IDKit Terms of Service

1Contract structure and precedence

(a)

The terms of engagement for the provision of the Platform and any Additional Services are set out in this Agreement (comprising these Standard Terms and your Subscription Package).
(b)

Any new features or tools which are added to the Platform (including any Updates under clause 8) will also be subject to this Agreement.
(c)

Each party must perform its obligations as set out in this Agreement. The parties must comply with any special conditions set out in your Subscription Package.
(d)

In the event of a conflict, inconsistency or ambiguity between any provisions of the documents comprising this Agreement, the provisions will prevail in the following decreasing order:

(i)

your Subscription Package;
(ii)

the provisions of these Standard Terms; and
(iii)

any other documentation incorporated by reference into this Agreement.

2Subscription Period

(a)

This Agreement commences on the Commencement Date and will continue until the end of the initial Subscription Period, unless the Services are cancelled in accordance with the terms of this Agreement.
(b)

This Agreement will be automatically extended for successive Subscription Periods unless:

(i)

either party cancels the Services by notice given through the relevant functionality included in the Platform (or, in the case of IDKit, by written notice) prior to the end of the then current Subscription Period; or
(ii)

the Services are otherwise cancelled in accordance with this Agreement.

3Subscription Package

(a)

Client may update its Subscription Package through the relevant functionality in the Platform.
(b)

An update to the Subscription Package in accordance with clause 3(a) will take effect from the commencement of the next Subscription Period.
(c)

IDKit may vary a Client's Subscription Package from time to time, by providing Client with 20 days' written notice. Such variation will take effect from the commencement of the next Subscription Period following the expiry of the notice period. If the variation would have a material adverse impact on the Client and is not required by Law, Client may elect to cancel the Services using the relevant cancellation functionality in the Platform. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.
(d)

In the event of a variation to the Subscription Package, Client's access to the Platform and the Services will otherwise continue to be subject to the terms of this Agreement.

4Licence

(a)

Subject to Client's compliance with this Agreement, IDKit grants to Client a non-exclusive, limited, non-sublicensable, non-transferable, revocable licence to access and use the Platform in the Territory during the Term in accordance with this Agreement. IDKit acknowledges that Users may from time to time be located outside of the Territory, and this will not be considered a breach of the Client's licence to the Platform, provided that Client does not actively attempt to use the Platform or market it to Users outside the Territory.
(b)

IDKit will or will procure the performance of the IDKit Partner to:

(i)

assist with delivering or otherwise providing access to the Platform as required for Client to exercise its rights under clause 4(a) and as required pursuant to this Agreement; and
(ii)

provide Client with services and support pursuant to your Subscription Package.

5Use of the Services

(a)

IDKit shall make the Platform available to Client on and from the Go-Live Date and for the remainder of the Term in accordance with the terms of this Agreement.
(b)

Client shall grant each Administrator the relevant Administrator Access to perform its managerial functions.
(c)

Client is responsible for any and all actions taken by Administrators and must procure that each Administrator complies with, and does not seek to circumvent, any restrictions imposed on such access by IDKit and/or by Client. To the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit will not be liable for any Loss arising out of or in connection with any Administrator's failure to maintain the security of its login credentials. Client is responsible for any and all actions taken using an Administrator's login credentials. Client will immediately notify IDKit of any unauthorised use of which Client or its Administrators or other Personnel become aware.
(d)

Client will make the Platform available to Users in a manner consistent with this Agreement. To the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit will not be liable for any Loss arising out of or in connection with a User's failure to maintain the security of their session on the Platform. Client will immediately notify IDKit of any unauthorised use of which Client becomes aware.
(e)

Where Client is required to specify a domain for the operation of the Platform, IDKit may verify that Client owns or controls that domain. If Client does not own or control the domain specified in the Subscription Period (if any), then IDKit will have no obligation to provide Client with the Platform via such domain.

