Terms of Service

Instant Checkout Pty Ltd

|

Last Updated

July 10, 2024

Terms of Service

Instant Checkout Pty Ltd

|

Last Updated

July 10, 2024

IMPORTANT INFORMATION ABOUT RENEWALS: These Terms of Service include an automatic renewal provision that results in the term of each Agreement automatically renewing for subsequent consecutive periods each of equivalent length to the Initial Term, until and unless notice of termination is given by a party, time being of the essence.

IMPORTANT INFORMATION ABOUT RENEWALS: These Terms of Service include an automatic renewal provision that results in the term of each Agreement automatically renewing for subsequent consecutive periods each of equivalent length to the Initial Term, until and unless notice of termination is given by a party, time being of the essence.

IMPORTANT INFORMATION ABOUT FEES: We may increase the Fees payable under an Agreement during the Term of the Agreement once in each 12-month period, commencing on the first anniversary of the Commencement Date.

IMPORTANT INFORMATION ABOUT FEES: We may increase the Fees payable under an Agreement during the Term of the Agreement once in each 12-month period, commencing on the first anniversary of the Commencement Date.

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnities in our favour at clauses 5.6, 6.3, 9.7, and 11.5 of these Terms of Service. 

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnities in our favour at clauses 5.6, 6.3, 9.7, and 11.5 of these Terms of Service. 

IMPORTANT INFORMATION ABOUT NEGOTIATING AN AGREEMENT WITH US: Please note that we are willing to consider in good faith any reasonable amendments that you may wish to propose to the documents that comprise an Agreement, before we enter into an Agreement with you. If you wish to propose any such amendments, please contact us.

IMPORTANT INFORMATION ABOUT NEGOTIATING AN AGREEMENT WITH US: Please note that we are willing to consider in good faith any reasonable amendments that you may wish to propose to the documents that comprise an Agreement, before we enter into an Agreement with you. If you wish to propose any such amendments, please contact us.

1. Agreements for the supply of products and services
  1. We may issue a quotation to you from time to time. Our quotations are only open for acceptance for 30 days from the date that they are issued.

  2. Each time a quotation that we issue to you that references these Terms of Service, the applicable Service Schedules and any SLA is accepted by you and you have provided us with the accepted quotation, a separate legally binding contract will be entered into between you and us consisting of the following documents (each such contract, an Agreement): 

    1. these Terms of Service;

    2. the applicable Quotation(s) (including any schedules, addendums or annexures that were attached to the Quotation by us);

    3. the applicable Service Schedule/s; and

    4. any Service Level Agreement (SLA).

  3. The US Data Processing Addendum is also incorporated into the Terms of Service as an addendum, if applicable.

  4. To the extent of any inconsistency between any of the documents listed in clause 1.2 and clause 1.3, the document listed first shall prevail, except where a document expressly specifies otherwise.

  5. We have no obligation to supply any products or services under an Agreement other than as expressly required by the applicable Quotation.

2. Term
  1. Each Agreement will commence on the commencement date specified in the Quotation, or if the Quotation does not specify a commencement date, the Agreement will commence on the date on which you signed the acceptance of that Quotation (Commencement Date).

  2. If a contract term, initial term or minimum period is specified in a Quotation (each, an Initial Term), upon expiry of the Initial Term, the Agreement will automatically continue for subsequent consecutive periods each of equivalent length to the Initial Term (each, a Renewal Term), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least thirty (30) days prior to the expiry of the Initial Term or the then-current Renewal Term (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Initial Term or the then-current Renewal Term (as applicable).

  3. If there is no Initial Term, the Agreement will continue from the Commencement Date until the Ordered Products have been delivered in full and the Ordered Services have been configured and are ready for use, and thereafter until either party terminates the Agreement on thirty (30) days' prior written notice to the other party.

3. Supply of the Ordered Products and/or Ordered Services
  1. We will supply each product and/or service specified in a Quotation (respectively, each an Ordered Product or Ordered Service and collectively, Ordered Products and Services) to you materially in accordance with any Specifications and any relevant Documentation.

  2. You must provide all necessary:

    1. cooperation, permissions, authorisations, assistance and consents; and

    2. access to Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources and premises, as reasonably required by us to supply the Ordered Products and Services to you.

  3. Where required by us, you must also arrange safe and timely access to Your Equipment and Your Premises (if necessary) for our Personnel and Third Party Providers to Provision, install, supply, deliver, support and maintain applicable Ordered Products and Services.

  4. Except to the extent that we are unable to exclude such liability under Applicable Law, we are not liable for any of the following matters (Excluded Services) except to the extent that a Quotation expressly provides for us to supply Excluded Services:

    1. the content, security or communications that you receive, access or rely upon when using Ordered Products and Services;

    2. ensuring that any data sent or received over any Ordered Products and Services is sent or received correctly;

    3. loss of data or for delays, non-deliveries or mis-deliveries of data; and/or

    4. ensuring that Your Equipment is compatible or interoperable with Ordered Products and Services.

