Terms of Service

These Terms of Service (the "Terms") govern your access to and use of the AusWitness website, applications and services (together, the "Platform"), which facilitate the online witnessing of certain Australian documents by an Australian legal practitioner over a live audio-visual link. The Platform is operated by AusWitness ("AusWitness", "we", "us" or "our").

By accessing the Platform, creating an account, booking a witnessing session, paying a fee or otherwise using any part of the service, you agree to be bound by these Terms and by our Privacy Policy, which is incorporated by reference. If you do not agree with any part of these Terms, you must not use the Platform.

You should read these Terms carefully and keep a copy for your records. We recommend you do so each time you use the Platform, as the Terms may change over time in accordance with section 18. These Terms apply in addition to, and do not limit, any rights you have under the Australian Consumer Law and other applicable laws that cannot lawfully be excluded.

In these Terms, unless the context requires otherwise:

AusWitness

means the operator of the Platform and the entity that engages or arranges the Practitioner who performs the witnessing.

Platform

means the AusWitness website, web application, booking and payment systems, audio-visual facilities and any related services we make available.

Practitioner / witness

means the Australian legal practitioner (or other person authorised by law to witness the relevant Document) who conducts the audio-visual witnessing session on or through the Platform.

Statutory Declaration

means a written statement that the maker declares to be true under the relevant Commonwealth, State or Territory statutory declarations legislation.

Affidavit

means a written statement sworn or affirmed by the deponent for use in a court, tribunal or other proceeding.

Contract / Deed

means a commercial agreement or deed that the parties wish to execute and, where applicable, have witnessed, to the extent the Platform offers witnessing of such instruments.

AVL (audio-visual link)

means the live, real-time audio and video connection over which the Practitioner observes you sign, declare, swear or affirm the Document.

VOI (Verification of Identity)

means the process by which the Practitioner takes reasonable steps to verify your identity before witnessing the Document.

Document

means the Statutory Declaration, Affidavit, Contract, Deed or other instrument you submit for witnessing through the Platform.

User / you

means any person who accesses or uses the Platform, including the person whose Document is being witnessed.

AusWitness provides a facilitation and technology service. We connect you with a Practitioner who observes and witnesses the signing, declaring, swearing or affirming of your Document over an AVL, and who applies the witnessing formalities required for the relevant document type and jurisdiction. The substance, accuracy and legal effect of your Document are your responsibility.

The service is not a substitute for legal advice. The Practitioner does not draft, review, advise on or take responsibility for the contents of your Document, and does not advise you on whether the Document is appropriate, complete or effective for your purposes. If you need advice about your legal position, you should engage a lawyer separately.

No solicitor-client relationship is formed between you and the Practitioner or AusWitness beyond the limited act of witnessing. The Practitioner's role is confined to verifying your identity to the extent required, confirming you understand that you are signing, declaring, swearing or affirming the Document, observing the relevant act over the AVL, and completing the witnessing endorsement. AusWitness does not guarantee that any particular recipient, court, registry or government agency will accept a Document witnessed through the Platform.

To use the Platform, you must:

• be at least 18 years of age and have the legal capacity to understand and enter into these Terms and to make, swear or affirm the relevant Document;
• be signing, declaring, swearing or affirming an Australian Document that is governed by, or intended for use in, a supported jurisdiction; and
• be physically located in a manner consistent with the requirements of the relevant jurisdiction at the time of the session.

The Platform currently supports witnessing for the following jurisdictions: the Commonwealth of Australia (Cth), Queensland (QLD), New South Wales (NSW), Victoria (VIC), South Australia (SA), the Australian Capital Territory (ACT) and the Northern Territory (NT).

Western Australia (WA) and Tasmania (TAS) are not supported at this time due to regulatory restrictions on remote witnessing in those jurisdictions. If your Document is governed by, or intended for use in, WA or TAS, you must not use the Platform and should arrange in-person witnessing instead. We may decline or cancel a session, and refund any fee charged in error, where a Document falls outside a supported jurisdiction.

The Platform is designed to witness Statutory Declarations and Affidavits, and, where expressly offered, certain contracts and deeds. We do not witness any other category of document unless we specifically state that we do.

We do not witness, and you must not attempt to submit, any of the following types of document:

• wills and codicils;
• powers of attorney, including general and enduring powers of attorney;
• appointments of enduring guardian or similar guardianship instruments;
• advance health directives, advance care directives and similar health or care directives;
• land title and property registry instruments, including transfers of land, certificates of title, caveats and registry forms;
• contracts for the sale of land;
• mortgages and other registered dealings.