6Use of the Platform

(a)

Client acknowledges that IDKit will handle personal information in accordance with the Privacy Policy (as updated from time to time).
(b)

Client must ensure that its own privacy policy and any other statements in relation to how it handles the information of Users and third parties accurately reflects its use of that information, the Platform and the Services.
(c)

To the extent permitted by Law (including the Australian Consumer Law if applicable), Client is solely responsible for ensuring that all information it provides or inputs on the Platform is accurate and up-to-date, including being solely responsible for creating and updating its own account, and each Administrator account and profile.
(d)

Client's authorisation to use the Services and the Platform is subject to the payment of all Fees payable under this Agreement.
(e)

Client acknowledges that IDKit may collect, use and disclose IDKit Data in connection with Client's and its User's use of the Platform and other Services without restriction, provided such IDKit Data does not include any Personal Information.
(f)

Client shall ensure that it complies with all applicable Laws in connection with its, its Administrators' and its Users' use of the Platform and other Services, and acknowledges that it is solely responsible for such compliance.
(g)

To the extent that Client wishes to configure its Users' experience of the Platform (for example, by configuring the home page), Client must do so in accordance with:

(i)

the tools made available by IDKit on the Platform; and
(ii)

IDKit's or the IDKit Partner's reasonable instructions to Client.

(h)

Each party must notify the other if it becomes aware of any Fault which may have a material adverse effect on the use of the Platform.
(i)

Both parties will work together in good faith and will use reasonable endeavours to ensure that any Fault is rectified within a reasonable period.

7Client restrictions

(a)

Except to the extent required by Law, Client must not and must procure that its Administrators and Users do not:

(i)

without the prior written consent of IDKit, access or use the whole or any part of the Platform, except as expressly authorised by this Agreement;
(ii)

copy or replicate, or directly or indirectly allow or cause a third party to copy or replicate, the whole or part of any of the Associated Documentation except and strictly only to the extent such copying is necessary for the normal use of the Associated Documentation or Platform;
(iii)

remove or obscure any proprietary notice (including any copyright, trade mark, service mark, or tagline) or other notices contained in the Platform or the Associated Documentation;
(iv)

circumvent any mechanisms in the Platform intended to limit Client's or any Administrator's or User's (as applicable) use of or access to areas within or components of the Platform;
(v)

sub-licence, rent, sell, lease, distribute, exploit, commercialise or otherwise transfer the Platform or Associated Documentation, except as expressly permitted under this Agreement; or
(vi)

vary, alter, modify, interfere with, reverse disassemble, decompile or reverse engineer, or otherwise seek to obtain or derive the source code from any part of the Platform (or directly cause or permit any other person to do so).

(b)

Client must not and must procure that its Administrators and Users do not, access or use the Platform, or post, provide or transmit any information, content or data in any way that:

(i)

violates or infringes the rights of IDKit or others including, without limitation, Intellectual Property Rights;
(ii)

contravenes any Law;
(iii)

is false, offensive, indecent, objectionable, harassing, obscene, pornographic, threatening, abusive, defamatory, libellous, fraudulent, tortious, or invasive of another's privacy or constitutes a breach of a person's legal rights (including Intellectual Property Rights);
(iv)

violates this Agreement or the Privacy Policy or any policy or terms of use posted on the Platform;
(v)

contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or other property, or otherwise permit the unauthorised use of a computer or computer network;
(vi)

is detrimental to or in violation of IDKit's or Client's systems, or a third party's systems or network security; or
(vii)

could damage, disable or impair the servers or networks used by the Platform or any Users.

8Updates

(a)

IDKit may implement (in its absolute discretion) Updates to the Platform from time to time.
(b)

IDKit will notify Client in advance of any such Updates which would materially alter the Platform or Services or have a material detrimental impact on the Platform.
(c)

If the Update or any other change or limitation imposed by IDKit has the effect of materially adversely altering Client's ability to use the Services or Platform, Client may elect to cancel the Services using the relevant cancellation functionality in the Platform. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such

9Fees, payment and GST

9.1Fees and Payment

(a)

Client must pay the Fees, without set-off, abatement or deduction, in accordance with this clause 9 and the Client's Subscription Package.
(b)

If Client fails to pay the Fees in accordance with the Subscription Package, then IDKit may on reasonable notice to Client (which notice may be given by the IDKit Partner, if applicable), where practicable, suspend the Services until payment is received in full.
(c)

IDKit and Client agree that the Fees may be increased by IDKit provided that:

(i)

IDKit (or the IDKit Partner, if applicable) must notify Client in writing of the revised Fees at least 30 days prior to the commencement of the updated Fees taking effect; and
(ii)

Client shall have the right to cancel the Services if it does not accept the revised Fees. In the event of such cancellation, Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.

