These terms (the “Onfido SAS 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 SAS. Terms not defined herein will have the meaning given to them in the OSA.
In these Onfido SAS 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. For the purposes of SSN Check only, the definition of “Fraud Database Service Provider” is instead as follows: “Fraud Database Service Provider” means a government body or other third party service provider, including the U.S. Social Security Administration, that (i) checks whether an identity document has been previously identified to them as lost, stolen, fraudulent, or otherwise compromised, or (ii) verifies a U.S. social security number.
2. REPRESENTATIONS AND WARRANTIES
2.1 The parties expressly represent and agree that they have negotiated in good faith by having exchanged all information necessary and useful to express their respective consent.
2.2 The parties expressly acknowledge that, to the best of their knowledge and after having exchanged on the subject matter of the Agreement, they have all information which is decisive for their consent.
2.3 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. Onfido hereby disclaims any implied warranties whether arising under law, through course of dealing, or otherwise, (including any implied warranties of non-infringement, title, satisfactory quality, fitness for purpose, merchantability or conformance with description). 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. The Client understands that Onfido obtains the information reported in its reports from various third party sources “as is”, and therefore is providing the information to the Client “as is”.
2.4 Excluding Right to Work and SSN Check (to the extent purchased under the Order Form), 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.
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 7.1 of these Onfido SAS 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. This clause does not apply to SSN Check; provided, however, Onfido is not a consumer reporting agency and none of the information provided through SSN Check constitutes a “consumer report” as such term is defined in the FCRA.
4.1 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, or for any reason whatsoever.
4.2 In the event of non-payment of an invoice by the due date, the Client shall be liable to pay late payment penalties with an interest equal three (3) times the legal interest rate in force pursuant to Article L. 441-6 of the French Commercial code, on the delayed payments from the due date of payment until payment is made in full. In addition, in the event of overdue payment, the Company will be liable for the payment of an indemnity for recovery costs as set forth by a governmental decree and equal to 40 euros per invoice as of the effective date of this Agreement. Should the recovery costs actually incurred by Onfido exceed forty (40) Euros, Onfido will be entitled to ask for further compensation upon presentation of evidential documentation.
4.3 Onfido reserves the right, once per contract year, on the anniversary of the Effective Date, to revise the Charges by applying the Syntec index to the then-current Charges. To revise the Charges, the following formula will be applicable:
- P1 = P0 x (S1 / S0)
- P1 : Revised Charges
- P0 : Initial charges or last updated Charges
- S0 : Applicable Syntec index at the contractual date or upon the last date of revision of the Charges
- S1 : Last index published at the date of revision.
- Any such increased Charges shall be the new Charges, which may be subject to increase the next contract year.
5. PERMITTED USE AND PROPRIETARY RIGHTS
5.1 Onfido warrants that as far as it is aware, none of the Intellectual Property supplied by Onfido under this agreement infringes the Intellectual Property Rights of any third party. In the event of a third party claim, demand, suit or proceeding alleging that the Onfido Service 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 Onfido Service other than as permitted under this Agreement; (b) the combination of the Onfido Service 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 Onfido Service by any party other than Onfido or Onfido’s agents, or modification by Onfido or Onfido’s agents in accordance with Client instructions. 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 Onfido Service; (ii) replace or modify the Onfido Service so that it is no longer infringing. If neither of the foregoing options is reasonably available, 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.
5.2 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) 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; and (d) not compromise or settle such IP Claim. The Client may participate in the defence of the IP Claim at its own expense.
6.1 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 fails to pay any amount due under this Agreement or the Order Form on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or (b) (i) the other party is in material breach of this Agreement and/or the Order Form where the breach is incapable of remedy; or (ii) 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; in such case, the terminating party shall ask the appointed judicial administrator of the other Party to terminate this Agreement and the effective termination of this agreement is subject to the judicial administrator decision; 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 apply; or (f) required pursuant to a change in applicable law. If Customer 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.
7. DATA PROTECTION
7.1 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. This clause does not apply to SSN Check.
7.2 For US Users only: This clause 7.2 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 arbitration as opposed to proceedings in US federal or state courts. To achieve this, an arbitration agreement containing a non-severable class action waiver must be incorporated in Client’s terms and conditions with US Users, expressly naming Onfido as a third-party beneficiary entitled to enforce the individual arbitration agreement containing the non-severable class action waiver. 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 7.2.
8.1 Without prejudice to Clauses 3 of the OSA or 4.3 of these Onfido SAS 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.
8.2 It is specified that the Client is authorized to interface the Software with other instructions and/or different software for interoperability purposes for its own needs, in accordance with the French Intellectual Property Code. Before exercising the rights set forth in article 122-6-1 of the French Intellectual Property code regarding interoperability of the software, the Client shall ask all information to ensure interoperability to Onfido, and the Client shall only use this right if Onfido refuses to do so or does not reply within a reasonable time, and provided this information is not used by the Client to provide services to any third party. In the case where the provision of the information should entail Onfido’s intervention, the Parties shall determine a price, by means of an addendum.
8.3 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 a force majeure event, as defined by article 1218 of the French Civil Code (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.
8.4 Except as expressly stated otherwise, nothing in this Agreement will create or confer any rights or other benefits in favour of any person other than the parties to this Agreement. This clause shall not apply to SSN Check. For the purposes of Onfido’s provision to Client of SSN Check only, the United States Social Security Administration is named as a third-party beneficiary to the Agreement.
8.5 This Agreement and all disputes and claims arising out of or in connection with it are governed by French law. With the sole exception of any application for injunctive relief, the parties irrevocably agree that the courts of Paris 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).