Last modified: 19 April 2022
These General Terms and Conditions (the “Agreement”) governs the Customer’s acquisition and use of the Solution and the Services.
This Agreement is effective as of the date of the Customer’s accepting this Agreement (the “Commencement Date“) pursuant to Section 1 below.
1.1 By accepting this Agreement, through one of the following means: (i) executing the Order Form that references this Agreement; or (ii) paying the Fees set out in the relevant Order Form, the Customer agrees to the terms of this Agreement.
1.2 If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Solution or the Services.
Capitalised terms are defined at the end of this Agreement.
3.1 This Agreement shall commence on the Commencement Date and shall continue in effect for the period set out in the Order Form unless superseded or otherwise terminated by either Party (the “Initial Term“). On expiry thereof, the Order Form and this Agreement shall automatically renew for successive twelve (12) month periods (each, a “Renewal Period“) unless terminated by either Party by giving at least ninety (90) days’ written notice, such notice to expire at the same time as the expiry of the then-current Renewal Period.
4. ACCESS AND USE OF SOLUTION
4.1 In consideration of (and subject to) the Customer’s payment of the Fees to KYC, KYC shall grant the Customer the right to access the Solution in accordance with this Agreement.
4.2 The Customer may use the Solution only in the ordinary course of its business operations, for the benefit of the Customer and only in accordance with the terms of this Agreement, including the Service Specifications.
4.3 The Customer acknowledges and agrees that:
(a) KYC does not warrant the accuracy, reliability or fitness for purpose of the information contained in KYC Reports as KYC has no control over the information uploaded to the third-party services accessed by the Solution to create the KYC Reports; and
(b) the Customer shall review KYC Reports and carry out its own due diligence to ensure that the Customer is satisfied with the findings in each KYC Report.
4.4 KYC undertakes that the Solution will substantially comply with the Service Specifications, save for any non-conformance which is caused by using the Solution contrary to KYC’s instructions, or modification or alteration of the Solution by any Party other than KYC or KYC’s duly authorised contractors or agents.
4.5 If the Solution does not conform with Clause 4, KYC will use reasonable endeavours to:
(a) correct any such non-conformance promptly; or
(b) provide the Customer with an alternative means of accomplishing the desired outcome.
4.6 Notwithstanding Clause 4.4, KYC:
(a) does not warrant that the Customer’s use of the Solution will be uninterrupted, but that any interruptions will be kept within the limits as set out in the SLA;
(b) does not warrant that information obtained from third-party data sources, company registries and information uploaded by individuals via the KYC Application will be error free;
(c) does not warrant that that the KYC Reports and/or any other information obtained by the Customer through the Services will meet the Customer’s requirements, other than those detailed in the Order Form;
(d) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, Solution and KYC Reports may be subject to limitations, delays or other problems inherent in the use of such communications facilities; and
(e) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data to and/or from other third-party services accessed through the Solution, and the Customer acknowledges that the Services, Solution and KYC Reports may be subject to limitations, delays or other problems inherent in the use of such third-party services.
4.7 Customer acknowledges that the Solution accesses various third-party websites and services in order to complete background checks and/or verification searches and agrees that KYC shall not be responsible for the availability of such third-party services, or for the accuracy of any content provided thereby.
4.8 If the Customer’s Personnel require training in order to use the Solution or to understand the KYC Reports, on request of the Customer, KYC shall provide training for all users designated by the Customer, at times and locations agreed to by KYC and in accordance with the Order Form.
4.9 A Divested Entity may purchase or continue to receive Services under this Agreement for three (3) months following the date of divestiture.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall, in a timely and efficient manner:
(a) provide KYC with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by KYC (including the Customer Data and security access information), in each case to enable KYC to provide the Solution;
(b) comply with all Applicable Laws in respect of its activities under this Agreement;
(c) procure that any person given access to the Solution by the Customer (including Authorised Users) shall comply with the terms of this Agreement as if that person were a signatory to this Agreement (and any failure of such person to comply with any provision of this Agreement shall be deemed to constitute a breach of the relevant provision by the Customer);
(d) obtain and shall maintain all necessary licences, consents and permissions necessary for KYC, its contractors and agents to perform their obligations under this Agreement (other than those third-party licences, consents and permissions required from third-party websites, which the Solution accesses (as envisaged in Clause 7));
(e) ensure that its network and systems comply with the relevant specifications provided by KYC from time to time; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to KYC’s data centres, and for rectifying all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
5.2 The Customer acknowledges that it will be solely responsible for generating passwords via the Solution to enable its End-Customers to access the KYC Application.
6. SERVICE LEVELS
6.1 On and from the Commencement Date, KYC shall use reasonable endeavours to provide the Solution to at least the level set out in the Service Levels.
6.2 KYC will provide the Customer with a quarterly report (in line with the invoicing cycle) as to the achievement of Service Levels.
7.1 The Customer shall pay the Fees as agreed in the Order Form and, where applicable, the Adjustment Fees as set out in this Clause 7. For the avoidance of doubt, the Fees are applicable:
(a) as of the Commencement Date; and
(b) to all Customer environments, including the user acceptance testing environment (‘UAT’).
7.2 KYC shall be entitled to increase the Fees at the start of each Renewal Period upon thirty (30) days prior written notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
7.3 Use of the case review function in the Solution of an existing KYC Case will be treated as a new KYC Case for billing purposes.