9.2GST

(a)

If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
(b)

Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
(c)

If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d)

In providing an invoice, a party shall provide proper tax invoices if GST is applicable to the Fees.
(e)

Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) shall have that meaning in this Agreement.
(f)

All payments to be made by Client under this Agreement shall be made free and clear of and without deduction for or on account of taxes unless Client is required to make such a payment subject to the deduction or withholding of taxes, in which case the sum payable by Client (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that IDKit (or the IDKit Partner, as applicable) receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.

10Intellectual Property Rights

10.1Ownership

(a)

The parties acknowledge and agree that all rights, title and interest (including Intellectual Property Rights) in:

(i)

the Platform, the Services, Associated Documentation and the IDKit Marks, including in any improvements thereto (including as they may incorporate any Feedback), remain with IDKit and/or its licensors at all times;
(ii)

notwithstanding clause 10.1(a)(iii), all rights in the IDKit Data, including in any improvements thereto, immediately vest in and remain with IDKit at all times; and
(iii)

Client Materials (including, for example, Client Marks), including in any improvements thereto, remain with Client and/or its licensors at all times,

and nothing in this Agreement is intended to transfer any such right, title or interest to the other party.

(b)

In the event that Client acquires any Intellectual Property Rights described in clause 10.1(a)(i) or 10.1(a)(ii), Client:

(i)

hereby assigns all of such right, title and interest in and to such Intellectual Property Rights to IDKit; and
(ii)

will upon demand by IDKit (or the IDKit Partner, if applicable) do all such things and execute such documents as IDKit (or the IDKit Partner, if applicable) may reasonably require to give effect to that assignment.

(c)

In the event that IDKit acquires any Intellectual Property Rights described in clause 10.1(a)(iii), IDKit:

(i)

hereby assigns all of such right, title and interest in and to such intellectual property to Client; and
(ii)

will upon demand by Client do all such things and execute such documents as Client may reasonably require to give effect to that assignment.

(d)

Client, or its Personnel, may from time to time provide feedback (including suggestions, ideas, information, comments, process descriptions or other information) to IDKit and/or the IDKit Partner (Feedback). Client absolutely and unconditionally assigns to IDKit all rights, title and interests (including all Intellectual Property Rights) in and to any Feedback immediately upon creation, free of all encumbrances and third party rights and Client must at its own cost do all things necessary to give effect to such assignment, including executing any required documents or effecting any required registrations.

10.2Client Materials

(a)

Client agrees and acknowledges that it is solely responsible for any Client Materials.
(b)

Client must ensure that Client Materials, and the collection, use, processing, disclosure and dissemination of Client Materials via the Platform:

(i)

do not infringe the Intellectual Property Rights of any person; and
(ii)

comply with all applicable Laws.

(c)

Notwithstanding any other clause in this Agreement, Client agrees that IDKit will have the right to access, process, display, store and host (or procure a third party to process, store and host) Client Materials, for the purpose of providing Client with the Services and use of the Platform, and grants IDKit a royalty-free, worldwide, transferrable, non-exclusive licence to do so.

11Confidential Information and publicity

11.1Confidentiality

(a)

Subject to clause 11.1(b), a party must not disclose, or use for a purpose other than as contemplated by this Agreement, any Confidential Information of the other party.
(b)

A party may only disclose Confidential Information of the other party:

(i)

to its Related Bodies Corporate, and its and their respective employees, legal advisors or consultants, in each case under corresponding obligations of confidence as imposed by this clause and only where such persons have a need to know such information in connection with this Agreement;
(ii)

in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
(iii)

to the extent required by Law or pursuant to a binding order of a Governmental Agency.