  5. With respect to any proposed installation, implementation, Provisioning, ready for service, commencement, supply or start dates specified in a Quotation, such dates are estimates only.

4. Performance and availability of Ordered Products and Services
  1. We warrant that Ordered Products and Services will perform materially in accordance with the Specifications and Documentation.

  2. We do not warrant that Ordered Products and Services will be:

    1. uninterrupted or error-free, free from fault or external intrusion; or

    2. suitable for or will meet your requirements, unless such warranties are expressly set out in a Quotation or Service Schedule or cannot be excluded under non-excludable Applicable Law.

  3. If there is an SLA specified in a Quotation or Service Schedule, we will ensure that the applicable Ordered Products and Services comply with that SLA. 

  4. We may vary the underlying technology used to supply Ordered Products and Services at any time or from time to time, provided that the variation does not have any adverse effect on the Ordered Products and Services.

5. Ownership and use of Your Data
  1. Data in any form entered into, uploaded into or generated from Ordered Products and Services by your End Users (Your Data) is, as between you and us, owned by you and an Agreement does not transfer any IPR in Your Data to us.

  2. You hereby license us and our Third Party Providers on a non-exclusive, non-transferable, royalty-free basis throughout the Term to use Your Data to provide the Ordered Products and/or Services to you (Your Data Licence). The Your Data Licence is irrevocable and non-terminable during the Term.

  3. We are not responsible for any loss, destruction, alteration or unauthorised disclosure of any Your Data, except in relation to liability that cannot lawfully be excluded or where caused by our negligence, breach of an Agreement or failure to comply with Applicable Law.

  4. You warrant and represent that:

    1. Your Data and the collection, processing, storage and/or disclosure of it by us and our Third Party Providers as part of the Ordered Products and/or Services or as otherwise required by Applicable Law will not breach any Applicable Law or right of any person; and

    2. you will ensure at all applicable times that the use, hosting, transmission, modification, processing, collection, holding and disclosure of Your Data via the Ordered Products and/or Services does not breach any Applicable Law or any person’s rights, and that all relevant consents have been obtained by you as lawfully required for us, our Personnel and our Third Party providers to collect, hold, disclose and otherwise process any Personal Information in the course of performing our obligations or exercising our rights under an Agreement or pursuant to Applicable Law.

  5. As between you and us, you are solely responsible for the accuracy, legality and quality of all Your Data, for any claims arising in respect of Your Data and for obtaining any permissions, consents, licences, rights and authorisations necessary for us and our Third Party Suppliers to use, host, modify, hold, transmit, process, store and disclose Your Data in connection with an Agreement.

  6. You must indemnify us, our Personnel and Third Party Providers in respect of any loss and damage that we or they suffer and incur in respect of any claim that any of Your Data is lost, unavailable, deleted or corrupted or that the transmission, storage, hosting, disclosure, access or use of Your Data by us or our Third Party Providers, or the processing thereof by us or them, for the purposes of an Agreement, infringes the Intellectual Property Rights or other rights of any person or breaches any Applicable Law, except in relation to our liability that cannot lawfully be excluded or where caused by our negligence, breach of an Agreement or failure to comply with Applicable Law.

  7. We will not use Your Data other than to: 

    1. perform our obligations under a relevant Agreement;

    2. improve our products and/or services; and

    3. comply with our legal obligations.

  8. You must ensure that:

    1. your End Users are fully entitled to disclose to us all of the Your Data that is entered into Your Equipment and Ordered Products and Services; 

    2. all Personal Information in Your Data is accurate, up-to-date and complete; 

    3. you have obtained all necessary consents required for us, our Personnel and Third Party Providers to collect, use, disclose and process Your Data for the purposes of an Agreement; and

    4. except as otherwise specified in a relevant Service Schedule, you will handle all notifiable data breach obligations under and in accordance with Applicable Law in respect of Your Data, including in respect of any End User’s Personal Information that is jointly held by you and us.

6. Licences granted to Merchant
  1. The specific licence terms and conditions that apply to each Ordered Product and Service supplied to the Merchant under an Agreement are set out in the applicable Service Schedule relating to such Ordered Product or Service.

  2. The specific licence terms and conditions that apply to the access and/or use of Customer Data made available to you as part of each Ordered Product and Service, are set out in the applicable Service Schedules relating to such Ordered Product or Service (each, a Customer Data Licence).

  3. You must indemnify us and our Personnel from and against all and any loss and damage suffered and incurred by us arising from or in connection with your access and/or use of Customer Data in breach of the terms and conditions of an applicable Customer Data Licence, except to the extent such loss and/or damage was caused by our negligence, breach of an Agreement or failure to comply with Applicable Law.
7. End User Account
  1. The back-end of the Ordered Products and Services (Instant Account) can only be accessed and used by End Users authorised by you.