These exclusions exist because such documents typically carry heightened capacity, identity-verification or face-to-face witnessing requirements that cannot be properly satisfied over a short AVL call. Attempting to misuse the Platform to have an excluded Document witnessed – for example, by mislabelling a document or omitting its true nature – is prohibited and may result in immediate termination of your access, refusal of service and, where appropriate, referral to the relevant authorities. We use automated and manual checks to identify excluded documents, but the absence of a check does not authorise any prohibited use.

Before the Practitioner witnesses your Document, you must complete a Verification of Identity process. By using the Platform, you consent to the collection, verification and recording of your identity information for this purpose, including the presentation of identity documents to the Practitioner over the AVL.

Acceptable identification generally includes a current Australian driver licence, a current Australian or foreign passport, or other government-issued photographic identification we specify from time to time. You must present original, current and unaltered identification, and you must allow the Practitioner to view it clearly during the session. You warrant that all identity information you provide is true, accurate and your own.

The Practitioner and AusWitness reserve the right, in their absolute discretion, to refuse or discontinue service where your identity cannot be reasonably established, where the identification provided appears invalid, expired or altered, or where there are reasonable grounds to suspect fraud, impersonation or duress. Where service is refused for these reasons, no witnessing fee is payable.

To use the Platform, you must have your Document available in an electronic form (for example, a PDF) that can be displayed and signed during the session. You are responsible for ensuring the Document is complete and correct before the session, save for the signature and witnessing endorsement to be applied during the AVL.

During the session, the Practitioner will verify your identity, confirm that you understand the nature and effect of the act you are about to perform, observe you sign, declare, swear or affirm the Document over the AVL, and then apply the witnessing endorsement. Where the relevant jurisdiction requires the Practitioner to sign the Document on the same day that you sign, declare, swear or affirm it (the "same-day requirement"), the Practitioner will complete the endorsement on that same day, and you agree to remain available to enable this to occur.

Electronic signatures and the remote witnessing of documents are given effect under the Electronic Transactions Act 1999 (Cth) and the corresponding Electronic Transactions legislation of the supported States and Territories, together with any specific remote-witnessing provisions applicable to the relevant document type. By using the Platform, you consent to signing electronically and to your Document being witnessed by AVL, and you acknowledge that the method of signing used is appropriate and reliable for the purpose for which the Document is created. Some recipients may nonetheless require a physical, wet-ink original; it is your responsibility to confirm the recipient's requirements before using the Platform.

For compliance, quality-assurance and evidentiary purposes, the AVL witnessing session is recorded. By proceeding with a session, you expressly consent to the audio and video of the session being recorded, and you confirm that any other person who appears in the session also consents to being recorded.

Recordings and associated records are stored securely on infrastructure located in Australia and are subject to access controls. We retain the recording and related session records for approximately seven (7) years, or for such other period as may be required or permitted by law, professional obligations or the requirements of a relevant regulator, after which they may be securely destroyed. The recording may be produced where required by law, by a court or tribunal, by a regulator, or to verify the integrity of the witnessing.

If you do not consent to the session being recorded, the Practitioner will be unable to witness your Document and the service cannot proceed.

The fee for witnessing a Document through the Platform is A$29.95 per Document, inclusive of GST where applicable, unless we state otherwise before you book. The fee is charged only after the witnessing has been completed and your witnessed Document is ready to be downloaded. We may pre-authorise your payment method before the session, but you are not finally charged unless and until the witnessing is completed.

Because the fee is charged only after the service is delivered, a refund will generally not arise for a completed witnessing. However, consistent with the Australian Consumer Law, you are entitled to a remedy (which may include a refund) if the service is not provided with due care and skill or otherwise fails to meet a consumer guarantee that cannot be excluded. Where a session cannot be completed for reasons attributable to us, or where you are charged in error, we will refund the relevant amount.

You agree not to initiate a chargeback or payment dispute without first contacting us to seek to resolve the matter. Initiating a chargeback for a service that was properly delivered may, in addition to our recovery rights, result in suspension of your access to the Platform.

By using the Platform, you represent, warrant and agree that:

• the contents of your Document are true and accurate, and you understand the nature and effect of the Document and of the act of signing, declaring, swearing or affirming it;
• you understand that knowingly making a false statement in a Statutory Declaration or Affidavit is a serious criminal offence that may carry penalties including imprisonment;
• you are the person you claim to be, and you are not impersonating any other person or acting on instructions to deceive the Practitioner;
• you are signing freely and voluntarily, without coercion, duress or undue influence, and you have the capacity to do so;
• you will provide a quiet, private and well-lit environment for the session, with a stable internet connection and a working camera and microphone, and that no other person is present or influencing you in a way that is not disclosed to the Practitioner;
• you will not use the Platform for any unlawful, fraudulent or improper purpose, including to have an excluded Document witnessed; and
• all information you provide to us is current, complete and accurate.

You are solely responsible for the accuracy, completeness and legal effect of your Document. The Practitioner and AusWitness rely on the truth of your representations in agreeing to provide the service.