7.4 The Customer acknowledges and agrees that if the Customer requests documents and services outside of the agreed-upon Services, including any documents ordered by the Customer from a company registry in addition to the standard package of documents provided as part of a KYC Case for a corporate, KYC may incur additional fees, disbursements, royalties, costs and/or expenses imposed by third-party providers (“Third-Party Fees”) on the Customer’s behalf. The Customer shall be solely responsible for and shall pay for such Third-Party Fees as and when directed by KYC (and either directly to the third-party provider or to KYC as reimbursement for KYC’s payment of the Third-Party Fees, as KYC may direct from time to time).
7.5 Within seven (7) days after the end of each quarter, KYC shall notify the Customer of the Actual Case Enquiries made during the previous quarter and the total charges incurred in relation to such Actual Case Enquiries completed during the quarter. For Customers on a Fixed Plan, such notice shall also confirm:
(a) if there is any Additional KYC Case Fee due, and if so, the value of the Additional Case Fee which is payable by the Customer (determined in accordance with Clause 7.6); or
(b) the number of unused KYC Case Enquiries in that quarter, if any, based upon the Case Package purchased by the Customer, which unused KYC Case Enquiries will be rolled over into the next quarter.
7.6 If the number of Actual Case Enquiries made in the relevant quarter is greater than the volume of Actual Case Enquiries contemplated by the Case Package, the Customer will pay to KYC an Additional KYC Case Fee, which shall be calculated as follows:
Additional KYC Case Fee = (Actual Case Enquiries – Case Package) x Additional Corporate Fee / Additional Individual Fee (as applicable)
7.8 All sums payable under this Agreement are exclusive of value added tax (“VAT”), Goods and Services Tax (“GST”) or other similar indirect taxes, which will be chargeable, where applicable, on production of a valid VAT/GST invoice by KYC.
8. PAYMENT TERMS
8.1 A KYC Case is considered billable by KYC upon creation of the KYC Case.
8.2 KYC shall issue invoices electronically to the Customer at the email address identified in the Order Form.
8.3 The Upfront Payment shall be paid within fourteen (14) days of the Commencement Date. KYC will not begin development, customization of or grant the Customer access to the Solution until the Upfront Payment has been received in full by KYC.
8.4 Following the invoice in respect of the Upfront Payment, for Customers on a Flexible Plan, invoices will be issued when the remaining credit balance reaches fifty per cent (50%) of the Initial Credit Balance. The Customer acknowledges and agrees that KYC will review the Customer’s historical usage prior to issuing each invoice and may increase the Initial Credit Balance to reflect the Customer’s creation of KYC Cases during that period.
8.5 Following the invoice in respect of the Upfront Payment, for Customers on a Fixed Plan, invoices will be issued monthly within seven (7) days after the end of the relevant month (or on such other date as KYC may specify).
8.6 Each properly and accurately prepared VAT/GST invoice shall be paid within fourteen (14) days following the date on which it is sent to the Customer. All sums payable under an invoice are exclusive of applicable bank fees, which shall be borne by the Customer.
8.7 KYC may charge interest on sums in respect of which the Customer has not sent payment by the invoice due date. Interest shall accrue daily and shall be paid at a rate of four per cent (4%) above the base rate of the Bank of Ireland (or such other base rate as KYC may specify) from time to time from the due date until the date of payment (inclusive).
8.8 If KYC has not received payment with ten (10) days after the due date for payment has passed KYC may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Solution and KYC shall be under no obligation to provide any or all of the Services while any such payment remains unpaid.
9. INTELLECTUAL PROPERTY RIGHTS AND LICENSING
9.1 The Customer acknowledges that in developing or providing the Services, KYC Reports, KYC Application and/or the Solution, KYC may utilise proprietary methodologies, tools, models, software, procedures, documentation, know-how and processes owned by KYC (“KYC Materials“).
9.2 The Customer agrees that, save as may be otherwise expressly agreed pursuant to Clause 9.3, as between the Parties, KYC owns all Intellectual Property Rights in the Services, KYC Application, the Solution and the KYC Materials. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Services, the Solution or the KYC Materials.
9.3 In circumstances where KYC develops an enhancement or other modification to the Solution or the KYC Materials at the request, and cost, of the Customer, KYC may (but shall not be obliged to) agree on a case-by-case basis that the Customer (and not KYC) shall own the Intellectual Property Rights in such modification or enhancement. Any such arrangement shall be arrived at in KYC’s sole discretion and subject to express written agreement between the Parties and shall in all cases be subject to (unless otherwise agreed in such written agreement):
(a) payment by the Customer of any additional fee in respect of the transfer of ownership of such Intellectual Property Rights which may be agreed in that written agreement; and
(b) the grant of an irrevocable, perpetual, royalty free, fully sub-licensable licence in favour of KYC to use, modify, adapt and otherwise exploit the relevant enhancement or modification in KYC’s business (as KYC may determine in its absolute discretion).
9.4 Subject to Clauses 9.1, 9.2 and 9.8, Intellectual Property Rights generated by KYC in KYC Reports through the provision of the Services shall vest in and belong to the Customer.
9.5 KYC grants to the Customer a limited, non-transferable, non-exclusive, royalty free, non-sub-licensable, fully paid up licence to use and/or access the Solution in accordance with this Agreement. The Customer may use or access the Solution at or from the Customer locations worldwide.
