These terms (the “Entity Specific Terms”) apply in addition to the terms of the Order Form, OSA and its Schedules, which collectively establish the “Agreement” between Onfido and the Client listed in the applicable Order Form in the event Onfido’s Affiliate that enters into an Order Form is Onfido GmbH. Terms not defined herein will have the meaning given to them in the OSA.
In these Entity Specific Terms, unless the context otherwise requires, the following definitions will apply:
Fraud Database Service Provider means a government body or other third party service provider that checks whether an identity document has been previously identified to them as lost, stolen, fraudulent, or otherwise compromised.
2. EXCEPTIONS TO THE OSA
Clause 8.1, 8.2 and 8.3 of the OSA shall be deleted and replaced with the following:
8.1 Nothing in this Agreement or in any Order Forms limits or excludes either party's liability:(a) for injury to body, life and health; or (b) for fraud or fraudulent misrepresentation; or(c) for intent or gross negligence; (d) payment of sums properly due and owing to the other in the course of normal performance of this Agreement and all Order Forms; or; (e) under the German Product Liability Act.
8.2 Subject to Clauses 8.1 and 8.2, neither party will be liable under or in connection with this Agreement or any Order Form (whether in contract, tort or otherwise) for any: (a) loss of profit; (b) loss of anticipated savings; (c) loss of business opportunity;(d) loss of reputation or goodwill; or (e) special, indirect or consequential losses; suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this Agreement and/or the applicable Order Form). Onfido will not be liable for loss suffered by the Client to the extent Onfido cannot independently substantiate a claim due to the fact that the Client has instructed Onfido to delete the underlying Personal Data.
8.3 Subject to Clauses 8.1 and 8.2, either party is liable for simple negligence only in cases of breach of an essential duty necessary for the due execution of this Agreement so that the Client may generally rely on their proper observation. For such liability, either party's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement and all applicable Order Form will be limited to the typical and foreseeable damages contemplated by the parties at execution of this Agreement. The parties agree that the typical and foreseeable damages is 125% of the total amount paid and payable by the Client under the applicable Order Form for the 12 months period immediately preceding the event giving rise to the first claim.
3.1 No conditions, warranties or other terms apply to any Services (including any Software) supplied by Onfido under this Agreement other than the conditions, warranties and terms expressly set forth herein. In addition, Onfido does not warrant or enter into any other term to the effect that any Software or any technology provided in connection with this agreement or any order form will be entirely free from defects or that its operation will be entirely error free.
3.2 Client acknowledges and agrees the Services are based on information that was not collected, in whole or in part, for the purpose of serving as a factor in establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family or household purposes, employment, or any other similar purpose. Accordingly, Client shall not use any Services as part of its decision-making process for determining a consumer's eligibility for credit, insurance or any other similar purpose. For the avoidance of doubt, this clause is not intended to prohibit the Client from using the Services for the purpose of verifying a User’s identity.
4. FRAUD DATABASE SERVICE PROVIDERS
Client acknowledges and agrees that (i) the Services include the sending of identity documents to a Fraud Database Service Provider; (ii) the Fraud Database Service Provider may retain identity documents that are suspected to be fraudulent for the purpose of identifying fraud in the future; and (iii) Clauses 10.2.3, 10.2.4, 10.2.5, 10.2.8, 10.5, and 10.6 of the OSA and clause 10.1 of these Entity Specific Terms shall not apply to Processing by a Fraud Database Service Provider. Client may deactivate the aforementioned Services at any time by notifying Onfido in accordance with this Agreement.
5.1 Unless otherwise specified in the Order Form, the Client will pay each invoice submitted to it by Onfido in full within 30 days of the date of the invoice. The Client may not withhold payment of any invoice or other amount due to Onfido by reason of any right of set-off or counterclaim which the Client may have, or allege to have, except if the right or claim is indisputed or has been validated in a legally binding manner by a court of competent jurisdiction.
5.2 Onfido reserves the right, once per contract year, on the anniversary of the Effective Date, to apply the annual rate of inflation (as published by as applicable, the the German Federal Statistical Office (Statistisches Bundesamt) in the Producer Price Index for Services (Erzeugerpreisindex für Dientleistungen) to the then-current Charges. Any such increased Charges shall be the new Charges, which may be subject to increase the next contract year.
