Instant | Legal | End User Licence Agreement

End User Licence Agreement

Instant Checkout Pty Ltd

Last Updated

November 28, 2023

This End User Licence Agreement (EULA) is a legally binding agreement between you (you, your, End User) and Instant Checkout Pty Ltd (ABN 50 642 933 462) of 102/20 Poplar Street, Surry Hills NSW 2010 (we, our, us) for the use of Instant Checkout, Instant Audiences, Instant SMS and the other products and services that we offer (together, the Instant Products). This EULA should be read in conjunction with our Privacy Policy.

1. About this Service Schedule

1.1 By registering an account on Instant Checkout, you agree to use Instant Products only for the purposes of purchasing goods or services available on a Merchant Website and clicking on links that we may send to you on behalf of a Merchant via Instant SMS.

1.2 By registering an account on Instant Checkout, you: (a) agree to our Privacy Policy; (b) acknowledge that you have read and understood this EULA; (c) warrant and represent that you have the capacity to consent to, and enter into, this EULA as a legally binding contract; (d) accept this EULA and agree that you are legally bound by this EULA; and (e) consent to our collection, use, disclosure, handling and processing of your Personal Information in accordance with our Privacy Policy.

1.3 If you do not agree wholly and unconditionally to this EULA, and our Privacy Policy, you must not access, use or register an account on Instant Checkout.

1.4 You may only access the Instant Products on Merchant Websites and in connection with SMS received from us related to your activity on Merchant Websites (Licence).

1.5 We may release updates, upgrades, new versions or maintenance releases of Instant Products to Merchants from time to time. The provisions of this EULA apply to all such updates, upgrades, new versions and maintenance releases except where we expressly elect to provide an update, upgrade, new version or maintenance release under a separate agreement.

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

7.1 You must comply with this AUP and must not use, encourage, promote, facilitate, or instruct any person to breach this AUP.

7.2 You must act appropriately in all respects and must not display, store, distribute, transmit or otherwise make available communications or content via the Instant Products that contains abusive, offensive, harmful or objectionable language, that has the quality to defame or libel others or that infringes on the privacy rights or other rights of others.

7.3 You must not view, download, copy, send, post or access information that is illegal, fraudulent or obscene when using or accessing any of the Instant Products, and must not use such software and services in any way prohibited by this AUP or that would otherwise cause us loss and/or damage and/or negatively affect our reputation, associated goodwill or cause us to fall into disrepute or cause us to fall into dispute with any third party.

7.4 Without limiting the above provisions of this AUP, in the course of any End User using and/or accessing any Instant Product, the following are strictly prohibited:

accessing any other person’s account on the Instant Products other than the End User’s assigned account on the Instant Products;
uploading any content about a person without their consent, where that consent is required under applicable law;
using the Instant Products to violate all or any legal rights of any person, company or other entity in any jurisdiction;
using the Instant Products in breach of the Privacy Act 1988 (Cth) or any other applicable data protection laws in any relevant jurisdiction (including any intentional access, creation, modification, transmission, distribution or storage of information, data or material in breach of applicable law);
utilising the Instant Products in connection with crimes such as theft and fraud;
using the Instant Products in breach of any laws, including but not limited to, laws protecting copyright, trade secrets, patents or other intellectual property, and laws relating to spam or privacy;
unauthorised copying of copyrighted material including, but not limited to, installing any copyrighted software for which you do not have an active licence;
using the Instant Products in the course of providing negligent or unlawful services;
violating domestic and international export control laws including by exporting software, technical information, encryption software, or technology in contravention of such laws;
any form of computer hacking or introduction of malicious programs into the our or any of our service provider’s network, computer or servers (e.g., viruses, worms, Trojan horses, e-mail bombs, broadcast attacks or any other flooding techniques), or otherwise violating the security or integrity of any of our or our service provider’s network, computer or communications system or software applications;
revealing your Instant Products account password to others or allowing unauthorised individuals to use the Instant Products, including for the purposes of attempting to probe, scan or test the vulnerability of Instant Products;
using the Instant Products to upload, store, display, transmit content that is invasive, defamatory and/or obscene;
using the Instant Products to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes (except for the legitimate use of aliases and anonymous remailers, which is permitted);
using the Instant Products to execute any form of network monitoring or crawling which will intercept data not intended for you without permission;
using the Instant Products to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers;
using the Instant Products to interfere with or deny service to anyone;
using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person’s use of the Instant Products;
sending unsolicited email messages through, or to users of, the Instant Products in breach of the Spam Act 2003 (Cth);
using the Instant Products to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages;
using the Instant Products to send email to any email address, with the intent to spam or harass;
operating network services like open proxies, open mail relays, or open recursive domain name servers;
using the Instant Products to create or forward "chain letters", "Ponzi" or other "pyramid" schemes of any type; and
use of the Instant Products in breach of any person's privacy (such as by way of identity theft or "phishing"),

7.1 You must comply with this AUP and must not use, encourage, promote, facilitate, or instruct any person to breach this AUP.