9.6 KYC grants to the Customer a limited, non-transferable, non-exclusive, royalty free, sub-licensable, fully paid up licence to use and/or access the KYC Application for the term of this Agreement and in accordance with this Agreement.
9.7 The Customer agrees to comply with any additional terms and conditions which are applicable to third party services accessed via the Solution, including any terms which govern the use of in any information made available by such third-party service providers.
9.8 Customer agrees and acknowledges that any Intellectual Property Rights in information provided by third party service providers shall be subject to the relevant third-party service provider terms and conditions.
10. USE RESTRICTIONS
10.1 Except to the extent specifically authorised by this Agreement, the Customer shall not, shall not attempt to, and shall not permit any other person under its reasonable control to:
(a) use any Service and/or Solution for any purpose, at any location or in any manner not specifically authorised by this Agreement;
(b) make or retain any copy of any Solution;
(c) re-engineer, reverse engineer, decompile or disassemble the Solution and/or the KYC Application except to the extent specifically permitted by Applicable Law;
(d) modify, adapt, translate or create derivative works based upon the Solution or Documentation, or combine or merge any part of the Solution or Documentation with or into any other software or documentation except to the extent specifically permitted by KYC and/or required by Applicable Law;
(e) refer to, disclose or otherwise use any Solution and/or Documentation as part of any effort either:
(i) to develop a program having any functional attributes, visual expressions or other features similar to those of the Solution; or
(ii) to compete with KYC;
(f) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Solution, or fail to preserve all copyright and other proprietary notices in any copy of the Solution made by the Customer; or
(g) sell, market, license, sublicense, distribute or otherwise grant to any person, including any outsourced service provider, vendor, sub-contractor, consultant or partner, any right to use the Solution or allow such other person to use or have access to the Solution, whether on the Customer’s behalf or otherwise.
10.2 The Customer agrees to use the KYC Reports solely for the internal use and benefit of the Customer’s organisation and not for re-sale or other transfer or disposition to, or use by, or for the benefit of, any other entity or person.
10.3 The Customer shall hold all Passwords in strict confidence and shall not assign, share, misuse or abuse the Passwords or attempt to render ineffective the password protection of the Solution. If the Customer suspects or learns that a Password is being used to gain unauthorised access to the Solution, the Customer will immediately notify KYC so that it can change, or assist the Customer in changing, the applicable Password. KYC may suspend access to the Solution without advance notice if KYC reasonably believes the Solution is being used or accessed in an unauthorized, illegal or disruptive manner, provided that KYC will promptly notify the Customer of any such event.
11.1 Each Party warrants that:
(a) it has, and will at all relevant times have, the requisite power, capacity and authority and all necessary licences, permits and consents to enter into this Agreement and to carry out its obligations contemplated herein;
(b) its execution and performance of this Agreement shall not constitute a violation of any Applicable Law, or of any judgment, order or decree of any court or governmental agency to which it is a Party, or by which it is bound;
(c) it does not have any commitments to third Parties that conflict with its obligations or grants under this Agreement; and
(d) it shall perform its obligations under this Agreement in a manner that complies with Applicable Law and will promptly notify the other Party if it receives a written allegation of non-compliance with any Applicable Law by any person.
11.2 Except as expressly stated in this Agreement, all conditions and warranties, express or implied by operation of law or otherwise, are hereby excluded to the fullest extent legally permissible.
11.3 The Customer warrants that, to the best of its knowledge and belief and after due diligence, that no money laundering or other unlawful act is committed in connection with entering into this Agreement and/or the use of the Solution. The Customer further warrants that no proceeds of any money laundering activities are used or will be used for any payment of fees under this Agreement. KYC reserves its rights to terminate this Agreement forthwith if the Customer’s activities are suspicious or breach any anti-money laundering laws or regulations.
12.1 During the term of this Agreement and for five (5) years after the date of termination or expiry, the following obligations shall apply to the Party disclosing Confidential Information (the “Disclosing Party”) to the other Party (the “Receiving Party”).
12.2 The Receiving Party:
(a) may not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement;
(b) may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with Clauses 12.3 and 12.4; and
(c) shall make every effort to prevent the use or disclosure of the Confidential Information.
12.3 The Receiving Party may disclose any Confidential Information to its directors, other officers, employees and sub-contractors (a “Recipient”) to the extent that such disclosure is reasonably necessary for the purposes of this Agreement. Before disclosure of any Confidential Information to a Recipient, the Receiving Party shall ensure that the Recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient were a Party to this agreement.
12.4 This Clause shall not apply to any Confidential Information which:
(a) at the date of this Agreement or any time thereafter becomes publicly known other than by breach of this Agreement;
(b) can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party without any breach or confidence having occurred;
(c) is required to be disclosed by any court or governmental, administrative or regulatory authority competent to require such disclosure; or
(d) is required to be disclosed by any Applicable Law or regulation.
12.5 Without prejudice to any other rights or remedies which the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to seek an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which it may be entitled.