  2. The access and use of the Ordered Products and Services is limited to the number of End User licences specified in the Quotation, if any.

  3. You must ensure that End Users do not disclose or provide login credentials for the Instant Account to any third party. End Users are solely responsible for the confidentiality of their username and password and for any use and unauthorised use of the Instant Account. You must immediately notify us if you become aware of any unauthorised usage or access to the Instant Account and provide all necessary cooperation, assistance, information, materials, authorisations, permissions and access for us to investigate any suspected, actual or potential breach, misuse or unauthorised access of the Instant Account.

8. Intellectual Property Rights
  1. As between you and us, we own all IPR in: 

    1. all Ordered Products;

    2. all Ordered Services (including any software, Source Code, Object Code, databases and database structures that are incorporated into or supplied in connection with the Ordered Products and Services);

    3. all Customer Data; and

    4. all Output (excluding Your Data but including Customer Data) made available in or via the Ordered Products and Services (collectively, Our IPR).
       

  2. You must not represent that you own any of Our IPR.

  3. You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR and you must not do or authorise the commission of any act that would or might invalidate or be inconsistent with our (or our licensors’) ownership of Our IPR.

  4. You hereby assign to us all and any IPR in all and any comments in connection with Ordered Products and Services and any requests for new features, that you, your Personnel and/or End Users may make or suggest regarding them (each, an Improvement Suggestion). Each such comment and Improvement Suggestion becomes our sole and exclusive property. This assignment is effective when you, your Personnel or End Users make the comment or disclose the Improvement Suggestion to us or you including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your Personnel and End Users an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any such Improvement Suggestions by us and by any third parties who we authorise to operate or modify Ordered Products and Services.

  5. Subject to clause 8.6, we will indemnify you against all and any loss and/or damage, arising out of or in connection with any valid claim brought by any third party against you that your use of any Ordered Products and/or Services in accordance with an Agreement infringes that third party's Intellectual Property Rights (IP Claim), provided that:

    1. you notify us immediately upon the earlier of your receipt of any notice of any IP Claim or upon you suspecting or having reasonable cause to suspect that such an IP Claim may be made;

    2. you do not make any admission or settlement of the IP Claim without our prior written consent;

    3. you give us sole control of the defence and any negotiations for compromise or settlement; and

    4. you provide such assistance in connection with the IP Claim at our expense, as we reasonably require.

  6. We will not indemnify you in respect of claims brought by a third party where the infringement is caused or contributed to by:

    1. modification of the Ordered Products and/or Services without our prior written consent;

    2. a combination of the Ordered Products and/or Services with other products, services, processes, or materials not provided by us or that are not compatible with the Ordered Products and/or Services, excluding any products, services, processes, or materials that we expressly specify in the Quotation or Documentation may be used in combination with the Ordered Products and/or Services;

    3. you continuing the alleged infringing conduct after being notified of the infringing conduct or after being informed of modifications that would have avoided the alleged infringement; or

    4. any use of the Ordered Products and/or Services in a manner that is not permitted by this Agreement. 

  7. If any Ordered Products and/or Services become the subject of any IP Claim referred to in clause 8.5, you must permit us if, and as we consider appropriate:

    1. to replace all or part of the relevant Ordered Products and/or Services with functionally equivalent software; 

    2. to modify the relevant Ordered Products and/or Services as necessary to avoid such claim; and/or

    3. to procure a licence from the relevant complainant to allow you, your End Users and Personnel (as applicable) to continue using the relevant Ordered Products and/or Services during the Term.

  8. If in the above circumstances we are unable to procure for you the right to continue using the relevant Ordered Products and/or Services, to provide you with functionally equivalent non-infringing Ordered Products and/or Services, or to modify the relevant Ordered Products and/or Services, in each case as necessary to avoid the IP Claim, we may terminate the relevant Agreement.

9. Privacy
  1. In this clause 9, the following definitions apply:

    1. Data Incident: an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information in any Your Data in our possession or control.

    2. Eligible Data Breach: has the meaning given to that term in the Privacy Act.

    3. Investigation: the investigation set out at clause 9.7(c).

    4. Personal Information: means any personal information (as defined in the Privacy Act) in any of Your Data.

    5. Privacy Act: the Privacy Act 1988 (Cth) as amended from time to time.

  2. We warrant that we comply with and will continue to comply with the Privacy Act and all other applicable Data Protection Laws.

  3. You warrant that you:

    1. comply with and will continue to comply with the Privacy Act and all other applicable Data Protections Laws; and 

    2. will not provide any Personal Information to us unless that information is necessary for us to perform our obligations under an Agreement.

