End User Licence Agreement
Instant Checkout Pty Ltd
November 28, 2023
1. About this Service Schedule
2. Customer Data
2.1 We collect data that you and other Customers of Merchant Websites enter into each Merchant Website via the Instant Products (Customer Data) and use it for the purpose of supplying the Instant Products and the functionality contained therein to our customers.
2.2 You are responsible for the legality of your Customer Data that you enter into a Merchant Website.
2.3 Where you enter, upload, disclose or transfer Customer Data into a Merchant Website, you warrant, agree and represent that:
you are fully entitled and authorised to upload, input, transfer and disclose the Customer Data to us; and
you explicitly and freely give intelligible consent to us for our collection, use, storage and/or disclosure of the Customer Data that is entered, imported and uploaded into Merchant Websites;
the uploading, input, transferring, processing and disclosure of Customer Data to us via each Merchant Website by you does not and will not breach any applicable laws, regulations, codes or rules.
2.4 You agree that you, and not us, are solely responsible for the accuracy, completeness, legality and quality of all the Customer Data that you enter into each Merchant Website, and for obtaining all and any permissions, consents, licenses, rights and authorisations necessary for us and our third party contractors to collect, use and disclose Customer Data, to the extent we and/or they need to do so in order to operate Instant Products.
2.5 You must promptly notify us if any consent to the processing of Personal Information in any Customer Data is withdrawn.
3. Intellectual Property Rights
3.1 As between you and us, we and/or our Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth)) own all Intellectual Property Rights in Instant Products and in any updates, upgrades, new versions, maintenance releases and other modifications of Instant Products, and in any Documentation.
3.2 This EULA does not grant you or any third party any rights to or in patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other Intellectual Property Rights or other rights or licences in respect of Instant Products, Customer Data and/or the Documentation.
3.3 You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute our ownership in or rights with respect to Instant Products, Customer Data and/or the Documentation.
3.4 You may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our or our licensors’ Intellectual Property Rights in Instant Products, Customer Data and/or any Documentation.
3.5 You hereby assign to us all and any Intellectual Property Rights that you may have in all and any comments in connection with Instant Products or requests for new features therein that you may disclose, suggest, develop, conceive of or create (each, an Improvement Suggestion). Each Improvement Suggestion becomes our sole and exclusive property. This assignment is effective as soon as you suggest, develop, conceive of or create the Improvement Suggestion or disclose the Improvement Suggestion to the Merchant including where applicable under section 197 of the Copyright Act 1968 (Cth) and in equity. You further authorise us (and any third parties authorised by us) to infringe any Moral Rights that you have in any Improvement Suggestions. You must execute any documentation reasonably required by us to give effect to the assignment to us of all Intellectual Property Rights in any Improvement Suggestions and any Moral Rights consents from you in respect of Improvement Suggestions in our favour.
3.6 For the avoidance of doubt, we are not obligated to provide any Source Code to you with respect to Instant Products or any part of it.
4. Licence restrictions
4.1 You may not make any use of Instant Products except as expressly permitted by the EULA and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with our or our Third Party Service Providers’ Intellectual Property Rights in Instant Products or any part of it. Without limiting the foregoing provisions of this paragraph, you must not, under any circumstances, sell or resell access to Instant Products or scrape, republish, mirror or otherwise rent, lend, lease, sell or redistribute Instant Products. In addition, you must not, nor may you permit or assist any person to:
copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, license, sub-license, create derivative works from or enhance Instant Products (except as expressly permitted by the Copyright Act 1968 (Cth));
do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights;
infringe any patent that we may have, or any of our other Intellectual Property Rights;
take any steps to circumvent any technological protection measure or security measures in Instant Products or any part of them.
4.2 You must not use Instant Products in any way that is in breach of this EULA or any statute, regulation, law or legal right of any person.
5. Our right to terminate your access to Instant Products
5.1 Your rights in respect of Instant Products under the EULA are conditional upon:
your compliance with this EULA and/or any applicable laws and regulations governing your use of Instant Products; and
the terms and conditions of the EULA.
5.2 We may terminate your access to Instant Products at any time without notice:
if you fail to comply with this EULA and/or any applicable laws and/or regulations governing your use of Instant Products;
pursuant to the terms and conditions of the Licence; and/or
upon or following termination of this EULA.