13. PERSONAL DATA AND INFORMATION SECURITY
13.1 The Customer will be the Data Controller and KYC will be the Data Processor when processing the Customer Personal Data in the course of KYC providing Services to the Customer under this Agreement. Such Customer Personal Data may consist of names, addresses, dates of birth, photographic identity documentation, personal data in respect of Customer’s own clients and any directors, shareholders and other individuals with control of client corporate entities, including data obtained from anti-money laundering providers (which may concern special categories of personal data such as data relating to a person’s religious, philosophical or political beliefs or race or ethnicity). In this context, KYC shall in processing the Customer Personal Data:
(a) only process the Customer Personal Data for the purpose of providing Services to enable the Customer to undertake their anti-money laundering obligations, and only to the extent strictly necessary to do so;
(b) only carry out processing of the Customer Personal Data in accordance with the Customer’s instructions, as set out in the Order Form and as amended by the Customer from time to time;
(c) promptly advise the Customer of any notices, requests or queries from data subjects, any data protection supervisory authority or any law enforcement authority, for the Customer to resolve;
(d) at no additional cost, promptly provide such information and assistance to the Customer as it may reasonably require to allow it to comply with the rights of Data Subjects, including subject access rights, or with information notices served by a Competent Authority or to facilitate timely resolution of any matter arising hereunder or any investigation where practicable having regard to the nature of the processing and the information available to KYC;
(e) implement (and update from time to time as needed) appropriate technical, organisational, and security measures (including any specific security measures notified by the Customer) to protect the Customer Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, disclosure, or alteration, which measures shall be in accordance with the requirements of applicable data protection legislation having due regard for the nature of the Customer Personal Data concerned, the level of access to such Customer Personal Data, the nature, scope, context, and purposes of the processing, provided always that such measures shall ensure a level of security appropriate to the risks to the rights and freedoms of Data Subjects that might result from unauthorised or unlawful Processing or accidental loss, destruction, or damage to the Customer Personal Data, and KYC shall provide the Customer with a written detailed description of such measures promptly on request from time to time;
(f) ensure that each of its employees, agents and subcontractors have committed themselves to confidentiality obligations with KYC in order to maintain the levels of security and protection provided for in this Clause 13;
(g) in the event of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the Customer Personal Data, promptly upon becoming aware of such breach, report the incident to the Customer and shall cooperate with the Customer’s incident investigation requirements and the Parties acknowledge and agree that it is the Customer’s responsibility to ensure that the incident is reported in accordance with the procedures required by the Competent Authority and applicable data protection legislation;
(h) not appoint a third party sub-contractor to process the Customer Personal Data as a sub-processor without the authorisation of the Customer and for the avoidance of doubt, the Customer consents to the engagement by KYC of the sub-processors set out in here. KYC shall not appoint any other sub-processors without giving at least thirty (30) days’ prior written notice to the Customer, supplying details of the proposed sub-processor and the processing proposed to be conducted by such sub-processor. If KYC does not receive notice of any objection (together with the reasons for such objection) from the Customer within the specified period, the appointment of such sub-processor shall be deemed approved. Any appointment of a sub-processor by KYC shall be conditional on the sub-processor being bound to comply with obligations as a data processor and pursuant to applicable data protection legislation including the General Data Protection Regulation (“GDPR”) (where applicable);
(i) subject to the Customer giving KYC reasonable notice, KYC agrees to allow for and contribute to audits, including inspections, by the Customer or its auditor in order for the Customer to verify KYC’s compliance with this Clause 13. The scope and content of the audit will be agreed in advance and restricted to the Customer Personal Data and Customer shall comply with any reasonable requirements or directions of KYC in order to respect and maintain its confidentiality and security obligations to third parties; and
(j) unless otherwise agreed with Customer, KYC shall as soon as practicable deliver to the Customer or destroy, at the Customer’s sole option, all copies of the Customer Personal Data in its possession or under its control.
13.2 KYC shall not, without the Customer’s express prior written approval, send any Customer Personal Data to, store the Customer Personal Data at, or provide access to the Customer Personal Data from, any facility or data center outside the European Economic Area. If required by the Customer, KYC shall promptly execute, or shall procure that the relevant KYC Affiliate or Associated Person promptly executes, an agreement in the form set out in the European Commission’s Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under EU Directive 95/46/EC on Data Protection, or any replacement or additional form approved by the European Commission from time to time (the “Data Transfer Agreement“), populated as reasonably required by the Customer, with the Customer as required in order to benefit from the Services in compliance with Applicable Law.
13.3 If the Customer is collecting, transferring, processing and/or storing personal data of individuals who are citizens of the European Economic Area, the Customer confirms that it has obtained the necessary consent from such individuals for the collection, transfer, processing and storing of such individuals’ personal data outside of the European Economic Area.
13.4 Without prejudice to Clause 13.5, the Customer acknowledges that the Solution may from time to time provide access to unaffiliated third-party software or services in order to carry out specific verifications or checks at the option of the Customer and that KYC shall not be responsible for any Customer Personal Data or Confidential Information submitted by Customer to such third Parties. KYC will notify Customer when it is making available direct access to any such third-party service or software and the Customer’s use of such third-party service or software shall be subject to the privacy policies and practices of such third parties.