  4. We must:

    1. handle all Personal Information in accordance with our Privacy Policy to the extent that policy is not inconsistent with the requirements of this clause 9 or this Agreement;

    2. only use Personal Information for the purpose of performing our obligations under an Agreement or for the purposes of improving our products and/or services or providing technical support with respect to an Ordered Product and/or Service;

    3. comply with any reasonable directions given by you relating to:

      1. Personal Information to the extent that they are not inconsistent with the requirements of this clause 9; and

      2. a Data Incident, Investigation or Eligible Data Breach;

    4. not disclose Personal Information to any third party except our Third Party Providers without your prior written consent or as required under Applicable Law;

    5. ensure that any of our Personnel who are required to access or handle Personal Information are made aware of the obligations set out in this clause 9;

    6. protect Personal Information in our possession or control from:

      1. misuse, interference and loss; and

      2. unauthorised access, modification or disclosure;

    7. ensure that Personal Information is only made available to our Personnel on a need-to-know basis as necessary for the performance of our obligations under the Agreement or as otherwise permitted under an Agreement;

    8. promptly notify you in writing if we become aware of our or any third party's actual or possible:

      1. breach of any of the obligations in this clause 9; or

      2. misuse or loss of Personal Information, whether by us or any third party;

    9. anonymise, return or destroy Personal Information (except as required by Applicable Law) at any time as directed in writing by you, and otherwise on the termination or expiry of this Agreement, and require our Third Party providers do the same; and

    10. notify you immediately in writing if we become aware of any:

      1. request regarding access to, or correction of, any Personal Information;

      2. any complaint about the handling of Personal Information;

      3. any complaint made to us about our handling of Personal Information generally or beyond the scope of this Agreement; and

      4. disclosure of Personal Information required by law.

  5. In addition to our obligations in this clause 9, we also commit to take each of the following actions if we become aware, or there are reasonable grounds to suspect, that a Data Incident has occurred:

    1. take steps to resolve the Data Incident and prevent any further serious harm to affected individuals;

    2. immediately notify you in writing stating:

      1. the nature and details of the Data Incident;

      2. the specific Personal Information affected;

      3. the actions taken by us including those required at 9.7(a); and

      4. the recommended next steps for each of the parties and the affected individuals;

    3. identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident;

    4. engage in regular open and good faith discussions with you regarding:

      1. the conduct and outcomes of the Investigation;

      2. our ongoing actions to contain and resolve the Data Incident and prevent any further serious harm to affected individuals at 9.7(a); 

      3. in the case of an Eligible Data Breach, whether you or we will make the relevant notifications under the Privacy Act; and whether and to what extent any public or media statements will be made (in each case, your decision to be final); and

      4. where we are making the relevant notifications referred to in paragraph (iii), we must submit the notifications to you for approval before they are made (such approval to be given promptly and not to be unreasonably withheld).

  6. Each party will ensure that its Personnel who are required to handle Personal Information in the course of this Agreement are made aware of the obligations of that party in this clause 9.

  7. You:

    1. acknowledge that we are reliant on your direction as to the extent to which we are entitled to use Personal Information disclosed to us in the course of and for the purpose of this Agreement; and

    2. will indemnify us for any claim brought by any third party in connection with any act or omission by us in relation to a third party's Personal Information to the extent that such act or omission resulted from your instructions or your breach of your obligations or warranties in this clause 9 and all associated losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered or incurred by us, except to the extent caused by our negligence, breach of our obligations and/or warranties in this clause 9 and/or our failure to comply with Applicable Law.

  8. Except to the extent caused or contributed to by your negligence, breach of an Agreement and/or failure to comply with Applicable Law, we will indemnify you against any losses, liabilities, costs, charges or expenses and all other reasonable professional costs and expenses suffered and incurred by you arising out of or in connection with any breach by us of our obligations in this clause 9.

10. Confidentiality
  1. Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or has the quality of confidential information under Applicable Law (Confidential Information).

  2. The party who receives Confidential Information from the disclosing party (receiving party) may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to exercise its rights and perform its obligations under an Agreement or to comply with Applicable Law.

  3. Where we are required to do so under any contract with any Third Party Provider, we may disclose your Confidential Information to the Third Party Provider, where the Third Party Provider provides us with services that we use to provide any Ordered Products or Ordered Services.

  4. Confidential Information excludes information:

    1. that is independently developed, obtained or known by the receiving party, without breaching any obligation of confidence to the disclosing party;

    2. that the receiving party can prove was already known to it at the time it received the information from the disclosing party;

    3. that is in the public domain, except where due to a breach of an Agreement or any breach of any obligation of confidence or Applicable Law; or

    4. that the receiving party must disclose under the rules of any stock exchange on which it or its holding company is listed.