11.2Publicity

(a)

Client acknowledges and agrees that, notwithstanding this clause 11, IDKit (and the IDKit Partner, if applicable) may disclose to third parties the fact that Client has entered into this Agreement with IDKit, including in any marketing or other material used by IDKit (or the IDKit Partner, if applicable). We will promptly stop doing so upon your request sent to hello@idkit.com.
(b)

Client grants to IDKit (and the IDKit Partner, if applicable) a royalty-free, non-exclusive licence to use and display the Client Marks on their respective websites or in in their respective marketing materials for the purposes of clause 11.2(a).

12Privacy and security

(a)

Each party must comply with the Privacy Act (as though it were an entity bound by the Privacy Act and notwithstanding the small business exception in the Privacy Act) and any other applicable Privacy Laws, in respect of any Personal Information.
(b)

Client must, throughout the Term, obtain all necessary Consents, and provide all necessary notices, relevant to:

(i)

its (and each Administrator's and User's) use of the Platform, including those in relation to collection, use, disclosure, processing and storage of Personal Information of any individual whose Personal Information may be input into the Platform; and
(ii)

IDKit's (and IDKit's third party suppliers') collection, use, disclosure, processing and storage of Personal Information in connection with this Agreement.

(c)

Without limiting clause 12(b), Client acknowledges and agrees that IDKit may require the inclusion of certain language in Consents obtained from, and notices provided to, Users, to assist its own compliance with Law, and Client must comply with such requirements.
(d)

Client acknowledges and agrees that IDKit may provide all or part(s) of the Services from any location worldwide.
(e)

Subject to any legal requirements, if a party receives a request from an individual for access to or correction of Personal Information about the individual, where such information is in the possession or control of the other party, it must notify the other party and such other party must promptly undertake the correction or provide such access as required by Law.
(f)

To the extent permitted by Law (including the Australian Consumer Law if applicable), the parties agree that IDKit makes no warranties as to the suitability of the Services or Platform with regards to Client's privacy obligations at Law or contract, and it is Client's sole responsibility to determine whether the Services or Platform is appropriate for Client.

13Data breaches

13.1Data Incidents

If a party (First Party) becomes aware of or suspects any loss of, or unauthorised access to, use or disclosure of, or breach of security in relation to, any data provided to the First Party by the other party in accordance with this Agreement (Data Incident), the First Party must promptly:

(a)

notify the other party in writing;
(b)

investigate the Data Incident and provide the other party with detailed information about the incident; and
(c)

promptly take all reasonable steps to rectify or remedy such breach where possible.

13.2Data Incidents

If a Data Incident occurs and Client wishes to notify the relevant regulator and/or affected individuals, any correspondence or notification to be sent by Client to the relevant regulator (and affected individuals, if applicable) that names IDKit or refers to the Services, must, to the extent permitted by Law, be in a form approved by IDKit in advance.

14Operating Environment

(a)

Client acknowledges that, except to the extent otherwise provided in this Agreement, it is solely responsible for establishing, providing or procuring, maintaining and supporting any Third Party Licences and any operating environment, facilities, systems, networks, devices, equipment and telecommunications and internet connections necessary to use and obtain the benefit of the Platform (Operating Environment). This Agreement will not affect the Client's legal relationship with any third party providers of systems, device or connections which comprise the Operating Environment.
(b)

Client must ensure that the Operating Environment has the necessary specifications, features and third party software required to ensure compatibility with relevant parts of the Platform, as may be notified by IDKit from time to time.

15Storage capacity, backup and deletion of Client Materials

15.1Storage capacity of Client Materials

The parties agree that IDKit may (acting reasonably) limit the amount of Client Materials that Client stores in the Platform. In the event that such a determination is made, IDKit will give Client at least 30 days' notice in writing of the need to reduce the amount of Client Materials stored in the Platform (which notice may be given by the IDKit Partner, if applicable).

15.2Backup of Client Materials

The parties agree that IDKit will perform backups of the Platform and the data stored on the Platform at such times and at such intervals as are reasonable for the purposes of the Platform, but no less than daily.

15.3Deletion of Client Materials

Without limiting clause 19, the parties agree that IDKit will provide for the deletion of Client Materials, including any backups, upon the written direction of a Client Administrator.