13.5 In the event that KYC engages any sub-processors in its provision of the Services, KYC shall ensure that the sub-processor is bound by equivalent provisions to those set out in this Clause 13 and KYC shall be responsible and liable, in accordance with Clause 15 hereof, for any breaches by any sub-processor of such obligations. The Customer consents to the appointment by KYC of the sub-processors set out here and KYC agrees that, prior to appointing any further sub-processors, KYC shall notify the Customer in writing of the identity of such sub-processor together with reasonable information as to the services to be provided by the sub-processor, the security measures being implemented by such sub-processor and, in the event of any transfers outside the European Economic Area, the measures in place to effect such transfer in compliance with the GDPR, no later than thirty (30) business days prior to the transfer of Customer Data to such sub-processor. The Customer shall notify KYC of any objections to such appointment no later than fifteen (15) business days prior to such proposed transfer date (“Objection Period”). If the Customer has not objected to such appointment prior to the expiry of the Objection Period, the appointment of such sub-processor shall be deemed to be approved. The Customer acknowledges that any objection to the appointment of a sub-processor may result in KYC being unable to continue to provide the Services (in whole or in part) to the Customer.
13.6 In consideration of the obligations undertaken by KYC in this Clause 13, the Customer warrants and represents that it shall comply at all times with applicable data protection legislation, and, in particular, the Customer warrants and represents that any disclosure of Personal Data made by it to KYC and its sub-processors and all processing instructions issued by the Customer (whether pursuant to the Services or otherwise in accordance with Clause 13) are and shall be in compliance with applicable data protection legislation.
14.1 Subject to the remaining provisions of this Clause, KYC will defend, hold harmless and indemnify the Customer from and against any claims successfully brought against the Customer by any third-party alleging that the use of the Solution or the KYC Reports by the Customer infringes the Intellectual Property Rights of that third-party.
14.2 If the Customer becomes aware of a matter which might give rise to a claim the subject of the indemnity set out in Clause 14.1 above:
(a) the Customer shall give notice in writing to KYC immediately of the matter setting out full details of the relevant claim (including the grounds on which such claim is based) and consult with KYC with respect to the matter;
(b) if (and when) the matter has become the subject of proceedings the Customer shall notify KYC immediately but, in any event, no more than five (5) days after becoming aware of the proceedings;
(c) the Customer shall grant to KYC sole control of the conduct of any proceedings to which this Clause 14 applies;
(d) the Customer shall provide to KYC and its advisers all assistance which KYC may require, including reasonable access to premises and personnel and to all relevant assets, documents and records that it possesses or controls, for the purposes of investigating the matter; and
(e) the Customer shall not admit liability in respect of or settle the matter without first obtaining KYC’s written consent (not to be unreasonably withheld or delayed).
14.3 KYC’s indemnity obligation under Clause 14.1 shall not extend to any claim arising as a result of:
(a) any use of the Solution, Services or KYC Reports other than as expressly envisaged or permitted under this Agreement;
(b) any modification of the Solution or any KYC Report made by or on behalf of the Customer where the such Solution or KYC Report would not be infringing without such modification; or
(c) the combination of the Solution, Services or any KYC Report with any other article in which Intellectual Property Rights subsist.
14.4 If the Solution or any KYC Report becomes the subject of any third-party infringement claim, KYC may, at its option:
(a) procure the right for the Customer to continue using such Solution or KYC Report as contemplated hereunder;
(b) modify such Solution or KYC Report to render it non-infringing; or
(c) replace such Solution or KYC Report with a suitable alternative (which is functionally and operationally equivalent in all material respects) solution or report which enables KYC to provide Services
15. LIMITATION OF LIABILITY
15.1 Neither Party excludes or limits its liability to the other for fraud or for death or personal injury caused by its negligence or that of its Personnel, or any other liability which cannot lawfully be excluded or limited.
15.2 Subject to Clause 15.1, KYC’s total aggregate liability under this Agreement and for all other claims, losses, costs or damages whether for negligence, breach of contract or however otherwise arising shall not exceed the total aggregate Fees paid by the Customer or its Affiliates pursuant to this Agreement in the first twelve (12) months of this Agreement.
15.3 Subject to Clause 15.1, the Customer’s total aggregate liability for:
(a) Fees (including any interest payable thereon) shall be unlimited; and
(b) all other claims, losses, costs or damages whether for negligence, breach of contract or however otherwise arising shall not exceed the total aggregate Fees paid by the Customer or its Affiliates pursuant to this Agreement in the first twelve (12) months of this Agreement.
15.4 Neither Party shall be liable to the other Party (or to any person or entity claiming through such Party) in respect of any:
(a) loss of profits;
(b) loss of revenue;
(c) loss of anticipated savings;
(d) additional operational and/or administrative costs or expenses;
(e) wasted management time;
(f) fine, levy or other imposition imposed by any regulatory body;
(g) ex gratia payments; or
(h) indirect or consequential loss or damage, however arising.
16.1 Either Party may terminate this Agreement forthwith on written notice if:
(a) the other Party breaches a material obligation under this Agreement and such breach is irremediable;
(b) the other Party fails to cure breach of a material obligation under this Agreement within thirty (30) days from the date on which the breaching Party receives a written notice of the breach and a demand for cure;
(c) the other Party is subject to an Insolvency Event;
(d) KYC ceases to be eligible to perform the Services; or
(e) the other Party fails or is unable to supply any information required and/or requested by a Party pursuant to Applicable Law.
16.2 KYC may terminate this Agreement forthwith on written notice if the Customer undergoes a change of Control such that they are under the Control of a competitor of KYC.
