Terms of Service - SMS
Instant Checkout Pty Ltd
November 28, 2023
1. About this Service Schedule
1.1 This Service Schedule only applies in respect of a Quotation that expressly provides for our supply of the Instant SMS Service.
1.2 This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.
1.3 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. The Instant SMS Service
2.1 Subject to clause 3.1, on an from the Commencement Date, we will , subject to the terms and conditions of the Agreement, during the Term, on your behalf via our Third Party Provider, send a reminder SMS text message (Reminder SMS) to each Customer that has abandoned a Merchant Website with items remaining in their shopping cart on that Merchant Website but without completing the purchase of the items remaining in their shopping cart on the Merchant Website (Abandoned Transaction), which will be branded using the Merchant Branding Materials and will include a hyperlink to the applicable Merchant Website for the Customer to complete the Abandoned Transaction, materially in accordance with the Specifications and the Documentation.
2.2 Subject to your compliance with clause 4.5, we represent and warrant that each Reminder SMS that we send on your behalf to a Customer in accordance with clause 2.1 will comply with all Applicable Laws, including the Data Protection Laws and the Spam Act 2003 (Cth).
3. Supply of Instant SMS Service
3.1 You agree and understand that during the Term:
the Instant SMS Service will only operate in respect of a Merchant Website that has the Instant Checkout Service installed and operating on it pursuant to an agreement with us;
in order for your End Users to access and use the Instant SMS Service on any Merchant Website, you must be using the Instant Checkout Service on each such Merchant Website;
at any time that the Instant Checkout Service is not operating in respect of a Merchant Website, the Instant SMS Service will not operate in respect of such Merchant Website; and
each Customer may at any time withdraw their consent to receiving Reminder SMS from us, in which case, until such time as the Customer consents to receiving Reminder SMS again, we will not send such Customer any Reminders SMS.
4. Merchant Obligations
4.1 In order to be able to use the Instant SMS Service, you must:
apply for and during the Term have an approved account held with a Payment Gateway Provider (Payment Account);
during the Term, agree and authorise the Payment Gateway Provider to permit us to connect our Instant SMS Service account to your Payment Account in order to administer and provide the Instant SMS Service and enable you to accept Customer payments for your goods and services via the instant SMS Service.
4.2 You acknowledge and agree that:
the processing of the payment for Transactions is solely between you and the Customer;
you may only use the Instant SMS Service for genuine and legitimate Transactions conducted via a Merchant Website with a Customer;
you are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Instant SMS Service;
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 SMS 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
4.3 You further acknowledge and agree that we are not:
a party to any Transactions;
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 the Merchant Website;
not responsible for the products or services sold by you to a Customer;
responsible for the acts or omissions of any Customer, including in respect of whether a Customer completes a Transaction; and/or
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 SMS Service, except to the extent caused by our breach of an Agreement or our failure to comply with Applicable Law.
4.4 You must, during the Term:
operate and maintain each Merchant Website;
be responsible for providing maintenance and support in respect of each Merchant Website and for providing customer support for all issues relating to the products and services purchased on each Merchant Website. This includes support for customer deliveries and returns, refunds, account and personal details, fraud and security, and data protection;
designate one of your Personnel to serve as your primary contact with respect to this Agreement and to act as your authorised representative with respect to matters pertaining to this Agreement (the “Merchant Representative”), with such designation to remain in force unless and until a successor Merchant Representative is appointed;
require that the Merchant Representative respond promptly to any reasonable requests from us for instructions, information, or approvals required by us to provide the Instant SMS Service;
cooperate with us in our performance of this Agreement and provide access to your Personnel and Your Equipment as required to enable us to provide the Instant SMS Service;
not make or permit to be made any representations or warranties, including false or misleading representations, with respect to the specifications, features, or functionality of the Instant SMS Service;
notify us giving reasonable advance notice of any planned updates or unavailability of each Merchant Website; and
not impose or collect any fee of any kind, including any fee from any of your customers for use of the Instant SMS Service.
comply with the requirements of APP 1;
make all necessary notifications required by APP 5, on behalf of you, us and our Third Party Providers;
obtain all necessary consents required by APP 6; and
obtain consent as required by APP 8.2(b), any other applicable APP, on behalf of yourself, us and our Third Party Providers,
4.6 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 4.5, except to the extent caused by our negligence, breach of an Agreement or failure to comply with Applicable Law.
5.1 Notwithstanding clause 13 of the Terms of Service, you acknowledge and agree that your Payment Gateway Provider must automatically deduct the Fee and any applicable GST in respect of each Transaction and remit that sum to our Nominated Account.
5.2 You acknowledge and agree that you are responsible and liable for any Taxes that apply to the sale of your products and services to a Customer or any other person.
6. Customer Data Licence
7. Support and Maintenance
8. Training Services
8.1 If “Training Services” is specified in a Quotation, we will train your Personnel specified in the Quotation on the allocated number of days set out in the Quotation, at mutually agreed times (Initial Training Services). The Initial Training Services shall be delivered online unless otherwise agreed.
8.2 Any additional training in the Instant Checkout Service required by you that we agree to provide will be provided by us at our standard rates then in force.
8.3 If the Training Services or any additional training is carried out in person at your premises, you will be responsible for all costs and expenses of our Personnel in connection with travel to and attendance at the training (Training Expenses). You must reimburse us for all Training Expenses that we incur within 28 days of the date of any invoice that we issue to you for the Training Expenses.
9. Records and audit
9.1 For a period of two years after each Fee is paid in accordance with clause 5.1, you agree that you will make and maintain such books, records and accounts as are reasonably necessary for us to verify each Fee.
9.2 No more than once each year during the Term and within 1 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.
9.3 The Merchant shall cooperate with us in respect of any audit carried out under clause 9.2.
9.4 If an audit carried out under clause 9.2 reveals an underpayment of the Fees, then you will within 7 days pay the full amount of any such underpayment to us.
9.5 We will bear our own costs and expenses in respect of carrying out an audit under clause 9.2 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.
10. Professional Services
10.1 If “Professional Services” is specified in a Quotation (Professional Services), we will provide the Professional Services in accordance with any requirements set out in the Quotation.
11.1 In this Service Schedule, the following terms have the following meanings:
APP means an Australian Privacy Principle as defined in the Privacy Act.
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:
(a) 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;
(b) the end user account referred to in paragraph (a) is not then suspended and has not been terminated; and
(c) we then hold sufficient Customer Data about, in order for us to be able to provide you with the Instant SMS Service in respect of that person.
Financial Services Provider means any provider of financial services or products and with which the Payment Gateway Provider interacts to enable the Transactions.
Instant Checkout Service means the Instant online checkout payment service by that name provided by us pursuant to an agreement in place with us, including any updates and/or upgrades thereto.
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.
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, 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 on any Transaction.
Transaction means a purchase by a Customer of your goods or services which is completed using the Instant SMS Service on a Merchant Website.