  5. Our Confidential Information includes the terms of an Agreement.

11. Acceptable Use
  1. You must ensure that only End Users access and/or use Ordered Products and/or Services and that each such End User:
    1. complies with each relevant Agreement, as if the End User was you;
    2. complies with all applicable Documentation, Applicable Law, our directions and policies (including any security policy) in the course of such access and/or use;
    3. does not infringe or permit any person to infringe any of our, or our licensors’, IPR; 
    4. provides us with access to Personnel, Your Equipment and/or any cooperation or assistance as necessary for us to carry out our duties under any relevant Agreement; 
    5. does not provide their passwords or other access credentials to any other person; 
    6. only uses the Ordered Products and/or Services, including any Output, for the Permitted Purpose;
    7. immediately notifies us of any unauthorised or suspected unauthorised use or disclosure of any access credentials for Ordered Products and Services; and
    8. uses reasonable and appropriate security measures and precautions when using any Ordered Products and/or Services.

  2. Ordered Products and/or Services. You must:
    1. ensure that you maintain a reliable internet connection for us to connect to Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises, where required by us to provide any Ordered Products and/or Services; 
    2. ensure that Your Premises are suitable and maintained in a manner suitable for the use of any Ordered Products and/or Services to the extent relevant; and
    3. not do anything that interferes with or prevents the proper functioning of any Ordered Products and/or Services.

  3. The availability of any Ordered Products and/or Services will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Specifications and/or Documentation.

  4. Unless otherwise expressly specified in an Agreement, you must not, and must not permit your End Users or any person to, use any Ordered Products and/or Services, including any Output:
    1. to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance any Ordered Products and/or Services or any trade marks, any patent or copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Ordered Products and/or Services;
    2. in any manner that breaches Applicable Law or violates all or any legal rights of any person in any jurisdiction (including any person’s privacy, such as by way of identity theft or “phishing”);
    3. to license, sublicense, resell, assign, novate, transfer, distribute, or provide others with access to, any Ordered Products and/or Services;
    4. to store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);
    5. interfere with, modify or disable any features, functionality or security controls of the Ordered Products and/or Services;
    6. copy, rent, lease, loan, sell, sublicense, distribute, pledge, assign, or otherwise transfer or encumber any rights in or to the Ordered Products and/or Services;
    7. use the Ordered Products and/or Services for the benefit of a third party unless otherwise agreed to in writing by the parties;
    8. modify or remove any proprietary notices, disclosures, disclaimers, or Instant Marks from the Ordered Products and/or Services;
    9. to make fraudulent or misleading offers of goods or services;
    10. to transmit, access or download defamatory, offensive, obscene or pornographic material;
    11. to reveal or publish proprietary, classified or confidential information;
    12. to generate or send unsolicited communications, advertising, chain letters, or spam in breach of Applicable Law;
    13. to carry out security breaches or disruptions of network communication (security breaches include accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
    14. to execute any form of network monitoring which will intercept data not intended for you; and
    15. to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or Third Party Providers, (collectively, our Acceptable Use Policy).

  5. You must indemnify us, our Personnel and our Third Party Providers from and against all and any loss or damage that we or they may suffer and incur as a result of any breach of our Acceptable Use Policy by you, your End Users or Personnel, except to the extent that such loss and/or damage was caused by our negligence, breach of an Agreement or failure to comply with Applicable Law. 
12. Fees
  1. You must pay the Fees to us in accordance with the Payment Terms. 

  2. Except as expressly specified otherwise in the Payment Terms, all invoices issued by us must be paid within seven (7) days from receipt of the invoice. 

  3. The Fees are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any supply (as that term is defined in the GST Law) made for the purposes of the relevant Agreement. You must pay all such taxes at the same time as the Fees in accordance with the Payment Terms.

  4. Without limiting any other rights or remedies available to us or you, we may suspend our obligations under an Agreement and your access to Ordered Products and Services if you fail to pay the Fees in accordance with the Payment Terms.

  5. If you fail to make any payment due to us under an Agreement in accordance with the Payment Terms then, we may notify any credit reporting body or agency of the default and without limiting our rights and remedies, you shall pay interest on the overdue amount, up to the highest rate of interest available under Applicable Law specified by us. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and you shall pay the interest together with the overdue amount upon demand by us. 

  6. We may increase the Fees payable under any Agreement by an amount equal to: 

    1. CPI; or 

    2. 4%

    whichever is higher, once in each 12 month period commencing after the first anniversary of the Commencement Date during the Term.

13. Warranties
  1. Each party represents and warrants to the other party that:

    1. it shall comply with all Applicable Law in performing its obligations under an Agreement;

    2. it is entitled to enter into this Agreement and perform its obligations under an Agreement;

    3. the Agreement has been duly executed by that party and is a legal and binding agreement, enforceable against it in accordance with the terms of the Agreement; and

    4. to its knowledge there are no actions, claims, proceedings or investigations pending or threatened against it or by it which may have a material effect on the subject matter of this Agreement.

  2. You represent and warrant to us that:

    1. you will fulfill all of your obligations, in your capacity as the operator of each Merchant Website, owed to Customers and will use reasonable endeavours to resolve all disputes with them;

    2. each Merchant Website targets Australian Customers or United States Customers; and

    3. each Merchant Website offers transactions in Australian dollars (AUD) or United States dollars (USD).