7.4 Without limiting the above provisions of this AUP, in the course of any End User using and/or accessing any Instant Product, the following are strictly prohibited:

accessing any other person’s account on the Instant Products other than the End User’s assigned account on the Instant Products;
uploading any content about a person without their consent, where that consent is required under applicable law;
using the Instant Products to violate all or any legal rights of any person, company or other entity in any jurisdiction;
using the Instant Products in breach of the Privacy Act 1988 (Cth) or any other applicable data protection laws in any relevant jurisdiction (including any intentional access, creation, modification, transmission, distribution or storage of information, data or material in breach of applicable law);
utilising the Instant Products in connection with crimes such as theft and fraud;
using the Instant Products in breach of any laws, including but not limited to, laws protecting copyright, trade secrets, patents or other intellectual property, and laws relating to spam or privacy;
unauthorised copying of copyrighted material including, but not limited to, installing any copyrighted software for which you do not have an active licence;
using the Instant Products in the course of providing negligent or unlawful services;
violating domestic and international export control laws including by exporting software, technical information, encryption software, or technology in contravention of such laws;
any form of computer hacking or introduction of malicious programs into the our or any of our service provider’s network, computer or servers (e.g., viruses, worms, Trojan horses, e-mail bombs, broadcast attacks or any other flooding techniques), or otherwise violating the security or integrity of any of our or our service provider’s network, computer or communications system or software applications;
revealing your Instant Products account password to others or allowing unauthorised individuals to use the Instant Products, including for the purposes of attempting to probe, scan or test the vulnerability of Instant Products;
using the Instant Products to upload, store, display, transmit content that is invasive, defamatory and/or obscene;
using the Instant Products to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes (except for the legitimate use of aliases and anonymous remailers, which is permitted);
using the Instant Products to execute any form of network monitoring or crawling which will intercept data not intended for you without permission;
using the Instant Products to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers;
using the Instant Products to interfere with or deny service to anyone;
using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person’s use of the Instant Products;
sending unsolicited email messages through, or to users of, the Instant Products in breach of the Spam Act 2003 (Cth);
using the Instant Products to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages;
using the Instant Products to send email to any email address, with the intent to spam or harass;
operating network services like open proxies, open mail relays, or open recursive domain name servers;
using the Instant Products to create or forward "chain letters", "Ponzi" or other "pyramid" schemes of any type; and
use of the Instant Products in breach of any person's privacy (such as by way of identity theft or "phishing"),

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:
1. the replacement of the goods or the supply of equivalent goods;
2. the repair of such goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired; and
if the breach relates to services:
1. the supplying of the services again; or
2. 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:

wilful misconduct;
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. Notices

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. General

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

11.1 In this EULA, words in bold in parentheses have the meanings given to them therein. In addition, the following words have the following meanings, unless expressly agreed otherwise:

AUP means clause 7 of this EULA.

Business Day means any day from Monday to Friday in New South Wales, excluding public holidays in New South Wales.

Customer means a person that attends at a Merchant Website.

Documentation means the materials set out on our website https://www.instant.one/ with respect to Instant Products, any Instant Products user guides and training manuals and other Marketing Materials.

Instant Audiences means the offering by that name that is operated by us.

Instant Checkout means the offering by that name that is operated by us.

Instant SMS means the offering by that name that is operated by us.

Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under Article 2 of the Convention Establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.

Marketing Materials means marketing materials and content developed by us or on our behalf and made available to you from time to time with respect to Instant Products.

Merchant means the operator of a Merchant Website.

Merchant Website means a website operated by our customer that has Instant Products installed and operating on it pursuant to an agreement in place with us.

Moral Rights has the meaning given to it in the Copyright Act 1968 (Cth).

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Source Code means software code in human-readable form.

Third Party Service Providers means the third party service providers that Instant uses to deliver Instant Products.

11.2 Unless the context requires otherwise:

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.