16Third Party Services

(a)

Client acknowledges that the Platform and Client Materials are hosted online and remotely by a reputable third party provider, and Client agrees that to the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit is not responsible for any delays, loss of data, or delivery failures to the extent caused by such third party provider.
(b)

Client acknowledges that the Platform and the Services are dependent on other third party service providers and agrees that to the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit will not be responsible or in any way liable for any:

(i)

interruptions to the availability of the Services or Platform resulting from the failure of third party services; or
(ii)

information contained on any linked third party website.

17Force Majeure

(a)

Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only for so long as the Force Majeure Event persists. This clause 17(a) shall not apply to payment obligations under clause 9.
(b)

The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

18Cancellation and Suspension

18.1Cancellation

(a)

Client may cancel the Services at any time using the relevant cancellation functionality in the Platform, however, shall not be entitled to a refund of any amounts paid in advance.
(b)

Either party may cancel the Services with immediate effect by giving written notice to the other party at any time if:

(i)

the other party experiences an Insolvency Event;
(ii)

the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 30 days after receiving written notice from the cancelling party requiring it to do so; or
(iii)

without limiting clause 18.1(a)(ii), the other party (or in the case of Client, any of its Users or Administrators) fails to comply with the obligations set out in clause 6(g) (Use of the Platform), clause 7 (Client Restrictions), clause 11 (Confidential Information and publicity) or clause 12 (Privacy and security).

(c)

Either party may cancel the Services on 30 days' written notice to the other party if, in its reasonable opinion, the continued use of the Platform would:

(i)

breach any applicable Law or professional standard; or
(ii)

bring its reputation into disrepute.

(d)

Notwithstanding clause 18.1(a), if Client cancels the Services pursuant to clauses 18.1(b) or 18.1(c)(i), Client shall be entitled to a pro-rata refund of any Fees paid in advance with respect to the period after the date of such cancellation.
(e)

This Agreement shall automatically terminate upon cancellation of the Services.

18.2Suspension

Without prejudice to IDKit's rights and remedies available under this Agreement or at Law, IDKit may suspend Client's access (or that of its Users) to the Services in the event that Client breaches this Agreement, until such breach is remedied to IDKit's reasonable satisfaction. Client shall not be entitled to any extension of its Subscription Period as a result of any such suspension. Client must continue to perform all of its obligations under this Agreement in the event of a suspension.

19Consequences of cancellation and termination

(a)

On expiration or termination of this Agreement for any reason

(i)

stop using (and procure that Administrators and Users stop using) the Platform and other Services; and

delete any Associated Documentation (including any and all Confidential Information of IDKit and the IDKit Partner) from its Operating Environment (including any third party systems operated on behalf of Client), return hard copies to IDKit or destroy them at IDKit's option, and provide written certification to IDKit that Client has done so at IDKit's request.

(b)

On expiration or termination of this Agreement for any reason, Client will cease to have access to any Client Materials (and IDKit may delete such Client Materials, unless prevented by Law). Client is responsible for exporting copies of any Client Materials from the Platform using the functionality provided for in the Platform prior to the conclusion of the Term.
(c)

Client must, within 5 Business Days of termination or expiry of this Agreement, pay to IDKit (or the IDKit Partner, as applicable), all Fees incurred and/or owing under this Agreement up to and including the date of termination or expiry. To the extent permitted by Law (including the Australian Consumer Law, if applicable), and except where expressly stated in this Agreement, Client will not be entitled to a refund of Fees which have already been billed or paid.

20Warranties

(a)

Each party warrants that it:

(i)

has the authority to enter into this Agreement and perform its obligations under this Agreement, and that this Agreement has been duly executed and is a legal valid and binding Agreement;
(ii)

will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party, and in the case of Client, the Platform or other Services; and
(iii)

shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.

21Disclaimer

To the extent permitted by Law (including the Australian Consumer Law if applicable):

(a)

Client acknowledges and agrees that, except as expressly set out in this Agreement, the Services and the Platform are made available "as is" and IDKit makes no representation, warranty or guarantee:

(i)

that the Platform will operate in combination with any other hardware, software, platform, Operating Environment or Client Materials;
(ii)

that the Platform will meet Client's requirements or expectations;
(iii)

that the Platform, and information extracted from it, will be accurate, free from defects, bugs, errors or omissions, or that any Client Materials input into the Platform will not be lost or corrupted; or
(iv)

(iv) in relation to non-infringement, title, fitness for a particular purpose, functionality, availability or merchantability.

