Terms of Service - Checkout

Instant Checkout Pty Ltd

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Last Updated

May 27, 2024

Terms of Service - Checkout

Instant Checkout Pty Ltd

|

Last Updated

May 27, 2024

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnity in our favour at clause 6.6 of this Service Schedule.

IMPORTANT INFORMATION ABOUT INDEMNITY CLAUSES: Please note the indemnity in our favour at clause 6.6 of this Service Schedule.

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. About this Service Schedule

  1. This Service Schedule only applies in respect of a Quotation that expressly provides for our supply of the Instant Checkout Service.

  2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.  

  3. In this Service Schedule, a reference to a clause is a reference to a clause in this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service, unless the context indicates otherwise.

2. Implementation

  1. To use the Instant Checkout Service, you may need to engage with us for implementation services.

  2. You are responsible for ensuring that all Customer Software is installed, set up, configured, fit for purpose, in working order and available to us, and that all internet connections and network connections are complete and operational.

  3. You will notify us of the name and qualifications of the person appointed as your Project Coordinator upon request by us.

  4. You must ensure that your Project Coordinator co-operates with our Implementation Coordinator and attends meetings scheduled by the Implementation Coordinator to advise and assist on all matters relating to the implementation of the Instant Checkout Service as requested by the Implementation Coordinator.

3. Change control 

  1. You may, by giving written notice to us at any time during the Term, request a change to the Instant Checkout Service.

  2. We may prepare a fee estimate for any change that you request and you must inform us in writing whether or not you accept the requested change.

4. Software licence and rights

  1. We hereby grant you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable licence as required for you to install and use the Instant Checkout Service on each Merchant Website in accordance with the Documentation for the Permitted Purpose.

  2. We hereby grant you, subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable right for each of your End Users to access and use the Instant Checkout Service, in accordance with the Agreement and the Documentation, as required for the Permitted Purpose.

  3. We undertake to host or procure the hosting of the Instant Checkout Service in accordance with the SLA.

  4. Notwithstanding any other provision of the Agreement, you have no right or licence to download or install the Instant Checkout Service on any computer or device.

  5. Nothing in the Agreement gives you any rights to access any Source Code in the Instant Checkout Service.

5. Software Maintenance Releases and New Versions

  1. We will provide you with access to all Maintenance Releases in respect of the Instant Checkout Service. 

  2. Any failure to promptly implement such Maintenance Releases may result in your Merchant Website/s becoming incompatible with the Instant Checkout Service.

  3. You agree and acknowledge that you are not entitled to receive, and that we are not obligated to supply, any New Versions of the Instant Checkout Service pursuant to this Agreement.

  4. Any Maintenance Release and New Version of the Instant Checkout Service supplied by us to you shall constitute the Instant Checkout Service for the purposes of this Agreement. 

6. Merchant Obligations

  1. In order to be able to use the Instant Checkout Service, you must:

    1. apply for and during the Term have an approved account held with a Payment Gateway Provider (Payment Account); 

    2. during the Term, agree and authorise the Payment Gateway Provider to permit us to connect our Instant Checkout Service account to your Payment Account in order to administer and provide the Instant Checkout Service and enable you to accept Customer payments for your goods and services via the Instant Checkout Service.

  2. You acknowledge and agree that:

    1. the processing of the payment for Transactions is solely between you and the Customer;

    2. you may only use the Instant Checkout Service for genuine and legitimate Transactions conducted via a Merchant Website with a Customer;

    3. you are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Instant Checkout Service; 

    4. you are responsible for any penalties or fines imposed by any bank, payment network, card scheme, Payment Gateway Provider, or other Financial Services Provider resulting from your use of the Instant Checkout Service in a manner not permitted by this Agreement or the Payment Gateway Provider’s or the other Financial Services Provider’s rules and regulations; and

    5. notwithstanding any review or approval that we undertake or provide in respect of Your Privacy Policy, you are responsible for Your Privacy Policy.

  3. You further acknowledge and agree that we are not:

    1. a party to any Transactions;

    2. responsible for or liable to any third party, including a Customer, for the products or services sold by you to the Customer, including the provision of support to Customers in respect of any Merchant Website;

    3. not responsible for the products or services sold by you to a Customer;

    4. responsible for the acts or omissions of any Customer, including in respect of whether a Customer completes a Transaction; and/or

    5. responsible for or liable to any Payment Gateway Provider or other Financial Services Provider in respect of Transaction disputes and chargebacks, Refunds, Reversals, Returns and any penalties and fines that arise in connection with your use of the Instant Checkout Service, except to the extent caused by our breach of an Agreement or failure to comply with Applicable Law. 

  4. You will, during the Term:

    1. operate and maintain each Merchant Website;

    2. be responsible for providing maintenance and support in respect of each Merchant Website and for providing customer support (which includes support for customer deliveries and returns, refunds, account and personal details, fraud and security, and data protection), and backing up each Merchant Website;

    3. designate (and replace if required) one of your Personnel to serve as your primary contact with respect to this Agreement (the “Merchant Representative”);

    4. require that the Merchant Representative respond promptly to any reasonable requests from us or approvals required by us to provide the Instant Checkout Service;

    5. notify us giving reasonable advance notice of any planned updates or unavailability of each Merchant Website; and

    6. not impose or collect any fee of any kind, including any fee from any of your customers for use of the Instant Checkout Service.

  5. You warrant and represent that during the Term, your privacy policy will be prominently displayed on each Merchant Website (Your Privacy Policy) and will comply with all Data Protection Laws as required for us and our Third Party Providers to provide the Instant Checkout Service to you.