16.3 If this Agreement is terminated for any reason, then the Customer shall:
(a) immediately discontinue use of the Solution;
(b) remove all references and links to the Solution and the Services from the Customer’s and the Customer Affiliates’ documentation, websites and client materials;
(c) retain only that number of copies of KYC Materials and any related documentation strictly necessary to satisfy its obligations under Applicable Law; and
(d) give notice to KYC certifying that all other copies of such items have been permanently deleted.
16.4 Termination in accordance with this Agreement shall not prejudice or affect any right or action or remedy which has accrued or shall thereafter accrue in relation to either Party.
16.5 The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination or expiration in order to achieve the fundamental hereof shall so survive and continue to bind the Parties.
17. ASSIGNMENT AND SUBCONTRACTING
17.1 Subject to Clause 17.2, neither Party may assign, transfer, charge or in any other way make over the benefit of all or any of any other Party’s obligations nor any benefit arising under this Agreement.
17.2 KYC will be permitted to subcontract the performance of any of its obligations under this Agreement, provided always that KYC shall at all times remain fully responsible for all acts and omissions of its subcontractors as if such acts and omissions were its own.
18. FORCE MAJEURE
18.1 A Party will be excused from a delay in performing, or a failure to perform, its obligations hereunder to the extent that such delay or failure is due to a Force Majeure Event.
18.2 A “Force Majeure Event” means any event beyond the reasonable control of either Party preventing it from performing any of its obligations (other than payment) hereunder, including an act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, but excluding strikes, lock-outs or other industrial action, whether of the affected Party’s own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services.
19. RIGHTS OF AUDIT
19.1 KYC will permit the Customer, its regulator(s) or their representatives (collectively, the “Auditors“) to conduct audits of KYC as may be required under Applicable Law. The scope of each audit may include the following:
(a) KYC’s compliance with the terms and conditions of this Agreement, its compliance with Applicable Law;
(b) KYC’s information security practices;
(c) KYC’s policies; and
(d) any internal or external audit reports regarding KYC’s operations, controls, or financial condition, when available.
19.2 KYC will provide:
(a) prompt and complete responses to reasonable information requests by the Auditors;
(b) reasonable access to all records and information it has compiled regarding the foregoing; and
(c) use of on-site photocopying equipment and telephones at no charge to Auditors.
19.3 KYC will:
(a) allow Auditors to photocopy any documents selected by Auditors that relate to KYC’s Solution; and
(b) grant Auditors access to systems necessary to conduct an on-site or remote audit.
19.4 Notwithstanding the rights and duties set forth in this clause 19, KYC will promptly provide, at any time requested by the Customer, any records kept in the ordinary course of business that pertain to the Services and/or Solution and which KYC considers (acting reasonably) are needed by the Customer to enable the Customer to receive the full benefit of the Services.
19.5 The Customer acknowledges that the Solution will be hosted by a third party and any audit of such third party’s sites will be subject to the terms and conditions of the agreement between the relevant third party and KYC.
20. USE OF CUSTOMER NAME AND LOGO
20.1 The Customer consents to the use of their name and logo by KYC for marketing purposes and hereby acknowledges that they may withdraw such consent at any time in writing pursuant to the terms of this Agreement.
21.1 Any notice or other communication which either Party is required or permitted by this Agreement to serve on the other Party shall be in writing and shall be sufficiently served if sent to the other Party: (a) by hand; (b) by first class post or special delivery; or (c) by email transmission, in each case to the representatives named in the Order Form.
21.2 Notices sent by first class post or special delivery shall be deemed delivered three (3) Business Days following the day of posting. In all other cases, notices are deemed delivered within twenty-four (24) hours of sending.
21.3 Either Party may change its address(es) or representative(s) for receiving notices upon notice to the other.
22.1 KYC may update or amend this Agreement from time to time, provided such updates or amendments do not:
(a) result in a material degradation of the overall security of the Solution;
(b) expand the scope of or remove any restrictions on KYC’s processing of the Customer Personal Data as described in Clause 13; or
(c) have a material adverse impact on the Customer’s rights under this Agreement.
22.2 KYC will provide written notice to the Customer of any material updates to this Agreement.
22.3 In the event that the updates or amendments fall under Clause 22.1, KYC shall only make such updates or amendments upon receipt of prior written approval from the Customer.
23.1 A provision of this Agreement may only be waived by a written instrument signed by a duly authorised representative of the Party to be bound thereby. Waiver by either Party of any default shall not be a waiver of any other or subsequent default.
23.2 Except as expressly provided to the contrary in this Agreement, all remedies are cumulative and in addition to (not in lieu of) any other remedies available to a Party at law or in equity.
23.3 If a court of competent jurisdiction declares any provision of this Agreement to be invalid, unlawful or unenforceable as drafted, the Parties intend that (and shall use all reasonable endeavours to ensure that) such provision be amended and construed in a manner designed to give effect to the purposes of the provision to the fullest extent permitted by Applicable Law.
23.4 Neither the Agreement nor KYC’s performance of Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between the Customer and KYC; and (save as envisaged in clause 4) neither Party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other Party.