(b)

IDKit uses reasonable endeavours to ensure that the Platform is free of viruses or other harmful components but cannot guarantee that the Platform will be free from unknown viruses and other harmful components.
(c)

IDKit shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other platforms outside the reasonable control of IDKit.
(d)

IDKit disclaims all liability in respect of the results of any use of the Services or the Platform.
(e)

IDKit makes no statement, representation or claim that Client's (or User's) use of the Platform will comply with any applicable Laws.
(f)

No third party is authorised to modify this Agreement or make any promises or representations on IDKit's behalf, and IDKit is not bound by any obligations to Client other than as set out in this Agreement.

22Indemnities

To the extent permitted by Law (including the Australian Consumer Law if applicable), Client shall defend, hold harmless and indemnify IDKit and its Personnel (Indemnified Parties) from and against any Loss suffered or incurred by them arising out of or in connection with:

(a)

any Claim by any person (including any User or third party) in connection with any data (including any Personal Information) used or disclosed by Client or its Users in connection with this Agreement;
(b)

a breach by the Client of the provisions of clause 11 (Confidential Information and publicity) and clause 12 (Privacy and security);
(c)

any Client Materials (including Personal Information) used or disclosed by Client (or any Users), including any Claim by any person that Client Materials infringe any Intellectual Property Right or other right (including privacy rights) of such person or any third party;
(d)

the use of the Platform by Client or the Users; and
(e)

any fraud, wilful misconduct or negligence by Client or its Users,

except to the extent that such Loss is caused by a breach of this Agreement or wilful misconduct or a negligent act or omission of such Indemnified Parties.

23Limitation of liability

To the extent permitted by Law (including the Australian Consumer Law if applicable):

(a)

To the extent permitted by Law (including the Australian Consumer Law if applicable), and subject to clause 23(d):

(i)

in no event will IDKit have any liability in respect of the results of any use of the Platform or other Services or any third party fraud which may be carried out using the Platform or other Services; and
(ii)

in no event will the aggregate liability of IDKit for any Loss, direct or otherwise, exceed an amount equivalent to the Fees paid by Client to IDKit in the twelve months prior to the claim, regardless of the cause or form of action.

(b)

To the extent permitted by Law (including the Australian Consumer Law if applicable), IDKit's liability to Client in respect of a breach of any applicable consumer guarantee under the Australian Consumer Law, is limited to the resupply of the services or the cost of resupplying the services (at the option of IDKit).
(c)

To the extent permitted by Law (including the Australian Consumer Law if applicable), under no circumstances will either party be liable for any Consequential Loss, except to the extent arising from a breach by the other party of its obligations under clause 10 (Intellectual Property Rights).
(d)

Clause 23(a) does not apply to, and shall not limit, any party's liability:

(i)

for death or personal injury caused by that party or its Personnel; or
(ii)

for its own fraudulent conduct (including fraudulent misrepresentation) or wilful misconduct.

24Assignment

Client must not assign or novate, directly and indirectly, any of its rights or obligations under this Agreement without the prior written consent of IDKit (such consent not to be unreasonably withheld or delayed).

25Survival

Without limiting any other provision of this Agreement, 9 (Fees, payment and GST), 10 (Intellectual Property Rights), 11 (Confidential Information and publicity), 12 (Privacy and security), 19 (Consequences of cancellation and termination), 20 (Warranties), 21 (Disclaimer), 22 (Indemnities), 23 (Limitation of liability) and any other clauses which should by their nature survive termination of this Agreement, survive termination or expiration of this Agreement for any reason.

26Notices

Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:

(a)

must be in writing and signed by the sender or a person duly authorised by the sender (or in the case of email, set out the full name and position or title of the sender or person duly authorised by the sender);
(b)

in the case of notices to IDKit, must be addressed and delivered in accordance with the "Support" section of the Platform; and
(c)

will be conclusively taken to be duly given or made when delivered, received or left at the above email address or address. If delivery or receipt occurs on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next Business Day in that place.

