Onfido Services India Private Limited Specific Terms

Last updated: December 21, 2022

These terms (the “Onfido Services India Private Limited 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 Services India Private Limited. Terms not defined herein will have the meaning given to them in the OSA. 

1. DEFINITIONS

In these Onfido Services India Private Limited 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.

IGST means the integrated goods and services tax chargeable under Indian law and any similar additional tax.

Information Technology Act means the (Indian) Information Technology Act, 2000.

RBI means the Reserve Bank of India, India’s central bank established under the Reserve Bank of India Act, 1934.

2. WARRANTIES

2.1 Applicable stamp duty to be paid by Client.

2.2 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”.

2.3 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.

3. 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 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. CHARGES

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 All charges quoted to the Client will be exclusive of IGST. Onfido shall not be responsible to charge IGST on their invoice. It shall be the duty of the Client to pay IGST at the appropriate rate in accordance with the reverse charge mechanism under applicable IGST laws.

4.3 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 Office for National Statistics in the Retail Price Index or such other nationally recognised index as Onfido may reasonably designate) to the then-current Charges.  Any such increased Charges shall be the new Charges, which may be subject to increase the next contract year.

5. TERMINATION

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; 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; (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.

6. DATA PROTECTION

6.1 Onfido shall build strong safeguards to ensure that any Personal Data is logically segregated and may be easily extracted or accessed or identified in separation from the other data of Onfido.

6.2 Onfido will comply with its Information Security Policy and represents and warrants that its Information Security Policy is and will be in compliance with Privacy Law.

6.3 The parties agree that Onfido’s Information Security Policy constitutes “reasonable security practices and procedures” under section 43A of the Information Technology Act.

6.4 In relation to the Services, upon service of at least 14 days prior notice, the Client may review or monitor the security procedures practiced by Onfido on a regular basis and may review the security processes practiced by Onfido. Notwithstanding anything contained herein, the Client shall not have any right to control Onfido’s Information Security Policy.

6.5 Onfido will build strong safeguards to ensure that any Personal Data is logically segregated and may be easily extracted or accessed or identified in separation from the other data of Onfido.

6.6 For US Users only: This clause 6.6 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 6.6.

7. AUDITS

7.1 Onfido shall, only in relation to the Services provided to the Client, allow RBI or persons authorised by RBI to access the Client’s documents, records of transactions, and other necessary information given to, stored or processed by Onfido in connection with the Services. Any liquidation proceeding of Onfido shall not prevent RBI to access the Client’s information stored with Onfido in relation to the Services.

7.2 Onfido shall, only in relation to the Services provided to the Client, permit RBI to inspect its books of accounts to the extent relevant to the Services, by one or more of its officers or employees or any other person as appointed by RBI.

8. GENERAL

8.1 Without prejudice to Clauses 3 of the OSA or clause 4.3 of these Onfido Services India Private Limited 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 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, the Client acknowledges that Onfido may be required (and will be permitted) to change the manner in which it provides the Services.

8.3 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.

8.4 This Agreement and all disputes and claims arising out of or in connection with it are governed by Indian law. With the sole exception of any application for injunctive relief, the parties irrevocably agree that the courts of New Delhi 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).