23.5 The operation of The Contracts (Rights of Third Parties) Ordinance Cap. 623 is hereby excluded.
23.6 Each Party acknowledges and agrees with the other Party that:
(a) this Agreement together with any other documents referred to in this Agreement (together the “Transaction Documents”) constitutes the entire and only agreement between the Parties relating to the subject matter of the Transaction Documents;
(b) it has not been induced to enter into any Transaction Document in reliance upon, nor has it been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in the Transaction Documents and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto; and
(c) the only remedies available to it in respect of the Transaction Documents are damages for breach of contract and, for the avoidance of doubt, it has no right to rescind or terminate any Transaction Documents either for breach of contract or for negligent or innocent misrepresentation or otherwise,
provided that the provisions of this Clause shall not exclude any liability which either of the Parties would otherwise have to the other Party or any right which it may have in respect of any statements made fraudulently by the other Party prior to the execution of this Agreement or any rights which any of them may have in respect of fraudulent concealment by the other Party.
23.7 This Agreement shall be governed and construed in accordance with Hong Kong law. Any dispute arising out of or in connection therewith (of a contractual or non-contractual nature such as claims in tort, breach of statute or regulation) shall be subject to the exclusive jurisdiction of Hong Kong courts.
DEFINITIONS AND INTERPRETATION
1.1 Each word or phrase listed below shall have the meaning designated when used in this Agreement, unless the context requires otherwise.
“Actual Case Enquiries” means the total number of KYC Case enquiries made in each quarter, or such other period as may be agreed by the Customer and KYC.
“Additional Case Fee” is defined in Clause 7.6.
“Additional Corporate Fee” is defined in the Order Form.
“Adjustment Fee” means the Additional Case Fee and Third-Party Fees, each of which shall be calculated and invoiced quarterly in arrears.
“Additional Individual Fee” is defined in the Order Form.
“Affiliate” means, in relation to a Party, any entity that from time to time directly or indirectly Controls, is Controlled by, or is under common Control with, that Party.
“Agreement” means this Master Services Agreement that governs the Customer’s access to and use of the Services, the Order Form, the SLA and the appendices and other exhibits incorporated by reference herein, as amended from time to time.
“Applicable Law” means country laws, state and federal laws, European directives, rules, regulations, executive orders, regulatory guidance, regulatory requirements and any form of secondary legislation, resolution, policy guideline, concession or case law from time to time, including:
(a) data protection, privacy or similar laws and regulations anywhere in the world applicable to persons in possession of Personal Data or to the processing of Personal Data; and
(b) any anti-bribery, anti-fraud, or other similar anti-corruption law or regulation of any relevant country including the UK Bribery Act 2010, the Prevention of Bribery Ordinance (Cap. 201) and the US Foreign Corrupt Practices Act 1977.
“Authorised User” means a Customer employee.
“Base Fees” are applicable to Flexible Plans only, and shall mean the Initial Credit Balance, license fee, support fee and the fee for Bespoke Services, if any, as set out in the Order Form.
“Bespoke Services” shall mean the bespoke services described in the Order Form, if any.
“Business Hours” means 09:00 to 17:00 in the jurisdictions KYC provides support in on a Business Day.
“Business Day” means any day other than a Saturday, Sunday or public holiday in the jurisdictions KYC provides support in.
“Case Package” means the pre-agreed quarterly volume of KYC Cases for a Fixed Plan which shall be documented in the Order Form and paid for quarterly in advance.
“Case Package Fees” are applicable to Fixed Plans only, and shall include the fee for the Case Package, the license fee, the support fee and the fee for Bespoke Services, if any, as set out in the Order Form.
“Commencement Date” means the date first written above.
“Competent Authority” shall mean the Office of the Privacy Commissioner for Personal Data, Hong Kong or other applicable authority and any replacement or successor authority or other supervisory authority with jurisdiction over a Party.
“Control” of an entity means the ownership of, or the power to vote, at least fifty per cent (50%) of the voting stock, shares or interests of such entity.
“Confidential Information” of either Party means all data, information, and material relating to the business, customers, internal policies, systems or affairs of that Party, its representatives or its customers that is or has been:
(a) disclosed by that Party to the other Party, whether orally, electronically, in writing or otherwise, including copies of such information; or
(b) learnt, observed, acquired or generated by the other Party in connection with this Agreement.
“Customer Personal Data” means Personal Data relating to the Customer’s Personnel or customers which is received by or on behalf of KYC in the course of providing Services to the Customer under this Agreement.
“Customer Data” means data relating to, or received by the Customer or its Affiliates from, clients of the Customer or its Affiliates.
“Customer’s Systems” means all computer or electronic processing equipment, all associated or interconnected network equipment, routers, semi-conductor chips, embedded software, and communication lines, all other equipment (including printers, copiers, fax machines and telephones), and all software owned, licensed or operated by, or operated on behalf of, the Customer or its Affiliates.
“Data Controller“, “Data Processor“, “data subject“, and “processing” shall be interpreted in accordance with the General Data Protection Regulation (EU) 2016/679.
“Divested Entity” means any Customer Affiliate, or any division of department of the Customer or a Customer Affiliate which is sold or otherwise transferred to one or more unrelated third Parties.
(a) all documents and materials (in any language, format or medium) that are normally supplied by KYC to its customers to aid in the use and operation of the Solution, including:
(i) functional, technical, design and performance specifications;
(ii) installation, configuration, administration, operation and maintenance procedures and instructions; and
(iii) training guides and user manuals;
(b) all additional documentation or materials describing the functional, technical, design or performance characteristics of the Solution provided by KYC to the Customer; and
(c) all modifications to such documents or materials that are made by or on behalf of KYC from time to time.