  3. To the extent permitted by law, both parties disclaim to the extent allowed by applicable law all express or implied conditions, representations, and warranties including, without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, satisfactory quality, or arising from a course of dealing, usage, or trade practice. Neither party makes any representations or warranties that its services will be accurate or available.

  1. Each party represents and warrants to the other party that:

    1. it shall comply with all Applicable Law in performing its obligations under an Agreement;

    2. it is entitled to enter into this Agreement and perform its obligations under an Agreement;

    3. the Agreement has been duly executed by that party and is a legal and binding agreement, enforceable against it in accordance with the terms of the Agreement; and
    4. to its knowledge there are no actions, claims, proceedings or investigations pending or threatened against it or by it which may have a material effect on the subject matter of this Agreement.

  2. You represent and warrant to us that:

    1. you will fulfill all of your obligations, in your capacity as the operator of each Merchant Website, owed to Customers and will use reasonable endeavours to resolve all disputes with them;

    2. each Merchant Website targets Australian Customers or United States Customers; and

    3. each Merchant Website offers transactions in Australian dollars (AUD) or United States dollars (USD).

  3. To the extent permitted by law, both parties disclaim to the extent allowed by applicable law all express or implied conditions, representations, and warranties including, without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, satisfactory quality, or arising from a course of dealing, usage, or trade practice. Neither party makes any representations or warranties that its services will be accurate or available.

14. Liability
  1. A party is not liable for any failure to perform its obligations under an Agreement to the extent such failure was caused by the other party or its Personnel.

  2. Nothing in this Agreement limits a parties obligation to mitigate its losses.

  3. Except to the extent such loss cannot be excluded from an Agreement under non-excludable Applicable Law, neither party is liable to the other party for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees) or loss of savings, or for any other consequential or indirect loss or damage, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not.

  4. Except to the extent such loss cannot be excluded from an Agreement under non-excludable Applicable Law or as specified otherwise in a Quotation, a party (in this clause 14.4, the first party)’s aggregate liability for all loss and damage that the other party may incur due to one or more breaches of the Agreement by the first party, that is not otherwise excluded by the terms and conditions of the Agreement, is, except as otherwise specified in the applicable Quotation, capped at an amount equivalent to the amount of the Fees payable under the Agreement.

  5. Where liability for breach of any guarantees under the Australian Consumer Law or similar state or territory law can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option:

    1. with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or

    2. with respect to services, to the supply of the services again or the cost of re-supplying the services again.

  6. Other than any non-excludable guarantees (if any) implied into an Agreement under the Australian Consumer Law or similar state or territory law, all conditions, warranties and guarantees that would be implied in any Agreement are hereby excluded from the Agreement.

15. Force Majeure Event
  1. A party is not liable for any failure to perform its obligations under an Agreement if such failure was caused by a Force Majeure Event. If a Force Majeure Event that prevents a party from performing any of its obligations under an Agreement continues for forty-five (45) consecutive days, either party may terminate the Agreement by prior written notice to the other party while the Force Majeure Event continues.
16. Termination
  1. A party may terminate an Agreement by written notice to the other party if the other party (the defaulting party) commits a material breach of the Agreement: 

    1. that is not remediable; or 

    2. that is remediable and the defaulting party fails to remedy the breach within fourteen (14) days of receiving written notice from the other party requiring the defaulting party to remedy the breach.

  2. We may terminate an Agreement if:

    1. you undergo a Change of Control without our prior written consent; 

    2. you breach, challenge or dispute the validity of any of our IPR;

    3. a Third Party Provider ceases to provide hardware, software, products or services that we require to comply with our obligations to supply any Ordered Product or Service to you, except where the Third Party Provider ceases to do so due to our breach of an agreement between us and the Third Party Provider. If we wish to terminate an Agreement under this clause 16.2(c), we will provide you with at least sixty (60) days prior written notice of termination, or if that is not possible, as much notice as is possible in the circumstances.

  3. Either party (for the purpose of this clause 16.3, the first party) may terminate an Agreement by written notice to the other party if the other party: 

    1. suffers an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth); or

    2. purports to assign any of its rights or novate any of its obligations under an Agreement without the first party’s prior written consent.

  4. If an Agreement is terminated for any reason, each party shall, at the other party’s option, promptly return to the other party or destroy all copies of the other party’s Confidential Information in its possession or control. 

  5. Upon the expiry or termination of an Agreement for any reason: 

    1. we will have no further obligation to supply the Ordered Products and Ordered Services under the Agreement; 

    2. you must cease using the Ordered Products and Ordered Services under the Agreement; 

    3. except as otherwise agreed between the parties in writing, you must delete all components and copies of the Ordered Products and Ordered Services in your possession or control, including any Output but excluding Your Data;

    4. except as otherwise agreed between the parties in writing, you must delete all copies of Customer Data in your possession or control, excluding Your Data; 

    5. you shall pay to us all monies payable, due for payment or owing by you under the Agreement, including any Fees due;

    6. each party shall, at the other party’s option and upon request, promptly return or destroy all copies of the other party’s Confidential Information in its possession or control; 

    7. any licenses and rights granted pursuant to the Agreement immediately terminate. 

