of any party in connection with this Agreement, whether prior to, on or after the date of this Agreement, shall vest in and remain owned by us,
and you hereby assign and transfer to us, and we hereby accept an assignment of, all such Intellectual Property as it comes, or will come, into existence.
5.2 Enforcement of title
You agree to take all actions as may be reasonably required by us to perfect or enforce our title to the assigned Intellectual Property, which shall include signing and delivering any document required in order to perfect or enforce such title (including, for the avoidance of doubt, a deed of assignment of intellectual property).
5.3 Customer Data
5.3.1 As between you and us:
- all Customer Data is and remains your property; and
- you retain any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works.
5.3.2 You grant us a worldwide, fully paid-up, non-exclusive, non-transferable licence to copy, modify, transmit, store and back-up or otherwise access the Customer Data during the Term (and for a reasonable period after the Term), to:
- supply the Services to you (including to enable you and your personnel to access and use the Services);
- diagnose problems with the Services;
- enhance and otherwise modify the Services;
- perform Analytics (as detailed in 5.4 below);
- develop other services or products, provided we de-identify the Customer Data; and
- as otherwise reasonably required to perform our obligations under this Agreement.
5.3.3 Notwithstanding anything to the contrary, you acknowledge that we may process certain First AML Data as a data controller in accordance with the terms of this Agreement. Where such processing of First AML Data involves the transfer of Personal Data from you to us and such transfer is a Restricted Transfer (as such term is defined in the DPA), Section 11 of the DPA shall apply to the extent any DPA is executed and applicable. For the avoidance of doubt, the terms of the DPA (where applicable) shall not otherwise apply in connection with our processing of First AML Data.
5.4.1 Notwithstanding anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to use of the Services by you, your personnel and Clients in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
- does not contain identifying information; and
- is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
5.4.2 We, and our licensors, own all right, title, and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.
5.5 Data Processing Addendum
If, and to the extent, we process Customer Data that contains Personal Data protected by data protection laws applicable to the European Economic Area, Switzerland and/or the United Kingdom (including the General Data Protection Regulation), then the terms of the DPA shall be incorporated into, and form an integral part of, this Agreement. The DPA sets out the parties’ obligations with respect to data protection and security when processing such Personal Data in connection with the Services.
6.1 Mutual warranties
Each party warrants that:
- it has the power and authority and has taken all corporate and other steps necessary to validly enter into and perform its obligations under this Agreement; and
- the obligations of that party under this Agreement are legal, valid and binding and the Services or transactions under or contemplated by them do not contravene any law or obligation binding on it or its assets or its constituent documents, or exceed any limitation on its capacity or its directors’ powers (as applicable).
6.2 Your warranties
You represent, warrant and agree that:
- you have reviewed and understand the terms of this Agreement and will use the Services in accordance with them, our reasonable requests, and all laws;
- except to the extent expressly contemplated by clause 2.8, your rights under this Agreement are for your benefit only, and not for the benefit of any affiliates or related company (unless expressly agreed by us in writing);
- you will be responsible for the use of any part of the Services, and must ensure that no person (including Clients) uses any part of the Services (i) to break any law; or (ii) to infringe any person’s rights (including Intellectual Property rights and rights under Data Protection Laws); (iii) to build a product or service which competes with the Services; (iv) or in any way that potentially damages, interferes with or interrupts the supply of the Services (including by introducing malicious or potentially harmful programs or material into the Platform);
- you shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us;
- all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that (i) you have done all things necessary to ensure our lawful use of such information and documentation in accordance with the terms of this Agreement; and (iii) that we will rely on such information and documentation in order to provide the Services;
- you assume sole responsibility for results obtained from the use of the Services, for conclusions drawn from such use, and for determining whether the Services performed, as a whole or in part, are sufficient for compliance with Applicable Laws;
- as between you and us, you are responsible for: (i) determining when any one of the Services (including OCDD) in respect of a particular Client is required under Applicable Laws, and instructing us accordingly; (ii) undertaking any required risk assessments on Clients; (iii) monitoring Client relationships on an on-going basis and, if necessary, filing any reports that may be required under Applicable Laws; (iv) and any other obligation under Applicable Laws not expressly covered by the Services;
- other than as specifically set out in this Agreement, the Services are provided on an “as is” basis;
- you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit for any particular purpose) or any Third Party Inputs, unless expressly stipulated in this Agreement;
- you have not made any representations or warranties to any third parties (including Clients) that could be construed as being representations or warranties from us in relation to the Services or any other matter; and
- the Services and any associated programs and files are used at your own risk.