27Dispute Resolution

(a)

If a dispute arises out of or in relation to this Agreement, either party may notify the other in writing in which case a nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to one of the Managing Director, Chief Executive or Chief Operating Officer (Senior Executive) of that party.
(b)

If the parties are unable to resolve the dispute within fourteen (14) days following referral to the Senior Executive of the relevant parties, then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion.
(c)

Nothing in this clause 27, shall prevent a party from seeking urgent injunctive relief before an appropriate court.

28General

(a)

(Further assurances) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement.
(b)

(Entire agreement) This Agreement contains the entire agreement between the parties with respect to its subject matter. Neither of the parties has relied on or is relying on any other representation in entering into this Agreement.
(c)

(Amendment) Without limiting IDKit's rights under clauses 3 and 9.1(c), this Agreement may be amended only by a written agreement executed by all the parties.
(d)

(Responsibility for Personnel) To the extent permitted by Law (including the Australian Consumer Law if applicable) and subject to the terms of this Agreement:

(i)

Client will be fully responsible to IDKit for any Loss suffered by IDKit or its Personnel arising from or in connection with the acts or omissions of Client's Personnel, Users, and assigns, as if they were the acts and omissions of Client; and

(e)

IDKit will be fully responsible to Client for any Loss suffered by Client arising from or in connection with the acts or omissions of IDKit's Personnel (including the IDKit Partner), as if they were the acts and omissions of IDKit. (No waiver) No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
(f)

(Remedies cumulative) The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
(g)

(Severability) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(h)

(Costs) Each party must bear its own costs arising out of the review, negotiation, preparation and execution or acceptance of this Agreement.
(i)

(Governing law) This Agreement and, to the extent permitted by Law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

29Definitions and Interpretation

29.1Definitions

The following definitions apply unless the context requires otherwise. Administrator means member of Client's Personnel nominated by Client to administer certain managerial functions in relation to the Platform via the 'Registration Details' section of the Platform. Administrator Access means:

(a)

access to certain information about the Users and the use of the Platform by such Users;
(b)

the ability to upload and display Client Materials for inclusion into the Platform and to manage the settings for presentation of such materials; and
(c)

access to any other information or Platform functionality made available by Client to Administrators from time to time.

Associated Documentation means any documentation (including API documentation), guides, training and other materials (including videos) regarding the Platform or the Services that are made available to Client by IDKit (or the IDKit Partner, if applicable) from time to time (including via the Platform).

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time.

Business Day means a weekday (other than a public holiday) in Sydney, New South Wales.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Client Data means any User Data and any other data (including Personal Information) provided or otherwise made available by Client (including its Administrators), or a User, to IDKit (or the IDKit Partner, if applicable), or collected through the Platform, from time to time.

Client Marks means the brands, trademarks, designs, logos or names of Client.

Client Materials means any Client materials and information provided or made available by Client (including its Administrators) to IDKit (or the IDKit Partner, if applicable) from time to time, including Client Data.

Commencement Date means the date on which this Agreement is accepted by the Client by clicking "Save & Subscribe" at the time of your order.

Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement (including your Subscription Package), but excluding information which:

(a)

is or becomes a matter of public knowledge through no fault, action or omission of the recipient or its Personnel;
(b)

is rightfully received by the recipient from a third party without a duty of confidentiality;
(c)

was already known to the recipient at the time the disclosing party first made it available to the recipient, except as a result of disclosure known by the recipient to be made in violation of an obligation of confidence; or
(d)

was independently developed by the recipient without reference to the information of the disclosing party.

Without limitation, IDKit's Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, pricing information, client and client records, as well as business, corporate or trade information.

Consent means any licences, clearances, permissions, authorisations, permits, authorities, declarations, exemptions, waivers, approvals or consents.

Consequential Loss means:

(a)

any indirect or consequential loss (being loss which does not arise naturally as a result of a breach of this Agreement or other event the subject of the relevant claim); and
(b)

any loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), or loss of business.

Fault means a fault in the Platform that materially impacts the usability of the Platform.

Feedback means has the meaning given in clause 10.1(d).