    8. and any rights or obligations that, by their nature, survive termination shall so survive, including any provision dealing with confidentiality, IPR, liability, dispute resolution and jurisdiction.

  6. Termination of an Agreement does not affect any accrued rights of either party.

17. Notices
  1. All notices required or permitted to be made under an Agreement shall be in writing and shall be deemed delivered if:

    1. delivered in person;

    2. sent by post to the recipient’s postal addresses identified in the relevant Quotation; or

    3. sent by email to the recipient’s email addresses identified in the relevant Quotation.   

  2. Notice given under subclause 17.1(a) shall be deemed to have been received by the recipient upon delivery.

  3. Notice given under subclause 17.1(b) shall be deemed to have been received by the recipient three (3) Business Days after posting if posted domestically in Australia, or ten (10) Business Days after posting to or from any other country.

  4. Notice given under subclause 17.1(c) shall be deemed to have been received by the recipient on the day on which it is transmitted, unless a delivery failure email is received.

  5. Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 17.

18. Dispute Resolution
  1. Before court or arbitration proceedings other than for urgent interlocutory or equitable relief may be commenced by either party to an Agreement against the other party, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with an Agreement (including any dispute as to the validity, breach or termination of an Agreement, or as to any claim in tort, in equity or pursuant to any statute). 

  2. Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party specifying the nature of the dispute.

  3. Upon receipt of the notice of dispute, senior representatives of the parties must meet in person, by telephone, via video conference or by other agreed means and use reasonable endeavours to resolve the dispute.

  4. If within ten (10) Business Days of receipt of the notice of dispute, the dispute is not resolved, then the parties shall refer the dispute to the Resolution Institute, (ACN 008 651 232); email: infoaus@resolution.institute; telephone: (02) 9251 3366 for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.

  5. Subject to clause 18.4, the parties must cooperate with the Resolution Institute as facilitator. 

  6. If within ten (10) Business Days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular, the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Mediation Rules.

  7. Nothing in this clause 18 shall prevent any party from seeking urgent interlocutory or equitable relief in connection with any Agreement.

  8. Each party will bear its own costs in respect of complying with its obligations under clauses 18.1– 18.6.

19. General
  1. A party may not assign its rights or novate its obligations under an Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).

  2. If any part of an Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement is still enforceable.

  3. The relationship between you and us is non-exclusive and nothing in an Agreement will: 

    1. prevent us from supplying any goods or services to any third party in our absolute discretion; or 

    2. prevent you from engaging any third party to provide you with any goods or services in your absolute discretion, unless the relevant Quotation specifies otherwise.

  4. We are an independent contractor and nothing contained in an Agreement creates any relationship of partnership, employment or joint venture between you and us. 

  5. Each Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements, representations or agreements between you and us about its subject matter. Without limiting the foregoing provisions of this clause 19.5, any terms of trade, purchase order terms or other terms and conditions that you issue to us (whether before or after the Agreement is entered into) are not binding and do not form part of the Agreement.

  6. A provision of or a right under an Agreement may not be waived except in writing signed by you and us.

  7. We may modify this Agreement at any time and from time to time, in our absolute discretion. We will act reasonably in exercising our rights to modify this Agreement. We will post the most recent version of this Agreement on our website. Generally, we will provide you with at least 30 days’ notice of any change to this Agreement that materially adversely affects your rights or your use of the Ordered Products and Services before any such changes become effective, unless we need to make immediate changes for reasons that we do not have control over (eg a change in law). We will provide you this notice via the Instant Account and/or by email to the email address associated with your account. By continuing to use the Ordered Products and Services after the revised Agreement becomes effective, you agree to be bound by the new Agreement. It is your responsibility to ensure that you have read and understood any revised Agreement. If you find a modified term unacceptable, you may terminate the Agreement by giving us 30 days’ written notice and you will need to pay all relevant fees up to and including the date of termination.

  8. Each Agreement is governed by the laws in force in New South Wales. You and we submit to the exclusive jurisdiction of the courts located in New South Wales and the courts of appeal from them in relation to any proceedings and disputes concerning or arising out of an Agreement.

20. Definitions and Interpretation
  1. In these Terms of Service, words in bold font in parentheses have the meanings given to them therein. In addition, the following words have the following meanings:

    Australian Consumer Law and ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

    Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including Data Protection Laws, in any applicable jurisdiction.

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

    Business Hours means 9:00am – 5:00pm on Business Days.

    CAN-SPAM Act means the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, a United States law.

    Commencement Date means the date on which an Agreement will commence in accordance with clause 2.1.