6.4 Implied warranties excluded
Subject to Clause 7.3, and except as expressly set out in this Agreement, all warranties, representations, terms, conditions and undertakings, express or implied (including by statute, custom or usage, a course of dealing, or common law) are excluded to the fullest extent permitted by applicable law.
First AML warrants that it has, and will continue to maintain, insurance policies with reputable providers for professional indemnity with cover no less than $8,000,000 (or £5,000,000 if the AML/CFT Jurisdiction is the United Kingdom).
6.6 Consumer Law
Nothing in this Agreement excludes your rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified by any applicable consumer protection laws and regulations.
7.1 Excluded loss
7.1.1 Subject to clause 7.3, and to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any liability, caused or contributed to by, arising from or connected with:
- loss of, or damage to, any property;
- the computing environment, hardware, software, telecommunications service, network or any device controlled by you, your users, your personnel or Clients;
- your, your personnel’s, or Client’s acts or omissions;
- any interaction between you and a Client, including a claim by a Client;
- any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement (including under clause 2.8 above);
- any event outside of our reasonable control (including Force Majeure, and a fault, defect, error or omission in the computing environment, hardware, software, telecommunications service, network or any device controlled by you, your users, your personnel or Clients or Customer Data);
- the Services being unavailable, or any delay in us providing the Services to you, for whatever reason;
- any work, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
- any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction; and
- any Third-Party Inputs.
7.1.2 Subject to clause 7.3.2, neither party will be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
- special, indirect or consequential loss; or
- any of the following (in each case, whether direct or indirect):pure economic loss;
- loss of goodwill, reputation or opportunity;
- loss of profit;
- loss of sales or business;
- loss of anticipated savings;
- loss or corruption of data or information; and
- wasted expenditure,
arising out of or in connection with this Agreement or any breach or non-performance of it, no matter how fundamental, including by reason of negligence.
7.2 Limitation of liability
7.2.1 Subject to clauses 7.1 and 7.3, each party’s total maximum aggregate liability to the other under or in connection with this Agreement will under no circumstances exceed $200,000 (or £100,000 if the AML/CFT Jurisdiction is the United Kingdom).
7.2.2 This clause will not limit liability under this Agreement for any liability either party may have under an indemnity set out in this Agreement.
7.3 Uncapped Liabilities
7.3.1 Nothing in this Agreement limits or excludes either party’s liability:
- for death or personal injury caused by that party’s negligence;
- for fraud or fraudulent misrepresentation; or
- that cannot be lawfully limited or excluded at law.
7.3.2 Clauses 7.1 and 7.2 will not limit your liability under this Agreement for any fine or penalty imposed, or compensatory damages awarded, against us as a result of your acts or omissions.
7.4 Mitigation of liabilities
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 the Agreement.
Each party’s liability for any liability under this Agreement will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party (or any of its personnel).
8. Dispute Resolution
8.1 Resolution process
If any dispute, controversy or claim arises from or in relation to this Agreement (including any question regarding its existence, validity or termination) (Dispute) then no party may commence proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless it has first complied with this clause 8.
8.2 Notice and attempt to resolve the dispute
A party claiming that a Dispute has arisen in relation to this Agreement will give written notice to the other party specifying the nature of the Dispute. Within 5 Business Days of receipt of any such notice, each party will then nominate a person or persons, with the authority to settle the Dispute, who will try in good faith, to resolve the Dispute quickly and, in any event, within 10 Business Days of the date on which notice is given under this clause 8.2.