5.3 Subject to any non-excludable obligations we may have under applicable law, upon termination of your access to Instant Products:
we may deactivate and/or restrict certain or all functionality in, or limit or prevent your use of and/or access to, Instant Products, via whatever technical means we choose to employ; and
we may delete Customer Data about you that we hold, unless and to the extent we are required by applicable law to retain it; and
you must cease use of the Instant Products.
6. Accessing and availability of Instant Products
6.1 You agree and acknowledge that the accessibility and use of Instant Products is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which Instant Products operates, interfaces with or connects to, and that we are not responsible for any non-performance of Instant Products associated with any of those matters.
7. Acceptable Use
8. Limitation of liability
8.1 Subject to any non-excludable guarantees implied in this EULA by Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) and any other applicable non-excludable law (collectively, Non-Excludable Guarantees), we do not represent that the Instant Products are accurate, correct, up-to-date or error free.
8.2 Except in respect of any Non-Excludable Guarantees:
you and us are not liable to each other for any direct loss of profits or for any indirect, special or consequential loss or damage incurred by the other, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data; and
each party’s liability, to the extent not otherwise excluded under this EULA, is limited, in the aggregate, to $100.
8.3 If goods or services supplied by us to you under this Agreement are supplied to you in your capacity as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable guarantees in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, we limit our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by us to you, in respect of each of the goods and services, at our option, to one or more of the following:
if the breach relates to goods:
the replacement of the goods or the supply of equivalent goods;
the repair of such goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods; or
the payment of the cost of having the goods repaired; and
if the breach relates to services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
8.4 Except with respect to any Non-Excludable Guarantees, all conditions, warranties, guarantees, rights and remedies implied in this EULA are excluded, to the extent possible by applicable law.
8.5 We will indemnify you from and against all and any loss or damage that you incur in connection with any claim and/or complaints made by any person where the claim is caused directly or indirectly by:
our breach of this EULA; and/or
our breach of any applicable law or regulation.
8.6 You must indemnify us in respect of any loss and damage we incur in connection with any claims and/or complaints made by any person where the claim is caused directly or indirectly by:
your use of Instant Products in breach of this EULA; and/or
your breach of any applicable law or regulation.
8.7 This clause 8 does not limit a party’s liability for:
intentional breach of this Agreement;
breach of the other party’s Intellectual Property Rights; and/or
liability that cannot be excluded under applicable law.
9.1 Any notice issued to you from us or from us to you shall be in writing and sent by hand delivery, post or email. Where sent from us to you, we shall use the contact details registered to your account held with us. You may contact us or send a notice to us using our contact details that are specified on our website at www.instant.one.
9.2 Any notice issued by hand shall be deemed delivered upon delivery.
9.3 Any notice issued by post shall be deemed delivered six (6) Business Days after posting if posted domestically, or ten (10) Business Days after posting if posted internationally.
9.4 Any notice issued by email shall be deemed delivered upon receipt by the sender of a read or delivery receipt from the recipient’s email system or a reply to the email from the recipient.
10.1 A party shall not assign or novate its rights or obligations under this EULA without the other party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing provisions of this clause 10.1, we may assign or novate our rights or obligations under this EULA at any time without your consent in connection with a restructure or sale of all or part of our company, business, shares or assets. Any purported assignment or novation in breach of this clause 10.1 is void.
10.2 This EULA constitutes the complete and exclusive statement of the agreement between you and us with respect to Instant Products, superseding all proposals or prior agreements, oral or written, and all other communications between you and us relating to Instant Products.
10.3 No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
10.4 If any provision of this EULA or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this EULA and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
10.5 This EULA shall be governed by the laws of New South Wales, Australia. You and us submit to the exclusive jurisdiction of the courts located in New South Wales and any courts of appeal therefrom, with respect to any dispute that may arise in relation to Instant Products or this EULA.
11. Definitions and Interpretation
- A reference to “a party” is a reference to us or you as the context dictates and a reference to “the parties” is a reference to us and you.
- Headings and underlinings are for convenience only and do not affect the construction of the Agreement.
- A provision of the Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
- Currency refers to Australian dollars.
- A reference to a statute or regulation includes amendments thereto.
- A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
- A reference to time is to time in New South Wales unless expressly specified otherwise.
- A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
- The words “includes”, “including” and similar expressions are not words of limitation.
- A reference to the singular includes the plural and vice versa.