6. PERMITTED USE AND PROPRIETARY RIGHTS
6.1 In the event of a third party claim, demand, suit or proceeding alleging that the Services directly infringes or misappropriates the Intellectual Property Rights of a third party (“IP Claim”), Onfido will not be liable to the extent such IP Claim arises directly from: (a) Client’s or any User’s use of the Services other than as permitted under this Agreement; (b) the combination of the Services with any Client Data or any Client or third party products, services, hardware, data, content, or business processes; or (c) from the modification of the Services by any party other than Onfido or Onfido’s agents. If Onfido becomes aware of an IP Claim alleging infringement or misappropriation, or Onfido reasonably believes such a IP Claim will occur, Onfido may, at its sole option: (i) obtain the right for the Client to continue use of the Services; or (ii) replace or modify the Services so that it is no longer infringing. If neither of the foregoing options are legally or technically possible, Onfido may terminate this Agreement in which case Onfido shall refund to Client a prorated amount of prepaid fees for the Onfido Service applicable to the remaining period in the then-current affected Order Form term.
6.2 In the event that the Client becomes aware of an IP Claim it will: (a) promptly give written notice of the IP Claim to Onfido; (b) unless prohibited by applicable law, give Onfido the sole control of the defense and settlement of the IP Claim (provided that Onfido may not settle any IP Claim unless the settlement unconditionally releases the Client of all liability for the IP Claim); (c) provide to Onfido all available information and assistance in connection with the IP Claim (at the Client’s expense); and (d) not compromise or settle such IP Claim.
Either Party shall have the right to give Notice of termination with immediate effect for good cause (aus wichtigem Grund). Without prejudice to any other rights or remedies which the parties may have, either party may suspend, terminate or partially terminate this Agreement and the applicable Order Form without liability to the other party immediately on giving Notice to the other party if: (a) the other party is in default (in the meaning of Sec. 286 of the German Civil Code (Bürgerliches Gesetzbuch) and payment remains in default not less than 30 days after being notified in writing to make such payment; or (b) (i) for good cause (aus wichtigem Grund) where the other party is in material breach of this Agreement and/or the Order Form where the breach is incapable of remedy; or (ii) for good cause (aus wichtigem Grund) where the other party is in material breach of this Agreement and/or the Order Form where the breach is capable of remedy and fails to remedy that breach within fourteen (14) days after receiving written Notice of such breach; or (c) it enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on any Services; or (d) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets (e) the circumstances in Clause 3 of the OSA or the circumstances in clause 9 ‘Rights of Client in the event of Defects of a Service’ of these Entity Specific Terms, paragraph (c) apply; or (f) required pursuant to a change in applicable law. If Client terminates this Agreement because Onfido commits a material breach, Onfido will refund any unconsumed prepaid Charges calculated pro rata. If Onfido terminates this Agreement because the Client commits a material breach, Onfido will be entitled to the Charges until the end of the relevant payment period. Payment obligations will continue in full during any period of suspension by Onfido for material breach. On termination of this Agreement and the applicable Order Form, the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, will not be affected.
8. LIMITATION OF LIABILITY
8.1 Notwithstanding the provision of the Onfido Dashboard, the Client will be responsible for its own back-ups and data storage, and accordingly the liability for damages due to data loss is limited to the amount for the costs of restoring the data which would also have been incurred if Client had backed up the data daily.
8.2 For defects in the provision of Services, Onfido assumes warranty in accordance with clause 9 below ‘Rights of Client in the event of Defects of a Service’.
8.3 Any further liability is excluded. In particular, liability for initial defects of the Services (Sec. 536a Para. 1 Alt. 1 of the German Civil Code (Bürgerliches Gesetzbuch)) is excluded.
9. RIGHTS OF CLIENT IN THE EVENT OF DEFECTS OF A SERVICE
9.1 For Defects in the provision of the Services, Onfido assumes warranty in accordance with the following provisions:
(a) Onfido will resolve Defects following written Notice from the Client in accordance with the escalation and severity levels set out above. Resolution of Defects may include, at Onfido’s discretion, rectifying the Services (including providing the Client with instructions in order to enable the Client to use the Services again in accordance with this Agreement), or providing them again.