Fees means IDKit's fees and expenses as stated in Client's Subscription Package, as may be updated from time to time pursuant to clauses 3 and 9.1(c).

Force Majeure Event affecting a party means an event caused by circumstances beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, epidemics and pandemics, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than that of its own staff), embargo, or power, water and other utility shortage.

Go-Live Date means the date on which the Platform is first made available to Client.

Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

IDKit Data means any materials, data and insights derived or created by or on behalf of IDKit or its Personnel in connection with the Platform or Services, including:

(a)

aggregated or de-identified Client Data;
(b)

information about the use of the Platform by Users and Client, including how Users interact with the Platform;
(c)

characteristics of the User base; or
(d)

any materials, data and insights which are otherwise based on, or created or derived from, or co-mingled with, any Client Data.

IDKit Marks means the brands, trademarks, designs, logos or names of IDKit.

IDKit Partner means the service provider engaged by IDKit to provide certain components of the Services to, and otherwise manage engagement with, Client, where applicable.

An Insolvency Event occurs in respect of a person where:

(e)

a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(f)

a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(g)

a party becomes or is (including under legislation) deemed or presumed to be insolvent;
(h)

a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
(i)

any composition or arrangement is made with any one or more classes of its creditors;
(j)

except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
(k)

a party enters into liquidation whether compulsorily or voluntarily; or
(l)

any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.

Loss means any claim, loss, damage, liability, cost, charge or expense (including expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.

Operating Environment has the meaning given to that term set out in clause 14.

Personal Information has the meaning given to that term in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with this Agreement.

Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any sub-contractors.

Platform means the IDKit platform available at www.idkit.com.

Privacy Act means the Privacy Act 1988 (Cth), as amended or replaced from time to time.

Privacy Law means:

(m)

the Privacy Act;
(n)

the Spam Act 2003 (Cth);
(o)

the Do Not Call Register Act 2006 (Cth);
(p)

any legislation from time to time in force in any:

(i)

Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
(ii)

non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and

(q)

any ancillary rules, guidelines, orders, directions, directives, codes of conducts or other instruments made or issued by a Governmental Agency under an instrument identified in paragraphs (a), (b), (c) or (d),

as amended from time to time.

Privacy Policy means IDKit's privacy policy available at www.idkit.com/legal/privacypolicy, as amended by IDKit from time to time.

Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act 2001 (Cth).

Senior Executive has the meaning given to that term set out in clause 27(a).

Services has the meaning given to that term in Recital B of these Terms of Service.

Subscription Package means the service specifications and subscription details completed and agreed by the parties through the Platform.

Subscription Period means the term you have selected for your Subscription Package, typically one month or one year.

Term means the period from the Commencement Date until this Agreement is terminated or expires in accordance with clause 2. Terms of Service means these terms, including the recitals, introductory paragraphs and clauses 1 to 29.

Territory means Australia and such other territory set out in your Subscription Package (if any).

Third Party Licence means any licence, registration or other authorisation that is required by Client to enable Client to properly access and use the Platform, including any licence, registration or other authorisation as notified by IDKit to Client.

Updates means any update or upgrade to the Platform issued by IDKit from time to time (including, without limitation, updates, maintenance, tuning, backup, amending, adding features, redesign, improving or otherwise altering the Services).

User Data means any data (including Personal Information) inputted into the Platform by a User, which may include contact details, identity documents, employment details and images.

Users means those end users to whom Client makes the Platform available.

29.2Interpretation

Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a)

the singular includes the plural, and the converse also applies;
(b)

where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c)

a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
(d)

a reference to a clause, is to a clause of these Terms of Service (as the context requires);
(e)

a reference to any party to this Agreement to any other agreement or document includes the party's successors and permitted assigns;
(f)

a reference to any agreement or document (including a reference to this Agreement) is to that agreement or document as amended, notated, supplemented, varied or replaced from time to rime, where applicable, in accordance with this Agreement or that other agreement or document;
(g)

a reference to legislation or to a provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(h)

a reference to conduct includes any omissions, statement or undertaking, whether or not in writing;
(i)

a reference to includes, means includes without limitation; and
(j)

all references to dollars or $ (or any other currency symbol) are to the currency specified in the Subscription Package.