If the Dispute cannot be resolved within 20 Business Days after the date on which notice is given under clause 8.2, either party may by written notice to the other party refer to the Dispute to arbitration under the Rules of Arbitration of the International Chamber of Commerce (Rules) by a single arbitrator appointed in accordance with the Rules. Without limiting the ability to conduct the arbitration remotely through audio/visual link:
- if the AML/CFT Jurisdiction is New Zealand:
- the seat of arbitration will be Wellington, New Zealand;
- the law applicable to the arbitral proceedings and the matters that are the subject of the Dispute will be the laws of New Zealand;
- if the AML/CFT Jurisdiction is Australia:
- the seat of arbitration will be Sydney, Australia;
- the law applicable to the arbitral proceedings and the matters that are the subject of the Dispute will be the laws of New South Wales;
- If the AML/CFT Jurisdiction is the United Kingdom:
- the seat of arbitration will be London, England;
- the law applicable to the arbitral proceedings and the matters that are the subject of the Dispute will be the laws of England and Wales.
Nothing in this clause 8 shall prevent a party from making an application to the courts:
- for interlocutory relief;
- to recover a debt payable;
- to enforce a settlement (if any) agreed by the parties following their attempts to resolve the dispute pursuant to this clause 8.
8.5 Obligations continue
Subject to the right of suspension in clause 3.5, each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a Dispute.
9. Term and Termination
9.1.1 This Agreement will commence on the Commencement Date and continue until the later of i) the end of the period set out as the “Service Term” in the Order Form and ii) all unused Units expiring (the Initial Term).
9.1.2 On the expiry of the Initial Term, this Agreement shall continue in force on a rolling basis for successive 12 month periods (each a Renewal Term), unless either party gives written notice to the other party at least 60 days before the expiry date of the Initial Term or a Renewal Term, that it does not wish to renew this Agreement.
9.1.3 Such termination under clause 9.1.2 will take effect at the end of the Initial Term or the relevant Renewal Term (as applicable).
A party may terminate this Agreement immediately on written notice if the other party:
a) breaches any material provision of the Agreement and the breach is not:
remedied within 10 Business Days of the other party notifying it of the breach; or
capable of being remedied or adequately compensated for within 30 Business Days;
b) triggers an insolvency event under applicable legislation, including an inability to pay debts as they fall due.
9.3 Termination by the Customer
You may terminate this Agreement if we issue a notice that this Agreement is being amended under clause 14.3 of this Agreement and you choose to terminate this Agreement in accordance with clause 14.3 of the Agreement.
10. Consequences of Termination
10.1 Consequences of termination
Upon notice of termination of this Agreement and on your request, we will make all Customer Data available to you for export in a standard electronic format.
Upon termination of this Agreement:
- we will cease providing the Services and you will cease accessing and using the Platform;
- you agree, to the maximum extent permitted by law, unless you rightfully terminate for our breach, any Fees paid and Units purchased are non-refundable;
- you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
- you agree to promptly return, delete or destroy all Intellectual Property owned by us and our Confidential Information;
- you agree we will be entitled to anonymise or permanently delete your data, including all Customer Data, without liability to you; and
10.2 Enduring Effect
Termination of this Agreement for any reason will not extinguish or otherwise affect:
- any other remedies or rights available to a party, or liabilities accrued, either under this Agreement or at law; or
- the provisions of this Agreement which by their nature survive termination, including clauses 2.4 (customer obligations), 4 (confidentiality), 5 (intellectual property), 6 (warranties), 7 (liability), 8 (dispute resolution), and 10 (consequences of termination).
11. Restriction on assignment
This Agreement is personal to you. You must not assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement without our prior written consent (such consent not to be unreasonably withheld). We may, at any time, assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Agreement with notice to you (and without your consent).
12.1 Form of notice
Any notice or other communication to be given under this Agreement must be in writing and may be delivered by hand, post, or e-mail at the respective addresses specified in this Agreement or any updated address notified to the other party in writing.
12.2 Deemed receipt
Receipt of a notice under this Agreement will be deemed to occur:
- upon delivery, where delivered by hand;
- 3 Business Days after posting; or
- if sent by email, on the date and time at which it enters the recipient’s information system, as evidenced by the timestamp in the email.
13. Force Majeure
13.1 Neither party will be liable for any non-performance of its obligations (except for its payment obligations) due to a Force Majeure, provided that the affected party:
- immediately notifies the other party and provides full information about the Force Majeure;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
14. General Provisions
14.1 Entire Agreement
This Agreement, together with any documents incorporated by reference and applicable schedules, constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract.