  6. You must indemnify us, our Personnel and Third Party Providers from and against all and any loss or damage that we or they may suffer or incur as a result of any breach of clause 6.5, except to the extent caused by our negligence, breach of an Agreement or failure to comply with Applicable Law.

7. Customer Data Licence
  1. We hereby grant you, your End Users and Personnel a non-exclusive, non-transferable licence to access and use the Customer Data made available to you by us via the Instant Checkout Service for the Permitted Purpose in accordance with Your Privacy Policy, the Agreement and all Applicable Laws, including the Data Protection Laws.
8. Fees

  1. Notwithstanding clause 12 of the Terms of Service, you acknowledge and agree that your Payment Gateway Provider must automatically deduct the Fee and any applicable GST from the amount of each Transaction undertaken via the Instant Checkout Service and remit that sum to our Nominated Account.

  2. You acknowledge and agree that you are responsible for and liable for any Taxes that apply to the sale of your products and services to a Customer or any other person.

9. Support and Maintenance
  1. During the Term, we will provide support and maintenance services in respect of the Instant Checkout Service in accordance with the SLA.
10. Records and audit

  1. For a period of two years after each Fee is paid in accordance with clause 8.1, you agree that you will make and maintain such books, records and accounts as are reasonably necessary for us to verify each Fee.

  2. No more than once each year during the Term or within one year thereafter, upon at least 7 days prior written notice to you, we (or a third party on our behalf) shall have the right, at our own cost and expense, to audit your books, records, and accounts for the purposes of verifying the Fees.

  3. The Merchant shall cooperate with us in respect of any audit carried out under clause 10.2.

  4. If an audit carried out under clause 10.2 reveals an underpayment of the Fees, then you will within 7 days pay the full amount of any such underpayment to us.

  5. We will bear our own costs and expenses in respect of carrying out an audit under clause 10.2 unless the audit reveals that you have underpaid the Fees or otherwise failed to comply with this Agreement in any material respect, in which case you shall be liable to reimburse us for the costs and expenses incurred by us in connection with the audit.

  1. For a period of two years after each Fee is paid in accordance with clause 8.1, you agree that you will make and maintain such books, records and accounts as are reasonably necessary for us to verify each Fee.

  2. No more than once each year during the Term or within one year thereafter, upon at least 7 days prior written notice to you, we (or a third party on our behalf) shall have the right, at our own cost and expense, to audit your books, records, and accounts for the purposes of verifying the Fees.

  3. The Merchant shall cooperate with us in respect of any audit carried out under clause 10.2.

  4. If an audit carried out under clause 10.2 reveals an underpayment of the Fees, then you will within 7 days pay the full amount of any such underpayment to us.

  5. We will bear our own costs and expenses in respect of carrying out an audit under clause 10.2 unless the audit reveals that you have underpaid the Fees or otherwise failed to comply with this Agreement in any material respect, in which case you shall be liable to reimburse us for the costs and expenses incurred by us in connection with the audit.
11. Interpretation

  1. In this Service Schedule, the following terms have the following meanings:

    Charge means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Transaction.

    Customer means a person that:

    1. in their capacity as a customer of e-commerce merchants, has registered and then holds a current end user account on the Instant Checkout Service;

    2. the end user account referred to in paragraph (a) is not then suspended and has not been terminated; and

    3. we then hold sufficient Customer Data about, in order for us to be able to provide you with the Instant Checkout Service in respect of that person.   

    Customer Software means any software that is not the Instant Checkout Service.

    Financial Services Provider means any provider of financial services or products and with which the Payment Gateway Provider directly or indirectly interacts to enable the Transactions.

    Implementation Coordinator means the person who we nominate as our implementation coordinator for the purposes of the implementation of the Instant Checkout Service. 

    Instant Checkout Service means the Instant online checkout payment service provided by us to you under this Agreement and any updates and/or upgrades to the Instant Checkout Service.

    Maintenance Release means a release of the Instant Checkout Service that corrects faults, adds functionality or otherwise upgrades the Instant Checkout Service, but which does not constitute a New Version.

    New Version means any version of the Instant Checkout Service which from time to time is marketed by us as a new version of the Instant Checkout Service.

    Nominated Account means our nominated bank account as notified to you from time to time. 

    Payment Gateway Provider means the third party who provides, among other things, a payment gateway connection to enable you to complete Transactions.  

    Price means the price for the provision of the Instant Checkout Service, set out in a relevant Quotation.

    Project Coordinator means the person who you nominate as your project coordinator for the purposes of the implementation of the Instant Checkout Service.

    Refund means instructions initiated by you to return funds to a Customer for an existing Charge.

    Reversals means instructions initiated by a Financial Services Provider or the Payment Gateway Provider to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Financial Services Provider; (ii) funds settled to you in error or without authorisation; and (iii) submission of a Charge in violation of applicable network rules, or where submission of the Charge or Merchant use of payment services violates this Agreement.

    Returns means an instruction initiated by the Merchant, a Customer, any other person or a Financial Services Provider to return funds related to an existing Charge.

    SLA means any service level agreement provided with this Service Schedule.

    Taxes means all taxes, fees and other charges imposed by any governmental authority, including without limitation any value added tax, goods and services tax, provincial sales tax and/or harmonised sales tax in respect of any Transaction.

    Transaction means a purchase by a Customer of your goods or services which is completed using the Instant Checkout Service via a Merchant Website.