“End-customer” means the clients or potential clients of the Customer who have accepted the terms and conditions for KYC Application and submitted their verification information.
“Fee(s)” means all applicable charges and costs payable by the Customer in consideration for use and access to the Solution, including the Base Fees, Case Package Fees and the Adjustment Fees, as applicable.
“Incident” means an event or circumstance which causes or may cause an interruption to, or a reduction in the Availability of the Solution.
“Initial Term” is defined in the Order Form.
“Initial Credit Balance” is applicable to Customers on a Flexible Plan and is set out in the Order Form.
“Insolvency Event” means in relation to either Party the occurrence of any of the following:
(a) it stops, delays, suspends or declares an intention to stop or suspend payment of its debts or becomes unable to pay its debts as they fall due or otherwise becomes insolvent;
(b) a receiver or administrative receiver is appointed in respect of it or the whole or any material part of its assets or undertaking;
(c) a notice is issued for the purposes of convening a meeting to approve the placing of the Party in administration or liquidation, or a petition is presented, or an order made for the administration or liquidation of a Party or a Party otherwise becomes subject to dissolution proceedings;
(d) a voluntary arrangement pursuant to any relevant insolvency legislation, or any other arrangement, compromise or composition of the Party’s debts, or any class of its debts, is proposed or made by or with such Party; or
(e) a judgment, order or award made against a Party is outstanding and not discharged within ten (10) days or if any distress, execution, sequestration or similar process is levied on or commenced against any of the assets of a Party and not lifted, withdrawn or discharged within ten (10) days.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trade marks (including any goodwill accruing thereto), service marks, trade names, business names, internet domain names, e-mail address names, copyrights, moral rights, database rights, design rights, rights in inventions, all other intellectual property and proprietary rights (registered or unregistered), and all other equivalent or similar rights which may subsist anywhere in the world, and any application for the foregoing.
“KYC Application” means KYC’s proprietary mobile application through which End-customers are able to upload their verification documentation.
“KYC Case” means a background search and verification check for a singular company or individual, (which in relation to a company, shall mean only one entity in an ownership structure and verification checks on up to a maximum number of individuals connected to such entity as required by regulations or as agreed with the Customer).
“KYC Materials” is defined in Clause 8.1.
“KYC Reports” means all materials, documents, and reports relating to an end-customer’s verification results as produced, prepared or developed by KYC in the course of providing the Services.
“Maintenance Window” means any period during which KYC has prescheduled to carry out maintenance on the Solution.
“Order Form” means an order form issued by KYC specifying the Services KYC will provide to the Customer pursuant to the order form and this Agreement.
“Party” means either KYC or the Customer, individually as the context so requires, and “Parties” means KYC and the Customer, collectively.
“Password” means a unique access code generated by KYC and given to the Customer to access the Solution.
“Personal Data” means any information that can be used, directly or indirectly, alone or in combination with other information, to identify an individual.
“Personnel” means a Party’s or an Affiliate’s directors, officers, employees, non-employee workers, agents, auditors, consultants, contractors and subcontractors.
“Planned Maintenance” means any maintenance work conducted during a Maintenance Window and for which the Customer has received advance notice.
“Regulatory Bodies” means those government departments and regulatory, statutory and other entities, committees and bodies, which whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate or influence any matter dealt with in this Agreement or any other affairs of the Customer or its Affiliates.
“Renewal Period” is defined in Clause 2.1.
“Root Corporate Case” is the parent case or original case created for investigation, and includes all mandatory documents required to identify the status of the company and details regarding the directors, shareholders and the ultimate beneficial owner.
“Services” means the services described in the Order Form (including any Bespoke Services as applicable), together with the licensing of the Solution in accordance with (and subject to) the terms of this Agreement.
“Service Levels” means the performance standards required in respect of certain elements of the Solution and Services as set out in the Order Form.
“Service Specification” means the specifications for each Services as published or made generally available by KYC.
“SLA” means the Service Level Agreement set out here.
(a) the computer programs licensed by KYC to the Customer hereunder, including any customisations, enhancements, updates, upgrades, releases, replacement or successor products, defect corrections, and other modifications thereto provided to the Customer by KYC; and
(b) any third-party software that is embedded into, or otherwise furnished by KYC with, KYC’s proprietary software, together with related Documentation.
“Sub Corporate Case” is the intermediary layers or companies (entity shareholders with a significant percentage or “care percentage” – e.g. 25%) who need to be identified to build the UBO (Ultimate Beneficial Ownership) chart.
“Term” means the Initial Term and any Renewal Periods.
“Third Party Fees” shall have the meaning set out in Clause 6.4.
“Upfront Payment” is defined in the Order Form.
1.2 The following words shall be interpreted as designated:
(a) “or” connotes any combination of all or any of the items listed;
(b) where “such as”, “include”, “includes” or “including” is used to refer to an example or begins a list of items, such example or items shall not be exclusive; and
(c) “specified” requires that an express statement is contained in the relevant document.
1.3 References to any enactment, directive, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended by any subsequent enactment, directive order, regulation or instrument or as contained in any subsequent amendment thereof.
1.4 Except where the context otherwise requires, words denoting:
(a) the singular includes the plural and vice versa;
(b) any gender includes all genders; and
(c) persons include firms and corporations.