    Change of Control means a change in the beneficial ownership of more than 50% of: (a) the issued share capital of a company; or (b) the legal power to direct or cause the direction of the general management of the company.

    CPI means the most recently published Consumer Price Increase (CPI) movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics or any replacement thereof.

    Customer has the meaning, in respect of an Ordered Products or Service, given in the Service Schedule applicable to that Ordered Product or Service 

    Customer Data means: 

    1. data entered or uploaded by a Customer into any Ordered Product and/or Service;

    2. data generated by any Ordered Product and/or Service in relation to a Customer’s interaction with a Merchant Website;

    3. relevant data entered or uploaded by a Customer into a website operated by a third party that then has our products and/or services installed and operating on it; and

    4. relevant data generated by our products and/or services installed and operating on a website operated by a third party in relation to a Customer’s interaction with such website.

    Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth), Spam Act 2003 (Cth), California Consumer Privacy Act, California Privacy Rights Act, and CAN-SPAM Act. 

    Documentation means any user manuals, notes, technical instructions, compatibility requirements and other documentation provided by us in respect of any Ordered Product and/or Service.

    End User means, subject to any restrictions specified in a relevant Quotation, the Personnel of the Merchant authorised by the Merchant to access and use an Ordered Product or Service.

    Fees means the fees and charges specified in a Quotation and/or any attachment thereto.

    Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic or other circumstances beyond a party’s reasonable control. 

    GST and GST Law have the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

    Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (d) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (e) anything analogous or having a substantially similar effect to any of the events described in (a) through (d) above occurs under the law of any applicable jurisdiction.

    Instant Marks means our trade marks, business names, logos, domain names and designations.

    IPR 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.

    Merchant means you.

    Merchant Branding Materials means the Merchant’s name and branding materials that the Merchant makes available to us for the purpose of branding Ordered Products and/or Services.   

    Merchant Website means an e-commerce website specified in a Quotation that is operated by you, where you, in your capacity as a merchant, offer for sale your goods and services.

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

    Object Code means Source Code in compiled or binary form.

    Quotation means a document entitled “Order”, “Proposal”, “Quotation”, “Statement of Work”, “Letter of Offer” or similar, issued by us to you that you confirm to us you accept (either by signing it and returning it to us, or by otherwise indicating your acceptance of it including by paying any deposit or other amount specified in the document). Upon such confirmation, you will be deemed to have accepted and submitted the accepted Quotation to us.

    Ordered Product has the meaning given in clause 3.1.

    Ordered Service has the meaning given in clause 3.1.

    Our Equipment means any equipment, systems, software, networks, servers, hardware, cabling, ports, switches or other ancillary equipment or tools owned or operated by us.

    Output means any reports and other output generated by any Ordered Products and Services.

    Payment Terms means payment terms set out in an applicable Quotation.

    Permitted Purpose means any permitted purpose set out in an applicable Quotation in respect of the access and/or use of any Ordered Product and/or Service.

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

    Personnel means a person’s employees, agents, officers and subcontractors. We are not your Personnel and you are not our Personnel for the purposes of this definition.

    Privacy Policy means our Privacy Policy available at https://www.instant.one/privacy-policy 

    Provision means setup, installing and/or making a relevant Ordered Product and/or Service available for use by End Users and/or Customers.

    Service Schedule means a document with that title that we supply to you.

    SLA means a document prepared by us entitled “service level agreement”, “SLA” or similar.

    Source Code means human readable computer code.

    Specifications means the technical, functional and non-functional specifications for Ordered Products and Services as set out in, referred to from, or attached by us to, a Quotation.

    Term means the term of an Agreement determined pursuant to clause 2.

    Third Party Provider means any of our third party suppliers, vendors, subcontractors or providers who provide any goods or services that we rely on as part of Ordered Products and Services. 

    We, our and us means Instant Checkout Pty Ltd (ACN 642 933 462).

    You and your means, in respect of an Agreement, the party that has entered into the relevant Agreement with us, as specified in the Quotation.

    Your Equipment means any systems, software, networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned or operated by you or on your behalf, other than Our Equipment. For the avoidance of doubt, Our Equipment is not Your Equipment.

    Your Premises means any premises owned, controlled or occupied by you, specified in a Quotation.

  2. Unless the context requires otherwise:

    1. a reference to a “party” means you or us (as the context dictates) and a reference to the “parties” means you and us;

    2. headings and underlinings are for convenience only and do not affect the construction of an Agreement;

    3. a provision of an 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;

    4. except where expressly specified otherwise in a Quotation, currency or “$” refers to Australian dollars;

    5. a reference to a statute or regulation includes amendments and replacements thereto;

    6. a reference to time is to time in New South Wales;

    7. 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;

    8. the words “such as”, “including”, “particularly” and similar expressions are not words of limitation and shall be interpreted as if the words “but not limited to” immediately followed them in each case; 

    9. a reference to the singular includes the plural and vice versa; and

    10. a reference to one gender includes all genders.