Nothing in this clause 14.1 shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
14.2 Governing law and jurisdiction
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 by the laws of New Zealand if the AML/CFT Jurisdiction is New Zealand; New South Wales if the AML/CFT Jurisdiction is Australia; and England and Wales if the AML/CFT Jurisdiction is the United Kingdom (Jurisdiction, as applicable). Without limiting clause 8.3, the parties submit to the exclusive jurisdiction of the courts of the Jurisdiction for all purposes relating to this Agreement and any dispute or claim referred to above.
We reserve the right, upon 30 days written notice, to update this Agreement from time to time (the Amendment Notice), provided any such updates do not have a material adverse effect on you. If you can demonstrate that an update has a material adverse effect, you may provide written notice within 30 days of having received the Amendment Notice, terminating this Agreement, without liability, in accordance with clause 9.3.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision or part-provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
- If modification under clause 14.5(a) is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
- If any provision or part-provision of this agreement is deemed deleted under clause 14.5(b) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.6 Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.7 Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns).
14.8 Negative obligations
Any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
14.9 No right of set-off
No party has any right of set-off, withholding or deduction from or against a payment due to the other party.
This Agreement may be signed and delivered in any number of counterparts, including by way of electronic transmission where a party signs a counterpart and sends it as a PDF to the other party by email. All such counterparts, when taken together, shall constitute one and the same instrument and, notwithstanding the date of signing, will be deemed to bear the date of this Agreement.
14.11 Electronic signing
A party may sign this Agreement by way of application of that party’s electronic signature provided that in applying their electronic signature, the party also provides their name, contact details, and any other information reasonably requested by the other party at the time of signing which is necessary for that party to identify the party signing this Agreement.
14.12 Order of precedence
Unless otherwise explicitly stated, in the event of any conflict between the provisions of this Agreement and the DPA, the terms of the DPA shall prevail as it relates to the processing of Personal Data, provided, however, that the limitations of liability provisions of this Agreement (Clause 7) shall control.
Schedule: New Zealand customers only
- You acknowledge and agree that the performance of an Identity Check by First AML makes use of a database held by the DIA.
- All Identity Checks must be carried out in accordance with this Agreement, including the terms and conditions contained in this Schedule:
to make use of the DIA’s database, you must be approved by the DIA and listed in our agreement with the DIA allowing access to information held by the DIA for the purpose of performing Identity Checks, in accordance with the Identity Information Confirmation Act 2012 (“Confirmation Agreement”); and
you must comply with all conditions notified to you that are required by the DIA regarding the protection of personal information and security breach processes.
- Before performing an Identity Check and requesting information from the DIA about a Client, First AML will first seek consent from the Client (in written or electronic form).
- Consent for the Identity Check is given on a one-off basis using First AML’s Platform, and the Client may be able to withdraw consent prior to the Identity Check being carried out.
- Consent may be withdrawn by the Client by notifying First AML in written or electronic form.
- Unless otherwise approved by the DIA, no person other than your properly authorised users may directly access the result of an Identity Check, including the Client who is the subject of the Identity Check.
- Upon request, First AML may provide information to the DIA regarding any Identity Checks in order to comply with conditions of use relating to First AML’s access to the DIA database.
- You agree to maintain, and provide upon request to First AML or the DIA, any records in respect of Identity Checks performed under this Agreement as may be required by the DIA.
- You must cooperate with us when we carry out routine monitoring of your compliance with these terms and conditions, and provide us with reasonable access to the relevant records.
- Where a Client’s identity cannot be verified using the DIA database, or where the Client has not given consent to an Identity Check, First AML will use an alternative process.
- Before taking adverse action against any individual as a result of information obtained through an Identity Check which uses the DIA as a verification source, you must:
- attempt to confirm the Client’s identity through other means;
- advise the Client the result of the Identity Check and the possible adverse action that you may take; and
- allow the Client a reasonable opportunity to make submissions related to any adverse action, or to be heard.
Schedule: Customers processing biometric data of a US Person only
- You agree to take all reasonable measures to ensure that any dispute with a US Person relating to the processing of their biometric data is pursued through individual arbitration as opposed to proceedings in US courts, and to incorporate a non-severable class action waiver into your terms with any such Person expressly naming First AML and its sub-processor Onfido as third-party beneficiaries entitled to enforce the individual arbitration agreement containing the non-severable class action waiver.