All intellectual property rights in the Platform, including its software, design, text, graphics, logos, trade marks and other content (excluding your Document and the information you submit), are owned by or licensed to AusWitness. We grant you a limited, non-exclusive, non-transferable and revocable licence to access and use the Platform solely for the purpose of obtaining witnessing services in accordance with these Terms.

You retain ownership of your Document and the information you submit. You grant AusWitness and the Practitioner a licence to use, store, display and process that material to the extent necessary to provide the service, to meet our legal and professional obligations, and to retain records as described in these Terms. You must not copy, modify, reverse engineer, resell or exploit any part of the Platform except as expressly permitted.

We handle your personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. Our Privacy Policy explains what personal information we collect (including identity information and session recordings), how we use, disclose, store and secure it, how long we retain it, and how you may access or correct it or make a privacy complaint. By using the Platform, you acknowledge that you have read the Privacy Policy and consent to our handling of your personal information as described in it.

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other law that cannot lawfully be excluded or limited. To the extent our services come with such guarantees, you may be entitled to remedies that we cannot exclude.

Subject to those non-excludable rights, and to the maximum extent permitted by law:

• the Platform and the witnessing service are provided on an "as is" and "as available" basis, and we do not warrant that the Platform will be uninterrupted, error-free, secure, or that any Document will be accepted by any particular recipient, court, tribunal, registry or agency;
• we are not liable for any loss arising from the contents of your Document, from your failure to satisfy a recipient's requirements, or from any technical failure, interruption or fault in your equipment or internet connection; and
• we exclude all implied terms, conditions and warranties except those that cannot be excluded by law.

Where our liability for a failure to comply with a non-excludable consumer guarantee may be limited, our liability is limited (at our option) to supplying the service again or paying the cost of having the service supplied again. In all other cases, and to the maximum extent permitted by law, our total aggregate liability to you arising out of or in connection with the Platform or these Terms, whether in contract, tort (including negligence), under statute or otherwise, is limited to the amount of the fee you paid for the relevant Document. We are not liable for any indirect, special, incidental or consequential loss, or for any loss of profits, revenue, data, goodwill or anticipated savings.

To the maximum extent permitted by law, you agree to indemnify and hold harmless AusWitness, the Practitioner and their respective officers, employees, contractors and agents from and against all claims, liabilities, losses, damages, costs and expenses (including reasonable legal costs) arising out of or in connection with: your breach of these Terms; your provision of false, misleading or fraudulent information; the contents or use of your Document; any false statement made by you in a Statutory Declaration or Affidavit; or your unlawful or improper use of the Platform. This indemnity does not apply to the extent the relevant loss is caused by our own negligence, fraud or wilful misconduct, or is otherwise not permitted to be indemnified at law.

We aim to make the Platform available on a broad basis, but we do not guarantee continuous or uninterrupted availability. We may modify, suspend or discontinue all or part of the Platform, and perform maintenance, at any time and without notice where reasonable.

We may suspend or terminate your access to the Platform immediately, without liability, where we reasonably believe you have breached these Terms, attempted to misuse the service (including by submitting an excluded Document), provided false information, engaged in fraudulent, abusive or unlawful conduct, or where required to do so by law or by our professional obligations. The Practitioner may also decline or discontinue a session at any time where they form the view that witnessing would be improper, unsafe or contrary to law or professional obligations. Termination does not affect any rights or obligations that accrued before termination, and the provisions of these Terms that by their nature should survive termination will continue to apply.

If you have a complaint about the Platform or the witnessing service, please contact us in the first instance at support@auswitness.com.au with details of your concern. We will acknowledge your complaint and seek to resolve it promptly and in good faith.

If your complaint cannot be resolved directly, the parties agree to engage in genuine, good-faith discussions to attempt to resolve the dispute before commencing any proceedings, except where urgent interlocutory or injunctive relief is required. Nothing in this section prevents you from exercising any rights you have under the Australian Consumer Law or from raising a concern with the relevant legal-profession regulator or your State or Territory consumer-affairs body.

These Terms are governed by the laws of Queensland, Australia, and the Commonwealth laws applicable in Queensland. You and AusWitness submit to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to hear appeals from them. The witnessing of a particular Document may, in addition, be subject to the laws of the jurisdiction that governs that Document.

We may update these Terms from time to time, for example to reflect changes in the law, our services or our practices. The current version will always be available on the Platform, and the "Last updated" date at the top of this page indicates when the Terms were last revised. Material changes will take effect when published, or on any later date we specify. Your continued use of the Platform after changes are published constitutes your acceptance of the revised Terms. If you do not agree to a change, you must stop using the Platform.

If you have any questions about these Terms or the Platform, please contact us:

AusWitness
Email: support@auswitness.com.au