(b) If Defects are not resolved within a reasonable period of time set by the Client in writing (which shall be no earlier than the response times set out above), the Client may reduce the agreed remuneration by a reasonable amount in accordance with applicable law, up to a maximum of the monthly remuneration relating to the defective part of the Services.
(c) If the reduction pursuant to paragraph (b) reaches the maximum amount specified in paragraph (b) in two consecutive months or in three months of a quarter, Client may terminate the Agreement for cause in accordance with clause 7 of these Entity Specific Terms.
(d) The period of statutory limitation for warranty claims is one year, unless they are based on intent or gross negligence or relate to damages to life, body or health.
9.2 If a review of an error report submitted by Client should reveal that there is no Defect and/or that the Defect is not caused by the Services, Onfido may request the reasonable reimbursement of costs incurred through the analysis efforts and any other reasonable efforts and expenses in connection with the unjustified error report.
9.3 For the purposes of this section, “Defects” means substantial deviations from the scope of functions agreed in the Order Form and Schedule 1 that would constitute a P0. The provisions of (a) to (d) of clause 9.1 of these terms shall also extend to deficiencies in title, unless otherwise addressed in accordance with clause 6 of the OSA, where such deficiency renders use of major parts of the Services impossible or only allows a severely restricted use of the Services. In relation to defects of the Software, the Rights of Client in the event of Defects of a Service set out in in the foregoing shall apply
10. DATA PROTECTION
10.1 Onfido will ensure that all Personal Data residing in the United Kingdom or European Economic Area is not transferred out of the United Kingdom or European Economic Area to data recipients in third countries which do not ensure an adequate level of data protection as determined by the European Commission or the Information Commissioner’s Office, unless the parties have entered into Information Commission and/or European Commission approved Standard Contractual Clauses or other data protection safeguards in compliance with Privacy Laws and provide other reasonably necessary assistance for the Client to meet its compliance obligations under Privacy Laws with respect to the Service.
10.2 For US Users only: This clause 10.2 only applies to the extent the Client makes the Services available to Users who are residents of any state of the United States at the time of using the Services (“US Users”). Where the Client does so, it will take any necessary steps to ensure that Onfido may lawfully obtain US Users’ Personal Data (including biometric identifiers and/or biometric information) for the purpose of providing the Services in accordance with applicable biometric information laws, including the Illinois Biometric Information Privacy Act (BIPA), in particular the requirements pertaining to providing notice and obtaining consent (where required) as outlined in Onfido’s Facial Scan Policy (https://onfido.com/facial-scan-policy-and-release/), Onfido’s Developer Guides (https://developers.onfido.com/guide/onfido-privacy-notices-and-consent) and Onfido’s Terms of Service (at https://onfido.com/terms-of-service/). The Client will link to these in its interface with US Users, and ensure that US Users accept these, prior to asking US Users to proceed to complete any check powered by Onfido.
Client must ensure that all disputes with US Users regarding the provision of the service (including the processing of biometric information) by a third party identity verification provider are pursued through individual proceedings in US federal or state courts. To achieve this, a non-severable class action waiver must be incorporated in Client’s terms and conditions with US Users. The waiver should expressly name Onfido, and confirm that the User shall not sue Onfido as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class action lawsuit against Onfido. Client must obtain consent from US Users to such terms and conditions.
Client will defend and indemnify Onfido, on an unlimited basis, against any claims brought by third parties due to the Client’s failure to comply with this clause 10.2.
11.1 Without prejudice to Clauses 3 of the OSA or 5.2 of these Entity Specific Terms, no variation of this Agreement or any Order Form will be valid unless it is agreed in writing and signed by both of the parties. Failure or delay in exercising any right or remedy under this Agreement or any Order Form will not constitute a waiver of such (or any other) right or remedy.
11.2 Neither party will be liable for any delay or non-performance of its obligations under this Agreement or any Order Form to the extent that such delay or non-performance is a result of any condition beyond its reasonable control (a “Force Majeure Event”). To the extent that a Force Majeure Event occurs, Client acknowledges that Onfido may be required (and will be permitted) to change the manner in which it provides the Services.
11.3 This Agreement and all disputes and claims arising out of or in connection with it are governed by German law without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. With the sole exception of any application for injunctive relief, the parties irrevocably agree that the courts of Berlin, Germany have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement (including its subject matter or formation).